While Justice Hemant Gupta framed 11 questions in his 140-page judgment to answer each question to negate the pro-hijab argument of the Muslim side and detailed analysis of the arguments of both sides, his colleague Sudhanshu Dhulia, 76 -Page’s decision taken. A stark contrast to the main issue is to hold that the hijab is purely an issue of a student’s faith-driven choice that cannot be violated, thereby depriving a weaker section of the society from education.
After declaring the fundamentally different judgments, the bench said, “In view of the differing views expressed by the Bench, the matter may be placed before the Chief Justice of India for constitution of an appropriate Bench.”
Justices Hemant Gupta and Sudhanshu Dhulia’s judgments 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 shall be of at least three judges, initiates the decision afresh, the Karnataka government’s February 5 circular, upheld by a division bench of the High Court, shall remain in effect and the state-run academic Institutions will remain in force. To bar those who insist on wearing hijab or saffron shawls, the imposition of uniforms on students can be justified, as was the case before February 5.
Justice Gupta, who retired on October 16, focused on answering the question: “Can students enforce their religious belief in a secular institution”. He divided his judicial prose into 11 parts to examine the interplay of the Right to Equality (Article 14), the Right to Freedom of Expression and Choice (Article 19), the Right to Privacy and Dignity (Article 21) and the Right to Religious Practices. subdivided. Article 25) deals with the right of Muslim girl students to wear the hijab in government educational institutions where the uniform is enforced.
Validating the strict enforcement of uniforms without addition and subtraction, Justice Gupta observed, “The aim was to ensure that there is equality among students in the matter of uniforms. This will only promote uniformity and encourage a secular atmosphere in schools.” It is in conformity with the right guaranteed under Article 14 of the Constitution. Therefore, restrictions on freedom of religion and conscience are subject to other provisions of Part III (Fundamental Rights) as well as the restrictions of Article 25(1) must be determined.”
He said that no student is going to perform religious duty in the school and hence the state has the power to ban the wearing of hijab in a secular school premises. Justice Gupta said, “Religious faith cannot be taken to a secular school built with state funds.” He said that the intention and objective of the government is to maintain uniformity only through enforcement of prescribed uniform, which is provided free of cost to all the students. “Implementing the uniform is not a violation of the right to freedom of expression, rather it strengthens the right to equality under Article 1,” he said.
On the argument of the Muslim side that allowing muslim girls While wearing the hijab and teaching other students the virtue of tolerance and respect for other religions would achieve the constitutional goal of fraternity, Justice Gupta observed, “Brotherhood is a noble goal but cannot be seen through the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, gender and religion.”
“The constitutional goal emanating from the preamble cannot be achieved if the fraternity is given a narrow connotation in relation to students identifying themselves with 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 divided judgments do not resolve the dispute. Borrowing the words of Lord Atkin – “…finality is a good thing, but justice is better” he wrote a judgment which contrasted with that of Justice Gupta.
Justice Dhulia held that whether the hijab was a necessary religious practice was irrelevant to the adjudication of the dispute as the issue pertained to rights of muslim girls For freedom of choice of dress. He blamed the Karnataka HC for misdirecting himself by unnecessarily engaging in stipulating the mandatory requirement of hijab for Islam. verses of the quran And said that the HC should have examined the circular on the criterion of right to freedom of choice guaranteed under Article 19 of the Constitution.
Justice Dhulia took the Supreme Court’s 1986 judgment in the Bijo Emmanuel case as the sole guiding light to adjudicate on such a complex issue, as is evident from the detailed analysis by Justice Gupta.
In the Bijo Emmanuel case, the SC had quashed the expulsion of three girls of Jehovah’s sect for not reciting the national anthem in the school assembly, while ruling that since they stood in honor at the time of the national anthem, they could not be called a violation There was school discipline.
Justice Dhulia said courts are not the forum to decide on religious issues – whether hijab is a necessary religious practice or not. “The present petitioners also wear hijab as an article of their faith. They also believe that it is part of their religion and social practice. In my opinion, therefore, the matter is fully covered by the Bijo Emmanuel decision. ”
Justice Dhulia asked, “All the petitioners want to wear the hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or any provision of Part III of the Constitution.” is against.” And canceled the Karnataka government’s February 5 circular. “It doesn’t fit my logic or reasoning about how a girl who wears a hijab in a classroom is a public order problem or even a law and order problem,” he said.
Justice Dhulia said, “Asking girls to remove their hijab before entering the school gate, first it is an invasion of their privacy, then it is an attack on their dignity, and then finally it is depriving them of secular education.” These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.”
The unfortunate consequence of the hijab ban, she said, 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. So, this should be the case here as well. A girl child.” She is seen from the perspective of the challenges she already faces in reaching her school. The question is also whether we are denying her education to improve a girl’s life because she wears a hijab!”
watch Karnataka hijab ban: Supreme Court gave a fractured verdict, referred the matter to a larger bench