Unsecular Or Ticket To Freedom? Takeaways From SC's 'Split' Views On Hijab Row

Supreme Court on Thursday delivered a split verdict leaving the matters pertaining to the Karnataka hijab row unresolved. Since the matter has been referred to the Chief Justice of India for further consideration, the state-imposed hijab ban that was upheld by the Karnataka High Court is still operational.

The verdict was delivered by a bench comprising Justices Hemant Gupta and Sudhanshu Dhulia who had "divergent" views on this issue leading to the split in opinions.

Justice Hemant Gupta, who agreed with the Karnataka government's order banning the hijab in educational institutions, observed that "a uniform was an equalizer of inequalities"; Justice Sudhanshu Dhulia observed that enforcement of a dress code was not as important as the education of a girl child.

Justice Gupta said the headscarf—a religious symbol—does not find a place in secular institutions like schools and colleges. "The students have many years ahead of them where they can carry on their religious faith…," Justice Gupta pointed out.

Justice Dhulia, on the other hand, said 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. 

BOOM extracts important excerpts from the judgment.

Secularism applicable to all, permitting one to wear religious symbols antithesis to it: Justice Hemant Gupta

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• Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism.
• If the students of one faith insist on a particular dress, there is no stopping for the others to carry their faiths and beliefs to the schools. It would not be conducive to the pious atmosphere of the school where the students seek admission for education.
  
• Schools are to prepare the students for their future endeavors in life. Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be the antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood.
  
• The argument that the school is insisting on surrendering or curtailing the right to wear a headscarf as a pre-condition to access education is not tenable as the right to education is available but the only condition is that the students should attend the classes in the prescribed uniform.
  
• Constitutional goals such as secularism, fraternity, and dignity mean equality for all, preference to none. The accommodation sought is contrary to the spirit of Article 14 as it would result in different treatment of students in secular schools who may be following varied religious beliefs.
  
• The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students…It is not a denial of rights by the State but instead a voluntary act of the students. It would thus not amount to a denial of the right to education if a student, by choice, does not attend the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.
  
• Religion, which is a private affair, has no meaning in a secular school run by the State. The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind.
  
• A secular State means rising above all differences of religions and attempting to secure the good of all its citizens irrespective of their religious beliefs and practices. The faith or belief of a person is immaterial from the point of view of the State. For the State, all are equal and all are entitled to be treated equally.
  
• Thus, though the concept of secularism emerged in the west, it has taken a different colour over the period of time. In a democratic country like India, consisting of multiple religions, regions, faith, languages, food, and clothing, the concept of secularism is to be understood differently.

• 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.
• 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.
• One of the best sights in India today is of a girl child leaving 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 child to get an 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 from 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!
  
• 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!
  
• 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 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 permit her to go to school, and in those cases, her hijab is her ticket to education.
  
• The Government Order dated 5 February 2022, and the restrictions on the wearing of the hijab, also goes against our constitutional value of fraternity and human dignity.
  
• 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 counseled 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 toward 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.
  
• We live in a Democracy and under the Rule of Law, and the Laws which govern us must pass muster with the Constitution of India. 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.
  
• 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.
  
• Another question that the School Administration and the State must answer in the present case is as to what is more important to them: Education of a girl child or Enforcement of a Dress Code!
  
• ...The unfortunate fallout of the enforcement of hijab ban in schools in Karnataka has been that some of the girl students have not been able to appear in their Board examinations, and many others were forced to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education. This is for a girl child, for whom it was never easy, in the first place, to reach her school gate.
  
• It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity. Asking a pre-university schoolgirl to take off her hijab at her school gate, is an invasion of her privacy and dignity
  
• Whether wearing a hijab is an ERP (Essential Religious Practice) in Islam or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.