Understanding the Supreme Court split verdict on hijab ban

Two students in Kundapur in Udupi district, Karnataka. | Photo Credit: AP

The Supreme Court’s split verdict puts the education of young Muslim women in jeopardy.

On October 13, the much-anticipated verdict of the two-judge Constitution Bench of the Supreme Court on what is now popularly known as the “hijab” case was announced. To the surprise of many, it turned out to be a split verdict. The matter will be now heard by a larger Constitution Bench headed by the Chief Justice of India.

If the petitioners and the respondents desired closure, the 209-page verdict did not offer any. Justices Hemant Gupta and Sudhanshu Dhulia held diametrically opposite views on a gamut of issues ranging from the interpretation of reasonable restrictions of fundamental rights, the rights of the state vis-a-vis the fundamental rights of individuals and the right to education of young Muslim women.

The split verdict was passed while dealing with a clutch of appeals against a Karnataka High Court order of March 15, 2022, which had dismissed a challenge to a February 5 Government Order (GO) that mandated the use of uniforms in pre-university schools and colleges.

What they said

Justice Gupta upheld the Karnataka High Court order of March 15, 2022, which had directed that the ban on the hijab in State-run pre-university institutions be continued in the interests of unity, equality, and public order. A Karnataka GO, which formed the nub of the controversy, had mandated the wearing of uniforms in educational institutions. This was upheld by the High Court which had ruled that prescribing a uniform and prohibiting the hijab was constitutionally permissible and a reasonable restriction.

Disagreeing with his colleague, Justice Dhulia said that while Justice Gupta’s was a well-composed judgment, he was “unable to agree with the decision”. In his order, he observed that he was conscious that a constitutional court must speak in one voice and that split verdicts and discordant notes do not resolve a dispute.

Justice Dhulia: ‘Reasonable accommodation, sign of a mature society’

Justice Dhulia stated that the point of whether the hijab was an essential religious practice under Islam or not was not essential for the determination of the dispute. He said: “If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.” In his opinion, the young girl petitioners had asserted their individual and not a community right.

Courts are not the forums to solve theological questions as there will always be more than one religious view on a particular religious matter, he said. Nothing gives the authority to the court to pick one over the other, and therefore the court must not interfere where constitutional boundaries are broken and where unjustified restrictions are imposed, he said.

Justice Dhulia added that the Karnataka High Court’s understanding was flawed that the petitioners could not assert their fundamental rights as the classroom was a public place.

In his opinion, the comparison of a school with a war room was odd; discipline was necessary in schools but not at the cost of dignity and freedom, he held. To ask a pre-university school girl to take off her hijab at her school gate was an invasion of her privacy and dignity. It was violative of Article 19(1)(a) and Article 21 of the Constitution. She carried the right to her dignity and privacy inside the classroom as well. This right was not a derivative right, he held. He also referred to the Puttaswamy judgment and in particular Justice D.Y. Chandrachud’s observations on the link between privacy and human dignity.

Education versus dress code

Justice Dhulia maintained that there had to be a balance when a decision had to be made between school discipline and the social and religious rights of minorities. The school administration and the State needed to answer what was more important: the education of a girl child or the enforcement of a dress code. Justice Dhulia could not have been more right on this. He reflected on the hardships faced by the girl child. There was a need, he said, to see the case in the light of the challenges faced by the girl child in reaching her school.

He added that the court should also ask whether the life of a girl child was made better by denying her an education merely because she wore a hijab. He observed: “All the petitioners want is to wear a hijab. Is it too much to ask in a democracy? How is it against public morality, order or health? Or even decency or any other provision of part III of the Constitution.”

The Karnataka High Court judgment, he held, had not answered these questions sufficiently. It did not appeal to his logic or reason as to how a girl child who wore a hijab in a classroom could be a public order problem or even a law and order problem. Justice Dhulia said that reasonable accommodation was the sign of a mature society which has learnt to live and adjust with its differences, and added that the Karnataka High Court did not consider the question of diversity that the petitioners had raised but described it as “hollow rhetoric”. Similarly, “unity in diversity” was described as an oft-quoted platitude.

Justice Dhulia stressed that the question of diversity and rich plural culture was important in the present context of the case. Pre-university colleges were the perfect institutions where empathy, sensitivity, and understanding towards other religions, languages and cultures could be fostered, and when students could realise that diversity is the country’s strength. He quoted from the National Education Policy 2020 that underlined the need for tolerance and understanding the rich diversity of the country. He referred to the Karnataka Education Act of 1983 which stated that the curricula in schools and colleges must promote the rich and composite culture of the country. The GO of February 5 and the restrictions on wearing the hijab went against the constitutional values of fraternity and human dignity. While liberty and equality were well-established and properly understood in law and politics, fraternity had remained incognito.

Hijab as ticket to education

Justice Dhulia said that under the Constitution, the wearing of the hijab ought to be a matter of choice. It may not be an ERP but a matter of belief, conscience and expression. It was the only way a conservative family would permit the girl child to go to school; her hijab was her ticket to education. Asking them to take off their hijab is tantamount to an invasion of their privacy, an attack on their dignity and a denial of secular education. Justice Dhulia set aside the High Court order, quashed the GO, and held there should be no restrictions on wearing the hijab in schools and colleges in Karnataka.

Justice Gupta: ‘Uniform as an equaliser’

On the other hand, Justice Gupta upheld the Karnataka High Court’s view that the hijab was not an essential religious practice whereas Justice Dhulia felt that neither the petitioners nor the court should have even entered this debate. He said that the court could have first examined whether the restriction by the GO was a valid one or whether it was “hit” by the doctrine of proportionality.

Justice Gupta held that discipline was one of the attributes students learn in schools; that defiance of rules would be an antithesis of discipline. The students had a right to education under Article 21 but not of insisting of wearing something additional to their uniform, as part of their religion, in a secular school.

Justice Gupta pointed out that the uniform is an equaliser of inequalities. If students of one faith insisted on a particular dress, others would follow suit. Permitting one religion to wear religious symbols would be an antithesis to secularism. The right to education would continue to be available and it was the choice of the student whether to avail it or not. The freedom of expression under Article (19)(a) did not extend to the headscarf, he said. The Karnataka GO promoted an equal environment. Anything worn by students under his/her shirt cannot be said to be objectionable in terms of the GO issued.

Religion, Justice Gupta said, had no meaning in a secular school run by the State, and the constitutional goal of fraternity would be defeated if students were permitted to carry their religious symbols to the classroom. None of the fundamental rights were absolute and all of them should be read together as a whole.

Given the split verdict, it will be a while before the final verdict in the matter is delivered. Ultimately, it must be remembered the State has a responsibility towards the education of the girl and her future. At the moment, both seem to be at risk with the ban on the hijab in schools and colleges in Karnataka.