Supreme Court Justice Sudhanshu Dhulia, in his judgement in the split verdict on the pleas challenging the Karnataka High Court's ban on hijab in educational institutions in the state, said that asking girls to take off their hijab before they enter school gates was clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.
According to LiveLaw, Justice Dhulia also said that asking girls to take off their hijab was an attack on their dignity, and an invasion of their privacy. Further, he said that it was a denial of secular education to these girls.
It is to be noted that Justice Dhulia also said that whether hijab is an Essential Religious Practice is not important to the decision of whether girls can wear hijabs inside their classrooms. He said that the High Court took a "wrong path" to its judgement. "If the belief is sincere and it harms no one else, then there can be no justifiable reason for banning hijab in a classroom," said Justice Dhulia in his judgement, according to LiveLaw.
"In any case as to what constitutes ERP, in all its complexities, is a matter which is pending consideration before a nine-judge Constitutional Bench of this court and therefore, in any case it may not be proper for me to go any further into this aspect," he said.
He also remarked that girl students are likely to face more challenges in accessing education compared to boys and banning the hijab was adding hurdles to their path to education. "The hurdles and hardships a girl child undergoes in gaining an 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 an education, merely because she wears a hijab!" he wrote.
Justice Dhulia also said that the Karnataka High Court had not sufficiently answered how it is against public order, decency, morality or health if girls wear a hijab to school and inquired if their request to wear the headgear is "too much to ask in a democracy". On the question of discipline in schools, he said that discipline should not come at the cost of freedom or dignity, and that drawing a parallel between a school and a jail or a military camp is not correct. He also remarked that the Constitution is document of trust that the minority has reposed upon the majority in the country, and that this is the time that people must realise that "diversity is our strength".
On the other hand, Justice Hemant Gupta upheld the verdict of the Karnataka High Court and said religious belief cannot be carried to a secular school maintained by state funds. "The practices of each of the faith have to be examined on the basis of the tenets of that religion alone. The essential religious practices of the followers of the Sikh faith cannot be made the basis of wearing of hijab/headscarf by the believers of the Islamic faith," said Justice Gupta.
The Supreme Court has delivered a split verdict in the matter and the case will now be placed before Chief Justice UU Lalit for a decision.
