Idgah case and hijab ban: A look at Supreme Court’s split verdicts

A two-judge bench of Justice Hemant Gupta and Sudhanshu Dhulia delivered a split verdict on the Karnataka hijab ban. This wasn’t the first time the two-judge bench couldn’t reach a consensus on a matter.

The Supreme Court pronounced a split verdict in the hijab ban case on Thursday (Photo: File/Representative)

By Srishti Ojha: Thursday’s split verdict from the Supreme Court on the ban on hijab in educational institutions in Karnataka has resulted in no final say on the issue.The 26 petitions will now be heard by a larger bench, which will reconsider the matter.

A split verdict is when a unanimous decision cannot be reached by the judges on a bench owing to divergence in their opinions.

In the event of a split verdict between a division bench, as in the present case, the matter is referred to a larger bench for consideration after it is placed before the Chief Justice of India (CJI) for constitution of a bench.

Accordingly, the present case will now be placed before the CJI on the administrative side to constitute a larger bench. The said bench would hear the arguments once again and decide crucial questions in the case, including those pertaining to the interpretation of Constitution provisions, essential religious practices, etc.

While an eventuality of a split verdict is a delay in resolution of the dispute at hand, it also ensures proper consideration of the case by another bench, especially when it involves crucial questions pertaining to interpretation of legal provisions.

Justice Sudhanshu Dhulia, in his judgement in the Hijab case, has himself said that split verdicts and discordant notes do not resolve a dispute and that finality is not reached.

“…finality is good, but justice is better,” said Justice Dhulia, quoting Lord Atkin.

It is interesting to note that it was the same bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia which couldn’t reach a consensus earlier this year in a petition regarding the celebration of Ganesh Chaturthi at Idgah Maidan in Bengaluru’s Chamarajapet. The matter was then also referred to a larger three-judge bench.

The case was then placed before the CJI, UU Lalit, who constituted a three-judge bench to hear the matter the same day owing to the urgency involved in the case.

The Supreme Court of India is not alien to split verdicts, and difference of opinion amongst judges and the bench being unable to reach a consensus in a case is not a novelty to the Supreme Court’s practice.

Here are some examples of split verdicts by Division benches in the recent past:

In the Delhi v. Centre dispute over control of services in the national capital, Justice AK Sikri and Justice Ashok Bhushan gave a split verdict with regard to powers to appoint and transfer Delhi government officers.

The bench, while resolving several other issues, had diverging opinions on the legislative competence of the Delhi Government in relation to ‘services’ in Entry 41 of List II of the Seventh Schedule of the Constitution.

The case was referred to a three-judge bench, and a bench led by CJI Ramana heard the case. In May this year, the court referred the case to a Constitution bench on an issue relating to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services”.

A constitution bench headed by Justice DY Chandrachud will now be hearing the arguments in this case.

Similarly, another Supreme Court bench comprising Justice Indira Banerjee and Justice JK Maheshwari were split on the question of whether court permission is needed to investigate a case under Section 23 of the Protection of Children Against Sexual Offences (Pocso) Act. The provision addresses the offence of disclosing the identity of the victim of a sexual offence.

While delivering the verdict in March 2022, the court was directed to place the case before the CJI for assignment before an appropriate bench. No bench has yet been constituted.

Justice Banerjee had opined that Magistrate’s permission was not needed for the police to investigate the offence under the said Pocso provision.

Justice Banerjee had held that the Pocso provision was incorporated to prevent disclosure of the victim’s identity and that it cannot be vitiated on the ground that prior permission of the magistrate should be obtained by the police to start an investigation.

Justice JK Maheshwari had a contradictory opinion whereby he held that in the absence of any procedure for investigation under the Pocso Act, either for cognisable or non-cognisable offences, the procedure prescribed in the CrPC ought to be followed in the matter of investigation, inquiry, and trial.

A case on the question of whether a Family Court has the jurisdiction to entertain a maintenance plea under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, also witnessed a split verdict in 2020.

Justice R Bhanumati and Justice Indira Banerjee differed in their opinions, with Justice R. Banumathi opining that the court has no jurisdiction and Justice Indira Banerjee opining that it has.

A three-judge bench was constituted, which disposed of the case without answering the jurisdiction question. While observing that the party has already availed itself of the alternative remedy, a three-judge bench led by Justice SK Kaul said that there is no point in now seeking to answer the reference before it.

In 2020, a 2-judge bench of the SC was unable to reach a consensus on the issue of whether an individual’s age or number of years served in a job would determine the basis of retirement when employment was before attaining majority. After a split verdict was delivered by Justices Indira Banerjee and Ajay Rastogi, the case was disposed of by a larger bench in September this year.

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