It delays resolution of an issue but also underlines the diversity of thought that
guides our top judges
Two Supreme Court judges, two viewpoints. The split verdict can be seen as problematic, for an important
question—whether a ban on hijab in classrooms is justified—remains unanswered. Yet, it also underlines the diversity of
thought that guides our top judges. While Justice Hemant Gupta supported the ban on hijab, Justice Sudhanshu Dhulia
opposed it, saying that “it's ultimately a matter of her choice.” Gupta relied mainly on the essential practices doctrine—that is,
the practices which comprise the essential part of a religion. For instance, having uncut hair and beard is regarded as an
essential part of Sikhs. This is the reason that Sikh soldiers are allowed to grow beards and wear turbans, because without
a beard and turban a Sikh won't be a proper Sikh. But a Muslim from the armed forces is not allowed to have a beard. In
December 2016, the Supreme Court upheld the sacking of an Indian Air Force (IAF) man for keeping a long beard. “Every
member of the Air Force, while on duty, is required to wear the uniform and not display any sign or object which
distinguishes one from another. Uniformity of personal appearance is quintessential to a cohesive, disciplined and
coordinated functioning of an armed force,” the top court had said. It went on to add that this prohibition didn't infringe upon
their fundamental right to religion. Similarly, a Hindu soldier is not allowed to apply tika on his forehead while on duty, for he
doesn't lose his faith without a tika. Similarly, a Muslim woman doesn't cease to be Muslim if she doesn't wear a hijab or
burqa.
Dhulia, on the other hand, laid more emphasis on the Muslim girl child's right to education. He invalidated the Karnataka High
Court judgment and quashed the Karnataka Government's order of February 5, 2022, which had empowered college
management committees to decide on the matter. “The court probably took the wrong path. It was simply a question of Article
19(1)(a), its applicability and Article 25(1), primarily. And it's ultimately a matter of her choice…” he said. “The thing which was
uppermost on my mind while deciding this case was about the education of a girl child,” Dhulia said. While his concern for girls'
education is admirable, his contention that their “choice” should matter doesn't appear very cogent. For what Muslim or Hindu girls
wear mostly depends on their parents, family, and the social environment. Secondly, downplaying the essential practices doctrine,
which has been evolved by the apex court only, doesn't seem very good. Common law countries like India depend on precedent
rather than prescription. After all, the Supreme Court's Sabarimala verdict of 2017 was based on this doctrine only. Now the matter
has gone to Chief Justice UU Lalit for appropriate directions. Hopefully, the matter would be resolved in accordance with the
essential practices doctrine but without offending the sensibilities of Muslims, even those who are orthodox. The Pioneer
