Hijab Ban Appeal #7: Dushyant Dave Discusses Constituent Assembly Debates on Article 25

On September 19th 2022, Senior Advocate Dushyant Dave launched into a one hour long preface spanning Emperor Akbar’s secular credentials, the current state of the Indian polity and the reformist policies of Baroda’s Maharaja Sayajirao Gaekwad while arguing against Karnataka’s hijab ban in educational institutions. Justices Hemant Gupta and Sudhanshu Dhulia, hearing the seventh day of arguments from the petitioners, prodded Mr. Dave to stick to relevant and new arguments all through. 

After running through his preface, Mr. Dave relied on Constituent Assembly Debates and SC Judgments in Ratilal Gandhi (1954) and Shrirur Mutt (1954) to argue that the constitution protects any religious practice or belief held in good faith by a citizen. He argues that Article 25 protects a more expansive set of religious rights than just those interpreted as essential in the religious scriptures. Senior Advocate Rajeev Dhavan advanced similar arguments in an earlier hearing in the same case. Read more 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. The Court has completed six days of hearing final arguments from the petitioners in this case. 

How Relevant are Constituent Assembly Debates To Interpreting Constitution, Asks Justice Gupta

Mr. Dave read out extracts from the Constituent Assembly Debates to clarify the meaning of the right to religion under Article 25 and the principle of secularism. He argued that our Constitution makers envisioned a secular State that would not interfere in religious practices. 

Justice Dhulia pointed out that objections were raised to protections for the ‘propagation’ of religion in Article 25 during Debates. He asked Mr. Dave how these objections were addressed. Justice Gupta stated that the word ‘propagate’ was eventually dropped from the provision. Both Justice Dhulia and Mr. Dave corrected Justice Gupta, stating that propagating one’s religion is still protected by Article 25. 

Mr. Dave quoted T.T. Krishnamachari and K. Santhanam, both Constituent Assembly members, to answer Justice Dhulia. K. Santhanam stated that propagation was an extension of the right to free expression under Article 19. It was protected as long as it did not harm public order, health and morality. Mr. Krishnamachari argued that propagation may be essential to some citizens’ faith and religious beliefs. 

Getting impatient, Justice Gupta asked Mr. Dave why he was spending so much time on the debates. He asked to what extent they are relevant for constitutional interpretation, and for examples where the SC has relied on the Debates. Mr. Dave replied that the Constitution framers represent the will of the people and the Debates are extremely relevant when interpreting the Constitution. He said that the Court routinely relies on the Debates for this purpose, citing the NJAC (2015) and Right to Privacy (2017) cases as examples. 

 

Dig Deeper

• 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. 
• Constituent Assembly Debates on Article 25 Protection for ‘Propagating’ Religion: CADIndia.net compiles a transcript of the Constituent Assembly Debates on Article 25 and the scope of its protections for religious rights. Read here. 
• SCO’s Hijab Ban Case Archive: Interested in a full archive of the developments in the Hijab Ban case, right from the High Court? SCO’s case archive systematically compiles petitions, government submissions, reports of all hearings and significant Orders in the case at the HC and SC. Click here to visit our archive.