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Synopsis

While pronouncing the spilt verdict on the hijab matter, Justice Hemant Gupta and Justice Sudhanshu Dhulia had dissenting opinions. Where Justice Sudhanshu Dhulia delivered a split verdict by overturning the Karnataka High Court verdict and the Government Order in the Hijab case. Justice Dhulia says, "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".

The focus of the entire his judgment was primarily on the girls and not just students. He stated in his judgment, "The question this Court would therefore 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 further asks in his judgment, 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 of the Constitution.

Justice Dhulia kept the focus on a girl rather than a student. The perspective which he had while delivering the judgment focused on the prevailing conditions of a girl child, and the conditions that they have been living ever since. He was of the opinion that the present case at hand should be seen from the regular ordeal of a girl when a choice has to be made between her and her brother. He therefore, opined, 

"One of the best sights in India today, is of a girl child leaving for her school in the morning, with her school bag on her back. 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. In villages and semi urban areas in India, it is commonplace for a girl child to help her mother in her daily chores of cleaning and washing, before she can grab her school bag. The hurdles and hardships a girl child undergoes in gaining education are many times more than a male child. This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school".

Justice Dhulia made certain observations on the plurality and the impressionable age, that was contended in the arguments. What Justice Hemant Gupta thought necessary for a student of an impressionable age, Justice Dhulia also considered it to be as important, but the views were contrary. Justice Dhulia was of the opinion that India is a land of diverse cultures, and what better way and age to introduce students with the myriad cultures. He opined, 

"Our schools, in particular our Pre-University colleges are the perfect institutions where our children, who are now at an impressionable age, and are just waking up to the rich diversity of this nation, need to be counselled and guided, so that they imbibe our constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different food, or even wear different clothes or apparels! 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 in diversity is our strength".

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