Referred to Larger Bench XXXII: Hijab II

Posted on by Rudrajyoti Nath Ray

The ‘essential religious practices’ of followers of Sikh faith cannot be made basis of wearing of Hijab/Headscarf by believers of Islamic faith.

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Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. Equality before law cannot be breached by State on basis of religious faith. The object was only to promote uniformity and encourage a secular environment in schools. The faith or belief of a person is immaterial from point of view of State; for State, all are equal and all are entitled to be treated equally. The religious belief cannot be carried to a secular school maintained out of State funds. State is competent to not permit anything other than uniform.

– Hon’ble Justice Hemant Gupta, Aishat Shifa v. State of Karnataka, [Civil Appeal No. 7095 of 2022].

Whether wearing Hijab is an ‘essential religious practice’ in Islam or not is not essential for determination of this dispute. In any case, as to what constitutes an ‘essential religious practice, in all its complexities, is a matter which is pending consideration before a Nine Judge Bench and therefore in any case it may not be proper for me to go any further into this aspect.

Karnataka High Court reasoned Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 is not best for drawing a proposition essentially founded on ‘freedom of conscience’. The girls before us today are same as Jehovah’s Witnesses in Bijoe Emmanuel. This case is squarely covered by Bijoe Emmanuel.

If belief is sincere, and it harms no one else, there can be no justifiable reasons for banning Hijab in a classroom. Are we making life of a girl child any better by denying her education, merely because she wears a Hijab? The right to her ‘dignity’ and ‘privacy’ she carries in her person, even inside her school gate or when she is in her classroom. It is necessary to have discipline in schools. But discipline not at cost of freedom, not at cost of dignity.

– Hon’ble Justice Sudhanshu Dhulia, Aishat Shifa v. State of Karnataka, [Civil Appeal No. 7095 of 2022].

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