“All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy?”, Justice Dhulia asked.
In the judgment in the Karnataka hijab ban case, Supreme Court judge Justice Sudhanshu Dhulia observed that “asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity”.
Justice Dhulia opined that asking the girl student to remove the hijab at the school gate “is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India.
“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”, Justice Dhulia added while expressly disagreeing with the High Court’s view that such rights are “derivative rights”.
“By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India”, Justice Dhulia observed.
The other judge of the bench, Justice Hemant Gupta, however upheld the judgment of the Karnataka High Court which allowed the ban on wearing hijab in educational institutions.
Some significant observations from Justice Dhulia’s judgment:
Are we making a girl child’s life any better by banning hijab?
“One of the best sights in India today, is of a girl child leaving for her 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 child to get education, as compared to her brother. 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. The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child. This case 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 therefore 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!”
How is hijab against 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 sufficiently answered in the Karnataka High Court Judgement”
Reasonable accommodation a sign of mature society
“The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to my logic orreason 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.To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences”
Discipline not at the cost of dignity
“School is a public place, yet drawing a parallel between a school and a jail or a military camp, is not correct. Again, if the point which was being made by the High Court was regarding discipline in a school, then that must be accepted. It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity”
Girl’s right to wear hijab does not stop at school gate
“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. She retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect”.
Constitution a document of trust reposed by the minority on the majority
“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”
School education is the time where students realise diversity is our strength
Taking exception to the Karnataka High Court dismissing the arguments relating to diversity as “hollow rhetoric”, Justice Dhulia said:
“The question of diversity and our rich plural culture is, however, important in the context of our present case. Our schools, in particular our Pre-University colleges are the perfect institutions where our children, who are now at an impressionable age, and are just waking up to the rich diversity of this nation, need to be counselled and guided, so that they imbibe our constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different food, or even wear different clothes or apparels! This is the time to foster in them sensitivity, empathy and understanding towards different religions,languages and cultures. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity. This is the time when they must realise that in diversity is our strength”.
“Fraternity, which is our Constitutional value, would therefore require us to be tolerant, and as some of the learned Counsels would argue to be, reasonably accommodating, towards the belief and religious practices of others. We should remember the appeal made by Justice O. Chinnappa Reddy in Bijoe Emmanuel (supra) “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitutionpractices tolerance; let us not dilute it.”
Wearing of hijab simply a matter of choice
“Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. 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 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.
Denial of education unfortunate fallout of hijab restriction
“The unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. 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!”