Hijab Ban: How Two SC Judges Differed In Final Verdict & What It Means

(Source: PTI)

Two judges on a Supreme Court bench on Thursday delivered opposing verdicts in the hijab controversy, and asked the Chief Justice to constitute an appropriate bench to adjudicate in the case that stemmed from a ban on wearing the Islamic head covering in Karnataka schools.

While Justice Hemant Gupta dismissed the appeals challenging the March 15 judgement of the Karnataka High Court which had refused to lift the ban, Justice Sudhanshu Dhulia held there shall be no restriction on the wearing of hijab anywhere in the schools and colleges of the state.

Justice Gupta said permitting a community to wear its religious symbols to schools will be an “antithesis to secularism”, but Justice Dhulia insisted wearing the Muslim headscarf should simply be a “matter of choice”.

With the apex court delivering a split verdict, the high court’s judgement still holds the field. However, the split verdict held off a permanent resolution of the vexed row over hijab as both judges suggested placing the matter before a larger bench for adjudication.

Writing a separate 73-page judgement, Justice Dhulia said, “By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education.”

Justice Gupta, who was heading the bench and wrote a contrary verdict running into 133-pages, answered the 11 questions framed by him for consideration in the matter and said the constitutional goal of fraternity will be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.

While pronouncing the judgement on a batch of 26 petitions, Justice Gupta said at the outset, “There is divergence of opinion.”

“In view of the divergent views expressed by the bench, the matter be placed before the Chief Justice of India for constitution of an appropriate bench,” the court said.

In his verdict, Justice Gupta said the arguments advanced by the counsel for some of the appellants that this matter involves a substantial question of law and should be referred to a five-judge bench is “not tenable”.

Both the judges referred to the state government’s February 5, 2022 order which banned wearing clothes that disturb equality, integrity, and public order in schools and colleges.

Justice Gupta noted the government order “promotes an equal environment”.

“Accordingly, I do not find that the government order impinges on the constitutional promise of fraternity and dignity. Instead, it promotes an equal environment where such fraternal values can be imbibed and nurtured without any hindrance of any kind,” he said.

On the other hand, Justice Dhulia set aside the high court verdict and also quashed the February 5, 2022 government order.

“Under our constitutional scheme, wearing a hijab should be simply a matter of choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression,” he said.

Justice Dhulia further said the “unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child.”

He referred to the four questions formulated by the high court, including whether wearing hijab or headscarf is a part of essential religious practice in Islamic faith protected under Article 25 of the Constitution.

“In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP,” Justice Dhulia said.

“It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a right should not go against ‘public order, morality and health,’ and of course, it is subject to other provisions of Part III of the Constitution,” he said.

Justice Dhulia said in his opinion, courts are not the forums to solve “theological questions”.

“Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other,” he said.

Justice Dhulia said the courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed.

He said another question which the school administration and the state must answer in this case is as to what is more important to them: “education of a girl child or enforcement of a dress code”.

In his verdict, Justice Gupta noted that some of the appellants had also made a comparison with the rights of the followers of the Sikh faith by arguing that since ‘Kirpan’ is allowed in terms of Explanation I to Article 25, therefore, the students who want to wear headscarf should be equally protected as in the case of the followers of the Sikh religion.

He said the issue in these appeals is not the essential religious practices of the people following Sikh faith.

“The essential religious practices of the followers of Sikh faith cannot be made basis of wearing of hijab/headscarf by the believers of Islamic faith,” Justice Gupta said.

“As discussed above, secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism,” he said.

On March 15, the high court had dismissed the petitions filed by a section of Muslim students of the Government Pre-University Girls College in Karnataka’s Udupi seeking permission to wear the hijab inside classrooms, ruling it is not a part of the essential religious practice in Islamic faith.