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It is a matter of choice, nothing more nothing less: Justice Sudhanshu Dhulia in Hijab Ban case

Split verdict in Supreme Court where Justice Sudhanshu Dhulia allows the appeals and sets aside Karnataka HC order, while Justice Hemant Gupta dismisses appeals; matter to be placed before CJI

Sabrangindia 15 Oct 2022

HijabImage courtesy: Live Law
 

The hijab ban remains a highly polarising subject with even supreme court judges failing to arrive at a consensus. The bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia, that had been hearing a batch of appeals against the Karnataka High Court judgment upholding the hijab ban order of the Karnataka government, has today delivered a split verdict.

While Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka HC order, Justice Hemant Gupta dismissed them. In light of this, the matter will now be placed before the Chief Justice of India for appropriate directions.

Brief background of the case

Readers would recall that the Karnataka government had, via a Government Order (GO) dated February 5 that banned clothes "which disturb equality, integrity and public order" in schools and colleges.

Following this, Muslim girls wearing the traditional head scarf were denied entry to many educational institutions across the state. There were widespread protests and counter-protests, and the communal divide grew wider even as right-wing extremists and trolls grew more vicious. The hate spilled out of social media platforms and onto the streets. Newsrooms also became polarised and a series of deeply communal and outright offensive comments were made on TV news debates.

A nuanced approach to the wider issue of access to education for Muslim girls - their bodily agency, privacy and autonomy - especially for girls hailing from conservative families, was rejected, and the entire debate became communally polarised.

Muslim girl students moved court after they were denied entry into educational institutions. On March 15, the Karnataka High Court had upheld the GO. This effectively empowered college development committees of government run colleges and pre-university colleges from banning students from wearing hijabs in the classroom and college premises.

This had led several Muslim girls and their families to challenge the HC order. They argued that the GO discriminated on the basis of bother religion and sex. They further argued that the State had failed to provide reasonable accommodation to a student to exercise her rights under Articles 19 and 21.

Judgment by Justice Sudhanshu Dhulia

According to LiveLaw, in his judgment, Justice Sudhanshu Dhulia held, “The main thrust of my judgment is the entire concept of essential religious practice was not essential to the dispute. The High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19.” Continuing to bat for the freedom of choice, he further held, “It is a matter of choice, nothing more and nothing less.”

Justice Dhulia also emphasised on another important aspect of the case – the impact of the hijab ban on the education of Muslim girls and women, “The foremost question in my mind was the education of the girl child. Are we making her life any better? That was a question in my mind.”

In his order, Justice Dhulia held, “In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against “public order, morality and health,” and of course, it is subject to other provisions of Part III of the Constitution.”

He further held, “The approach of the High Court could have been different. Instead of straightaway taking the ERP route, as a threshold requirement, the Court could have first examined whether the restriction imposed by the school or the G.O on wearing a hijab, were valid restrictions? Or whether these restrictions are hit by the Doctrine of Proportionality.”

He then quashed the GO and ordered the removal of restrictions, stating that the order in Bijoe Emmanuel squarely covers the issue. That case (Bijoe Emmanuel vs. State of Kerala) revolved around the expulsion of three children who belonged to the Jehovah’s Witnesses sect being expelled from school in July 1985 for refusing to sing the national anthem. The children’s counsel had contended that they belonged to a sect where they only worshiped Jehovah – the Creator and none other, and that it was against the tenets of their religious faith – not the words or the thoughts of the national anthem – but the singing of it. They did not mean any disrespect to the national anthem, and dutifully remained standing when it was sung at school in the morning assembly.

The supreme court bench of Justice OC Reddy had held, “The Fundamental Rights of the appellants under Art. 19(1)(a) and  25(1) have been infringed and they are entitled to be protected. The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.” Therefore, the judgment of the High Court was set aside and the court had directed that the children be readmitted to the school.

Justice Dhulia’s judgment relied on this case and he set aside the Karnataka HC judgment and ordered the removal of restrictions, saying, “There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.”

Judgment by Justice Hemant Gupta

Justice Hemant Gupta dismissed the appeals as he did not find the Karnataka GO to be “against the ethic of secularism”. It is noteworthy that while hearing the case in September, when Senior Advocate Devadatt Kamat, who was appearing for the Petitioners, submitted that the right to freedom of expression under Article 19 of the Constitution includes dress, it was Justice Gupta who had posed the question, “You can’t take it to illogical ends. Right to dress will include right to undress also?”

In his order dated October 13, Justice Gupta observed, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”

He further held, “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.”

He finally ruled that “secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”

The entire judgment may be read here: 

Justice Gupta

Justice Dhulia

 

Related:

Hijab Ban case: SC wonders if right to dress also makes right to undress a fundamental right

BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC

 

It is a matter of choice, nothing more nothing less: Justice Sudhanshu Dhulia in Hijab Ban case

Split verdict in Supreme Court where Justice Sudhanshu Dhulia allows the appeals and sets aside Karnataka HC order, while Justice Hemant Gupta dismisses appeals; matter to be placed before CJI

HijabImage courtesy: Live Law
 

The hijab ban remains a highly polarising subject with even supreme court judges failing to arrive at a consensus. The bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia, that had been hearing a batch of appeals against the Karnataka High Court judgment upholding the hijab ban order of the Karnataka government, has today delivered a split verdict.

While Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka HC order, Justice Hemant Gupta dismissed them. In light of this, the matter will now be placed before the Chief Justice of India for appropriate directions.

Brief background of the case

Readers would recall that the Karnataka government had, via a Government Order (GO) dated February 5 that banned clothes "which disturb equality, integrity and public order" in schools and colleges.

Following this, Muslim girls wearing the traditional head scarf were denied entry to many educational institutions across the state. There were widespread protests and counter-protests, and the communal divide grew wider even as right-wing extremists and trolls grew more vicious. The hate spilled out of social media platforms and onto the streets. Newsrooms also became polarised and a series of deeply communal and outright offensive comments were made on TV news debates.

A nuanced approach to the wider issue of access to education for Muslim girls - their bodily agency, privacy and autonomy - especially for girls hailing from conservative families, was rejected, and the entire debate became communally polarised.

Muslim girl students moved court after they were denied entry into educational institutions. On March 15, the Karnataka High Court had upheld the GO. This effectively empowered college development committees of government run colleges and pre-university colleges from banning students from wearing hijabs in the classroom and college premises.

This had led several Muslim girls and their families to challenge the HC order. They argued that the GO discriminated on the basis of bother religion and sex. They further argued that the State had failed to provide reasonable accommodation to a student to exercise her rights under Articles 19 and 21.

Judgment by Justice Sudhanshu Dhulia

According to LiveLaw, in his judgment, Justice Sudhanshu Dhulia held, “The main thrust of my judgment is the entire concept of essential religious practice was not essential to the dispute. The High Court took a wrong path. It is ultimately a matter of choice and Article 14 and 19.” Continuing to bat for the freedom of choice, he further held, “It is a matter of choice, nothing more and nothing less.”

Justice Dhulia also emphasised on another important aspect of the case – the impact of the hijab ban on the education of Muslim girls and women, “The foremost question in my mind was the education of the girl child. Are we making her life any better? That was a question in my mind.”

In his order, Justice Dhulia held, “In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against “public order, morality and health,” and of course, it is subject to other provisions of Part III of the Constitution.”

He further held, “The approach of the High Court could have been different. Instead of straightaway taking the ERP route, as a threshold requirement, the Court could have first examined whether the restriction imposed by the school or the G.O on wearing a hijab, were valid restrictions? Or whether these restrictions are hit by the Doctrine of Proportionality.”

He then quashed the GO and ordered the removal of restrictions, stating that the order in Bijoe Emmanuel squarely covers the issue. That case (Bijoe Emmanuel vs. State of Kerala) revolved around the expulsion of three children who belonged to the Jehovah’s Witnesses sect being expelled from school in July 1985 for refusing to sing the national anthem. The children’s counsel had contended that they belonged to a sect where they only worshiped Jehovah – the Creator and none other, and that it was against the tenets of their religious faith – not the words or the thoughts of the national anthem – but the singing of it. They did not mean any disrespect to the national anthem, and dutifully remained standing when it was sung at school in the morning assembly.

The supreme court bench of Justice OC Reddy had held, “The Fundamental Rights of the appellants under Art. 19(1)(a) and  25(1) have been infringed and they are entitled to be protected. The expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand respectfully when the National Anthem is sung, is a violation of the fundamental right to freedom of conscience and freely to profess, practice and propagate religion.” Therefore, the judgment of the High Court was set aside and the court had directed that the children be readmitted to the school.

Justice Dhulia’s judgment relied on this case and he set aside the Karnataka HC judgment and ordered the removal of restrictions, saying, “There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.”

Judgment by Justice Hemant Gupta

Justice Hemant Gupta dismissed the appeals as he did not find the Karnataka GO to be “against the ethic of secularism”. It is noteworthy that while hearing the case in September, when Senior Advocate Devadatt Kamat, who was appearing for the Petitioners, submitted that the right to freedom of expression under Article 19 of the Constitution includes dress, it was Justice Gupta who had posed the question, “You can’t take it to illogical ends. Right to dress will include right to undress also?”

In his order dated October 13, Justice Gupta observed, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”

He further held, “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.”

He finally ruled that “secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983.”

The entire judgment may be read here: 

Justice Gupta

Justice Dhulia

 

Related:

Hijab Ban case: SC wonders if right to dress also makes right to undress a fundamental right

BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC

 

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