Published: 14th October 2022
Constitute five-judge bench to consider hijab issue, include one Muslim judge: Bar Association writes to CJI
The AIBA claimed that Justice Dhulia, who set aside the K'taka High Court verdict on hijab ban, had overlooked the fact that the petitioners claimed it was an essential religious practice under Islam
The All India Bar Association (AIBA) has written a letter to Chief Justice of India (CJI) UU Lalit, requesting that the hijab case be transferred to a larger bench of at least five judges, including a Muslim judge, in the Supreme Court.
The letter, written by Dr Adish C Aggarwala, Senior Advocate and Chairman of AIBA, claimed that the then Chief Justice, NV Ramana, erred in constituting the Bench which included Justice Hemant Gupta, who is to retire on October 16, 2022, and Justice Sudhanshu Dhulia, who was recently appointed to Supreme Court on May 9, 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," said Aggarwala, according to a report by ANI.
Senior Advocate Aggarwala further quoted the Supreme Court judgment stating, "Justice Dhulia said, in his judgment, that 'The court (High Court of Karnataka) 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'." He claimed that it was a shortage of time that caused Justice Dhulia to over look the fact that the Muslim students who pleaded the High Court against the state government's ban on the hijab in educational institutions said that the hijab was an essential religious practice in the Islamic faith.
"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 the Supreme Court, although I intervened before the High Court of Karnataka," said Dr 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 five senior judges, including one Muslim judge in the Supreme Court, as this issue is the most important matter for all citizens of India," he added.
"If Justice S Abdul Nazeer declines to be in the Bench, then the 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 a day-to-day hearing as Justice Nazeer is to retire on January 4, 2023. The world is watching the Supreme Court of India as it is a torchbearer in protecting India's democracy," said the AIBA, in a statement to the press.