New Delhi: There have rarely been more opposite views expressed by two Supreme Court judges adjudicating the same case.
One judge said the hijab was the “antithesis to secularism” and argued for discipline and uniformity in the classroom, a place “where religious identities should be left behind”.
The other judge said the right to wear a hijab to college was about a woman’s right to choice, “nothing more and nothing less”, a ban was unconstitutional, an attack on privacy and dignity and a denial of education.
Justices Hemant Gupta and Sudhanshu Dhulia could not agree on their interpretations of a host of legal and human concepts, including fraternity, discipline, freedom, secularism, dignity and privacy.
On 13 October 2022, a division bench of the Supreme Court of India delivered a split verdict on the constitutionality of a hijab ban imposed by the Karnataka government on female students in government-run or aided universities and colleges and upheld on 15 March 2022 by that state’s high court.
Justice Gupta argued that “secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism”.
Justice Gupta’s judgement focused on the importance of discipline—using the word 22 times, as lawyer and Article 14 editorial board member Guatam Bhatia pointed out—uniformity. It never used the word “proportionality”, which is the legal test that allows the State to infringe constitutional rights. He said neither the constitutional right to education or the rights of minorities were infringed by the ban.
Justice Sudhanshu Dhulia set aside the Karnataka High Court judgement, arguing that while a ban on the hijab was unconstitutional, wearing a hijab to college was “a matter of choice, nothing more and nothing less”.
“All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy?” said Justice Dhulia. “How is it against public order, morality or health? Or even decency or against any other provision of Part III of the Constitution.”
Justice Dhulia’s judgement revolved around a woman’s constitutional right to privacy and to choose what she wore and the importance of living and understanding diversity at a young age. He said allowing the hijab was a measure of tolerance, diversity and unity.
The Hijab Ban Stays, For Now
The split verdict, which appeared apparent as arguments unfolded in the Supreme Court. means that the hijab ban will continue until a larger bench led by India’s new Chief Justice makes a final decision.a larger bench led by India’s new Chief Justice makes a final decision.
In upholding the government ban on headscarves or hijab by female Muslim students in classrooms where a uniform was required by school committees, the Karnataka high court had said that wearing a hijab was not what is called, in legal terms, an essential religious practise (ERP) in Islam.
The hijab-ban controversy arose on 5 February 2022 when the Karnataka government issued an order banning the hijab in classrooms, arguing that clothes which “disturb equality, integrity and public law and order shouldn’t be worn” in classrooms.
When two judges deliver contrasting judgements, the matter goes to the court of the Chief Justice, who will refer the matter to a larger bench, in this case, a three-judge bench will be deciding the issue of the hijab ban.
After the three-judge bench delivers its opinion, those who have lost the case can make a further appeal to a larger bench of five judges, known as a constitution bench. those who have lost the case can make a further appeal to a larger bench of five judges, known as a constitution bench.
The most recent example of a split verdict was when a division bench of the Delhi High Court on 11 May 2022 pronounced differing views on the criminalisation of marital rape.
The marital-rape issue is currently before the Supreme Court, which on 16 September 2022 sought the union government's response in an appeal against the split verdict of the Delhi High Court.
Justice Dhulia’s Opinion: A Moral Victory For Muslim Students
Apart from upholding the fundamental rights of Muslim female students, Justice Dhulia’s opinion sent a clear message to officials in Karnataka who had, in his view, restricted constitutional rights.
Under Articles 14 (right to equality and fraternity) 19 (1)(a) (right to choice and freedom of expression) and 25(1) (right to religion) of the Constitution, wearing a hijab is a matter of choice, said Justice Dhulia, who quoted the French Constitution and referred to its link to the Indian Constitution.
Justice Dhulia further held that even “if she (young woman) wants to wear a hijab, even inside her class room, she cannot be stopped.”
“If she wants to wear a hijab, even inside her class room, 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, and in those cases, her hijab is her ticket to education,” said Justice Dhulia.
Attack On Privacy, Dignity & Denial Of Education
Justice Dhulia said that asking Muslim student to take off their hijabs before they enter the school gates, was, first, an invasion of their privacy; second, an attack on their dignity; and, ultimately, a denial of secular education.
He also argued that the fallout of the hijab restriction would be the denial of education “to a girl child”. Justice Dhulia said “the question this Court would put before itself is whether we are making the life of a girl child any better by denying her education merely because she wears a hijab?”
“This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school,” said Justice Dhulia. “
Justice Dhulia said that in India “one of the best sights is of a girl child leaving for her school in the morning, with her school bag on her back.”
“But it is also a fact that it is much more difficult for a girl child to get an education, as compared to her brother,” said Justice Dhulia. “In villages and semi urban areas in India, it is commonplace for a girl child to help her mother in her daily chores of cleaning and washing, before she can grab her school bag.”
Justice Dhulia said a girl’s right to wear a hijab in or outside her house “does not stop at her school gate” and to say that these rights become derivative rights inside a classroom was “wholly incorrect”.
“This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom,” he said, arguing that allowing the hijab was also a matter of trust.
“We live in a Democracy and under the Rule of Law, and the Laws which govern us must pass muster the Constitution of India,” said Justice Dhulia. “Amongst many facets of our Constitution, one is Trust.”
“Our Constitution is also a document of Trust,” he said. “It is the trust the minorities have reposed upon the majority. Commenting on the report of the Advisory committee on minorities.”
Justice Gupta’s Opinion: No Religion In Govt-Run Secular Schools
Justice Hemant Gupta said that religious beliefs cannot be allowed in a secular school run with State funds.
“It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief,” said Justice Gupta.
“But the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds,” he said. “Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order.”
Referring to secularism, Justice Gupta said: “Any encroachment of religion in the secular (sic) activities is not permissible.” Secularism meant treating all religions equally, respecting all religions and protecting the practices of all religions, he added.
“The Government Order cannot be said to be contrary to the legitimate State goal of promoting literacy and education,” said Justice Gupta. “Article 21A is not applicable as all the students are over 14 years of age. The students have a right to education under Article 21 [protection of personal liberty], but not of insisting on wearing something additional to the uniform, in a secular school, as a part of their religion.”
Justice Gupta said that “the object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It 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,” said Justice Gupta, referring to the constitutional provision of equality before the law.
“Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1),” he said, referring to Article 25 (1), which says that “subject to public order, morality and health, all Indians are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.
Faith & Belief Immaterial To The State: Justice Gupta
Justice Gupta said that the “constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom”.
“For the State, all are equal and all are entitled to be treated equally’, he said.
Justice Gupta argued that the claim of the students was not to perform a religious activity in a religious institution but to wear a headscarf in a public place. The students, he said, “want to subjugate their freedom of choice of dress to be regulated by religion rather than by the State while they are in fact students of a state school”.
“The equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth,” said Justice Gupta. “Such equality cannot be breached by the State on the basis of religious faith.”
Justice Gupta said the Karnataka government order did not take away any rights of students under Article 21 of the Constitution or violate other fundamental rights.
“It would thus not amount to denial of the right to education if a student, by choice, does not attend the school,” said Justice Gupta. “A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.”
“The student is not expected to put a condition (sic), that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school,” said Justice Gupta. “The decision is of the student and not of school (sic) when the student opts not to adhere to the uniform rules.”
Justice Gupta also said that if students chose not to attend classes due to a prescribed uniform, that could not be said to be violative of Article 29 (protection of interests of minorities).
Is Hijab an Essential Religious Practice? No Answers
Both judges did not delve into the question of whether the hijab was an ERP or not, something that counsels for both sides referred to extensively in arguments over 10 days of the hearing.
Justice Gupta did not venture into the question of the hijab as an ERP, even though his judgement recorded a number of submissions on excerpts from the Quran, other religious texts and legal precedents.
Justice Gupta observed that “the practice of wearing hijab may be a ‘religious practice’ or an ‘essential religious practice’ or it may be social conduct for the women of Islamic faith”.
Justice Dhulia saw no need to examine the ERP issue to adjudicate on a ban on the hijab.
“Courts are not the forums to solve theological questions,” said Justice Dhulia, who said the Karnataka High Court should never had considered the ERP issue.
“Courts are not well equipped to do that (decide an essential religious practice) for various reasons, but most importantly because 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,” said Justice Dhulia.
“Instead of straightaway taking the ERP route, as a threshold requirement,” said Justice Dhulia, “the Court could have first examined whether the restriction imposed by the school or the G.O. (government order) on wearing a hijab, were valid restrictions.”
(Areeb Uddin Ahmed is an advocate who practises in New Delhi.)