Supreme Court on Thursday couldn't decide on the validity of the Karnataka government's hijab ban in educational institutions and delivered a split verdict.
Justice Hemant Gupta, who retires on Sunday, said he had proposed to dismiss the appeals against the March 15 Karnataka High Court order and went ahead to frame 11 questions for further consideration. Justice Sudhanshu Dhulia however, was of the opinion that the high court order needed to be set aside.
"A girl child in rural areas does household work and chores before going to school and are we making her life any better by doing this (banning hijab in educational institutions)? I have respectfully differed," Justice Dhulia said. Venturing in the opinion of Essential Religious Practice was not needed and the high court took the wrong way, he added. "It was just a question of choice. I have held the ratio in Bijoy Emmanuel (judgment) squarely covers the case. One thing which was topmost for me was the education of girl child. Nothing more, nothing less," Justice Dhulia added.
In view of the "divergent opinion", the matter gets referred to the Chief Justice of India for further consideration.
Justice Gupta and Justice Dhulia had reserved their judgment on September 22 after a marathon hearing spread over 10 days.
Those challenging the ban argued that, unlike triple talaq and cow sacrifice, wearing a hijab was mentioned in the Quran and it was a Muslim woman's "farz (duty)" to wear one. The pro-hijab lobby further argued that wearing a hijab was an essential religious practice and that the February 5 government order was anti-Muslim.
BOOM recaps the arguments for and against the hijab ban that were put forth over the 10 days.
Hijab is an essential religious practice: Muslim girls to SC
During the hearing, at least 21 advocates argued for the right to wear a hijab. The submissions primarily centred on one's religious right to self and expression which extended to wearing a hijab. The practice was mentioned in the Quran, the advocates argued, unlike triple talaq or cow sacrifice which found no mention.
They further argued that the girls' education would be jeopardized since they would stop attending classes if they were prevented from wearing the headscarf to educational institutions. "What does ultimately the State gain if these students are not emancipated? If these girls get a good education, tomorrow they can take a decision on how to dress. Education itself is empowering. This stopping can result in them going back to other education which is not secular. Don't stop this at the threshold," senior advocate Huzefa Ahmadi said.
"Uniformity is confused as a fundamental duty. The judgments of this court emphasize on diversity. It is not shown hijab is impairing education or discipline," he added.
Senior Advocate Dushyant Dave, representing one of the parties, dismissed the state's arguments that Muslim girls were being influenced into wearing a hijab as part of a conspiracy hatched by the Popular Front of India.
Hijab ban engineered protest to create social unrest: Karnataka to SC
Until 2021, the girls were not wearing any hijab. But suddenly they started wearing one after getting advice by some people, the Karnataka government told Supreme Court. The protests and the movement for wearing a hijab were engineered by the now-banned Popular Front of India (PFI) to instigate social unrest. Muslim girls were made part of this conspiracy, Solicitor General Tushar Mehta had argued.
Mehta said the argument that the minority community was being marginalized was "far-fetched" and that the government had to restrict hijab to maintain public order.
Karnataka government backed its February 5 government order saying it was "religion-neutral" and did not target any particular community. Other communities started coming with saffron shawls, these were also prohibited, Mehta had said.
On hijab being an 'Essential Religious Practice', Mehta said the arguments by the Muslim students were "constitutional fallacious" and they had failed to make their case.
"For being an essential religious practice, it (wearing a hijab) should have started from time immemorial. It should co-exist with religion itself. Such practice must form the cornerstone of religion itself," Mehta said citing past precedents from High Court orders.
A mention in the Quran did not make hijab an essential religious practice, Mehta had said. Even in constitutionally Islamic countries—like Iran, women were agitating against wearing a hijab, he added.