'It is the trust minorities have reposed upon the majority': Justice Dhulia verdict on Karnataka hijab ban
Oct 14, 2022, 18:14 IST
New Delhi, Oct 14 - Supreme Court judge Justice Sudhanshu Dhulia on Thursday quashed the Karnataka government's decision to ban wearing of hijab inside classrooms of pre-university colleges, saying that the Constitution is also a document of trust and it is the trust the minorities have reposed upon the majority.
Justice Dhulia had dissented in connection with Karnataka High Court order, which allowed Ganesh Chaturthi celebrations at Idgah Maidan in Bengaluru's Chamarajpet. The matter was referred to a 3-Judge following "difference of opinion" between the two-judge comprising Justices Hemant Gupta and Dhulia.
Justice Dhulia, in his judgment, said: "We live in a democracy and under the rule of law, and the laws which govern us must pass muster the Constitution of India. Amongst many facets of our Constitution, one is trust. Our Constitution is also a document of trust. It is the trust the minorities have reposed upon the majority."
At the beginning of the judgment, Justice Dhulia said: "While I do so, I am conscious that as far as possible, a constitutional court must speak in one voice. Split verdicts and discordant notes do not resolve a dispute. Finality is not reached. But then to borrow the words of Lord Atkin (which he said though in an entirely different context), finality is a good thing, but justice is better."
He said it is necessary to have discipline in schools, but discipline not at the cost of freedom, and not at the cost of dignity. "Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity," he added.
He said 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 and the child carries her dignity and her privacy even when she is inside the school gates, in her classroom, and she retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect, he emphasised.
Justice Dhulia said: "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. These questions have not been sufficiently answered in the Karnataka High Court Judgement."
He said it does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law and order problem. "To the contrary, reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences," he added.
Referring to challenges already faced by a girl child in reaching her school, he said 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!
"Another question which the school administration and the State must answer in the present case is as to what is more important to them: education of a girl child or enforcement of a dress code!"
He noted that many of the senior counsel appearing for the petitioners, that the unfortunate fallout of the enforcement of hijab ban in schools in Karnataka has been that some of the girl students have not been able to appear in their board examinations, and many others were forced to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education. "This is for a girl child, for whom it was never easy, in the first place, to reach her school gate," he said.
In connection with determining as to what is an essential religious practice, Justice Dhulia said that "in my humble opinion courts are not the forums to solve theological questions and 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".
Justice Dhulia had dissented in connection with Karnataka High Court order, which allowed Ganesh Chaturthi celebrations at Idgah Maidan in Bengaluru's Chamarajpet. The matter was referred to a 3-Judge following "difference of opinion" between the two-judge comprising Justices Hemant Gupta and Dhulia.
Justice Dhulia, in his judgment, said: "We live in a democracy and under the rule of law, and the laws which govern us must pass muster the Constitution of India. Amongst many facets of our Constitution, one is trust. Our Constitution is also a document of trust. It is the trust the minorities have reposed upon the majority."
At the beginning of the judgment, Justice Dhulia said: "While I do so, I am conscious that as far as possible, a constitutional court must speak in one voice. Split verdicts and discordant notes do not resolve a dispute. Finality is not reached. But then to borrow the words of Lord Atkin (which he said though in an entirely different context), finality is a good thing, but justice is better."
He said it is necessary to have discipline in schools, but discipline not at the cost of freedom, and not at the cost of dignity. "Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity," he added.
He said 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 and the child carries her dignity and her privacy even when she is inside the school gates, in her classroom, and she retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect, he emphasised.
Justice Dhulia said: "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. These questions have not been sufficiently answered in the Karnataka High Court Judgement."
He said it does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law and order problem. "To the contrary, reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences," he added.
Referring to challenges already faced by a girl child in reaching her school, he said 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!
"Another question which the school administration and the State must answer in the present case is as to what is more important to them: education of a girl child or enforcement of a dress code!"
He noted that many of the senior counsel appearing for the petitioners, that the unfortunate fallout of the enforcement of hijab ban in schools in Karnataka has been that some of the girl students have not been able to appear in their board examinations, and many others were forced to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education. "This is for a girl child, for whom it was never easy, in the first place, to reach her school gate," he said.
In connection with determining as to what is an essential religious practice, Justice Dhulia said that "in my humble opinion courts are not the forums to solve theological questions and 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".