11/16/22, 9:12 AM LawBeat | Column| Critique of Justice Dhulia's Opinion

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The feisty Hijab case came to an inconclusive denouement with
a split verdict. Justice Hemant Gupta delivered his opinion 

supporting the verdict of the Full Bench of the Karnataka High

Court and Justice Sudanshu Dhulia dissented and quashed the
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notification.
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The facts necessitating in the culmination of the present case is Against Order Directi…

that few girl students studying in a few government run schools Raj Bhojani   
and pre-university were adamant that they want to wear a hijab 15 Hours Ago

over and above the prescribed uniform. In response to the


same, Hindu students also wore saffron shawls. To avoid any
further controversy, the Government of Karnataka came out
with a notification vide GO no. EP14 SHH 2022 dated Delhi High Court
05.02.2022 whereby strict compliance with the uniform Dismisses Uddhav
prescribed by the College Development Committee, or the Thackeray's Plea…

board of management ought to be followed with no deviation. Gautam Mishra   

This, in effect, gave quietus to the controversy raging around 16 Hours Ago

the hijab and saffron shawls. 

Challenging the same, a few Muslim girl students approached

the Karnataka High Court by way of a Writ Petition. After
hearing all the parties at length, the High Court upheld the

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11/16/22, 9:12 AM LawBeat | Column| Critique of Justice Dhulia's Opinion

validity of the notification issued by the State. Aggrieved parties

approached the Supreme Court which ultimately resulted in the
split verdict.

To begin with, Justice Dhulia’s final part of the Judgment in para

84 (c) specifically states that there shall be no restriction on the
wearing of hijab anywhere in the schools and colleges while in
(b) he quashes the notification. In addition to the repetition
qualifying as a meaningless tautology, Justice Dhulia has
refrained from making any observation also permitting wearing
of saffron shawls. It is quite possible that any authority in the
future may make use of this lacuna to restrict wearing of saffron
shawls by Hindus while freely permitting Muslim women to wear
hijab. Justice Dhulia’s myopic view would go on to show that the
said GO had banned only hijab while the fact remains that the
GO was overarching in its message to ban any apparel that does
not qualify within the uniform prescribed by the school/college.

In para 17 of the Judgement, Justice Dhulia criticizes the High

Court for going into the issue of Essential Religious Practice
(“ERP”). However, the High Court had to delve into the issue of
ERP only because the Petitioners therein before the High Court
had raised it in the first place. Contradicting his observation in
para 17, Justice Dhulia, in para 21 admits that the High Court
had to go into the said issue only because the Petitioners
therein had raised it. Further, in one breath, Justice Dhulia
opines that the issue of ERP need not have been gone through
holding that the issue of ERP is not relevant. However, in the
same breath, he also discusses the issue of ERP in detail in the
following subsequent paragraphs. The contradiction by itself is
inexplicable.

In para 39 of the Judgement, Justice Dhulia brings in the

example of Bijoe Emanuel case to justify his Judgement/dissent.
However, Justice Dhulia, who distinguishes Shirur Mutt case
from the instant case by employing fine arguments failed to
apply a similar standard while testing the applicability of Bijoe
Emmanuel case. In the said case, the circular mandating to
stand up and sing the national anthem was applicable to all
schools and not just to government/secular schools. Hence, the
said notification was quashed as the Apex Court found that it
interfered with the free functioning of minority-based
institutions. However, in the instant case, the GO is applicable
only to government/secular schools and other private/minority
institutions are free to function according to their choice.

Justice Dhulia also criticizes the High Court, in para (s) 50 – 53,
that although school is a ‘qualified public place’, the
enforcement of discipline cannot be at the cost of one’s
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11/16/22, 9:12 AM LawBeat | Column| Critique of Justice Dhulia's Opinion

freedom and dignity and asking students to remove their hijab

amounts to an invasion of their privacy in addition to their
freedom and dignity. There is an inherent contradiction within
this assertion of Justice Dhulia. If the education institution is a
“qualified public place”, then reasonable restrictions can be
permitted. Particularly, prescribing uniform would be permissible
since it is falls within the realm of “reasonableness”. However,
Justice Dhulia plainly says that hijab as an accessory/addition to
the uniform is still permissible despite the educational institution
being a ‘qualified public place’ without assigning any reason as
to how. If the argument is that the educational institutions a
‘public place’ then it flies in the face of a generally understood
definition of public place as in such a place people of all ages
and races will be equally permitted access to the place without
any restriction, which is not the case with education institutions.

The other major arguments that was accepted by Justice Dhulia

is that Fundamental Rights under Article 25 of the Constitution
and that any belief/practice that is sincere and does not cause
harm to anyone and is not in conflict with public order, morality,
and any other provision of this part (Part III) can be permitted.
He further states that everybody has a right to assert their
religious identity so long as it falls within the scope just
described and towards that end, the State must reasonably
accommodate them. To cheer at this interpretation would also
invite the consequences unimaginable. The theory of
consequentialism while interpreting laws is that the Courts
ought not to give an interpretation to a law that would produces
consequences not intended by the Legislature.

Hence, if the said argument in the foregoing paragraph is

accepted, then any Hindu boy can object to wearing of black
shirts/pants since in some Hindu communities, black colour is
associated with inauspiciousness. Similarly, Hindu boys can
insist on wearing a saffron tie as saffron is considered
auspicious. All the boxes check in such a scenario. The wearing
of saffron/not wearing of black is a sincere belief harming
nobody and hence they have the right to assert the same which
the State would have to reasonably accommodate. It can even
be stretched to permit some students not to wear shoes.
Students can also be permitted to perform religious oblations
during lunch time or before classes commence without
disturbing the class. This is a consequence that would benefit
nobody. In fact, the said GO makes it clear that the intention of
the State is to promote a uniform that harmonizes and
standardizes education for all on an equal basis.

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11/16/22, 9:12 AM LawBeat | Column| Critique of Justice Dhulia's Opinion

Certain rules that may appear to promote exclusion or

exclusionary are necessary to promote inclusivity, more so in an
educational institution. Every individual has his or her own set of
beliefs and religious practices, allowing them to be practice it
freely even in secular spaces such as schools/colleges would
vitiate the broader purpose of educational system itself.
Reasonable restriction can be permitted in such places and the
school authorities prescribing uniform is, indeed, a reasonable
restriction to promote inclusivity.

In sum and substance Justice Dhulia’s opinion might appear

seemingly liberal but however only juxtaposes a paradoxical
view loathed with legal infirmities.

Authors' opinion are personal

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