Wearing Hijab A Choice, Asking Girls To Take Off Hijab An Invasion On Privacy & Attack On Dignity: Justice Sudhanshu Dhulia
While delivering the split verdict in the appeals filed against Karnataka High Court's judgment about the hijab row, Justice Sudhanshu Dhulia has observed that asking girls to take off their hijab before they enter the school gates is an invasion on their privacy, an attack on their dignity, and ultimately a denial to them of secular education.
Justice Sudhanshu Dhulia while setting aside the Karnataka High Court's verdict observed that "By asking the girls to take off their hijab before they enter the school gates, is first an invasion on 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."
He also emphasized that wearing a hijab should be a matter of Choice.
"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 class room, 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 Dhulia noted.
He further expressed that the question of Essential Religious Practices (ERP) was not at all relevant in the determination of the dispute before the Court.
"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!", he observed.
Justice Dhulia further added that the approach of the High Court could have been different where 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?
He noted that the test of ERP has been laid down by the Court in the past to resolve disputes of a particular nature. He observed that these were the cases where a challenge was made to State interference on what was claimed to be an "essential religious practice."
He added that "Even when Rights of an individual were raised, as we may say in the case of Shayara Bano v. Union of India and Ors. which is the Triple Talaq case or the case of Indian Young Lawyers Association and Ors, (Sabarimala Temple, In Re.) v. State of Kerala and Ors. which is commonly known as the Sabarimala case, these were cases where an individual right was asserted against a religious practice or where there was an assertion, primarily on a religious identity."
He further observed that in the case at hand, the question was not merely of religious practice or identity but also of 'freedom of expression,' given to a citizen under Article 19(1)(a) of the Constitution of India, and that it makes the instant case different.
He noted that the entire exercise done by the Karnataka High Court, in evaluating the rights of the Petitioners only on the touchstone of ERP, was incorrect.
"We have before us a case of assertion of individual Right as different from what would be a community Right. We are concerned only with Article 25(1) and not with Article 25(2) or Article 26 of the Constitution of India. Whereas Clause 1 of Article 25 deals with individual rights, Article 25(2) and Article 26 of the Constitution of India, deal by and large with community-based rights. In that sense what has been decided by this Court earlier as ERP would not be of much help to us.", Justice Dhulia observed.
He remarked that whether wearing a hijab is an ERP in Islam or not is not essential for the determination of this dispute. He further added that if the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.
Justice Dhulia also observed that Courts are not the forums to solve theological questions, however, he added that the Court must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed.
In this context, he observed thus "In my humble opinion Courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other. The Courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed."
Justice Dhulia also noted that he found it difficult to accept the finding of the Karnataka High Court where the High Court determines that the Petitioners cannot assert their Fundamental Rights inside a classroom which the Court terms as "qualified public places" and the rights inside a school are only "derivative right."
He observed that "Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom. It is still her Fundamental Right, not a "derivative right" as has been described by the High Court."
He further emphasized that in the present case the School Administration and the State must answer as to what is more important to them- Education of a girl child or Enforcement of a Dress Code.
"The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child. This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would therefore 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.", he added.
He also observed that "All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution."
He noted that these questions were sufficiently answered in the Karnataka High Court Judgement.
Justice Dhulia further emphasized that a girl child has the right to wear hijab in her house or outside her house, and that right does not stop at her school gate.
"The child carries her dignity and her privacy even when she is inside the school gates, in her classroom. She retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect.", he added.
Consequently, while allowing the appeal and the writ petitions, he ordered thus-
"a) The order of the Karnataka High Court dated March 15, 2022, is hereby set aside; b) The G.O. dated February 5, 2022 is hereby quashed and c) There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka."
Senior Advocates Kapil Sibal, Rajeev Dhawan, Dushyant Dave, Salman Khurshid, Colin Gonsalves, Yusuf Hatim Muchhala, Huzefa Ahmadi, Meenakshi Arora, Aditya Sondhi, Sanjay R. Hegde, Devadatt Kamat, Jayna Kothari, A.M. Dar and Advocates Prashant Bhushan, Shoeb Alam, Nizam Pasha, Kirti Singh and Thulasi K. Raj had appeared on behalf of the petitioners.
The arguments on behalf of the State were made by Tushar Mehta, Solicitor General of India, K.M. Nataraj, Additional Solicitor General of India and Prabhuling Navadgi, Advocate General for Karnataka. Senior Advocates R. Venkatramani, V. Mohana and Dama Seshadri Naidu had appeared on behalf of the teachers.
Earlier, a full bench of the Karnataka High Court comprising of the then Chief Justice Ritu Raj Awasthi, Justice Krishna S. Dixit and Justice J. M. Khazi had held that hijab is not an essential religious practice in the Islamic faith. The Court had also held that the prescription of school uniform is a reasonable restriction that is constitutionally permissible.
Cause Title- Aishat Shifa v. The State of Karnataka & Ors. with connected matters