Supreme Court delivers split verdict on Karnataka hijab case

Two judges on a Supreme Court bench on Thursday delivered opposing verdicts in the hijab controversy and asked the Chief Justice to constitute an appropriate bench to adjudicate in the case that stemmed from a ban on wearing the Islamic head covering in Karnataka schools.

While Justice Hemant Gupta dismissed the appeals challenging the March 15 judgement of the Karnataka High Court which had refused to lift the ban, Justice Sudhanshu Dhulia held there shall be no restriction on the wearing of hijab anywhere in the schools and colleges of the state.

Justice Gupta said permitting a community to wear its religious symbols to schools will be an “antithesis to secularism”, but Justice Dhulia insisted wearing the Muslim headscarf should be simply a “matter of choice”.

With the apex court delivering a split verdict, the high court’s judgement still holds the field. However, the split verdict held off a permanent resolution of the vexed row over hijab as both judges suggested placing the matter before a larger bench for adjudication.

Writing a separate 73-page judgement, Justice Dhulia said, “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.”

Justice Gupta, who was heading the bench and wrote a contrary verdict running into 133-pages, answered the 11 questions framed by him for consideration in the matter and said the constitutional goal of fraternity will be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.

While pronouncing the judgement on a batch of 26 petitions, Justice Gupta said at the outset, “There is divergence of opinion.”
“In view of the divergent views expressed by the bench, the matter be placed before the Chief Justice of India for constitution of an appropriate bench,” the court said.

On March 15, the high court had dismissed the petitions filed by a section of Muslim students of the Government Pre-University Girls College in Karnataka’s Udupi seeking permission to wear the hijab inside classrooms, ruling it is not a part of the essential religious practice in Islamic faith.

During the arguments in the apex court, a number of counsel appearing for the petitioners had insisted that preventing Muslim girls from wearing the hijab to the classroom will put their education in jeopardy as they might stop attending classes.

Counsel for the petitioners had argued on various aspects, including on the state government’s February 5, 2022 order which banned wearing clothes that disturb equality, integrity, and public order in schools and colleges.

Some advocates had also argued that the matter be referred to a five-judge constitution bench. On the other hand, the counsel appearing for the state had argued that the Karnataka government order that kicked up a row over hijab was “religion neutral”.

Insisting that the agitation in support of wearing hijab in educational institutions was not a “spontaneous act” by a few individuals, the state’s counsel had argued in the apex court that the government would have been “guilty of dereliction of constitutional duty” if it had not acted the way it did.

The state government’s order of February 5, 2022 was challenged by some Muslim girls in the high court. Several pleas have been filed in the apex court challenging the high court verdict.