The division bench of the Supreme Court, comprising of Justice Hemant Gupta and Justice Sudhanshu Dhulia, on Thursday passed split judgment on a set of appeals filed by Muslim girl students challenging the Karnataka Government Order banning hijab in college campuses.

Justice Hemant Gupta upheld the Karnataka High Court decision on hijab not being an essential practise of Islam, maintaining the ban on hijab in state educational institutions. He stated that "There is a divergence of opinion. I have held against the appellant. I dismiss the appeal.” In his judgment, Justice Gupta framed 11 questions and answered them.

However, Justice Sudhanshu Dhulia, expressing his dissenting opinion, overturned the Karnataka High Court decision, declaring that the central issue in the case revolved around the Right to Choose and Articles 14 and 19. "The High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19. It is a matter of choice, nothing more and nothing less," Furthermore, he also held that the entire concept of essential religious practise was irrelevant to the dispute and emphasised on the education of the girl child. "Are we making her life any better? That was a question in my mind... I have quashed the Government Order of February 5 and have ordered the removal of the restrictions... I have held that the judgement in Bijoe Emmanuel squarely covers the issue."

Consequently, due to divergent opinions, the matter is placed before the Chief Justice of India for appropriate directions.

Arguments before the Supreme Court

The appellants contented before the Supreme Court that this was a case of the state failing to provide reasonable accommodations for a student exercising her rights under Articles 19 and 21. The appellants also contended that the government order discriminated on the basis of religion and gender.

While the Solicitor General of India, Tushar Mehta, and Attorney General of Karnataka, Prabhuling Navadgi, appearing on behalf of the state, said that the order is "religion-neutral" and does not target any specific community. The court was also informed that the female Muslim students contesting the hijab ban never wore hijab to school until 2021.

Some of the major issues, among others, that were dealt with by the bench during the hearing are:

Whether the matter has to be referred to a larger bench in view of the pendency of the Sabarimala reference?

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?

Whether the February 5 Government Order can be justified on the grounds of reasonable restrictions under Article 19(2)?