In the ruling in the Karnataka hijab ban case, Supreme Court Judge Sudhanshu Dhulia noted that “to ask a pre-university schoolgirl to remove her headscarf at the school gate is an invasion of her privacy and dignity”.
Justice Dhulia said asking the student to take off the hijab at the school gate “clearly violates the fundamental right given to her under Articles 19(1)(a) and 21 of the Constitution of India.” .
“She carries within her this right to her dignity and her privacy, even within her school gates or when she is in her classroom,” Justice Dhulia added, expressingly disagreeing with the Supreme Court’s view that such rights are “derivative rights”.
“Asking the girls to take off their headscarves before entering the school gates is first an invasion of their privacy, then an attack on their dignity, and then finally it is a denial of secular education for them. These are clear in violation of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India”, Judge Dhulia noted.
The other judge of the bench, Judge Hemant Gupta, however upheld the verdict of the Karnataka High Court, which allowed the ban on wearing hijab in educational institutions.
Some key notes from Justice Dhulia’s judgment:
Are we making a girl’s life better by banning the hijab?
“One of the most beautiful sights in India today is of a girl who leaves for school in the morning with her school bag on her back. She is our hope, our future. But it is also a fact that it is much more difficult for a girl to get an education, compared to her brother.In villages and semi-urban areas in India, it is common for a girl to help her mother with her daily chores of cleaning and washing before she can grab her school bag. hardships a girl undergoes to get an education are many times greater than that of a male child, so this case should also be seen in the perspective of the challenges a girl already faces in reaching her school. would therefore also wonder if we make a girl’s life better by refusing her education just because she is wearing a hijab!”
How is hijab contrary to public order, morality or health?
“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. These questions have not been satisfactorily answered in the Karnataka High Court Judgment”
Reasonable accommodation a sign of mature society
“The state has not given any plausible reasons, neither in the government decree of February 5, 2022, nor in the counter affidavit before the High Court. It does not appeal to my logic or reason why a girl wearing a hijab in a classroom is a public order problem or even a public order problem. On the contrary, reasonable accommodation in this case would be a sign of a mature society that has learned to live and adapt to its differences.”
Discipline not at the cost of dignity
“The school is a public place, but drawing a parallel between a school and a prison or a military camp is not correct. Again, if the point made by the Supreme Court was about discipline in a school, then that must be accepted. is necessary to have discipline in schools. But discipline should not come at the expense of freedom, not at the expense of dignity.”
Girls’ right to wear hijab doesn’t stop at school gates
“A girl has the right to wear hijab in her home or outside her home, and that right does not stop at her school gate. The child carries her dignity and her privacy, even if she is inside the school gate, in her classroom. She retains her fundamental rights. To say that these rights become derivative rights in a classroom is completely wrong.”
Constitution a document of trust placed on the majority by the minority
“Among many facets of our constitution, there is one trust. Our constitution is also a document of trust. It is the trust that the minorities have placed on the majority.”
School education is the time when students realize that diversity is our strength
Judge Dhulia objected to the Karnataka Supreme Court dismissing the arguments regarding diversity as “hollow rhetoric”:
“However, the issue of diversity and our rich pluralistic culture is important in the context of our current cause. Our schools, especially our pre-university colleges, are the perfect institutions where our children, who are now of an impressionable age, and just waking up to the rich diversity of this nation should be advised and guided so that they incorporate our constitutional values of tolerance and accommodation towards those who may speak another language, eat different foods or even change clothes or clothing! is the time to cultivate in them sensitivity, empathy and understanding for different religions, languages and cultures.This is the time when they must learn not to be alarmed by our diversity, but to rejoice and celebrate this diversity. is the time when they need to realize that diversity is our strength”.
“Fraternity, which is our constitutional value, would therefore require us to be tolerant, and as some of the learned councils would argue, reasonably compliant with the beliefs and religious practices of others. We must heed the call from Justice O. Chinnappa Reddy in Bijoe Emmanuel (supra) “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitutional practices tolerance; let’s not dilute it.”
Wearing a hijab is just a matter of choice
“Under our constitutional system, wearing a hijab should simply be a matter of choice. It may or may not be a matter of essential religious practice, but it is still a matter of conscience, belief and expression. If she wants to wear hijab, even in 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 allow her to go to school, and in those cases her hijab is her ticket to education.
Denial of education unfortunate consequences of hijab restriction
“The unfortunate consequences of the hijab restriction would be that we would have denied education to a girl. A girl for whom it is still not easy to reach her school gate. This case here must therefore also be seen in the perspective of the challenges which a girl already faces upon reaching her school. The question this Court would ask itself is also whether we are improving a girl’s life by refusing her education just because she is wearing a hijab!”
Aishat Shifa vs Karnataka State | 2022 LiveLaw (SC) 842 | CA 7095 of 2022 | October 13, 2022 | Judges Hemant Gupta and Sudhanshu Dhulia
Hijab ban case – Appeal against the Karnataka Supreme Court decision upholding the Hijab ban in some schools/pre-university colleges. – In view of the divergent views expressed by the Bench, the matter was referred to the Chief Justice of India for the establishment of an appropriate Bench.