Retired Judge of the Supreme Court, Justice Deepak Gupta has said in an interview given to a digital news channel that the Judgment of the Karnataka High Court on the hijab row ends up being regressive because it denies education to girls from conservative families.

Hijab & Education

Justice Gupta starts by saying that he is not personally in favour of "hijab or any other dress which stops women from being as powerful as men or better than men."

"Girls from conservative families who are coming out to study in secular schools, getting higher education, which, maybe, they will stop if they are not allowed to wear the hijab" Justice Gupta said.

He said further that "I not supporting hijab, but look what you are doing. It is a very dangerous thing that the girl will not study further".

He then said that if the girls demanding the right to wear hijab had education, they would not wear hijab anymore.

"If she had studied further, she would have thrown the hijab aside herself", the retired judge said in the interview with Barkha Dutt.

Barkha Dutt agreed with Deepak Gupta and said, "I agree with you and I think that is almost like double jeopardy that if we do indeed believe that the hijab is a sign, and many people do, of gender bias, of orthodoxy, of oppression, of inequality, then why punish the girls a second time around by denying them school access on the basis of it."

Hijab & Free Expression

Justice Gupta also said in the interview that it is very easy to say that the judgment has not stopped the girls from studying and that it is the parents who are not letting them go to school.

"But we are talking about 15-16-17 year old girls who will do what their parents tell, they have to live in the house. So we have to protect the girl child", Justice Gupta added.

Barkha Dutt once again agreed with Justice Gupta and said, "This has far-reaching consequences for the rights of girls to study and get an education and get emancipated to make choices that are more free, less socialized".

Justice Deepak Gupta also said that wearing the hijab, even if not an essential religious practice, "it will fall under freedom of expression". Justice Gupta then goes on to say that the judgment brushes aside the plea raised by the petitioners regarding freedom of conscience.

It is not clear how he considers the practice to be protected by the freedom of expression of the children if their lack of education and compulsion from parents are the reasons for their wearing it.

Also, Justice Deepak Gupta's opinion about the Judgment is that though the hijab stops women from being powerful, the Judgment is regressive because it prevents children, who lack sufficient education to discard the practice, from following the dictates of their orthodox parents, thereby denying them education.

Girls on Trial?

Justice Gupta said in the interview that his worry about the judgment is that it proceeds as if the "girls were on trial". Barkha Dutt nodded strongly in agreement. The interview has been published on YouTube with the title "girls are not on trial".

He explained why he felt so, thus: "They say if you don't have uniform, it leads to disorder. Public disorder, I find it mind-boggling, two people come in different dresses, how does it become a public disorder thing. Public disorder is not in the dress. Public disorder is in the minds of those who cannot tolerate a particular type of dress. You can't put the culprits on the pedestal and victims are made to face trial. It is basically like that."

It appears that his reason for criticizing the judgment for indicating that the "girls were on trial", was the supposed justification by the Court of the need for a uniform, on the ground of public disorder (order).

The High Court has not justified the need for having a uniform or permissibility of restricting hijab on the ground of public order.

In fact, the High Court agrees with the arguments of the students that disruption of public order cannot be a ground for restricting hijab and that the same would amount to permitting 'hecklers veto'.

With respect to the usage of the words "public order" in the state government's order, the Court says that words of a government order should be construed with a "measure of grace to their linguistic pitfalls" and that the order "could have been well drafted". The Court goes on to hold that "there is no much scope for invoking the concept of 'law and order' ...although the Government Order gives a loose impression that there is some nexus between wearing of hijab and the 'law & order' situation".

Hence, apart from putting out the catchphrase "girls on trial", suitable for headlines and social media campaigns against the well-reasoned judgment of the High Court, the retired judge does not contribute anything valuable to the discourse.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]