Gautam Bhatia on the Split Verdict of Supreme Court on the Hijab Issue: Why and How of the Split

[Sukla Sen]

[As in Iran, at its very heart lies the issue of the right to choose by a female -- in this case a Muslim. 

The right to choose, of course, is crucial just not only in relation to the state but also in relation to the community -- including family and friends.

At yet another level, in India, while the BJP is constantly trying to humiliate the Muslims and provoking Hindu-Muslim conflicts as an integral element of its larger project, the PFI and the likes are responding to those provocations in ways that would just be loved by the BJP.

Nonetheless, the fight for the right to reject hijab is the obverse side of the right to wear hijab, if one so wishes.

Imposition -- whether by the state or society or whoever -- either way, is to be opposed tooth and nail.

The split in the subject Supreme Court verdict is only emblematic of the split and tussle between human aspirations to assert and strengthen individual agency vis-a-vis the collective and the drive by the collective to maximise control of individual conduct.

Not to forget, in India today--under the incumbent regime, this drive is assuming more and more monstrous proportions by the day. And also noteworthy is the fact that the highest court has largely transformed itself into an executive court.

<<The final important facet is perhaps the most basic of all: education. Dhulia J. asks himself whether “we are making the life of a girl child any better by denying her education, merely because she wears a hijab!” (paragraph 66). This observation comes in the context of the admitted fact that after the Karnataka High Court’s judgment, many girls were unable to take their exams. Once again, the differences between Dhulia J. and Gupta J. are stark: for Gupta J., there is nothing to see here, as the girl students’ missing exams is, essentially, their own fault for refusing to follow the uniform. Dhulia J., on the other hand, recognises that the situation is rather more complex: it is a known fact, for example, that in many households, access to education is a contested terrain between the girl-child and her (conservative) family, with permission to go to school contingent upon the wearing of the hijab. Indeed, as Nisha Susan highlights in this article, there are a range of complicated reasons why someone might wear the hijab, and it is almost never as simple as a total compulsion/unencumbered choice binary: indeed, agency is something that is both situated and negotiated, especially when it comes to women dealing with patriarchy, both within the home and outside. Thus, for Dhulia J., what it basically comes down to is whether the effect of the Court’s judgment will be the denial of access to education; and if so, how best to ensure that that outcome is avoided.

*Conclusion*

At one level, the split within the bench turns upon different understandings of the law and of its application. On a closer look, however, the difference is much more fundamental: it is a difference in world-view.

One of these worlds is governed by the iron laws of discipline and control; of inflexible rules and punitive action for those that question them; of authority that brooks no “rebel or defiance”; of homogeneity, the denial of difference, and the “unanimity of the graveyard”; of one tune and one song; and a world in which students are like undifferentiable lumps of clay, to be moulded into what the authority considers to be “model citizens.”

The other world celebrates freedom and plurality; believes that rules should allow space to breathe instead of suffocation; values diversity – and the expression of diversity – over homogeneity; believes in the beauty of an orchestra, with many voices, rather than just one; sees the classroom as a space of liberation rather than control; and considers students to be autonomous, thinking beings, capable of making choices, and even difficult, negotiated choices.

Which world would we rather live in? That question is for each of us to answer for ourselves. Which world do we live in? The answer to that hangs in the balance; and all eyes will now turn to the Chief Justice, and the next – and perhaps – final round in the history of this case.>>

(Excerpted from: <https://indconlawphil.wordpress.com/2022/10/13/discipline-or-freedom-the-supreme-courts-split-verdict-in-the-hijab-case/>.)

[Sukla Sen]

Hi John,

Guess, it became somewhat evident rather early during the hearing, that we'd be having a split verdict here.

As far as the senior of the two -- Gupta is concerned, only the other day in another case he remarked that bonded labour is a racket on the part of the labourers in order to make money. 

"Do you know who are bonded labourers? They are not bonded. They take the money and come there and are engaged by brick kilns. They come from backward areas. They take the money and eat the money and then resign. This is a racket in the country. These labourers only take advantage of this bonded labourer thing," Justice Gupta, who was part of the bench, observed.

(Ref.: <https://lawtrend.in/its-a-racket-labourers-are-taking-advantage-of-the-bonded-labour-thing-justice-hemant-gupta/>.)

Not only that:

"Justice Hemant Gupta is the son of Hon'ble Jitendra Vir Gupta...he (Justice Hemant Gupta's father) was arrested in 1992 when RSS was banned because he was the chief of RSS."

(Ref.: <https://www.livelaw.in/top-stories/judge-cant-perform-with-the-intention-of-pleasing-people-justice-hemant-gupta-on-his-farewell-function-211696>.)

All this was pretty well known.

On the other, Justice Dhulia gave enough indications that his sympathies were on the side of the petitioners.

Sukla

On Mon, Oct 17, 2022, 20:59 john dsouza <jo...@doccentre.net> wrote:

  Dont we ask two children who have differences, to sit down, and at
least talk to each other, and appreciate their point of view. In fact in
Appreciative inquiry, and in dialogue games, we first ask two contenders
to repeat what the others view is, and address why they disagree. I
wonder if the split verdict judges tried to do that..