Supreme Court verdict on Karnataka hijab row: What is the Bijoe Emmanuel case that Justice Dhulia referred to?

The Supreme Court on Thursday delivered a split verdict on the ban on hijab in Karnataka’s educational institutions and referred the matter to the Chief Justice of India for constituting a larger bench. 

While Justice Hemant Gupta dismissed the appeals against the March 15 verdict of the Karnataka High Court that had refused to lift the ban and held that hijab is not part of "essential religious practice" in Islamic faith, Justice Sudhanshu Dhulia allowed the pleas and observed that it is ultimately a "matter of choice".

While pronouncing his judgement, Justice Dhulia said the high court had probably taken a "wrong path" and that the Bijoe Emmanuel case “squarely covers the issue”. 

"The main thrust of my judgment is that this entire concept of essential religious practices, in my opinion, was not essential for the disposal of the dispute. And the court probably took wrong path there. It was simply a question of Article 19(1) (a), its applicability and Article 25(1) primarily. And it is ultimately a matter of a choice, nothing more, nothing less. I have also held the ratio laid down by the Supreme Court in the case of Bijoe Emmanuel squarely covers the issue," he said.

Justice Dhulia said while deciding this case, the education of girl child was on his mind. "It is common knowledge that already a girl child primarily in rural areas and semi-urban areas has a lot of difficulties to face," he said, adding, "So are we making her life any better, that was also in my mind". 

He stated that "by asking girls to take off hijab before they enter school gates is an invasion on their privacy, then an attack on their dignity and ultimately a denial to them of secular education; violative of Article 19(1)(a), 21& 25(1)."

The Bijoe Emmanuel verdict

VJ Emmanuel, a resident of Koodalloor in Kottayam in Kerala, approached the Supreme Court after the NSS High School Kidangoor suspended his three children for not obeying to sing the National Anthem.

Emmanuel, his wife and their seven children followed international religious sect ‘Jehovah’s Witnesses’. He was an English professor at KE College in Kottayam, and moved to Koodalloor after marrying Lillykutty in 1967. 

According to ‘Jehovah’s Witnesses’, the teachings stress strict separation from secular government. Although they are law-abiding citizens, they refuse on biblical grounds to observe certain laws. They do not salute the flag of any nation; they refuse to perform military service; they do not participate in elections.

Matrabhoomi, the popular daily in Kerala, had quoted Emmanuel’s elder son Bijou (student of Class 10 then) saying that the school to which he and his two brothers -- Binumol (Class 9) and Bindu (Class 5) -- went to, had no rule of singing the National Anthem when his elder sisters were studying there. 

Bijoe said they had made their stand clear that they would stand in attention to pay respect to the National Anthem.

His father first approached the single bench of the Kerala High Court but it found “disrespect” in their action. The high court division bench upheld the order, but in 1985, the Supreme Court questioned the order of the high court and issued an interim order. 

In August 1986, a Supreme Court bench of Justices O Chinnappa Reddy and M M Dutt had, in Bijoe Emmanuel & Ors vs State Of Kerala & Ors, granted protection to the three children. It also held that forcing the children to sing the anthem violated their fundamental right to religion.

The court had also said that while the Kerala High Court in the matter had examined whether or not the national anthem contained any “word or thought… which could offend anyone’s religious susceptibilities”, it had “misdirected itself”, because “that is not the question at all”.

The Supreme Court also made other significant remarks on freedom of speech and expression and the right to practise and propagate one’s religion. 

“Article 25 [right to practise and propogate your religion] is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to be borne in mind in interpreting Art. 25,” the court had said.

The SC also said that “our tradition teaches tolerance; our philosophy preaches tolerance; our constitution practises tolerance”.

“We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand up respectfully when the Anthem is sung, is a violation of their Fundamental Right to freedom of conscience and freely to profess, practise and propagate religion…