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Supreme Court split on hijab ban

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New Delhi, Oct 13: The Supreme Court today delivered a split verdict on pleas that challenged a judgment of the Karnataka High Court which had upheld the ban on hijab in educational institutions.

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.

Supreme Court split on hijab ban

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.

Hijab protests: India’s role in ensuring gender equality Hijab protests: India’s role in ensuring gender equality

"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.

The petitioners argued that preventing Muslim girls from wearing the hijab in the classroom will put their education in jeopardy as they may stop attending classes. It was also argued that the matter be referred to a five-judge Bench.

On March 15, the Karnataka High Court had rejected petitions filed by a section of Muslim students seeking permission to wear hijab inside classrooms. The court had stated that wearing of hijab was not essential religious practice in Islam.

The High Court order:

The three judge Bench of the High Court said, "firstly, we are pained by the ongoing agitations and closure of educational institutions since the past few days, especially when this Court is seized off this matter and important issues of constitutional significance and of personal law are being seriously debated.

It hardly needs to be mentioned that ours is a country of plural cultures, religions and languages. Being a secular State, it does not identify itself with any religion as its own, the Bench said.

Every citizen has the right to profess and practise any faith of choice, is true. However, such a right not being absolute is susceptible to reasonable restrictions as provided by the Constitution of India.

Whether wearing of hijab in the classroom is a part of essential religious practice of Islam in the light of constitutional guarantees, needs a deeper examination, the court also said.

Ours being a civilised society, no person in the name of religion, culture or the like can be permitted to do any act that disturbs public peace and tranquility. Endless agitations and closure of educational institutions indefinitely are not happy things to happen, the Bench noted.

The hearing of these matters on urgency basis is continuing. Elongation of academic terms would be detrimental to the educational career of students especially when the timelines for admission to higher studies/courses are mandatory. The interest of students would be better served by their returning to the classes than by the continuation of agitations and consequent closure of institutions. The academic year is coming to an end shortly. We hope and trust that all stakeholders and the public at large shall maintain peace and tranquility, the Bench said.

In the above circumstances, we request the State Government and all other stakeholders to reopen the educational institutions and allow the students to return to the classes at the earliest. Pending consideration of all these petitions, we restrain all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders, the Karnataka High Court said.

We make it clear that this order is confined to such of the institutions wherein the College Development Committees have prescribed the student dress code/uniform, the Bench said.

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