Hijab Ban Appeal #5: Dr. Dhavan Argues Any Bonafide Belief is Protected Under Article 25

On September 14th, 2022, Justices Hemanth Gupta and Sudhanshu Dhulia heard Senior Advocate Dr. Rajeev Dhavan explain how Courts should apply the essential religious practices under Article 25. Dr. Dhavan appeared on behalf of a Muslim student challenging Karnataka’s hijab ban in educational institutions. 

Framing the context for the Bench, Dr. Dhavan stated that this was not a simple ‘yes or no’ case about discipline in schools. Fundamental rights are at stake. The State government and schools are required to take an inclusive approach and find the least ‘invasive’ methods to discipline students. His main argument, therefore, was the restrictions on fundamental rights must be proportionate to the intent of the policy. 

The Bench heard Senior Advocates Aditya Sondhi and Huzefa Ahmadi on the same day as well. Read their arguments here and here. 

Background: What is the Hijab Ban?

On February 5th 2022, the Karnataka government issued a Government Order (GO) directing College Development Committees (CDCs) across the state to prescribe a uniform for students. The GO clarified to the CDCs that disallowing Muslim students from wearing the Hijab, a customary Islamic headscarf, would further fraternity and public order. The ban, according to the GO, would not violate any fundamental rights. 

Starting from September 2021, pre-university colleges in Udupi stopped women from wearing the hijab. Many colleges across the State followed suit. The students challenged the GO and the CDCs’ decision at the Karnataka High Court (HC). 

In the HC proceedings, lawyers argued that the ban violates the muslim students’ Right to Eqaulity, Education and Religious Freedom. On March 15th, 2022, three Judges of the Karnataka HC upheld the ban, stating that wearing the Hijab was not an essential religious practice in Islam and hence, was not protected under the constitutional right to freedom of religion.  

Overnight, a slew of petitions challenging the HC Judgment reached the Supreme Court. 

Dr. Dhavan: Judges Should Not Become Maulvis And Interpret Religious Texts

Dr. Dhavan asserted that the Hijab is an essential practice in Islam. Article 25(2) protects essential religious practices from any government interference. The counsels preceding Dr. Dhavan relied on religious texts to establish the essentiality of the practice. Dr. Dhavan, however, took a different approach. 

Dr. Dhavan argued that a practise is considered essential if the religious community can show that the practise is prevalent and  arises from a ‘bonafide’ belief. If such faith is clear, Dr. Dhavan suggested that it is unnecessary for secular Judges to become religious experts and interpret the position of scriptures on the practice. He relied on Bijoe Emmanuel (1986) and Ratilal Gandhi (1954) to show that the Supreme Court had taken this view before. He cited a decision of the Kenyan High Court reading down the  Kenyan government’s Hijab ban in schools to show that foreign countries followed the same logic while protecting religious rights. 

Justice Gupta, however, wondered what would happen when the essentiality of a practise in under dispute. If we do not decide, who will, he asked? Repeating the current context, Dr. Dhavan stressed that no  one in the country was disputing that #hijab is part of the Islamic faith. 

If the Court must dive into religious scriptures, Dr. Dhavan provided them with a Kerala High Court Judgment as a reference. Here, the High Court found that the hijab is a ‘farz’ (duty) under the Quran, and is hence essential to Islam. 

Dr. Dhavan stated that the ban specifically targets Muslim women and violates the Right to Equality under Articles 14 and 15. He argued that the government must promote inclusivity and take the least restrictive approach while imposing discipline in the teeth of religious rights. 

Government Order Banning Hijab Relies on Wrong Case Law

Dr. Dhavan argued that the Government Order allowing hijab bans in colleges has no foundation. A section of the Order sets out a list of Judgments, stating that they support the ban. Dr. Dhavan took the Court through the Judgments to show that this was not the case. 

The GO stated that the Kerala High Court allowed a similar ban in  Fathima Thasneem v State of Kerala (2019). Dr. Dhavan pointed out that this Judgment allowed a minority Christian institute to manage its own affairs, and did not support a state-wide ban. 

Dr. Dhavan further argued that a Bombay High Court decision cited in the GO is irrelevant as well. This decision applied to an all-girls school, not to co-ed institutions like the Karnataka GO. 

The Bench heard Senior Advocate Hufeza Ahmadi next. Read his arguments here. 

 

Dig Deeper

• The Contradictions in the Hijab Ban GO:  The Karnataka Government Order banning the hijab cited three High Court cases that appear to be inapplicable in the present case. SCO’s detailed analysis explains here. 
• How did the Essential Religious Practices Test Evolve: The Hijab Ban hearings have revealed that confusion persists on how Courts should decide what practices are essential to a religion. SCO’s ‘Court in Review’ tracks the muddled development of this test at the Supreme Court here. 
• Dr. Dhavan on the Double Binds in Indian Secularism: In a 2001 book chapter, Dr. Dhavan studies the role of the Constituent Assembly in developing an Indian definition of secularism that is closely tied to our colonial history.  In this chapter, Dr. Dhavan makes sense of the seeming contradictions in Indian secularism and religious rights. Read here at page 312.