Justices Hemant Gupta and Sudhanshu Dhulia of the Supreme Court of India (SCt) on Thursday delivered a split decision in a case concerning the banning of hijab in educational institutions. Judge Gupta upheld the ban and dismissed all appeals to the Karnataka High Court (HCt). Judge Dhulia allowed all appeals, quashed the Karnataka HCt judgment and ruled that the whole concept of essential religious practice was not essential to the case.
In February, the The Karnataka government has released a government decree (GO) prohibiting the wearing of the hijab in educational institutions. The GO was challenged before the Karnataka HCt. In March, the HCt ruled that wearing the hijab was not considered an “essential religious practice” and that the ban did not violate freedom of speech and expression or other fundamental rights. The HCt’s decision was appealed to the CSt. The TBS identified the following questions: (1) whether the hijab is an essential religious practice in Islam; (2) whether the right to wear the hijab can be claimed as part of the freedom of expression under article 19(1)(a) and the right to privacy and dignity under the 21; and (3) whether the GO can be justified by reasonable restrictions under Article 19(2).
Judge Gupta said that the practice of wearing the hijab can be a religious practice, a core religious practice, or a social custom for women of the Islamic faith. Gupta further stated that:
Religious belief cannot be transmitted to a secular school financed by state funds. It is open for students to wear their faith in a school that allows them to wear the hijab or any other mark, maybe the tilak, which can be identified with a person with a particular religious belief, but the state is within its jurisdiction to order that apparent symbols of religious beliefs may not be transported to the school maintained by the state with state funds.
On the question of the violation of the fundamental right of religion, Gupta believes that “the ban on wearing the hijab does not violate religious freedom because freedom is subject to social protection and other rights. Religious belief cannot be passed on to a state-funded secular educational institution.
Dhulia argued that the issue of essential religious practices was irrelevant in this dispute and left the question of what actually constitutes an essential religious practice to the bench of 9 judges in a pending case. Dhulia said that “asking a pre-university schoolgirl to remove her hijab at the door of her school is an invasion of her privacy and dignity” and a clear violation of the fundamental right granted to her under the article 19(1)(a) and 21 of the Constitution of India. Dhulia also argued that the main concern in this case was girls’ education, saying:
The obstacles and difficulties that a girl faces in accessing education are far more numerous than a male child. This case must therefore also be seen in the perspective of the challenges already faced by a young girl in reaching her school. So the question this Court would also be asking is whether we are improving a little girl’s life by denying her an education just because she wears a hijab!
The split renders those hearings inconclusive and the case will be sent back to the Chief Justice to decide on next steps.