To ban or not. Hijab ban: Supreme Court delivers split verdict, case to be heard by larger bench

NEW DELHI, Oct 13 The Supreme Court on Thursday delivered a split verdict on whether Muslim students should shed their hijabs at their school gates.

Justice Hemant Gupta upheld Karnataka’s prohibitive government order of February 5, saying “apparent symbols of religious belief cannot be worn to “secular” schools maintained from State funds. He said ‘secularity’ meant uniformity, manifested by parity among students in terms of uniform.

Justice Gupta held that adherence to uniform was a reasonable restriction to free expression. The discipline re-inforced equality. The State had never forced students out of state schools by restricting hijab. The decision to stay out was a “voluntary act” of the student.

In his divergent opinion, Justice Sudhanshu Dhulia said secularity meant tolerance to “diversity”. Wearing or not wearing a hijab to school was “ultimately a matter of choice”. For girls from conservative families, “her hijab is her ticket to education”.

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“By asking the girls to take off their hijab before they enter the school gates, is first, an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education… There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka,” Justice Dhulia held. He said one of the best sights in India was a girl going to school like her brother.

“Are we making the life of a girl child any better by denying her education, merely because she wears a hijab! All the petitioners (students) 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?” Justice Dhulia asked.

The case would now be re-heard by a larger Bench.

Justice Gupta, in his opinion, said students need to follow the discipline of wearing the school uniform without any “addition, subtraction or modification”. A student cannot claim the right to wear a headscarf to a secular school as a matter of right. “A girl’s right to express herself by wearing a hijab stopped at the school gate”.

But Justice Dhulia countered that school was a public place. It was not correct to draw a parallel between a school and a jail or a military camp.

“It is necessary to have discipline in schools. But discipline not at the cost of freedom or dignity… She carries her dignity and privacy in her person, even inside her school gate or classroom,” Justice Dhulia observed.

He said the fallout of the hijab ban had been that some girl students were not able to appear for their Board exams and others were forced to seek transfer, most likely to 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,” Justice Dhulia underscored.

Justice Gupta, agreed with the government that the “ethic of fraternity is best served by complete erasure of all differences”, especially religious. Wearing hijabs in secular schools “would stand out and overtly appear differently.

But Justice Dhulia disagreed with the idea of forced homogeneity. He said schools and pre-university colleges were the “perfect institutions” for children to learn the rich diversity of India and imbibe values of tolerance and accommodation. “This is the time to foster in them sensitivity, empathy and understanding towards different religions,” he said.

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