Courts not forums to solve theological questions, says Justice Dhulia
New Delhi: The courts are not forums to solve “theological questions”, Supreme Court judge Justice Sudhanshu Dhulia said on Thursday in his verdict on the Karnataka hijab ban controversy.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia delivered split verdict and referred the matter to the Chief Justice of India for constitution of an appropriate bench to consider the contentious issue.
While Justice Gupta dismissed the appeals challenging the March 15 judgement of the Karnataka High Court which had refused to lift the ban, Justice Dhulia held there shall be no restriction on wearing hijab anywhere in the schools and colleges of the state.
In his separate judgement, Justice Dhulia noted that apart from the fact that essential religious practice was not essential to the determination of the dispute, there was another aspect that is even more important, which would explain as to why the courts should be slow in the matters of determining as to what is an essential religious practice.
“In my humble opinion courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because 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,” he said in his 73-page verdict.
Justice Dhulia said the courts, however, must interfere when the boundaries set by the Constitution are broken or where unjustified restrictions are imposed.
Referring to the apex court verdict in the Ram Janmabhoomi case, he noted that the top court had cautioned not to venture into areas of theology with which the courts are not well equipped.
“There may be diversity of views within a religion and to choose one over others, may not be correct. Courts should steer clear from interpreting religious scriptures,” he noted.
Justice Dhulia said as to what constitutes an essential religious practice, in all its complexities, is a matter which is pending consideration before a nine-judge constitution bench of the apex court and therefore, it may not be proper for him to go any further into this aspect.
He observed that the Karnataka hijab ban case is “squarely covered” by the case of Bijoe Emmanuel and the ratio laid down there.
“The decision which is of essential importance in this case for our purposes is the decision given by this court in the case of Bijoe Emmanuel.
“It is necessary to refer to this case in some detail, as in my opinion this case is the guiding star which will show us the path laid down by the well established principles of our Constitutional values, the path of understanding and tolerance, which we may also call as ‘reasonable accommodation’, as explained by some of the lawyers before this court,” he said.
In the Bijoe Emmanuel case, the apex court had upheld the right of the students belonging to Jehovah’s Witnesses not to sing the national anthem during the school prayer though the students stood up and extended all respect.
In that case, the court held the real test of a true democracy is the ability of even an insignificant minority to find its identity under the Constitution.
“The girls before us today face the same predicament as the Jehovah’s Witnesses in the above case. 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,” Justice Dhulia said.
He noted that the approach of the high court could have been different and instead of straightaway taking the essential religious practice route, as a threshold requirement, the court could have first examined whether the restriction imposed by the school or the government order on wearing hijab were valid restrictions.
The state government’s February 05, 2022 order had banned wearing clothes that disturb equality, integrity, and public order in schools and colleges
On March 15, the high court had dismissed the petitions filed by a section of Muslim students of the Government Pre-University Girls College in Karnataka’s Udupi seeking permission to wear the Muslim headscarf inside classrooms, ruling it is not a part of the essential religious practice in Islamic faith.
Asking a pre-university schoolgirl to take off her hijab at her school gate is an “invasion” of her privacy and dignity, Justice Sudhanshu Dhulia said.
He said under the constitutional scheme, wearing hijab should be simply a “matter of choice”.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia delivered split verdicts on the Karnataka Hijab ban row and referred the matter to the Chief Justice of India for constitution of an appropriate bench to consider the contentious issue.
In his separate 73-page judgement, Justice Dhulia observed that the hurdles and hardships a girl child undergoes in gaining education are many times more than a male child.
“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,” he said.
“Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India,” he said, adding, “It is still her Fundamental Right, not a ‘derivative right’ as has been described by the high court.”
The judge said wearing hijab 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,” he said.
Justice Dhulia said whether wearing hijab is an essential religious practice in Islam or not is not essential for the determination of this dispute.
“If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom,” he said, adding, “Under our constitutional scheme, wearing a hijab should be simply a matter of choice.”
He noted that 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 Constitution bench of the apex court and it may not be proper for him to go any further into this aspect.
Justice Dhulia said we live in a democracy and under the rule of law and the laws which govern us must pass muster the Constitution of India.
“Amongst many facets of our Constitution, one is trust. Our Constitution is also a document of trust. It is the trust the minorities have reposed upon the majority,” he observed.
The judge noted that fraternity, which is our constitutional value, would require us to be “tolerant”, and as some of the advocates would argue to be, reasonably accommodating towards the belief and religious practices of others.
He said the question of diversity and our rich plural culture is important in the context of this case.
Justice Dhulia noted that schools, in particular the pre-university colleges, are the perfect institutions where the children, who are at an impressionable age and are just waking up to the rich diversity of this nation, need to be counselled and guided so they imbibe the constitutional values of tolerance and accommodation towards those who may speak a different language, eat different food, or even wear different clothes.
“This is the time to foster in them sensitivity, empathy and understanding towards different religions, languages and cultures. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity. This is the time when they must realise that diversity is our strength,” he said.
Justice Dhulia said the unfortunate fallout of the hijab restriction would be that “we would have denied education to a girl child.”
He observed that this case 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!,” he noted in the verdict.
The judge further said, “All the petitioners 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 or against any other provision of Part III (fundamental rights) of the Constitution.”
He noted these questions have not been sufficiently answered in the high court judgement and the state has not given any plausible reasons either in the February 5, 2022 government order or in the counter affidavit before the high court.
The state government’s February 5, 2022 order had banned wearing clothes that disturb equality, integrity, and public order in schools and colleges.
“It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and-order problem. To the contrary, reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences,” Justice Dhulia said.