THE VOICE OF DISSENTING OPINION: HIJAB JUDGEMENT
Author: Niharika Rai, I year of B.A.,LL.B(Hons.) From National Law University, Punjab.
The two-judge bench constituting Justice Hemant Gupta and Sudhanshu Dhulia had a split verdict in the case of Aishat Shifa v. State of Karnataka. Justice Dhulia had a dissenting opinion over the applicability of Article 19(1)(a). It was contended by the petitioners that wearing the headscarf (hijab) shall be protected as a freedom of speech and expression when asked not to wear the same inside the educational institutions. The case was further transferred to Supreme Court, wherein the split verdict arose. Therefore, the author opines that the split verdict, in this case, was the sine qua non and how significant are the dissenting opinions.
The Judgement and significance of Dissenting opinion
In his decision upholding the Karnataka High Court's March 15 decision validating the ban on wearing the hijab in classrooms, Justice Hemant Gupta rejected the claim that denying students the right to wear a headscarf also denies them the right to attend classes. He stated that "it would... not amount to the denial of the right to education if a student, by choice, does not attend the school." The rationale behind the same was that students are at liberty to choose what to wear and what to discard but outside the institutional premises, as soon as they are on the premise, it is their duty to abide by the cohesive cordial atmosphere. Also, once the uniform is ascribed, one should abide by it, whether rich or poor.
The same was outrightly dissented by Justice Dhulia wherein he iterated the fact that asking a girl to put off the headscarf is a gross intrusion to privacy and dignity under Article 19(1)(a) and 21. Article 19(1)(a) states freedom of speech and expression whereas Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The abstract idea of fraternity has to be applied to ascertain constitutional goals. He also reiterated that it’s a matter of choice and foremost education of the girl child. The gross enrolment ratio of Muslim girls in school is around 12.48%, which is way lower than that of Hindu girls at 27.3%. Considering the data and looking at the fact that wearing hijab has been a sine qua non for them. To a large extent, this may be considered as a reason for the fall in the enrolment of the Muslim girl child.
Also, Article 19(1)(a) explicitly mentions that freedom of speech and expression shall be granted to each citizen. Denying the fact that wearing hijab does not abide by the cohesive cordial atmosphere, all the others arguments given in favour to justify the ban in institutions are unjustified. In Puttaswamy, it was decided that "the legitimacy of a legislation that violates fundamental rights must be examined not concerning the State action's intended goal but based on its impact on the guarantees of freedom." The act's intended outcome has no bearing on whether a basic right has been violated. Only the influence on the right is an important metric. Even though the law's goal in this instance was to promote holistic development, the impact on hijab wearers' rights was obvious. As a result, Article 19(1)(a) likely remains unjustified.
The grounds ascertained by both judges hold their significance, but the dissenting opinion of Justice Dhulia was appreciated at large across the country. The reason simply is that perpetually the bench avoids giving any dissenting opinion to wind up the cases at large or to avoid controversies depending from situation to situation. The case in itself is a complex one having multiple interpretations as per religion, socially, and constitutionally. The dissent in this case in itself is an audacious move on various grounds.
According to Article 145(5) of the Indian Constitution, the judges' majority opinion must be taken into consideration; but, judges are permitted to submit their own dissenting opinions if they believe the majority judgement is flawed or calls for an alternative strategy. Judges now have the "mental independence" to make what they perceive to be reasonable judgments. Judiciary independence and true democracy are intimately tied to the importance of recognizing opposing views. A democracy is only a theoretical one as long as dissent is suppressed. Democratic rule fails (in practice) when dissenters are denied a voice, leading to the adoption of the authoritarian viewpoint and ultimately mobocracy. Dissenting judgments are significant because they give judges the ability to make impartial decisions, fostering a progressive outlook in the process. Only by acknowledging such criticism can society and the law advance. It's not entirely inaccurate to believe that dissent and democracy go hand in hand. By removing superfluous clauses and amending those that need to be amended, dissenting views help the law become a reality. Repressing dissenters is bad for everyone involved, including the dissenters themselves and democratic practice. Dissent cannot be put to death in a democracy.
One of the well-marked dissenting opinions is in the case of “ADM Jabalpur v. Shiv Kant Shukla”, wherein Justice Khanna gave his dissenting opinion that there would be no locus standi (standing before the court) to report a writ of habeas corpus or any other writ and that the right to seek the court for the enforcement of fundamental rights was suspended during the emergency. It’s been observed that when a judgement is given by the senior judge then it ultimately holds the upper hand and the dissent by other judges usually is swayed away. Therefore, this decreasing trend of dissenting opinion needs to be taken into account.
THE WAY FORWARD
Publishing the dissent contributes to improving the reasoning of the majority, ensuring that decisions are fully considered, and independent, and that individual decision-maker are held accountable in the sense that they are seen to carry the responsibility of judgment rather than taking the simple route and following others. Freedom of speech and expression is embodied in the printing of dissent. If a society is to develop holistically while defending both the economic and civic rights of its inhabitants, dissent and debate must be permitted, if not even encouraged. The split verdict in the hijab judgement is indeed an appreciable one and shall be taken as a lesson for the future.