THE Supreme Court's division bench comprising Justices Hemant Gupta and Sudhanshu Dhulia pronounced a split verdict on Thursday relating to the ban on wearing hijab in educational institutions in Karnataka.
The operative part of the judgment says: "In view of the divergent opinions expressed by the bench, the matter is placed before the Chief Justice of India for the constitution of the appropriate bench."
Several petitions were filed before the Supreme Court challenging the ban on wearing hijab in educational institutions in Karnataka based on the Karnataka Government Order on Dress Code for Students ('GO') and the Karnataka Education Act, 1983, which was upheld by the High Court of Karnataka earlier this year.
While Justice Gupta, in his judgment, has dealt with the issue of essential religious practice, Justice Dhulia said that the concept of essential religious practice, in his opinion, is not relevant for the disposal of the dispute. The issue, he said, primarily revolved around Articles 19(1)(a) and 25(1) of the Constitution. He relied on the settled position of the Supreme Court in Bijoe Emmanuel & Ors. versus State of Kerala (1986) and observed that the same squarely covers the present issue.
Justice Dhulia observed that the Karnataka high court was wrong in going into the essential religious practice test.
In Bijoe Emmanuel, the Supreme Court had observed that any restriction made under clauses 2 to 6 of Article 19 of the Constitution must be a 'law' having statutory force and not a mere executive or departmental instructions.
While striking down the GO and quashing the order of the high court, Justice Dhulia noted, "It is ultimately a matter of choice. Nothing less, nothing more".
He further said that his main concern was regarding the education of girl children. He acknowledged that girls, primarily in rural and semi-urban areas, go through a lot of difficulties to avail education. "Are we making their lives any better?," he asked.
Justice Dhulia has directed the removal of restrictions on the wearing of the hijab.
However, Justice Gupta dismissed the appeals against the high court's judgment. He has dealt with 11 questions in the judgment and his answers to all have gone against the appellants.
The questions that Justice Gupta dealt with included the scope of freedom of conscience and religion, and the ambit and scope of essential religious practices under Article 25 of the Constitution.
The division bench had begun its hearing on September 5 and concluded it on September 22.
Click here to read the judgment.