'A Matter Of Choice, Girls' Education Most Important Question' : Justice Sudhanshu Dhulia While Setting Aside Karnataka Hijab Ban

A two-judge bench of the Supreme Court on Thursday delivered a split verdict in the hijab ban case.While Justice Hemant Gupta upheld the Karnataka High Court verdict, Justice Sudhanshu Dhulia proposed to set aside the controversial Government Order passed by the State of Karnataka that effectively allowed college development committees to place a ban on the hijab in government colleges in the State. A batch of 23 petitions was filed in this connection, some of which were writ petitions placed directly before the Supreme Court, while others were appeals by special leave preferred against the judgement of the Karnataka High Court upholding the impugned order. However, the matter has been placed before the Chief Justice of India since the Division Bench, comprising Justices Hemant Gupta and Sudhanshu Dhulia, delivered a split verdict, with Justice Gupta moving to dismiss the appeals. Justice Gupta said – "In my order, I have framed 11 questions. The answers to all these questions, according to me, are against the appellants. I am proposing to dismiss the appeals. But before parting, I must thank all of the counsel who have assisted heavily on a subject which is not known to me." Justice Dhulia, however, expressed a different view. He predicated his decision on the primacy of choice. He said that the legality of the impugned order had to be tested on the touchstone of Articles 19(1)(a) and 25(1). He also noted that the High Court had erred by examining the essentiality of wearing the hijab. The doctrine of essential religious practice did not have to be invoked, Justice Dhulia asserted – "The main thrust of my judgement is that this entire concept of essential religious practices, in my opinion, was not essential for the disposal of this dispute. The High Court took the wrong path there…This 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, nothing less." He explained that the factor that weighed heavily with him while reaching this conclusion was the importance of the education of a girl child and the many "difficulties" faced by her, especially in rural and semi-urban areas. He acknowledged that girls had to carry the burden of unpaid care and domestic work, alongside their education. Justice Dhulia wondered whether the life of a girl child would be better by imposing an additional restriction on her – "But the thing that was most important in my mind while deciding this case was the education of a girl child. It's common knowledge that already a girl child, primarily in rural areas and semi-urban areas, has to face a lot of difficulties. She has to help her mother in daily chores, in cleaning and washing, before she goes to school. There are other difficulties as well. What I asked is are we making her life any better?" Therefore, disagreeing with his colleague on the Bench, Justice Dhulia said – I have allowed all the appeals and set aside the order of the Karnataka High Court. I have quashed the GO of February 5, 2022, and given directions for the removal of restrictions." Justice Sudhanshu Dhulia was elevated to the Supreme Court in May 2022. He formerly served as the Chief Justice of Gauhati High Court and a Judge of Uttarakhand High Court. Case Title Aishat Shifa v. State of Karnataka & Ors. [CA No. 7095/2022] and other connected mattersClick Here To Read/Download Judgment

'A Matter Of Choice, Girls' Education Most Important Question' : Justice Sudhanshu Dhulia While Setting Aside Karnataka Hijab Ban

Awstika Das

Are we making a girl's life any better with hijab ban? Justice Dhulia said he asked himself this question.

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