New Delhi: A two-judge bench of the Supreme Court last week delivered a split verdict on the validity of the Karnataka government’s circular barring students from wearing any religious clothing, including hijab, in state run schools and colleges, setting the stage for continuing litigation for fresh adjudication of the sensitive issue by a bench of at least three judges.
While Justice Hemant Gupta posed 11 questions and conducted a thorough analysis of both sides' arguments in his 140-page decision to address each question in order to refute the Muslim side's pro-hijab argument, his colleague Sudhanshu Dhulia took a completely different stance on the key issues in his 76-page decision.
After pronouncement of the fundamentally different judgments, which “respectfully” clashed with each other on basic constitutional issues such as freedom of choice, right to religious practices and fraternity, the bench ordered: “In view of the divergent views expressed by the Bench, the matter be placed before the Chief Justice of India for constitution of an appropriate Bench.”
Till the “appropriate bench”, which would be of at least three judges, commences adjudication anew, the Karnataka government’s February 5 circular, upheld by a division bench of the high court, would remain in force and state-run educational institutions would be justified in enforcing uniforms on students to bar those who might insist wearing hijab or saffron shawls, as happened prior to February 5.
Justice Gupta, who retires on October 16, focused on answering the question: “whether students can enforce their religious belief in a secular institution”. He sub-divided his judicial prose into 11 parts to test the interplay of right to equality (Article 14), right to freedom of expression and choice (Article 19), right to privacy and dignity (Article 21) and right to religious practices (Article 25) juxtaposed with the right of Muslim girl students to wear hijab in state-run educational institutions where uniforms are enforced.
