Hijab ban: To what extent Constituent Assembly Debates can be a guide, asks Supreme Court

Scholars of the Constitution generally consider Constituent Assembly Debates as a valid source for determining the views of the Constitution makers while interpreting provisions of the Constitution. Therefore, when the Supreme Court’s division bench today asked the counsel to explain to what extent the debates can be referred to, while interpreting the Constitution, it made many wonder whether the bench doubted the relevance of originalism as a doctrine, to test the validity of ban on hijab.


THE question of relevance of the Constituent Assembly Debates while examining the validity of the ban on hijab arose before the Supreme Court today when senior advocate, Dushyant Dave referred to Explanation I of Article 25 of the Constitution, which allows Sikhs to wear and carry the kirpan (dagger) in the profession of their religion. He told the court that the right to bear arms was debated in the Constituent Assembly, but this was declared a fundamental right.

Dave told the court that the word ‘profess’ was also debated under Article 25 (draft Article 19) before the Constituent Assembly. It was asked to remove this, but the Assembly refused to do so. The bench pointed out that this might be because certain communities’ religious beliefs are inclusive of the right to preach: for instance, Christianity.

Dave said that the argument on essentiality, which was established by the Supreme Court in its judgment in Commissioner, Hindu Religious Endowments, Madras versus Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), which was heavily relied on by the Karnataka High Court in its judgment upholding the hijab ban, is irrelevant here to determine the practice of wearing hijab. It must be seen as a religious practice from the standard of that community, he told the court, referring to Ratilal P. Gandhi’s case from 1954.

If a Muslim woman thinks wearing of hijab is conducive to her religion, no court or authority can say otherwise, he told the bench.

It is at this juncture that the bench asked Dave to explain to what extent the Constituent Assembly debates can be referred to. Dave responded by saying that the intentions and fears of the drafters are relevant. The bench has asked Dave to refer to the cases that can be relied upon to buttress this argument.

The Supreme Court division bench comprising Justices Hemant Gupta and Sudhanshu Dhulia continued to hear on Monday a batch of petitions challenging the ban on wearing hijab in educational institutions in Karnataka based on the Karnataka Government Order on Dress Code for Students (‘GO’) and the Karnataka Education Act, 1983, which was upheld by the Karnataka High Court on March 15.

Dave said that it is nobody’s case that the students were not wearing the uniform. The case is that in addition to the uniform, they were wearing the hijab, he told the court.

Dave then referred to the series of omissions and commissions on the part of several state governments, which show a pattern to marginalise a minority community. Part of this pattern is the GO, he said. There is a principle that talks about malice in law, he explained. The GO is passed ostensibly stating one has to wear a particular uniform; the whole idea is to tell the minority community that they cannot profess their religion, he averred.

At this juncture, the bench asked Dave to respond to the Karnataka high court’s judgment, which held that when the students enter the classroom, they don’t have the same fundamental rights enjoyed by them outside.

Dave told the court that there is no such limitation. “My fundamental rights can be enjoyed by me anywhere; in my bedroom, office, or before Your Lordship.”

The Constitution has always been interpreted liberally, especially Part III, the scope of which has been expanded so much; everything that falls under the sky has now become a part of Article 21, he told the court.

The hearing will continue tomorrow.