Hijab Ban Appeal #3: Sr. Adv. Devadatt Kamat Argues Ban Has No Constitutional Basis

On September 8th, 2022, Justices Hemanth Gupta and Sudhanshu Dhulia waded through the complicated facets of the right to religion in India while hearing arguments against Karnataka’s Hijab ban in educational institutions. 

Appearing for Aishat Shifa, a Muslim student barred from entering her college while wearing the hijab, Senior Advocate Devadatt Kamat and Adv. Nizam Pasha placed two broad arguments before the Bench. Mr. Kamat argued in the morning that the ban was constitutionally unjustified. Mr. Pasha, taking over in the afternoon, argued that the Karnataka High Court, while upholding the ban, misunderstood the essentiality of the Hijab in Islamic faith. 

Senior Advocate Devadatt Kamat continued his arguments from yesterday challenging the ban in the morning session. Yesterday, Mr. Kamat tried to convince the Court that the case must be referred to a Constitution Bench since it involved constitutional questions about making reasonable accommodations for religious practices. He submitted that the state has the responsibility to accommodate citizens’ diverse needs and beliefs so they can exercise their Freedom of Religion. He argued that the students in Karnataka were only asking to add a headscarf to the uniform—not to cover the uniform with a Hijab or similar garment. This was a reasonable accommodation that the state government must allow. 

Today, Mr. Kamat focused on his argument that wearing a Hijab is a religious practice protected by Article 25 of the Constitution of India, 1950. Mr. Pasha took over after the Court’s lunch break.

Karnataka Did Not Justify Hijab Ban on the Basis of Any Constitutional Restrictions to Religious Rights

Sr. Advocate Devadatt Kamat argued that Article 25 allows the government to restrict individuals from exercising their right to practice religion on four bases—public order, health, morality and disturbance of others’ fundamental rights. He stated that the Karnataka government’s Hijab ban was not based on any of these reasons. 

The Bench raised the same issue as yesterday—wearing the Hijab in school must be distinguished from wearing it elsewhere. In schools, ‘public order’ refers to the order and discipline the school wishes to maintain. 

Mr. Kamat responded stating that the threat to order in schools, as stated by the Karnataka government, were the orange shawls and sloganeering of protesting students in reaction to some Muslim students wearing the Hijab. Allowing a ban on this basis, according to Mr. Kamat, would be akin to allowing a ‘Heckler’s Veto’. 

Heckler’s Veto’ refers to when restrictions on speech are accepted due to an anticipated hostile reaction from opponents of that speech. The term was first used by SCOTUS in Brown v State of Louisiana (1966). Mr. Kamat argued that the Indian Supreme Court recognised that heckler’s veto cannot justify a public order restriction on Article 19 rights in Indibility Creative Pvt Ltd. v. Govt. of West Bengal (2019). 

The Bench stopped Mr. Kamat, saying public order arguments were irrelevant. Mr. Kamat responded he is explaining the term since the challenged Karnataka Government Order says wearing the Hijab in schools violates ‘Public Order’. 

The Bench disagreed. They pointed out that the Karnataka Government Order merely states that banning the Hijab does not violate the right to religion under Article 25 and left it up to the schools to decide whether restriction is needed to maintain public order. 

Mr. Kamat moved on to Article 25(3), which allows restrictions on religious rights for ‘social welfare and reform’. He argued that the Karnataka Education Act, 1983, under which the Hijab ban was enacted, was not meant to be a law for social reform. Mr. Kamat argued that the State had wrongly interpreted S7 of the Act, which allows it to promote social harmony in schools, to mean that they can impose restrictions.

Restrictions on fundamental rights must be direct and proximate, not indirect and inferential, according to Mr. Kamat. 

He continued to argue that the Karnataka HC held that the Act gives the State power to make rules to restrict practices derogatory to women. How is Hijab derogatory to women, asks Mr. Kamat?

Previously, the State argued that if Hijab was allowed, others must be allowed to wear an orange shawl, which would lead to indiscipline. Mr. Kamat pointed out that Section 25 only protects innocent and bonafide religious practices, like wearing the Namam or Hijab. He stated that the orange shawl was a belligerent display, not a bonafide exercise of rights.

On Essential Religious Practices

Justice Dhulia asked Mr. Kamat if he thought the Bench needs to consider whether wearing the Hijab is an essential practice in the Islamic faith. 

Mr. Kamat replied that Article 25 protects essential as well as non-essential religious practices. The Bench must first decide whether the restriction is based on public order, health or morality. Even if the Bench determines that it is, Mr. Kamat argued that the Court must protect essential religious practices (ERP) from government interference. However, it will become necessary to consider the essentiality of a practice only if the Court finds that the Hijab ban was based on one of these justifications.  

Concluding his arguments on right to religion, Mr. Kamat stated that the High Court erred by reversing the order of the Article 25 test and first deciding whether wearing the Hijab is an ERP. 

Karnataka Government Made Administrative Law Errors While Banning the Hijab

Mr. Kamat briefly argued that the State had not applied its mind to the problem at hand while formulating the Government Order banning hijab. As evidence, he suggested that the Judgments quoted to support the ban in the Order have nothing to do with wearing the hijab in schools. 

Mr. Kamat further stated that the College Development Committees, to which the government gave the power to ban religious clothing, was not a State actor. The delegation of power, hence, was wrongful. 

Mr. Nizam Pasha took over from Mr. Kamat after the lunch break, arguing that the hijab is essential to Islam, and hence protected from any government interference under Article 25.