NEW DELHI: The Supreme Court on Thursday delivered a split verdict in the batch of pleas challenging Karnataka HC’s ruling of upholding the prohibition of wearing hijab in educational institutions of the state.
While upholding the ban on hijab, Justice Hemant Gupta in his judgment said that the practice of wearing hijab could be restricted by the state as per the Government order. Remarking that the government order (GO) dated February 5 that directed the government schools in Karnataka to abide by the prescribed uniform and private schools to mandate uniform as decided by their Board of Management necessarily excluded all religious symbols visible to the naked eye, Justice Gupta said, “Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of GO issued.”
“Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism,” Justice Gupta said.
The judge also said that religious belief cannot be carried to a secular school maintained out of State funds. Ruling that students cannot claim the right to wear headscarves to secular schools as a matter of right, Justice Gupta said, “The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the State. It is not a denial of rights by the State but instead a voluntary act of the students. It would thus not amount to the denial of the right to education if a student, by choice, does not attend the school.”
“It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, maybe tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds,” he added.
In a diverging opinion, Justice Sudhanshu Dhulia while quashing the Government Order said that it was against the constitutional value of fraternity and integrity.
“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 a 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 Dhulia said.
Emphasising on the unfortunate fallout of hijab restriction which would result in girl child being denied education, he further said, “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.” Against this backdrop, Justice Dhulia was of the opinion that there shall not be any restriction on the wearing of hijab anywhere in schools and colleges in the state.
“If the belief is sincere and it harms none else, there can be no justifiable reasons for banning hijab in a classroom,” he also said.
The two-judge bench due to divergence in opinion asked for placing the pleas before the CJI for constituting an appropriate bench.
The verdict was reserved by the bench after considering submissions of a battery of senior lawyers for ten days on September 22, 2022.