The Supreme Court delivered a split decision today on a batch of appeals challenging restrictions on Muslim women students wearing Hijab in Karnataka educational institutions.

Justice Hemant Gupta rejected the 26 appeals filed against the Karnataka High Court’s decision, which concluded that hijab was not an essential practise of Islam and justified the prohibition on wearing hijabs at state educational institutions. In expressing his disagreement, Justice Sudhanshu Dhulia set aside the Karnataka High Court decision and concluded that the entire concept of essential religious activity was not relevant to the argument.

“The High Court took a wrong path. It is ultimately a matter of choice and Article 19(1)(a) and 25(1). It is a matter of choice, nothing more and nothing less,” he said.

Justice Dhulia stated that the most prominent question on his mind was the education of girls. It is common knowledge that a girl child, particularly in rural and semi-rural settings, faces numerous challenges; she must perform daily tasks before attending school. There are further challenges. Are we making her life any better? That was a thought that crossed my mind. I have revoked the Government Order of February 5 and directed that the restrictions be lifted. “I have concluded that the decision in Bijoe Emmanuel directly addresses the matter,” said Justice Dhulia.

In contrast, Justice Gupta had posed 11 issues and answered all of the concerns posed by the appeals.  Given the differences of opinion, the case has to be brought before the Chief Justice of India for suitable directions.

The bench had reserved the judgment on September 22 after hearing arguments for ten days. Senior Advocates Dr.Rajeev Dhavan, Kapil Sibal, Dushyant Dave, Huzefa Ahmadi, Sanjay Hegde, Salman Khurshid, Devadatt Kamat, Yusuf Mucchala, AM Dhar, Adithya Sondhi, Jayna Kothari, Colin Gonsalves, Advocates Prashant Bhushan, Nizam Pasha etc, made arguments for the petitioners. Solicitor General of India Tushar Mehta and Attorney General of Karnataka Prabhuling Navadgi appeared for the State defending the High Court verdict. Senior Advocates R Venkataramani, Dama Seshadri Naidu, V Mohana made arguments for College Development Committees/Teachers in support of the hijab ban.

Some of the issues which arose during the hearing are:

• Whether the matter has to be referred to larger bench in view of the pendency of the Sabarimala reference?
• Whether hijab is an essential religious practice in Islam?
• Whether it is necessary to establish that hijab is an essential religious practice to seek the protection of Article 25?
• Whether the right to wear hijab can be claimed as part of freedom of expression under Article 19(1)(a) and part of right to privacy and dignity under Article 21?
• Whether the February 5 Government Order can be justified on the grounds of reasonable restrictions under Article 19(2)?
• Whether the wearing of hijab can be prohibited on the ground that certain other groups started protesting by wearing saffron shawls? Whether such a restriction amount to succumbing to hecklers veto?
• Whether there is any legitimate state interest in imposing a restriction which will lead to the deprivation of education for Muslim girls, who are already facing social backwardness?
• Whether the wearing of headscarf of the same colour of the prescribed uniform dress can be allowed on the principle of reasonable accommodation?
• Whether there is any fundamental right to wear a religious dress in a classroom where a uniform has been prescribed for all students?
• Whether prescription of a uniform in an educational institution can be held to an unreasonable restriction?

During the arguments, the State informed the Court that there was no established practise of Muslim female students wearing hijab and that the protests were organised by the Campus Front of India and the Popular Front of India.

CASE: Aishat Shifa versus State of Karnataka and connected cases.