Stating that there is a 'divergence of opinion' in the case challenging the Karnataka High Court's order upholding the Hijab ban in education institutions in the state, the apex court, on Thursday, 13 October, said that "the matter has to be placed before the Chief Justice of India for appropriate directions."
A bench of Justices Hemant Gupta and Sudhanshu Dhulia had heard a clutch of petitions challenging the Karnataka Hijab ban.
Justice Gupta, in his judgment, dismissed the appeals, upheld the Hijab ban and said that he had framed 11 questions in his judgment.
Stating that “secularism is applicable to all citizens,” and therefore “permitting one religious community to wear their religious symbols would be antithesis to secularism,” Justice Hemant Gupta further said in his judgment:
“Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”
'A Matter of Choice'
Justice Dhulia, on his part, allowed all the appeals and said aside the Karnataka High Court's judgment. He also stated that thrust of his argument is that the concept of Essential Religious Practice was not essential to the case.
"It is a matter of choice, nothing more and nothing less."Justice Sudhanshu Dhulia
Further, Justice Dhulia asked:
"The foremost question in my mind was the education of the girl child. Are we making her life any better? That was a question in my mind."
He also held that the judgment in the Bijoe Emmanuel case (courts only need to test whether a practice is prevalent, was established and is bona fide) squarely covers the issue
'How is Hijab Against Public Order, Morality or Health?'
"All the Petitioners want is to wear a hijab!" Justice Dhulia noted in his judgment, before going on to ask:
"Is it too much to ask in a democracy? How is it against public order, morality or health or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement," he said.
'Asking the Girls to Take Off Their Hijab is an Invasion of Their Privacy'
"By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India," Justice Dhulia said.
'This Right to Her Privacy She Carries Even Inside Her Classroom'
"This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom," Justice Dhulia said while disagreeing with the Karnataka High Court's take that such rights are "derivative."
The case is now expected to be referred by the Chief Justice of India to a larger bench.
Previously, in August too, in a case pertaining to the use of the Idgah Maidan in Bengaluru's Chamarajpet for Ganesh Chaturthi, Justices Gupta and Dhulia had opined differently. The matter was thereby referred to a three judge bench. A similar outcome can be expected now.
Find details of the division bench hearing in the Hijab case here.