Karnataka Hijab ban: What legal experts think of the Supreme Court's split verdict

The Supreme Court on Thursday delivered a split verdict in the challenge to the Karnataka government order (GO) effectively empowering government colleges in the State to ban the wearing of hijab by Muslim girl students on campus.

Justice Hemant Gupta, who headed the Bench, upheld the government decision, while Justice Sudhanshu Dhulia struck it down.

Bar & Bench spoke to legal experts to share their preliminary views on the decision of the top court and its implications on the students.

Senior Advocate Yusuf Muchhala

The senior counsel, who also appeared for the appellants in the case, said that the split verdict would result in the right to education of the girl students' being negatively impacted due to a delay in deciding the issues.

To tackle this challenge, he mentioned that an application would be filed before the larger bench, once it is constituted, to hear the case expeditiously.

"Now, after the three-judge bench is formed, we will have to make an application before that bench to hear this matter out of turn a little expeditiously. Just now, they are suffering. That is, those girls who do not want to give up their practice of wearing Hijab are suffering and their right to education is denied," he said.

Muchhala also said that while arguing the case, the appellants had anticipated that Justice Gupta would uphold the Karnataka High Court's decision.

"When we were arguing the matter before this bench, we had the feeling, rather anticipation that Justice Gupta will uphold the judgment...Justice Dhulia dissented from it and ultimately the matter has gone before a three-judge bench, because the manner in which Justice Gupta was putting queries, it became obvious that he is not in favour of setting aside the Karnataka High Court judgment."

The senior lawyer also said that he was never in favour of the case being referred to a nine-judge bench, since the students would keep suffering in such a scenario.

Senior Advocate Jaideep Gupta

Senior counsel Gupta shared that, in his personal opinion, the judgment rendered by Justice Dhulia was the better of the two. However, he underscored that neither would have much relevance now that the case would be placed before a different bench.

"But then every judgment of the Supreme Court is valuable because later benches can be shown the judgment and persuaded to accept some parts of it."

Commenting on the challenge that this split verdict would pose for the students, he said that they ought to request the Chief Justice of India to constitute the fresh bench immediately.

"If I were advising the students, I would tell them to take it to the Chief Justice of India and say that you have to constitute the next bench immediately. It is in their interest that it should be disposed of quickly," Gupta said.

Senior Advocate Anjana Prakash

The senior counsel asked whether it was for the Court to decide between an essential religious practice and a cultural practice.

"About this essential religious practice, why did the High Court go into it? It's like saying married women should be wearing a bindi, vermillion and hair parting: whether it is an essential religious practice or cultural practice? Is it for the courts to deal with it?" she wondered.

Prakash said that the only relevant issues were the ones highlighted by Justice Dhulia, and that it was unwarranted for the High Court to spend so much time on other issues.

Further commenting on Justice Gupta's emphasis on the importance of uniformity in educational institutions, she stressed that even when one wore a prescribed uniform, there were usually many variations.

"I don’t understand, in any case there is a uniform. Even for lawyers, there are all kind of dresses, even though they stick to the basics of black and white."

Senior Advocate Yatin Oza

While critiquing the observation made by Justice Gupta in his judgment which states, “permitting one religious community to wear their religious symbols would be antithesis to secularism," Oza said that the restriction could not be limited in its application only to one religion.

"In my humble and respectful opinion, and at all not commenting on the merits of the judgment, it would mean that no Sikh student can be permitted to put a turban on his head, no Hindu student can be permitted to put Tilak on his forehead, no Christian student can wear a cross. Inasmuch as plain reading of the judgment leads to only one conclusion as stated above to the best of my understanding. If the ratio has to be applied the restriction can’t be limited in its application and enforcement to only one religion. If the ratio of the judgement is strictly applied than wearing of Dhoti(loincloth)or Pagdi(that one puts on his head) being a symbol of his religion will also be banned. In good old days several Hon’ble Judges use to wear Dhoti &/ or Pagdi while sitting on the Dias. Putting a Tilak on the forehead as I do everyday is also an identity of my religion for which I am proud of, having said that I add that my respect for other religion is equal," he further explained.

Former Chief Information Commissioner of India Wajahat Habibullah

Habibullah opined that this issue was less one of law, and more one of social practice. He added that it had more to do with a woman’s right to dress the way she wishes.

"My own view is that it is not really a decision that can be made on the basis of law...this is a question of tradition and a woman’s right to dress the way she wishes, which is of course a legal right. She can’t be forced by her parents to wear the Hijab and at the same time, if she wants to wear it, the school cannot force her not to wear it."

Advocate Nikhil Mehra

Mehra took a negative view of the argument made that wearing of the Hijab is a choice.

"All religions have their regressions and those are all attacked. For example, in the context of Hinduism, caste is a major regression and that is attacked through the Constitution itself. There is no bigger mea culpa of caste than the Constitution," he elaborated.

In his opinion, the law had to step in where the value of an established practice was incompatible with human society.

"Especially because it’s a narrowly tailored law. We’re not imposing a law that in every single public space, everywhere in the country, the Hijab is banned."

He further said that to simply speak of choice would overrun the power of a school to make rules regarding uniform and would essentially say that a school cannot even have a uniform tomorrow.

"That, to me, seems a logical fallacy."

Commenting on the effect this decision would have on the girl students, Mehra said that he had no sympathy for the students if the allegations relating to the acts being motivated by the Popular Front of India's movement were true.

"One of the arguments that came in the Karnataka High Court was that this is a newly asserted practice and one of the allegations made was that you had a northward movement of PFI activists from Kerala through South Karnataka and they have tried to introduce this as an assertion of harder Islamic identity...

...IF that’s the case, I have no sympathy whatsoever because then you have actively chosen to side with co-religionists on a religious issue and bring it into the secular space and when a secular rule bites back at you, I will have no sympathy for that," he said.

For now, he said there was a very simple solution:

"Don’t wear a Hijab, go to school, you are perfectly fine."