Permitting One Religious Community To Wear Their Symbols Would Be Antithesis To Secularism: Justice Hemant Gupta In Hijab Ban Case

"Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism", the Supreme Court judge Justice Hemant Gupta observed in his judgment in Hijab case.The judge observed that the accommodation sought would result in different treatment of students in secular schools who may be following varied religions beliefs.The court delivered a split verdict, as Justice Sudhanshu Dhulia disagreed with Justice Gupta's judgment and opined that the entire concept of essential religious practice was not essential to the dispute.11 Questions framed Justice Gupta framed the following 11 questions in this case and answered it against the appellants. 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? 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?What is ambit and scope of the right to freedom of 'conscience' and 'religion' under Article 25? What is the ambit and scope of essential religious practices under Article 25 of the Constitution? 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? 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)? 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? 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?Whether in the constitutional scheme, the State is obligated to ensure 'reasonable accommodation' to its citizens? 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? 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?All Answered Against AppellantsThe issue in the present matter is however as to whether the students can enforce their religious beliefs in a secular institution. Thus, the issues raised do not become a substantial question of law as to the interpretation of the Constitution only for the reason that the right claimed by the appellants is provided under the ConstitutionI do not find that the constitution of the College Development Committee contravenes any of the provisions of the Act or the Rules made thereunder or that the regulation of uniform by such Committee is beyond its scope.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 practice of wearing of hijab may be a 'religious practice' or an 'essential religious practice' or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an 88 individual. 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.The rights of citizens of this country cannot be compartmentalized into one right or the other. The rights of citizens have to be read together so as to provide a purposeful meaning to Part III of the Constitution. Thus, all the Fundamental Rights under ...

Permitting One Religious Community To Wear Their Symbols Would Be Antithesis To Secularism: Justice Hemant Gupta In Hijab Ban Case

Ashok KM

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