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"...The argument that the school is insisting on surrendering or curtailing the right to wear a headscarf as a pre-condition to access education is not tenable as the right to education is available but only condition is that the students should attend the classes in prescribed uniform", Justice Gupta opined.
While pronouncing the spilt verdict on the hijab matter, Justice Hemant Gupta and Justice Sudhanshu Dhulia had dissenting opinions. Where Justice Gupta, upheld the impugned Government Order, and the Karnataka High Court judgment restricting wearing of Hijab in pre-university institutions in the state of Karnataka.
Justice Hemant Gupta drafted 11 questions, to which he answered in negation. Therefore, dismissing the appeal, holding hijab as not an essential religious practice that impinges on the fundamental rights.
On the argument that restricting girls from wearing a hijab to schools is not only denying them right to access education, but also depriving them of the right to live with dignity, and right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution.
To that Justice Gupta opined, "The State has not put any restriction to avail such right of education. The right of education is available to every student. The State has only regulated the right in a manner that students come to the school to attend classes only in the prescribed uniform, and the same has been done to achieve the statutory and constitutional goals. The students cannot assert that they have a right to education but they would avail such right as per their own wish and in the manner which they consider appropriate. Schools are to prepare the students for their future endeavors in life. 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".
He further stated in his judgment that, "...students should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance. The argument that the school is insisting on surrendering or curtailing the right to wear a headscarf as a pre-condition to access education is not tenable as the right to education is available but only condition is that the students should attend the classes in prescribed uniform".
It is to be noted that, today, a division bench of the Supreme Court consisting of Justices Hemant Gupta and Sudhanshu Dulia delivered a split verdict in a batch of pleas challenging the ban imposed on wearing of hijab in pre-university institutions in Karnataka.
While Justice Gupta held that Hijab is not an essential religious practice that impinges on the fundamental rights, Justice Dhulia overturned the Karnataka High Court verdict while adding, "that a girl child already has a lot of problems that she faces in the rural India. The question in my mind is, whether we are making her life difficult".
CASE TITLE: Aishat Shifa vs. State of Karnataka
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