14 Oct Supreme Court Verdict on Hijab Ban : Secularism versus Matter of Choice

Supreme Court Verdict on the Hijab Ban

The topic is based on Secularism versus the Matter of Choice. It talks about the Indian Constitution’s significance of the Supreme Court Verdict on the Hijab Ban.

CONTEXT

The Supreme Court has delivered the judgment of the Karnataka High Court decision to ban the wearing of hijabs in schools. However, the two-judge bench has given a split verdict with Justice Hemant Gupta upholding the ban on one hand and Justice Sudhanshu Dhulia setting aside the High Court order and holding the ban as unconstitutional.

THE ISSUE OF THE HIJAB BAN 

• The issue erupted when a college development committee in Karnataka issued a notice to students to follow the Colleges’ Uniform Policy. The policy did not permit wearing a hijab in the classroom. The Muslim students who wanted to wear hijab to classes were denied entry on the ground that it was not in conformity with the dress code mandated by the  Colleges’ Uniform Policy. The students protested against the college’s directions. 
• With an increasing number of protests and colleges shutting down, the State Government had to intervene. It passed an order about the dress code for students stating that as per the Karnataka Education Act,1983, students were mandated to follow the dress code decided by their respective College Development Committees. 
• The students challenged the Uniform policy in Karnataka High Court.

THE KARNATAKA HIGH COURT RULING 

• A three-judge bench of the Karnataka High Court in March 2022 upheld the ban imposed on wearing hijab inside classroom premises of schools.
• The bench observed that wearing a hijab did not constitute an essential religious practice in Islam. Hence, there was no violation of the Right to freedom of religion
• The test of essentially religious practice was developed by the Supreme Court in the Shri Shirur Mutt Case of 1954 where a seven-judge bench of the Supreme Court held that the term “religion” will cover all rituals and practices “integral” to a religion. What all would constitute as integral was left to the Courts who decided it on basis of practices considered crucial by religious denominations. 
• The Court also held that Classrooms are “qualified public spaces” where individual rights must give way to the interest of general discipline and decorum. Thus, there cannot be a right to freedom of expression inside classrooms.

• Lastly, it held that the ban was not targeting any particular religion as the Government’s order only directed students to wear the uniforms prescribed by their educational institutions. Hence, the law was not discriminatory either directly or indirectly, against Muslim students.

APPEAL TO THE SUPREME COURT

• Dissatisfied with the judgment, the petitioners moved the Apex Court challenging the Karnataka High Court judgment. 
• The division bench of the Supreme Court after 8 months has given a verdict on the hijab row. But there was a split in verdict with one Judge upholding the ban and another declaring it unconstitutional
• The matter will now be placed before the Chief Justice of India for the constitution of a larger bench to deal with the issue.

Pic: Supreme Court Verdict on the Hijab Ban

Observations made by Justice Hemant Gupta: 

• Religious beliefs cannot be carried to a secular school maintaining out-of-state funds.
• It is within the State’s jurisdiction to restrict the carrying of symbols of religious beliefs to schools maintaining out-of-state funds. Hence, the practice of wearing a Hijab can be restricted by the State. 
• The mandate of the Karnataka Education Act, of 1983 is to renounce sectional diversities, develop humanism and cultivate scientific and secular outlooks. If students are allowed to carry religious beliefs to a secular school, it would be opposed to the object of the act. 
• Wearing uniform dress without addition or subtraction ensures uniformity in school. Any changes to the uniform would cease to be a uniform.
• Right of Expression under Article 19(1)(a) is also subject to reasonable restrictions under Article 19(2). The State order directing students to wear uniforms prescribed by their educational institutions did not violate freedom under Article 19(1)(a). It rather reinforced the right to equality under Article 14.
• The order is also not violative of Article 25 of the Constitution as the object of the order was to promote uniformity and ensure a secular environment in schools. Article 25(2) gives the right to the State to make laws for social reform and welfare.

Observations made by Justice Sudhanshu Dhulia 

• A girl child has the right to wear a hijab in and outside her house and that right does not stop at her school gate. 
• The girl child carries her fundamental right to dignity and privacy inside the classroom and to say these rights are derivative rights inside the classroom is wrong.
• By denying her the right to wear hijab, we are denying her right to education and not making her life any easier.
• The ban on hijab is against the constitutional values of fraternity and human dignity.
• Article 25 gives the citizens the Freedom of conscience and free profession, practice, and propagation of religion
• Wearing a hijab is a matter of choice and a girl child wearing a hijab in the classroom is not a law and order problem. 

WAY AHEAD

The matter will be listed before a larger bench. It is hoped that classrooms will not become an arena for competitive communalism in the future and that the matter is resolved by upholding the Constitutional rights of citizens.

SOURCES

The India Express

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saumya khedwal