The Supreme Court on Thursday delivered a split verdict on a batch of petitions challenging the Karnataka High Court order to uphold the Bharatiya Janata Party ruled-state government’s ban on wearing hijab in educational institutions, Live Law reported.
Justice Sudhanshu Dhulia set aside the High Court ruling and quashed the state government’s order in his judgement. Meanwhile, Justice Hemant Gupta dismissed the appeals, Bar and Bench reported. Gupta said that since him and Dhulia have divergent opinions on the matter, it would now be placed before the chief justice for his directions on the future course of action.
On March 15, the Karnataka High Court had held that the hijab was not an essential part of Islam and thus could not be protected under the fundamental right to religion.
Last month, the division bench of Gupta and Dhulia had reserved its judgement on the pleas challenging the Karnataka High Court judgement after hearing the arguments presented by lawyers for petitioner-students and the state government for 10 days.
What did the judges say?
On Thursday, Gupta said in his judgement that he has framed 11 questions on the matter, including whether the case should be referred to a Constitution bench.
The other questions framed by him included whether the college management could take a call on students’ uniforms, if wearing hijab or banning it was in violation of Article 25 (freedom of conscience and free profession, practice and propagation of religion) and whether wearing the headscarves was an essential religious practice in Islam.
Meanwhile, Dhulia said in his order that the matter of essential religious practice was not important in the case.
“The High Court took a wrong path,” he said. “It is ultimately a matter of choice and Article 14 [equality before law] and 19 [freedom of speech and expression]”.
Dhulia said that wearing hijabs was just a matter of choice, nothing more or less than that.
“The foremost question in my mind was the education of the girl child,” he added. “Are we making her life any better? That was a question in my mind.”
Hearings in the matter
During the hearings in the Supreme Court, one of the counsels representing Muslim girl students from various colleges in Karnataka had argued that stopping them from wearing the hijab will harm their education as they might stop attending classes.
“Restrictive practices will result in drop outs,” Senior Advocate Huzefa Ahmadi had said.
In September, human rights organisation People’s Union for Civil Liberties had said in a report that thousands of Muslim girls and women across Karnataka had been robbed of their access to education due to the state government order banning hijabs in educational institutions and the High Court ruling that upheld the directive.
During hearings of the pleas, the lawyers of petitioners had argued that the High Court should not have looked into the aspect of essential religious practice or interpreted the Quran, as the question was related to an individual’s fundamental right.
Justice Dhulia had then too agreed that the court should not have gone into the question of essential religious practice. Solicitor General Tushar Mehta, representing the Centre, had also responded in the affirmative.
On the other hand, the Karnataka government had told the court that its order was religion-neutral and did not distinguish one student from the other.
The petitioners, represented by senior advocates Sanjay Hegde, Rajeev Dhavan, Dushyant Dave, Devadatt Kamat and other lawyers, had contended that the state government has not shown a valid reason for restricting the religious freedom of Muslim students.
“Problem here is that one particular community is insisting on a headscarf while all other communities are following the dress code,” Justice Gupta had said on September 7. “Students of other communities are not saying we want to wear this and that.”
On the same day, he even went on to ask whether the categorisation of the right to dress as a fundamental right also includes the right to undress.
The matter started after in December and January, a group of Muslim students of the Government Women’s Pre-University College in Udupi city were not allowed to attend classes for being dressed in hijab. The students staged a protest, and similar demonstrations were held in other parts of Karnataka.
Hindu students and mobs of men protested against Muslim women wearing hijabs to educational institutes. At some colleges, Muslim students were heckled, while in another case, some men climbed up a flagpole to plant a saffron flag and broke into classrooms.
On February 5, the Karnataka government issued an order stating that students would have to wear the uniform prescribed by their schools and pre-university colleges. Where uniforms were not prescribed, any clothing that disturbs “equality, integrity and public law and order” should not be worn.
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