Justice Hemant Gupta’s take on secularism, fraternity and uniformity in the Hijab Ban case

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On Thursday, the Supreme Court delivered a split verdict in the Hijab Ban case. While Justice Sudhanshu Dhulia allowed the appeals and set aside the Karnataka High Court order, Justice Hemant Gupta dismissed them. In light of this, the matter will now be placed before the Chief Justice of India for appropriate directions. Here’s a closer look at Justice Hemant Gupta’s judgment.

Brief background of the case

The origin of the case lies in a Government Order passed by the Karnataka state government on February 5, 2022, that that banned clothes “which disturb equality, integrity and public order” in schools and colleges. In wake of this order, Muslim girls wearing Hijab, which is a traditional head scarf, were denied entry to many educational institutions across the state. Protests and counter-protests followed, communally polarizing statements were made on social media, in television news debates and hate spilled out onto the streets.

All this while, the most important aspects of the entire issue associated with the wider concerns regarding access to education for Muslim girls – their bodily agency, privacy and autonomy – especially for girls hailing from conservative families, appeared to be woefully ignored. On the flip side the emergence of forces like the Popular Front of India (PFI), especially in states like Karnataka, with an avowed programme of re-asserting a conservative brand of Islam, further complicated the matter.

A few Muslim girl students moved the court as they were denied entry into educational institutions. On March 15, the Karnataka High Court had upheld the GO, effectively empowering college development committees of government run colleges and pre-university colleges to ban students from wearing hijabs in the classroom and college premises.

The Muslim girls and their families then challenged the HC order in the Supreme Court, arguing that the GO discriminated on the basis of bother religion and sex. They further argued that the State had failed to provide reasonable accommodation to a student to exercise her rights under Articles 19 and 21.

In the Karnataka high court, both the petitioners, and thereafter the court too, dealt with and then rejected the “essential religious practices argument.” Following this, with detailed citations, Justice Hemant Gupta of the Supreme Court, did the same.

Finally, on Thursday October 13, Justice Hemant Gupta upheld the Karnataka HC order and dismissed the appeals. Let us take a closer look at his judgment.

Secularism – Dharmanirpeksha vs. Panthnirpeksha

In the Preface to his judgment, Justice Gupta examines the concept of secularism in the context of international and Indian history. “The political philosophy of a secular government has been developed in the West in the historical context of the pre-eminence of the established Church and the exercise of power by it over the society and its institutions. The democratic State thereafter gradually replaced and marginalized the influence of the Church. The idea of secularism may have been borrowed in the Indian Constitution from the West; however, it has adopted its own unique brand based on its particular history and exigencies which are far distinct in many ways from secularism as defined and followed in European countries, the United States of America and Australia,” he observes.

He goes on to examining the difference between two Indian words used as a translation of the word secular – Dharmanirpeksha and Panthnirpeksha. “The use of word ‘panthnirpeksh’ in the Constitution brings out the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”. ‘Panth’, or sect, symbolizes devotion towards any specific belief, way of worship or form of God, but Dharma symbolizes absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well-being and upliftment of the Praja (citizens) and the society as a whole,” he says in his judgment.

It is important to note here, that a similar argument has been made by followers of Hindutva to reject the western concept of secularism where the State has no established religion. They see secularism as treating people from different sects, instead of different faiths, as equal. Liberals meanwhile argue that this ideology only enables the advocacy for a Hindu Rashtra.

The eleven questions

In his judgment, Justice Gupta addressed the following questions:

“(i) Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?

(ii) Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition 21 or otherwise on headscarves is ex facie violative of Section 143 of the Act?

(iii) What is ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ under Article 25?

(iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

(v) Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14?

(vi) Whether the Government Order impinges upon Constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51-A sub-clauses (e) and (f)?

(vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?

(viii) Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre-condition for accessing education in a State institution?

(ix) Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens?

(x) Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution? 22

(xi) Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?”

Essential Religious Practice

Of the eleven questions, two deal with the contentious subject of Essential Religious Practice (ERP):

(iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

(vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?

To examine ERP, the judge has referred to the book Mulla’s Mohammedan Law (Fifth edition, 2019), and a translation of the interpretation of the Quran by Abdullah Yusuf Ali, and the Hedaya, commentary on Islamic Laws (Second edition, 1870). Justice Gupta’s judgment also mentions Justice Nariman’s observation in the Shaya Bano case, that “a practice does not acquire the sanction of religion simply because it is permitted”.

Justice Gupta’s judgment says, “The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be 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. Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order.”

It notes the arguments by the students, “The argument is that hijab is an additional cloth worn on the head, and that it does not cause any harm to any other person. The argument is based upon Conscience & Religion (Article 25), Culture (Articles 29 and 51-A(f)), Identity (Articles 19 and 21 – Autonomy, Dignity, Choice) and Secularism (Articles 19 and 21 – Autonomy, Dignity, Choice), therefore, the students have been wrongly denied admission to an educational institution on the basis of religion. The contention of the students is that by denying the right to wear headscarf, they have also been denied to attend the classes which stand foul with the mandate of clause (2) of Article 29.”

But Justice Gupta rejects these arguments saying, “I do not find any merit in the said argument. The schools run by the State are open for admission irrespective of any religion, 116 race, caste, language or any of them. Even the Act mandates that the students would be admitted without any restriction on such grounds. However, the students are required to follow the discipline of the school in the matter of uniform. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules.”

The order includes a reference to the case M. Ajmal Khan v. The Election Commission of India, rep. by its Chief Election Commissioner, New Delhi-I & Ors., where the plaintiffs had objected to Muslim women being photographed without purdah in electoral rolls. The court records that in that case, “The argument was that wearing of purdah by Muslim women is one of the principles laid down in Holy Quran and it has to be strictly followed by Muslim women. Therefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India. The Madras High Court dismissed such writ petition holding that such direction of the Election Commission is not violative of Article 25 of the Constitution.” This decision recognised the purpose of the photographs without purdah were to prevent impersonation and bogus voting.

In light of this Justice Gupta held, “The said judgment though is in the context of elections but the ratio thereof is applicable to the present matters, the education to a school by the State is constitutional mandate to be carried out in a non-discriminatory manner irrespective of caste, sex and religion.”

He holds the students squarely accountable for not attending classes if not permitted to wear hijab. He says, “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 denial of right to education if a student, by choice, does not attend the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.”

Fraternity and dignity

Justice Gupta’s judgment examines the idea of fraternity in the context of the GO. He says, “The concept of fraternity and dignity do not stand alone but have to be inferred from the context, circumstances and the purpose sought to be achieved. There is no dispute, as asserted in the written submissions, that the purpose of introducing fraternity as a constitutional value is to invoke horizontal or social sensitivity towards inequalities, in addition to the vertical, or top-down political prescriptions towards inequalities. Fraternity is in fact social sensitivity. The students herein are in the age group of 15 to 18 years. The seed of education should germinate equally amongst all students. Therefore, the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike before they attain the age of adulthood.”

He goes on to say that the word Bandhutva (meaning brotherhood) is the Hindi word for ‘fraternity’. He further says, “Brotherhood is amongst all the citizens of the Country and not of a particular community. Fraternity is the antithesis of a segmented society wherein all humans are treated equally and their innate genius is allowed an outlet by exposing them to equal opportunities.” Justice Gupta also observes, “Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion.”

According to Justice Gupta, “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.”

He thus appears to hold the concept of fraternity to be intertwined with those of homogeneity and uniformity, which appears to leave little or no space for diversity and free expression.

Uniformity vs homogeneity

Justice Gupta’s judgment also delves into the debate over uniform. He observes, “All students need to act and follow the discipline of the school. Out of the many steps required to ensure uniformity while imparting education, one of them is to wear the uniform dress without any addition or subtraction to the same. Any modification to the uniform would cease to be the uniform, defeating the very purpose of prescribing under Rule 11 and as mandated by the College Development Committee.”

He further refers to provisions in the GO pertaining to wearing of other religious items or jewellery, and says, “The Government Order dated 5.2.2022 contemplates that the prescribed uniform should be followed. It necessarily excludes all religious symbols visible to naked eye. The argument that the students wear Rudraksha or a Cross is mentioned only to deal with an argument so raised. Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the Government Order issued.”

Justice Gupta further notes, “The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1).”

The judgment goes on to say, “The students have been given a uniform platform to grow and take quantum leap in their further pursuits. The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre-University College.”

According to Justice Gupta, “The uniform prescribed would lose its meaning if the student is permitted to add or subtract any part of uniform.” He asks, “If, the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to imparted to the students.” He further notes, “The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith and for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook. The wearing of hijab is not permitted only during the school time, therefore, the students can wear it everywhere else except in schools. The wearing of anything other than the uniform is not expected in schools run by the State as a secular institution. In a secular school maintained at the cost of the State, the State is competent to not permit anything other than the uniform.”

However, the judgment appears to disregard the fact that uniformity and homogeneity are two different things, something that the counsel for the plaintiffs have pointed out. If the two ideas are conflated, the entire concept of diversity becomes meaningless. Moreover, the plaintiffs are not opposed to wearing a uniform. They just want to wear a hijab along with it. They have said before that they would be happy to wear it in the same colour as the uniform. Therefore, they are not opposed to either the uniform or the concept of uniformity.

Discipline in the Classroom

Justice Hemant Gupta’s judgement is also keen on discipline within the classroom. The word “discipline” occurs twenty-two times in the judgment. He says also that “disclipline and control” cannot exist without a uniform. This passage is important, in this context: “Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance (sic). (paragraph 188)

Justice Gupta’s entire judgment may be read here: 

Related:

It is a matter of choice, nothing more nothing less: Justice Sudhanshu Dhulia in Hijab Ban case

Hijab Ban case: SC wonders if right to dress also makes right to undress a fundamental right

BREAKING: Wearing of Hijab not essential religious practice: Karnataka HC