SC delivers split verdict on hijab ban
New Delhi, October 13
The Supreme Court on Thursday delivered a split verdict on the hijab ban in Karnataka’s educational institutions, with one judge holding permitting a community to wear its religious symbols would be an “antithesis to secularism” and the other insisting that wearing the Muslim headscarf should be simply a “matter of choice”.
Editorial: let modernity prevail
While Justice Hemant Gupta dismissed the appeals challenging the March 15 judgment of the Karnataka High Court that had refused to lift the ban, Justice Sudhanshu Dhulia held there shall be no restriction on the wearing of hijab anywhere in the schools and colleges of the state.
Divided over headscarf
For hijab ban
The ban order doesn’t impinge on constitutional promise of fraternity and dignity. Instead, it promotes an equal environment where such fraternal values can be imbibed and nurtured without any hindrance. — Justice Hemant Gupta
- Permitting one community to wear religious symbols will be antithesis to secularism
- Cannot wear a hijab to a secular school as a matter of right
- Religious belief cannot be carried to a secular school maintained out of state funds
Against it
Asking girls to take off hijab before they enter school is an invasion of their privacy, attack on their dignity and ultimately it’s denial of secular education to them. Wearing a hijab should be simply a matter of choice. — Justice Sudhanshu Dhulia
- Courts must interfere when boundaries set by Constitution are broken or unjustified restrictions imposed
- Courts are not the forums to solve theological questions
- In a conservative family, a hijab may be a daughter’s permit to go to school, her ticket to education
Dress code must
Uniform is meant to promote uniformity among students. Separatism is promoted in the garb of issues like promotion of burqa or hijab. CT Ravi, BJP
Long-drawn battle
Split verdict means the case will continue to attract the SC’s attention… ‘Bharat Jodo Yatra’ will seek PM’s accountability on rising polarisation, political dictatorship. Jairam Ramesh, Congress
Misused quotes
Expected a unanimous decision in favour of girls wearing hijab… The High Court decision was bad… wrongly used Quran quotes and misused commentaries. Asaduddin Owaisi, AIMIM
Comparisons with Sikhism rejected
Justice Hemant Gupta rejected comparisons with students of Sikh faith carrying ‘kirpan’, saying the essential religious practices of Sikhism can’t be made basis for the believers of Islam to wear hijab.
About the case
Some Muslim students of a college in Karnataka’s Udupi not allowed to attend classes wearing hijab on Jan 1. They moved the HC, then the SC.
26 PLEAS related to hijab ban have been clubbed by the apex court
Feb 5, 2022 When Karnataka Govt banned hijab in educational institutes
With the apex court delivering a split verdict, the high court’s judgment still holds the field. However, the split verdict held off a permanent resolution of the vexed row over hijab as both judges suggested placing the matter before a larger Bench for adjudication. Writing a separate 73-page judgment, 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.”
Justice Gupta, who was heading the Bench and wrote a contrary verdict running into 133-pages, answered the 11 questions framed by him for consideration in the matter and said the constitutional goal of fraternity will be defeated if the students were permitted to carry their apparent religious symbols with them to the classroom. While pronouncing the judgment on a batch of 26 petitions, Justice Gupta said at the outset, “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.”
In his verdict, Justice Gupta said the arguments advanced by the counsel for some of the appellants that this matter involved a substantial question of law and should be referred to a five-judge Bench was “not tenable”. Both the judges referred to the state government’s February 5, 2022, order which banned wearing clothes that disturbed equality, integrity and public order in schools and colleges.
Justice Gupta noted the government order “promotes an equal environment”. “Accordingly, I do not find that the government order impinges on the constitutional promise of fraternity and dignity. Instead, it promotes an equal environment where such fraternal values can be imbibed and nurtured without any hindrance of any kind,” he said. On the other hand, Justice Dhulia set aside the high court verdict and also quashed the government order. “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,” he said.
Justice Dhulia further said the “unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child”. He said in his opinion, courts were not the forums to solve “theological questions”. He said the courts, however, must interfere when the boundaries set by the Constitution were broken or where unjustified restrictions were imposed.
Justice Gupta noted that some of the appellants had also made a comparison with the rights of the followers of the Sikh faith by arguing that since ‘kirpan’ was allowed in terms of Explanation I to Article 25, therefore, the students who wanted to wear hijab should be equally protected. “The essential religious practices of the followers of Sikh faith cannot be made basis of wearing of hijab/headscarf by the believers of Islamic faith,” Justice Gupta said.
“As discussed above, secularism is applicable to all citizen,” he said.
