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Synopsis

The All India Bar Association has sought referral of the Hijab case to a larger bench of Minimum 5 Judges including one Muslim Judge after the split judgments on the Hijab issue.

Senior Advocate Dr. Adish C. Aggarwala, Chairman, AIBA in his letter to the Chief Justice of India UU Lalit said, "The world is watching the Supreme Court of India as it is a torch bearer in protecting India's democracy".

The letter has been written after the Supreme Court bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia today delivered a split verdict on the Hijab issue. While Justice Gupta upheld the ban on wearing of Hijab imposed by the PU College, Justice Dhulia set aside the order. In view of the above, the matter will now be referred to a larger bench after due consideration by CJI UU Lalit.

Dr Aggarwala in his letter pointed out that the then Chief Justice of India N.V. Ramana erred in constituting the bench which included Justice Hemant Gupta who was to retire on October 16, 2022, and Justice Sudhanshu Dhulia who was recently appointed to Supreme Court on May 9, 2022.

He said, "Judges were not having reasonable time to adjudicate the issue as it is evident from the fact that Justice Sudhanshu Dhulia’s main thrust of his judgment is that the concept of 'essential religious practice' was not essential for the disposal of the dispute".

Dr Aggarwala says that Justice Dhulia in his judgment stated that “the court (Karnataka High Court) probably took the wrong path. It was simply a question of Article 19(1)(a), its applicability and Article 25(1), primarily. And it’s ultimately a matter of choice, nothing more or nothing less.”

About the above, Dr Aggarwala said, "Due to shortage of time, it has been overlooked by Justice Sudhanshu Dhulia that Muslim students, in Karnataka High Court took the plea that 'Hizab is part of the essential religious practice in Islamic faith'. Justice Dhulia took a diametrically opposite view and struck down the High Court verdict".

He has requested for the Hizab matter to be referred to a larger bench of 5 senior judges including one Muslim Judge in the Supreme Court stating that this issue is the most important matter for all citizens of India.

Furthermore, considering that Justice S Abdul Nazeer is the only Muslim judge currently in the Supreme Court, Dr Aggarwala has stated, "If Justice S. Abdul Nazeer declines to be in the Bench, then CJI should mention this fact in the order constituting the Larger Bench to hear the Hizab matter."