Justices Hemant Gupta and Sudhanshu Dhulia of the Supreme Court of India (SCt) Thursday delivered a split decision in a case concerning the prohibition of hijabs in educational institutions. Justice Gupta upheld the ban and dismissed all the appeals to the Karnataka High Court (HCt). Justice Dhulia allowed all the appeals, set aside the Karnataka HCt judgment and held that the entire concept of essential religious practice was not essential to the matter.

In February, the Karnataka Government issued a Government Order (GO) prohibiting hijabs in educational institutions. The GO was challenged before the Karnataka HCt. In March, the HCt ruled that wearing a hijab did not qualify as an “essential religious practice,” and the ban did not violate the freedom of speech and expression and other fundamental rights. The HCt decision was appealed before the SCt. The SCt identified the following issues: (1) whether hijab is an essential religious practice in Islam; (2) whether the right to wear hijab can be claimed as part of freedom of expression under Article 19(1)(a) and part of right to privacy and dignity under Article 21; and (3) whether the GO can be justified on the grounds of reasonable restrictions under Article 19(2).

Justice Gupta stated that the practice of wearing of hijab may be a religious practice, an essential religious practice or a social custom for the women of Islamic faith. Gupta further stated that:

The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds.

On the issue of violation of fundamental right of religion, Gupta believes “the ban on wearing hijabs doesn’t violate religious freedom as the freedom is subjected to social welfare and other rights. The religious belief can’t be carried to a secular educational institutional funded by state.”

Dhulia argued that the question of essential religious practices was not relevant in this dispute and left the question of what actually constitutes an essential religious practice to the 9-judge bench in a pending case. Dhulia stated that “asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity” and is a clear violation of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. Dhulia also argued that the foremost concern in the case is the education of girls, saying:

The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child. This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would therefore put before itself is also whether we are making the life of a girl child any better by denying her education, merely because she wears a hijab!

The split renders these hearings inconclusive, and the matter will go to the Chief Justice to decide next steps.