Doctrine of constitutional morality favours girls’ choice to wear hijab, counsel tells Karnataka HC

THE petitioners’ senior counsel, Devadatt Kamat, on Thursday, explained to the Karnataka High Court that while the State had cited constitutional morality as a benchmark that the practice of hijab-wearing had to meet to be valid, the same did not support the State’s stand. He submitted that constitutional morality was not a restriction on fundamental rights, but rather a restriction on States’ powers. He told the bench comprising Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit, and Justice J.M. Khazi that the Supreme Court judgements cited by the State, that is, the Sabarimala and Navtej Singh Johar cases, were about the right to choose and that the doctrine of constitutional morality was pro-choice. He submitted that these judgements supported the case of the petitioners and not the State.

Responding to the argument that if Muslim women were allowed to wear a hijab, then some Brahmin boy would turn up in religious attire, Kamat submitted that in constitutional jurisdiction, issues are not to be decided on hypothesis but on facts.

Kamat argued that the state’s stand on its own order, which is a subject matter of challenge, had made his task much easier as the state had given up on 90 per cent of the order. He reminded the court that the state has submitted that some parts of the order were due to overenthusiasm, and that the state never explained how the judgements cited in the order were applicable. He further submitted that the order violated the Doctrine of Acting Under Dictation (acting under the dictation of a superior authority instead of acting independently) as it gave liberty to the subordinate authority to decide while itself declaring the crux of the matter.

Kamat contended that the order was violative of Article 14 of the Constitution since there had to be some material on the basis of which the Government could have passed such an order. He cited the decision of the Supreme Court in the M. Nagaraj case of 2006 to this effect. He explained that while the order had relied on certain judgements to come to a conclusion, the state had informed the court that the judgements were not relevant to the order. He submitted that this indicated that the decision was arbitrary and thus, violative of Article 14.

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He further submitted that the state had taken the public order ground in its order, only to then argue that it did not mean to use the term ‘public order’ in its constitutional sense. He submitted that the state had then filed an affidavit reiterating the public order ground. Kamat pointed out that the state had been self-contradictory on the issue.

Kamat submitted that while the state had argued that the College Development Committee [CDC] could validly exercise powers under the Karnataka Education Act, the Act only permitted delegation of powers to government officials and that the Supreme Court had held that Members of Legislative Assembly [MLAs] are not Government Officials. Accordingly, he argued that the CDC – comprising MLAs – had no authority to pass any orders.

Kamat suggested that once the impugned order is struck down, there would be nothing to stop his clients from wearing hijab to school. However, the Chief Justice pointed out that the school had a prescribed uniform and that Kamat needed to establish that he had a right to wear a hijab, which would override the school’s uniform requirement.

Kamat submitted that the court would have to examine if the Education Act and rules were for social reform as far as Islam was concerned. He submitted that the Essential Religious Practice [ERP] test is applicable on State action under Article 25(2) of the Constitution, not on individual freedom under Article 25(1).

According to Kamat, Article 25(1) is not a restrictive paradigm, and the canopy and width of rights are not capable of being put in a straightjacket formula. He claimed that if there is a violation, there should be first a restriction. A restriction, he suggested, should have a direct object sought to be achieved. If the object is to say that hijab is a regressive practice, it has to be evident from the plain reading of the Act and the Rules made thereunder, he told the bench.

Kamat pointed to the bench that the interpretation that the state was trying to argue had been expressly rejected by the Constituent Assembly of India, and that the court could not sit over in judgement on the decisions taken by the Constituent Assembly.

The state had argued that rights under Articles 19(1)(a) and 25 were mutually exclusive. This line of interpretation had been long discarded by the Supreme Court and that it is now clear that fundamental rights can be read together, Kamat told the bench.

Kamat added that the judgement of the Turkish constitutional court cited by senior advocate Sajan Poovayya, on behalf of the respondents, to show that even Muslim countries had upheld hijab bans, had been subsequently overturned.

When Kamat tried to clarify his sources with regard to the Quranic verses he had relied upon to argue hijab being an ERP, the Chief Justice asked him to clarify if he was supporting the ERP argument or was calling it unnecessary. Kamat replied that there is no doubt that wearing of a hijab is ERP in Islam, but also that there is no valid restriction on the same.

Kamat reminded the bench that none of the counsels had disputed the two judgments of Kerala High Court, which held that hijab is essential, or of the Madras High Court which held that while burqa is not essential, the headscarf is an essential practice.

Senior advocate Guru Krishnakumar, appearing for one of the respondents, submitted that the government’s order under challenge, had to be considered from the perspective of the object sought to be achieved, which in this case was uniformity. He submitted that the government order could not be read in light of Article 25 of the Constitution. He added that the court did not have ecclesiastical jurisdiction to decide questions relating to religious practices and the said issues had to be decided within the framework of the Indian Constitution.

Senior advocate A.M. Dar, appearing for one of the petitioners, argued that the wearing of hijab is essential to the dignity of Muslim women. He read various passages from the Holy Quran to support his arguments. Dar submitted that hijab is meant to cover a woman’s hair, neck, and chest, to avoid the male gaze.

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