Polity Notes


Supreme court passes split verdict In Hijab case

The supreme court today passed a split verdict on a batch of appeals challenging restriction on Muslim Girl students wearing Hijab in education institutional in Karnataka.

Justice Sudhanshu Dhulia sets aside Karnataka HC judgement but Justice Hemant Gupta dismissed the 26 appeals filed against the judgment of the Karnataka High Court which held that hijab was not an essential practice of Islam and allowed the ban on wearing headscarf in educational institutions in the State. Permitting one Religious Community to wear their symbols would be Antithesis To secularism:

Justice Gupta had framed 11 issues and answered all the questions against the appeals.

Expressing the divergence in his opinion , Justice Sudhanshu Dhulia set aside the Karnataka High court judgement and held 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 nothing more and nothing less.

Justice Dulia said that the foremost question on his mind was the education of the girl child. Are we making her life any better? That was a question in my mind. I have quashed the Karnataka Government order of February 5 2022 and have ordered the removal of the restrictions. It is common knowledge that a girl child primarily in rural and semi – rural areas has a lot of difficulties, they have to do daily chores before she goes to school. There are other difficulties as well.

In light of the divergence of opinion, the matter has to be placed before the Chief Justice of India for appropriate directions. Now a larger Constitution bench of Supreme Court will decide the case.

The bench had reserved the judgment on September 22 after hearing arguments for ten days. Senior Advocates Dr.Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Huzefa Ahmadi, Sanjay Hegde, Salman Khurshid, Devadatt Kamat, Yusuf Mucchala, AM Dhar, Adithya Sondhi, Jayna Kothari, Colin Gonsalves, Advocates Prashant Bhushan, Nizam Pasha etc, made arguments for the petitioners. Solicitor General of India Tushar Mehta and Advocate General of Karnataka Prabhuling Navadgi appeared for the State defending the High Court verdict. Senior Advocates R Venkataramani, Dama Seshadri Naidu, V Mohana made arguments for College Development Committees/Teachers in support of the hijab ban.

Issues during the hearing

Whether the matter has to be referred to larger bench in view of the pendency of the Sabarimala reference?

Whether hijab is an essential religious practice in Islam?

Whether it is necessary to establish that hijab is an essential religious practice to seek the protection of Article 25?

Whether the right to wear hijab can be claimed as part of freedom of expression under Article 19(1)(a) and part of right to privacy and dignity under Article 21?

Whether the February 5 2022 Karnataka Government Order can be justified on the grounds of reasonable restrictions under Article 19(2)?

Whether the wearing of hijab can be prohibited on the ground that certain other groups started protesting by wearing saffron shawls? Whether such a restriction amount to succumbing to hecklers veto?

Whether there is any legitimate state interest in imposing a restriction which will lead to the deprivation of education for Muslim girls, who are already facing social backwardness?