Supreme Court Passes Split Verdict In Hijab Case; Justice Sudhanshu Dhulia Sets Aside Karnataka HC Judgment

The Supreme Court today passed a split verdict on a batch of appeals challenging restriction on Muslim girl students wearing Hijab in educational institutions in Karnataka.

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.

Expressing the divergence in his opinion, Justice Sudhanshu Dhulia set aside the Karnataka High Court judgment 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 and Article 19(1)(a) and 25(1). It is a matter of choice, nothing more and nothing less," he said.

Justice Dhulia 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 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 opinon, was not essential to the disposal of the dispute. And the Court probably took a wrong path there. 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 Bijoe Emmanuel squarely covers the issue. The thing which was uppermost in mind was the education of girl child. It is a 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".- Justice Dhulia

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

In light of the divergence of opinion, the matter has to be placed before the Chief Justice of India for appropriate directions.

Detailed copy of the judgment is awaited.

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, Meenakshi Arora, Advocates Prashant Bhushan, Nizam Pasha, Shoeb Alam etc, made arguments for the petitioners. Solicitor General of India Tushar Mehta and Attorney 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.

Some of the issues which arose during the hearing are :

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 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?

Whether the wearing of headscarf of the some colour of the prescribed uniform dress can be allowed on the principle of reasonable accommodation?

Whether there is any fundamental right to wear a religious dress in a classroom where a uniform has been prescribed for all students?

Whether prescription of a uniform in an educational institution can be held to an unreasonable restriction?

During the arguments, the State told the Court that there was no established practice of wearing hijab by Muslim girls students and that the protests were orchestrated by the Campus Front of India and the Popular Front of India.

Case Title : Aishat Shifa versus State of Karnataka and others

Citation : 2022 LiveLaw (SC) 842

Click Here To Read/Download Judgment

Hijab Verdict : Judges Express Contrasting Views Regarding Fraternity & Discipline

Reports of previous hearings: