It is necessary to have discipline in schools but not at the cost of freedom and dignity, Supreme Court judge Justice Sudhanshu Dhulia said on Thursday in his judgement on the Karnataka Hijab ban row.
A bench of Justices Hemant Gupta and Sudhanshu Dhulia delivered split verdicts in the case and said the matter be placed before the Chief Justice of India for constitution of an appropriate bench.
Justice Dhulia, who set aside the Karnataka High Court verdict which had refused to lift the ban on hijab in educational institutions of the state, referred to one of the findings in the high court judgement and said it is difficult to accept.
"This is where the high court determines that the petitioners cannot assert their Fundamental Rights inside a classroom which the court terms as 'qualified public places' and the rights inside a school are only 'derivative right',” he said in his 73-page separate judgement.
He noted the high court had rejected the case of the petitioners on 'reasonable accommodation' and also the argument that schools are a showroom for diversity of culture, for reason that the schools being 'qualified public places', schoolgirls have to follow the dress code, which does not prescribe hijab.
Justice Dhulia said comparison of a school with a war room or defence camp, seems odd, to say the least.
"Schools are not required to have the discipline and regimentation of a military camp. Nevertheless, in my understanding, what the high court wanted to convey was that all public places have a certain degree of discipline and limitations and the degree of enjoyment of a right by an individual inside his house or anywhere outside a public space is different to what he or she would enjoy once they are inside a public space," he said.
Justice Dhulia observed, as a general principle, one can have no quarrel with this proposition.
He said laying down a principle is one thing, justifying that to the facts of a case is quite another.
"We must be a judge of fact as well as a judge of law. Do the facts of the case justify the restrictions inside a classroom, which is admittedly a public place? In my opinion there is no justification for this," he said.
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 the wearing of hijab anywhere in the schools and colleges of the state.
In his verdict, Justice Dhulia noted school is a public place, yet drawing a parallel between a school and a jail or a military camp, is not correct.
"Again, if the point which was being made by the high court was regarding discipline in a school, then that must be accepted. It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity," he said.
Justice Dhulia observed that another question which the school administration and the state must answer in this case is as to what is more important to them -- education of a girl child or enforcement of a dress code.
"We have been informed at the Bar by many of the senior counsels appearing for the petitioners, that the unfortunate fallout of the enforcement of hijab ban in schools in Karnataka has been that some of the girl students have not been able to appear in their board examinations, and many others were forced to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education. This is for a girl child, for whom it was never easy, in the first place, to reach her school gate," he noted.
Justice Dhulia said a girl child has the right to wear hijab in her house or outside her house, and that right does not stop at her school gate.
He said the child carries her dignity and privacy even when she is inside the school gates, in her classroom.
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"She retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect," he said.
Justice Dhulia noted that the question of diversity, which was raised by the petitioners before the high court, was not considered by the court since "it was thought to be a 'hollow rhetoric,' and the submissions made by the lawyers on 'unity and diversity', were dismissed as an 'oft quoted platitude'." He observed question of diversity and our rich plural culture is important in the context of the case.
