Hijab ban case: A reflection of the division in society

The split verdict by a two-judge bench of the Supreme Court on the right of Muslim students to wear hijab in schools has again thrown the issue wide open. Though it is technically argued that the Karnataka government’s February order, which imposed a ban on hijab in educational institutions, still stands, substantially the matter is yet to be settled.

That is why the verdict has strengthened the hope of the students who approached the court on the matter and disappointed the government which had hoped for a “better verdict”. The split view of the court is perhaps a reflection of the division in the wider society. While Justice Sudhansu Dhulia quashed the state government’s order and allowed the appeals against the Karnataka High Court’s ruling which upheld it, Justice Hemant Gupta concurred with the Karnataka government, saying that its order was meant “only to promote uniformity and encourage a secular environment” in the classroom.

Read | Split verdict on hijab ban strengthened hope for fair judgement, says petitioner

While both the judges agreed that the doctrine of essential practice is not relevant to the matter, they widely differed on how the wearing of hijab by a student should be seen, what it should mean to society and how it should be judged by law. Justice Dhulia was clear that the student’s right of choice was at the heart of the matter and that demanding that she remove her headscarf at the gates of an institution was an invasion of her privacy and dignity. He saw the matter “in the perspective of the challenges already faced by a girlchild in reaching her school”. He posed the question whether we are making her life any better by denying her the right to education, and quoting an earlier Supreme Court verdict in the Bijoe Emmanuel (1986) case, affirmed that the issue at hand is “that of choice, nothing more, nothing less”.

Justice Gupta held that stipulation of uniform was a reasonable restriction on free expression and that discipline, which it sought to emphasise, reinforced equality. He also held that “secularity” meant uniformity and “fraternity is served by complete erasure of all differences”. But Justice Dhulia rejected the idea of forced homogeneity and felt that schools and colleges should be the forums for children to learn the rich diversity of the country and to imbibe the value of tolerance and accommodation. Justice Dhulia’s, rather than Justice Gupta’s, view of the issues involved in the case would reflect the values and ideals of the Constitution and best serve the needs and aspirations of society. The state government’s handling of the issue from the beginning was obviously communal and political, and hopefully the Constitution and the best national interests will finally prevail.