Wednesday 7 December 2022
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PoliticsIndiaHow Supreme Court opinion is divided on 'hijab in school' issue

How Supreme Court opinion is divided on ‘hijab in school’ issue

The Supreme Court today delivered a split verdict in the Karnataka ban case, with one of the judges upholding the 15 March high court order validating the ban and the other set aside the HC ruling and calling wearing of the apparel a “matter of…choice”. 

One of the judges, Justice Hemant Gupta, upheld the 15 March Karnataka High Court order validating the ban on hijab .

The other, Justice Sudhanshu Dhulia, set aside the HC ruling and called wearing the Islamic clothing accessory a “matter of…choice”.

Supreme Court split verdict on

Justice Gupta mulled over 11 questions. These included

  1. whether college management can decide on the uniform of students 
  2. whether restrictions on wearing of violates Article 25 of the constitution
  3. What is the ambit and scope of of conscience and religion under Article 25? 
  4. What is the ambit and scope of essential religious practises under Article 25 of the Constitution?
  5. whether fundamental rights of expression under Article 19(1)(a) and the right of privacy under Article 21 are mutually exclusive or complementary to each other
  6. whether the government order meets the test of reasonableness under Articles 19 and 14
  7. whether the government order impinges upon the constitutional promise of dignity and fraternity
  8. whether the is considered part of an essential religious practice
  9. whether a student can seek to wear it to school as a matter of right
  10. whether the state government order is contrary to the legitimate state interest of promoting literacy and education as mandated under the constitution

Relevant read: Hindu woman principal harassed by Muslim teachers, students in Agra school

On the other hand, Justice Dhulia quashed the Karnataka government order of 5 February, by which college management committees were empowered to take a decision on the issue.

"It was simply a question of Article 19(1)(a), its applicability and Article 25(1), primarily. And it’s ultimately a matter of her choice, nothing more nothing less,” he said.

"It is common knowledge that already a child primarily in rural and semi-urban areas, there are already a lot of difficulties faced… So, are we making her life any better? That was also on my mind.”

Justice Dhulia based the above on a precedent: In the Bijoe Emmanuel case, the Supreme Court in August 1986 allowed the claim of some students following the Jehovah’s Witness faith (a sect of Christianity) to remain silent during the singing of the national anthem in their school in Kerala.

What next?

The matter has been directed to be placed before the Chief Justice of India UU Lalit for appropriate directions.

Meanwhile, Karnataka Minister BC Nagesh said, "We welcome the Supreme Court verdict. We had expected a better judgement as women worldwide are demanding to not wear /burqa. Karnataka HC order remains applicable in interim time; ban on wearing of hijab in educational institutions of the state remains."

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