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Synopsis

While pronouncing the spilt verdict on the hijab matter, Justice Hemant Gupta and Justice Sudhanshu Dhulia had dissenting opinions. Where Justice Gupta, upheld the impugned Government Order, and the Karnataka High Court judgment restricting wearing of Hijab in pre-university institutions in the state of Karnataka.

Justice Hemant Gupta drafted 11 questions, to which he answered in negation. Therefore, dismissing the appeal, holding hijab as not an essential religious practice that impinges on the fundamental rights. 

On the question of freedom of conscience and free profession, practice and propagation of religion with respect to hijab, and it being an essential religious practice, mandated by Quran, Justice Gupta opined,

"The Constitution has negatively worded Article 25(2). Article 25(2)(a) gives primacy to laws made by competent legislature for regulation of secular aspects and Article 25(2)(b) gives primacy to 'social welfare' and 'reform'. In other words, if the State seeks to regulate the economic, political, financial or other secular aspects connected with religion, the State law is to have primacy over the proposed right. Similarly, if a particular practice/belief/part of any religion is in existence and is found to be subjected to either 'social welfare' and 'reform', such right will have to give way to 'social welfare' and 'reform'".

Further that "it is reiterated that Article 25(2) being negatively couched is clearly an enabling provision which provides the power to the State in the matters mentioned therein. The said provision does not curtail or restrict the otherwise positive right under Article 25(1) in the absence of any intervention by the State in the nature of legislative or executive power". 

Justice Gupta was also of the opinion that in the matters of campus discipline of the educational institutions, the Court does not substitute its own views to school authority's except in a case of manifest injustice or to interfere with a decision which does not pass the test of Wednesbury reasonableness.

He opined that the Government Order ensured unifromity amongst the students and held, "restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1)".

It is to be noted that, today, a division bench of the Supreme Court consisting of Justices Hemant Gupta and Sudhanshu Dulia delivered a split verdict in a batch of pleas challenging the ban imposed on wearing of hijab in pre-university institutions in Karnataka.

While Justice Gupta held that Hijab is not an essential religious practice that impinges on the fundamental rights, Justice Dhulia overturned the Karnataka High Court verdict while adding, "that a girl child already has a lot of problems that she faces in the rural India. The question in my mind is, whether we are making her life difficult".

CASE TITLE: Aishat Shifa vs. State of Karnataka