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HomeJudiciary'Karnataka govt's hijab order promotes equality': SC judge Gupta's opinion in split...

‘Karnataka govt’s hijab order promotes equality’: SC judge Gupta’s opinion in split judgment

Justice Hemant Gupta asserts regulation of uniform doesn't affect student’s right to live with dignity. Hijab order in tune with Article 14 guaranteeing equality, he adds.

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New Delhi: Religion, which is a private affair, has no meaning in a secular school run by the State and wearing of hijab will be an antithesis to secularism, noted Supreme Court judge Justice Hemant Gupta in his opinion in the hijab case.

Dismissing the appeals filed against the Karnataka High Court verdict that upheld the state government order on hijab ban, the judge further said: “Before a student goes for higher studies in colleges, she should not grow with a specific identity, but under an umbrella of equality, transcending the group identity.”

He said the government order was meant to promote uniformity and encourage a secular environment in the schools. Moreover, a student, he added, cannot “claim the right to wear a headscarf to a secular school as a matter of right”.

“The uniform is an equaliser of inequalities. Therefore, prescribing uniform for children at an impressionable age is not only important, but has a salutary effect on the mental development of the child to grow in the environment of oneness,” the judge wrote in his opinion.

Justice Gupta was part of the two-judge bench, which Thursday delivered a split verdict on the controversy that rocked Karnataka earlier this year. Justice Sudhanshu Dhulia, who was the other judge, ruled in favour of the petitioners by way of a separate judgment.


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


The controversy

Massive protests broke out against the state government’s 5 February notification that mandated pre-university colleges to prescribe a common uniform and do away with any clothing that symbolises a particular religion. Consequently, the pre-university college in Udupi banned Muslim students from wearing hijab inside the classrooms.

The matter reached the Karnataka High Court which on 15 March delivered a judgment in favour of the ban. The judgment was premised on the reasoning that the hijab did not come under the essential religious practices of Islam and, therefore, the restriction was reasonable and constitutionally valid.

A clutch of appeals was immediately filed in the top court, but hearing commenced only in the first week of September. After a 10-day-long marathon hearing, the judgment in the case was reserved on 22 September.


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


What Justice Gupta opined

Justice Gupta’s opinion, running into 140 pages, discussed at length 11 questions of law that arose during the hearing and answered them in the negative vis-à-vis the petitioners.

Crucial amongst them were questions revolving around a gamut of rights guaranteed to every citizen under the Constitution.

They were on the gamut and scope of rights to freedom of conscience and religion, religious practices and whether freedom of expression and right to privacy were mutually exclusive or complement each other. He also touched upon the extent to which such rights can be curbed and if the government order qualified the principle of reasonableness to justify the prohibition.

Further, the verdict also ascertained whether the Karnataka order leading to the hijab ban was against the Constitutional promise of fraternity and dignity and if a student-citizen in the constitutional scheme is expected to surrender his/her fundamental rights under Articles 19 (freedom of speech and expression), 21 (right to liberty) and 25 (right to profess one’s religion) as a pre-condition for accessing education in a State institution.

Though the judge framed a question on whether hijab is an essential religious practice, he did not give a conclusive finding on it. Rather, he opined: “The practice of wearing hijab may be a religious practice or an essential religious practice or it may be a social conduct for the women of Islamic faith. The interpretation by the believers of the faith about wearing a headscarf is the belief or faith of an individual.”

He went on to add that a religious belief cannot be carried to a secular school maintained out of state funds. Students can carry their faith to a school which permits them to incorporate a religious symbol in their uniform, the judge said.

Justice Gupta rejected the petitioners’ contention that the State was obliged to ensure “reasonable accommodation to its citizens” and said its acceptance would result in different treatment of students in secular schools that may be following varied religious beliefs.

He even dismissed their plea to refer the dispute to a larger bench of nine judges to which substantial questions of law on religious faith and practices have been referred. These points of discussions arose during the hearing of review petitions filed against the Sabarimala judgment, which struck down decades-old practice that barred menstruating women from visiting the temple of Lord Ayappa, in 2019.

Justice Gupta held the present matter deals with a limited issue, which is whether they can enforce their religious beliefs in a secular institution. Therefore, he added, there is no requirement of interpretation of the Constitution in this case.

As for the 5 February government order, the judge said it ensured parity among students in terms of uniform and, hence, was in tune with Article 14 that guarantees equality. He added that the government can delegate its power to the College Development Committee for mandating uniform regulation.

With regard to fundamental rights of the citizens, the judge ruled that they have to be read together to give a purposeful meaning and that they cannot be mutually exclusive and that none of them are absolute. Their curtailment can happen following a due procedure that should withstand the test of reasonableness, he said.

The court not just validated the government order for being reasonable, but also found it to be in conformity with the Constitutional promise of fraternity. It thrashed the petitioners’ submission that the order denied admission to students from attending classes and observed that it was the petitioners who chose not to attend due to uniform regulation.

This, he said, is a voluntary act by a student, who is not expected to put a condition to attend a school. Regulation of uniform does not affect a student’s right to live with dignity, Justice Gupta added.


Also Read: ‘Women fighting against hijab in Islamic countries’: Karnataka cites Iran to back its case in SC


 

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