The Karnataka government’s circular prohibiting students from wearing any religious clothing, including the hijab, in state-run schools and colleges was splitly upheld by a two-judge bench of the Supreme Court on Thursday, setting the stage for a new decision on the contentious matter by a bench of at least threee judges.

While Justice Hemant Gupta framed 11 questions and conducted a thorough analysis of the arguments from both sides in his 140-page decision to answer each question and refute the Muslim side’s pro-hijab argument, his colleague Sudhanshu Dhulia took a diametrically opposed stance on the main issues to hold that hijab is solely a matter of a girl student’s faith-driven choice that cannot be violated and would result in denial of education.

“In light of the divergent views expressed by the Bench, the subject be submitted before the Chief Justice of India for constitution of an appropriate bench,” the bench declared after handing down the fundamentally different rulings.

In the hijab case, the opinions of Justices Hemant Gupta and Sudhanshu Dhulia “respectfully” disagreed on fundamental constitutional issues like freedom of choice, the right to follow one’s religion, and fraternity.

The Karnataka government’s February 5 circular, upheld by a division bench of the high court, would remain in effect until the “appropriate bench,” which would be of at least three judges, began adjudication anew. State-run educational institutions would be justified in enforcing uniforms on students to bar those who might insist wearing hijab or saffron shawls, as happened before February 5.

The question of “whether students can enforce their religious conviction in a secular school” was the main topic of Justice Gupta’s remarks before his retirement on October 16. In order to test how the rights to equality (Article 14), freedom of expression and choice (Article 19), privacy and dignity (Article 21), and the right to follow one’s religion (Article 25) interact with the right of Muslim female students to wear the hijab in state-run educational institutions where uniforms are required, he divided his legal argument into 11 parts.

Justice Gupta defended the stringent enforcement of uniforms without additions or subtraction, saying, “In terms of uniforms, it was intended to guarantee uniform parity among the children. It was simply done to ensure uniformity and a secular learning atmosphere in the classrooms. This is in line with the constitutional right given by Article 14. Therefore, as outlined by the limitations of Article 25(1), limits on the freedom of religion and conscience must be construed concurrently with other Part III (basic rights) laws.”

According to him, no student will execute a religious duty at school; therefore, the state has the authority to forbid the wearing of the hijab on the grounds of a secular school. Justice Gupta stated, “The religious belief cannot be conveyed to a secular school funded with state monies.” He claimed that the government’s sole goal was to preserve uniformity through the use of required uniforms, which are made available to all students at no cost. According to him, “the requirement of uniforms does not infringe upon the right to freedom of expression; rather, it strengthens the right to equality under Article 1.”

Justice Gupta responded to the Muslim side’s claim that the constitutional principle of fraternity would be attained by permitting Muslim girls to wear the hijab and encouraging other students to practise tolerance and respect for other religions “Although fraternity is a noble goal, it cannot be understood solely through the lens of one community. It is a goal shared by all country residents, regardless of caste, creed, sex, or religion.”

“If fraternity is given a restrictive interpretation with respect to students identifying themselves with the religious symbols in the classroom, the constitutional purpose as arising from the Preamble will not be realised,” he stated.Justice Dhulia stated in his dissenting opinion that it was preferable for the constitutional court to speak with one voice because divided opinions do not put an issue to rest. He wrote a verdict that was completely at odds with Justice Gupta’s, paraphrasing Lord Atkin as saying that “finality is a wonderful thing, but justice is preferable.”

Whether or not the hijab is a fundamental religious practise, according to Justice Dhulia, is irrelevant for the resolution of this case because the focus is on the Muslim girls’ right to freedom of dress. He criticised the Karnataka High Court for going in the wrong direction and becoming unnecessarily involved in determining the significance of the hijab to Islam by citing verses from the Quran, and he claimed that the HC should have evaluated the circular according to the standard of the freedom of choice guaranteed by Article 19 of the Constitution.

Justice Dhulia relied solely on the Supreme Court’s 1986 ruling in the Bijoe Emmanuel case while making his decision, as is clear from Justice Gupta’s thorough analysis.In the Bijoe Emmanuel case, the SC overturned the expulsion of three Jehovah’s Witness girls for skipping the national anthem at school assembly, finding that they could not be deemed to have broken school rules because they stood in respect during the anthem.

Justice Dhulia argued that courts should not be used to settle theological disputes, such as whether or not wearing the hijab is an essential religious practise. “The current petitioners also don the hijab as a sign of their religious commitment. They concur that it is a component of both their social and religious practises. Therefore, in my opinion, the situation is fully covered by the Bijoe Emmanuel decision.”The petitioners’ only demand is the hijab! In a democracy, is it too much to ask? How does it violate morality, public order, or health? Or even decency or against any provision of Part III of the Constitution?” Justice Dhulia questioned, invalidating the Karnataka government’s circular from February 5. “How a female behaves does not appeal to my logic or reason,”

Justice Dhulia remarked: “It is first a breach of the girls’ privacy to require them to remove their hijabs before they enter the school gates, secondly it is an assault on their dignity, and finally it is a denial of them a secular education. Article 19(1)(a), Article 21, and Article 25(1) of the Indian Constitution are obviously violated by these.”

The unfavourable effect of the hijab limitation, he claimed, would be that “We would have prevented a girl child from going to school. a young girl for whom walking to the school gate is still difficult. Therefore, it is important to consider this instance from the standpoint of the difficulties a girl kid already has in getting to school. Another concern is whether depriving a girl child of an education because she wears a headscarf actually improves her lot in life.”

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