Justice Gupta’s ‘Secularism’ v/s Justice Dhulia’s ‘Choice’: Contradictions of both judges in hijab case

“There shall be no restriction on the wearing of hijab anywhere in school and colleges in Karnataka,” Justice Dhulia’s last line of judgement said.

In this report, we bring you critical observations from both judges, and how steeply contradictory their take on the Hijab case has been.

Brother judges disagree, and how!

From secularism to freedom of choice and the responsibility of a state-run public education institute towards students, both judges differed vehemently in their views.

In the 216-page judgement, Justice Hemant Gupta’s order ran into 140 pages.

While putting the onus of adhering to “uniform” as a means of a reasonable restriction on students, Justice Gupta insisted that allowing the hijab would be against the values of secularism in a state-run school.

He also opposed putting up this case before a Constitutional bench.

Highlights from Justice Hemant Gupta’s verdict: 

• As per the Constitution, secularism means that religion cannot be intertwined with any of the secular activities of the state. Any encroachment of religion in secular activities is not permissible.
• Secularism can be practised by adopting a completely neutral approach towards religion or by a positive approach, wherein. though the state believes in and respects all religions, it does not favour any.
• The Karnataka Education Act, 19839, under which the (GO) Government Order (restricting hijab) has been issued, was enacted to foster the harmonious development of the mental and physical faculties of students and cultivate a scientific and secular outlook through education.
• The constitution of the College Development Committee (CDC) is not in conflict with any of the provisions of the (Karnataka Education) Act. The state government could confer its power to be exercised by such an office or authority subordinate to itself.
• The sectarian approach, that certain students will carry their religious beliefs to secular schools run by the state, would be an antithesis of the mandate of the statute.
• All students need to act and follow the discipline of the school. Out of the many steps required to ensure uniformity while imparting education, one is to wear a uniform dress without any addition or subtraction.
• Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the Government Order issued. (In comparison to Rudraksha or a Cross being worn)
• The object of the GO was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution.
• The claim of the appellants is not to perform a religious activity in a religious institution but to wear a headscarf in a public place as a matter of social conduct expected from the believers of the faith. But students want to subjugate their freedom of choice of dress to be regulated by religion than by the state while they are in fact students of a state school.
• Equality before the law is to treat all citizens equally, irrespective of caste, creed, sex, or place of birth. Such equality cannot be breached by the state on the basis of religious faith.
• If a particular practice, belief, or part of any religion is in existence and is found to be subjected to either “social welfare” or “reform”, such right will have to give way to “social welfare” and “reform”.
• The faith or belief of a person is immaterial from the point of view of the state.
• The essential religious practices of the followers of the Sikh faith cannot be made the basis of wearing of hijab or headscarf by the believers of the Islamic faith.
• The interpretations by the believers of the faith about the wearing of the headscarf are the belief or faith of an individual.
• religious belief cannot be carried to a secular school maintained by state funds.
• Fraternity is a noble goal, but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country, irrespective of caste, creed, sex and religion.
• Some students wearing a headscarf in a secular school run by the state government would stand out and overtly appear different. The Constitutional goal of fraternity would be defeated if the students were permitted to carry their apparent religious symbols with them to the classroom.
• Before a student goes for higher studies in college, he or she should not grow up with a specific identity but under the umbrella of equality guaranteed under Article 14 transcending the group identity.
• Religion, which is a private affair, has no meaning in a secular school run by the state.
• The uniform prescribed would lose its meaning if the student is permitted to add or subtract any part of it.
•  If, the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to be imparted to the students?
• The wearing of hijab is not permitted only during school time. Therefore, the students can wear it everywhere else except in school.
• The argument that the wearing of a headscarf provides dignity to the girl students is also not tenable. The students are attending an all-girls college.
• They have no right to be in the school in violation of the mandate of the uniform prescribed under the statute and the rules.
• The state has not stopped admission to the students from attending classes. [Meaning, the state has not prevented the students from attending classes.] If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the state.
• It is not a denial of rights by the state but instead a voluntary act of the students. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.
• If a particular student feels that she cannot compromise with wearing a headscarf or any other student to wear any outwardly religious symbol, the school would be justified not to allow such a student in the larger interest of treating all the students alike.
• Defiance to rules of the school would in fact be an antithesis of discipline, which cannot be accepted of students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in an environment of rebellion or defiance.
• The students have a right to education under Article 21, but not of insisting on wearing something additional to the uniform, in a secular school, as a part of their religion
• If the students of one faith insist on a particular dress, there is no stopping others from carrying their faiths and beliefs to the schools. It would not be conducive to the pious atmosphere of the school where the students seek admission for education.
• As discussed above, secularism is applicable to all citizens. Therefore, permitting one religious community to wear its religious symbols would be antithetical to secularism.

Highlights of Justice Dhulia’s judgement:

• While noting that finality was not reached in the matter due to the split verdict by the two judges, Justice Dhulia quoted the words of Lord Atkin and said: “…finality is a good thing, but justice is better.”
• The question of Essential Religious Practice (ERP) was not at all relevant in the determination of the dispute before the court.
• When protection is sought under Article 25(1) of the Constitution, it is not required to establish that what the individual asserts is an ERP.
• Drawing comparisons to the application of the ERP test in the Triple Talaq case and the Sabarimala judgment, Justice Dhulia said the hijab case was different as the question was not merely of religious practice or identity, but also of Freedom of Expression guaranteed to a citizen.
• We have before us a case of assertion of an individual right, different from what would be a community right. We have before us two girl students asserting their identity by wearing hijab and claiming protection under Article 19 and Article 25 [of the Constituetion].
• If the belief is sincere, and it harms no one else, there can be no justifiable reason for banning the hijab in a classroom.
• Courts are not the forum to solve theological questions.
• There will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the court to pick one over the other.
• The comparison of a school with a war room or defence camp — based on the Karnataka High Court order — was odd.
• Schools are not required to have the discipline and regimentation of a military camp.
• It is necessary to have discipline in schools, but it should not be at the cost of freedom and dignity.
• Asking a pre-university schoolgirl to take off her hijab at her school gate is an invasion of her privacy and dignity.
• The school administration and the state should answer: What is more important to them? The education of a girl child or the enforcement of a dress code!
• The case must also be seen from the perspective of the challenges already faced by a girl child in getting access to education as compared to a male child.
• One of the best sights in India today is of a girl child leaving for her school in the morning… She is our hope, our future.
• Are we making the life of a girl child any better by denying her education merely because she wears a hijab?
• All the petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any other provision of Part III of the Constitution?
• It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a problem for public order or even law and order. On the contrary, reasonable accommodation, in this case, would be a sign of a mature society.
•  A girl child has the right to wear hijab in her house or outside her house, and that right does not stop at her school gate. The child carries her dignity and her privacy even when she is inside the school gates, in her classroom.
• Amongst many facets of our Constitution, one is trust. Our Constitution is also a document of trust. It is the trust the minorities have reposed upon the majority.
• This is the time to foster in them [the minorities] sensitivity, empathy and understanding towards different religions, languages, and cultures [underlining the importance of our diversity and rich plural culture].
• If she wants to wear a hijab, even inside her classroom, she cannot be stopped. If it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, her hijab is her ticket to education in those cases.
• Asking the girls to take off their hijab before they enter the school gates is first an invasion of their privacy, an attack on their dignity, and then ultimately it is a denial to them of secular education.