This article on ‘Supreme Court’s Split verdict in Karnataka Hijab Ban Case: Facts and Laws‘ was written by Samar Jain, an intern at Legal Upanishad.
In the leading Karnataka Hijab Ban Case of appeals where the restriction was imposed on Muslim girls wearing a Hijab in Educational Institutions in Karnataka, the Supreme Court Two-Judge Bench delivered a Split Verdict. The Bench was headed by Justice Gupta and Justice Sudhanshu Dhulia respectively.
Justice Hemant Gupta upheld the High Court of Karnataka order which stated that any symbol of religious belief is not to be worn to schools of a secular nature which are maintained by funds of the state. Justice Sudhanshu Dhulia said that secularity means tolerance to diversity and to wear or not to wear hijab is ultimately a matter of choice.
This whole issue started when the Udupi PU College issued guidelines for a uniform code and the teachers started discriminating against the students who were not religious symbols.
Later the college denied entry to those students who wanted to wear hijab to college but were denied entry. The dispute further spread over the whole of Karnataka with groups of students primarily belonging to the faith of Hinduism, staging protests to wear the saffron scarves.
Finally, on February 5 the Government of Karnataka issued an order stating that uniforms are to be worn where the policy for uniforms exists and no relaxation can be given/ is to be made for wearing hijab. Using this order many of the educational institutions in Karnataka denied permission for entry to Muslim Girls wearing Hijab.
On February 11, the High Court issued an interim order which banned the wearing of all religious symbols in classrooms. Later on, on March 15 the High Court of Karnataka upheld the decision issued by it on February 11 and addressed four main questions. The questions are as follows:
Wearing of Hijab protected by the Right to Freedom of Conscience or not?
The Muslim students argued that the ban on the hijab violated their Right to Freedom of Conscience under Article 25 of the Constitution of India, 1950. They cited the landmark case of Bijoe Emmanuel v State of Kerala, 1986, and said that wearing of hijab is a part of their belief and hence must be protected.
The Court said there exists a difference between Conscience Freedom and Expression of Religion. In the case of the former, it said, that it is internal and in the case of the latter, it is an outward expression. Wearing of Hijab is a form of outward expression, and is subject to The Essential Religious Practices test.
Is the wearing of hijab an essential practice?
The Court held that the wearing of hijab under the Constitution of India Article 25 is not an essential religious practice and hence does not need protection.
The students of the Islamic faith gave reference to the Islamic scriptures which claimed that wearing of hijab is crucial to the religion. The Court held that wearing of hijab is a cultural practice and not a religious one.
Is the ban on hijab in the classroom, violating the Right to Freedom of Expression and the Right to Privacy?
The court held that a hijab fan is not a violation of the Right to Freedom of Expression and Speech. The students had claimed that wearing of hijab is given protection under the Right to Privacy. The court had held that the imposition of a dress code is a reasonable restriction, is universally applicable, religion-neutral, and also promotes the element of secularism.
Is the ban on hijab by the state government valid?
The Court held that the ban as per the court orders on February 5 to be valid. It held that the order was in pursuance of the powers which it had derived from the Karnataka Education Act, 1983. Under Section 133 sub-section 2 the government has the power to lay down a dress code and it exercises these powers with the help of the issuance of orders and committees.
Facts and Issues
- Whether the matter has to be referred to a larger bench because of the pendency of the Sabarimala reference?
- Should the matter be referred to a larger bench keeping in mind the Sabarimala case reference?
- Is wearing of hijab in Islam an essential practice and is it necessary to establish the same to seek protection?
- Can the right to wear hijab be claimed as a right to freedom of speech and expression and a right to privacy and dignity?
- Can the government order of February 5 be validated on the grounds of a just and equitable curtailment?
- Is there a valid state interest in the imposition of curtailment which will further lead to depriving of education of girls belonging to the Islamic faith?
- Whether the imposition of a uniform in an institute of education is considered to be a reasonable restriction.
- Whether The Principle of Reasonable Accommodation be applied and the headscarf of the same colour as the uniform be allowed.
- Does there exist a fundamental right to wear a religious dress when other students are wearing the prescribed uniform.?
A Split Verdict is a verdict passed by the Bench (the area where the judges sit) when it cannot give a decision one way or another, either by a united decision or a majority decision. Split Verdicts are only possible if the bench comprises an even number of judges and hence benches are usually comprised of an odd number of judges like 3/5/7 etc.
In cases of Split Verdict, the case is heard by a larger bench. The larger bench is usually comprised of 3 Judges of the High Court or an appeal before the Supreme Court can also be preferred. Since in this Karnataka Hijab Ban Case, the case was already heard by the Supreme Court Bench, now the Chief Justice of India (CJI) will constitute a larger bench to hear appeals against the decision of the bench.
During the arguments, it was also told to the court that there existed no practice of wearing hijab by girl students of the Islamic faith and the protest was conducted by the Popular Front of India and Campus Front of India.
Thus, to sum up, the Supreme Court’s Divisional Bench gave a split verdict on the Karnataka Hijab Ban Case with one judge upholding the Government of Karnataka High Court Order banning wearing religious symbols in educational institutions maintained by the funds of the state.
While the other judge gave the decision that wearing of hijab is a personal choice and depends on the person and that we as a country should become tolerant of the same.
- Shagun Suryam, “Karnataka Hijab ban: What legal experts think of the Supreme Court’s split verdict”, Bar and Bench, 15 October 2022, available at: https://www.barandbench.com/columns/karnataka-hijab-ban-legal-experts-supreme-court-judgment
- “Karnataka hijab ban case: Supreme Court delivers split verdict”, Hindustan Times, 14 October 2022, available at: https://www.hindustantimes.com/india-news/karnataka-hijab-ban-case-supreme-court-delivers-split-verdict-101665640868155.html