New Delhi: A two-judge bench of the Supreme Court today (October 13) delivered a split verdict on the batch of pleas challenging the February 5 Karnataka government order (GO) empowering the state to prevent students from wearing “religious clothes” during the controversy over wearing hijab that rocked the state earlier this year.
The two-judge bench, consisting of Justices Hemant Gupta and Sudhanshu Dhulia, which had reserved its judgment in the matter on September 22, announced that there was a “divergence in opinion” between the two judges, according to a report in legal news portal Bar and Bench.
Justice Gupta upheld the Karnataka high court’s March 15 order upholding the state GO and therefore, proposed dismissing the appeals against it.
Meanwhile, Justice Dhulia proposed that the high court’s order be set aside and the appeals against the GO be allowed, noting that, “Ultimately, it’s a matter of choice.”
“But the thing that was most important in my mind while deciding this case was the education of a girl child. It’s common knowledge that already a girl child, primarily in rural areas and semi-urban areas, has to face a lot of difficulties. She has to help her mother in daily chores, in cleaning and washing, before she goes to school. There are other difficulties as well. What I asked is are we making her life any better?” LiveLaw quoted Justice Dhulia as saying.
Since no consensus could be reached by the pair of judges, the matter will be referred to the Chief Justice of India (CJI) for appropriate directions.
Background of the case
In January this year, six young women students of the Government Women’s PU college in Udupi, Karnataka were not allowed to enter their classroom because they came dressed in hijabs. Further, they were marked ‘absent’ from classes from the first day on which they were barred from entering due to the headscarves – December 31, 2021.
As the students pressed their demand to be allowed to attend classes in hijabs, the issue grew in magnitude; Muslim women students took to the streets in protest; right-wing students, in response, were seen demonstrating in saffron shawls and chanting slogans of ‘Jai Shri Ram‘, and the controversy soon spread to other institutions in the state.
Amid the unrest, the Karnataka government passed its order, which only led to more objections, and the state government was forced to declare holidays for schools and colleges. At the time, the petitioners (the six students who were originally not allowed to attend classes) moved the high court questioning the validity of the government order.
On March 15, the high court delivered its verdict in the matter. The court upheld the ban on wearing hijab in educational institutions, ruling that the headscarf does not constitute ‘essential religious practice’ in Islam. As such, it held that the ban was a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a).
It further held that the government was within its power to pass the February 5 GO and said that no case was made out for questioning its validity.
“In the above circumstances, all these writ petitions being devoid of merits are liable to be and accordingly are dismissed. In view of the dismissal of the writ petition, all the pending applications fell into insignificance and are accordingly disposed of,” the bench had said.
According to the Bar and Bench report, Justice Gupta said he raised a number of questions in the matter – Whether college management can take a call on uniform of students and if wearing of hijab and restricting it is violative of Article 25; whether rights under Article 19 (freedom of speech and expression and others) and Article 25 (free profession, practice and propagation of religion) are mutually exclusive; whether the government order infringes upon the fundamental right; whether college management can take a call on uniform of students and if wearing of hijab and restricting it is violative of Article 25; whether government order infringes upon the fundamental right; and so on.
Justice Gupta said that according to him, the answers to these questions were against the appellant and thus proposed dismissing the appeals.
On the other hand, Justice Dhulia noted that the matter of essential religious practice should not have been considered by the high court in the case at all and that the matter only dealt with Articles 19 and 25 of the Constitution.
“Venturing into essential religious practice was not needed and the court took the wrong way. It was just a question of choice,” Bar and Bench quoted Justice Dhulia as saying.
Justice Dhula, during an earlier hearing of the case, had also orally remarked that the question of essential religious practice should not have been made part of the matter.
Justice Dhulia also held that the ratio in Bijoe Emmanuel & Others versus State Of Kerala, August 11, 1986, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld, “squarely covers this case”.
As such, Justice Gupta said, “In view of divergent opinion, let the matter be placed before the Chief Justice of India for appropriate directions.”
This article was first published on The Wire.
Featured image: A hijab-wearing student walks past a worker painting a wall to conceal a pro-hijab slogan written on the wall, outside a college, in Hospet, March 16, 2022. Photo: PTI