Apex court split over Karnataka hijab ban

The Supreme Court on Thursday delivered a split verdict on the ban of wearing of hijab in educational institutions in Karnataka – with one judge holding that the religious belief cannot be carried to a secular school maintained using State funds, and the other stressing that discipline cannot be enforced at the cost of girl students’ freedom, dignity, and privacy.

The Supreme Court on Thursday delivered a split verdict on the ban of wearing of hijab in educational institutions in Karnataka – with one judge holding that the religious belief cannot be carried to a secular school maintained using State funds, and the other stressing that discipline cannot be enforced at the cost of girl students’ freedom, dignity, and privacy.

(AP)

Following the dissenting views of the two judges, the clutch of petitions challenging the ban on wearing hijab will now be placed before the Chief Justice of India for the constitution of an appropriate bench to resolve the standoff.

A split decision by a two-judge bench is usually placed before a bench of three judges. However, in the wake of various points of constitutional interpretations of fundamental rights raised in the matter, the CJI may also decide to refer this case directly to a Constitution bench of five judges or to a nine-judge bench where the issue relating to scope of judicial review in matters of faith, among others, is already pending.

The CJI will have to take a call on the appropriate bench soon also for the purposes of interim orders since the ban on hijab, as ordered by the high court, remains in force for the time being on account of the split verdict.

On Thursday, justice Hemant Gupta, in his judgment, dismissed all the appeals filed against the Karnataka high court verdict, which ruled in March that wearing of hijab by Muslim women is not mandatory in Islam and that the Karnataka government was empowered to enforce the uniform mandate.

“Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order (of February 2022) cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983,” he said.

Terming religion a private affair, justice Gupta said that religion has no meaning in a secular school run by the State. “The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind,” he said.

However, justice Sudhanshu Dhulia differed with the senior judge on the bench and quashed the prohibitory order of the Karnataka government. Even as he regretted that his dissent will elude the finality, the judge quoted Lord Atkins: “Finality is a good thing, but Justice is better.”

“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...The question this court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!” said justice Dhulia.

The judge added: “All the petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution? Under our Constitutional scheme, wearing a hijab should be simply a matter of choice.”

The 206-page verdict of the bench highlighted the extreme ends of discordant views by the two judges in a complicated issue involving faith, rights, choice, freedom, and law.

Justice Gupta stressed that uniform will bring “oneness” among the students in schools and any defiance to this rule would be antithesis of discipline whereas justice Dhulia noted that school is the place for the students to “rejoice and celebrate this diversity.”

Similarly, the two remained at complete variance when the question of denial to attend classes due to wearing of hijab cropped up. Justice Gupta held that the State has not denied anyone the right to education but it cannot help if a girl student chooses not to attend classes due to the insistence on uniform. On the other hand, Justice Dhulia lamented that the “unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child for whom it is still not easy to reach her school gate.”

Further, while justice Gupta maintained that school is not the place to carry religious identities, justice Dhulia said that though school is a public place, yet drawing a parallel between a school and a jail or a military camp (as was referred by the high court), is not correct

The two judges, however, were unanimous in their opinions that the state government has the power under the Karnataka Education Act and the pertinent rules to prescribe a dress code in recognised educational institutions.

The bench was delivering its verdict on a bunch of petitions filed by girl students, women’s right groups, lawyers, activists and Islamic bodies, who challenged the March 15 Karnataka high court judgment.

The row broke out when the Government PU College in Udupi was accused of barring girl students wearing the hijab from entering classrooms. The demonstrations, which started in Udupi, later spread to other parts of the state, and then captured the nation’s attention.

After several petitions challenged the government order, a full bench of the high court, on March 15, declared that wearing of hijab is not mandatory in Islam. It upheld the ban on the headscarf imposed by the state government in schools and colleges through a February 5 executive order, which led to massive protests and counterprotests across the state and in several other cities across the country. The high court also held that the state government was empowered to mandate uniform in schools.

Soon, a spate of appeals queued up before the Supreme Court against the high court verdict. The marathon hearing spanning over 10 days last month witnessed almost two dozen lawyers dwelling on a spectrum of legal, constitutional and factual aspects. The final order was reserved by the top court on September 22.

While the petitioners challenging the high court order emphasised in their arguments the right to practice religion; freedom to dress as a matter of expression, identity and privacy; right to access education and alleged unreasonableness of the state’s mandate, the Karnataka government maintained throughout the proceedings that their circular to enforce uniform was religion-neutral and aimed only at promoting uniformity and discipline in schools.

Senior advocates Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Salman Khurshid, Huzefa Ahmedi, Colin Gonsalves, Meenakshi Arora, Sanjay Hegde, AM Dar, Devadatt Kamat and Jayna Kothari argued for the petitioners. Advocate Sheob Alam and Nizam Pasha also assisted the bench for some of the girl students.

The state government was led by solicitor general (SG) Tushar Mehta, assisted by additional solicitor general KM Nataraj and Karnataka’s advocate general Prabhuling K Navadgi who also argued in support of the high court judgment. Senior advocate R Venkataramani (who later took over as Attorney General) also argued against the observance of any religious identities in educational institutions.

The Bharatiya Janata Party (BJP)-led Karnataka government expected a “better judgment” from the Supreme Court in the hijab case, education minister B C Nagesh said on Thursday. Speaking to reporters, Nagesh said: “At a time when there is a movement against hijab and burqa across the globe and the freedom of women is a talking point, the Karnataka government had expected a better judgment that will bring an order in the education system but a split verdict has come.” “The matter has now been referred to a higher bench,” he said adding, the state government will wait for the verdict by a higher bench.