The ambiguity over the fates of students interdicted by educational institutions in Karnataka for wearing Hijab continues to loom large as the Supreme Court of India(SC) delivered a split verdict on the Hijab controversy.
The bench consisting of Hon’ble Justice Hemant Gupta and Sudhanshu Dhulia was hearing petitions to dismiss the multiple bans imposed by the government and private educational institutions in Karnataka on wearing hijabs within their respective premises.
Earlier, the Karnataka High Court upheld the ban by declaring that Hijab was not an essential practice in Islam and therefore, not violative of the fundamental rights of the students. The current petitions were appeals against the High Court order but with the Supreme Court remaining undecided, the dilemma is far from over.
Roots of the Hijab Row
In February this year, six students were denied entry into a Government Women’s college in Karnataka's Udupi for wearing hijab on the grounds that it defied the college’s uniform dress code. As protests against such restrictions spiralled, so did the subsequent bans on the hijab by several other schools and colleges in Karnataka.
In fact, the State Education Department of Karnataka shortly issued a notification enforcing uniform dress codes in all educational institutions. Although the notification didn’t mention ‘hijab’ explicitly, many perceived it as validating the ban and it was challenged before the High Court.
K’taka High Court Imposed Ban on ‘Uniform’ Grounds
The question before the High Court was whether the prohibition infringed upon the students’ 'Right to Religious Freedom' guaranteed by the Indian Constitution.
Religious freedom in India is mainly enshrined by four constitutional provisions. Firstly, Article 14 which warrants equality before the law whereas Article 15 prohibits any discrimination on the basis of religion, among other classifications. Article 19(1) empowers the citizens to freely express themselves of which freedom of choice of attire is an integral part. Finally, Article 25 grants the right to every citizen to freely practice and profess their religion.
So the High Court gauged the Hijab ban on these lenses and concluded that there was “no proof that wearing hijab is an inviolable religious practice in Islam” but rather “School uniforms promote harmony”. This effectively upheld the ban and was challenged in the current petitions before the Supreme Court.
SC's Dichotomous Decision Sustains The Conflict
The Supreme Court heard a total of 26 appeals against the Karnataka High Court Judgement and expressed “divergence of opinion” with Justice Gupta upholding the ban and Justice Dhulia dismissing the same.
Justice Dhulia placed foremost importance on the Right to education of the students and relied on the apex court’s 1986 judgement in the Bijoe Emmanuel case wherein the court had overturned an expulsion order of three children who refused to sing the National Anthem, citing religious constraints.
In the said case, the Court stated that conscientiously held religious faith of the students was violated by the moral tone of the school rules. On similar lines, Justice Dhulia held that the kernel of the issue boils down to the freedom of choice guaranteed under Article 14 and Article 19(1) and thus, he set aside the ban on hijab.
On the contrary, Justice Gupta dismissed the appeals against the ban by grappling with 11 core legal issues including whether wearing hijab in itself can be protected under the purview of Article 25, if hijab indeed is an essential religious practice or not, if there is a fundamental right to wear religious dress, flouting a school’s prescribed dress code, whether there was any legitimate state interest in imposing such a restriction and if the ban order in itself could be justifiable as 'reasonable restrictions' as defined under Article 19(2) of the Indian Constitution, among others.
What The Verdict Reflects On The Judicary
Typically, when a bench fails to arrive at a consensus, the matter is referred to a third judge or a larger bench who then passes the final verdict on the matter.
Split verdicts in a Division Bench (a two-member bench) may be infrequent but hardly unprecedented. In fact, several Judges of different appellate courts have often dissented with each other on both interpretations of law as well as the facts of the matter in hand.
To legal stalwarts, this is a welcome phenomenon. The 11th Chief Justice of the United States of America, Charles Evans Hughes once said, “ a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
We recently saw the Delhi High Court deliver a split judgement while deciding the criminality of marital rape within the scope of the Constitution. Interestingly, the split in the Delhi High Court verdict hinged on the question of consent whereas in the current case, the bench grappled with the question of choice.
This highlights that the judicial assessment of the Hijab row transcends its religiosity and in fact, probes into the freedom of choice and its legal applicability.
The Veracity of the Third Judge
In another instance of a split verdict, Justice Girish Gupta and Justice Tapabrata Chakrabarty of the Calcutta High Court had failed to concur on the issue of a hate speech delivered by a Bengali actor and then-sitting MP from Bengal--Tapas Pal, in 2014. The case then went to a third judge of the same high court who ultimately delivered a final order.
In this case, the third judge was confronted with the question whether he or she, in the event of a split verdict, can take one's own view. That also remains a pressing concern in the current matter.
Justice Desai’s words in this 1956 decision of the Allahabad High Court is of significance here. "When the Judges are equally divided, there must be an opinion of a third Judge to convert the equal division into an unequal division so that the majority view can be given effect to.”
However, in the likelihood of the Hijab case being taken up by a larger bench, it is entirely possible that an entirely new perspective may emerge.
Iran or India, Women Continue To Tackle Question of ‘Choice’
While split judgements indeed are expressions of the liberty of thought and expressions of Judges, one cannot overlook the fact that they ring in some degree of judicial delay. So as the Hijab row continues to attract further judicial scrutiny, one must not lose sight of legislative functioning even as the law takes it’s own course.
16% of female Muslim students in Karnataka have dropped out of their respective educational institutions since the imposition of the ban and the numbers are expected to rise. Another question that remains to be assessed is whether or not hijab is essential to Islam and if denying entry to hijab-clad students violate their cultural and educational rights guaranteed under Article 29(2) of the Constitution.
Pitted against the Iranian women’s struggle to exercise the choice to not wear a hijab and the Indian students’ choice to wear hijab, it will be interesting to see what the law ultimately upholds.
(Yashaswini works as the Outreach Lead at Nyaaya, an initiative of Vidhi Centre For Legal Policy to provide simple, actionable, reliable, accessible legal information for all. She holds a law degree from SOAS, University of London. She tweets at @yashaswini_1010. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)