'Divergence Of Opinion': SC Justice Hemant Gupta Who Dismissed Pleas Challenging Karnataka Hijab Ban

Hijab Ban Case: Justice Hemant Gupta informed that in view of divergent opinions, the matter will be placed before the Chief Justice of India for appropriate directions.

File photo shows students wearing hijab

Source : PTI

New Delhi: Justice Hemant Gupta on Thursday dismissed a batch of 26 appeals filed against the judgment of the Karnataka High Court in the Hijab ban case. He maintained that wearing hijab is not a part of Essential Religious practice (ERP) under Islam and the Karnataka government order serves the purpose of access to education.

The Supreme Court on Thursday gave a split verdict in the Karnataka Hijab ban case as Justice Hemant Gupta dismissed appeals challenging the High Court's order which had upheld the state government's directive to ban wearing hijabs in educational institutions of the state, while Justice Sudhanshu Dhulia allowed the appeals and set aside the High Court order.

"There is divergence of opinion," Justice Hemant Gupta, who was heading the bench, said at the outset while pronouncing the verdict, news agency PTI reported.

"In my order, I have framed 11 questions. First is, whether the appeal should be referred to a constitutional bench. Whether college management can take a call on the uniform of students and if wearing of Hijab and restricting it is violative of Article 25. Whether right under Article 19 and Article 25 is mutually exclusive. Whether government order infringes upon the fundamental right," he stated, as quoted by Bara & Bench.

"Can a student exert her fundamental right, is wearing right a part of essential religious practice under Islam, whether government order serves the purpose of access to education: the answer according to me is against the appellant. I dismiss the appeal," the SC Justice added, as per the report.

Justice Hemant Gupta further informed that in view of divergent opinions, the matter will be placed before the Chief Justice of India for appropriate directions.

Earlier, a three-judge Bench of the then Karnataka HC 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 and that requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a).

SC Hearing On Karnataka Hijab Ban

A bench of Justices Hemant Gupta and Sudhanshu Dhulia, after hearing 10 days of arguments, had on September 22 reserved its verdict on the petitions against the Karnataka High Court decision refusing to lift the ban on hijab. The verdict has come as Justice Gupta, who is presiding over the bench, will retire on October 16.

During the hearing in the Supreme Court, lawyers appearing for the petitioners insisted that preventing Muslim girls from wearing the hijab in classes would jeopardise their studies as they could be barred from attending classes. 

A section of lawyers had also requested to refer the matter to a five-member constitution bench. At the same time, lawyers appearing for the state government had said that the Karnataka government's decision to create controversy over the hijab was "religion-neutral".

In response, the state counsel emphasised that the movement in support of wearing hijab in educational institutions was not a "spontaneous act" by some individuals and further argued in the apex court that the government would have been "guilty of breach of constitutional duty" if it had not acted the way it did.

The High Court had on March 15 dismissed petitions filed by a section of Muslim girl students of the Government Pre-University Girls' College in Udupi, Karnataka, seeking permission to wear the hijab inside classrooms. At the same time, the court had said that the hijab is not a part of the compulsory religious practice in Islam. Some Muslim girl students challenged the state government's decision in the High Court on February 5, 2022.

Several petitions were filed in the Supreme Court challenging the High Court's decision.

(With Agency Inputs)