Hijab may be a girl’s ticket to education..it’s matter of choice: Judge S Dhulia

Justice Sudhanshu Dhulia said that any religious practice, a matter of faith or conscience must get the protection if it is asserted as a right and it does not go against public order, morality and health, and of course, other provisions relating to fundamental rights.

Hijab can be the “ticket to education” for several Muslim girls, Justice Sudhanshu Dhulia underlined in his dissenting judgment, holding that if the belief is sincere and harms no one else, there can be no justifiable reason for banning hijab in a classroom.

Justice Sudhanshu Dhulia maintained that it is not important for the court to examine the essentiality of religious practice that the wearing of hijab may involve.

“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,” held the judge.

Opting to author a view different from the senior judge on the bench, Justice Dhulia maintained that it is not important for the court to examine the essentiality of religious practice that the wearing of hijab may involve. He added that any religious practice, a matter of faith or conscience must get the protection if it is asserted as a right and it does not go against public order, morality and health, and of course, other provisions relating to fundamental rights.

Justice Dhulia drew a parallel between the present set of petitions and the landmark ruling in Bijoe Emmanuel Vs State of Kerala (1986), in which the Supreme Court held that expelling children based on their “conscientiously held religious faith” violated the Constitution. Three children were expelled from the school for not singing the national anthem because it was against their religious faith in Jehovah’s Witnesses. The top court had then ruled in favour of religious beliefs of Jehovah’s Witnesses as long as there was no disrespect shown to the national anthem.

According to Justice Dhulia, the girls before the court today face the same predicament as the Jehovah’s Witnesses. “The present petitioners too wear hijab as an article of their faith. They too believe that it is a part of their religion and social practice. In my considered opinion therefore, this case is squarely covered by the case of Bijoe Emmanuel and the ratio laid down therein,” he said.

Stating that courts are not the forum to solve theological questions, the judge also disapproved of the Karnataka high court’s scrutiny whether hijab constitutes an essential religious practice or not before deciding in the negative.

“Courts should steer clear from interpreting religious scriptures...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,” he said.

“Our Constitution is also a document of Trust. It is the trust the minorities have reposed upon the majority,” he added.

Stressing on the right to wear hijab, Justice Dhulia pointed out that though discipline is required in educational institutions, they cannot be put on par with a jail or a military camp, as was cited by the high court while describing schools as “qualified public spaces”.

“It is necessary to have discipline in schools. But discipline not at the cost of freedom, 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. 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,” he added.

Highlighting that the case throws up disturbing issues about challenges already faced by a girl child in reaching her school, Justice Dhulia said: “One of the best sights in India today, is of a girl child leaving for her school in the morning, with her school bag on her back. She is our hope, our future. But it is also a fact, that it is much more difficult for a girl child to get education, as compared to her brother...the hurdles and hardships a girl child undergoes in gaining education are many times more than a male child.”

The unfortunate fallout of the hijab restriction, the judge said, would be that we would have denied education to a girl child. “A girl child for whom it is still not easy to reach her school gate. This case here, 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 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!” Justice Dhulia lamented.