In his verdict upholding the March 15 decision of the Karnataka High Court Validating the ban on wearing the hijab in classrooms, Judge Hemant Gupta rejected the argument that denying students the right to wear a headscarf also denies them the right to attend class, saying that “It would not amount to a denial of the right to education if a student, by choice, does not attend school.
“The state has not denied admission to students to attend classes. If they choose not to attend classes because of the uniform prescribed for them, it is a voluntary act of these students “, he wrote, adding that “a student cannot therefore claim the right to wear a headscarf in a secular school because a question of right.
Judge Gupta found that “the argument that wearing the headscarf confers dignity on female students is also not tenable”. He said ‘students attend an all-girls college’ and ‘are free to wear their religious symbols outside of schools, but in pre-university college, students are expected to look alike, look alike, think alike and study together in a warm and cohesive atmosphere. This is the objective of a uniform, in order to standardize appearances”.
Confirming the power of the State Government to constitute College Development Committees (CDCs) under the Karnataka Education Act 1973 and delegate to it the decision to implement the uniform in accordance with the Government Order (GO) dated February 5, 2022, he stated that “the intention and object” of the GO “is only to maintain uniformity among students by adhering to the prescribed uniform and” is reasonable because it has the effect of regulating the right (of freedom of speech and expression) guaranteed by Article 19 (1)(a).”
He reiterated that no fundamental right is absolute and cannot be restricted by following due process, and that freedom of conscience and religion under Article 25 is subject to the restrictions provided for in Article 25( 1). “This right is not only subject to public order, morals and health, but also to the “other provisions of Part III”. This would also include section 14 which provides for equality before the law.
He rejected the claim that restrictions on wearing the hijab would hinder the development of brotherhood, Justice Gupta said that “the abstract idea of brotherhood…must be applied to the realities on the ground in which some students wearing the headscarf in a secular school run by the state government would stand outside and openly appear differently… The constitutional goal of brotherhood would be defeated if students were allowed to take their overt religious symbols with them into the classroom” .
Judge Gupta stated that the right under Article 19(1)(a) “does not extend to the wearing of the headscarf. Once the uniform is prescribed, all students are required to follow it. The uniform is to assimilate students regardless of rich or poor, regardless of caste, creed or creed and for the harmonious development of students’ mental and physical faculties and to cultivate a secular outlook.
Rejecting arguments equating wearing the hijab with wearing the rudraksha or a cross, he said the GO “necessarily excludes all religious symbols visible to the naked eye. The argument that students wear Rudraksha or a cross is mentioned only to deal with an argument thus raised. Anything students wear under their shirts cannot be considered objectionable in terms of GO. »
He also deemed it unnecessary to refer the case to the nine-judge SC Bench which will consider the legal issues raised in Sabarimala’s review petitions, saying it was set up “to consider much broader issues”, or to a five-judge Constitution bench. because it does not “raise any substantive question of law”.
