Split: The key points raised by Justice Gupta while upholding the hijab ban

New Delhi, Oct 13: The Supreme Court differed on whether Karnataka's ban on the hijab in classrooms should stay in force or go. With the decision split, the matter will be decided by by a larger judge of the Supreme Court.

Justice Hemant Gupta who backed the ban raised 11 questions in his order and they include:

• Whether the appeal should be referred to a Constitution bench
• Whether colleges can decide on the uniform of students
• Whether wearing the hijab and restricting it violates the freedom of religion (Article 25)
• Whether Article 25 and Article 19 (Freedom of speech and expression) are mutually exclusive
• Whether the Karnataka ban infringes upon fundamental rights
• Is wearing the hijab a part of essential practice under Islam?
• Whether the government order serves the purpose of access to education

After raising these points, he said, I dismiss the appeal.

Justices Hemant Gupta and Sudhanshu Dhulia had reserved the order following a marathon ten day hearing. The students had filed an appeal against the HC order which had held that prohibition on hijab in classrooms was a reasonable restriction and that hijab was not essential religious practice in Islam.

Justice Dhulia said that wearing of hijab is a matter of choice. What weighed on my mind is whether we are making a girl student's life better by putting such restrictions when her education is concerned, Justice Dhulia said. He also quashed the order of the state government and removed the ban on wearing hijab.

In view of the divergence of opinion, the matter has to be placed before the Chief Justice of India for appropriate directions. The matter will now be heard by a larger Bench following a decision by the CJI.

Justice Gupta rejected the 26 appeal filed against the verdict of the High Court. Justice Dhulia however said that the High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19. It is a matter of choice, nothing more, nothing less.

"Are we making her life any better? That was a question in my mind.I have quashed the Government Order of February 5 and have ordered the removal of the restrictions. I have held that the judgment in the Bijoe Emmanuel case squarely covers the issue, Justice Dhulia also said.

Justice Gupta in his divergent verdict framed eleven questions. He held that wearing of hijab is not part of essential religious practice under Islam and the State Government order serves purpose of access of education.