इंडियन आवाज़     27 Jan 2023 07:58:46      انڈین آواز

Row over Hijab: Supreme Court delivers split verdict, matter to be placed before CJI


The Supreme Court today delivered a split verdict in the Karnataka hijab ban case with one of the judges upholding the March 15 high court order validating the ban and the other setting aside the HC ruling and calling wearing of the apparel a “matter of…choice”.

With the two judge-bench divided in its view, the matter was directed to be placed before the Chief Justice of India U U Lalit for appropriate directions.

The Supreme Court has delivered a split verdict in the Karnataka Hijab ban case. In view of this, the order of the Karnataka High court allowing the ban on wearing a headscarf in educational institutions in the State will remain applicable in the interim time.

A bench comprising Justices Hemant Gupta and Sudhanshu Dhulia pronounced the verdict on a batch of appeals filed against the judgment of the Karnataka High Court which held that hijab was not an essential practice of Islam.

Delivering the verdict today, Justice Hemant Gupta dismissed the petitions and upheld the hijab ban verdict of the Karnataka High Court. On the other hand, Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka High Court order. Justice Dhulia termed wearing hijab a matter of choice.

The two-judge bench said that in light of the divergence of opinion, the matter has to be placed before the Chief Justice of India for appropriate directions.

Justice Gupta who read his opinion first said at the very outset that “there is a divergence of opinion”. He added he had framed 11 questions including whether the appeal should be heard along with the Sabarimala matter which is pending before a nine-judge Constitution bench.

The questions included whether college management can decide on the uniform of students and whether restrictions on wearing of hijab violates Article 25 of the Constitution, what is the ambit and scope of freedom of conscience and religion under Article 25, what is the ambit and scope of essential religious practises under Article 25 of the Constitution, he said.

Justice Gupta also said they included whether fundamental rights of expression under Article 19(1)(a) and the right of privacy under Article 21 are mutually exclusive or complementary to each other, whether the government order meets the test of reasonableness under Articles 19 and 14, and whether the government order impinges upon the constitutional promise of dignity and fraternity.

Whether hijab is considered to be essential religious practice, can a student seek to wear it to school as a matter of right and whether the state government order is contrary to the legitimate state interest of promoting literacy and education as mandated under the Constitution, he added.

“The answer according to me in all these questions is against the appellants,” said Justice Gupta adding he was therefore dismissing the appeals.

Justice Dhulia reading out his opinion said he has a ‘different view’ and set aside the Karnataka High Court judgement and quashed the Government order of February 5, 2022, by which college management committees were empowered to take a decision on the issue.

He said the main thrust of his judgement is that the concept of essential religious practice was not essential for the disposal of the dispute. “The court probably took the wrong path. It was simply a question of Article 19(1)(a), its applicability and Article 25(1), primarily. And it’s ultimately a matter of her choice, nothing more nothing less,” he said.

Justice Dhulia added he had also held that the ratio laid down in the Bijoe Emmanuel case squarely covers the issue. “The thing which was uppermost on my mind while deciding this case was about the education of a girl child,” he said. “It is common knowledge that already a girl child primarily in rural and semi-urban areas, there are already a lot of difficulties faced… So, are we making her life any better? That was also on my mind.”

In the Bijoe Emmanuel case, the Supreme Court in August 1986 allowed the claim of some students following the Jehovah’s Witness faith to remain silent during the singing of the national anthem in their school in Kerala. The students used to stand up during the recital of the anthem but refused to sing it saying it was against the tenets of their religious faith.

Stating that wearing the hijab is not an essential religious practice in Islam and freedom of religion under Article 25 of the Constitution is subject to reasonable restrictions, a full bench of the Karnataka High Court had on March 15 dismissed a batch of petitions filed by Muslim girls studying in pre-university colleges in Udupi seeking the right to wear hijabs in classrooms.

The court had also upheld an order issued on February 5 by the Karnataka Government, which suggested that wearing hijabs can be restricted in government colleges where uniforms are prescribed, and ruled that such curbs under norms for college uniforms are “constitutionally permissible”.

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