While Justice Hemant Gupta framed 11 questions and carried out a detailed analysis of the arguments from both sides in his 140-page judgment to answer each question to negate the Muslim side’s pro-hijab argument, his colleague Sudhanshu Dhulia in a 76-page decision took a diametrically opposite stand on the main issues to hold that hijab is purely an issue of a girl student’s faith-driven choice that cannot be violated, entailing denial of education to a vulnerable section of society.
After pronouncement of the fundamentally different judgments, the bench said, “In view of the divergent views expressed by the Bench, the matter be placed before the Chief Justice of India for constitution of an appropriate bench.”
The judgments of Justices Hemant Gupta and Sudhanshu Dhulia in the hijab case “respectfully” clashed with each other on basic constitutional issues such as freedom of choice, right to religious practices and fraternity.
Till the “appropriate bench”, which would be of at least three judges, commences adjudication anew, the Karnataka government’s February 5 circular, upheld by a division bench of the high court, wou- ld remain in force and state-run educational institutions would be justified in enforcing uniforms on students to bar those who might insist wearing hijab or saffron shawls, as happened prior to February 5.
Justice Gupta, who retires on October 16, focused on answering the question: “whether students can enforce their religious belief in a secular institution”. He sub-divided his judicial prose into 11 parts to test the interplay of right to equality (Article 14), right to freedom of expression and choice (Article 19), right to privacy and dignity (Article 21) and right to religious practices (Article 25) juxtaposed with the right of Muslim girl students to wear hijab in state-run educational institutions where uniforms are enforced.
Validating the strict enforcement of uniforms without additions and subtractions, Justice Gupta said, “The object was to ensure that there is parity among the students in terms of uniforms. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III (fundamental rights) as laid down under the restrictions of Article 25(1).”
He said no student is going to perform a religious duty in school and hence the state has the power to restrict wearing of hijab within a secular school premises. “The religious belief cannot be carried to a secular school maintained out of state funds,” Justice Gupta said. He said the government’s intent and object was only to maintain uniformity through enforcement of prescribed uniforms, which are provided free to all students. “The enforcement of uniforms does not violate the right to freedom of expression, it rather reinforces the right to equality under Article 1”, he said.
On the Muslim side’s argument that allowing Muslim girls to wear hijab and teaching other students the virtue of tolerance and respect for other religions would achieve the constitutional goal of fraternity, Justice Gupta said, “Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion.”
“The constitutional goal as emanating from the Preamble would not be achieved if fraternity is given a narrow meaning in respect of students identifying themselves with the religious symbols in the classroom,” he said.
In his dissenting judgment, Justice Dhulia said it was desirable for the constitutional court to speak in one voice as split verdicts do not resolve a dispute. Borrowing Lord Atkin’s words – “… finality is a good thing, but justice is better” he penned a verdict that differed diametrically with Justice Gupta’s.
Justice Dhulia said whether hijab was an essential religious practice was irrelevant for adjudication of this dispute as the issue concerned the Muslim girls’ right to freedom of choice of dress. He faulted the Karnataka HC for misdirecting itself in getting unnecessarily entangled in determining essentiality of hijab to Islam by referring to Quranic verses and said the HC should have tested the circular on the touchstone of right to freedom of choice guaranteed under Article 19 of the Constitution.
Justice Dhulia took the SC’s 1986 judgment in Bijoe Emmanuel case as the sole guiding light to render a decision on such a complex issue, as evident from the detailed analysis by Justice Gupta.
In the Bijoe Emmanuel case, the SC had quashed expulsion of three girls of Jehovah sect for not reciting the national anthem at school assembly while ruling that since they stood up in respect at the time of national anthem, they could not be said to have violated school discipline.
Justice Dhulia said courts were not the fora for deciding theological issues – whether hijab is essential religious practice or not. “The present petitioners too wear hijab as an article of their faith. They too believe that it is part of their religion and social practice. In my considered opinion, therefore, the case is squarely covered by Bijoe Emmanuel judgment.”
“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 provision of Part III of the Constitution,” asked Justice Dhulia and quashed the February 5 circular of Karnataka government. “It does not appeal to my logic or reason 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,” he said.
Justice Dhulia 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. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.”
He said, 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 is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!”