The Supreme Court has delivered a split verdict in the Karnataka hijab ban case with one of the two judges on the Bench upholding the March 15 order of the Karnataka HC validating the government’s ban, and the other set aside the HC ruling.

What lies next?

• With the divided bench, the matter has now been directed to be placed before Chief Justice of India (CJI).

What is a Split Verdict?

• A split verdict is passed when the Bench cannot decide one way or the other in a case, either by a unanimous decision or by a majority verdict.
• Split verdicts can only happen when the Bench has an even number of judges.
• This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches — known as Division Benches — are not uncommon.

After the verdict

• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
• In the case of the hijab verdict, the CJI, who is the ‘master of the roster’, will constitute a new, larger Bench to hear the matter.

Earlier cases with a split verdict

• In May, a two-judge Bench of the Delhi HC delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
• Justice Rajiv Shakdher held that the exception under Section 375 (which deals with rape) of the IPC is unconstitutional, while Justice C Hari Shankar held that the provision is valid.

About the ‘split’ ruling

• While Justice Hemant Gupta dismissed the appeals challenging the Karnataka High Court order, Justice Sudhanshu Dhulia allowed them.
• In his judgment, Justice Dhulia referred to the Bijoe Emmanuel case, saying it “squarely covers the issue”.

What is the Bijoe Emmanuel verdict?

• The Bijoe Emmanuel case came before up a Bench comprising Justices O. Chinnappa Reddy and M M Dutt in 1986.
• The court granted protection to three children of the Jehovah’s Witness sect who did not join in singing the national anthem at their school.
• The court held that forcing the children to sing the national anthem violated their fundamental right to religion.
• V J Emmanuel, the father of the children pleaded with the court that for the Jehovah’s Witnesses, only Jehovah should be worshipped.
• Since the anthem is a prayer, the children would stand up in respect when it was playing. However, their faith did not allow them to sing it.
• The Supreme Court had said that while the Kerala HC had examined whether or not the national anthem contained any word or thought, which could offend anyone’s religious susceptibilities, it had misdirected itself as that was not the question at all.

Why the hijab case should be heard by a larger Bench?

First and foremost, the matter should be heard by a larger Bench preferably 5 judges as-

• It has to be decided whether the right to practice religion can intertwine with the right and autonomy of educational institutions to decide their uniform.
• While private institutions have the autonomy to decide on the uniform, the court needs to study and decide whether such issues should be looked at in a uniform manner.
• Considering the complexities of the matter which also involves several issues such as female dignity, freedom of expression, and the school’s right to decide on the uniform.
• A Constitution Bench would also have the right to re-examine the Emmanuel verdict which was delivered by a two-judge Bench.

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