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‘Hijab a choice, at times ticket to education’ — what Justice Dhulia said in split SC judgment

Justice Sudhanshu Dhulia says asking a girl to take off hijab at school gate an invasion of her privacy & dignity. Essential religious practice test not applicable here, he adds.

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New Delhi: Denying Muslim girls the permission to wear hijab at school is not only an invasion of their privacy but also an attack on their dignity as well as preventing them from access to secular education, Justice Sudhanshu Dhulia said Thursday. 

While striking down the ban imposed in Karnataka pre-university colleges, Justice Dhulia asserted that “wearing a hijab should be simply a matter of choice”, and opined that in several cases, a girl’s hijab is “her ticket to education”. 

“It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear the 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,” he explained. 

“There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka,” Justice Dhulia said, allowing the appeals of Muslim students who challenged the ban on the hijab on campus. 

“All the petitioners want is to wear a hijab! Is it too much to ask in a democracy?” 

Justice Dhulia was a part of a two-judge bench of the Supreme Court which delivered a split verdict on the constitutional validity of a Karnataka government order passed on 5 February. 

With fellow judge, Justice Hemant Gupta, concurring with the Karnataka government’s order, the matter is now before the Chief Justice of India to refer it to a larger bench. 


Also Read: Discriminatory to not essential religious practice — what appellants, state told SC in hijab case


‘Hijab in classroom not a public order issue’

While there needs to be discipline in schools, Justice Dhulia opined, it cannot be at the cost of freedom of dignity. Asking a “pre-university school girl to take off her hijab at her school gate, is an invasion on her privacy and dignity”, he said. 

In his opinion, the SC judge said, the ban on wearing hijab inside educational institutions violates the girls’ fundamental rights under Articles 19(1)(a) (right to freedom of speech and expression), 21 (right to life and personal liberty) and 25(1) of the Constitution. 

Article 25(1) says that everybody is “equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. This right is only subject to public order, morality and health, and to other fundamental rights.

“By asking the girls to take off their hijab before they enter the school gates, is first an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education,” the judge explained. 

“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 public order problem or even a law-and-order problem.” 

A girl has the right to wear the hijab inside her house and outside it, Justice Dhulia said, adding that this right “does not stop at her school gate”.

The SC judge pointed out that the fallout of the restriction on wearing the hijab would be denial of education to girls. “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. The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!”

In its judgment, the Karnataka High Court had not considered the argument that the classroom should be a place for recognition and reflection of social diversity, calling it a “hollow rhetoric”. 

But, Justice Dhulia felt that schools and pre-university colleges are perfect institutions for students to imbibe “constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different food, or even wear different clothes or apparels!”

‘Essential religious practice test not applicable’

In its 5 February order under challenge, the Karnataka government had said that a headscarf is not part of the uniform, and that wearing a headscarf is not an essential religious practice for Muslims that can be protected under the Constitution. 

It also quoted judgments of the apex court and various high courts to argue that the ban is not a violation of the fundamental right to practise religion. The Karnataka High Court had upheld these restrictions on 15 March, ruling that wearing hijab is not an “essential religious practice” in Islam. 

But, Justice Dhulia pointed out that the present case only deals with Articles 25(1) and 19(1)(a) and not with Articles 25(2) and 26, which deal with the rights of communities or religious denominations. 

The essential religious practice test was not key in deciding this dispute because it is not required for an individual to establish whether his/her practice is essential, he asserted.

Over the years, various courts have used this test on deciding what constitutes ‘essential religious practice’ and ruled that the right to religion under the Constitution would not cover all religious practices. Essential religious practice includes “core beliefs upon which a religion is founded” and the doing away of which will change the “nature of the religion”.

Justice Dhulia opined that “it [any practice asserted by an individual] may simply be any religious practice, a matter of faith or conscience”, and asserted that the test comes into play only when the court deals with questions related to both Articles 25 and 26. 

The SC judge said the test comes into picture when “a community right” is involved in cases, while the present issue deals with individual rights.

“The girls before us today face the same predicament as the Jehovah’s Witnesses. The present petitioners, too, wear hijab as an article of their faith. They too believe that it is a part of their religion and social practice,” Justice Dhulia said, asserting that this dispute was squarely covered by the Bijoe Emmanuel judgment.

In the above mentioned judgment, the Supreme Court in 1986 had upheld the choice of three school students of the Jehovah’s Witnesses order, a Christianity-based evangelical sect, to not sing the national anthem as they believed it was against their religious tenets.

(Edited by Tony Rai)


Also Read: SC ruling on hijab & Gyanvapi won’t just be limited to faith. It’ll be about our democracy


 

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