Hijab Ban case: How two judges differed in final order, matter now before CJI

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The Supreme Court on Thursday issued a split verdict in the Hijab ban case with Justice Sudhanshu Dhulia setting aside the Karnataka High Court’s order banning girl students from wearing Islamic headscarves. Justice Hemant Gupta, however, agreed with the Karnataka High Court on the ban and rejected all the appeals filed by Muslim parties.

Justice Dhulia, according to the Bar and Bench website, said in his dissenting judgment, “One thing which was topmost (priority) for me was education of girl child. A girl child in (many) areas does household work and chores before going to school and are we making her life any better by doing this (banning hijab).”

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Justice Dhulia said that the decision to wear hijab was a matter of choice for Muslim girls. “It was just a question of choice. I have held the ratio in Bijoy Emmanuel squarely covers the case,” he added.

Justice Gupta, for his part, said that hijab was not an essential part of Islamic practice adding that Karnataka’s BJP government order served the purpose of access to education.

Justice Dhulia, according to the Livelaw website, disagreed and said that ‘the main thrust of my judgment is that this entire concept of essential religious practices, in my opinon, was not essential to the disposal of the dispute.’

“And the Court probably took a wrong path there. It was simply a question of Article 19(1)(a) and 25(1). It is ultimately a matter of choice. Nothing more, nothing less. I have also held the ratio laid down by the Supreme Court in the case of Bijoe Emmanuel squarely covers the issue,” Justice Dhulia said.

The Karnataka High Court had upheld the ban on hijab for female Muslim students earlier this year saying that wearing of Islamic headscarves was not an essential part of Islam. This was after Muslim parties challenged the BJP government’s order banning hijab for Muslim girls in schools.