Hijab Ban Appeal #8: Karnataka Gov Says Uniform Necessary for Unity
Hijab Ban in Karnataka Educational InstitutionsOn September 14th, 2022, Justices Hemanth Gupta and Sudhanshu Dhulia began hearing the Karnataka government’s defence of Karnataka’s Hijab ban in educational institutions. Justice Dhulia acknowledged that the Karnataka government was wrong to rely on the essential religious practices test to uphold the ban. Petitioners at the Supreme Court have proposed less contentious ways to deal with this case. Solicitor General Tushar Mehta admitted that the ERP route was ill-advised as well. Yet, surprisingly, the Court spent most time engaging with the ERP test today.
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.
SG Mehta: Karnataka Is Competent to Advise Reasonable Uniform Rule
Previously, the Muslim students argued that the Karnataka Education Act does not give the State government power to tell students what to wear to school. Today, SG Mehta argued that Rule 11 of the Act allows the government to direct schools to make rules for discipline. Through the hijab GO, Mr. Mehta argued that the government was providing directions to schools, not students directly.
Relying on a host of foreign Judgments, Mr. Mehta argued that the right to express oneself through dress under Article 19(1)(a) can be restricted through uniforms in regulated spaces. He suggested that the objective of the restriction on hijab was unity and discipline. He argued that the Muslim students began wearing the hijab to schools only in 2021, in response to a social media conspiracy launched by the Popular Front of India. In retaliation, other students wore saffron shawls. Eventually, protesting students took over the streets and schools. The GO aimed to control this situation in a neutral manner. It did not target one minority community, since it banned both the hijab and saffron shawls.
Dhulia J asked if any additions, such as spectacles or a muffler, may be added to the uniform to accommodate diverse students’ needs. Mr. Mehta stated that any additions that hamper the object of unity must be disallowed. Hence, the additions cannot disclose a one’s religion.
SG Mehta and AG Navadgi on ERP Test: Eventually, the Courts Must Decide What is Essential
SG Mehta explained the Essential Religious Practices test. He argued Art 25 only protects practices that are fundamental to the very existence of one’s faith. According to him, the Muslim students did not show evidence of such essentiality at the High Court. They should have shown that large number of Muslims are excommunicated or face other consequences from their community for not following the Hijab practise.
Gupta J pointed out that the petitioners quoted Quranic verses as evidence that the Hijab is essential. Earlier, Mr. Pasha, for the students, argued that all verses of the Quran are mandatory. Those who do not follow it face consequences in the afterlife.
SG Mehta stated that the Quran prescribes many things. Prescribed practices may be considered permissible, even recommended. However, to show essentiality, the community must prove that the commandment is followed universally and without interruption since the beginning of the religion.
Dhulia J asked who would decide what is permissible or essential? The Petitioners had previously argued that Courts must not become interpreters of religious texts themselves. Solicitor General Mr.
On religion, Mr. Mehta finally stated that the threshold for the petitioners is particularly high. He said that they are arguing against a law whose objective is unity and equality. They must show irrefutably that the hijab is essential to Islam.
Petitioners previously argued that argued that a conflict between SC Judgments in Shirur Mutt and Dargah Committee case was currently pending before the 9-Judge Sabarimala Bench. The question in conflict: Does Article 25 protect all religious practice or only the ones deemed essential?
Attorney General for Karnataka, Mr. Navadgi, argued that there was no conflict. He stated that right from Shirur Mutt, the first judgment interpreting Art 25, the Court held that only essential practices are protected. AG Navadgi explained the possible confusion regarding Shirur Mutt. In Shirur Mutt, the Union government argued it could decide what parts of religion are not essential & regulate them. SC clarified that essentially must be decided based on the tenets of the religion by Court, not the government.
Acc to Mr. Navadgi, in Shirur Mutt, SC did not say that the government cannot make laws on non essential parts of a religion at all. He argued that religion covers a very wide set of principles and facets of life. Providing absolute protection to all facets would make governance impossible.
Mr. Navadgi will continue and conclude the Karnataka government’s arguments tomorrow (September 21st). Brief rejoinders from the petitioners will follow. Hearings in the case are likely to end tomorrow as well.