New Delhi: After Supreme Court's split verdict on the Karnataka Hijab matter, the All India Bar Association (AIBA) on Thursday requested the Chief Justice of India that the case be referred to a larger bench of minimum five judges including one Muslim Judge in Supreme Court.
A two-member bench of the Supreme Court comprising Justice Shudhanshu Dhulia and Justice Hemant Gupta while hearing the matter Thursday differed in their opinion regarding the ban on Hijab pronounced by Karnataka High Court.
The case has been referred to Chief Justice of India UU Lalit for final hearing. In a letter to CJI, Dr Adish C. Aggarwala, Senior Advocate and Chairman of AIBA, has pointed out that the then Chief Justice N.V. Ramana "erred in constituting the bench which included Justice Hemant Gupta who was to retire on 16.10.2022 and Justice Sudhanshu Dhulia who was recently appointed to Supreme Court on 9.5.2022”.
“I may point out that Judges were not having a 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”. Justice Dhulia said in his judgment today that “the court (High Court of Karnataka – added for clarification) 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.” “Due to shortage of time, it has been overlooked by Justice Sudhanshu Dhulia that Muslim students, in Karnataka High Court took the plea that “Hijab is part of the essential religious practice in Islamic faith,” the AIBA said in the letter.
Also read: Hijab stalemate continues as two-member bench of SC differ on their opinion
“Justice Dhulia took a diametrically opposite view and struck down the High Court verdict. I was fully aware that the present Bench will be not in a position to adjudicate the issue due to shortage of time, I have not intervened in the matter in Supreme Court although I intervened before the High Court of Karnataka”, said Dr Adish C. Aggarwala, who was also Vice Chairman of Bar Council of India and Supreme Court Bar Association.
“In the fairness of the matter, it is humbly prayed that the Hijab matter be referred to a larger bench of 5 senior Judges including one Muslim Judge in the Supreme Court as this issue is the most important matter for all citizens of India,” Aggarwala said. He further said 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 Hijab matter.
“While constituting the Bench, the Bench be advised to hold day-to-day hearing as Justice Nazeer is to retire on 4.1.2023. The world is watching the Supreme Court of India as it is a torch bearer in protecting India's democracy,” he added. In his judgement today, Justice Hemant Gupta upheld the ban verdict of Karnataka High Court and said, “In my order there are 11 questions framed. I have answered all the questions against the appeals. I am proposing to dismiss the appeals”.
However, Justice Sudhanshu Dhulia allowed all the appeals and set aside the judgment of the Karnataka High Court. “The main thrust of my judgment is that the entire concept of essential religious practice was not essential to the dispute. The High Court took the wrong path. It is ultimately a matter of choice and Article 14 and 19,” Dhulia said.
“It is a matter of choice, nothing more and nothing less. The foremost question in my mind was the education of the girl child. Are we making her life any better? That was a question in my mind,” Dhulia added.
