Daily Update September 5th: Hijab Ban, Sanjay Mishra’s ED Tenure, Uniform Marriage and Succession
We discuss a possible 9-Judge Bench Reference in Hijab Ban, the effect of tenure extensions on special investigative bodies and the UCC.
The Supreme Court began hearing challenges to the Karnataka government’s hijab ban in colleges today, nearly six months after the High Court decision upholding the ban was challenged.
Senior Advocate Sanjay Hegde began arguments for the petitioners before Justices Hemant Gupta and Sudhanshu Dhulia today. Earlier this year, the Karnataka government issued a Government Order asking educational institutions to prescribe a dress code which did not ‘threaten equality, unity, and public order’.
Mr. Hegde argued that the Court does not need to venture into constitutional interpretation in this case. He said the issue was far more straightforward—Does the Karnataka Education Act give the State government power to mandate a uniform? He argued the State government did not have this power. He also reminded the Court that context was essential here—the uniform rule disadvantaged women by absolutely restricting them from accessing education merely on the basis of clothing.
He also argued that Section 39 of the Act bars the State government from making rules which insult religious sentiments or deny admission on the basis of religion. Justice Dhulia retorted that the hijab might not be a religious garment.
Justice Dhulia’s comment hints at the direction this case is likely to take. In the next hearing, Advocate Devadutt Kamat is expected to argue that wearing the hijab is protected by Article 25 since it is an essential religious practise.
The consequence? If the Court is asked to decide if the hijab is an essential religious practise, the case is likely to be referred to a 9-Judge Bench. The Sabarimala case, where the Court must decide what an essential religious practice is, has been pending before a nine-judge bench since 2019.
The Karnataka government has refused to file a counter-affidavit in the matter, signalling a possible hands-off approach in this case. Today they argued that the challenged government order left the decision of allowing the hijab upto the College Development Committees. The Bench, however, was quick to point out that a Karnataka MLA was part of the Committees.
Two other developments in the Chief Justice’s Court today. CJI Lalit and Justice Bhat reluctantly issued notice on ex-BJP spokesperson Ashwini Kumar Upadhyay’s petitions asking for the creation of uniform divorce, alimony, succession and inheritance laws. Mr. Upadhyay has his sights set on a Uniform Civil Code. The Bench worries this is a policy concern, not fit for the Courts to decide.
The same Bench also slotted hearings in challenges to ED Director Sanjay Mishra’s tenure extension for September 19th. Leaders from the Congress and Trinamool have come to Court arguing that ‘dangling’ extensions before the heads of critical institutions like the CBI and ED endanger their independence.