Minor victory for girls in hijab ban case as split verdict ensures hearing by larger SC bench

The Supreme Court has delivered a split verdict in the Hijab ban case in Karnataka as many expected, and the matter will be heard by a larger bench. Several lawyers have called it a victory for the girls who have stopped going to school in the state as they were prevented from wearing the Hijab in the classroom. 

Of the two judges on the bench, Justice Hemant Gupta upheld the Karnataka government decision while Justice Sudhanshu Dhulia struck it down. As there is a divergence of opinion, the bench stated that the matter would now be placed before the Chief Justice of India for appropriate directions. 

 “There is divergence of opinion. I have held against the appellant. I dismiss the appeal," said Gupta. He had framed his judgement in 11 questions, while holding that wearing hijab does not fall under essential religious practice (ERP) in Islam and that the state government order allows access to education. 

However, Dhulia quashed the Karnataka government order of February 5 and ordered the removal of the restrictions. He held that venturing into ERP was not required and the High Court had erred by doing so. 

For Dhulia, it was a question of the education of a girl child. “A girl child has to do household chores before going to school and are we making her life any better by banning the hijab?" asked Dhulia. He underscored that the main thrust of his judgment is that the entire concept of essential religious practice was not essential to the dispute.  

“The High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19,” reiterated Dhulia.  He also upheld that the question in the Hijab case was “squarely answered” in the Bijoy Emmanuel judgment.   

Article 19 of the Indian Constitution states that there is freedom of speech and expression, while Article 14 points out that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Hailing the judgement, senior Supreme Court advocate Sanjay Hegde said it was the first time that the justice system has at least acknowledged that the girls have a case and a point. “To that extent there is a partial vindication of the girl’s side. As it is a split verdict, we hope to convince a larger bench on the justness and the rightness of the cause. It is time to look beyond the hijab dispute. It is ultimately a question of human choice,” underscored Hegde.

He asserted that it was a dispute about forced uniformity. No mullah in Iran can insist that a woman wear a hijab and equally no authority in India ask a woman to not wear a hijab.

Hegde, quoting civil rights activist Martin Luther King Jr, said the arc of the moral universe is long, but it bends towards justice. “The six girls from Udupi will have helped build that arc for themselves and  their sisters who will come after them.”

“This is a victory," said Anas Tanwir, Indian Civil Liberties Union (ICLU) founder and Supreme Court lawyer. Justice Gupta dismissed the petition, while Justice Dhulia allowed them. In doing so, Justice Dhulia has put the choice as well as avenues for a girl student on the top of the consideration,” maintained Tanwir. He hoped that the CJI would create an appropriate bench to hear the matter as soon as possible.  

As it was a split verdict, he noted that Justice Dhulia’s stay of the Karnataka High Court order will not be operational.  

Supreme Court lawyer Nabeela Jamil, who worked on this case, said they were happy that there is a split judgement and there is a chance of the case going to a larger bench. “The judgement by Justice Dhulia is extremely empathetic. He underscored that the Karnataka High Court had no reason to go into ERP and the question of women education was much more important. It sounds like a perfect judgement,” added Jamil.  

“The verdict gives us some hope and the reasoning that Justice Dhulia gave that it is more of an Article 19(1) matter. The appellant side is grateful to Dhulia for this reasoning,” said Rashmi Singh, who is a Supreme Court advocate. She underscored that it shouldn’t have been split verdict as it is a debate on hampering a much more crucial aspect of a person’s life.  

“Women are the ultimate decision makers of what they should or shouldn’t wear and it is nobody’s business to tell them otherwise,” added Singh.   

Background of the case 

The Supreme Court was hearing a challenge to the Karnataka High Court verdict on March 15, which had upheld the state government order empowering college development committees of government colleges in Karnataka to ban the wearing of the hijab (headscarf) in college campuses. 

A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi had stated that requirement of a uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a) and that hijab was not part of ERP in Islam.  

Several Muslim girl students from various colleges in Karnataka had approached the High Court after they were denied permission to attend classes as result of this government order. After the High Court verdict, they approached the apex where they contended that only if an attire disrupted public order, it could be restricted by the state. They also pointed out that the state was not allowing a student to exercise her right under Articles 19 and 21. 

Article 21 states that no person shall be deprived of his life or personal liberty except according to procedure established by law.  

What is the Bijoy Emmanuel case? 

In July 1985, three school children in Kerala were expelled from their school for refusing to sing the national anthem. They stood silently during the morning assembly of the school and stated that singing the anthem was allegedly against their faith as they were members of Jehovah’s Witness church. 

After the Kerala High Court dismissed the case holding that “no words or thoughts” in the national anthem offended religious conventions, the father of the children approached the Supreme Court. The apex court found that the expulsion of school children for not singing the national anthem was a violation of their right to freedom of expression. 

The Court reasoned that a limitation on the right to freedom of expression must be based on a law with statutory force and the State of Kerala’s Department of Education lacked statutory force to require school children to participate.