Bhuvana Marni
Published on: October 13, 2022 at 11:28 IST
A batch of pleas contesting restriction on Muslim girl students wearing hijabs at educational institutions in Karnataka was heard by the Supreme Court today. The court issued a split decision.
The 26 appeals against the Karnataka High Court’s decision that the hijab was not a fundamental Islamic practice and that it was permissible to prohibit the wearing of headscarves at state-run educational institutions were dismissed by Justice Hemant Gupta.
Justice Sudhanshu Dhulia set aside the decision of the Karnataka High Court and declared that the entire notion of essential religious practice was not pertinent to the dispute, expressing the difference in his opinion.
“The High Court took a wrong path. It is ultimately a matter of choice and Article 19(1)(a) and 25(1). It is a matter of choice, nothing more and nothing less,” he said.
The education of girls, according to Justice Dhulia, was his top concern. “Are we making her life any better? That was a question in my mind…I have quashed the Government Order of February 5 and have ordered the removal of the restrictions…I have held that the judgment in Bijoe Emmanuel squarely covers the issue”.
“The main thrust of my judgment is that this entire concept of essential religious practices, in my opinion, was not essential to the disposal of the dispute. And the Court probably took the wrong path there. It was simply a question of Article 19(1)(a) and 25(1).”
“It was simply a question of Article 19(1)(a) and 25(1). It is ultimately a matter of choice. Nothing more, nothing less. I have also held the ratio laid down by the Supreme Court in the case of Bijou Emmanuel squarely covers the issue. The thing which was uppermost in mind was the education of a girl child.”
“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. Are we making her life any better? That was also a question in my mind,” said Justice Dhulia.
On the other hand, Justice Gupta had formulated 11 concerns and addressed every query raised against the appeals. The issue has to be brought before the Chief Justice of India for suitable guidance given the differences of opinion.
The judgment’s detailed copy is anticipated.
After hearing the arguments for ten days, the bench reserved the decision on September 22.
For the petitioners, arguments were presented by senior attorneys Dr. Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Huzefa Ahmadi, Salman Khurshid, Devadatta Kamat, Yusuf Mucchala, AM Dhar, Adithya Sondhi, Jayna Kothari, Colin Gonsalves, Advocates Prashant Bhushan, Nizam Pasha, etc.
Attorney General of Karnataka Prabhuling Navadgi and Solicitor General of India Tushar Mehta represented the State in defending the High Court decision.
Senior Advocates R Venkataramani, Dama Seshadri Naidu, and V Mohana made arguments for College Development Committees/Teachers in support of the hijab ban.
Some of the issues which arose during the hearing are :
- Whether the matter has to be referred to a larger bench in view of the pendency of the Sabarimala.
- Considering the Sabarimala case is still pending, whether the matter ought to be referred to a larger bench.
- Whether hijab is an essential religious practice in Islam?
- Is it necessary to prove that wearing the hijab is a fundamental religious practise in order to qualify for Article 25 protection?
- Is it possible to assert the right to wear a hijab as a component of both the right to privacy and dignity under Article 21 and the freedom of expression under Article 19(1)(a)?
- Is the February 5 Government Order justifiable under Article 19(2) because of reasonable restrictions?
- Can the wearing of the hijab be outlawed because certain other groups began wearing saffron shawls to protest? Whether a restriction like that would be considered giving in to heckler veto?
- Whether Is there a justifiable governmental interest in enforcing a prohibition that will prevent Muslim girls, who already face societal disadvantage, from receiving an education?
- Can the principle of reasonable accommodation be used to allow the wearing of a headscarf the same colour as the required uniform dress?
- Is it constitutionally protected to wear a religious outfit in a school where everyone is required to wear a uniform?
The State argued before the court that Muslim female students were not required to wear the hijab and that the Campus Front of India and the Popular Front of India were orchestrating the demonstrations.