Senior advocates at the Supreme Court and former High Court Judges on Thursday, 13 October, hailed the apex court's split verdict on the Hijab ban in educational institutions in Karnataka.
"This is the first time that the hijab-clad girls asking for their right to education have gotten an affirmation that they were not entirely in the wrong. At least one judge of the Supreme Court has seen their point," Senior Advocate Sanjay Hegde, who represented the petitioners at the Supreme Court, told The Quint.
A two-judge (division) bench of Justices Hemant Gupta and Sudhanshu Dhulia, which had heard a slew of 23 petitions challenging the Karnataka High Court's Hijab ban starting 5 September, stated on Thursday that that there is a 'divergence of opinion' in the case.
While Justice Gupta, in his judgment, upheld the Hijab ban and dismissed the petitioners' appeals, Justice Dhulia set aside the Karnataka High Court's judgement banning the hijab in the educational institutions in the state and allowed the petitions.
The case is now expected to be listed before a larger bench and until the bench pronounces their order, the status quo, i.e. Hijab ban in educational institutions in Karnataka will continue.
Meanwhile, Justice Dhulia in his order stated that thrust of his argument is that the concept of Essential Religious Practice was not essential to the case and added:
"It is a matter of choice, nothing more and nothing less."
"The foremost question in my mind was the education of the girl child. Are we making her life any better?" he asked.
'Arc of History Tends To Bend Towards Justice': Sanjay Hegde
Reacting to Justice Dhulia's statement, Senior Advocate Sanjay Hegde further said:
"Like Barack Obama would say, the arc of history is long but it tends to bend towards justice. We will keep making that arc."
'Justice Dhulia's Comments Rightly Protect Right to Choice': Former Chief Justice of the Allahabad High Court
Former Allahabad High Court Chief Justice Govind Mathur too, welcomed the split verdict and lauded Justice Dhulia's comments.
Justice Dhulia's comments, according to him "rightly protect the right to have choice, which in broader terms is certainly a fundamental right."
"This has given an opportunity to have more lucid views on the point . I personally feel that what to wear and what not can't be and should not be is not a religious mandate," he opined, speaking to The Quint.
"At the same time government must also keep its hands off in checking the choice of individuals for their dressing in educational institutions, specifically regarding ban on some usual wearing," he added.
"Just as a headscarf can be forced, so too can not wearing it. The Judgment given by Justice Dhulia , in my view rightly protects the right to have choice, which in broader terms is certainly a fundamental right."Former Allahabad High Court Chief Justice Govind Mathu
Now CJI Should Resolve Stalemate Fast: Senior Advocate Anjana Prakash
"Even though it is a split judgement, it affirms the arguments made by both sides and it will be interesting to watch what the third judge says," Senior Advocate and Justice (Retd) Anjana Prakash said.
Commenting on the continuing status quo and Muslim girls staying out of school until the three-judge bench passes a verdict, she said that the Chief Justice of India should immediately make efforts to resolve the stalemate "especially when there is a dissenting view."
She also mentioned that Justice Dhulia's decision was a step in the right direction.
"The High court had started thinking that the court is the arbitrator of every dispute but that's not true," she said.
'Balanced Verdict But SC Could Have Referred Case To Constitution Bench Earlier': Advocate on Record at SC Adeel Ahmed
"It is definitely a balanced judgement. In fact, the Karnataka High Court too should have followed suit instead of issuing a blanket ban on Hijabs in educational institutes," Adeel Ahmed, counsel one of the petitioners and Advocate on Record (AOR) at The Supreme Court told The Quint.
However, he said that had the Supreme Court started hearing the matter earlier and framed the issues instead of delaying the listing, it could have been referred to a Constitution Bench in the first place.
"Although, as a matter of procedure SLP's do go to two-judge division benches, the Supreme Court should have taken initiative, framed the important issues and constituted a constitution bench," he said.
"The challenge now is secularism vs discipline -- what needs to be considered now is if the right to clothing is an absolute right and if the girls can be asked to ward off their right while entering an educational institute," he added.
'Split Verdict Reflection of Independent Judicial Customs': Advocate on Record at SC Tahla Abdul Rahman
"A split verdict was expected because the line of questioning of the two judges was different from the beginning," Advocate on Record (AOR) at The Supreme Court Tahla Abdul Rahman said.
"It's good because it's a reflection of independent judicial customs - that judges can take a view different from each other is an asset of many kinds," he added.
'Not the End of the Road for the Supreme Court': Ex Allahabad HC Judge
Former Judge at the Allahabad High Court, Justice Amar Saran told The Quint that he was thrilled with the reported development in the case, and "particularly Justice Dhulia's separate order."
"The concern for the Muslim girl's right to education which might have been denied or endangered and the right to free agency and choice of the woman are the paramount points," he added.
"It's such a minor modification of the uniform that they (petitioners) are seeking, placing a scarf of the same colour on their heads in order to pursue their education," he added.
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