The challenge in the batch of petitions (involving Special Leave Petitions filed before the Hon’ble Supreme Court was mounted against Judgment and Order dated 15.03.2022 (“Impugned Order”) passed by the Hon’ble High Court of Karnataka (“Hon’ble High Court”) in Writ Petition bearing No. 2146 of 2022, wherein the Hon’ble High Court dismissed batch of writ petitions which were filed inter alia challenging the Government Order dated 05.02.2022 bearing number EP14 SHH 2022 (hereinafter referred to as “Government Order”).
The main contention of the Petitioners was that the restrictions imposed by the school authorities in not permitting the Petitioners to wear hijab inside their classrooms amounts to a violation of their fundamental rights given to them under Article 19(1)(a) and Article 25(1) of the Constitution of India as well as under Articles 14 and 21 of the Constitution.
The Hon’ble High Court framed the following questions of law, in the Impugned Order:
a. Whether wearing hijab/headscarf is a part of Essential Religious practice in Islamic Faith protected under Article 25 of the Constitution.
b. Whether prescription of school uniform is not legally permissible, as being violative of petitioners’ Fundamental Rights inter-alia guaranteed under Article 19(1)(a), (i.e., freedom of expression) and 21 (i.e., privacy) of the Constitution.
c. Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further is manifestly arbitrary and therefore violates Article 14 and 15 of the Constitution?
d. Whether any case is made out in Writ Petition Number 2146 of 2022 for issuance of a direction for initiating disciplinary enquiry against Respondent No. 6 to 14 and for issuance of a Writ of Quo Warranto against Respondent No. 15 and 16?

What SC held
The Supreme Court vide its final judgement and order dated 13.10.2022 (“Judgement”), delivered a split verdict on the batch of petitions challenging the Impugned Order [lead matter being Aishat Shifa vs. State of Karnataka (C.A. No. 7095/2022)].
While Justice Hemant Gupta dismissed the appeals challenging the Karnataka High Court order, Justice Sudhanshu Dhulia allowed them.
While dismissing the batch of petitions, Justice Hemant Gupta inter alia observed that the Government Order cannot be said to be against the ethics of secularism or to the objective of the Karnataka Education Act, 1983.
While allowing the batch of petitions, Justice Sudhanshu Dhulia inter alia observed that “ asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India…”

Grounds of challenge
The challenge to the Impugned Order was inter alia mounted on the following grounds:
a. No question of essential religious practice involved. Wearing or not wearing a hijab is simply a matter of choice and not a matter of essential religious practice.
b. No whisper of suggestion in the Impugned Judgment as to how wearing ‘Hijab’ contravenes equality, unity or disturb public order.
c. The act prohibiting the use of headscarf/hijab is “manifestly arbitrary”.
d. A case of indirect discrimination
e. Choice of appearance and apparel are also aspects of the right of privacy.
f. Wide ramification not limited to the State of Karnataka

Summary of the findings
I. The key issues dealt with by Justice Hemant Gupta are provided in Para of the judgement (most reiterated herein for the sake of brevity). The summary of the findings on those key issues, is as under :

Reference to larger bench rejected
At the outset, it was observed that the issue in the present matter was whether the students can enforce their religious beliefs in a secular institution? It was observed that the issues raised do not become a substantial question of law as to the interpretation of the Constitution only for the reason that the right claimed by the Petitioners is provided under the Constitution. Hence, reference to a larger bench was rejected.
The issue in the present matter was whether a religious practice, which may be an essential religious practice, can be regulated by the State in a secular institution. Therefore, tagging of the present batch of petitions with Kantaru Rajeevaru (Sabarimala Temple Review-5J.) v. Indian Young Lawyers Association & Ors. is not necessary.
The argument that the present appeals involve a substantial question of law as to the interpretation of the Constitution, and thus should be referred to the Bench of Five Judges in terms of Article 145(3) of the Constitution was considered as not tenable.
Constitution of the college development committee does not contravene any of the provisions of the Act or the Rules made thereunder or that the regulation of uniform by such committee is beyond its scope
State Government has the power to constitute a College Development Committee by notification dated 31.1.2014 in terms of Section 143 of the Act. The State Government could confer its power to be exercised by such office/authority subordinate to the State Government. The Government Order contemplates that the prescribed uniform should be followed. It necessarily excludes all religious symbols visible to naked eye. The argument that the students wear Rudraksha or a Cross is mentioned only to deal with an argument so raised. Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the Government Order issued. Therefore, it was held that constitution of the college development committee does not contravene any of the provisions of the Act or the Rules made thereunder or that the regulation of uniform by such committee is beyond its scope.
The right under Article 19(1)(a) as a right of expression to dress as per one’s own will, is also subject to reasonable restrictions under Article 19 (2). The State has not put a restriction on the exercise of right conferred under Article 19(1)(a) but has regulated the same in a manner that during the school hours on working days and in the class, the students shall wear the uniform as prescribed. Since it is a regulatory provision for wearing of uniform, hence, the decision of the State Government mandating the College Development Committee to ensure the students wear the uniform as prescribed does not violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14. The College Development Committee is constituted in terms of the statutory provisions and, therefore, the direction of the State that the College Development Committee shall ensure that the students wear the dress as prescribed cannot be said to be violative of Part III of the Constitution.

Government Order not violative of rights guaranteed under Article 21 of the Constitution
The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules.
The headscarf is not permitted in the school for the students who are studying in Class 10+1 or 10+2. The students have many years ahead of them where they can carry on their religious faith but the Government Order mandating wearing of uniform cannot be faulted with since the object is in tune with the principles of the Constitution.
II. The summary of the findings of Justice Sudhanshu Dhulia, is as under :

The question of
Essential Religious Practices was not at all relevant in the determination of the present dispute
When protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP.
It was further observed that the approach of the Hon’ble High Court could have been different. Instead of straightaway taking the ERP route, as a threshold requirement, the Court could have first examined whether the restriction imposed by the school or the G.O on wearing a hijab, were valid restrictions? Or whether these restrictions are hit by the Doctrine of Proportionality in Bijoe Emmanuel and Ors. vs State of Kerala and Ors.
Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.
Courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other. The Courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed.
Violation of right to privacy and the fundamental right guaranteed under Article 19(1)(a) and 21 of the Constitution of India
Comparison of a school with a war room or defense camp, seems odd, to say the least. Schools are not required to have the discipline and regimentation of a military camp. School is a public place, yet drawing a parallel between a school and a jail or a military camp, is not correct.
Asking a pre university school girl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the fundamental right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacyshe carries in her person, even inside her school gate or when she is in her classroom. It is still her Fundamental Right, not a “derivative right” as has been described by the High Court.
One of the best sights in India today, is of a girlchild leaving for her school in the morning, with her school bag on her back. She is our hope, our future. But it is also a fact, that it is much more difficult for a girl child to get education, as compared to her brother. In villages and semi urban areas in India, it is commonplace for a girl child to help her mother in her daily chores of cleaning and washing, before she can grab her school bag.
The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child. This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would therefore put before itself is also whether we are making the life of a girl child any better by denying her education, merely because she wears a hijab!
A girl retains her fundamental rights to dignity and privacy, even when she enters the school gate.

Matter of choice
Under the Constitutional scheme, wearing a hijab should be simply a matter of choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.
The unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!

What’s next?
Since, a split verdict is delivered by the Hon’ble Supreme Court, the matter will now be placed before Hon’ble the Chief Justice of India for further directions. Until further directions are issued by Hon’ble the Chief Justice of India, staus quo will be maintained in terms of the directions issued by the High Court in the Impugned Order.
Split verdicts can happen when the Bench has an even number of judges. The reference to a larger Bench usually comprises three Judges. If the case involves an important or ‘substantial’ question of law it can be placed before a Constitution Bench comprising five or more Judges.
Since, the judgement revolves around crucial constitutional questions relating to the fundamental rights including right to privacy, rights under Article 19(1)(a) and 21 of the Constitution of India, there is a likelihood of the matter been referred to a constitutional bench, subject to the directions of the Chief Justice of India.