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SC delivers split verdict in hijab case, refers matter to CJI for consideration to larger bench

The judgement came on a batch of petitions challenging Karnataka HC verdict dismissing pleas filed by Muslim girls in pre-university colleges, seeking right to wear hijab in classrooms.

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New Delhi: The two-judge bench of the Supreme Court Thursday delivered a split verdict on the constitutional validity of a Karnataka government order related to the right to wear hijab in classrooms.

The judgement came on a batch of petitions challenging Karnataka High Court’s 15 March verdict that dismissed a bunch of pleas filed by Muslim girls who challenged the 5 February state government order, which virtually banned them from wearing hijab in pre-university colleges. The girls asserted it was their right to wear hijab inside classrooms.

The judgement in the case was reserved on 22 September, after a marathon hearing of 10 days. One of the judges on the bench, Justice Hemant Gupta — who retires on 16 October — dismissed all the petitions, while Justice Sudhanshu Dhulia allowed them.

Justice Gupta framed 11 questions and said he has rejected the petitions on all grounds. However, Justice Dhulia differed, saying he has set aside the Karnataka High Court order and remarked that the question whether hijab is an essential religious practice was not a crucial one to decide the issue.

“In view of the divergent opinions expressed by the bench, matter is placed before the CJI for consideration to refer it to a larger bench,” the judges said.

This means the matter would now be heard by a larger, in all probabilities a three-judge one.

The two viewpoints

Justice Gupta first read out his version of the judgement in which he has framed 11 questions. The first question was whether the appeal should be heard by a Constitution Bench, hearing important questions of law, including on the ambit and scope of religious freedom practiced by multiple faiths across the country.

The second question pertained to state government’s power to delegate its decision to implement the wearing of uniform to the College Development Committee and whether the 5 February state notification actually empowered the college committees to impose curbs such as the hijab ban.

In his opinion, he also dealt with the ambit and scope of the right of freedom of conscience and religion under Article 25 and essential religious practice. He also went on to determine whether freedom of expression and right of privacy mutually exclusive or are complimentary to each other and if the Karnataka government order was a reasonable restriction on these two rights.

His view also dealt with other aspects of the issue. They were whether the state order on uniform restrictions impinges upon the constitutional promise of fraternity and dignity given under the Preamble, whether wearing of hijab is an essential religious practise, whether a student can seek the right to wear headscarf to a secular school a matter of right, whether the constitution scheme allows prohibition on a student citizen in terms of his/her rights under Articles 19 (freedom of speech and expression), 21 (right to live with dignity, which includes privacy) and 25 (religious rights) as a precondition of receiving education in education institutions.

On all these counts, the judge said he had answered against the petitioners in the case.

Though Justice Dhulia did not read out his part of the verdict, he verbally gave out points on which he decided the petitions.

“I have a different view and have allowed all the appeals. I have also quashed the government order of 5 February,” he told the counsel present in the court. Justice Dhulia also issued directions to the removal of restrictions imposed.

“The main thrust of my judgement is that the entire concept of essential religious practise, in my opinion, was not essential for the disposal of the dispute. The court probably took a wrong path there,” he added.

As per him, the HC should have looked into the question of the applicability of two Articles – 19(1)(a) and 25(1). “It’s ultimately a matter of choice, nothing more and nothing less,” the judge said.

According to Justice Dhulia, the controversy at hand is squarely covered by the ratio laid down in the Bijoe Emmanuel case wherein the top court had declared that no law obliged anyone to sing the national anthem. In this case three children who followed the faith of Jehovah’s Witness were expelled from school for not singing the national anthem. SC upheld their contention that they could not be forced to sing the national anthem if it was their “honest belief and conviction that their religion did not permit them to join any rituals, except it be in their prayers to Jehovah their God.”

But the upper most thing in Justice Dhulia’s 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, have lots of difficulties to face. She helps her mother in cleaning chores, before she goes to school. There are other difficulties as well and are we making her life any better (by such curbs,) that was also in my mind,” he added while “respectfully differing.”

History of the case

On 15 March, the high court (HC) held that hijab is not an essential religious practice in Islam and that freedom to profess or practice religion – which is a fundamental right under Article 25 of the Constitution – is subject to reasonable restriction. The affected students had approached the HC after holding protests against the state order.

With its ruling, the HC also upheld the state government order that imposes restrictions in government colleges where uniforms are prescribed. According to the bench, prescribing norms for college uniforms is allowed under the Constitution.

Though the argument around essential religious practice (ERP) dominated the proceedings in the HC, the petitioners in the SC advanced alternative contentions as well. Before the apex court, they focused more on their rights under Article 19 (1)(a) of the Constitution, which relates to freedom of speech and expression.

Further, they argued the right to wear hijab is protected by “right to conscience” under Article 25. This, they stated, was an individual right and, therefore, it was not incorrect on the HC’s part to apply the ERP test.

The Muslim body, All India Muslim Personal Law Board, also appealed against the HC verdict and assailed the verdict for incorrectly interpreting scriptures in the holy Quran. According to it, there is consensus amongst religious scholars on the practice of hijab wearing. It also added that it is a mandatory practice and will be considered a sin if not followed and the one who does not follow, becomes a sinner.

Comparisons were also drawn with Sikh practices where it is compulsory for men to wear turbans. It was further argued that the ban denies them their right to education because students who continued to wear hijab were disallowed from taking their papers.

However, the state justified the ban, stating it was religiously neutral and necessary at the time. Its order, the state explained, was religion-neutral and did not distinguish one student from another. The entire controversy was instigated by the Popular Front of India (PFI) via social media, the court was informed.

Also read: Discriminatory to not essential religious practice — what appellants, state told SC in hijab case


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