An interesting aspect of the hijab case judgment of the Supreme Court is the contrasting, if not diametrically opposite, views expressed by Justices Hemant Gupta and Sudhanshu Dhulia regarding the concepts of fraternity, diversity and discipline. While Justice Gupta is of the opinion that allowing religious headscarf in the classroom will fragment the concept of fraternity, Justice Dhulia expressed that it can expose students to diversity and enable them to inculcate tolerance towards religious and cultural differences.

Preambular goals will be achieved by removing religious differences in school : Justice Gupta

Justice Gupta’s view is that the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike before they attain the age of adulthood.

The emphasis of Justice Gupta is on homogeneity when he says “uniform fosters a sense of ‘equality’ amongst student and that “if the students of one faith insist on a particular dress…it would not be conducive to the pious atmosphere of the school”.

He says that the “homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols”.

Fraternity will be destroyed if students are permitted to carry religious attire : Justice Gupta

Justice Gupta further says : “The concept of fraternity will stand fragmented as the apparent distinction of some of the students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogeneously and equally, irrespective of any religious identification mark. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom”.

He also rejects the argument of reasonable accommodation by saying :

“Constitutional goals such as secularism, fraternity, dignity mean equality for all, preference to none. The accommodation sought is contrary to spirit of Article 14 as it would result in different treatment of students in secular schools who may be following varied religions beliefs”.

Question of diversity an important context of the case : Justice Dhulia

In contrast to Justice Gupta’s emphasis on homogeneity, Justice Dhulia says that the question of diversity is important in the context of the case. Before starting his analysis of this issue, he says, “Our Constitution is also a document of Trust. It is the trust the minorities have reposed upon the majority”.

While Justice Gupta feels that allowing religious symbols in schools can lead to fragmentation, Justice Dhulia thinks that it can sensitize students to diversity and promote tolerance.

“Our schools, in particular our Pre-University colleges are the perfect institutions where our children, who are now at an impressionable age, and are just waking up to the rich diversity of this nation, need to be counselled and guided, so that they imbibe our constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different food, or even wear different clothes or apparels! This is the time to foster in them sensitivity, empathy and understanding towards different religions, languages and cultures. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity. This is the time when they must realise that in diversity is our strength”.

Fraternity requires us to be tolerant towards other religious practices : Justice Dhulia

He points out that the National Education Policy 2020, of the Government of India underlines the need for inculcating the values of tolerance and understanding in education and making the children aware of the rich diversity of this country.

“Fraternity, which is our Constitutional value, would therefore require us to be tolerant, and as some of the learned Counsels would argue to be, reasonably accommodating, towards the belief and religious practices of others. We should remember the appeal made by Justice O. Chinnappa Reddy in Bijoe Emmanuel (supra) “Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”

On Discipline

Regarding the concept of discipline in classrooms as well, both the judges have divergent perspectives. Justice Gupta advocates a strict view of discipline, without the slightest of the deviation, which will ensure a collective uniformity. On the other hand, Justice Dhulia advocates reasonable accommodation to balance the individual dignity and privacy. Justice Dhulia says that classrooms need not have the degree of discipline expected in a military camp or a jail.

Justice Gupta says – “Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance”.

If students are allowed to add to or subtract from the prescribed uniform, Justice Gupta asks what kind of discipline is sought to imparted to the students.

“Once the uniform is prescribed, all students are bound to follow the uniform so prescribed. The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith and for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook. The wearing of hijab is not permitted only during the school time, therefore, the students can wear it everywhere else except in schools. The wearing of anything other than the uniform is not expected in schools run by the State as a secular institution”, he says.

“School is the time to learn and lay foundation for the future pursuits in life. The students are expected to maintain discipline and the school is  responsible to lay a strong foundation so as to nurture the students as responsible citizens of the country”, Justice Gupta says.

Discipline not at the cost of dignity : Justice Dhulia

Now, let us look at some observations of Justice Dhulia regarding discipline. Terming the Terming the comparison made by the High Court between a school and a war room as “odd”, Justice Dhulia says, “Schools are not required to have the discipline and regimentation of a military camp”.

“School is a public place, yet drawing a parallel between a school and a jail or a military military camp, is not correct”, he adds.

Justice Dhulia further makes a striking observation :

“It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity”. Next, he says that asking a pre-university school girl to take off her hijab at the school gate is an invasion on her privacy and dignity and would amount to denial of secular education.

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