AISHAT SHIFA versus THE STATE OF KARNATAKA & ORS
[2022] 5 S.C.R. 426, Supreme Court of India, 2022
Outcome: Unknown
Segment: Ratio
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judgment was relied upon to submit that the right to wear a particular
clothing emerges from the right of dignity enshrined under Article 21 of
the Constitution. It was held as under:
“641.2. In National Legal Services Authority v. Union of India
[National Legal Services Authority v. Union of India, (2014) 5
SCC 438], this Court noted that gender identity is an important
aspect of personal identity and is inherent to a person. It was held
that transgender persons have the right to express their self-
identified gender by way of speech, mannerism, behaviour,
presentation and clothing, etc. [Ibid, paras 69-72.] The Court also
noted that like gender identity, sexual orientation is integral to one’s
personality, and is a basic aspect of self- determination, dignity
and freedom. [Ibid, para 22.] The proposition that sexual orientation
is integral to one’s personality and identity was affirmed by the
Constitution Bench in K.S. Puttaswamy v. Union of India [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1, paras 144, 145
and 647.].”
136. The object of the Act is to maintain discipline and control
over the educational institutions in the State with a view to foster the
harmonious development of the mental and physical faculties of the
students. Therefore, discipline and control are with regard to educational
institutions, and not with regard to students. In terms of Section 5 of the
Act, the State Government’s endeavor is
to promote the education of
the handicap, backward classes and the weaker sections of the society
including the economically weaker sections, whereas curricula under
Section 7 includes promotion of national integration and inculcation of
the sense of the duties of the citizens, enshrined under Article 51 of the
Constitution. It is also pointed out that the State provides uniform to all
the students from Class I to Class X as a part of its social obligations and
to maintain parity with all students studying in the Government Schools
without any distinction of caste, creed, sex or religion.
137. Sections 15(b) and 39 (b) & (c) of the Act delineate the
circumstances for the reasonable excuse for non-attendance of the child
at an approved school. One of the accepted excuses is when religious
instructions not approved by his parents are made compulsory. Sections
39 (1)(b) and (c) deals with withdrawal of recognition to such schools
which deny admission to any citizen on grounds of religion, race, caste,
language or where there is direct or indirect encouragement in the
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educational institution of any propaganda or practice wounding the
religious feelings of any class of citizens of India.
138. Rule 11 of the Rules has mandated the recognized educational
institutions including private institutions to prescribe uniforms. Once the
uniform is fixed, it is provided that it shall not be changed for the period
of next five years and when it is intended to be changed, notice for the
same shall be given to the parents at least one year in advance. It is thus
argued that specifications regarding disallowance of hijab was applied
abruptly at the end of the academic section and also applied
retrospectively when the girls had been stopped from entering school on
or about 31.12.2021, though the Government Order was notified on
5.2.2022.
139. I do not find any merit in the above arguments raised by the
appellants. The Government order is in exercise of the executive powers
of the State. The reasons for an enactment of a Statute, Rules and
statutory order are not required to be part of it. It is only when the issue
of constitutionality is raised, the executive is required to satisfy the Court
about the legality of action taken. The right under Article 19(1)(a) as a
right of expression to dress as per one’s own will, however, is also subject
to reasonable restrictions under sub-clause (2) of Article 19. The State
has not put a restriction on the exercise of right conferred under Article
19(1)(a) but has regulated the same in a manner
that during the school
hours on working days and in the class, the students shall wear the
uniform as prescribed. Since it is a regulatory provision for wearing of
uniform, hence, the decision of the State Government mandating the
College Development Committee to ensure the students wear the uniform
as prescribed does not violate the freedom guaranteed under Article
19(1)(a), rather reinforces the right to equality under Article 14. The
College Development Committee is constituted in terms of the statutory
provisions and, therefore, the direction of the State that the College
Development Committee shall ensure that the students wear the dress
as prescribed cannot be said to be violative of Part III of the Constitution.
140. The test of invasion of Article 19(1)(a) is required to be
examined by the test of doctrine of Pith and Substance in view of the
judgment of this Court reported as Bachan Singh v. State of Punjab63
wherein this Court held as under:
63 (1980) 2 SCC 684
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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“60. From a survey of the cases noticed above, a comprehensive
test which can be formulated, may be restated as under:
“Does the impugned law, in its pith and substance, whatever may
be its form and object, deal with any of the fundamental rights
conferred by Article 19(1)? If it does, does it abridge or abrogate
any of those rights? And even if it does not, in its pith and substance,
deal with any of the fundamental rights conferred by Article 19(1),
is the direct and inevitable effect of the impugned law such as to
abridge or abrogate any of those rights?”
The mere fact that the impugned law incidentally, remotely or
collaterally has the effect of abridging or abrogating those rights,
will not satisfy the test. If the answer to the above queries be in
the affirmative, the impugned law in order to be valid, must pass
the test of reasonableness under Article 19. But if the impact of
the law on any of the rights under clause (1) of Article 19 is
merely incidental, indirect, remote or collateral and is dependent
upon factors which may or may not come into play, the anvil of
Article 19 will not be available for judging its validity.”
(Emphasis Supplied)
141. It is to be observed that the Act, Rules and the orders issued
under the said Act were enacted to provide for better organization,
development, discipline and control of the educational institutions in the
State. The primary object was encouraging holistic
development through
education and its various facets. The prescribing of uniform is only an
incidental action in furtherance of the core object of the Act. Therefore,
keeping in view Bachan Singh, some incidental effect on the right under
Article 19(1)(a) cannot be said to be an unreasonable restriction, also
being mindful of the fact that it is not an absolute right.
142. The freedom of expression under Article 19(1)(a) of the
Constitution means right to express one’s opinions by word of mouth,
printing, picture, or in any other manner. It includes the freedom of
communication and the right to propagate or publish one’s opinion. The
communication of ideas could be made through any medium, newspaper,
magazine or movie. Such right is though subject to reasonable restrictions
on grounds set out under Article 19(2) of the Constitution64.
64 S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 547
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143. Further, the right to privacy as crystallized in the Constitution
Bench judgment of K.S. Puttaswamy has to be read in the context of
other provisions of the Constitution in the present appeals. This Court
laid down as under:
“298. ……………The freedoms under Article 19 can be fulfilled
where the individual is entitled to decide upon his or her
preferences. Read in conjunction with Article 21, liberty enables
the individual to have a choice of preferences on various facets
of life including what and how one will eat, the way one will dress,
the faith one will espouse and a myriad other matter on which
autonomy and self-determination require a choice to be made within
the privacy of the mind. The constitutional right to the freedom of
religion under Article 25 has implicit within it the ability to choose
a faith and the freedom to express or not express those choices to
the world. These are some illustrations of the manner in which
privacy facilitates freedom and is intrinsic to the exercise of liberty.
The Constitution does not contain a separate article telling us that
privacy has been declared to be a fundamental right. Nor have
we tagged the provisions of Part III with an alpha-suffixed right
to privacy: this is not an act of judicial redrafting. Dignity cannot
exist without privacy. Both reside within the inalienable values of
life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the
individual.
It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice
and self-determination.
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377. It goes without saying that no legal right can be absolute.
Every right has limitations. This aspect of the matter is conceded
at the Bar. Therefore, even a fundamental right to privacy has
limitations. The limitations are to be identified on case-to-case
basis depending upon the nature of the privacy interest claimed.
There are different standards of review to test infractions of
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles (even
if only slightly differently across some of them). Having
emphatically interpreted the Constitution’s liberty guarantee to
contain a fundamental right to privacy, it is necessary for me to
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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outline the manner in which such a right to privacy can be limited.
I only do this to indicate the direction of the debate as the nature
of limitation is not at issue here.
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526. But this is not to say that such a right is absolute. This right is
subject to reasonable regulations made by the State to protect
legitimate State interests or public interest. However, when it comes
to restrictions on this right, the drill of various articles to which the
right relates must be scrupulously followed. For example, if the
restraint on privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under Article
21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1)(a) only if it relates to the
subjects mentioned in Article 19(2) and the tests laid down by this
Court for such legislation or subordinate legislation to pass muster
under the said article. Each of the tests evolved by this Court, qua
legislation or executive action, under Article 21 read with Article
14; or Article 21 read with Article 19(1)(a) in the aforesaid
examples must be met in order that State action pass muster. In
the ultimate analysis, the balancing act that is to be carried out
between individual, societal and State interests must be left to the
training and expertise of the judicial mind.
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639. The right to privacy as already observed is
not absolute. The
right to privacy as falling in Part III of the Constitution may,
depending on its variable facts, vest in one part or the other, and
would thus be subject to the restrictions of exercise of that particular
fundamental right. National security would thus be an obvious
restriction, so would the provisos to different fundamental rights,
dependent on where the right to privacy would arise. The public
interest element would be another aspect.”
144. In a Constitution Bench judgment reported as I.R. Coelho v.
State of Tamil Nadu65, this Court held that it can no longer be stated
that protection provided by fundamental rights comes in isolated pools.
On the contrary, these rights together provide a comprehensive guarantee
against excesses by State authorities. This Court held as under:
65 (1999) 7 SCC 580
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“60. It is evident that it can no longer be contended that protection
provided by fundamental rights comes in isolated pools. On the
contrary, these rights together provide a comprehensive guarantee
against excesses by state authorities. Thus post-Maneka Gandhi’s
case it is clear that the development of fundamental rights has
been such that it no longer involves the interpretation of rights as
isolated protections which directly arise but they collectively form
a comprehensive test against the arbitrary exercise of state power
in any area that occurs as an inevitable consequence. The
protection of fundamental rights has, therefore, been considerably
widened.”
145. Thus, the rights of citizens of this country cannot be
compartmentalized into one right or the other. The rights of citizens have
to be read together so as to provide a purposeful meaning to Part III of
the Constitution. Thus, all the Fundamental Rights under Part III of the
Constitution are to be read in aid of each other. They constitute a bouquet
of rights which can’t be read in isolation and have to be read together as
a whole.
146. However, it is to be noted that none of the fundamental rights
is absolute. The curtailment of the right is permissible by following due
procedure which can withstand the test of reasonableness. The intent
and object of the Government Order is only to maintain uniformity amongst
the students by adherence to the prescribed uniform. It is reasonable as
the same has
the effect of regulation of the right guaranteed under Article
19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a)
and of privacy under Article 21 are complementary to each other and
not mutually exclusive and does meet the injunction of reasonableness
for the purposes of Article 21 and Article 14.
Question (vi)- Whether the Government Order impinges upon
Constitutional promise of fraternity and dignity under the Preamble
as well as fundamental duties enumerated under Article 51-A sub-
clauses (e) and (f)?
147. Mr. Ahmadi has argued that the impugned Government Order
dated 5.2.2002 impinges upon the constitutional promise of “Fraternity”
as mentioned in the Preamble as well as in the fundamental duties
enumerated in Article 51A (e) and (f). It is argued that the liberty, equality
and fraternity is the trinity of the constitutional values to invoke horizontal
and social sensitivity towards inequalities. It is contended that liberty is
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of thought, expression, belief, faith and worship; equality is of status and
opportunity; and fraternity assures dignity of the individual.
148. In Indra Sawhney, Hon. Justice P.B. Sawant in his order
said that “inequality ill-favours fraternity, and unity remains a dream
without fraternity. The goal enumerated in the Preamble of the
Constitution, of fraternity assuring the dignity of the individual and
the unity and integrity of the nation must, therefore, remain
unattainable so long as the equality of opportunity is not ensured
to all.” (para 412).
149. This Court in a judgment reported as Subramanian Swamy
v. Union of India, Ministry of Law & Ors.66 had the occasion to interpret
the term “fraternity” (ca/kqrk) as the constitutional value which is to be
cultivated by the people themselves as part of their social behavior. It is
to be understood in the breed of homogeneity in a positive sense and not
to trample dissent and diversity. This Court observed as under:
“153. The term “fraternity” has a significant place in the history
of constitutional law. It has, in fact, come into prominence after
the French Revolution. The motto of Republican France
echoes:”Liberté, égalité, fraternité”, or “Liberty, equality,
fraternity”. The term “fraternity” has an animating effect in the
constitutional spectrum. The Preamble states that it is a
constitutional duty to promote fraternity assuring the dignity of
the individual. Be it
stated that fraternity is a Preambulatory
promise….
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156. Fraternity as a concept is characteristically different from
the other constitutional goals. It, as a constitutional concept, has a
keen bond of sorority with other concepts. And hence, it must be
understood in the breed of homogeneity in a positive sense and
not to trample dissent and diversity. It is neither isolated nor lonely.
The idea of fraternity is recognised as a constitutional norm and a
precept. It is a constitutional virtue that is required to be sustained
and nourished.
157. It is a constitutional value which is to be cultivated by the
people themselves as a part of their social behaviour. There are
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two Schools of Thought; one canvassing individual liberalisation
and the other advocating for protection of an individual as a member
of the collective. The individual should have all the rights under
the Constitution but simultaneously he has the responsibility to
live up to the constitutional values like essential brotherhood—the
fraternity—that strengthens the societal interest. Fraternity means
brotherhood and common interest. Right to censure and criticise
does not conflict with the constitutional objective to promote
fraternity. Brotherliness does not abrogate and rescind
the concept of criticism. In fact, brothers can and should be critical.
Fault-finding and disagreement is required even when it leads to
an individual disquiet or group disquietude. Enemies Enigmas
Oneginese on the part of some does not create a dent in the idea
of fraternity but, a significant one, liberty to have a discordant
note does not confer a right to defame the others. The dignity of
an individual is extremely important.
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161. The concept of fraternity under the Constitution expects every
citizen to respect the dignity of the other. Mutual respect is the
fulcrum of fraternity that assures dignity. It does not mean that
there cannot be dissent or difference or discordance or a different
voice. It does not convey that all should join the chorus or sing the
same song. Indubitably not. One has a right to freedom of speech
and expression. One is also required to
maintain the constitutional
value which is embedded in the idea of fraternity that assures the
dignity of the individual. One is obliged under the Constitution to
promote the idea of fraternity. It is a constitutional obligation.”
150. Reference is also made to another three-Judges Bench
judgment of this Court in Prathvi Raj Chauhan v. Union of India &
Ors.67 wherein it is observed that there is a preambular assurance that
the republic would be one which guarantees to its people liberty, dignity,
equality of status and opportunity and fraternity. It is fraternity, poignantly
embedded through the provisions of Part III, which assures true equality,
where the State treats all alike, assures the benefits of growth and
prosperity to all, with equal liberties to all, and what is more, which
guarantees that every citizen treats every other citizen alike. This Court
held as under:
67 (2020) 4 SCC 727
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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“15. ................ That is why the preambular assurance that the
republic would be one which guarantees to its people liberties,
dignity, equality of status and opportunity and fraternity.
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17. The making of this provision—and others, in my view, is
impelled by the trinity of the preambular vision that the Constitution
Makers gave to this country. .................. In my opinion, all the
three—Liberty, Equality and Fraternity, are intimately linked. The
right to equality, sans liberty or fraternity, would be chimerical—
as the concept presently known would be reduced to equality
among equals, in every manner—a mere husk of the grand vision
of the Constitution. Likewise, liberty without equality or fraternity,
can well result in the perpetuation of existing inequalities and worse,
result in licence to indulge in society’s basest practices. It is
fraternity, poignantly embedded through the provisions of Part III,
which assures true equality, where the State treats all alike, assures
the benefits of growth and prosperity to all, with equal liberties to
all, and what is more, which guarantees that every citizen treats
every other citizen alike.
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34. ................... It is to address problems of a segmented society,
that express provisions of the Constitution which give effect to
the idea of fraternity, or bandhutva (ca/kqRo) referred to in the
Preamble, and statutes like the Act, have been framed.
These
underline the social — rather collective resolve — of ensuring
that all humans are treated as humans, that their innate genius is
allowed outlets through equal opportunities and each of them is
fearless in the pursuit of her or his dreams. The question which
each of us has to address, in everyday life, is can the prevailing
situation of exclusion based on caste identity be allowed to persist
in a democracy which is committed to equality and the rule of
law? If so, till when? And, most importantly, what each one of us
can do to foster this feeling of fraternity amongst all sections of
the community without reducing the concept (of fraternity) to a
ritualistic formality, a tacit acknowledgment, of the “otherness”
of each one’s identity.”
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151. The impugned Government Order was said to be an anti-
thesis of diversity, though based upon misunderstood fraternal behavior
when it is asserted that all the school students studying in the State of
Karnataka should behave in a fraternal manner, transcend their group
identity and develop an orientation towards social justice. It is argued
that the Government Order suggests that the ethic of fraternity is best
served by complete erasure of all differences. It does not mean ‘flattening
out of differences’, or forced assimilation. Reference was made to a
judgment of this Court reported as Tehseen S. Poonawalla v. Union of
India & Ors.,68 wherein it was held that the aim of our Constitution is
unity in diversity and to impede any fissiparous tendencies for enriching
the unity amongst Indians by assimilating the diversities. It was also
argued that the Government Order uses the words ‘unity’ and ‘uniformity’
interchangeably and that uniformity is not a constitutional or statutory
mandate, and has no nexus with unity. It is argued that plurality of voices
celebrates the constitutionalist idea of a liberal democracy and the same
ought not to be suppressed. This Court held as under:
“21. Freedom of speech and expression in different forms is the
élan vital of sustenance of all other rights and is the very seed for
germinating the growth of democratic views. Plurality of voices
celebrates the constitutionalist idea of a liberal democracy and
ought not to be
suppressed. That is the idea and essence of our
nation which cannot be, to borrow a line from Rabindranath Tagore,
“broken up into fragments by narrow domestic walls” of caste,
creed, race, class or religion. Pluralism and tolerance are essential
virtues and constitute the building blocks of a truly free and
democratic society. It must be emphatically stated that a dynamic
contemporary constitutional democracy imbibes the essential
feature of accommodating pluralism in thought and approach so
as to preserve cohesiveness and unity. Intolerance arising out of
a dogmatic mindset sows the seeds of upheaval and has a chilling
effect on freedom of thought and expression. Hence, tolerance
has to be fostered and practised and not allowed to be diluted in
any manner.
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68 (2018) 9 SCC 501
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26. In the obtaining situation, the need to preserve and maintain
unity amongst the fellow citizens of our country, who represent
different castes, creed and races, follow different religions and
use multiple languages, ought to be discussed and accentuated. It
is requisite to state that our country must sustain, exalt and
celebrate the feeling of solidarity and harmony so that the spirit of
oneness is entrenched in the collective character. Sans such
harmony and understanding, we may unwittingly pave the path of
disaster.
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28. “Unity” in the context of a nation means unity amongst the
fellow citizens. It implies integration of the citizens whereby the
citizens embrace a feeling of “We” with a sense of bonding with
fellow citizens which would definitely go a long way in holding the
Indian society together. Emile Durkheim, French sociologist, has
said that when unity is based on heterogeneity and diversity, it can
very well be described as organic solidarity. Durkheim’s view
would be acceptable in the context of the Indian society as it
exhibits a completely organic social solidarity.
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31. Unity in Diversity must be recognized as the most potent
weapon in India’s armoury which binds different and varied kinds
of people in the solemn thread of humanity. This diversity is the
strength of our nation and for realising this strength, it is sine qua
non that we sustain it and shun schismatic tendencies. It
has to be
remembered that the unique feature of “Unity in Diversity”
inculcates in the citizens the virtue of respecting the opinions and
choices of others. Such respect imbibes the feeling of acceptance
of plurality and elevates the idea of tolerance by promoting social
cohesion and infusing a sense of fraternity and comity.”
152. Reliance is also placed upon the judgments of this Court
reported as St. Stephen’s College, Sri Adi Visheshwara of Kashi
Vishwanath Temple, and State of Karnataka & Anr. v. Dr. Praveen
Bhai Thogadia69 wherein the concept of unity in diversity was held to
be the Constitutional aim. It was submitted that unity in diversity is the
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most potent weapon in India’s armoury which binds different and varied
kinds of people in the solemn thread of humanity. Unity in diversity
inculcates in the citizens the virtue of respecting the opinions and choices
of others. Such respect imbibes the feeling of acceptance of plurality
and elevates the idea of tolerance by promoting social cohesion and
infusing a sense of fraternity and comity.
153. Referring to National Education Policy, 2020, it is argued
that the schools are spaces of diversity and critical thinking. It is fraternal
free thinking public places as the needs and expectations are different.
The policy does not mention ‘uniform’ or ‘discipline’. The fundamental
principles which will guide the Indian Education System as well as
individual institutions are as under:
“2. full equity and inclusion as the cornerstone of all educational
decisions to ensure that all students are able to thrive in the
education system;
Ethics and human & Constitutional values like empathy, respect
for others, cleanliness, courtesy, democratic, spirit, spirit of service,
respect for public property, scientific temper, liberty, responsibility,
pluralism, equality, and justice;
6.12. Students will be sensitized through this new school culture,
brought in by teachers, trained social workers and counsellors as
well as through corresponding changes to bring in an inclusive
school curriculum. The school curriculum will include, early on,
material on human values such as
respect for all persons, empathy,
tolerance, human rights, gender, equality, non-violence, global
citizenship, inclusion, and equity. It would also include more detailed
knowledge of various cultures, religions, languages, gender
identities, etc. to sensitize and develop respect for diversity. Any
biases and stereotypes in school curriculum will be removed and
more material will be included that is relevant and relatable to all
communities.
3.4. Once infrastructure and participation are in place, ensuring
quality will be the key in retention of students, so that they
(particularly, girls and students from other socio-economically
disadvantaged groups) do not lose interest in attending school.
This will require a system of incentives for deploying teachers
with knowledge of the local language to areas with high dropout
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rates, as well as overhauling the curriculum to make it more
engaging and useful.”
154. In K.S. Puttaswamy, the distinction between private and
public spaces was drawn and it was stated that both must be free to the
extent that there should be freedom to think, without any direct or indirect
pressures on thought and belief. Thus, the schools must give students
the privacy and the freedom to think about their choices. Therefore, the
Government Order creates an arbitrary barrier to education and to
fraternal spaces.
155. Not disputing with the above observations, it is important to
interpret the expressions ‘fraternity’ and ‘dignity’ in view of the objective
behind the Government Order. The concept of fraternity and dignity do
not stand alone but have to be inferred from the context, circumstances
and the purpose sought to be achieved. There is no dispute, as asserted
in the written submissions, that the purpose of introducing fraternity as a
constitutional value is to invoke horizontal or social sensitivity towards
inequalities, in addition to the vertical, or top-down political prescriptions
towards inequalities. Fraternity is in fact social sensitivity. The students
herein are in the age group of 15 to 18 years. The seed of education
should germinate equally amongst all students. Therefore, 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.
156. The students have been given a uniform platform to grow
and take quantum leap in their further pursuits. The homogeneity amongst
the students in the matter of uniform would prepare them to grow without
any distinction on the basis of religious symbols, if not worn during the
classroom studies in a Pre- University College.
157. Still further, the Hindi word of fraternity is ^^ca/kqRo** that is
brotherhood. Brotherhood is amongst all the citizens of the Country and
not of a particular community. Fraternity is the antithesis of a segmented
society wherein all humans are treated equally and their innate genius is
allowed an outlet by exposing them to equal opportunities.
158. The argument is that the appellants seek equal access to
public education where they would have the opportunity to fraternize
across religious, class and gender boundaries, an opportunity which would
not be available to them if they were to transfer to religious schools.
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Hence, the Government Order has created an arbitrary barrier to
education and to fraternal spaces.
159. I do not find any merit in the argument raised. Fraternity is a
noble goal but cannot be seen from the prism of one community alone. It
is a goal for all citizens of the country irrespective of caste, creed, sex
and religion. The abstract idea of fraternity, as discussed in the judgments
referred to by learned counsel for the appellants, has to be applied to the
ground realities wherein some students wearing headscarf in a secular
school run by the State Government would stand out and overtly appear
differently. 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. None of the judgments referred to
by the learned counsel for the appellants deal with an issue of fraternity
in respect of a section of the citizens who wish to carry their religious
symbols to a classroom. The Constitutional goal as emanating from the
Preamble would not be achieved if fraternity is given a narrow meaning
in respect of the students identifying themselves with the religious symbols
in the
classroom.
160. I do not find any merit in the argument raised that the use of
the phrase “behave in a fraternal manner by transcending their group
identity as the young students” in the impugned Order can be said to be
violative of any law. Before a student goes for higher studies in colleges,
she should not grow with a specific identity, but under the umbrella of
equality guaranteed under Article 14 transcending the group identity.
Religion, which is a private affair, has no meaning in a secular school run
by the State. The students are free to profess their religion and carry out
their religious activities other than when they are attending a classroom
where religious identities should be left behind.
161. Accordingly, I do not find that the Government Order impinges
on the Constitutional promise of fraternity and dignity. Instead, it promotes
an equal environment where such fraternal values can be imbibed and
nurtured without any hindrance of any kind.
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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162. Though, it is argued that wearing of a piece of cloth on the
head does not violate or contravene the uniform prescribed. The dictionary
meaning of word ‘Uniform’ is as under:

Blacks Law Dictionary (Uniform, Adjective)
Conforming to one rule, mode, or unvarying standard; not
different at different times or places; application to all places
or divisions of a country.

Cambridge English Dictionary (Uniform, noun)
A particular set of clothes that has to be worn by the
members of the same organization or group of people. A
type of clothes that is connected with a particular group of
people.

Merriam Webster Dictionary
(Uniform, noun) Dress of a distinctive design or fashion
worn by members of a particular group and serving as a
means of identification.
(Adjective) Having always the same form, manner or
degree: not varying or variable. Of the same form with
others- conforming to one rule or more. Presenting an
unvaried appearance of surface, pattern or color. (eg.-
uniform procedures, uniform red brick houses)
163. The issue as to whether a person professing Islam can support
a beard as a member of the Indian Air Force came up for consideration
before the Single Bench of the Punjab and Haryana High Court in No.
786505-N Leading Aircraftsman Ansari Aaftab Ahmed v. Union
of India & Ors.70. The Single Bench referred to the principles of
Islam by Maulana Wahiduddin Khan from his book “Islam the Voice of
Human Nature”
and the rules applicable to the airmen to hold that growing
of beard violates the norms of uniform. Accordingly, the writ petitions
were dismissed. An intra-court appeal was also dismissed71. The matter
came up for hearing before this Court in a judgment reported as
70 2008 L.I.C. 4004 (CWP No. 14927 of 2005 decided on 14.7.2008)
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Mohammed Zubair Corporal No. 781467-G v. Union of India &
Ors.72. This Court dismissed the appeal finding no reason to take a view
of the matter at variance with the view taken by the High Court. It was
noticed that there are varying interpretations, one of which is that it is
desirable to maintain a beard. Therefore, in respect of an airman employed
by the Indian Air Force, beard was not found permissible in terms of the
Rules framed.
164. The uniform prescribed would lose its meaning if the student
is permitted to add or subtract any part of uniform. The schools are
nurseries for training the citizen for future endeavours. If, the norms of
the uniform in the school are permitted to be breached, then what kind
of discipline is sought to imparted to the students. The freedom of
expression guaranteed under Article 19(1)(a) does not extend to the
wearing of headscarf. 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. In a
secular school maintained at the cost
of the State, the State is competent to not permit anything other than the
uniform.
165. The argument that the wearing of a headscarf provides dignity
to the girl students is also not tenable. The students are attending an all-
girls’ college. The students are at liberty to carry their religious symbols
outside the schools but in pre-university college, the students should look
alike, feel alike, think alike and study together in a cohesive cordial
atmosphere. That is the objective behind a uniform, so as to bring about
uniformity in appearances.
Question (vii)- Whether, if the wearing of hijab is considered as an
essential religious practice, the student can seek right to wear
headscarf to a secular school as a matter of right?
166. The argument is that hijab is an additional cloth worn on the
head, and that it does not cause any harm to any other person. The
72 (2017) 2 SCC 115
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argument is based upon Conscience & Religion (Article 25), Culture
(Articles 29 and 51-A(f)), Identity (Articles 19 and 21 - Autonomy,
Dignity, Choice) and Secularism (Articles 19 and 21 - Autonomy, Dignity,
Choice), therefore, the students have been wrongly denied admission to
an educational institution on the basis of religion. The contention of the
students is that by denying the right to wear headscarf, they have also
been denied to attend the classes which stand foul with the mandate of
clause (2) of Article 29.
167. I do not find any merit in the said argument. The schools run
by the State are open for admission irrespective of any religion, race,
caste, language or any of them. Even the Act mandates that the students
would be admitted without any restriction on such grounds. However,
the students are required to follow the discipline of the school in the
matter of uniform. They have no right to be in the school in violation of
the mandate of the uniform prescribed under the Statute and the Rules.
168. In M. Ajmal Khan v. The Election Commission of India,
rep. by its Chief Election Commissioner, New Delhi-I & Ors.73, the
challenge was to the Elector Roll with photographs particularly of Muslim
Gosha Women in the eligible voters’ list. The argument was that wearing
of purdah by Muslim women is one of the principles laid down in Holy
Quran and it has to be strictly followed by Muslim women. Therefore,
any
interference with such religious practice would amount to interfering
with the fundamental right of the Muslim women, which is guaranteed
under Article 25 of the Constitution of India. The Madras High Court
dismissed such writ petition holding that such direction of the Election
Commission is not violative of Article 25 of the Constitution. It was held
that “the decision of the Election Commission of putting the photographs
in the electoral roll was taken with a view to improving the fidelity of the
electoral rolls and to check impersonation and eradicate bogus voting.
Hence, the argument of the learned counsel that the decision violates
the right to privacy is required to be rejected”. The said judgment though
is in the context of elections but the ratio thereof is applicable to the
present matters, the education to a school by the State is constitutional
mandate to be carried out in a non- discriminatory manner irrespective
of caste, sex and religion.
169. The State has not denied admission to the students from
attending classes. If they choose not to attend classes due to the uniform
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that has been prescribed, it is a voluntary act of such students and cannot
be said to be in violation of Article 29 by the State. It is not a denial of
rights by the State but instead a voluntary act of the students. It would
thus not amount to denial of right to education if a student, by choice,
does not attend the school. A student, thus, cannot claim the right to
wear a headscarf to a secular school as a matter of right.
Question (viii)- Whether a student-citizen in the constitutional scheme
is expected to surrender her fundamental rights under Articles 19,
21 and 25 as a pre-condition for accessing education in a State
institution?
170. Mr. Shoeb Alam argued that in the Constitutional scheme,
there cannot be any barter of fundamental rights for the enjoyment of a
privilege or a right. It is argued that the State cannot attach a condition
of barter for the grant of access to school/education available to a student
under Article 21 and, in return, ask for a girl child to cede her right to
wear the hijab inside the school, which is her fundamental right to privacy,
dignity and autonomy. Reliance was placed upon a judgment of this Court
reported as Re the Kerala Education Bill, 1957 - Reference under
Article 143(1) of the Constitution of India74 dealing with the issue of
Kerala Education Bill. The provision authorized the State to take over
the management of the educational institution as a pre-condition for
recognition and aid to the educational
institution. This Court said to the
following effect:
“31. … Therefore, the conditions imposed by the said Bill on aided
institutions established and administered by minority communities,
like the Christians, including the Anglo-Indian community, will lead
to the closing down of all these aided schools unless they are
agreeable to surrender their fundamental right of management.
No educational institution can in actual practice be carried on
without aid from the State and if they will not get it unless they
surrender their rights they will, by compulsion of financial
necessities, be compelled to give up their rights under Article 30(1).
The legislative powers conferred on the legislature of the States
by Articles 245 and 246 are subject to the other provisions of the
Constitution and certainly to the provisions of Part III which
confers fundamental rights which are, therefore, binding on the
74 AIR 1958 SC 956 : 1959 SCR 995
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State Legislature. The State Legislature cannot, it is clear, disregard
or override those provisions merely by employing indirect methods
of achieving exactly the same result. Even the legislature cannot
do indirectly what it certainly cannot do directly…”
171. In Nar Singh Pal v. Union of India & Ors.75, it was held
that the casual labor does not mean that he had surrendered all his
constitutional rights in favour of the respondents. It was thus submitted
that fundamental rights under the Constitution cannot be bartered. They
cannot be compromised, nor can there be any estoppel against the exercise
of Fundamental Rights available under the Constitution.
172. Reliance was also placed upon nine-Judges Bench judgment
in Ahmedabad St. Xavier’s College Society wherein the said Act was
declared as unconstitutional which warranted educational institutions to
surrender their management to the State in order to get affiliation. This
Court held that in this situation, the condition which involves surrender is
as effective a deterrent to the exercise of the right under Article 30(1)
as a direct prohibition would be. Thus considered, it is apparent that the
religious minority does not voluntarily waive its right — it has been coerced
because of the basic importance of the privilege involved, namely,
affiliation. This Court held as under:
“161. It is doubtful whether the fundamental right under Article
30(1) can be bartered away
or surrendered by any voluntary act
or that it can be waived. The reason is that the fundamental right
is vested in a plurality of persons as a unit or if we may say so, in
a community of persons necessarily fluctuating. Can the present
members of a minority community barter away or surrender the
right under the article so as to bind its future members as a unit?
The fundamental right is for the living generation. By a voluntary
act of affiliation of an educational institution established and
administered by a religious minority the past members of the
community cannot surrender the right of the future members of
that community. The future members of the community do not
derive the right under Article 30(1) by succession or inheritance.”
173. The view of Hon’ble Justice D.Y. Chandrachud in K.S.
Puttaswamy was referred where ‘decisional autonomy’ has been
discussed to comprehend intimate personal choices such as those
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governing reproduction as well as choices expressed in public such as
faith or modes of dress. It was held as under:
“248. Privacy has distinct connotations including (i) spatial control;
(ii) decisional autonomy; and (iii) informational control. [Bhairav
Acharya, “The Four Parts of Privacy in India”, Economic &
Political Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial control
denotes the creation of private spaces. Decisional autonomy
comprehends intimate personal choices such as those governing
reproduction as well as choices expressed in public such as faith
or modes of dress…
xxx
xxx
xxx
297. …Privacy enables each individual to take crucial decisions
which find expression in the human personality. It enables
individuals to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal demands of
homogeneity. Privacy is an intrinsic recognition of heterogeneity,
of the right of the individual to be different and to stand against
the tide of conformity in creating a zone of solitude. Privacy
protects the individual from the searching glare of publicity in
matters which are personal to his or her life. Privacy attaches to
the person and not to the place where it is associated. Privacy
constitutes the foundation of all liberty because it is in privacy that
the individual can decide how liberty is best exercised. Individual
dignity and privacy are inextricably linked in a pattern woven out
of a thread of
diversity into the fabric of a plural culture.”
174. Furthermore, Hon’ble Justice Chelameswar in K.S.
Puttaswamy held as under:
“372. … Insofar as religious beliefs are concerned, a good deal of
the misery our species suffer owes its existence to and centres
around competing claims of the right to propagate religion.
Constitution of India protects the liberty of all subjects guaranteeing
the freedom of conscience and right to freely profess, practise
and propagate religion. While the right to freely “profess, practise
and propagate religion” may be a facet of free speech guaranteed
under Article 19(1)(a), the freedom of the belief or faith in any
religion is a matter of conscience falling within the zone of purely
private thought process and is an aspect of liberty…
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373. … The choice of appearance and apparel are also aspects
of the right to privacy. The freedom of certain groups of subjects
to determine their appearance and apparel (such as keeping long
hair and wearing a turban) are protected not as a part of the right
to privacy but as a part of their religious belief. Such a freedom
need not necessarily be based on religious beliefs falling under
Article 25…”
175. I do not find that the Government Order takes away any
right of a student available to her under Article 21 of the Constitution, or
that it contemplates any barter of fundamental rights. The right to
education under Article 21 continues to be available but it is the choice
of the student to avail such right or not. The student is not expected to
put a condition, that unless she is permitted to come to a secular school
wearing a headscarf, she would not attend the school. The decision is of
the student and not of school when the student opts not to adhere to the
uniform rules.
Question (ix)- Whether in the constitutional scheme, the State is
obligated to ensure ‘reasonable accommodation’ to its citizens?
176. The argument is that the school should reasonably
accommodate the students for wearing headscarf as it does not interfere
with any of the rights of the fellow students.
177. Learned counsel for the appellants have referred to the
judgments of this Court reported as Jeeja Ghosh & Anr. v. Union of
India & Ors.76,
Vikash Kumar v. Union Public Service Commission
& Ors.77 and Ravinder Kumar Dhariwal & Anr. v. Union of India &
Ors.78.
178. This Court in Ravinder Kumar Dhariwal held that the
reasonable accommodation principle is a component of the right of
equality and the right against discrimination. The concept of reasonable
accommodation arose in the context of accommodating a differently
abled candidate, a member of the Central Railway Police Force to provide
him an alternative suitable post.
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77 (2021) 5 SCC 370
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179. In Jeeja Ghosh, this Court was considering the rights of a
differently-abled person in using the facility of a flight. This Court found
that Civil Aviation Requirements issued by Directorate General of Civil
Aviation that no airline shall refuse to carry persons with disability or
persons with reduced mobility and their assistive aids/devices, escorts
and guide dogs including their presence in the cabin should be made
available to the passengers at the time of check-in. There was a violation
of such directive by the airline when this Court held that equality not
only implies preventing discrimination, but goes beyond in remedying
discrimination in the society. In concrete terms, it means embracing the
notion of positive rights, affirmative action and reasonable accommodation.
This Court held as under:
“40. … In concrete terms, it means embracing the notion of positive
rights, affirmative action and reasonable accommodation...”
180. In Vikash Kumar, this Court held as under:
“62. … if disability as a social construct has to be remedied,
conditions have to be affirmatively created for facilitating the
development of the disabled. Reasonable accommodation is
founded in the norm of inclusion. Exclusion results in the negation
of individual dignity and worth or they can choose the route of
reasonable accommodation, where each individuals’ dignity and
worth is respected…”
181. The argument of the appellants is however that they are
seeking reasonable
accommodation by the school authorities to permit
them to attend school wearing matching headscarf/hijab in addition to
the prescribed uniform which would be in conformity with the fundamental
rights guaranteed under Article 25 and 21 of the Constitution.
182. The concept of reasonable accommodation came to be
introduced in respect of a special child or person. In Bijoe Emmanuel,
it has been held that the real test of a true democracy is the ability of
even an insignificant minority to find its identity under the Constitution.
In the aforesaid case, students, believer of Jehovah, expressed their
inability to sing National Anthem though they were extending all respect
when the National Anthem was to be played. In the case of the appellants,
democracy is not in test but the question is whether the school, having
prescribed the uniform, has a right to insist that all students wear the
same uniform so as not to have inequality or disparity in the matter of
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wearing of uniform. Rule 11 in fact shows that any change in uniform
can be affected only after serving notice to the parents and once uniform
is prescribed, it cannot be changed in five years, meaning thereby that
there is a continuity of the uniform and the period for which uniform is
prescribed is to be followed.
183. The argument that the Kendriya Vidyalaya across the country
permit wearing of headscarf/hijab for Muslim girls, therefore, the same
should be followed in the State as well. Kendriya Vidyalaya is an
autonomous body under the Ministry of Education, Government of India.
The purpose of the same is to meet the educational needs of children of
transferable Central Government employees, including Defence and
Para-military personnel by providing a common programme of education.
The two institutions, one under the State and other under the Central
Government have independent organisations and scope of work. It may
be that some State may permit headscarf and others do not. It is a decision
taken by the State which cannot be said to be arbitrary on that ground
alone.
184. The parties have referred to some foreign judgments in support
of their respective arguments including judgments on the question of
reasonable accommodation. Ours is a unique country having people from
different faiths and religions professing different practices. Therefore,
the judgments of other countries having different social structure and
polity would not provide a reasonable basis to determine the question of
religious practices in such a wide and varied country like ours.
185. Thus, though the principle of reasonable accommodation has
been adopted by the Courts in our country, such contention does not
arise in the present case. 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 (x)- Whether the Government Order is contrary to the
legitimate State interest of promoting literacy and education as
mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the
Constitution?
186. It has been argued that the Government Order is contrary to
the legitimate State interest of promoting literacy and education as
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mandated under Articles 21 and 21A as well as the directive principles
contained in Articles 39(f), 41, 46 and fundamental duties as mentioned
in Article 51A. It was said to have the effect of restricting education for
women.
187. It is also submitted that the Government Order is not in the
‘best interest of the child’, especially the child’s identity, social well-
being and physical, emotional and intellectual development in terms of
Section 2(9) of the Juvenile Justice (Care and Protection of Children)
Act, 2015.
188. Reference is also made to the Commission of Protection of
Child Rights Act, 2005 enacted in view of the international treaty,
Convention on the Rights of the Child, acceded by India on 11.12.1992.
The Act was enacted to give effect to the policies adopted by the
Government in this regard and the standards prescribed in the Convention.
As per Article 1 of the Convention, child means every human being
below the age of 18 years unless under the law applicable to the child,
majority is attained earlier. Article 14 of the Convention states that the
State Parties shall respect the right of children to freedom of thought,
conscience and religion and that freedom to manifest one’s religion or
beliefs may be subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health or morals, or the
fundamental rights and freedoms of others. It is thus contended that in
terms of the Convention to which India
is a signatory, the child has a
freedom of thought, conscience and religion and to manifest one’s religion
or belief, subject only to the limitations prescribed thereunder. Therefore,
the restriction to use headscarf violates not only the fundamental rights
guaranteed under the Constitution but also the International Convention.
189. The Commission of Protection of Child Rights Act, 2005,
enacted in pursuance of Convention on the Rights of Child, has been
referred to contemplate that the right of freedom of thought, conscience
and religion are to be subservient to the rights provided under the
Constitution of India. However, such rights cannot be larger than the
rights available to the citizens under the Constitution. Therefore, freedom
of religion in the Convention or the Act are not independent rights but
have to be read along with the Constitutional provisions.
190. The pre-university college is open to all students of all castes
and religions. The doors of such institutions are not closed to any student
of any community. The object of the State is to provide an opportunity
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for the students to study in the secular schools. It is for the students to
avail such a facility. If a particular student feels that she cannot
compromise with the wearing of headscarf or of any other student to
wear any outwardly religious symbol, the school would be justified not to
allow such student, in the larger interest of treating all the students alike
as a part of mandate of Article 14, which is central to the theme of Part
III of the Constitution. The headscarf is not permitted in the school for
the students who are studying in Class 10+1 or 10+2. The students have
many years ahead of them where they can carry on their religious faith
but the Government Order mandating wearing of uniform cannot be
faulted with since the object is in tune with the principles of the
Constitution.
191. The judgment of this Court reported as Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr.79 held that the
right of education has been read into right to life in Article 21. The
argument is that a child who is denied right to access education is not
only deprived of his right to live with dignity, he is also deprived of his
right to freedom of speech and expression enshrined in Article 19(1)(a)
of the Constitution. The right to education is thus a part of Article 21.
The State has not put any restriction to avail such right of education.
The right of education is available to every student. The State has
only
regulated the right in a manner that students come to the school to attend
classes only in the prescribed uniform, and the same has been done to
achieve the statutory and constitutional goals. The students cannot assert
that they have a right to education but they would avail such right as per
their own wish and in the manner which they consider appropriate. Schools
are to prepare the students for their future endeavors in life. 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. The argument that the school
is insisting on surrendering or curtailing the right to wear a headscarf as
a pre- condition to access the education is not tenable as the right to
education is available but only condition is that the students should attend
the classes in prescribed uniform.
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192. The Government Order cannot be said to be contrary to the
legitimate State goal of promoting literacy and education. Article 21A is
not applicable as all the students are over 14 years of age. The students
have a right to education under Article 21, but not of insisting on wearing
something additional to the uniform, in a secular school, as a part of their
religion.
193. In fact, the Act itself contemplates providing of opportunities
and facilities in a healthy manner and maintaining the dignity of childhood
and youth so that there is no moral or material abandonment. The uniform
for the students has been prescribed so that there is no distinction between
the students coming from diverse background and that each student
grows in an environment of equality, fairness and equal opportunities.
The uniform is an equalizer of inequalities. Therefore, prescribing uniform
for children at an impressionable age is not only important but has a
salutary effect on the mental development of the child to grow in the
environment of oneness. The said object is in tune with Article 39(f) of
the Constitution of India which reads as thus:
“39(f) that children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and
against moral and material abandonment.”
194. Hence, the Government Order cannot be said to be contrary
to the State goal of promoting
literacy and education as mandated under
the Constitution. The Government Order only ensures that the uniform
prescribed is adhered to by the students and it cannot be said that State
is restricting the access to education to the girl students through such an
Order.
Question (xi)- Whether the Government Order neither achieves any
equitable access to education, nor serves the ethic of secularism,
nor is true to the objective of the Karnataka Education Act?
195. The argument is that the State is under a positive obligation
to create an environment conducive for the exercise of fundamental
rights. Conversely, it means that the subjects have no responsibility to
create a conducive environment in a non- discriminatory manner. If the
students of one faith insist on a particular dress, there is no stopping for
the others to carry their faiths and beliefs to the schools. It would not be
conducive to the pious atmosphere of the school where the students
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seek admission for education. In fact, uniform fosters a sense of ‘equality’
amongst students- instills a sense of oneness, diminishes individual
differences, helps focus on learning as students would not be bothered
about their social status, improves discipline, fewer conflicts in school,
promotes school spirit- generates a sense of belonging, pride, loyalty
towards the school, relieves economic pressure on the parents, ensures
equality before the educational institution, serves the need of a diverse
community and promotes a positive sense of communal identity and does
not lead to the growth of disparities of wealth and style. 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.
196. In Indibly Creative Private Ltd. & Ors. v. Government of
West Bengal & Ors.80, the release of a movie in the State of West
Bengal was not permitted on account of threatened breach of peace. It
was in these circumstances, this Court held that the State is duty-bound
to ensure the prevalence of conditions in which the constitutional freedoms
can be exercised. This Court held as under:
“50. The freedoms which are guaranteed by Article 19 are
universal. Article 19(1) stipulates that all citizens shall have the
freedoms which it recognises.
Political freedoms impose a
restraining influence on the State by carving out an area in which
the State shall not interfere. Hence, these freedoms are perceived
to impose obligations of restraint on the State. But, apart from
imposing “negative” restraints on the State these freedoms impose
a positive mandate as well. In its capacity as a public authority
enforcing the rule of law, the State must ensure that conditions in
which these freedoms flourish are maintained. In the space
reserved for the free exercise of speech and expression, the State
cannot look askance when organised interests threaten the
existence of freedom. The State is duty-bound to ensure the
prevalence of conditions in which of those freedoms can be
exercised. The instruments of the State must be utilised to
effectuate the exercise of freedom. When organised interests
threaten the properties of theatre owners or the viewing audience
80 (2020) 12 SCC 436
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with reprisals, it is the plain duty of the State to ensure that speech
is not silenced by the fear of the mob. Unless we were to read a
positive obligation on the State to create and maintain conditions
in which the freedoms guaranteed by the Constitution can be
exercised, there is a real danger that art and literature would
become victims of intolerance. In the present case, we are of the
view that there has been an unconstitutional attempt to invade the
fundamental rights of the producers, the actors and the audience.
Worse still, by making an example out of them, there has been an
attempt to silence criticism and critique. Others who embark upon
a similar venture would be subject to the chilling effect of “similar
misadventures”. This cannot be countenanced in a free society.
Freedom is not a supplicant to power.”
197. As discussed above, secularism is applicable to all citizens,
therefore, permitting one religious community to wear their religious
symbols would be antithesis to secularism. Thus, the Government Order
cannot be said to be against the ethic of secularism or to the objective of
the Karnataka Education Act, 1983.
In view of the discussions above, I dismiss all appeals and the
writ petitions, though on different grounds than what prevailed before
the High Court. No Costs.
SUDHANSHU DHULIA, J.
1. In the long hearing of this case, which went on for several
days, I had the privilege of listening to the erudite submissions of learned
counsels
from both sides. On behalf of the Petitioners we have heard,
Mr. Kapil Sibal, Mr. Rajeev Dhawan, Mr. Dushyant Dave, Mr. Salman
Khurshid, Mr. Colin Gonsalves, Mr. Yusuf Hatim Muchhala, Mr. Huzefa
Ahmadi, Ms. Meenakshi Arora, Mr. Aditya Sondhi, Mr. Sanjay R. Hegde,
Mr. Devadatt Kamat, Ms. Jayna Kothari, Mr. A.M. Dar learned Senior
Advocates and Mr. Prashant Bhushan, Mr. Shoeb Alam, Mr. Nizam
Pasha, Ms. Kirti Singh and Mr. Thulasi K. Raj learned Advocates. The
arguments on behalf of the State were made by Mr. Tushar Mehta,
Solicitor General of India, Mr. K.M. Nataraj, Additional Solicitor General
of India and Mr. Prabhuling Navadgi, Advocate General for Karnataka
learned Senior Advocates. Mr. R. Venkatramani, Ms. V. Mohana and
Mr. Dama Seshadri Naidu, learned Senior Advocates have appeared on
behalf of the teachers.
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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2. I had the advantage of going through the Judgement of Justice
Hemant Gupta. Justice Gupta has recorded each argument which was
raised at the Bar before us in the long hearing of the case and he has
given his findings on each of the issues. It is a very well composed
Judgement. I am, however, unable to agree with the decision of Justice
Gupta. I am therefore giving a separate opinion, on this important matter.
3. While I do so, I am conscious that as far as possible, a
Constitutional Court must speak in one voice. Split verdicts and discordant
notes do not resolve a dispute. Finality is not reached. But then to borrow
the words of Lord Atkin (which he said though in an entirely different
context), “…finality is a good thing, but Justice is better.”1
4. The Judgement impugned before this Court was pronounced
by the Karnataka High Court on March 15, 2022. This was challenged
before this Court in several SLP’s. Apart from the SLP we also had
before us two Writ Petitions filed under Article 32 of the Constitution of
India. The Karnataka High Court was dealing with 7 Petitions where
the lead matter was W.P. (C) No. 2347 of 2022. All the same while we
deal with the facts of the present case, we would be referring to Aishat
Shifa who was there in Special Leave Petition (Civil) 5236 of 2022, and
was one of the two Petitioners before the Karnataka High Court, in Writ
Petition (Civil) No. 2880 of 2022. We have heard this as
the lead matter.
On 22.09.2022 leave was granted by this Court, and Judgement was
reserved.
5. In the district of Udupi in Karnataka there is a small town
called Kundapura. Aishat Shifa and Tehrina Begum were the two second
year students of Government Pre-University College in Kundapura.
They both follow Islam religion and wear hijab. According to them
they have been wearing hijab, inside their classrooms, ever since they
joined the college, more than a year back. They say that in the past
they had never faced any objection from anyone, including the college
administration and their wearing of hijab inside their classroom was
never an issue.
6. On February 3, 2022, these two girl students were stopped at
the gate of their college. They were told that they will have to take off
their hijab before entering the college. Since they refused to take off
1 Ras Behari Lal and Others vs. The King-Emperor in AIR 1933 PC 208
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their hijab, they were denied entry in the college, by the college
administration.
7. The next day that is February 4, 2022, both made a representation
before the Deputy Commissioner Udupi, praying that direction be given
to the college authorities to let them enter their college and complete
their studies. No effective orders were passed by the Deputy
Commissioner, but instead the Government came up with an Order on
February 5, 2022. This G.O has a Preamble, which refers to the
Karnataka Education Act, 1983 and the Rules framed therein, from where
it draws its powers and then cites three Judgments of different High
Courts to conclude that prohibiting hijab does not amount to a violation
of Article 25 of the Constitution. It then mandates that the Government
schools must have a school uniform and the colleges which come under
the jurisdiction of the Pre-University Education Department the uniform
which is prescribed by the College Development Committees (in
Government colleges), and Board of Management (in private schools),
should be worn. There was, however, a caveat, which said that in the
event the Board of Management did not mandate any uniform then
students should wear clothes that are “in the interest of unity, equality
and public order.”
8. Since the entire G.O. has been reproduced by Justice Hemant
Gupta in his Judgement I need not reproduce the entire G.O., but the
relevant portion of the G.O are as under:
“In the backdrop of the issues
highlighted in the proposal, using
the powers granted by the Karnataka Education Act Section 133
(2), all the government schools in the state are mandated to abide
by the official uniform. Private schools should mandate a uniform
decided upon by their board of management.
In colleges that come under the pre-university education
department’s jurisdiction the uniforms mandated by the College
Development Committee, or the board of management, should be
worn. In the event that the management does [sic does not]
mandate a uniform, students should wear clothes that are in the
interests of unity, equality and public order.
By the Orders of the Governor of Karnataka”
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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9. Since hijab was not made a part of the ‘uniform,’ and wearing
it was not ‘in the interest of unity, equality and public order,’ as the G.O.
mandated, the Petitioners were denied entry in their school. This Court
has been informed at the Bar, that similar restriction was imposed on
other school going girls in different parts in Karnataka.
10. The two girls, who were the students were then constrained
to file Writ Petitions before the Karnataka High Court. Initially the case
went before a learned Single Judge of the High Court, who in turn,
considering the importance of the matter, referred it to the Chief Justice
for constituting a larger bench. A three-judge bench was constituted by
the Chief justice, which has heard the matter at length and then passed
its orders on March 15, 2022, dismissing the Writ Petitions, an order
which is presently impugned before this Court.
11. Before the Karnataka High Court as well as before this Court
the main argument of the Petitioners was that the G.O. dated February
5, 2022, and the restrictions imposed by the school authorities in not
permitting the Petitioners to wear hijab inside their classrooms amounts
to a violation of their Fundamental Rights given to them under Article
19(1)(a) and Article 25(1) of the Constitution of India as well as under
Articles 14 and 21 of the Constitution. Some of the Petitioners also raised
a claim that wearing of hijab is a part of their Essential
Religious Practice.
The argument of the State on the other hand would be that the G.O only
directs the school authorities of respective schools to prescribe a school
uniform. It is an innocuous order, which is religion neutral. As to the
argument on Fundamental Rights, the reply was that Fundamental Rights
are not absolute and they are always subject to reasonable restrictions.
Prohibiting hijab inside a classroom is a reasonable restriction. Wearing
of hijab was also said to be not an Essential Religious Practice.
12. The Karnataka High Court had formulated four questions for
its consideration. These questions are as follows:
a)
Whether wearing hijab/headscarf is a part of Essential
Religious practice in Islamic Faith protected under Article
25 of the Constitution.
b)
Whether prescription of school uniform is not legally
permissible, as being violative of petitioners’ Fundamental
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Rights inter-alia guaranteed under Article 19(1)(a), (i.e.,
freedom of expression) and 21 (i.e., privacy) of the
Constitution.
c)
Whether the Government Order dated 05.02.2022 apart
from being incompetent is issued without application of mind
and further is manifestly arbitrary and therefore violates
Article 14 and 15 of the Constitution?
d)
Whether any case is made out in Writ Petition Number
2146 of 2022 for issuance of a direction for initiating
disciplinary enquiry against Respondent No. 6 to 14 and for
issuance of a Writ of Quo Warranto against Respondent
No. 15 and 16?
13. As far as the first question is concerned the High Court has
given a finding that wearing of hijab by Muslim women does not form a
part of Essential Religious Practice in Islamic faith. On the second
question it was held that prescription of school uniform places only a
reasonable restriction which is Constitutionally permissible and cannot
be objected by the students. As regards the third, i.e., the G.O of 5
February 2022 it was again held that the Government has powers to
issue such an order and no case is made out for its invalidation. The
fourth point was also given in the negative.
14. One of the grounds raised by the Petitioners in their challenge
to the validity of the G.O. dated February 5, 2022 is that it is merely an
Executive Order. But it has far reaching consequences as far as
curtailment of Fundamental Rights of the Petitioner are concerned given
to her under Article
19(1)(a) and 25(1) of the Constitution. It was submitted
that the settled position of law is that restrictions on Fundamental Rights
can only be imposed by a statutory law and not by executive order. The
decision of this Court in Kharak Singh v. State of Uttar Pradesh2 was
relied upon. This submission, however, is not correct and therefore
declined. The reasons being, that under Section 1333 of the Karnataka
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
2 (1964) 1 SCR 332
3 ‘133. Powers of Government to give directions-(1) The State Government may, subject
to the other provisions of this Act, by order, direct the Commissioner of Public Instruction
or the Director or any other officer not below the rank of the District Educational
Officer to make an enquiry or to take appropriate proceedings under this Act in respect
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Education Act, 1983 the Government has powers to give directions. Section
145 of the 1983 Act gives the State Government powers to make Rules,
which have been made and are called the Karnataka Educational
Institutions (Classification, Regulation and Prescription of Curricula Etc.,)
Rules, 1995. Rule 11(1),4 of the above Rules’ states that the recognized
educational institutions can prescribe uniform. Therefore, the State
Government in any case has powers to prescribe a uniform/dress code.
Therefore, the submissions that the G.O is not a valid law is not correct.
The G.O draws its source from the statue and the statutory rules.
Therefore, it has the force of law. Nevertheless, the fact remains that it
still has to pass muster the provisions of Articles 19 and 25 of the
Constitution.
15. Out of the four questions formulated by the Karnataka High
Court the first question is in fact the crucial one. Everything depended
on the determination on this question. But then the Court had set a very
tall order for the Petitioners to prove their case. The Petitioners had to
prove that wearing of hijab forms a core belief in the religion of Islam.
ERP also meant that such a practice should be fundamental to follow as
a religious belief or practice as ERP was held to be the foundation, on
which the superstructure of the religion was erected. Essential Religious
Practice would mean a practice without which religion would not remain
the same religion. Also, the Petitioners had to prove that the practice of
wearing hijab is a practice which is being followed since the very
beginning of their religion. This was the task set up for the Petitioners to
prove their case. But this was not enough, this was only the threshold
of any matter specified in the said order and the Director or the other officer, as the case
may be, shall report to the State Government in due course the result of the enquiry
made or the proceedings taken by him.
(2) The State Government may give such directions to any educational institution or
tutorial institution as in its opinion are necessary or expedient for carrying out the
purposes of this Act or to give effect to any of the provisions contained therein or of any
rules or orders made thereunder and the Governing Council or the owner, as the case
may be, of such institution shall comply with every such direction.
(3) The State Government may also give such directions to the officers or authorities
under its control as in its opinion are necessary or expedient for carrying out the
purposes of this Act, and it shall be the duty of such officer or authority to comply with
such direction”
4 ‘11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised education
institution may specify its own set of Uniform. Such uniform once specified shall not be
changed within the period of next five years.
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requirement. The Petitioners also had to prove that the ERP does not
militate against any of the Constitutional values. This perhaps was right,
because an ERP which is an invasion on the Fundamental Rights of
others will not be given the protection. The Court held as follows5:
“…There is absolutely no material placed on record to prima facie
show that wearing of hijab is a part of an essential religious practise
in Islam and that the Petitioners have been wearing hijab from the
beginning. This apart, it can hardly be argued that hijab being a
matter of attire, can be justifiably treated as fundamental to Islamic
faith. It is not that if the alleged practise of wearing hijab is not
adhered to, those not wearing hijab become the sinners, Islam
loses its glory and it ceases to be a religion. Petitioners have
miserably failed to meet the threshold requirement of pleadings
and proof as to wearing hijab is an inviolable religious practice in
Islam and much less a part of ‘essential religious practice’…”
As the Petitioners did not meet the threshold requirement, the
High Court did not feel it necessary to touch on the aspect of Constitutional
Values. Therefore, they stated that :-
“It hardly needs to be stated that if Essential Religious Practice
as a threshold requirement is not satisfied then the case would by
extension not travel to the merits surrounding the domain of those
Constitutional Values.”
16. The Judgement then upholds the validity of the G.O dated
February 5, 2022 and holds that the authorities have power to prescribe
uniform in schools.
17. In my opinion, the question of Essential Religious Practices,
which we have also referred in this judgement as ERP, was not at all
relevant in the determination of the dispute before the Court. I say this
because when protection is sought under Article 25(1) of the Constitution
of India, as is being done in the present case, it is not required for an
individual to establish that what he or she asserts is an ERP. It may
simply be any religious practice, a matter of faith or conscience! Yes,
what is asserted as a Right should not go against “public order, morality
and health,” and of course, it is subject to other provisions of Part III of
the Constitution.
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
5 Para XII at Page 87 of the Judgement
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18. Partly, the Petitioners had to be blamed for the course taken
by the Court as it was indeed the Petitioners or some of the Petitioners
who had claimed that wearing of hijab is an essential practice in Islam.
Before us, however, when arguments were raised at the Bar, some of
the Counsels did admit that ERP was not the core issue in the matter, but
the Petitioners before the Karnataka High Court had no choice as they
were, inter alia, attacking the Government Order dated 5 February 2022,
which clearly stated that prohibiting hijab in schools will not be violative
of Article 25 of the Constitution of India. Be that as it may, the fact
remains that the point was raised. It was made the core issue by the
Court, and it went against the Petitioners.
19. The approach of the High Court could have been different.
Instead of straightaway taking the ERP route, as a threshold requirement,
the Court could have first examined whether the restriction imposed by
the school or the G.O on wearing a hijab, were valid restrictions? Or
whether these restrictions are hit by the Doctrine of Proportionality. In
Bijoe Emmanuel and Ors. vs State of Kerala and Ors.6 this is what
the Court had to say:
“…Therefore, whenever the Fundamental Right to freedom of
conscience and to profess, practice and propagate religion is
invoked, the act complained of as offending the Fundamental Right
must be examined to discover whether such act is to protect
public
order, morality and health, whether it is to give effect to the other
provisions of Part III of the Constitution or whether it is authorized
by a law made to regulate or restrict any economic, financial,
political or secular activity which may be associated with religious
practice or to provide for social welfare and reform. It is the duty
and function of the court so to do.”
20. Be that as it may, let us examine as to how and what the
entire concept of Essential Religious Practice has been defined by this
Court.
21. The test of ERP has been laid down by this Court in the past
to resolve disputes of a particular nature, which we shall discuss in a
while. By and large these were the cases where a challenge was made
to State interference on what was claimed to be an “essential religious
6 1986 3 SCC 615; Para 19
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practice.” What was raised was the protection of Article 25 as well as
Article 26 of the Constitution of India. In other words, these were the
cases where both Article 25 (1) and (2) and Article 26 were in play.
Essentially, these were the cases where the rituals and practices of a
denomination or a sect of a particular religion sought protection against
State intervention. Even when Rights of an individual were raised, as
we may say in the case of Shayara Bano v. Union of India and Ors.7
which is the Triple Talaq case or the case of Indian Young Lawyers
Association and Ors, (Sabarimala Temple, In Re.) v. State of Kerala
and Ors.8 which is commonly known as the Sabarimala case, these
were cases where an individual right was asserted against a religious
practice or where there was an assertion, primarily on a religious identity.
In the case at hand, the question is not merely of religious practice or
identity but also of ‘freedom of expression,’ given to a citizen under
Article 19(1)(a) of the Constitution of India, and this makes this case
different.
22. The expression ‘essential religious practices’ it seems was
taken from the Constituent Assembly Debates. In response to a query,
Dr. Ambedkar categorically said that what is protected under Article 25
of the Constitution is not every religious practice but only such practices
which are essentially religious. The relevant passage of the Constituent
Assembly Debates VII: 781 is reproduced hereunder:
“…there
is nothing extraordinary in saying that we ought to strive
hereafter to limit the definition of religion in such a manner that
we shall not extend it beyond beliefs and such rituals as may be
connected with ceremonials which are essentially religious…”
23. The first case, all the same, in this regard which came up for
consideration before the Supreme Court was Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt9 which is famously known as the Shirur
Mutt case. The facts of this case were that the Mathadhipati of Shirur
Math at Udupi had preferred a challenge to the powers of the
Commissioner under the Madras Hindu Religious Endowments Act (Act
2 of 1927) who was exercising control over the affairs of Shirur Math.
7 (2017) 9 SCC 1
8 (2019) 11 SCC 1
9 (1954) SCR 1005
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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The Writ Petition was allowed by the Madras High Court and a Writ of
Prohibition was granted in favour of the Mathadhipati. This order was
challenged before the Supreme Court by the Commissioner, Hindu
Religious Endowments, Madras. Inter-alia, therefore before the
Supreme Court was the question of whether the provisions of the Act
were an invasion on the exercise of Fundamental Rights of the
Mathadhipati and the Management of the Temple, given to them under
Article 25 and 26 of the Constitution. This Court then proceeded to
elaborate on the meaning of religion and how it has to be understood in
the context of the Constitution. While delivering the concurring opinion
on behalf of the Seven Judge Constitutional Bench, Justice B.K.
Mukherjea held as follows:
“…Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do not believe
in God or in any Intelligent First Cause. A religion undoubtedly
has its basis in a system of beliefs or doctrines which are regarded
by those who profess that religion as conducive to their spiritual
well being, but it would not be correct to say that religion is
nothing else but a doctrine of belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and models of
worship which are
regarded as integral parts of religion, and
these forms and observances might extend even to matters of
food and dress.10”
24. The Court held that the guarantee under her Constitution not
only protects the freedom of religious opinion but it protects also, acts
done in pursuance of a religion and this is made clear using the expression
‘practice of religion,’ in Article 25. This Court rejected the submissions
of the Ld. Attorney General of India, as he then was, that the State must
be allowed to regulate the secular activities which are associated with a
religion which do not constitute the essential part of it. The observations
falling from the court in the Shirur Mutt Case (supra), in this regard
were as follows:
“19. …The learned Attorney-General lays stress upon clause 2(a)
of the article and his contention is that all secular activities, which
10 Para 17 of Shirur Mutt Cae (supra)
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may be associated with religion but do not really constitute an
essential part of it, are amenable to State regulation.
20. … The contention formulated in such broad terms cannot, we
think, be supported. In the first place, what constitutes the
essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. If the
tenets of any religious sect of the Hindus prescribe that offerings
of food should be given to the idol at particular hours of the day,
that periodical ceremonies should be performed in a certain way
at certain periods of the year or that there should be daily recital
of sacred texts or oblations to the sacred fire, all these would be
regarded as parts of religion and mere fact that they involve
expenditure of money or employment of priests and servants or
the use of marketable commodities would not make them secular
activities partaking of a commercial or economic character; all of
them are religious practices and should be regarded as matters of
religion within the meaning of Article 26(b)11.’
(emphasis supplied)
Thereafter though the concept like ERP had come, but what
constitutes Essential Religious Practices was left to the doctrine of that
religion itself.
25. The next case which came up for consideration of this Court
was in Ratilal Panachand Gandhi v. State of Bombay and Ors.12
wherein the Petitioners had challenged the Constitutional validity of the
Act known as the Bombay Public
Trusts Act, 1950 inter-alia, on grounds
that the provisions in the Act were an invasion of their Fundamental
Rights, given to them under Article 25 as well as Article 26 of the
Constitution. Basically, it followed the same line of thought as laid down
in the Shirur Mutt (supra) case. The observations of the court are:
“10. …The free exercise of religion by which is meant the
performance of outward acts in pursuance of religious belief, is,
as stated above, subject to State regulation imposed to secure
order, public health and morals of the people. What sub-clause
11 Para 19 & 20
12 1954 SCR 1055; Para
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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(a) of clause 2 of Article 25 contemplates is not State regulation
of the religious practices as such which are protected unless they
run counter to public health or morality but of activities which are
really of an economic, commercial or political character though
they are associated with religious practices.”
26. We now come to the decision of the Supreme Court in Durgah
Committee, Ajmer, and Anr. v. Syed Hussain Ali and Ors.13 In this
case the ‘khadims’ of the Hazrat Haji Moinuddin Chishti had
challenged the Constitutional Validity of the Dargah Hazrat Khwaja Saheb
Act, 1955 before the Rajasthan High Court. The ‘khadims’ of the Durgah
of Khwaja Moin-ud-din Chishti (also known as the Durgah Khwaja
Saheb, Ajmer), claimed to be the followers of a Sufi sect or Silsila
called Chishti and they claimed they were doing service in the Dargah
of Sufi Saint Hazrat Haji Moinuddin Chishti. Their case was that the
interference of the Dargah Committee amounts to an invasion of the
Fundamental Rights, inter alia, guaranteed to them under Article 25(1)
of the Constitution of India. The Rajasthan High Court had substantially
allowed their claim and against the said order the Dargah Committee
was before the Supreme Court. The questions which fell for consideration
before this Court was whether any person as a Sunni Muslim could
manage the affairs of the Durgah or whether this could only be done by
the followers of Chishti Silsila.
There were some other questions as
well, which would not be relevant for discussion in the context of this
decision. The Supreme Court had allowed the appeal of the Durgah
Committee by setting aside the order of the Rajasthan High Court, holding,
inter alia that khadims could not claim the right under Article 25(1) of
the Constitution of India. The Supreme Court in this case, went on to
determine as to what would be an ERP and how the Court would
determine the same. All the same this was done again as there was an
interplay of Article 25 and Article 26 of the Constitution, and what was
being asserted were the Rights of a Sect or a denomination against
State intervention.
27. The Judgements of this Court in Acharya J. Avadhuta & Ors.
v. Commissioner of Police, Calcutta & Anr.14 and Commissioner of
Police & Ors. v. Acharya J. Avadduta15 both relate to the performance
13 (1962) 1 SCR 383
14 (1983) 4 SCC 522
15 (2004) 12 SCC 770
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of tandav dance in a public place by the followers of the faith of ‘Anand
Margis.’ The Kolkata Police had banned such performance of tandav
dance in public places under Section 144 of the Code of Criminal
Procedure, 1973. The matter ultimately came up before this Court in
1983 and it was held that performing tandav dance in public places is
not an essential part of the ‘Anand Margi’ faith. The matter again reached
before this Court in 2004 and a 3-Judge bench of this Court reached the
same conclusion by relying upon the earlier Judgement of 1983.
28. Therefore, what can be clearly distinguished here is that while
dealing with the concept of Essential Religious Practices or whether a
particular practice can be termed as an ERP, this Court was dealing
with questions related to both Article 25 as well as Article 26 of the
Constitution. These were the cases which were either concerned with
the management of an activity related to a religious shrine or Institution
or where the State had met some kind of resistance or challenge by the
citizens, who claimed rights both under Article 25 and 26 of the
Constitution of India. These were also the cases where a community,
sect or a religious denomination of a religion was against the State action.
This, however, is not presently the case before this Court. We have
before us a case of assertion of individual Right as different from what
would be a community Right. We are concerned only with Article 25(1)
and not with
Article 25(2) or Article 26 of the Constitution of India.
Whereas Clause 1 of Article 25 deals with individual rights, Article 25(2)
and Article 26 of the Constitution of India, deal by and large with
community-based rights. In that sense what has been decided by this
Court earlier as ERP would not be of much help to us. For this reason,
the entire exercise done by the Karnataka High Court, in evaluating the
rights of the Petitioners only on the touchstone of ERP, was incorrect.
29. In the more recent case of Shayara Bano (supra) the majority
opinion of 3:2 held that Triple Talaq constitutes an irregular and not an
essential practice amongst Sunni Muslims. It was stated as follows:
“54. …Applying the aforesaid tests, it is clear that Triple Talaq is
only a form of talaq which is permissible in law, but at the same
time, stated to be sinful by the very Hanafi School which tolerates
it. According to Javed16, therefore, this would not form part of
any essential religious practice. Applying the test stated in Acharya
16 Javed v State of Haryana, (2003) 8 SCC 369 [cited in Shayara Bano (supra)]
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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Jagadishwarananda it is equally clear that the fundamental nature
of the Islamic religion, as seen through an Indian Sunni Muslim’s
eyes, will not change without this practice…”
30. In the Sabarimala Temple (supra) case the question before
the Constitutional Bench was whether women devotees between the
ages of 10-50 years had the Right to enter the temple of Lord Ayyappa
located in Sabarimala, Kerala. Subsequently, this Right was denied to
them by the Temple Authorities, on the basis of customary practice and
tradition. Allowing the Writ Petition by 4:1 majority, the bench held in
favour of women devotees and struck down the restrictions placed upon
them to be violative of their Fundamental Rights under the Constitution
of India.
31. In both the cases cited above again the essential determination
before the Court was of religion and religious practice. Freedom of
expression given to a citizen under Article 19(1)(a) was not an issue,
and if at all it was it was on the periphery. In other words, not the central
issue.
32. We are presently concerned with an entirely different set of
facts. We must deal with only Article 25(1), and not with Article 25(2),
or even with Article 26 of the Constitution of India. Article 25(1) deals
with the Rights of an individual, whereas Article 25 (2), and Article 26
deal with the Rights of communities or religious denominations, as referred
above. Additionally, we must deal with the
Fundamental Rights given to
an individual under Article 19(1)(a) and its interplay with Article 25(1) of
the Constitution.
33. Article 25 gives a citizen the “freedom of conscience and free
profession, practice and propagation of religion.” It does not speak of
Essential Religious Practice. This concept comes in only when we are
dealing with Article 25(2) or Article 26, and where there is an inter-play
of these two Articles.
34. We have before us two children, two girl students, asserting
their identity by wearing hijab, and claim protection under Article 19
and Article 25 of the Constitution of India. Whether wearing hijab is an
ERP in Islam or not is not essential for the determination of this dispute.
If the belief is sincere, and it harms no one else, there can be no justifiable
reasons for banning hijab in a classroom.
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35. The Karnataka High Court, however, has made a detailed
study as to what is ERP and whether wearing a hijab constitutes a part
of ERP in Islam. Suras and verses from the Holy Quran have been
referred and explained, and then taking assistance of a commentary on
the Holy Book, the High Court concludes that wearing of hijab is not an
essential religious practice in Islam and at best it is directory in nature,
not mandatory. The decisions of the Supreme Court which we have
referred above, and some other decisions as well have been considered
while dealing as to what constitutes an ERP, and then a determination
has been made that what is being claimed as a right is not an essential
religious practice at all!
36. Apart from the fact that ERP was not essential to the
determination of the dispute, which we have already said above, there is
another aspect which is even more important, which would explain as to
why the Courts should be slow in the matters of determining as to what
is an ERP. In my humble opinion Courts are not the forums to solve
theological questions. Courts are not well equipped to do that for various
reasons, but most importantly because there will always be more than
one viewpoint on a particular religious matter, and therefore nothing gives
the authority to the Court to pick one over the other. The Courts, however,
must interfere when the boundaries set by the Constitution are broken,
or where unjustified restrictions are imposed.
37. In
the case of M. Siddiq (Dead) Through LR’s v. Mahant
Suresh Das and Ors.17 popularly known as the Ram Janmabhoomi
Case this Court had cautioned not to venture into areas of theology with
which the Courts are not well equipped. There may be diversity of views
within a religion and to choose one over others, may not be correct.
Courts should steer clear from interpreting religious scriptures. It was
observed by the Court as follows:
“90. During the course of the submissions, it has emerged that the
extreme and even absolute view of Islam sought to be portrayed
by Mr. P.N. Mishra does not emerge as the only available
interpretation of Islamic law on a matter of theology. Hence, in
the given set of facts and circumstances, it is inappropriate for
this Court to enter upon an area of theology and to assume the
17 (2020) 1 SCC 1; Para 90 & 91
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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role of an interpreter of the Hadees. The true test is whether
those who believe and worship have faith in the religious efficacy
of the place where they pray. The belief and faith of the worshipper
in offering namaz at a place which is for the worshipper a mosque
cannot be challenged. It would be preposterous for this Court to
question it on the ground that a true Muslim would not offer prayer
in a place which does not meet an extreme interpretation of doctrine
selectively advanced by Mr. Mishra. This Court, as a secular
institution, set up under a constitutional regime must steer
clear from choosing one among many possible
interpretations of theological doctrine and must defer to
the safer course of accepting the faith and belief of the
worshipper.’
91. Above all, the practice of religion, Islam being no exception,
varies according to the culture and social context. That indeed is
the strength of our plural society. Cultural assimilation is a
significant factor which shapes the manner in which religion is
practiced. In the plural diversity of religious beliefs as they are
practiced in India, cultural assimilation cannot be construed as a
feature destructive of religious doctrine. On the contrary, this
process strengthens and reinforces the true character of a country
which has been able to preserve its unity by accommodating,
tolerating, and respecting a diversity of religious faiths and ideas.
There can be no
hesitation in rejecting any attempt to lead
the Court to interpret religious doctrine in an absolute and
extreme form and question the faith of worshippers. Nothing
would be as destructive of the values underlying Article 25
of the Constitution.18’
(emphasis supplied)
38. In any case as to what constitutes an Essential Religious
Practice, in all its complexities, is a matter which is pending consideration
before a Nine Judge Constitutional bench of this Court19 and therefore
in any case it may not be proper for me to go any further into this
aspect.
18 Paras 90 & 91
19 Kantaru Rajeevaru vs Indian Young Lawyers Assn. and Ors. [R.P. (C) No. 3358 of
2018 in W.P. (C) No. 373 of 2006]
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39. The decision which is of essential importance in this case for
our purposes is the decision given by this Court in the case of Bijoe
Emmanuel (supra). It is necessary to refer to this case in some detail,
as in my opinion this case is the guiding star which will show us the path
laid down by the well established principles of our Constitutional values,
the path of understanding and tolerance, which we may also call as
“reasonable accommodation,” as explained by some of the lawyers before
this Court. Karnataka High Court, all the same, chose not to rely on this
seminal Judgement for reasons that “Bijoe Emmanuel is not the best
vehicle for drawing a proposition essentially founded on the freedom
of conscience20.” But this is not correct. This decision of the Supreme
Court is most relevant in the present case, both on the facts as well as
on law.
40. Let us now look into the facts of that case:
Three girl children in Kerala who belonged to a faith called
Jehovah’s Witnesses, were attending a government school. Every
morning when the National Anthem was sung in the school these three
students used to respectfully stand up for the National Anthem, like other
children in the school; but they did not sing the National Anthem. They
did so as their faith forbid them to sing for anyone else but Jehovah.
Initially this was not noticed but then someone complained before the
highest authority in the State, which led to the expulsion of these three
children from
their school, by orders passed by the Deputy Inspector of
schools and then the Headmistress of the school. The children filed their
Writ Petition before the Kerala High Court which was dismissed by the
learned Single Judge as also their appeal by a division bench of Kerala
High Court. They finally approached the Supreme Court of India and
filed their Special Leave Petition before this Court. Their case was simple:
they do not show disrespect to the National Flag or the National Anthem.
They stand respectfully when the National Anthem is sung, they only do
not participate in singing as they sincerely believe their faith forbids them
to sing for anyone but Jehovah.
41. The Petition of these three girl children was dismissed by the
Kerala High Court as the Kerala High Court did not find any word or
thought in the Indian National Anthem which could offend anyone’s
religious susceptibilities. Hence the Kerala High Court concluded that
20 Para X1(iii) at Page 85 of the Impugned Judgement
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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there was absolutely no reason for the children not to sing the national
anthem! While examining their case Justice O. Chinnappa Reddy, who
wrote this Judgement for the Court rejected the approach of the High
Court and said that the High Court had actually misdirected itself in
doing so and it went off at a tangent. The objection of the Petitioners
was not to the language of the National Anthem, but they simply refused
to sing any National Anthem, irrespective of any country as they sincerely
believe that this is what their religion prescribes them to do.
42. The Supreme Court then cites two judgements of the United
States Supreme Court, which we must refer here as well, since they
relate to schools and the ‘discipline’ imposed by the schools. The first is
the case of Minersville School District v. Gobitis21 and the second
is West Virginia State Board of Education v. Barnette22. While
referring to the two judgement(s) my source shall remain the Judgement
of Bijoe Emmanuel (supra).
43. In Minersville (supra) the question was whether compulsory
saluting of the National Flag infringed upon the liberties guaranteed by
the Fourteenth Amendment of the Constitution of the United States of
America. The majority opinion delivered by Justice Frankfurter upheld
the requirement on grounds that such decisions are to be left to the
school boards. Justice Stone gave his dissent and said,
“History teaches us that there have been but
few infringements
of personal liberty by the State which have not been justified, as
they are here, in the name of righteousness and the public good,
and few which have not been dictated, as they are now, at
politically helpless minorities23.”
In short, the US Supreme Court did not interfere in the compulsory
saluting of the National Flag in a Public School. The reference of this
case, is however, important here as very soon this decision was overruled
by the Supreme Court in the case of Barnetta (supra) which is the
second case.
44. The second case is the one which only a few years later,
overruled Gobitis (supra). Justice Jackson, the author of the Judgement
21 310 US 586 (1940)
22 319 US 624 (1943)
23 Para 21 of Bijoe Emmanuel (supra)
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in Barnett referred to the famous dilemma of Abraham Lincoln which
was “Must a government of necessity be too strong for the liberties
of its people, or too weak to maintain its own existence?” Justice
Jackson then said:
“It may be doubted whether Mr. Lincoln would have thought that
the strength of government to maintain itself would be impressively
vindicated by our confirming power of the state to expel a handful
of children from school…”
45. While going into the logic of Justice Frankfurter of non-
interference with the School Authorities, as that would make the Court a
School Board, Justice Jackson went onto say:
“There are village tyrants as well as village Hampdens, but none
who acts under colour of law is beyond the reach of the
Constitution….. We cannot, because of modest estimates of our
competence in such specialities as public education, withhold the
judgement that history authenticates as the function of this Court
when liberty is infringed.” Justice Jackson then concludes:24,
“If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein. If there are any circumstances which permit an
exception, they do not now occur to us.
We think the action of the local authorities in compelling the
flag salute and pledge transcends constitutional
limitations on
their power and invades the sphere of intellect and spirit which
it is the purpose of the First Amendment to our Constitution to
reserve from all official control.”
46. Justice O. Chinnappa Reddy in his Judgement has traced
the struggles and the difficulties faced by the faithful of Jehovah in
different countries where they had met similar restrictions. The Court
then invokes Article 19(1)(a) and Article 25(1), in favor of the
petitioners. It says:
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
24 Para 22 of Bijoe Emmanuel (supra)
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“Article 19(1)(a) of the Constitution guarantees to all citizens
freedom of speech and expression, but Article 19(2) provides that
nothing in Article 19(1)(a) shall prevent a State from making any
law, insofar as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or
incitement to an offence. Article 25(1) guarantees to all persons
freedom of conscience and the right freely to profess, practise
and propagate religion, subject to order, morality and health and to
the other provisions of Part III of the Constitution.”
47. It was then held that it is not disrespectful to the National
Anthem if the girls respectfully stand when the National Anthem was
sung, but may not have joined in the singing. Their expulsion from school
was therefore held to be in violation of their Fundamental Right of
Freedom of Speech and Expression given to them under Article 19(1)(a)
of the Constitution of India. The Government Circular which directed
that the entire school should sing National Anthem was not ‘law’ as
given in Clause 2 of Article 19of the Constitution. The law i.e., the
statutory law was ‘The Prevention of Insults to National Honour Act,
1971’. A person who respectfully
stands when the National Anthem is
sung but does not participate in the singing does not commit an offence
under the Act. Offence is only committed when a person prevents another
from singing National Anthem. The Court thus impliedly also meant that
the freedom to sing would also mean freedom to remain silent.
48. Article 25 of the Constitution, was described as an article of
faith and it was observed as follows:
“18. …Article 25 is an article of faith in the Constitution,
incorporated in recognition of the principle that the real test of a
true democracy is the ability of even an insignificant minority to
find its identity under the country’s Constitution. This has to be
borne in mind in interpreting Article 25.”
49. The girls before us today face the same predicament as the
Jehovah’s Witnesses in the above case. The present Petitioners too wear
hijab as an article of their faith. They too believe that it is a part of their
religion and social practice. In my considered opinion therefore, this case
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is squarely covered by the case of Bijoe Emmanuel (supra) and the
ratio laid down therein.
50. Coming back to the order of Karnataka High Court there is
another finding which is difficult to accept. This is where the High Court
determines that the Petitioners cannot assert their Fundamental Rights
inside a classroom which the Court terms as “qualified public places”
and the rights inside a school are only “derivative right.” The court states
as under:
“It hardly needs to be stated that schools are qualified public places
that are structured predominantly for imparting educational
instructions to the students. Such qualified Spaces by their very
nature repeal the assertion of individual rights to the detriment of
the general discipline and decorum. Even the substantive rights
themselves metamorphise into a kind of derivatives rights in such
places.”25
The Hight Court rejects the case of the Petitioners on ‘reasonable
accommodation,’ and also the argument that schools are a showroom
for diversity of culture, for reason that the schools being ‘qualified public
places’ schoolgirls have to follow the dress code, which does not prescribe
hijab. It says:
“It hardly needs to be stated the content and scope of a right, in
terms of its exercise are circumstantially dependent. Ordinarily,
liberties of persons stand curtailed inter-alia by his position,
placement and the like. The extent of autonomy is enormous at
home, since ordinarily resident of a person is
treated as his
inviolable castle. However, in qualified public places like schools,
courts, war rooms, defense camp, etc., the freedom of individuals
as of necessity, is curtailed consistent with the discipline and
decorum and function and purpose26.”
51. Comparison of a school with a war room or defense camp,
seems odd, to say the least. Schools are not required to have the discipline
and regimentation of a military camp. Nevertheless, in my understanding,
what the High Court wanted to convey was that all public places have a
25 Para XIV (iv) at Page 100 of the Impugned Judgement
26 Para XIV (vii) at Page 104 of the Impugned Judgement
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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certain degree of discipline and limitations and the degree of enjoyment
of a Right by an individual inside his house or anywhere outside a
public space is different to what he or she would enjoy once they are
inside a public space. As a general principle, one can have no quarrel
with this proposition. But then let us come to the facts of the case.
Laying down a principle is one thing, justifying that to the facts of a
case is quite another. We must be a judge of fact as well as a judge of
law. Do the facts of the case justify the restrictions inside a classroom,
which is admittedly a public place? In my opinion there is no justification
for this.
52. School is a public place, yet drawing a parallel between a
school and a jail or a military camp, is not correct. Again, if the point
which was being made by the High Court was regarding discipline in a
school, then that must be accepted. It is necessary to have discipline in
schools. But discipline not at the cost of freedom, not at the cost of
dignity. Asking a pre university schoolgirl to take off her hijab at her
school gate, is an invasion on her privacy and dignity. It is clearly violative
of the Fundamental Right given to her under Article 19(1)(a) and 21 of
the Constitution of India. This right to her dignity27 and her privacy28 she
carries in her person, even inside her school gate or when she is in her
classroom. It is still her Fundamental Right, not a
“derivative right” as
has been described by the High Court.
53. In the Puttaswamy judgement (supra), Justice D.Y.
Chandrachud in Paragraph 298 of his Judgement says as under:
‘298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an intrinsic
value, human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom are
inseparably intertwined, each being a facilitative tool to achieve
the other. The ability of the individual to protect a zone of privacy
enables the realisation of the full value of life and liberty. Liberty
has a broader meaning of which privacy is a subset. All liberties
may not be exercised in privacy. Yet others can be fulfilled only
within a private space. Privacy enables the individual to retain the
27 Maneka Gandhi vs Union of India and Anr. [(1978) 1 SCC 248]; Para 85
28 K.S. Puttaswamy and Anr. vs Union of India and Ors. [(2017) 10 SCC 1]
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autonomy of the body and mind. The autonomy of the individual is
the ability to make decisions on vital matters of concern to life.
Privacy has not been couched as an independent fundamental
right. But that does not detract from the constitutional protection
afforded to it, once the true nature of privacy and its relationship
with those fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee against arbitrary
State action. It prevents the State from discriminating between
individuals. The destruction by the State of a sanctified personal
space whether of the body or of the mind is violative of the
guarantee against arbitrary State action. Privacy of the body
entitles an individual to the integrity of the physical aspects of
personhood. The intersection between one’s mental integrity and
privacy entitles the individual to freedom of thought, the freedom
to believe in what is right, and the freedom of self-determination.
When these guarantees intersect with gender, they create a private
space which protects all those elements which are crucial to gender
identity. The family, marriage, procreation and sexual orientation
are all integral to the dignity of the individual. Above all, the privacy
of the individual recognises an inviolable right to determine how
freedom shall be exercised. An individual may perceive that the
best form of expression is to
remain silent. Silence postulates a
realm of privacy. An artist finds reflection of the soul in a creative
endeavour. A writer expresses the outcome of a process of
thought. A musician contemplates upon notes which musically lead
to silence. The silence, which lies within, reflects on the ability to
choose how to convey thoughts and ideas or interact with others.
These are crucial aspects of personhood. The freedoms under
Article 19 can be fulfilled where the individual is entitled to decide
upon his or her preferences. Read in conjunction with Article 21,
liberty enables the individual to have a choice of preferences on
various facets of life including what and how one will eat, the
way one will dress, the faith one will espouse and a myriad other
matters on which autonomy and self-determination require a choice
to be made within the privacy of the mind. The constitutional right
to the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not
express those choices to the world. These are some illustrations
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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of the manner in which privacy facilitates freedom and is intrinsic
to the exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III
with an alpha-suffixed right to privacy: this is not an act of judicial
redrafting. Dignity cannot exist without privacy. Both reside within
the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate expression of
the sanctity of the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights and protects
for the individual a zone of choice and self-determination.’
54. The counsels representing the State before this Court had
underlined the importance of G.O dated 05.02.2022 which was to enforce
discipline in schools, including in Pre-University classes, and apply a
dress code. The object of the act therefore was the betterment of
education and to inculcate a sense of discipline among school going
children. The learned Advocate General of Karnataka submitted that
the law in the present case which is the G.O dated 5th February, 2022, is
primarily for the enforcement of dress code in schools including Pre-
University classes. It may only incidentally be giving an impact on the
rights which the Petitioners claim under Article 19 and 25 of the Constitution
of India.
What has to be seen is the pith and substance of the law which is
the enforcement of uniforms in schools, which in turn is to maintain discipline
in schools. For this submission the learned Advocate General has relied
upon Bachan Singh v. State of Punjab29 which says:
“60. From a survey of the cases noticed above, a comprehensive
test which can be formulated, may be restated as under:
“Does the impugned law, in its pith and substance, whatever
may be its form and object, deal with any of the fundamental
rights conferred by Article 19(1)? If it does, does it abridge or
abrogate any of those rights? And even if it does not, in its pith
and substance, deal with any of the fundamental rights conferred
by Article 19(1), is the direct and inevitable effect of the
impugned law such as to abridge or abrogate any of those
rights?”
29 (1980) 2 SCC 684
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The mere fact that the impugned law incidentally, remotely or
collaterally has the effect of abridging or abrogating those rights,
will not satisfy the test. If the answer to the above queries be
in the affirmative, the impugned law in order to be valid, must
pass the test of reasonableness under Article 19. But if the
impact of the law on any of the rights under clause (1) of
Article 19 is merely incidental, indirect, remote or collateral
and is dependent upon factors which may or may not come
into play, the anvil of Article 19 will not be available for judging
its validity.”
All the same, I do not see the applicability of the above submission
in the facts of the controversy before this Court. The G.O specifically
seeks to address the question of hijab, which is evident from the preamble
of the G.O. Moreover, the above submission of the learned Advocate
General is not correct in view of the Puttaswamy judgement (supra)
which says:
“24. The decisions in M.P. Sharma [M.P. Sharma v. Satish
Chandra, AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077]
and Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] adopted a doctrinal
position on the relationship between Articles 19 and 21, based on
the view of the majority in Gopalan [A.K. Gopalan v. State of
Madras, AIR 1950 SC 27 : 1950 SCR 88] . This view stands
abrogated particularly by the judgment in Cooper [Rustom
Cavasjee Cooper v. Union of India, (1970) 1 SCC
248] and the
subsequent statement of doctrine in Maneka [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248]. The decision
in Maneka [Maneka Gandhi v. Union of India, (1978) 1 SCC 248],
in fact, expressly recognised that it is the dissenting judgment of
Subba Rao, J. in Kharak Singh [Kharak Singh v. State of U.P.,
AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332]
which represents the exposition of the correct constitutional
principle. The jurisprudential foundation which held the field sixty-
three years ago in M.P. Sharma [M.P. Sharma v. Satish Chandra,
AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077] and fifty-
five years ago in Kharak Singh [Kharak Singh v. State of U.P.,
AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] has
given way to what is now a settled position in constitutional law.
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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Firstly, the fundamental rights emanate from basic notions of liberty
and dignity and the enumeration of some facets of liberty as
distinctly protected rights under Article 19 does not denude Article
21 of its expansive ambit. Secondly, the validity of a law which
infringes the fundamental rights has to be tested not with reference
to the object of State action but on the basis of its effect on the
guarantees of freedom. Thirdly, the requirement of Article 14 that
State action must not be arbitrary and must fulfil the requirement
of reasonableness, imparts meaning to the constitutional guarantees
in Part III.”
55. We would now be examining some decisions of foreign Courts
as in order to appreciate the assertion of religious and cultural rights in
our school premises, it would be worthwhile to refer to some of the
similar controversies which had come up before the Courts of other
Countries which have a Constitutional Democracy. There are two cases
which I would like to refer here. The first case is the ‘nose-stud’ case
of the Constitutional Court of South Africa and the second one is a
decision of the House of Lords in England.
56. The South African case though has to be seen in the background
of the Constitutional Law of South Africa where dignity is a right given
to its citizens under its Constitution. Equality Courts have also been
established in South Africa to hear the disputes relating to cases of
discrimination.
But nevertheless, the basic principle and the law remains
the same.
57. Sunali was a student of Class 10 in Durban Girls High School
(DGHS). The Code of Conduct of the school prohibited wearing jewellery
in school. When Sunali was in class 10, her mother gave her a nose stud
to wear, which was not a fashion statement, but a part of Sunali’s Hindu-
Tamil culture. The school objected to the nose-stud and Sunali was asked
to remove it. When Sunali refused to remove the nose stud her mother
was called. Her mother reasoned with the authorities that this is a part
of her Hindu-Tamil culture and it cannot be removed. Ultimately, Sunali
through her mother had to file a Petition before the Equality Court, where
such matters of discrimination are heard since Sunali had alleged
discrimination by her school. The Equality Court held that though a prima
facie case for discrimination had been made out, it could not be termed
as ‘unfair’30, thus dismissing her case. Thereafter, the matter was taken
30 Para 14 at Page 14 of the Judgement
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in appeal before the High Court which allowed her appeal and held that
asking Sunali to remove her nose stud amounts to discrimination which
is wrong. Both the school and the administration went to the Constitutional
Court which heard the matter and again decided in favour of Sunali.
58. As to the argument of the school that nose stud was not central
to Sunali’s religion or culture and it is only an optional practice, this is
what was said by the Constitutional Court, the Highest Court of South
Africa:
“86. The School further argued that the nose stud is not central to
Sunali’s religion or culture, but it is only an optional practice. I
agree that the centrality of a practice or a belief must play a role
in determining how far another party must go to accommodate
that belief. The essence of reasonable accommodation is an
exercise of proportionality. Persons who merely appear to adhere
to a religious and/or cultural practice, but who are willing to forego
it if necessary, can hardly demand the same adjustment from others
as those whose identity will be seriously undermined if they do
not follow their belief. The difficult question is how to determine
centrality. Should we enquire into centrality of the practice or
belief to the community, or to the individual?
87. While it is tempting to consider the objective importance or
centrality of a belief to a particular religion or culture in determining
whether the discrimination is fair, that approach raises
many
difficulties. In my view, courts should not involve themselves in
determining the objective centrality of practices, as this would
require them to substitute their judgement of the meaning of a
practice for that of the person before them and often to take sides
in bitter internal disputes. This is true both for religious and cultural
practices. If Sunali states that the nose stud is central to her as a
South Indian Tamil Hindu, it is not for the Court to tell her that she
is wrong because others do not relate to that religion or culture in
the same way.”
59. What was also pleaded on behalf of the School was that the
nose stud after all is a cultural and not a religious issue and therefore the
infringement of any right, if at all, is much less. This issue was dealt with
as follows:
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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“91. The next string of the School’s centrality bow was that the
infringement of Sunali’s right to equality is less severe because
the nose stud is cultural rather than a religious adornment. This
was also the basis originally relied upon by the School for refusing
the exemption and why it could recognise the stud’s cultural
significance without granting Sunali an exemption. To my mind
the argument is flawed. As stated above, religious and cultural
practices can be equally important to a persons’ identity. What is
relevant is not whether a practice is characterised as religious or
cultural but its meaning to the person involved.
92. The School also argued that if Sunali did not like the Code, she
could simply go to another school that would allow her to wear
the nose stud. I cannot agree. In my view the effect of this would
be to marginalise religions and cultures, something that is
completely inconsistent with the values of our Constitution. As
already noted, out Constitution does not tolerate diversity as a
necessary evil, but affirms it as one of the primary treasures of
our nation. There may, however, be occasions where the specific
factual circumstances make the availability of another school a
relevant consideration in searching for a reasonable
accommodation. However, there are no such circumstances in
this case and the availability of another school is therefore not a
relevant consideration.”
60. Ultimately
what was held is given below as follows:
“112. The discrimination has had a serious impact on Sunali and,
although the evidence shows that uniforms serve an important
purpose, it does not show that the purpose is significantly furthered
by refusing Sunali her exemption. Allowing the stud would not
have imposed an undue burden on the School A reasonable
accommodation would have been achieved by allowing Sunali to
wear the nose stud. I would therefore confirm the High Court’s
finding of unfair discrimination.”
61. The other case, which was also relied by the Karnataka High
Court is Regina (SB) v. Governors of Denbigh High School31.
Primarily the controversy was that the school, allowed wearing of hijab,
but what was further insisted was wearing of jilbab (which is more or
31 [2007] 1 AC 100
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less a burqa). Jilbab was denied and this led to the litigation where the
restriction of the school on jilbab was upheld. In this background we
must appreciate the observations of the Court, it was said:
“But schools are different. Their task is to educate the young
from all the many and diverse families and communities in this
country in accordance with the national curriculum. Their task is
to help all of their pupils achieve their full potential. This includes
growing up to play whatever part they choose in the society in
which they are living. The school’s task is also to promote the
ability of people of diverse races, religions and cultures to live
together in harmony. Fostering a sense of community and cohesion
within the school is an important part of that. A uniform dress
code can play its role in smoothing over ethnic, religious and social
divisions. But it does more than that. Like it or not, this is a society
committed, in principle and in law, to equal freedom for men and
women to choose how they will lead their lives within the law.
Young girls from ethnic, cultural or religious minorities growing up
here face particularly difficult choices: how far to adopt or to
distance themselves from the dominant culture. A good school
will enable and support them. This particular school is a good
school: that, it appears, is one reason why Shabina Begum wanted
to stay there. It is also a mixed school. That was what led to the
difficulty. It would not
have arisen in a girls’ school with an all
female staff.”
62. When a decision has to be made between school discipline
and cultural and religious rights of minorities a balance has to be
maintained. That is what was held. Baroness Hale of Richmond while
elaborating on this issue referred to “Culture, Religion and Gender”
(2003) by Professor Frances Raday the exact Paragraph at 98 which
reads like this:
“genuine individual consent to a discriminatory practice or dissent
from it may not be feasible where these girls are not yet adult.
The question is whether patriarchal family control should be
allowed to result in girls being socialised according to the
implications of veiling while still attending public educational
institutions . . . A mandatory policy that rejects veiling in state
educational institutions may provide a crucial opportunity for girls
to choose the feminist freedom of state education over the
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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patriarchal dominance of their families. Also for the families, such
a policy may send a clear message that the benefits of state
education are tied to the obligation to respect women’s and girl’s
right to equality and freedom . . . On the other hand, a
prohibition of veiling risks violating the liberal principle of
respect for individual autonomy and cultural diversity for
parents as well as students. It may also result in
traditionalist families not sending their children to the state
educational institutions. In this educational context,
implementation of the right to equality is a complex matter,
and the determination of the way it should be achieved
depends upon the balance between these two conflicting
policy priorities in a specific social environment”
(emphasis supplied)
63. The Karnataka High Court has placed reliance upon two US
Judgements passed by the District Courts there, that is Miller v. Gills32
and Christmas v. El Reno Board of Education33. All the same the
facts of these cases are different and in none of the two cases the
action of the school authorities debarred students from attending their
classes. There is another judgement relied upon by Karnataka High Court
which is Employment Division v. Smith34. This is a US Supreme Court
Judgement.
64. The facts of the case were quite different. The issue being
examined was whether the State of Oregon was justified in denying
unemployment benefits to
persons who had been dismissed from their
jobs owing to their consumption of “peyote,” which had been classified
as a ‘controlled substance’ (under the Controlled Substances Act, 1970),
when it was being consumed as a part of religious beliefs. The
consumption of peyote was admittedly a criminal offence. It was
contended by the respondents that as it was only being consumed in
pursuance of their religious belief and they would not be liable to be
subjected to the applicable criminal law. This argument was rejected
and it was held that if certain conduct (such as consumption of peyote),
which is prohibited by law, then there would be no federal right to engage
32 315 F. Supp. 94 (N.D. Ill. 1969)
33 313 F. Supp. 618 (W.D. Okla. 1970)
34 494 US 872 (1990)
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in such conduct. It was in this particular context of the applicability of
the criminal law on an individual for a conduct already prohibited that
such law was said to be ‘facially neutral.’ On this note, the following
was stated:
“13. …We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence
contradicts that proposition. As described succinctly by Justice
Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310
U.S. 586, 594-595, 60 S. Ct. 1010, 1012-1013, 84 L.Ed. 1375
(1940): “Conscientious scruples have not, in the course of the
long struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction
of religious beliefs. The mere possession of religious convictions
which contradict the relevant concerns of a political society does
not relieve the citizen from the discharge of political
responsibilities.”
65. Another question which the School Administration and the
State must answer in the present case is as to what is more important to
them: Education of a girl child or Enforcement of a Dress Code! We
have been informed at the Bar by many of the Senior counsels appearing
for the Petitioners, that the unfortunate fallout of the enforcement of
hijab ban in schools in Karnataka has
been that some of the girl students
have not been able to appear in their Board examinations, and many
others were forced to seek transfer to other schools, most likely madrasas,
where they may not get the same standard of education. This is for a girl
child, for whom it was never easy, in the first place, to reach her school
gate.
66. One of the best sights in India today, is of a girl child leaving
for her school in the morning, with her school bag on her back. She is
our hope, our future. But it is also a fact, that it is much more difficult for
a girl child to get education, as compared to her brother. In villages and
semi urban areas in India, it is commonplace for a girl child to help her
mother in her daily chores of cleaning and washing, before she can grab
her school bag. The hurdles and hardships a girl child undergoes in gaining
education are many times more than a male child. This case therefore
has also to be seen in the perspective of the challenges already faced by
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
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a girl child in reaching her school. The question this Court would therefore
put before itself is also whether we are making the life of a girl child any
better by denying her education, merely because she wears a hijab!
67. All the Petitioners want is to wear a hijab! Is it too much to
ask in a democracy? How is it against public order, morality or health?
or even decency or against any other provision of Part III of the
Constitution. These questions have not been sufficiently answered in
the Karnataka High Court Judgement. The State has not given any
plausible reasons either in the Government Order dated 5 February 2022,
or in the counter affidavit before the High Court. It does not appeal to
my logic or reason as to how a girl child who is wearing a hijab in a
classroom is a public order problem or even a law-and-order problem.
To the contrary reasonable accommodation in this case would be a sign
of a mature society which has learnt to live and adjust with its differences.
In his famous dissent delivered in United States v. Schwimmer35 Justice
Oliver Wendell Holmes Jr., said as under:
“22. …if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle
of free thought-not free thought for those who agree with us but
freedom for the thought that we hate…”
68. A girl child has the right to wear hijab in her house or outside
her house, and that right does
not stop at her school gate. The child
carries her dignity and her privacy even when she is inside the school
gates, in her classroom. She retains her fundamental rights. To say that
these rights become derivative rights inside a classroom, is wholly
incorrect.
69. We live in a Democracy and under the Rule of Law, and the
Laws which govern us must pass muster the Constitution of India.
Amongst many facets of our Constitution, one is Trust. Our Constitution
is also a document of Trust. It is the trust the minorities have reposed
upon the majority. Commenting on the report of the Advisory committee
on minorities, Sardar Vallabh Bhai Patel made a statement before the
Constitute Assembly on 24 May 1949, which should be referred here.
He said, “…. it is not our intention to commit the minorities to a
particular position in a hurry. If they really have to come honestly
to the conclusion that in the changed conditions of this country, it
35 279 US 644 (1929); Para 22
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is in the interest of all to lay down real and genuine foundations of
a secular State, then nothing is better for the minorities than to trust
the good- sense and sense of fairness of the majority, and to place
confidence in them. So also, it is for us who happened to be in a
majority to think about what the minorities feel, and how we in
their position would feel if we were treated in the manner in which
they are treated.36”
70. The question of diversity, raised by the Petitioners before the
Karnataka High Court, was not considered by the Court since it was
thought to be a ‘hollow rhetoric,’ and the submissions made by the lawyers
on ‘unity and diversity,’ were dismissed as an “oft quoted platitude.”
This is what was said, “Petitioners’ contention that a class room should
be a place for recognition and reflection of diversity of society, a
mirror image of the society (socially and ethically) in its deeper
analysis is only a hollow rhetoric, ‘unity in diversity’ being the oft
quoted platitude….37"
71. The question of diversity and our rich plural culture is, however,
important in the context of our present case. 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 must realise that in diversity is our strength.
72. 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. The Principles of the Policy state that ‘It aims
at producing engaged, productive, and contributing citizens for
building an equitable, inclusive, and pural society as envisaged by
our Constitution.’
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
36 25th May, 1949: Constituent Assembly Debates, Volume VIII
37 Para XIV(v) at Page 101 of Impugned Judgement
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73. In the case of Aruna Roy v. Union of India38 this Court had
elaborated on the Constitutional Values of religious tolerance and diversity
of culture and its need in our education system. It was observed as
follows by Justice Dharmadhikari in the concurring opinion authored by
him:
“25. …These need to be inculcated at appropriate stages in
education right from the primary years. Students have to be given
the awareness that the essence of every religion is common, only
the practices differ…”
At another place in their judgement the court has said as under:
“86. …The complete neutrality towards religion and apathy for
all kinds of religious teachings in institutions of the State have not
helped in removing mutual misunderstandings and intolerance inter
se between sections of the people of different religions, faiths and
belief. ‘Secularism’, therefore, is susceptible to a positive meaning
that is developing and understanding and respect towards different
religion.”
74. A Constitutional Bench of this Court in Navtej Singh Johar
and Ors. v. Union of India, Ministry of Law and Justice39 while
speaking on diversity, dissent, liberty and accommodation spoke the
following while delivering concurring opinions:-
“375. The Constitution brought about a transfer of political power.
But it reflects above all, a vision of a society governed by justice.
Individual liberty is its soul. The constitutional vision of justice
accommodates differences of culture, ideology and orientation.
The stability of its foundation lies in its effort to protect diversity
in all its facets; in the beliefs, ideas and ways of living of her
citizens. Democratic as it is, out Constitution does not demand
conformity. Nor does it contemplate the mainstreaming of culture.
It nurtures dissent as the safety valve for societal conflict. Our
ability to recognise others who are different is a sign of our own
evolution. We miss the symbols of a compassionate and humane
society only at our peril40.”
38 (2002) 7 SCC 368
39 (2018) 10 SCC 1
40 Para 375, Concurring Opinion by Dr. Justice D.Y. Chandrachud, (supra)
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75. In the case of St. Stephen’s College v. University of Delhi41
while delivering the majority opinion on behalf of the bench, Justice K
Jagannatha Shetty held as follows:
“81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a relatively
homogeneous society. It may lead to religious bigotry which is the
bane of mankind. In the nation building with secular character
sectarian schools or colleges segregated faculties or universities
for imparting general secular education are undesirable and they
may undermine secular democracy. They would be inconsistent
with the central concept of secularism and equality embedded in
the Constitution. Every educational institution irrespective of
community to which it belongs is a ‘melting pot’ in our national
life. The students and teachers are the critical ingredients. It is
there they develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there should be
proper mix of students of different communities in all educational
institutions42.”
76. It is the Fundamental Duty of every citizen, under Part IV A
of the Constitution of India to ‘value and preserve the rich heritage of
our composite culture.’43
77. Adverting to the Statutory Provisions applicable in this case,
namely, the Karnataka Education Act, 1983 which is the source of the
G.O. dated 05.02.2022 speaks inter-alia that the curriculum in schools
and
colleges must promote the rich and composite culture of our country.
Section 7 of the above Act prescribes that one of the curriculum in the
school can be “moral and ethical education” and the it further says
that the school should also “to promote harmony and the spirit of
common brotherhood amongst all the people of India transcending
religious, linguistic, and regional or sectional diversities to renounce
practices derogatory to the dignity of women”
78. The preamble to the Constitution secures to all its citizens
“LIBERTY of thought, expression, belief, faith and worship.” It is the
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
41 (1992) 1 SCC 558
42 Para 81 (supra)
43 Article 51A(f) of the Constitution of India
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Preamble again which seeks to promote among them all, “FRATERNITY
assuring the dignity of the individual and the unity and integrity of the
Nation.”
The Government Order dated 5 February, 2022, and the restrictions
on the wearing of hijab, also goes against our constitutional value of
fraternity and human dignity. Liberty, equality, fraternity, the triptych of
the French Revolution is also a part of our Preamble. It is true that
whereas liberty and equality are well established, properly understood,
and recognized concepts in politics and law, fraternity for some reasons
has largely remained incognito. The framers of our Constitution though
had a different vision. Fraternity had a different, and in many ways a
much larger meaning with the main architect of our Constitution, Dr
Ambedkar. In his own words: “my social philosophy may be said to
be enshrined in these words: liberty, equality and fraternity. Let no
one, however, say that I have borrowed my philosophy from the
French Revolution. I have not. My philosophy has roots in religion
and not in political science. I have derived them from my Master,
the Buddha44.” Dr Ambedkar gave the highest place to fraternity as it
was the only real safeguard against the denial of liberty or equality.
“These principles of liberty, equality and fraternity are not to be
treated as separate items in trinity. They form a union of trinity in
the sense that to diverse one from the other
is to defeat the very
purpose of democracy. Liberty cannot be divorced from equality;
equality cannot be divorced from liberty. Nor can liberty and equality
be divorced from fraternity. Without equality, liberty would produce
a supremacy of the few over the many. Equality without liberty would
kill individual initiative. Without fraternity liberty and equality could
not become a natural course of things.45”
79. 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
44 Ministry of Social Justice and Empowerment, Government of India, Dr. Babasaheb
Ambedkar: Writings and Speeches, 2020 (Vol XVII, Part III); Preface Accessed at
https://www.mea.gov.in/Images/CPV/Volume17_Part_III.pdf
45 Speech of Dr. Ambedkar on 25th November, 1949: Constituent Assembly Debates,
Volume XI
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tolerance; our philosophy preaches tolerance; our Constitution
practices tolerance; let us not dilute it.”
80. Under our Constitutional scheme, wearing a hijab should be
simply a matter of Choice. It may or may not be a matter of essential
religious practice, but it still is, a matter of conscience, belief, and
expression. If she wants to wear hijab, even inside her class room, she
cannot be stopped, if it is worn as a matter of her choice, as it may be
the only way her conservative family will permit her to go to school, and
in those cases, her hijab is her ticket to education.
81. The unfortunate fallout of the hijab restriction would be that
we would have denied education to a girl child. A girl child for whom it is
still not easy to reach her school gate. This case here, therefore, has
also to be seen in the perspective of the challenges already faced by a
girl child in reaching her school. The question this Court would put before
itself is also whether we are making the life of a girl child any better by
denying her education merely because she wears a hijab!
82. Our Constitution has visualised a just society and it is for this
reason that the first virtue that is secures for the citizens is ‘Justice’
which is the first of our Preambular promises. Rawls in his ‘A Theory of
Justice’ writes: “…Justice is the first virtue of social institutions, as
truth is of system of thoughts…” “…Therefore in a just society the
liberties of equal citizenship are
taken as settled, the rights secured
by justice are not subject to political bargaining or to the calculus
of social interest…” 46
83. By asking the girls to take off their hijab before they enter
the school gates, is first an invasion on their privacy, then it is an attack
on their dignity, and then ultimately it is a denial to them of secular
education. These are clearly violative of Article 19(1)(a), Article 21 and
Article 25(1) of the Constitution of India.
84. Consequently, I allow all the appeals as well as the Writ
Petitions, but only to the extent as ordered below:
a)
The order of the Karnataka High Court dated March 15,
2022, is hereby set aside;
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[SUDHANSHU DHULIA, J.]
46 Rawls, John (1921): A Theory of Social Justice, Rev. Ed.; The Belknap Press of the
Harvard University Press, Cambridge, Massachusetts

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b)
The G.O. dated February 5, 2022 is hereby quashed and,
c)
There shall be no restriction on the wearing of hijab
anywhere in schools and colleges in Karnataka.
ORDER*
In view of the divergent views expressed by the Bench, the matter
be placed before Hon’ble The Chief Justice of India for constitution of
an  appropriate Bench.
Devika Gujral
Matter placed before CJI.
(Assisted by : Shubhanshu Das, LCRA)
* Ed. Note: Order passed by the Court.