Hijab verdict: Two SC judges disagree on whether allowing Hijab in educational institutions is against secularism

By Amiya Kumar Kushwaha
New Delhi [India], October 13 : The two-judge bench of the Supreme Court on Thursday differed on the Hijab issue: One judge opined that permitting one to wear their religious symbols would be the antithesis to secularism while another judge held that restriction on Hijab was an invasion of privacy, attack on dignity, and denial of secular education.
A bench of justices Hemant Gupta and Sudhanshu Dhulia pronounced the split judgement on the Hijab issue as one upheld the Karnataka HC judgement while the other set the Karnataka HC order aside.
Justice Hemant Gupta said that before a student goes for higher studies in college, she should not grow up with a specific identity, but under the umbrella of equality guaranteed under Article 14 transcending the group identity.
"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," Justice Hemant Gupta said.
But Justice Sudhanshu Dhulia gave a contrary opinion as he 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," Justice Sudhanshu Dhulia ruled.
Justice Hemant Gupta said, "secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be the 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," Justice Hemant Gupta said.
"The Government Order cannot be said to be contrary to the legitimate State goal of promoting literacy and education.
Article 21A is not applicable as all the students are over 14 years of age," Justice Hemant Gupta said.
"The students have a right to education under Article 21, but not of insisting on wearing something additional to the uniform, in a secular school, as a part of their religion," Justice Hemant Gupta said.
"Hence, the Government Order cannot be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution. The Government Order only ensures that the uniform prescribed is adhered to by the students and it cannot be said that State is restricting the access to education to the girl students through such an Order," Justice Hemant Gupta said.
Justice Hemant Gupta's observation came while he dismissed all appeals and the writ petitions.
But Justice Sudhanshu Dhulia allowed the appeals, set aside the March 15's Karnataka High Court order and quashed the Karnataka State Government order on February 5, 2022, and ruled that there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.
Justice Sudhanshu Dhulia said that "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".
"If she wants to wear hijab, even inside her classroom, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education," Justice Sudhanshu Dhulia 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," Justice Sudhanshu Dhulia said.
"The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!" Justice Sudhanshu Dhulia said.
"Our Constitution has visualised a just society and it is for this reason that the first virtue that is secured for the citizens is 'Justice' which is the first of our Preambular promises," Justice Sudhanshu Dhulia said.
As both judges disagreed with each other, therefore they referred the matter before the Chief Justice of India for the constitution of an appropriate bench.
The court was hearing various appeals challenging an order passed by the Full Bench of the Karnataka High Court on March 15, which dismissed the pleas challenging the Government Order dated February 5. Karnataka Government Order had directed the Government Schools in Karnataka to abide by the prescribed uniform, and the private schools were directed to mandate a uniform as decided by their Board of Management.