Hijab verdict | Justice Sudhanshu Dhulia: ‘Asking schoolgirl to take off hijab invasion of privacy and dignity; violative of Articles 19(1)(a) and 21’

He said that “under our Constitutional scheme, wearing a hijab should be simply a matter of Choice.”

Justice Dhulia took exception to the High Court’s finding that the petitioners cannot assert their “fundamental rights” inside a classroom, which it termed a “qualified public place”.

The HC had referred to courts, war rooms, defence camps, etc., as other examples of qualified public spaces where freedom of individuals is curtailed as per necessity.

On this, Justice Dhulia said that “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. But discipline not at the cost of freedom, not at the cost of dignity…

“Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom. It is still her Fundamental Right, not a “derivative right” as has been described by the High Court.”

Justice Dhulia referred to submissions that the fallout of the hijab ban has been that some students have not been able to appear in their Board examinations, and many others have had to seek transfer to other schools, most likely madrasas, where they may not get the same standard of education. It said “the School Administration and the State must answer…as to what is more important to them: Education of a girl child or Enforcement of a Dress Code!”

Elaborating, he wrote, “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… This case therefore has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school.”

He said wearing hijab “may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her classroom, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.”