A batch of appeals lying before the Supreme Court challenging the Karnataka High Court judgement which restricted girl students from wearing Hijab as a part of uniform dress code resulted in a split verdict, due to divergence of opinions between the two judges.
Justice Hemant Gupta dismissed all the appeals against the judgement of the Karnataka High Court suggesting that wearing Hijab is not an essential religious practice in Islam and it is a reasonable restriction to not allow it as a part of school uniform.
The key points considered by Justice Gupta were -
Whether the appeal should be referred to a Constitution bench?
Whether colleges can decide on the uniform of students?
Whether wearing the hijab and restricting it violates the freedom of religion (Article 25)?
Whether Article 25 and Article 19 (Freedom of speech and expression) are mutually exclusive?
Whether the Karnataka ban infringes upon fundamental rights Is wearing the hijab a part of essential practice under Islam?
Whether the government order serves the purpose of access to education?
Justice Gupta stated in the court that according to him, the answers to these questions were against the appellant and hence opined that all the appeals should be dismissed. However, due to the split verdict, he ordered, “In view of divergent opinion, let the matter be placed before the Chief Justice of India for appropriate directions.”
On the other hand, Justice Sudhanshu Dhulia had an entirely different opinion on the matter and stated that the most pertinent question in his mind was regarding the education of the girl child and whether her life was being made any better by putting such restrictions on the dress code.
Justice Dhulia further stated that essential religious practice was not the crux of the dispute and emphasized on the fundamental right that guaranteed freedom of choice. He stated that -
"The main thrust of my judgment is that this entire concept of essential religious practices, in my opinion, 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".
Due to the divergence in opinions and split verdict in the case, the matter has been referred to the Hon’ble Chief Justice of India U.U. Lalit, for consideration of a larger bench.