BW Legal World Judgement Watch: Decoding Karnataka High Court's Hijab Ban Judgement With Senior Advocate Vivek Sood

In this segment of BW Legal World's judgement analysis series, Senior Advocate Vivek Sood decodes the much talked about Karnataka High Court's verdict upholding the hijab ban and calls it a constitutional gem.

What is your overall view of the Karnataka High Court's hijab ban judgement? 

In my view, the Karnataka High Court judgement upholding the hijab ban is a constitutional gem. It is complete in all respects. It follows in letter and spirit the fundamentals led down in the constitution of India. The judgement leaves no scope for ideology. It is a very progressive judgment. If I can summarise the quality of the Judgement in a few words, it upholds the principle of uniformity in education in India. The Judgement makes it clear that religious attire has no place in the education sector.

But what one wears and how one dresses, does it fall under privacy jurisprudence? Should a court of law decide on such issues of personal choice relating to attire?

Definitely. If the issue concerns constitutional law, then the court has the jurisdiction to decide. Now the hijab controversy raised numerous constitutional issues and questions. So that is where the jurisdiction of the high court came into existence. The High Court has delved into the constitutional principles and has decided the issue in my view, the Karnataka I court has not travelled beyond its jurisdiction in delivering this judgment.

Alright moving to the heart of the matter, could you please briefly explain in layman’s terms what constitutes an essential religious practice? And how would you analyse the court’s verdict that the hijab is not essential to Islam?

This question has been addressed extensively by the Karnataka High Court and the court has not only gone into the holy Quran but considered the opinions of leading Muslim philosophers who have written on the subject. Keeping in view the entire literature on Hijab, the Karnataka High Court has arrived at the conclusion that wearing the Hijab does not form part of the essential religious practice for Muslim women. Wearing a hijab came into existence out of necessity. There were times when the protection of women needed this veil or needed the headgear of Hijab. 

The High Court has actually referred to literature which speaks of freedom of choice for Muslim women. And all that the Quran says is that there must be modesty and decency in dressing up. But wearing a hijab has not been found to be an essential religious practice in any way.

What constitutes essential religious practice?

Essential religious practices are those practices which form the fundamentals of religion. In other words, these are the core religious practices of any particular religion. 

What is the test to determine whether a particular essential religious practice is essential to a particular religion?

The test to determine whether a particular religious practise can classify as ERP or not boils down to the fact that if without the religious practice, the religion will cease to be a religion or if without the religious practice, the fundamental nature of the religion is altered in any manner. When the constitution was being drafted, the great B.R. Ambedkar had clarified that religious practices are multiple but every religious practice cant fall within the domain of essential religious practice.

Does ERP suffer from any limitations?

Yes, so Article 25 of the constitution lays down the limitations and the two limitations in the constitution are relevant in the context of the Hijab controversy. The first limitation is that the state can regulate religious practices for social welfare and reform. Also, the state can regulate religious practices for secular activities. And the high court has clarified that religious practice must meet the test of constitutional values and constitutional morality. Constitutional morality means dignity and egalitarianism in society. Essential religious practices must be in accord with constitutional values and this has been picked up by the Karnataka High Court from the famous Saira Banu Judgement which declared triple talaq unconstitutional.

I am reminded of the explanation to article 25 which deems Kirpans to be a part of Sikh religious practice, how is the hijab different in this context?

The wearing of Kirpan can be regulated. The explanation states that wearing of Kirpan is a part of Sikh religion but It stops at that point. The explanation is not an exception to clause 2 of Article 25 which grants power to the government to regulate religious practices. The wearing of Kirpan can be regulated for secular activities and social reform. It does not say that students can carry Kirpan to schools and colleges. The explanation cannot be taken beyond its contours. The Hijab issue cannot seek reliance on this explanation and there is no such explanation in favour of the hijab. The explanation was carved specifically that there may be a conception that Kirpan is a kind of an arm. 

How do you see the Hijab judgement faring in terms of the Right to Privacy argument?

Right to Privacy has been recognised by the Supreme Court in the Puttuswami case. Now, Right to privacy is not an absolute one. There are exceptions. And those exceptions have been categorized as legitimate societal interests. In the case of a pre-university institution, a legitimate state interest can be regulated and demands discipline and uniformity. It is in this context, that every student must wear the prescribed uniform. 

How does wearing a hijab in educational institutions disturb public order?

The school or a college must have you uniformity. There has to be homogeneity amongst the students. If every student is given the permission or choice to wear anything he or she wants to, it will disturb the discipline of that educational institution. And the disturbance of that discipline is disturbance o public order It was in that context the concept of public order has been used. and not in realm of the constitution. Public order has has to be defined appropriately in the context of the issue and in the context of the situation, which has been done intelligently by the Karnataka High Court. 

What are your views on the sanctity of the govt order from an administrative law standpoint?

Around 10 pages have been devoted in the Judgement as to the administrative competence in the passing of the order and the High Court has traced to the laws on education and the rules that have been promulgated under the Education Act. It has been found that power specifically exits in the rules. 

How do you see the case playing out at the Supreme Court

Although, as lawyers, we are not trained to predict outcomes but I must not fail to answer your question. In my view, the Judgenent of the Karnataka High Court is likely to be upheld since it is a very meritorious judgement. 

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