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The SC judgement on the hijab ban lays out 2 divergent views,highlighting “what is?” and “ what
ought to be?”
Whereas Justice Hemant Gupta laid out the existential meaning of secularism in the form of
uniformity, Justice Sudhanshu Dhulia laid out how the practice of secularism should be in a
democracy, by imbibing the practice of tolerance towards diversity.
Both of the views bring the case at a paradoxical intersection of positive and negative secularism.
Justice Gupta argued that a girlʼs right to express herself under Article 19(1)(a) stops at her school
gate. Thus, uniformity in a “secular” public institution is a reasonable restriction to right to freedom
of speech and expression under Article 19.
He argued that discipline is important to bring uniformity which further would uphold secularism.
Justice Guptaʼs view of discipline highlights Foucaultʼs theory of a ‘disciplinary societyʼ , where
institutions like school, prison, asylum are used as state tools to imbibe discipline and create a
homogeneous society for the sake of governance.
Thus keeping uniform equality at a greater stake than the expression of liberty.
Justice Dhuliaʼs view of upholding the wearing of hijab as a “matter of choice” and an expression of
dignity and privacy under Article 21 which he argued should not be restricted to just personal sphere,
as it being her identity can be carried out in public sphere as well.
Such a strong view may overtly give out a notion of a wider meaning of self expression and
secularism but in its covert form reflects on some deeper questions, like how a womanʼs identity is
shaped? Does the patriarchal practice imbibed deep in the unconscious roots of women is really an
expression of their freedom and dignity or is it just a discourse of patriarchy ?
Further, Justice Dhulia arguing that banning hijab would restrict the education of the girls and
upholding hijab as a ticket for accessing education,this further highlights the downtrodden condition
of women and their subjugation to patriarchal practices for accessing their humanitarian right of
development through education.
“Matter of choice” can be upheld when the choice is being made not as a necessity for accessing
basic opportunities but when the choice is the outcome of freedom to choose between/among
options, which is completely independent of oneʼs right to access to basic opportunities for living a
dignified life.
The hijab case also put forward the question of identity. Our identity is often shaped by our
understandings which are further shaped in our immediate environment. Thus, the notion of identity
is very dynamic. In Iran , where women began to view that hijab as a suppression of their freedom and
demand to break out from their existent identity, which has been a product of the Iranʼs patriarchal
society and governance, the same identity is seen as an expression of freedom, dignity and privacy in
Thus, the question here arises is whether the state is protecting the identity of dignity or the identity
which is a product of patriarchy?
Thus is state really protecting women or the construction of patriarchal discourse?
Further, SC argument in the Hijab case as well as the Sri Govind Lalji Maharaj vs State of Rajasthan
case that the rationality of a religious practice will be determined by the majority of the worshippers
also highlights stateʼs inability to actually address the practices that may be very misogynistic in
The final judgement on the Hijab ban case by a larger constitutional bench is surely going to be a
landmark judgement which is set to define secularism either in positive or negative notion which
would set the path for the citizens and the government to follow. Thus, giving India a more concrete
base to decide which model of secularism will be followed. Further, it would also construct or
deconstruct the effect of patriarchy in developing a womanʼs identity.