Chief Justice of India D.Y. Chandrachud on Monday said he will consider forming a three-judge Bench soon to hear afresh petitions filed by Muslim students from Karnataka who are seeking a declaration of their right to wear hijab inside their classrooms.
Senior advocate Meenakshi Arora made the oral mentioning for early hearing of the case. She said the students were about to have their practicals on February 6.
Opinion | The hijab case and the essential practices doctrine
A Division Bench of Justices Hemant Gupta and Sudhanshu Dhulia had delivered a split verdict in October last year on whether or not students have a fundamental right to wear hijab in government institutions.
Justice Gupta had upheld the Karnataka’s prohibitive government order, saying "apparent symbols of religious belief cannot be worn to "secular" schools maintained from State funds. He had said ‘secularity’ meant uniformity, manifested by parity among students in terms of uniform.
The judge had held that adherence to uniform was a reasonable restriction to free expression. The discipline re-inforced equality. The State had never forced students out of state schools by restricting hijab. The decision to stay out was a “voluntary act” of the student.
In his divergent opinion, Justice Sudhanshu Dhulia had said secularity meant tolerance to "diversity". Wearing or not wearing a hijab to school was "ultimately a matter of choice". For girls from conservative families, “her hijab is her ticket to education”.
“By asking the girls to take off their hijab before they enter the school gates, is first, an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education… There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka,” Justice Dhulia had held.
Justice Gupta, in his opinion, had said students need to follow the discipline of wearing the school uniform without any “addition, subtraction or modification”. A student cannot claim the right to wear a headscarf to a secular school as a matter of right. “A girl’s right to express herself by wearing a hijab stopped at the school gate”.
But Justice Dhulia countered that school was a public place. It was not correct to draw a parallel between a school and a jail or a military camp.
