The Supreme Court on Thursday delivered a split verdict in the challenge to the Karnataka government order (GO) effectively empowering government colleges in the State to ban the wearing of hijab by Muslim girl students in college campus [Aishat Shifa vs State of Karnataka].
Justice Hemant Gupta who headed the bench upheld the government decision while Justice Sudhanshu Dhulia struck it down.
“There is divergence of opinion. I have held against the appellant. I dismiss the appeal,” Justice Gupta said.
Justice Dhulia, however, allowed the appeal and quashed the Karnataka government order.
“One thing which was topmost (priority) for me was education of girl child. A girl child in (many) areas does household work and chores before going to school and are we making her life any better by doing this (banning hijab),” Justice Dhulia said.
Consequently, the matter will now be heard by a larger bench of the top court.
“In view of divergent opinion, let the matter be placed before the Chief Justice India of for appropriate directions,” the bench directed.
A girl child in (many) areas does household work and chores before going to school and are we making her life any better by doing this (banning hijab).
Justice Sudhanshu Dhulia
Justice Gupta, in his judgment, framed eleven questions.
He held that wearing hijab is not a part of essential religious practice (ERP) under Islam and the State government order serves the purpose of access to education.
He, therefore, dismissed the appeals.
Justice Dhulia, however, held that venturing into ERP was not needed and the High Court adopted a wrong approach.
“It was just a question of choice. I have held the ratio in Bijoy Emmanuel squarely covers the case,” Justice Dhulia ruled.
The challenge before the Supreme Court is against a Karnataka High Court decision from March 15 upholding the Karnataka government order.
The Karnataka High Court had on March 15 upheld a Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of the Islamic headscarf in college campuses.
The petitioners – Muslim girl students from various colleges in Karnataka – had approached the High Court after they were denied permission to attend classes on account of wearing hijab.
A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that:
– Hijab is not a part of essential religious practices of Islam;
– Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
– The government has the power to pass the GO; no case is made out for its invalidation.
One of the pleas before the top court argued that the High Court “failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution.”
It is also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.
With regard to uniform, the pleas state that the Karnataka Education Act, 1983, and the Rules made under the same, do not provide for any mandatory uniform to be worn by students.