Justice Hemant Gupta upheld Karnataka High Court's order while Justice Sudhanshu Dhulia set it aside and quashed Karnataka government's Hijab ban order.
Screengrab of a anti-hijab ban protest by Muslim girls.
A two-judge bench of the Supreme Court on Thursday, 13 October, delivered a split verdict in the hijab ban case. Justice Hemant Gupta upheld the Karnataka High Court’s order, while Justice Sudhanshu Dhulia set it aside and quashed the Karnataka government order banning the hijab in educational institutions.
The Karnataka High Court had said that hijab was not intrinsic to the Islamic faith and had refused to quash the Karnataka State government order that restricted Muslim girl students from wearing hijab (headscarf) in classrooms.
The Karnataka High court had said that the was restriction was constitutionally permissible.
“In light of the divergence of opinion, the matter has to be placed before the Chief Justice of India for appropriate directions,” the two judge bench said on Thursday. The matter is now before Chief Justice of India who can send it before a larger bench.
Justice Gupta and Justice Dhulia delivered separate verdicts in the case due to “divergent opinions”.
Justice Gupta framed 11 questions, including whether the appeal should go before a Constitutional bench, if wearing hijab or restricting it is violative of Article 25 of the Indian Constitution, whether college managements can take a call on uniforms, and whether the Karnataka government order infringed upon fundamental rights.
“The answer, according to me, is against the appellant. I dismiss the appeal,” Justice Gupta said.
Justice Dhulia’s opinion differed.
“It was just a question of choice. Nothing more, nothing less,” Justice Dhulia said, adding that his priority was education of the girl child.
“I have quashed the government order of 5 February and have ordered the removal of restrictions,” Justice Dhulia said, adding that the judgment in Bijoe Emmanuel case squarely covered the issue.
The two judges recently differed in yet another case pertaining to Karnataka.
They delivered a split opinion on 30 August in petition filed by state Waqf Board challenging the Karnataka High Court order which permitted celebration of Ganesh Chaturthi at the Idgah Maidan in Bengaluru’s Chamarajapet.
They referred matter to a larger bench just before delivering the verdict.
While Justice Gupta was inclined to uphold high court order, Dhulia had differed, and the matter went to a three-judge bench which eventually disallowed Ganesh Chaturthi celebrations
It all started in the last week of December 2021 when students wearing hijab were not allowed inside the class at a government pre-university college in Udupi, but the issue as triggered even earlier, in October last year, when photos of Muslim girl students holding ABVP flags and banners demanding a probe into the alleged rape of a Manipal student, went viral on social media.
At that time, parents and religious leaders from the minority community, who learnt about their girls not wearing hijab and going on protests with ABVP, chided them and also asked them to fight for their right to wear the hijab even in classrooms.
When the matter escalated with parents of the girls meeting with the college management, the issue started snowballing into a major controversy as the government college management decided against allowing students to wear the hijab in class.
The issue could not be resolved, and it was six students and their parents against the college management protesting that their girls should be allowed to wear hijab in their college.
On January 1, 2022, the government PU college management decided not to allow Hijab wearing students and all of them who wore it were stopped at the gate.
Students began protesting on a larger scale even as examinations were approaching, and this was not only a distraction for their preparations, but also would affect their future careers if not resolved immediately.
The Campus Front of India (CFI), the student body of the recently-banned Popular Front of India (PFI) also supported the girls in their protest to wear their hijabs in class.
When the protests by the girl students continued, students affiliated to the ABVP and other right wing organisations began protesting in various colleges across the state, demanding that they should be allowed to wear saffron shawl inside the class, if hijabs are allowed.
A few students then approached the Karnataka High Court challenging the hijab ban order by the college management.
Even as the matter was pending before a single bench of the Karnataka High Court, the state Education Department issued a circular regarding the dress code in colleges on 5 February.
The circular stated: “In exercise of the powers conferred under Section 133(2) of the Karnataka Education Act,1983, we direct students of all government schools to wear the uniform fixed by the state. Students of private schools may wear uniforms prescribed by the management committees of the school.
“In colleges that fall under the Karnataka Board of Pre-University Education, dress code prescribed by the College Development Committee or the administrative committee must be followed. If the administration does not fix a dress code, clothes that do not threaten equality, unity, and public order must be worn.”
With this circular going viral on social media, violence erupted at many places in the state during pro- and anti-hijab protests. The state police even had to impose section 144 in Shivamogga city.
On 9 February, the single bench of high court that was hearing the hijab issue thought it prudent to refer the case to a larger bench.
A three-judge bench headed by Chief Justice Ritu Raj Awasthi and comprising Justice Dixit and Justice JM Khazi began hearing on hijab issue on 10 February.
On 11 February, the Karnataka High Court issued an interim order, requesting the state to re-open educational institutions at the earliest and restraining students from wearing any sort of religious clothes in classrooms, regardless of their faith, while the matter was pending in court.
On 25 February, A full bench of the Karnataka High Court reserved its order on the hijab issue after hearing the matter for 11 days. It finally pronounced its verdict on 15 March.
The verdict read: “We are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith. We are of the considered opinion that the government has power to issue the impugned Order dated February 5, 2022, and that no case is made out for its invalidation. We are of the considered opinion that the prescription of school uniform is only reasonable restriction constitutionally permissible which the students cannot object to.”
Not satisfied with the verdict, one of the students approached the Supreme Court challenging the Karnataka High Court’s order.
After a marathon hearing of 10 days by the Supreme Court, which began in the second week of September, the court has finally delivered its verdict.
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