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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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The Supreme Court has ordered States and their police forces to stop prosecuting free speech on social media under Section 66A of the Information Technology Act which was declared unconstitutional by the court in a judgment seven years ago.

What did Section 66A do?

• Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
• Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
• It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

Why was the law criticized?

• The problem was with the vagueness about what is “offensive”.
• The word having a very wide connotation was open to distinctive, varied interpretations.
• It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

So, how did 66A come under the Supreme Court’s scrutiny?

• The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
• The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
• The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
• The petition was filed by Shreya Singhal, then a 21-year-old law student.

What were the grounds for the challenge?

• The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
• The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
• Most of the terms used in the section had not been specifically defined under the Act.
• The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

What did the Supreme Court decide?

• In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
• Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
• The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
• The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
• Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.

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