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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AISHAT SHIFA
v.
THE STATE OF KARNATAKA & ORS.
(Civil Appeal No. 7095 of 2022)
OCTOBER 13, 2022
[HEMANT GUPTA AND SUDHANSHU DHULIA, JJ.]
Constitution of India, 1950: Arts.14, 19 (1), 21 and 25 – Right
to wear Hijab in Educational Institution – Freedom of Religion –
Essential Religious Practice (ERP) – Right to Choice – On
03.02.2022, petitioners, students of Government Pre-University
College in Udupi were stopped at their college gate and told to
take off their Hijab before entering the college – As they refused to
take off Hijab, they were denied entry in college by the administration
– On 05.02.2022, Government Order (G.O.) was issued regarding
‘a dress code for student of all schools and colleges of the state’
under the Karnataka Education Act, 1983 – The order mandated
that the uniform prescribed by the College Development Committee
or the Board of Management should be worn – Since Hijab was not
made part of the ‘uniform’, the petitioners were denied entry in
their college – Petitioners challenged the G.O. before High Court –
High Court held that wearing of Hijab by Muslim women does not
form a part of ERP in Islamic faith and that prescription of School
uniform places only a reasonable restriction which is constitutionally
permissible and cannot be objected to by the students – Hence
instant appeal – Per Hemant Gupta, J.: The constitution of the College
Development Committee is not in conflict with any of the
provisions
of the Act, 1983 – The said G. O. does not run contrary to any of
the provisions of the Act and the rules framed there under – The
executive was well within its jurisdiction to ensure that the students
come in the uniform prescribed by the College Development
Committee – The object of the G.O. was to ensure that there is
parity amongst the students in terms of uniform – the purpose was
only to promote uniformity and encourage a secular environment
in the schools, which is in tune with the right guaranteed under
Art.14 – Art.25(2)(a) gives primacy to laws made by competent
legislature for regulation of secular aspects and Art.25(2)(b) gives
primacy to “social welfare” and “reform’’ – If a particular practice/
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belief/part of any religion is in existence and is found to be subjected
to either “social welfare” and “reform”, such right will have to
give way to “social welfare” and “reform” – The religious belief
cannot be carried to a secular school maintained out of State funds
– It is open to the students to carry their faith in a school which
permits them to wear Hijab or any other mark – The right under
Art.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 Art.19 – None of the fundamental rights is absolute, curtailment
of the right is permissible by following due procedure which can
withstand the test of reasonableness – Students have no right to be
in the school in violation of the mandate of the uniform prescribed
under the Statute and the Rules – If students choose not to attend
classes due to the uniform that has been prescribed, it is a voluntary
act of such students and cannot be said to be in violation of Art.29
by the State – G.O. cannot be said to be against the ethic of
secularism or to the objective of the Karnataka Education Act, 1983
– Per Sudhanshu Dhulia, J. (Dissenting): The question of ERP was not
at all relevant in the determination of the dispute before the Court –
Instead of straightaway taking the ERP route, the High 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 – The
entire exercise done by the High Court, in evaluating the rights of
the petitioners only on the touchstone of ERP, was incorrect – If the
belief is sincere, and it harms no one else, there can be no justifiable
reasons for banning Hijab in a classroom – Asking a pre university
schoolgirl to take off her Hijab at her school gate, is an invasion on
her privacy and dignity – G.O. and the restrictions on the wearing
of hijab, goes against our constitutional value of fraternity and
human dignity – Under our Constitutional scheme, wearing a Hijab
should be simply a matter of choice – It may or may not be a matter
of ERP, but it still is, a matter of conscience, belief, and expression
– Asking the girls to take off their Hijab before entering the school
gates is clearly violative of Arts.19(1)(a), 21 and 25(1) of the
Constitution – There shall be no restriction on the wearing of Hijab
anywhere in schools and colleges in Karnataka – Held: In view of
the divergent views expressed by the Bench, the matter to be placed
before the Chief Justice of India for constitution of an appropriate
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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Bench – Karnataka Education Act, 1983 – ss.133, 145 – Karnataka
Educational Institutions (Classification, Regulation and Prescription
of Curricula etc.) Rules, 1995 – rr.11, 16.
Placing the matter before Hon’ble the Chief Justice of India,
the Court
Per HEMANT GUPTA, J.
HELD: 1. “Law”, as contemplated under Articles 19(2) and
25(2), falls within Part III of the Constitution. Therefore, law, as
defined under Article 13(3), would include any ordinance, order,
bye-law, rule, regulation, notification, custom or usage in the
territory of India to have the force of law. The order issued by
the State Government would thus be a law within the meaning of
Article 13(2) read with Article 13(3)(a), which is a valid exercise
of power under Article 19(1)(a) read with Article 19(2), and Article
25(1) read with Article 25(2) of the Constitution. The Government
Order relates to the powers conferred on the executive under
Section 133 of the Act and rule-making power of the State under
Article 162 of the Constitution. The said Government Order does
not run contrary to any of the provisions of the Act and the rules
framed thereunder. Therefore, the executive was well within its
jurisdiction to ensure that the students come in the uniform
prescribed by the College Development Committee. The
constitution of the College Development Committee does not
contravenes any of the provisions of the Act or the Rules made
thereunder or that the
regulation of uniform by such Committee
is beyond its scope [Paras 46, 47 and 57][469-E-G; 473-A]
2. In the matters of campus discipline of the educational
institutions, the Court does not substitute its own views in place
of the school authority except in a case of manifest injustice or to
interfere with a decision which does not pass the test of
Wednesbury reasonableness. One need to examine the right to
freedom of conscience and religion in light of the restrictions
provided under Article 25(1) of the Constitution. Such right is
not just subject to public order, morality and health but also ‘other
provisions of Part III’. This would also include Article 14 which
provides for equality before law. The object of the Government
Order was to ensure that there is parity amongst the students in
terms of uniform. It was only to promote uniformity and encourage
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a secular environment in the schools. This is in tune with the
right guaranteed under Article 14 of the Constitution. Hence,
restrictions on freedom of religion and conscience have to be
read conjointly along with other provisions of Part III as laid down
under the restrictions of Article 25(1). [Paras 78, 88 and 89]
[481-B-C; 485-F; 486-C-D]
3. If the believers of the faith hold an opinion that wearing
of hijab is an essential religious practice, the question is whether
the students can seek to carry their religious beliefs and symbols
to a secular school. [Para 108][498-A-B]
4.1 The claim of the appellants is not to perform a religious
activity in a religious institution but to wear headscarf in public
place as a matter of social conduct expected from the believers
of the faith. But in the present, the students want to subjugate
their freedom of choice of dress to be regulated by religion than
by the State while they are in fact students of a state school. The
equality before law is to treat all citizens equally, irrespective of
caste, creed, sex or place of birth. Such equality cannot be
breached by the State on the basis of religious faith. The
Constitution has negatively worded Article 25(2). Article 25(2)(a)
gives primacy to laws made by competent legislature for regulation
of secular aspects and Article 25(2)(b) gives primacy to “social
welfare” and “reform”. In other words, if the State seeks to
regulate the economic, political, financial or other
secular aspects
connected with religion, the State law is to have primacy over the
proposed right. Similarly, if a particular practice/belief/part of any
religion is in existence and is found to be subjected to either
“social welfare” and “reform”, such right will have to give way to
“social welfare” and “reform”. [Paras 118 and 119][506-B-E]
4.2 The practice of wearing of hijab may be a ‘religious
practice’ or an ‘essential religious practice’ or it may be social
conduct for the women of Islamic faith. The interpretations by
the believers of the faith about wearing of headscarf is the belief
or faith of an individual. The religious belief cannot be carried to
a secular school maintained out of State funds. It is open to the
students to carry their faith in a school which permits them to
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wear Hijab or any other mark, may be tilak, which can be identified
to a person holding a particular religious belief but the State is
within its jurisdiction to direct that the apparent symbols of
religious beliefs cannot be carried to school maintained by the
State from the State funds. Thus, the practice of wearing hijab
could be restricted by the State in terms of the Government Order.
[Para 125][509-D-E]
5. 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. [Para 139][515-D-G]
6. 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
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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. [Para 146][519-E-F]
7. 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
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. 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. Accordingly, the Government Order does not impinge
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.
[Paras 159, 160 and 161][527-B-H]
8. 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. The State has not denied admission to the students from
attending classes. If they choose not to attend classes due to the
uniform 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
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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. [Paras 167 and 169][530-C;
530-H; 531-A-B]
9. 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 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. 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. [Paras 190,
194 and 197][538-A-B; 539-E-F; 541-C-D]
T.M.A. Pai Foundation v. State
of Karnataka, (2002) 8
SCC 481 : [2002] 3 Suppl. SCR 587; K.S. Puttaswamy
and Anr. v. Union of India & Ors. (2017) 10 SCC 1 :
[2017] 10 SCR 569; Ram Jawaya Kapur v. State of
Punjab, AIR 1955 SC 549; Sri Adi Visheshwara of
Kashi Vishwanath Temple, Varanasi v. State of U.P.
(1997) 4 SCC 606 : [1997] 2 SCR 1086; Dr. M. Ismail
Faruqui & Ors. v. Union of India & Ors. (1994) 6 SCC
360 : [1994] 5 Suppl. SCR 1; Javed & Ors. v. State of
Haryana & Ors. (2003) 8 SCC 369 : [2003] 1 Suppl.
SCR 947; Maneka Gandhi v. Union of India & Anr.
(1978) 1 SCC 248 : [1978] 2 SCR 621; Bachan Singh
v. State of Punjab (1980) 2 SCC 684; I.R. Coelho v.
State of Tamil Nadu (1999) 7 SCC 580 : [1999] 2 Suppl.
SCR 394; Re the Kerala Education Bill, 1957 -
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Reference under Article 143(1) of the Constitution of
India AIR 1958 SC 956 : [1959] SCR 995 – followed.
A.K. Gopalan v. State of Madras AIR 1950 SC 27 :
[1950] SCR 88; State of Travancore-Cochin & Ors. v.
Bombay Company Ltd., Alleppey AIR1952 SC 366 :
[1952] SCR 1112; Indra Sawhney & Ors. v. Union of
India & Ors. 1992 Supp (3) SCC 217 : [1992] 2 Suppl.
SCR 454; Bihar State Madarasa Education Board v.
Madarasa Hanfia Arabic College (1990) 1 SCC 428 :
[1989] 2 Suppl. SCR 399; Modern Dental College &
Research Centre v. State of Madhya Pradesh (2016) 7
SCC 353 : [2016] 3 SCR 579- relied on.
Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 :
[1986] 3 SCR 518 – held inapplicable.
A.S. Narayana Deekshitulu v. State of A.P. & Ors. (1996)
9 SCC 548 : [1996] 3 SCR 543; Kesavananda Bharati
v. State of Kerala & Anr. (1973) 4 SCC 225 : [1973]
Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj
Narain 1975 (Supp.) SCC 1 : [1976] 2 SCR 347;
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass
Mehra & Ors. (1976) 2 SCC 17 : [1975] Suppl.
SCR 281; S.R. Bommai & Ors. v. Union of India & Ors.
(1994) 3 SCC 1 : [1994] 2 SCR 644; Santosh Kumar
& Ors. v. Secretary, Ministry of Human Resources
Development & Anr. (1994) 6 SCC 579 : [1994] 4 Suppl.
SCR 139; Ms. Aruna Roy & Ors. v. Union of India &
Ors. (2002) 7 SCC 368 : [2002] 2 Suppl. SCR
266; Kantaru Rajeevaru (Sabarimala Temple Review-
5J.) v. Indian Young Lawyers Association & Ors. (2020)
2 SCC 1 : [2019] 17 SCR 599; State of
Madhya Pradesh
& Anr. v. Thakur Bharat Singh AIR 1967 SC 1170 :
[1967] 2 SCR 454; State of West Bengal v. Anwar Ali
Sarkar AIR 1952 SC 75 : [1952] SCR 284; Bishambhar
Dayal Chandra Mohan & Ors. v. State of Uttar Pradesh
& Ors. (1982) 1 SCC 39 : [1982] 1 SCR 1137;
Pharmacy Council of India v. Rajeev College of
Pharmacy & Ors. 2022 SCC OnLine SC 1224; Shri
Dwarka Nath Tewari v. State of Bihar AIR 1959 SC
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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249; Sant Ram Sharma v. State of Rajasthan & Ors.
AIR 1967 SC 1910 : [1968] 1 SCR 111; Union of India
& Anr. v. Ashok Kumar Aggarwal (2013) 16 SCC 147 :
[2013] 12 SCR 629; Shayara Bano v. Union of India
& Ors. (2017) 9 SCC 1 : [2017] 9 SCR 797;
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
AIR 1954 SC 282 : [1954] SCR 1005; National Legal
Services Authority v. Union of India & Ors. (2014) 5
SCC 438 : [2014] 5 SCR 119; K.S. Puttaswamy.
Chairman, J & K State Board of Education v. Feyaz
Ahmed Malik (2000) 3 SCC 59 : [2000] 1 SCR 402;
Ahmedabad St. Xavier’s College Society & Anr. v. State
of Gujarat & Anr. (1974) 1 SCC 717 : [1975] 1 SCR
173; S.P. Mittal v. Union of India (1983) 1 SCC 51 :
[1983] 1 SCR 729; Commissioner of Police & Ors. v.
Acharya Jagadishwarananda Avadhuta & Anr. (2004)
12 SCC 770; Mohd. Ahmed Khan v. Shah Bano Begum
& Ors. (1985) 2 SCC 556 : [1985] 3 SCR 844; Danial
Latifi & Anr. v. Union of India (2001) 7 SCC 740 :
[2001] 3 Suppl. SCR 419; Iqbal Bano v. State of U.P.
& Anr. (2007) 6 SCC 785 : [2007] 7 SCR 949; Shayara
Bano v. Union of India & Ors. (2017) 9 SCC 1 : [2017]
9 SCR 797; Mohd. Hanif Quareshi and others v. State
of Bihar AIR 1958 SC 731 : [1959] SCR 629; N.K.
Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb &
Ors., AIR 1966 SC 792 : [1966] 1 SCR 937; Ratilal
Panachand Gandhi v. State of Bombay AIR 1954 SC
388 : [1954] SCR 1055; Durgah
Committee, Ajmer v.
Syed Hussain Ali AIR 1961 SC 1402 : [1962] 1 SCR
383; Sri Venkataramana Devaru & Ors. v. State of
Mysore & Ors. AIR 1958 SC 255 : [1958] SCR 895;
Tilkayat Shri Govindlalji Maharaj Etc. v. State of
Rajasthan & Ors. AIR 1963 SC 1638 : [1964] 1 SCR
561; Acharya Jagdishwaranand Avadhuta & Ors. v.
Commissioner of Police, Calcutta & Anr. (1983) 4 SCC
522 : [1984] 1 SCR 447; Young Lawyers Association
& Ors. (Sabarimala Temple, In Re) v. State of Kerala &
Ors. (2019) 11 SCC 1 : [2018] 9 SCR 561; M. Siddiq
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(Dead) through LRs. (Ram Janmabhumi Temple Case)
v. Mahant Suresh Das & Ors. (2020) 1 SCC 1 : [2019]
18 SCR 1; Asha Ranjan v. State of Bihar & Ors. (2017)
4 SCC 397 : [2017] 1 SCR 945; Mohinder Singh Gill
& Anr. v. Chief Election Commissioner, New Delhi &
Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272; Devidas
Ramachandra Tuljapurkar v. State of Maharashtra &
Ors. (2015) 6 SCC 1 : [2015] 7 SCR 853; St. Stephen’s
College v. University of Delhi (1992) 1 SCC 558 : [1991]
3 Suppl. SCR 121; Navtej Singh Johar & Ors. v. Union
of India (2018) 10 SCC 1 : [2018] 7 SCR 379; S.
Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC
547; Subramanian Swamy v. Union of India, Ministry
of Law & Ors. (2016) 7 SCC 221 : [2016] 3 SCR 865;
Prathvi Raj Chauhan v. Union of India & Ors. (2020)
4 SCC 727 : [2020] 2 SCR 727; Tehseen S. Poonawalla
v. Union of India & Ors. (2018) 9 SCC 501 : [2018]
9 SCR 291; St. Stephen’s College, Sri Adi Visheshwara
of Kashi Vishwanath Temple, State of Karnataka & Anr.
v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 :
[2004] 3 SCR 652; No. 786505-N Leading Aircraftsman
Ansari Aaftab Ahmed v. Union of India & Ors. 2008
L.I.C. 4004 (CWP No. 14927 of 2005 decided on
14.7.2008); Mohammed Zubair Corporal No. 781467-
G v. Union of India & Ors. (2017) 2 SCC 115 : [2016]
9 SCR 111; Nar Singh Pal v. Union of India & Ors.
(2000) 3 SCC 588 : [2000] 2 SCR 752; Jeeja Ghosh
& Anr. v. Union of India & Ors. (2016) 7 SCC 761 :
[2016] 4 SCR 638; Vikash Kumar v. Union Public
Service Commission & Ors. (2021) 5 SCC 370;
Ravinder Kumar Dhariwal & Anr. v. Union of India &
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Thakur Bharat Singh v. State of M.P. & Anr. AIR 1964
MP 175; Amnah Bint Basheer & Anr. v. Central Board
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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of Secondary Education (CBSE), New Delhi & Anr. AIR
2016 Ker 115; Gurleen Kaur & Ors. v. State of Punjab
& Ors. 2009 SCC OnLine P& H 6132; Fathima
Thasneem (Minor) & Anr. v. The State of Kerala & Ors.
2018 SCC OnLine Ker 5267; M. Ajmal Khan v. The
Election Commission of India, rep. by its Chief Election
Commissioner, New Delhi-I & Ors. 2006 SCC OnLine
Mad 794 : (2006) 5 CTC 121 – referred to.
Mulla’s Mohammedan Law, 5th edition, 2019
– referred to.
Per SUDHANSHU DHULIA, J. (Dissenting)
HELD: 1. The instant case is of assertion of individual Right
as different from what would be a community Right. 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. The entire exercise done by the
Karnataka High Court, in evaluating the rights of the Petitioners
only on the touchstone of ERP, was incorrect. [Para 28][553-E-
F]
2. Two children, two girl students, are 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. The petitioners today face the same predicament as
the Jehovah’s Witnesses in the Bijoe Emmanuel. 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. This
case is squarely covered by the case of Bijoe Emmanuel and the
ratio laid down therein [Paras 34 and 49][554-G-H; 560-H; 561-
A]
Bijoe Emmanuel and Ors. v. State of Kerala and Ors.
1986 3 SCC 615 : [1986] 3 SCR 518 – relied on.
3. 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
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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 dignity and her privacy 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. [Para 52]
[562-C-E]
4. 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! 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 . 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 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.
[Paras 65-67][571-D-E; 572-A-C]
5. 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. 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,
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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.
[Paras 68 and 80][572-E-F; 577-B]
6. 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.
Consequently, all the appeals as well as the Writ Petitions are
allowed, but only to the extent as ordered b: a) The order of the
Karnataka High Court dated March 15, 2022, is hereby set aside;
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. [Paras 83 and 84][577-F-G;
578-A]
K.S. Puttaswamy and Anr. v Union of India and Ors.
(2017) 10 SCC 1 : [2017] 10 SCR 569; Maneka
Gandhi v Union of India and Anr. (1978) 1 SCC
248; [1978] 2 SCR 621; Aruna Roy v. Union of India
(2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266; Navtej
Singh Johar and Ors. v. Union of India, Ministry of
Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379
- followed.
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
[1954] SCR 1005
23; Ratilal Panachand Gandhi v. State
of Bombay and Ors. [1954] SCR 1055; Durgah
Committee, Ajmer, and Anr. v. Syed Hussain Ali and Ors.
[1962] 1 SCR 383; Acharya J. Avadhuta & Ors. v.
Commissioner of Police, Calcutta & Anr. (1983) 4 SCC
522 : [1984] 1 SCR 447; Commissioner of Police &
Ors. v. Acharya J. Avadduta (2004) 12 SCC 770 :
[2004] 2 SCR 1019; Bachan Singh v. State of Punjab
(1980) 2 SCC 684 - held inapplicable.
Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR
332; Kantaru Rajeevaru vs Indian Young Lawyers Assn.
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B
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D
E
F
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H
439
and Ors. [R.P. (C) No. 3358 of 2018 in W.P. (C) No.
373 of 2006]; Shayara Bano v. Union of India and Ors.
(2017) 9 SCC 1 : [2017] 9 SCR 797; Indian Young
Lawyers Association and Ors, (Sabarimala Temple, In
Re.) v. State of Kerala and Ors. (2019) 11 SCC 1 :
[2018] 9 SCR 561; M. Siddiq (Dead) Through LR’s v.
Mahant Suresh Das and Ors. (2020) 1 SCC 1 : [2019]
18 SCR 1; St. Stephen’s College v. University of Delhi
(1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121 – referred
to.
Ras Behari Lal and Others v. The King-Emperor AIR
1933 PC 208- referred to.
West Virginia State Board of Education v. Barnette 319
US 624 (1943); Regina (SB) v. Governors of Denbigh
High School [2007] 1 AC 100; Miller v. Gills 315 F.
Supp. 94 (N.D. Ill. 1969); Christmas v. El Reno Board
of Education 313 F. Supp. 618 (W.D. Okla. 1970);
Employment Division v. Smith 494 US 872 (1990); United
States v. Schwimmer 279 US 644 (1929) – referred to.
Speech of Dr. Ambedkar on 25th November, 1949:
Constituent Assembly Debates, Volume XI; Rawls,
John (1921): A Theory of Social Justice, Rev. Ed.;
The Belknap Press of the Harvard University Press,
Cambridge, Massachusetts – referred to.
Case Law Reference
In the judgment of HEMANT GUPTA, J.
[2002] 3 Suppl. SCR 587
followed
Para 3
[1996] 3 SCR 543 
referred to
Para 5
[1973] Suppl. SCR 1
referred to
Para 6
[1976] 2 SCR 347
referred to
Para 7
[1975] Suppl. SCR 281
referred to
Para 8
[1994] 2 SCR 644
referred to
Para 9
[1994] 4 Suppl. SCR 139
referred to
Para
10
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[2002] 2 Suppl. SCR 266
referred to
Para 11
[2019] 17 SCR 599
referred to
Para 24
[2017] 10 SCR 569
followed
Para 27
[1967] 2 SCR 454
referred to
Para 32
[1952] SCR 284
referred to
Para 32
[1982] 1 SCR 1137
referred to
Para 32
AIR 1955 SC 549
followed
Para 35
AIR 1959 SC 249
referred to
Para 45
[1968] 1 SCR 111
referred to
Para 50
[2013] 12 SCR 629
referred to
Para50
[1950] SCR 88
relied on
Para 66
[1952] SCR 1112
relied on
Para 67
[1992] 2 Suppl. SCR 454
relied on
Para 70
[2017] 9 SCR 797
referred to
Para 70
[1954] SCR 1005
referred to
Para 70
[2014] 5 SCR 119
referred to
Para 71
[2000] 1 SCR 402 
referred to
Para 78
[1975] 1 SCR 173
referred to
Para 79
[1989] 2 Suppl. SCR 399
relied on
Para 80
[2016] 3 SCR 579
relied on
Para 81
[1983] 1 SCR 729
referred to
Para 84
[1997] 2 SCR 1086
followed
Para 86
(2004) 12 SCC 770
referred to
Para 91
[1985] 3 SCR 844
referred to
Para 99
[2001] 3 Suppl. SCR 419
referred to
Para 99
[2007] 7 SCR 949
referred to
Para 99
[2017] 9 SCR 797
referred to
Para 99
[1959] SCR 629
referred to
Para 102
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E
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[1994] 5 Suppl. SCR 1
followed
Para 104
[2003] 1 Suppl. SCR 947
followed
Para 105
[1954] SCR 1055
referred to
Para 110
[1962] 1 SCR 383
referred to
Para 111
[1958] SCR 895
referred to
Para 112
[1964] 1 SCR 561
referred to
Para 113
[1984] 1 SCR 447
referred to
Para 114
[2018] 9 SCR 561
referred to
Para 115
[1986] 3 SCR 518
held inapplicable
Para 116
[2019] 18 SCR 1
referred to
Para 124
[2017] 1 SCR 945
referred to
Para 129
[1978] 2 SCR 272
referred to
Para 130
[1978] 2 SCR 621
followed
Para 131
[2015] 7 SCR 853
referred to
Para 133
[1991] 3 Suppl. SCR 121
referred to
Para 134
[2018] 7 SCR 379
referred to
Para 133
(1980) 2 SCC 684
followed
Para 140
(1989) 2 SCC 547
referred to
Para 142
[1999] 2 Suppl. SCR 394
followed
Para 144
[2016] 3 SCR 865
referred to
Para 149
[2020] 2 SCR 727
referred to
Para 150
[2018] 9 SCR 291
referred to
Para 151
[2004] 3 SCR 652
referred to
Para 152
[2016] 9 SCR 111
referred to
Para 163
[1959] SCR 995
followed
Para 170
[2000] 2 SCR 752
referred to
Para 171
[2016] 4 SCR 638
referred to
Para 177
(2021) 5 SCC 370
referred to
Para 177
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[2012] 2 SCR 715
referred to
Para 191
[2019] 5 SCR 679
referred to
Para 194
In the judgment of SUDHANSHU DHULIA, J.
[1964] 1 SCR 332
referred to
Para 14
[1986] 3 SCR 518
relied on
Para 19
[1954] SCR 1005
held inapplicable
Para 23
[1954] SCR 1055
held inapplicable
Para 25
[1962] 1 SCR 383
held inapplicable
Para 26
[1984] 1 SCR 447
held inapplicable
Para 27
[2004] 2 SCR 1019
held inapplicable
Para 27
[2019] 18 SCR 1 
held inapplicable
Para 37
[2017] 10 SCR 569
followed
Para 52
[1978] 2 SCR 621
followed
Para 52
(1980) 2 SCC 684
held inapplicable
Para 54
[2002] 2 Suppl. SCR 266
followed
Para 73
[2018] 7 SCR 379
followed
Para 74
[1991] 3 Suppl. SCR 121 
referred to
Para 75
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal
No. 7095 of 2022.
From the Judgment and Order dated 15.03.2022 of the High Court
of Karnataka at Bengaluru in W.P. No.2880 of 2022.
With
Writ Petition (C) No. 120 of 2022, Civil Appeal Nos.7075, 6957,
7078-7083, 7077, 7074, 7076, 7072, 6934, 7084, 7085, 7092, 7088 of 2022,
writ petition (c) no. 95 of 2022, Civil Appeal Nos. 7087, 7090, 7096,
7091, 7089, 7086, 7069, 7098, 7093, 7099, 7070 of 2022
Tushar Mehta, Solicitor General, K.M. Natraj, ASG, Nikhil Goel,
Prasanna Deshpande, Aruna Shyam, YH Vijay Kumar, AAGs, Prabhuling
Navadgi, Adv. General, Gaurav Bhatia, Siddharta Dave, Sanjay R. Hegde,
Salman Khurshid, Ms. Jayna Kothari, Dushyant Dave, Devadatt Kamat,
Guru Krishna Kumar, Pran Krishna Jana, Yusuf
Hatim Muchhala, R
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Venkatramani, Sanjay Hegde, Huzefa Ahmadi, Dr. Aditya Sondhi, Kapil
Sibal, A. M. Dar, Ms. V. Mohana, Ms. Meenakshi Arora, Colin Gonsalves,
Dama Seshadri Naidu, Sr. Advs., Shubhranshu Padhi, Kanu Agarwal,
Aneesh Shahade, Vishal Banshal, Ms. Rajeshwari Shankar, Niroop
Sukirthy, Mohd. Ovais, Sushal Tiwari, Adithya Koshi Roy, Chitransh
Sharma, Nakul Chengappa KK, Aditya Vaibhav Singh, Abhikalp Pratap
Singh, Kartik Kaushal, Shailesh Madiyal, Vinayaka S. Pandit, Sudhanshu
Prakash, H. Vinayaka S. Pandit, Rajan Parmar, Vaibhav Sabharwal,
Ms. Vidhi T., Mehmood Umar Faruqui, Ms. Koshy John, Ms. Asifa
Rashid Mir, Shereef K.A., Mohd. Tahir, Muhammed Azaruddin, Anas
Tanwir, Ms. Masoom Raj Singh, Ms. Ritika Singh, Abdul Qadir, Raghav
Gupta, Shahrukh Ali, Farhan, Aftab Ali Khan, M. Z. Chaudhary, Ali Safeer
Farooqi, Syed Imtiaz Ali, Shahbaz, Mujeeb Rehman, Mumtaz Alam
Siddiqui, Ms. Tehsheena Z. Hussain, Ms. Lubna Naaz, Dr. Lokendra
Malik, Rahat Ali Chaudhary, Nitin Kashyap, Ramesh Sachdeva, Ms.
Mariya Mansuri, Ms. Azra Rehman, Anshu Kapoor, Arvind Kumar
Kanva, Bilal A. Khan, Ms. Mitali Chauhan, Danish Zubair Khan, Mareesh
Pravir Sahay, Chandra Sekhar Padhi, Roopesh Singh Bhadauria, Arpit
Singh, Umesh Pratap Singh, Gaurav Jain, Ms. Eccha Shukla, Ms.
Awanitika, Sachin Kharb, Shahab Ahmad, Ms. Tanya Sharma, M. P.
Sahay, Ms. Saba Khan, Ms. Vidhi Thaker, Ms. Farheen Fatima, Aftab
Ali Khan, Mumtaz Alam Siddiqui, Dr. Anindita Pujari, Azad Bansaria,
Prannv Dhavan, Ms. Saaneya
Hidayath, Ms. Prakriti Rastogi, M. R.
Shamshad, Arijit Sarkar, Shashank Singh, Ms. Nabeela Jamil, Ms. Niaz
A. Faruqui, Ms. Neha Sangwan, Ms. Ashi Shereen Ahmad, Shadul
Hameed Reheman, Nishanth Patil, Rajesh Inamdar, Harsh Pandey,
Sabyasachi Banerjee, Shoumendu Mukherji, Praneet Pranav, Merusagar
Samantray, Ms. Archana Pathak Dave, Bhakti Vardhan Singh, Amit
Sharma, Arindam, Ms. Megha Sharma, Shoeb Alam, Ms. Fauzia Shakil,
Ujjwal Singh, Agastya Sen, Javedur Rahman, Nizam Pasha, Shahul
Hameed, Yojit Singh, Mohd. Niyas S., Harsh Pandey, Revanta Solanki,
Nishant Patil, Mudassir, Aditya Samaddar, Mohd. Niyas, Shoeb Khan,
Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Thulasi K. Raj, Ms. Anu
K. Joy, Alim Anvar, Pran Krisana Jana, Ms. Nazish Fatima, Arvind
Gupta, Md. Tahir M. Hakim, Ejaz Maqbool, Sagheer A. Khan, Ms.
Rashda S. Ainapore, Mohamed Nawaz Haindaday, Ms. Akriti Chaubey,
Saif Zia, Nachiketa Joshi, VVV Pattabhiram, Santosh Kumar, Ms. Ankita
Choudhary, Rahul Tanwani, Chitwan Singhal, Sushal Tiwari, Baij Nath
Patel, Rahamathulla Kothwal, Ms. Siddika Aisha, Kumail Abbas, Mohd
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Shahrukh Ali, Raghav Gupta, Pallabh, Nikhil, Adeel Ahmed, Sachin
Pahwa, Zulfiker Ali P. S, Thoyyib Hudawai, Ms. Lakshmi Sree, Talha
Abdul Rahman, Harsh Vardhan Kediya, Mohd. Shaz Khan, Ms. Disha
Wadekar, Bilal A. Khan, Mohd. Afeef, Rishabh Devan Parikh, Ms. Rupali
Samuel, Ms. Aparajita Jamwal, Koshy John, Dileep Poolakkot,
Muhammed Siddick, Aljo K. Josesh, Haris Beeran, Mushtaq Salim, Azhar
Assees, Usman Ghani Khan, Ms. Pallavi Pratap, Ameen Hassan K.,
Danissh M. Dar, B. Shafi, Dr. Charu Mathur, Ms. Tanvi Dubey, Rahul
Unnikrishnan, Anukrit Gupta, Sanjay Kumar Dubey, Mahesh Thakur,
Siddharth Thakur, Ms. Vipasha Singh, Ajay Kanojiya, Ms. Shivani, Ms.
Neha Singh, Ms. Shailja Das, Md. Irshad Hanif, Javed R. Shaikh, Aarif
Ali, Rizwan Ahmad, Mohd. Aslam, Mujahid Ahmad, Ms. Rubina Jawed,
Tausif Ahmed Dar, Ahmed Parvez, Amar Kumar Raizada, Pankaj Tiwari,
Mohd. Faseeh Khan, Amir Kaleem, Mohit Kumar, Shishir Raj, Mohd.
Wasiq Khan, Sahid Uddin Ahmed, Pulkit Srivastava, Subodh Patil, Aayush
Anand, Pravartak Pathak, Gautam Singh, Ms. Kriti Ranjan, Bharat Singh,
Joyadeep Roy, Pulkit Srivastava, Subodh Patil, Aayush Anand, Gautam
Singh, Ms. Kriti Ranjal, Pravar Pathak, Barun Kumar Sinha, Mrs. Pratibha
Sinha, Mudit Kaul, Ms. Bebi Devi Boniya, Ms. Sudha Pal, Abhishek,
Siddharth Sinha, Ayush Anand, Abhishek Singh, Prashant Rawat, Tathagat
Sharma, Ved Prakash, Ms. Priya Mishra, Shivam Singhania, Ms. Fauzia
Shakil, Ms. Shivam, Archit
Krishna, Shivam, Ms. Sonal Chopra, Rishab
Ahmad Chowdhury, Ms. Muskan Nagpal, Ms. Kirti Singh, Archit Sharma,
Aditya Chatterjee, Ms. Sonal Chopra, Raghu Vamsy Dasika, Anis Gupta,
Rashmi Singhania, Puspinder Singh, Karthik Sundar, Charudatta
Mahindrakar, Mandeep Singh, Vikram Hegde, Abhinav Hansaraman,
Chitwan Sharma, Nakul Mohta, Ms. Misha Rohatgi Mohta, Bharat
Monga, Ms. Richa, Prakash Shetty, Shadan Farasat, Chandratanay
Chaube, Bharat Gupta, Tushar Arora, Shourya Dasgupta, Aman Naqvi,
Ms. Hrishika Jain, Dhruv Bhatnagar, Nitesh, Ms. Mugdha, Satya Mitra,
Ankur Mittal, Jai Anant Dehadrai, Neeleshwar Pavani, Sidharth Arora,
Ms. Tejaswini Verma, Jaskaran Singh Chawla, Udito Koushik Sarmah,
Smaeer Srivastava, Prashant Bhushan, Ms. Rashmi Singh, Cheryl D’
Sooja, Jaimon Andrews, Ms. Piyo Harold Jaimon, Firdouse C. P., Sandeep
Thakur, Naresh Kumar, Abdulla Naseeh V.T., Aswathi M.K., Ms. Sneha
S. Deshmukh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Susmita
Kale, Ms. Deepti S. Rane, Ms. Kavya Lokande, Ms. Sanyali S. Pawar,
Amit K. Singh, Rahul G. Tanwani, Ms. Shivali Chaudhary, Siddharth S.
Chapalgaonkar, Hitesh Singh, Poornachandian, Ananvay Anandvardhan,
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Ms. Sivani Kukumanu, Gursimar Singh, Siddhartha Sinha, Sandeep Singh,
Ms. Bharti Tyagi, Ms. Alapana Sharma, Abhishek Mahajan, Nrig
Chamwibo Zeliang, Mehmood Umar Faruqui, Ms. Anindita Pujari, Ms.
Mugdha, Satya Mitra, Aljo K. Joseph, M. R. Shamshad, Naresh Kumar,
Shadan Farasat, Tanveer Ahmed Mir, Arjun Singh Bhati, Kartik Venu,
Mohd. Tahir, Ms. Urja Pandey, Ms. Pallavi Pratap, Adeel Ahmed, Aftab
Ali Khan, Anas Tanwir, Prateek Yadav, Ranbir Singh Yadav, Mohd.
Shahruk, Puran Mal Saini, Ms. Anzu K. Varkey, Pati Raj Yadav, Ritesh
Patil, Yogesh Yadav, Mareesh Pravir Sahay, Ms. Aswathi M.K., Javedur
Rahman, Abhishek, Aman Varma, Shubhranshu Padhi, Charudatta
Vijayrao Mahindrakar, Ms. Misha Rohatgi, Ms. Mrinmoi Chatterjee, K.
V. Muthu Kumar, Bhaskar Gowtham, Sayooj Mohandas, Akshay Ravi,
Govind Kumar, Shubhendu Anand, Aftab Ali Khan, Anas Tanwir, Ms.
Asifa Rashid Mir, Abdul Shukoor Mundambra, Shereef K.A., Anas
Tanwir, Rishad Ahmed Chowdhury, Ms. Anindita Pujari, Zulfiker Ali P.
S, Satya Mitra, Naresh Kumar, Mohd. Irshad Hanif, Abhay Anand Jena,
K. V. Muthu Kumar, Shoumendu Mukherji, Pulkit Srivastava, Mahesh
Thakur, Sameer Shrivastava, Ms. Charu Mathur, Advs. for the appearing
parties.
The Judgments and Order of the Court were delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by
the Full Bench of the Karnataka High Court on 15.3.2022, dismissing
the challenge to the Government Order dated 5.2.2022. Such Government
Order
directed the Government Schools in Karnataka to abide by the
prescribed uniform, and the private schools were directed to mandate a
uniform as decided by their Board of Management.
PREFACE
2. Before adverting to the submissions made by the counsels on
both sides, it is imperative to give a background of the ethos and principles
of secularism adopted in the Constitution of India. Though the term
‘secular’ has a wide amplitude and has been understood differently in
different parts of the world, it is important to comprehend the same in
context of the Indian Constitution.
3. The word “secular” is now part of the Preamble of the
Constitution. What is meant by “Secular” (iaFkfujis{k in the Hindi version
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of the Constitution) needs to be discussed first. The word ‘Secular’ was
inserted in the Preamble of the Constitution by the 42nd Amendment
w.e.f. 3.1.1977. It is commonly understood in contradistinction to the
term ‘religious’. The political philosophy of a secular government has
been developed in the West in the historical context of the pre-eminence
of the established Church and the exercise of power by it over the society
and its institutions. The democratic State thereafter gradually replaced
and marginalized the influence of the Church. The idea of secularism
may have been borrowed in the Indian Constitution from the West;
however, it has adopted its own unique brand based on its particular
history and exigencies which are far distinct in many ways from secularism
as defined and followed in European countries, the United States of
America and Australia.1
4. The use of word ‘panthnirpeksh’ in the Constitution brings
out the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”.
‘Panth’, or sect, symbolizes devotion towards any specific belief, way
of worship or form of God, but Dharma symbolizes absolute and eternal
values which can never change, like the laws of nature. Dharma is what
upholds, sustains and results in the well-being and upliftment of the Praja
(citizens) and the society as a whole.
5. This Court in a judgment reported as A.S. Narayana
Deekshitulu v. State of A.P. & Ors.2 quoted the concept
of Dharma
explained by Justice M. Rama Jois in his Legal and Constitutional
History of India as “it is most difficult to define Dharma. Dharma
has been explained to be that which helps the upliftment of living
beings. Therefore, that which ensures welfare (of living beings) is
surely Dharma. The learned rishis have declared that which sustains
is Dharma”. This Court held that“when dharma is used in the context
of duties of the individuals and powers of the King (the State), it
means constitutional law (Rajadharma). Likewise, when it is said
that Dharmarajya is necessary for the peace and prosperity of the
people and for establishing an egalitarian society, the word dharma
in the context of the word Rajya only means law, and Dharmarajya
means rule of law and not rule of religion or a theocratic State”.
Any action, big or small, that is free from selfishness, is part of dharma.
Thus, having love for all human beings is dharma. This Court held as
under:
1 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (11 Judges Bench)
2 (1996) 9 SCC 548
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“156. It is because of the above that if one were to ask “What are
the signs and symptoms of dharma?”, the answer is: that which
has no room for narrow- mindedness, sectarianism, blind faith,
and dogma. The purity of dharma, therefore, cannot be
compromised with sectarianism. A sectarian religion is open to a
limited group of people whereas dharma embraces all and excludes
none. This is the core of our dharma, our psyche.
157. Nothing further is required to bring home the distinction
between religion and dharma; and so I say that the word ‘religion’
in Articles 25 and 26 has to be understood not in a narrow sectarian
sense but encompassing our ethos of “losZ HkoUrq lqf[ku%”. Let us
strive to achieve this; let us spread the message of our dharma by
availing and taking advantage of the freedom guaranteed by
Articles 25 and 26 of our Constitution.”
6. This Court in Kesavananda Bharati v. State of Kerala &
Anr.3, even prior to the addition of the word ‘Secular’ by the 42nd
Amendment, held that the fundamental features of the Constitution,
namely, secularism, democracy and the freedom of individual would
always subsist in the welfare State. Hon’ble Justice H.R. Khanna in his
judgment referred to the statement of K. Santhanam, a prominent member
of the Constituent Assembly and Editor of a newspaper. It was observed
as under:
“1481. …K. Santhanam, a prominent southern member of the
Assembly and editor of a major newspaper, described the situation
in terms of
three revolutions. The political revolution would end,
he wrote, with independence. The social revolution meant ‘to
get (India) out of the medievalism based on birth, religion,
custom, and community and reconstruct her social structure
on modern foundations of law, individual merit, and secular
education’. The third revolution was an economic one: ‘The
transition from primitive rural economy to scientific and planned
agriculture and industry’. Radhakrishnan (now President of India)
believed India must have a ‘socio-economic revolution’ designed
not only to bring about ‘the real satisfaction of the fundamental
needs of the common man’, but to go much deeper and bring
about ‘a fundamental change in the structure of Indian society’…”
(Emphasis Supplied)
3 (1973) 4 SCC 225
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[HEMANT GUPTA, J.]
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7. The secular character of the State was reiterated in a later
Constitution Bench judgment reported as Smt. Indira Nehru Gandhi
v. Shri Raj Narain4 wherein it was held as under:
“252. It has been stated by me on p. 685 (SCC p. 767) of the
judgment (already reproduced above) that the secular character
of the State, according to which the State shall not discriminate
against any citizen on the ground of religion only cannot likewise
be done away with. The above observations show that the secular
character of the Constitution and the rights guaranteed by Article
15 pertain to the basic structure of the Constitution…”
8. The word ‘Secular’ after being added in the Preamble was
also considered by a three-Judge Bench judgment of this Court reported
as Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
& Ors.5. This Court was considering an appeal against the setting aside
of election of the appellant under the Representation of the People Act,
1951 to the Maharashtra State Assembly on the ground of speeches
made by him in the course of election campaign. It was held that “the
Secular State, rising above all differences of religion, attempts to
secure the good of all its citizens irrespective of their religious beliefs
and practices…”
9. The term ‘Secular’ was also considered by a nine-Judges Bench
of this Court reported as S.R. Bommai & Ors. v. Union of India &
Ors.6. It was held that our Constitution does not
prohibit the practice of
any religion either privately or publicly. The relevant extract of the
judgment reads thus:
“146. These provisions by implication prohibit the establishment
of a theocratic State and prevent the State either identifying itself
with or favouring any particular religion or religious sect or
denomination. The State is enjoined to accord equal treatment to
all religions and religious sects and denominations.
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148. One thing which prominently emerges from the above
discussion on secularism under our Constitution is that whatever
4 1975 (Supp.) SCC 1
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the attitude of the State towards the religions, religious sects and
denominations, religion cannot be mixed with any secular activity
of the State. In fact, the encroachment of religion into secular
activities is strictly prohibited…
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304. Both the expressions — ‘socialist’ and ‘secular’ — by
themselves are not capable of precise definition. We are, however,
not concerned with their general meaning or content. Our object
is to ascertain the meaning of the expression “secular” in the
context of our Constitution. As the discussion hereafter would
demonstrate, the 42nd Amendment merely made explicit what
was implicit in it…..................... While the citizens of this country
are free to profess, practice and propagate such religion, faith or
belief as they choose, so far as the State is concerned, i.e., from
the point of view of the State, the religion, faith or belief of a
person is immaterial. To it, all are equal and all are entitled to be
treated equally. How is this equal treatment possible, if the State
were to prefer or promote a particular religion, race or caste,
which necessarily means a less favourable treatment of all other
religions, races and castes. How are the constitutional promises
of social justice, liberty of belief, faith or worship and equality of
status and of opportunity to be attained unless the State eschews
the religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights,
his duties and his
entitlements? Secularism is thus more than a passive attitude
of religious tolerance. It is a positive concept of equal
treatment of all religions. This attitude is described by some as
one of neutrality towards religion or as one of benevolent
neutrality.…”
10. In the same year, in a judgment reported as Santosh Kumar
& Ors. v. Secretary, Ministry of Human Resources Development &
Anr.7, a question arose as to whether the inclusion of Sanskrit in the
syllabus of Central Board of Secondary Education as an elective subject
so far as teaching in secondary school is concerned is permissible. This
Court quoted that “It would be profitable to note that according to
Justice H.R. Khanna secularism is neither anti-God nor pro-God; it
7 (1994) 6 SCC 579
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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treats alike the devout, the agnostic and the atheist. According to
him, secularism is not antithesis of religious devoutness. He would
like to dispel the impression that if a person is devout Hindu or
devout Muslim, he ceases to be secular.”
11. The National Curriculum Framework for School Education
published by National Council of Educational Research and Training
was challenged before this Court in a judgment reported as Ms. Aruna
Roy & Ors. v. Union of India & Ors.8. This Court relied upon S.B.
Chavan Committee Report, 1999 which strongly recommended education
about religions as an instrument of social cohesion and social and religious
harmony, when it said “a word of caution is required here. Education
about religions must be handled with extreme care. All steps must be
taken in advance to ensure that no personal prejudice or narrow-
minded perceptions are allowed to distort the real purpose of this
venture and no rituals, dogmas and superstitions are propagated in
the name of education about religions. All religions therefore have
to be treated with equal respect (sarva dharma sambhav) and that
there has to be no discrimination on the ground of any religion
(panthnirapekshata).” It was observed as under:
“29. At this stage, we would quote the relevant part of the S.B.
Chavan Committee’s Report as under:
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12. In view of the diverse character of our country, it is
essential that certain national values are
also imbibed by
our young students. They should be acquainted with the
history of India’s freedom struggle, cultural heritage,
constitutional obligations and the features comprising
our national identity. The Committee feels that some of
these national values can be imparted indirectly at the
primary stage while at the middle and secondary levels,
these can be included in the curriculum.
13. Another aspect that must be given some thought is
religion, which is the most misused and misunderstood
concept. The process of making the students acquainted
with the basics of all religions, the values inherent therein
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and also a comparative study of the philosophy of all
religions should begin at the middle stage in schools and
continue up to the university level. Students have to be made
aware that the basic concept behind every religion is
common, only the practices differ. Even if there are
differences of opinion in certain areas, people have to
learn to coexist and carry no hatred against any
religion.”
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37. Therefore, in our view, the word “religion” should not be
misunderstood nor contention could be raised that as it is used in
the National Policy of Education, secularism would be at peril.
On the contrary, let us have a secularistic democracy where even
a very weak man hopes to prevail over a very strong man (having
post, power or property) on the strength of rule of law by proper
understanding of duties towards the society. Value-based education
is likely to help the nation to fight against all kinds of prevailing
fanaticism, ill will, violence, dishonesty, corruption, exploitation and
drug abuse Let knowledge, like the sun, shine for all and that
there should not be any room for narrow-mindedness, blind
faith and dogma. For this purpose also, if the basic tenets of all
religions over the world are learnt, it cannot be said that secularism
would not survive.”
12. In T.M.A. Pai Foundation, it was held that the State is not
prevented from making any law in relation to religious practice and the
same is permissible under Article 25(2)(a) of the
Constitution of India.
The limited jurisdiction granted by Article 25(2) relates to the making of
a law in relation to economic, financial, political or other secular activities
associated with the religious practice. The Court held as under:
“83. Article 25(2) gives specific power to the State to make any
law regulating or restricting any economic, financial, political or
other secular activity, which may be associated with religious
practice as provided by sub-clause (a) of Article 25(2). This is a
further curtailment of the right to profess, practise and propagate
religion conferred on the persons under Article 25(1). Article
25(2)(a) covers only a limited area associated with religious
practice, in respect of which a law can be made. A careful reading
of Article 25(2)(a) indicates that it does not prevent the State
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from making any law in relation to the religious practice as such.
The limited jurisdiction granted by Article 25(2) relates to the
making of a law in relation to economic, financial, political or other
secular activities associated with the religious practice”.
13. Thus, though the concept of secularism emerged in the west,
it has taken a different colour over the period of time. In a democratic
country like India, consisting of multiple religions, regions, faith, languages,
food and clothing, the concept of secularism is to be understood differently.
Secularism, as adopted under our Constitution, is that religion cannot be
intertwined with any of the secular activities of the State. Any
encroachment of religion in the secular activities is not permissible.
Secularism thus means treating all religions equally, respecting all religions
and protecting the practices of all religions. The positive meaning of
secularism would be non- discrimination by the State on the basis of
religious faith and practices. Secularism can be practiced by adopting a
completely neutral approach towards religion or by a positive approach
wherein though the State believes and respects all religions, but does not
favour any.
FACTUAL BACKGROUND
14. The challenge in the present appeals is to the Government
Order dated 5.2.2022, the translated copy of which reads as under:
“Proceedings of the Government of Karnataka
Subject – Regarding a dress
code for students of all schools and
colleges of the state.
Refer – 1) Karnataka Education Act 1983
2) Government Circular:509 SHH 2013, Date:31- 01-2014
Preamble:-
As mentioned in the above at reference No.1, the Karnataka
Education Act 1983 passed by the Government of Karnataka (1-
1995) Section [7(2)(g)(v)]* stipulates that all the school students
studying in Karnataka should behave in a fraternal manner,
transcend their group identity and develop an orientation towards
social justice. Under the Section 133 of the above law, the
government has the authority to issue directions to schools and
colleges in this regard.
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The above-mentioned circular at reference No.2 underlines
how Pre-university education is an important phase in the lives of
students. All the schools and colleges in the state have set up
development committees in order to implement policies in line with
the policies of the government, utilize budgetary allocations,
improve basic amenities and maintain their academic standards.
It is recommended that the schools and colleges abide by the
directions of these development committees.
Any such supervisory committee in schools and colleges
(SDMC in Government Institutions and Parents- Teachers’
Associations and the management in private institutions) should
strive to provide a conducive academic environment and enforce
a suitable code of conduct in accordance with government
regulations. Such a code of conduct would pertain to that particular
school or college.
Various initiatives have been undertaken to ensure that
students in schools and colleges have a standardized learning
experience. However, it has been brought to the education
department’s notice that students in a few institutions have been
carrying out their religious observances, which has become an
obstacle to unity and uniformity in the schools and colleges.
The question relating to a uniform dress code over individual
dressing choices has come up in several cases before the
Honourable Supreme Court and High Courts, which have ruled
as below.
1)
In para 9 of the Hon’ble High Court of Kerala’s
ruling
in W.P. (C) No.35293/2018, date : 04-12-2018, it cites
a ruling by the Hon’ble Supreme Court:
“9. The Apex Court in Asha Renjan and others v/
s State of Bihar and others [(2017) 4 SCC 397]
accepted the balance test when competing rights
are involved and has taken a view that individual
interest must yield to the larger public interest.
Thus, conflict to competing rights can be resolved
not by negating individual rights but by upholding
larger right to remain, to hold such relationship
between institution and students.”
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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2)
In the case of Fatima Hussain Syed v/s Bharat
Education Society and Ors. (AIR 2003 Bom 75), in
a similar incident regarding the dress code, when a
controversy occurred at Kartik High School, Mumbai.
The Bombay High Court appraised the matter, and
ruled that it was not a violation of Article 25 of the
Constitution for the principal to prohibit the wearing
of head scarf or head covering in the school.
3)
Subsequent to the Hon’ble Supreme Court’s
abovementioned ruling, the Hon’ble Madras High
Court, in V. Kamalamma v/s Dr. MGR Medical
University, Tamil Nadu and Ors. upheld the modified
dress code mandated by the university. A similar issue
has been considered by the Madras High Court in
Shri. M Venkatasubbarao Matriculation Higher
Secondary School Staff Association v/s Shri M.
Venkatasubbarao Matriculation Higher Secondary
School (2004) 2 MLJ 653 case.
As mentioned in the abovementioned rulings of the
Hon’ble Supreme Court and various High Courts, since the
prohibition of a headscarf or a garment covering the head
is not a violation of Article 25 of the Constitution. Additionally,
in terms of the [Karnataka Education Act, 1983 Article 133
Sub Rule (2) and Article 7(1)(i), 7(2)(g)(v) and Karnataka
Education Act (Classification, Regulation, Curriculum
Scheduling, Others) of Rules 1995 as per Rule 11]**, the
government has decreed as below-
Government Order No: EP14 SHH 2022 Bengaluru
Dated: 05.02.2022
In the backdrop of
the issues highlighted in the proposal, using the
powers granted by Karnataka Education Act, 1983 Sub-Rule 133
(2) [Section 7(1)(i), 7(2)(g)(v) and Karnataka Education Act
(Classification, Regulation, Curriculum Scheduling, Others) of
Rules 1995 as per Rule 11**, 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.
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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 mandate a uniform,
students should wear clothes that are in the interests of unity,
equality and public order.
By the Order of the Governor of Karnataka,
And in his name Padmini SN
Joint Secretary to the Government Education Department (Pre-
University)
*Substituted by the Corrigendum/Addendum dated 5.2.2022
**Inserted by the Corrigendum/Addendum dated 5.2.2022"
15. The Karnataka Education Act, 19839, under which the above
Government Order has been issued, was enacted with a view to foster
the harmonious development of the mental and physical faculties of
students and cultivate a scientific and secular outlook through education.
The long title and some of the relevant provisions of the Act read thus:
“An Act to provide for better organisation, development, discipline
and control of the educational institutions in the State.
Whereas it is considered necessary to provide for the planned
development of educational institutions inculcation of healthy
educational practice, maintenance and improvement in the
standards of education and better organisation, discipline and
control over educational institutions in the State with a view to
fostering the harmonious development of the mental and physical
faculties of students and cultivating a
scientific and secular outlook
through education;
Section-5. Promotion of education of the weaker sections and the
handicapped. – The State Government shall endeavour to promote
the education of the handicapped, backward classes and the weaker
sections of the society including the economically weaker section
thereof and in particular of the Scheduled Castes, Scheduled Tribes
with special care by adopting towards that end such measure as
may be appropriate.
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9 For short, the ‘Act’
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Section-7. Government to prescribe curricula, etc. – (1) Subject
to such rules as may be prescribed, the State Government may, in
respect of educational institutions, by order specify,-
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(h) the facilities to be provided, such as buildings, sanitary
arrangements, playground, furniture, equipment, library, teaching
aid, laboratory and workshops;
(i) such other matters as are considered necessary.
(2) The curricula under sub-section (1) may also include schemes
in respect of,-
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(v) 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;
(vi) to value and preserve the rich heritage of our composite
culture;
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(viii) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
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(x) to strive towards excellence in all spheres of individual and
collective activity, so that the nation constantly rises to higher levels
of endevaour and achievement.”
16. The Act also contemplates withdrawal of recognition if any
local authority or the Governing Council of any private educational
institution denies admission to any citizen on the ground of religion, race,
caste, language or any of them [Section 39 (1)(b)]; or directly or indirectly
encourages in the educational institution any propaganda or practice
wounding the
religious feelings of any class of citizens of India or insulting
religion or the religious belief of that class [Section 39 (1)(c)].
17. The impugned Government Order has been issued by
exercising the powers conferred under Section 133 of the Act, which
reads as thus:
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“133. Powers of Government to give directions.- (1) The State
Government may, subject to 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 proceeding
under this Act in respect 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 proceeding 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
directions.”
18. The State Government is also empowered to make rules to
carry out the purposes of this Act under Section 145 of the Act. Sub-
section (2) thereof provides that in particular and without prejudice to
the generality of the
foregoing power, the Rules may provide for the
establishment or maintenance and administration of educational
institutions [Section 145 (2)(xii)]; the purposes for which the premises
of the educational institutions may be used and the restrictions and
conditions subject to which such premises may be used for any other
purpose [Section 145 (2)(xxix)]; and all matters expressly required by
the Act to be prescribed or in respect of which the Act makes no provision
or makes insufficient provision and a provision is, in the opinion of the
State Government, necessary for the proper implementation of the Act
[Section 145 (2)(xL)].
19. In pursuance of the above statutory provisions, the Karnataka
Educational Institutions (Classification, Regulation and Prescription of
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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Curricula etc.) Rules, 199510 were framed. Rule 11 of the said Rules
provides for uniform, clothing, text books etc., which reads thus:
“11. Provision of Uniform, Clothing, Text Books etc., (1) Every
recognised educational institution may specify its own set of
Uniform. Such uniform once specified shall not be changed within
the period of next five years.
(2) When an educational institution intends to change the uniform
as specified in sub-rule (1) above, it shall issue notice to parents in
this regard at least one year in advance.
(3) Purchase of uniform clothing and text books from the school
or from a shop etc., suggested by school authorities and stitching
of uniform clothing with the tailors suggested by the school
authorities, shall be at the option of the student or his parent. The
school authorities shall make no compulsion in this regard.”
20. Rule 16 of the Rules provides for the constitution and functions
of District Level Education Regulating Authority. An order was passed
by the State on 31.1.2014 constituting College Betterment Committee
for the purpose of proper utilization of the grants sanctioned to it and for
developing basic infrastructure and maintaining the quality of education.
Such Committee is chaired by Member of Legislative Assembly as well
as representatives of parents, one of whom is a woman, one SC/ST,
another member with an interest in educational field, two student
representatives out of
which one shall be girl, Vice Principal/Senior
Teacher of High School and Senior Lecturers of the college. The principal
of the respective college is the Member Secretary. Such College
Betterment Committee of the Government Pre-University College for
Girls, Udupi, on 23.6.2018, passed the following resolution:
“RESOLUTION
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4. Further, it is resolved to maintain the same uniform in this year
also as maintained in the last year like blue colored chudidar pant,
white colored with blue color checks top and blue pant colored
shawl on the shoulders, in all the six days of the week. Also, it is
decided to handover the responsibility of providing the uniform to
the poor girl students from the donors, to the Vice- President
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Yashpal Suvarna and powers were given to the Principal to take
decision to after checking availability of the uniform in the shops.”
21. The challenge to the Circular dated 5.2.2022 before the High
Court remained unsuccessful on various grounds which are not necessary
to be extracted herein.
22. Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan,
Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr.
A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr.
Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, learned Senior
Advocates and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. Rishad
Ahmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms.
Thulasi K. Raj, Mohd. Nizamuddin Pasha, learned counsels have assisted
the Court in this matter on behalf of the appellants; whereas, Mr. Tushar
Mehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General,
Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka,
Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu, learned Senior
Advocates, argued on behalf of the Respondents. The arguments covered
various issues which will be dealt with hereinafter at appropriate stages.
23. We have heard learned counsels for the parties at length. I
find that the following questions arise for consideration in the present
appeals:
“(i) Whether the appeals should be heard along with Kantaru
Rajeevaru (Right to Religion, In Re-9J) and/or should the
present appeals be referred to
the Constitution Bench in terms of
Article 145(3) of the Constitution?
(ii) Whether the State Government could delegate its decision to
implement the wearing of uniform by the College Development
Committee or the Board of Management and whether the
Government Order insofar as it empowers a College Development
Committee to decide on the restriction/prohibition or otherwise on
headscarves is ex facie violative of Section 143 of the Act?
(iii) What is ambit and scope of the right to freedom of ‘conscience’
and ‘religion’ under Article 25?
(iv) What is the ambit and scope of essential religious practices
under Article 25 of the Constitution?
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(v) Whether fundamental rights of freedom of expression under
Article 19(1)(a) and right of privacy under Article 21 mutually
exclusive or are they complementary to each other; and whether
the Government Order does not meet the injunction of
reasonableness for the purposes of Article 21 and Article 14?
(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)?
(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?
(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?
(ix) Whether in the constitutional scheme, the State is obligated to
ensure ‘reasonable accommodation’ to its citizens?
(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?
(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?”
Question (i)- Whether the appeals should be heard along
with
Kantaru Rajeevaru (Right to Religion, In Re-9J) and/or should the
present appeals be referred to the Constitution Bench in terms of
Article 145(3) of the Constitution?
24. The preliminary submission of learned counsel for the appellants
is that the present case ought to be referred to a larger bench in view of
the order of this Court reported as Kantaru Rajeevaru (Sabarimala
Temple Review-5J.) v. Indian Young Lawyers Association & Ors.11.
One of the arguments raised for such submission was that it has to be
decided as to what is considered to be essentially religious, essential to
11 (2020) 2 SCC 1
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religion and integral part of religion. The contention was that “religion”
is a means to express one’s “faith”. The larger Bench of this Court
framed the questions of law in an order12. However, the reasons13
recorded for the reference state the ambit to be “the contours of judicial
review in matters pertaining to essential religious practices”. The
questions referred to in the said case relate to the extent to which the
Court can inquire into the issue as to whether a particular practice would
be qualified as an integral, essential part of religion.
25. It was also argued that the present case involves a substantial
question of law relating to interpretation of the Constitution, therefore,
ought to be referred to a Constitution Bench in terms of Article 145(3)
of the Constitution.
26. It is noted that the review in Kantaru Rajeevaru (Right to
Religion, In Re-9J.) is to consider much wider questions. The argument
that the matter should be referred to a larger Bench to be heard along
with such referred cases does not warrant consideration. The questions
referred to the larger Bench relate to power of judicial review in the
matters of essential religious practices. But the said question need not
be examined in the present matter as the issue herein is whether a religious
practice, which may be an essential religious practice, can be regulated
by the State in a secular institution. Therefore, I do not find it necessary
to tag the present appeals along with
Kantaru Rajeevaru.
27. The argument that the present appeals involve a substantial
question of law as to the interpretation of the Constitution, and thus
should be referred to the Bench of Five Judges in terms of Article 145(3)
of the Constitution is not tenable. Reliance is placed on a 9-Judges bench
judgment reported as K.S. Puttaswamy and Anr. v. Union of India &
Ors.14, wherein this Court held “When a substantial question as to
the interpretation of the Constitution arises, it is this Court and this
Court alone under Article 145(3) that is to decide what the
interpretation of the Constitution shall be, and for this purpose, the
Constitution entrusts this task to a minimum of 5 Judges of this
Court”.
12 (2020) 3 SCC 52
13 (2020) 9 SCC 121
14 (2017) 10 SCC 1
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28. There is no dispute about the proposition canvassed. The issue
in the present matter is however as to whether the students can enforce
their religious beliefs in a secular institution. Thus, the issues raised do
not become a substantial question of law as to the interpretation of the
Constitution only for the reason that the right claimed by the appellants
is provided under the Constitution. Hence, I do not find the need to refer
the matter to a larger bench or that the same should be heard along with
Kantaru Rajeevaru.
Question (ii)- Whether the State Government could delegate its
decision to implement the wearing of uniform by the College
Development Committee or the Board of Management and whether
the Government Order insofar as it empowers a College Development
Committee to decide on the restriction/prohibition or otherwise on
headscarves is ex facie violative of Section 143 of the Act?
29. The argument raised is with reference to Section 143 of the
Act. It is contended that the State Government can delegate all or any
of its powers exercisable by it, or to be exercised also by such office/
authority subordinate to the State Government, as may be specified in
the notification. It is the contention of the learned counsel for the appellants
that the notification dated 31.1.2014 is to delegate the essential State
functions in favour of a non-statutory authority. Therefore, such
notification violates the mandate
of Section 143 of the Act. Section 143
of the Act reads thus:
“143. Delegation. – The State Government may by notification in
the official gazette, delegate all or any powers exercisable by it
under this Act or rules made thereunder, in relation to such matter
and subject to such conditions, if any as may be specified in the
direction, to be exercised also by such officer or authority
subordinate to the State Government as may be specified in the
notification.”
30. It is contended by the learned counsel for the appellants that
the power to maintain public order is the responsibility of the State
Government and, therefore, the State Government could not delegate its
authority to College Development Committee which is not State within
the meaning of Article 12 as it is a mechanism created by the State. The
Circular issued by the Government of Karnataka dated 31.1.2014,
published in the official Gazette, reads thus:
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“Government of Karnataka
No. ED 580 SHH 2013
Department of Education
Multistore Building
Bangalore dated 31-01-2014
CIRCULAR
Education department is providing 1st and 2nd PUC
education in the state. PUC education is the main stage in the
student’s life. In accordance with the government and department
direction and in order to utilise the grants as well as in maintaining
academic standards and development of infrastructure, we are
hereby directed to form a college development committee and to
follow the guidelines as under:
SD/ 31-01-2014
(S.H. Curiyavar)
Under Secretary to the Govt
Dept of Education (P.U Education).”
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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31. Furthermore, learned counsels for the appellants have also
vehemently argued that the Government Order dated 5.2.2022 refers to
some of the judgments which do not deal with the issue of wearing hijab,
but still it is concluded that use of headscarf or a garment covering the
head is not in violation of Article 25. It is averred that though the operative
part of the order seems to be facially religious-neutral, it targets a
particular community in effect. It is also contended that the High Court
has supplanted the reasons to uphold the said Government Order even
though the reasons recorded therein are not sufficient to prohibit the use
of headscarf. Hence, at the outset, the State ought to prove the jurisdiction
to issue such a circular.
32. The alternate argument is that the College Development
Committee, a non-statutory authority, cannot exercise power of the State
Government under Part III of the Constitution. It was contended that
the law which can restrict the right of an individual under Article 19(1)(a),
Article 25(2), or any other right falling within part III of the Constitution,
can only be by way of a law made by the competent legislature. Mr.
Shoeb Alam referred to judgments of this Court reported as State of
Madhya Pradesh & Anr. v. Thakur Bharat Singh15, State of West
Bengal v. Anwar Ali Sarkar16, Bishambhar Dayal Chandra Mohan
& Ors. v. State of Uttar Pradesh & Ors.17 and a recent order passed
by this
Court reported as Pharmacy Council of India v. Rajeev College
of Pharmacy & Ors.18 to support such contention. However, Mr.
Dushyant Dave argued that the rights in Part III of the Constitution can
be restricted or regulated by a statute made by competent legislature
and also includes any law as defined under Article 13(2) & (3) of the
Constitution. Articles 13(2) and (3) of the Constitution are relevant for
the purposes of the present proposition, which reads thus:
“13. Laws inconsistent with or in derogation of the
fundamental rights.—
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(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
15 AIR 1967 SC 1170
16 AIR 1952 SC 75
17 (1982) 1 SCC 39
18 2022 SCC OnLine SC 1224
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(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;”
33. I do not find any merit in the said argument raised by the
appellants. The College Development Committee is envisaged to be an
in-house mechanism to ensure better utilization of grants as well as
maintaining academic standards and development of infrastructure. Such
directions are relatable to sub-section (3) of Sections 133 and 145 of the
Act. In any case, the constitution of the College Development Committee
is not in conflict with any of the provisions of the Act. The said circular
was published in the Karnataka Gazette, issued in exercise of the executive
powers of the State, supplementing the provisions of the Act and not
supplanting all or any of the provisions thereof.
34. The Government Order is in two parts. The first part is the
Preamble which gives the background leading to the order impugned
before the High Court. The second part, i.e., the operative part of the
order alone bears the Government Order number and date. The order
mandates that the uniform prescribed by the College Development
Committee or the Board of Management should be worn. The appellants
have though understood the order to be interfering with their essential
religious practices.
35. The executive power under Article 73 extends to all matters
in respect of which
the Parliament has power to make laws or under
Article 162 in respect of the matters where legislature of the State has
power to make laws.19 The question is whether restrictions can be imposed
by the executive in respect of the rights specified under Part III such as
Articles 19, 21, 25 and 31A.
36. There is no dispute about the proposition that in the absence
of any statute or the statutory rule, but in exercise of the executive
power, the State can issue an executive order. However, the argument
raised is that restrictions under Part III of the Constitution can only be
imposed by way of a statutory law and not by way of an executive
power.
19 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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37. Now, coming to the judgments referred to by the learned
counsel for the appellant for the abovementioned contention; in Anwar
Ali Sarkar, this Court was considering the conviction of the respondent
by the Special Court established under Section 3 of the West Bengal
Special Courts Ordinance, 1949, which was replaced by the West Bengal
Special Courts Act, 1950. It was the provision of the Act which was set
aside being discriminatory. This Court, in fact, inter-alia held that “this
is further made clear by defining “law” in Article 13 (which renders
void any law which takes away or abridges the rights conferred by
part III) as including, among other things, any “order” or
“notification”, so that even executive orders or notifications must
not infringe Article 14. The trilogy of articles thus ensures non-
discrimination in State action both in the legislative and the
administrative spheres in the democratic republic of India”. Thus,
the said judgment is thus not helpful to the argument raised.
38. In Thakur Bharat Singh, this Court dismissed an appeal filed
by the State against the judgment of the High Court reported as Thakur
Bharat Singh v. State of M.P. & Anr.20. The High Court struck down
Section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 when
the writ petitioner before the High Court was prohibited to be in Raipur
District and was directed to remain within the municipal limits of Jhabua
District and
was also ordered to report daily to the Police Station Officer,
Jhabua. The High Court held as under:
“For the foregoing reasons, our conclusion is that clauses (a) and
(c) of section 3(1) of the Act are valid, but clause (b) being violative
of article 19(1)(d) of the Constitution is invalid. As clause (b) is
invalid, the direction made against the appellant Bharatsingh under
that clause asking him to reside in Jhabua was clearly illegal and
was rightly quashed by the learned Single Judge. On quashing
that direction, the further direction that Bharatsingh should notify
his movements by reporting himself daily to the Police Station
Officer, Jhabua, cannot survive. The learned Single Judge,
therefore, rightly quashed the order made against Bharatsingh
directing him to notify his movements and report himself daily to
the Police Station Officer, Jhabua, though he did so on the
erroneous view that clause (c) of section 3(1) was inextricably
20 AIR 1964 MP 175
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woven with clause (b) thereof and was invalid. The result is that
both these appeals are dismissed. In the circumstances of the
case, we leave the parties to bear their own costs of the two
appeals.”
39. An appeal against the said judgment was dismissed by this
Court wherein this Court held as under:
“7. We are therefore of the view that the order made by the State
in exercise of the authority conferred by Section 3(1)(b) of the
Madhya Pradesh Public Security Act 25 of 1959 was invalid and
for the acts done to the prejudice of the respondent after the
declaration of emergency under Article 352 no immunity from the
process of the Court could be claimed under Article 358, of the
Constitution, since the order was not supported by any valid
legislation.”
40. The aforementioned judgment is in respect of the statute
enacted by a State Legislature, the provision of which was found to be
invalid. The issue raised in the aforesaid case has no parity with the
facts of the present case.
41. In Bishambhar Dayal Chandra Mohan, the State Government
contended that the impugned teleprinter message dated March 31, 1981
was in the nature of an executive instruction issued by the State
Government under its powers under Article 162 of the Constitution for
the due observance of the provisions of the U.P. Foodgrains Dealers
(Licensing and Restriction on Hoarding) Order, 1976 and the Uttar
Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978.
It was the stand of
the State that no person can carry on business in
foodgrains as a dealer or as a commission agent, except under and in
accordance with the terms and conditions of a valid licence issued in
that behalf under the two orders. In these circumstances, this Court held
as under:
“33. Under Article 19(1)(g) of the Constitution, a citizen has the
right to carry on any occupation, trade or business and the only
restriction on this unfettered right is the authority of the State to
make a law imposing reasonable restrictions under clause
(6)............
41. There still remains the question whether the seizure of wheat
amounts to deprivation of property without the authority of law.
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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Article 300-A provides that no person shall be deprived of his
property save by authority of law. The State Government cannot
while taking recourse to the executive power of the State under
Article 162, deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere executive
fiat or order. Article 162, as is clear from the opening words, is
subject to other provisions of the Constitution. It is, therefore,
necessarily subject to Article 300-A. The word “law” in the
context of Article 300-A must mean an Act of Parliament or of a
State legislature, a rule, or a statutory order, having the force of
law, that is positive or State made law…”
42. The writ petitions filed by the dealers were dismissed. In the
aforesaid case, the restriction was put by an executive order, which was
found to be a reasonable restriction in terms of Article 19(6) of the
Constitution. Even the said judgment does not aid the appellants and has
no applicability to the facts of the present case.
43. Furthermore, reliance on a recent judgment of this Court
reported as Pharmacy Council of India is unfound as it has no parity
with the facts of the present case. The Pharmacy Council of India, an
authority created under the Pharmacy Act, 1948, resolved on 17.7.2019
to put a moratorium on the opening of new pharmacy colleges for running
Diploma as well as Degree courses in pharmacy for a period of five
years. The
argument raised by the appellant was that Sections 3, 10 and
12 of the Pharmacy Act confer the power to regulate, therefore, such
power would include the power to prohibit also. This Court negated
such an argument and held as under:
“55. Since we have held that the Resolutions/communications dated
17th July 2019 and 9th September 2019 of the Central Council of
the appellant-PCI, which are in the nature of executive instructions,
could not impose restrictions on the fundamental right to establish
educational institutions under Article 19(1)(g) of the Constitution
of India, we do not find it necessary to consider the submissions
advanced on other issues. We find that the Resolutions/
communications dated 17th July 2019 and 9th September 2019 of
the Central Council of the appellant-PCI are liable to be struck
down on this short ground.”
44. A perusal of the above judgment shows that an authority under
the Act had put a moratorium on the opening of new pharmacy colleges,
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thus, prohibiting the right conferred on an individual under Article 19(1)(g)
of the Constitution. The same however was by virtue of a resolution not
supported by any statute. Therefore, the said judgment of this Court has
no applicability to the facts of the present case.
45. Furthermore, this Court in a judgment reported as Shri Dwarka
Nath Tewari v. State of Bihar21 was considering Article 182 of the
Bihar Education Code. The Court found that Article 182 of the Code is
not in exercise of any power granted under the statute and thus cannot
deprive the petitioners of their rights in the properties which were the
subject matter of the writ petition. This Court held as under:
“13. It is clear, therefore, from the portion of the preface extracted
above, that Article 182 of the Code has no greater sanction than
an administrative order or rule, and is not based on any statutory
authority or other authority which could give it the force of law.
Naturally, therefore, the learned Solicitor-General, with his usual
fairness, conceded that the article relied upon by the respondents
as having the force of law, has no such force, and could not,
therefore, deprive the petitioners of their rights in the properties
aforesaid.”
46. “Law”, as contemplated under Articles 19(2) and 25(2), falls
within Part III of the Constitution. Therefore, law, as defined under Article
13(3), would include any ordinance, order, bye-law, rule, regulation,
notification, custom or usage in
the territory of India to have the force of
law. The order issued by the State Government would thus be a law
within the meaning of Article 13(2) read with Article 13(3)(a), which is
a valid exercise of power under Article 19(1)(a) read with Article 19(2),
and Article 25(1) read with Article 25(2) of the Constitution.
47. The Government Order relates to the powers conferred on
the executive under Section 133 of the Act and rule-making power of
the State under Article 162 of the Constitution. The said Government
Order does not run contrary to any of the provisions of the Act and the
rules framed thereunder. Therefore, the executive was well within its
jurisdiction to ensure that the students come in the uniform prescribed
by the College Development Committee.
48. The College Development Committee so constituted consists
of Member of the Legislative Assembly, representatives of the students,
21 AIR 1959 SC 249
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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faculty members etc. Therefore, such authority is a representative body
of the students and teachers including the Member of the Legislative
Assembly and Principal of the College as Member Secretary. Such
Committee cannot be said to be beyond the scope of Section 143 of the
Act. Such authority established in exercise of the powers vested with
the State Government is not in contravention of any of the provisions of
the statute. In terms of Article 162 of the Constitution, the State
Government in exercise of its executive power could create the College
Development Committee as such Committee does not contravene any
of the provisions of the statute or the rules framed thereunder.
49. In view of the above, I find that the State Government has the
power to constitute a College Development Committee by notification
dated 31.1.2014 in terms of Section 143 of the Act. The State Government
could confer its power to be exercised by such office/authority subordinate
to the State Government. It is noted that the word ‘authority’ has not
been defined under the Act. The authority contemplated by the Act could
be a non-statutory authority such as of a person or a group of persons
who may be authorized to exercise powers under Section 143 of the
Act.
50. Further, it is well settled that executive powers can be used to
supplement the statutory rules. This Court in a judgment reported as
Sant Ram Sharma v. State of Rajasthan & Ors.22
held that it is true
that Government cannot amend or supersede statutory rules by
administrative instructions, but if the rules are silent on any particular
point, the Government can fill up the gaps and supplement the rules and
issue instructions not inconsistent with the rules already framed
thereunder. This Court in a judgment reported as Union of India &
Anr. v. Ashok Kumar Aggarwal23 held as under:
“59. The law laid down above has consistently been followed and
it is a settled proposition of law that an authority cannot issue
orders/office memorandum/executive instructions in contravention
of the statutory rules. However, instructions can be issued only to
supplement the statutory rules but not to supplant it. Such
instructions should be subservient to the statutory provisions. (Vide
Union of India v. Majji Jangamayya [(1977) 1 SCC 606 : 1977
22 AIR 1967 SC 1910
23 (2013) 16 SCC 147
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SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3
SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272], Paluru
Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989
SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166], C.
Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 :
1998 SCC (L&S) 1448]and Joint Action Committee of Air Line
Pilots’ Assn. of India v. DG of Civil Aviation [(2011) 5 SCC
435 : AIR 2011 SC 2220] .)”
51. The Preamble of the Act aims towards fostering harmonious
development of the mental and physical faculties of students and cultivating
a scientific and secular outlook through education.
52. The curricula under Section 7(2) of the Act is 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, to
value and preserve the rich heritage of our composite culture, to develop
scientific temper, humanism and the spirit of inquiry and reform and to
strive towards excellence in all spheres of individual and collective activity,
so that the nation constantly rises to higher levels of endeavor and
achievement. The said provision is substantially pari materia with the
fundamental duties enumerated in Part IV-A of the Constitution inserted
by 42nd Amendment, required to be followed by the institutions covered
under the Act.
53. The said provisions show that the mandate of the
statute is to
renounce sectional diversities, to develop humanism and to cultivate
scientific and secular outlook. The sectarian approach that certain
students will carry their religious beliefs to secular schools run by the
State would be antithesis of the mandate of the statute. All students
need to act and follow the discipline of the school. Out of the many steps
required to ensure uniformity while imparting education, one of them is
to wear the uniform dress without any addition or subtraction to the
same. Any modification to the uniform would cease to be the uniform,
defeating the very purpose of prescribing under Rule 11 and as mandated
by the College Development Committee.
54. Mr. Dushyant Dave referred to an extract which appears to
be from a booklet published by the Department of Pre-University
Education containing guidelines for the year 2021-2022. It is contended
that such guidelines have contemplated that uniform is not mandatory
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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and that some College Principals and Management Committee have
imposed uniforms as mandatory, which is illegal. The relevant clause
reads as under:
“Uniform is not mandatory for students studying in Pre University
college under Government / Pre University Education Department
/ Education Act. But some college principals and management
committee members have imposed uniforms as mandatory which
is illegal. Any violation of the foregoing instructions will be taken
seriously.”
55. In respect of the said contention, I find that the students were
following uniform prescribed by the College Development Committee.
It is not the case of any of the students that they were not wearing
uniform for the academic session 2021-22. The only claim raised was in
relation to right to wear the headscarf during the academic year 2021-
22, the year in controversy, and to which the guidelines relate. The
recognized educational institution in terms of Section 2(30) of the Act
means an educational institution recognized under the Act and includes
one deemed to be recognized thereunder. The recognition of educational
institutions is contemplated by Section 36 of the Act whereas the
educational institutions established and run by the State Government or
by the authority sponsored by the Central or the State Government or by
a local authority and approved by the competent authority shall be deemed
to be the educational institution recognized
under the Act. The students
are not disputing the mandate to wear uniform. It appears that the
guidelines have been made part of the brochure without taking into
consideration Rule 11 of the Rules which contemplates that every
recognised educational institution may specify its own set of uniform.
Therefore, the guidelines run counter to the statutory Rule 11 framed in
exercise of the powers conferred under Section 145 of the Act. Thus,
the uniform, having been prescribed in terms of the Act and the rules
framed thereunder, the guidelines to the contrary are non-est and in
any case had not been followed during the academic year in question.
56. The Government Order dated 5.2.2022 contemplates that the
prescribed uniform should be followed. It necessarily excludes all religious
symbols visible to naked eye. The argument that the students wear
Rudraksha or a Cross is mentioned only to deal with an argument so
raised. Anything worn by the students under his/her shirt cannot be said
to be objectionable in terms of the Government Order issued.
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57. In view of the above enunciation of law, I do not find that the
constitution of the College Development Committee contravenes any of
the provisions of the Act or the Rules made thereunder or that the
regulation of uniform by such Committee is beyond its scope.
Question (iii)- What is the ambit and scope of right to freedom of
‘conscience’ and ‘religion’ under Article 25?
58. At the outset, it is pertinent to mention that the Constitution
does not define the term ‘Religion’, though it is used in Articles 15, 16,
25, 26, 27, 28 and 30. The Articles which are under consideration for the
purpose of present appeals read thus:
“14. Equality before law.—The State shall not deny to any person
equality before the law or the equal protection of the laws within
the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste,
sex or place of brith.—(1) The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b)
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19. Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;
xx
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xx
(2) Nothing in
sub-clause (a) of clause (1) shall affect the operation
of any existing law, or prevent the State from making any law, in
so far 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.
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xx
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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25. Freedom of conscience and free profession, practice and
propagation of religion.—(1) Subject to public order, morality and
health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing
law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious
practice;
(b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes
and sections of Hindus.”
59. Mr. Huzefa Ahmadi and Mr. Dushyant Dave have quoted
from the proceedings of the Constituent Assembly Debates, to bring
about the thought process which had gone into to present the Constitution
to the people of India. Mr. Ahmadi relies upon the speech of Dr.
Ambedkar to the Constituent Assembly on 25.11.1949 (Constituent
Assembly Debates, Volume XI, Page 979) to the following effect:
“The third thing we must do is not to be content with mere political
democracy. We must make our political democracy a social
democracy as well. Political democracy cannot last unless there
lies at the base of it social democracy. What does social
democracy mean? It means a way of life which recognizes
liberty, equality and
fraternity as the principles of life. These
principles of liberty, equality and fraternity are not to be
treated as separate items in a trinity. They form a union of
trinity in the sense that to divorce 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 the supremacy of the few over the
many. Equality without liberty would kill individual initiative.
Without fraternity, liberty would produce the 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.”
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60. Mr. Dave referred to the report dated 25.5.1949 of the Advisory
Committee on Minorities by the Constituent Assembly, presided by
Hon’ble Sardar Vallabhbhai J. Patel, wherein it was stated as under:
“It is not our intention to commit the minorities to a particular
position in a hurry. If they really have come honestly to the
conclusion that in the changed conditions of this country, it 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 happen to be in a
majority to think about what the minorities feel, and how we in
their position.”
61. In Constituent Assembly Debates, Volume V, dated 27.8.1947,
it was opined as under:
“The Draft Constitution is also criticised because of the safeguards
it provides for minorities. In this, the Drafting Committee has no
responsibility. It follows the decisions of the Constituent Assembly.
Speaking for myself, I have no doubt that the Constituent Assembly
has done wisely in providing such safeguards for minorities as it
has done. In this country both the minorities and the majorities
have followed a wrong path. It is wrong for the majority to deny
the existence of minorities. It is equally wrong for the minorities
to perpetuate themselves. A solution must be found which will
serve a double purpose. It must recognize the
existence of the
minorities to start with. It must also be such that it will enable
majorities and minorities to merge someday into one. ..............”
62. In the Constituent Assembly Debate dated 6.12.1948, while
considering the draft Article 19, which is now Article 25, Pandit Lakshmi
Kanta Maitra expressed his views as follows:
“By secular State, as I understand it, is meant that the State is not
going to make any discrimination whatsoever on the ground of
religion or community against any person professing any particular
form of religious faith. This means in essence that no particular
religion in the State will receive any State patronage whatsoever.
The State is not going to establish, patronize or endow any
particular religion to the exclusion of or in preference to others
and that no citizen in the State will have any preferential treatment
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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or will be discriminated against simply on the ground that he
professed a particular form of religion. In other words in the affairs
of the State the professing of any particular religion will not be
taken into consideration at all. This I consider to be the essence
of a secular state.”
63. Mr. Kamat also referred to the proposed amendment moved
by Mr. Tajamul Husain on 3rd December, 1948 proposing an amendment
to the following effect:
“No person shall have any visible sign or mark or name, and no
person shall wear any dress whereby his religion may be
recognised.”
64. The argument raised is that since the amendment was not
accepted, therefore, the citizens have a right to have visible sign mark or
name or dress so that their religion may be recognized. Though the
amendment was not moved, but the fact that such discussion had taken
place in the Constituent Assembly shows that the Constituent Assembly
was aware of wearing of different clothing by the people of India which
the member was suggesting to be not carried out. Since the Constitution
is silent about the clothes to be worn by the citizens, therefore, the concern
shown by a member of the Constituent Assembly should not be put
under the carpet. In fact, Mr. Tajamul Husain further raised an argument
as under:
“Mr. Tajamul Husain: I wish to point out that religion is a private
affair between man and his God. It has no concern with anyone
else in the world. What is
the religion of others is also no concern
of mine. Then why have visible signs by which one’s religion may
be recognised? You will find, Sir, that in all civilized countries—
and civilized countries now-a-days are the countries in Europe
and America—there is no visible sign or mark by which a man
can be recognised as to what religion he professes.
xx
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xx
So I do not want these things. I know I am 100 years ahead of the
present times. But still, I shall have my say.
In civilized countries in England there was a time when there was
no uniformity of dress. In this country you find all sorts of dresses.
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You find dhoties, you find pyjamas, you find kurtas, you find shirts,
—and again, no shirts, no dhoties, nakedness, all sorts of things.
That was the same thing in England at one time.
xx
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Mr. Tajamul Husain: I am sorry for the interruption of the
Maulana. My name I will change when the whole country adopts
my resolution. Then, he will not be able to find out what I am and
who I am.
Now, Sir, I was talking about dress. There was a England when
there was no uniformity, but the Honourable the Law Minister
will agree with me that an Act was actually passed in Parliament
by which there was uniformity of dress and now in England and
in the whole of Europe and in America there is uniformity of dress.
We are one nation. Let us all have one kind of dress; one kind of
name; and no visible signs. In conclusion, I say we are going to be
a secular State. We should not, being a secular State, be recognised
by our dress. If you have a particular kind of dress, you know at
once that so and so is a Hindu or a Muslim. This thing should be
done away with. With these words, I move my amendment.
(Amendment 589 and 583 were not moved.)”
65. On the other hand, learned Solicitor General referred to the
speech of Dr. B.R. Ambedkar in the Constituent Assembly Vol. VII, p.
781, which reads as under:
“The religious conceptions in this country are so vast that they cover
every aspect of life from birth to death. 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.”
66. In respect of the Constituent Assembly Debates, this Court in
A.K. Gopalan v. State of Madras24 held that the Court could only search
for the objective intent of the legislature primarily in the words used in
the enactment, aided by such historical material such as reports of statutory
committees. The Court did not put any importance on the speeches made
24 AIR 1950 SC 27
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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by some of the members of the Constituent Assembly in the course of
the debate on Article 15 (now Article 21). The result appears to be that
while it is not proper to take into consideration the individual opinions of
Members of Assembly to construe the meaning of a particular clause,
when a question is raised whether a certain phrase or expression was
up for consideration at all or not, a reference to the debates may be
permitted.
67. In State of Travancore-Cochin & Ors. v. Bombay Company
Ltd., Alleppey25, this Court held that the speeches made by the members
of the Constituent Assembly in the course of debates on the draft
Constitution is unwarranted. It was noted that this form of extrinsic aid
to the interpretation of statutes is not admissible has been generally
accepted in England, and the same rule has been observed in the
construction of Indian statutes as well — see Administrator-General
of Bengal v. Prem Nath Mallick [22 IA 107, 118].
68. In a nine-Judges Bench judgment in Indra Sawhney & Ors.
v. Union of India & Ors.26, this Court held that what is said during the
debates is not conclusive or binding upon the Court because several
members may have expressed several views, all of which may not be
reflected in the provision finally enacted. Therefore, views of the members
of the Constituent Assembly are not really to be relied upon after this
Court in a number of judgments have expressed about the rights
under
Article 25 of the Constitution.
69. Thus, the debates show the in-depth knowledge of the members
of the Constituent Assembly at that relevant point of time, but more than
70 years later, with the interpretation of various provisions by the
Constitutional Courts, it is not advisable to rely solely upon views of the
individual members in such debates.
70. Further, the argument of Mr. Dave is that Article 25 protects
religious practices and that the expression ‘essential religious practice’
has been wrongly used by this Court in Shayara Bano v. Union of
India & Ors.27. It was contended that the judgment in Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt28 has not used the expression ‘essential
25 AIR 1952 SC 366
26 1992 Supp (3) SCC 217
27 (2017) 9 SCC 1
28 AIR 1954 SC 282 (1954 SCR 1005)
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religious practice’. Therefore, wearing of a headscarf may not be
essential, but is a religious practice, thus, protected by Article 25.
71. Dr. Dhawan, in support of his arguments, argued that the
rights available to the students are the right to dress, free speech and
expression not affecting public order or morality and the right of privacy,
relying upon judgments in National Legal Services Authority v. Union
of India & Ors.29 and K.S. Puttaswamy. It is contended that wearing
of hijab is an essential religious practice, and that the action of the State
is discriminatory on the grounds of religion and sex.
72. Mr. Tushar Mehta, learned Solicitor General appearing for
the State rebutted the arguments raised on behalf of the appellants and
gave the background of issuance of the Government Order dated
5.2.2022. He submitted that on 29.3.2013, the College Development
Committee, Udupi, prescribed the uniform for the girl students and since
then the same was being followed by them. On 31.1.2014, a circular
was issued by the Government regarding formation of a College
Development Committee comprising inter alia the local member of the
Legislative Assembly, representatives of parents, student representatives
and teachers and Principal of the Pre-University College.
73. It was on 23.6.2018, that the College Development Committee,
Udupi, prescribed a dress code for the students. On 31.12.2019, the
College Development Committee of another College i.e., Kundapura
Pre-University College, Udupi, unanimously resolved that the uniform
of the students for the academic year would continue to be same as one
prescribed in the previous years.
74. The students at the time of admission to the pre-university
course undertook to comply with all the rules and regulations of the Pre-
University College. It was pointed out that suddenly in the middle of the
academic term, the issue of hijab was generated in the social media by
the activists of Popular Front of India. The police papers in this respect
were handed over to the High Court in a sealed cover as mentioned on
page 126 of the order of the High Court. It is stated that the chargesheet
has since been filed. Thereafter, some representations were made by
the parents of the students and/or students requesting hijab to be worn in
classrooms.
29 (2014) 5 SCC 438
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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75. The College Development Committee directed to maintain
status quo. Five students thereafter filed Writ Petition No. 2146 of 2022
on 29.1.2022 seeking an interim prayer that they be allowed to continue
to attend school wearing headscarves. On 31.1.2022, the College
Development Committee, Udupi, decided that students must not wear
hijab in classrooms whereas the Kundapura Pre-University College
resolved it on 2.2.2022. There was a counter-reaction for the demands
raised. It is in these circumstances that the Government issued the
impugned order.
76. It is contended that such directions were issued to the colleges/
institutions and not to the individual students as per the mandate of the
Act. The Preamble of the Act is to provide for the planned development
of educational institutions, inculcating healthy educational practice,
maintenance and improvement in the standards of education, better
organization, discipline and control over educational institutions so as to
cultivate a scientific and secular outlook through education. Section 133(2)
of the Act empowers the State Government to give directions to any
educational institution as in its opinion are necessary or expedient for
carrying out the purposes of the Act. Therefore, the Government Order
was issued to direct the colleges/institutions to ensure that wherever
uniform is mandated by the College Development Committee or the
Board of Management, it should be
worn. But if such uniform is not
mandated, the students should wear clothes which are in the interest of
unity, equality and public order. Therefore, the circular was issued to the
colleges to ensure compliance of norm of uniform in a non-discriminatory
manner, irrespective of any religious faith of the students.
77. The legality of Rule 11 of the Rules is not under challenge. In
terms of the said Rule, the educational institutions have a right to prescribe
a uniform to the students attending the said school. The scope of judicial
review of the decisions of the educational institutions vis-a-vis its pupil
is narrower than a purely administrative action. Reference was made to
T.M.A Pai Foundation wherein it was held as under:
“64. An educational institution is established only for the purpose
of imparting education to the students. In such an institution, it is
necessary for all to maintain discipline and abide by the rules and
regulations that have been lawfully framed. The teachers are like
foster parents who are required to look after, cultivate and guide
the students in their pursuit of education. The teachers and the
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institution exist for the students and not vice versa. Once this
principle is kept in mind, it must follow that it becomes imperative
for the teaching and other staff of an educational institution to
perform their duties properly, and for the benefit of the
students.........”
78. In the matters of campus discipline of the educational
institutions, the Court does not substitute its own views in place of the
school authority except in a case of manifest injustice or to interfere
with a decision which does not pass the test of Wednesbury
reasonableness. This Court in a judgment reported as Chairman, J &
K State Board of Education v. Feyaz Ahmed Malik30, held as under:
“20. .............. From the discussions in the impugned judgment, it
is clear that the High Court has taken upon itself the task of finding
out a scheme to tackle the problem of mass malpractice in
examination. In our considered view the approach of the High
Court in the matter is erroneous and this has vitiated the judgment.
In matters concerning campus discipline of educational institutions
and conduct of examinations the duty is primarily vested in the
authorities in charge of the institutions. In such matters the court
should not try to substitute its own views in place of the authorities
concerned nor thrust its views on them. That is not to say that the
court cannot at all interfere with the decisions of the authorities in
such matters. The court has undoubtedly the power to intervene
to
correct any error in complying with the provisions of the rules,
regulations or notifications and to remedy any manifest injustice
being perpetrated on the candidates. ..............”
79. In Ahmedabad St. Xavier’s College Society & Anr. v. State
of Gujarat & Anr.31, it was held that the educational institutions are
temples of learning and thus discipline is required to be maintained
between the teacher and the taught.
“30. Educational institutions are temples of learning. The virtues
of human intelligence are mastered and harmonised by education.
Where there is complete harmony between the teacher and the
taught, where the teacher imparts and the student receives, where
there is complete dedication of the teacher and the taught in
30 (2000) 3 SCC 59
31 (1974) 1 SCC 717
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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learning, where there is discipline between the teacher and the
taught, where both are worshippers of learning, no discord or
challenge will arise. An educational institution runs smoothly when
the teacher and the taught are engaged in the common ideal of
pursuit of knowledge. ........... The right to administer is to be
tempered with regulatory measures to facilitate smooth
administration. The best administration will reveal no trace or colour
of minority. A minority institution should shine in exemplary
eclectism in the administration of the institution. The best
compliment that can be paid to a minority institution is that it does
not rest on or proclaim its minority character.
31. Regulations which will serve the interests of the students,
regulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in the
interest of efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony among
affiliated institutions.”
80. In respect of minority institutions, this Court in a judgment
reported as Bihar State Madarasa Education Board v. Madarasa
Hanfia Arabic College32 held that the State has power to regulate the
educational needs and discipline of a minority institution.
“6. .......... This Court has all along held that though the minorities
have right to establish and administer educational institution of
their own
choice but they have no right to maladminister and the
State has power to regulate management and administration of
such institutions in the interest of educational need and discipline
of the institution. Such regulation may have indirect effect on the
absolute right of minorities but that would not violate Article 30(1)
of the Constitution as it is the duty of the State to ensure efficiency
in educational institutions. The State has, however, no power to
completely take over the management of a minority institution.
................. Minority institutions cannot be allowed to fall below
the standard of excellence on the pretext of their exclusive right
of management but at the same time their constitutional right to
administer their institutions cannot be completely taken away by
superseding or dissolving Managing Committee or by appointing
ad hoc committees in place thereof. ..............”
32 (1990) 1 SCC 428
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81. In Modern Dental College & Research Centre v. State of
Madhya Pradesh33, it was held that the right under Article 19(1)(g) is
not absolute but is subject to reasonable restrictions under clause (6) in
the larger interest and welfare of student community and to promote
merit, achieve excellence and curb malpractices, fee and admissions
could certainly be regulated. This Court held as under:
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions under
clause (6). Reasonableness has to be determined having regard
to the nature of right alleged to be infringed, purpose of the
restriction, extent of restriction and other relevant factors. In
applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger interest of
the society. The Court interferes with a statute if it clearly violates
the fundamental rights. The Court proceeds on the footing that
the legislature understands the needs of the people. The
Constitution is primarily for the common man. Larger interest and
welfare of student community to promote merit, achieve excellence
and curb malpractices, fee and admissions can certainly be
regulated.”
82. It has been argued that Article 25 of the Constitution must be
given a conjunctive meaning. In Article 25(1), the term ‘conscience’
needs to be given not only the
widest connotation but also an
interconnected meaning. It is contended to be wide enough to cover the
use of hijab, which reflects an expression of conscience. It is argued
that the terms ‘conscience’, ‘profess’ and ‘practice’, as occurring in
Article 25(1), are distinct and at the same time, interconnected. Practice
would necessarily include conscience, and therefore both are inseparable.
83. It is further submitted that the right to dress inheres in the
right to freedom of speech and expression, right to identity, and the right
to dignity under Article 21 of the Constitution of India. Restriction on
dress, even in the context of uniform, must have a rational nexus with
the object sought to be achieved. Dress has been referred also in the
context of expression of self. It is submitted that Muslim women wearing
hijab is a symbolic expression of their identity to the public as a woman
33 (2016) 7 SCC 353
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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who follows Islam. The wearing of hijab does not cause any issue of
public disorder or disturbance. Moreover, an arbitrary, unsubstantiated
and illogical constraint imposed on the appearance of Muslim women
and their choice of self-presentment is constitutionally impermissible and
an explicit violation of Article 19 guaranteed in the Constitution. It was
submitted that the purpose of uniform is not to erase the markers of
individuality. Simply by wearing the prescribed dress code, diverse
distinctions which exist amongst the students would not evaporate. In
multi-cultural societies, students should be taught to acknowledge, accept
and respect diversities in the society. It is further submitted that the
impugned Government Order is exclusionary and destructive of tolerance
and diversity in the classroom. The classroom is expected to be uniform
but not homogenous.
84. This Court in S.P. Mittal v. Union of India34 held that, it is
“obvious that religion, undefined by the Constitution, is incapable
of precise judicial definition either. In the background of the
provisions of the Constitution and the light shed by judicial
precedent, we may say religion is a matter of faith. It is a matter of
belief and doctrine. It concerns the conscience i.e. the spirit of man.
It must be capable of overt expression in word and deed, such as,
worship or ritual. So, religion is a matter of belief and doctrine,
concerning the human spirit,
expressed overtly in the form of ritual
and worship. Some religions are easily identifiable as religions;
some are easily identifiable as not religions. There are many in the
penumbral region which instinctively appear to some as religions
and to others as not religions”.
85. Further, in A.S. Narayana Deekshitulu, this Court held that
“A religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be
conducive to their spiritual well-being. ...Every religion must believe
in a conscience and ethical and moral precepts. Therefore, whatever
binds a man to his own conscience and whatever moral or ethical
principles regulate the lives of men believing in that theistic,
conscience or religious belief that alone can constitute religion as
understood in the Constitution which fosters feeling of brotherhood,
amity, fraternity and equality of all persons which find their foothold
34 (1983) 1 SCC 51
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in secular aspect of the Constitution. Secular activities and aspects
do not constitute religion which brings under its own cloak every
human activity.
86. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi v. State of U.P.35, this Court held that the religious freedoms
guaranteed by Articles 25 and 26 is intended to be a guide to a community
life and ordains every religion to act according to its cultural and social
demands to establish an egalitarian social order. Articles 25 and 26,
therefore, strike a balance between the rigidity of right of religious belief
and faith and their intrinsic restrictions in matters of religion, religious
beliefs and guaranteed freedom of conscience to commune with his
Cosmos/Creator and realize his spiritual self.
87. Thus, religion believes in conscience and ethical and moral
precepts. The freedom of conscience is what binds a man to his own
conscience and whatever moral or ethical principles regulate the lives of
men. There is a fine distinction between freedom of conscience and
religion. The scope of protection under Article 25 goes beyond religious
beliefs. This provision affords to all persons freedom to beliefs which
may not necessarily be religious but which may spring from one’s
conscience. Freedom of religion, on the other hand, grants one the right
to follow one’s faith, the established form of which gives a set of ethical
norms to its followers and defines the rituals, observances, ceremonies
and modes
of worship.
88. I need to examine the right to freedom of conscience and
religion in light of the restrictions provided under Article 25(1) of the
Constitution. Such right is not just subject to public order, morality and
health but also ‘other provisions of Part III’. This would also include
Article 14 which provides for equality before law. In T.M.A. Pai
Foundation, this Court reiterated that Article 25(1) is not only subject
to public order, morality and health, but also to other provisions of Part
III of the Constitution. It was observed as under:
“82. Article 25 gives to all persons the freedom of conscience and
the right to freely profess, practise and propagate religion. This
right, however, is not absolute. The opening words of Article 25(1)
make this right subject to public order, morality and health, and
also to the other provisions of Part III of the Constitution. This
35 (1997) 4 SCC 606
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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would mean that the right given to a person under Article 25(1)
can be curtailed or regulated if the exercise of that right would
violate other provisions of Part III of the Constitution, or if the
exercise thereof is not in consonance with public order, morality
and health. The general law made by the Government contains
provisions relating to public order, morality and health; these would
have to be complied with, and cannot be violated by any person in
exercise of his freedom of conscience or his freedom to profess,
practise and propagate religion. For example, a person cannot
propagate his religion in such a manner as to denigrate another
religion or bring about dissatisfaction amongst people.”
89. The object of the Government Order was to ensure that there
is parity amongst the students in terms of uniform. It was only to promote
uniformity and encourage a secular environment in the schools. This is
in tune with the right guaranteed under Article 14 of the Constitution.
Hence, restrictions on freedom of religion and conscience have to be
read conjointly along with other provisions of Part III as laid down under
the restrictions of Article 25(1).
Question (iv) - What is the ambit and scope of essential religious
practices under Article 25 of the Constitution?
90. The appellants have contended that wearing of a headscarf is
an essential religious practice followed by the women following Islam
since time immemorial.
It is averred that the same has been provided for
in their religious scriptures and thus is essential to the religion. The
argument is that the impugned Government Order impinges upon their
right of wearing headscarf as an essential religious practice, and is thus
violative of the right guaranteed under Article 25 of the Constitution.
91. To rebut the said argument of essential religious practice, Mr.
Tushar Mehta relied upon a judgment of this Court reported as
Commissioner of Police & Ors. v. Acharya Jagadishwarananda
Avadhuta & Anr.36 wherein, this Court held that essential part of a
religion means the core beliefs upon which a religion is founded. It is
upon the cornerstone of essential parts or practices that the superstructure
of a religion is built, without which a religion will be no religion. The test
to determine whether a part or practice is essential to a religion is to find
out whether the nature of the religion would be changed without that
36 (2004) 12 SCC 770 (Acharya Jagadishwarananda Avadhuta-II)
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part or practice. If taking away of that part or practice results in a
fundamental change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part of the religion.
92. The argument of the learned Solicitor General is that in the
Writ Petition filed titled Aishat Shifa v. State of Karnataka & Ors.,
there is a reference to Verse 31 Chapter 24 and Verse 31 Chapter 34 of
the Holy Quran. In Shaheena & Anr. v. State of Karnataka & Ors.
(Writ Petition No. 3038 of 2022), the petitioners have quoted Verse 26
Chapter 7, Verse 31 Chapter 24 and Verse 59 Chapter 33 of the Holy
Quran indicating that wearing of headscarf is part of the religious identity
and essential in Islamic faith. The reliance was also placed upon the
judgment of the Kerala High Court reported as Amnah Bint Basheer
& Anr. v. Central Board of Secondary Education (CBSE), New Delhi
& Anr.37
93. It is contended by the learned Solicitor General that wearing
of hijab may be a practice, it may be an ideal or a permissible practice,
but to raise it to the level of an essential religious practice, something
more is required to be pleaded and proved and it has to be shown that if
the headscarf is not worn, the identity of the person as a believer in the
faith itself would be jeopardized as explained by this Court in A.S.
Narayana Deekshitulu and Acharya Jagadishwarananda Avadhuta-
II, referred to above.
94. Mr. Prabhuling K. Navadgi, learned
Advocate General referred
to Verse 31 of Surah 24 of the Holy Quran to assert that wearing of a
headscarf is not an essential feature of the Islamic practice. It is argued
that wearing of a headscarf may be a religious practice but is not essential
to the religion as non-following of such practice would not lead a believer
to be non-Muslim. The essential religious practices are those practices,
if not followed, would render the person religion less. Learned Advocate
General of the State of Karnataka argued that the protection under Article
25 is only to the essential religious practices and not to every religious
belief. What constitutes the essential part of religion is primarily to be
ascertained with reference to the doctrine of that religion itself. Article
25(2)(a) contemplates not the regulation by the State of all religious
practices as such, but regulation of essential religious practices which
are economic, commercial or political, though they are associated with
religious practice.
37 AIR 2016 Ker 115
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
[HEMANT GUPTA, J.]
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95. To appreciate the argument raised, I firstly need to examine
the tenets of Muslim Law. In the Mulla’s Mohammedan Law, 5th edition,
2019, it was stated that the Prophet Muhammad himself declared that
the Holy Quran was revealed to him by the angel “Gabriel” in various
portions and at different times. The texts are held by Mohammedans to
be decisive as being the words of God transmitted to man through the
Prophet. It is explained that there are four sources of Mohammedan
Law, namely, (1) the Quran; (2) Hadis, i.e., precepts, actions and sayings
of the Prophet Muhammad, not written down during his lifetime, but
preserved by tradition and handed down by authorized persons; (3) Ijmaa,
i.e., a concurrence of opinion of the companions of Muhammad and his
disciples; and (4) Qiyas, being analogical deductions derived from a
comparison of the first three sources when they do not apply to the
particular case.
96. Still further, five duties38 have been laid down for the Muslims
by the Prophet, the same are reproduced as under:
“(i)
Kalma :- It is the duty of every Muslim to recite kalma.
Kalma implies certain Hymns proclaiming the unity of God
accepting Mohammed as the Prophet.
(ii)
Namaz :- Every Muslim must say prayers (Namaz) five
times a day and on every Friday he must offer his afternoon
prayer at the Mosque.
(iii)
Zakat :- It is the duty of every Muslim to offer Zakat or
charity to the poor and needy.
(iv)
Ramzan :- The
most pious duty of every Muslim is to observe
fasts in the holy month of ‘Ramzan’.
(v)
Haj :- Every Muslim, should go for Haj or pilgrimage to
Mecca at least once in his lifetime.”
97. In same Chapter39, according to the ‘Shariat’, religious
commandment (Hukum) of Allah are of five types, which reads thus:
“(i)
Farz – Five daily prayers (namaz) – One must do strictly.
(ii)
Haram – Drinking wine – One must forbade strictly.
(iii)
Mandub/Additional Prayers on the id – One may do.
38 Page 14 Mulla’s Mohammedan Law, 5th edition, 2019
39 Page 19 Mulla’s Mohammedan Law, 5th edition, 2019
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(iv)
Makrum – Eating certain kinds of fish prohibited – One
may refrain from.
(v)
Jaiz or Mubah – Thousands of Jaiz things, such as travelling
by air – Shariat is indifferent towards it.”
98. The Chapter 740 also gives the description of laws which have
modified the Mohammedan Law. Such statutes are as under:
“(i)
The Indian Contract Act, 1872.
(ii)
The Usuary Law Repeal Act.
(iii)
Usurious Loans Act.
(iv)
The Religious Toleration Act.
(v)
The Freedom of Religion Act, 1850.
(vi)
The Waqf Validating Act.
(vii)
The Shariat Act, 1937.
(viii) The Dissolution of Muslim Marriage Act, 1939.
(ix)
The Special Marriages Act, 1954. (When a Muslim
solemnizes or registers his marriage under this Act, such
marriage and the liability for Mahr, the dissolution of such
marriage and succession to the property of such Muslim
and of the issue of such marriage is not governed by Muslim
Law).
(x)
Constitution of India : The Muslim Law of Pre- emption
stands subject to Act 19(1)(f) of the Constitution.
(xi)
Muslim Law relating to crimes, procedure and slavery stand
abrogated by laws enacted in this regard by the Legislature.”
99. There are various text books interpreting the verses of the
Holy Quran. However, reference is made to the interpretation given by
Abdullah Yusuf Ali, translation in English published alongside the original
Arabic text, completed in Lahore on 4.4.1937. The interpretation by
Yusuf Ali has been referred to by this Court in a number of judgments41.
Mr.
Aditya Sondhi and Mohd. Nizamuddin Pasha have also referred to
40 Page 106 Mulla’s Mohammedan Law, 5th edition, 2019
41 Mohd. Ahmed Khan v. Shah Bano Begum & Ors., (1985) 2 SCC 556; Danial Latifi &
Anr. v. Union of India, (2001) 7 SCC 740; Iqbal Bano v. State of U.P. & Anr., (2007) 6
SCC 785; and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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the Holy Quran by Abdullah Yusuf Ali in their written submissions. The
English translation and meaning ascribed to such translation available
online “The Glorious Quran” read thus:
“Surah 24 Verse 31
31. And say to the believing women that they should lower
their gaze and guard(2984) their modesty; that they should
not display their beauty and ornaments(2985) except what
(must ordinarily) appear thereof; that they should draw their
veils over their bosoms and not display their beauty except
to their husbands, their fathers, their husband’s fathers,
their sons, their husbands’ sons, their brothers or their
brothers’ sons, or their sisters’ sons, or their women or
the slaves whom their right hands possess, or male servants
free of physical needs, or small children who have no sense
of the shame of sex; and that they should not strike their
feet in order to draw attention to their hidden
ornaments.(2986) And O ye Believers! turn ye all together
towards Allah, that ye may attain Bliss.(2987)
2984 The need for modesty is the same in both men and
women. But on account of the differentiation of the sexes in
nature, temperaments, and social life, a greater amount of
privacy is required for women than for men, especially in the
matter of dress and the uncovering of the bosom.
2985 Zinah means both natural beauty and artificial ornaments.
I think both are implied here, but chiefly the former. The woman
is asked not to make a
display of her figure or appear in undress
except to the following classes of people: (1) her husband, (2)
her near relatives who would be living in the same house, and
with whom a certain amount of neglige is permissible; (3) her
women, i.e., her maid-servants, who would be constantly in
attendance on her: some Commentators include all believing
women; it is not good form in a Muslim household for women
to meet other women, except when they are properly dressed;
(4) slaves, male and female, as they would be in constant
attendance (but with the abolition of slavery this no longer
applies); (5) old or infirm men-servants; and (6) infants or small
children before they get a sense of sex. Cf. also 33:59.
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2986 It is one of the tricks of showy or unchaste women to
tinkle their ankle ornaments, to draw attention to themselves.
2987 While all these details of the purity and good form of
domestic life are being brought to our attention, we are clearly
reminded that the chief object we should hold in view is our
spiritual welfare. All our brief life on this earth is a probation,
and we must take our individual, domestic, and social life all
contribute to our holiness, so that we can get the real success
and bliss which is the aim of our spiritual endeavor.(R).”
Surah 33 Verse 36
36. It is not fitting for a Believer, man or woman, when a
matter has been decided by Allah and His Messenger to
have any option about their decision:(3721) if any one
disobeys Allah and His Messenger, he is indeed on a clearly
wrong Path.
3721 We must not put our own wisdom in competition with
Allah’s wisdom. Allah’s decree is often known to us by the
logic of facts. We must accept it loyally, and do the best we
can to help in our own way to carry it out. We must make our
will consonant to Allah’s Will. (R).”
100. The students in one of the writ petitions before the High
Court referred to the following verses from the Holy Quran. Such verses
from the Book “The Glorious Quran” by Yusuf Ali read as under:
“Surah 34 Verse 31
31. The Unbelievers say: “We shall neither believe in this
scripture nor in (any) that (came) before it.” (3834) Couldst
thou but see when the wrong-doers will be
made to stand
before their Lord, throwing back the word (of blame)(3835)
on one another! Those who had been despised will say to
the arrogant ones: (3836) “Had it not been for you, we
should certainly have been believers!”
3834 To the Pagans all scriptures are taboo, whether it be the
Qur’an or any Revelation that came before it. The people of
the Book despised the Pagans, but in their arrogant assumption
of superiority, prevented them, by their example, from accepting
the latest and most universal Scripture when it came in the
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form of the Qur’an. This relative position of men who fancy
themselves on their knowledge, and men whom they despise
but exploit and mislead, always exists on this earth. I have
mentioned the people of the Book and the Pagan Arabs merely
by way of illustration.
3835 One disbelief is as bad as another. There is little to choose
between them. But when the final account will be taken, there
will be mutual recriminations between the one and the other.
3836 The Pagans will naturally say to the people of the Book;
‘You misled us; you had previous Revelations, and you should
have known how Allah sent His Messengers; had it not been
for your bad example, we should have received Allah’s
Revelation and become Believers’. Or the humble followers
will say this to their leaders, or those less gifted will say to
those by whom they were misled and exploited. The dichotomy
is between such as pretentiously held their heads high in the
world and such as they profited by but held in contempt.
Surah 33 Verse 59
59. O Prophet! Tell thy wives and daughters, and the
believing women, (3764) that they should cast their outer
garments over (3765) their persons (when abroad): that is
most convenient, that they should be known (3766) (as such)
and not molested. And Allah is Oft-Forgiving, (3767) Most
Merciful.
3764 This is for all Muslim women, those of the Prophet’s
household, as well as the others. They were asked to cover
themselves with
outer garments when walking around. (R).
3765 J ilbab, plural Jalabib: an outer garment: a long gown
covering the whole body, or a cloak covering the neck and
bosom.
3766 The object was not to restrict the liberty of women but
to protect them from harm and molestation. In the East and
the West a distinctive public dress of some sort or another has
always been a badge of honour or distinction, both among men
and women. This can be traced back to the earliest civilisations.
Assyrian Law in its palmiest days (say, 7th Century B.C.),
enjoined the veiling of married women and forbade the veiling
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of slaves and women of ill fame: see Cambridge Ancient
History, III, 107.
3767 That is, if a Muslim woman sincerely tries to observe
this rule, but owing to human weakness falls short of the ideal,
then “Allah is Oft-Forgiving, Most Merciful” (Cf.24:30-31).
(R).
Surah 7 Verse 26
26. O ye Children of Adam! We have bestowed raiment
(1008) upon you to cover your shame, as well as to be an
adornment to you. But the raiment of righteousness, - that
is the best. Such are among the Signs of Allah, that they
may receive admonition!
1008 There is a double philosophy of clothes here, to correspond
with the double signification of verse 20 above, as explained in
n. 1006. Spiritually, Allah created man “bare and alone” (6:94):
the soul in its naked purity and beauty knew no shame because
it knew no guilt: after it was touched by guilt and soiled by evil,
its thoughts and deeds became its clothing and adornments,
good or bad, honest or meretricious, according to the inner
motives which gave them colour. So in the case of the body: it
is pure and beautiful, as long as it is not defiled by misuse; its
clothing and ornaments may be good or meretricious, according
to the motives in the mind and character; if good, they are the
symbols of purity and beauty; but the best clothing and ornament
we could have comes from righteousness, which covers the
nakedness of sin, and adorns us with virtues. (R).”
101. The Hedaya, commentary on Islamic Laws, 2nd edition was
published in
April, 1870. The same is available online. The reprint of
such publication, word-to-word, line-to-line and page- to-page was
published in the year 1979 by Kitab Bhavan, New Delhi. The interpretation
of the Holy Quran in the Hedaya had been quoted by this Court in a
number of judgments42. Volume I, Book VI of Vows is now regulated by
42 Mohd. Hanif Quareshi & Ors. v. State of Bihar, AIR 1958 SC 731;
Valia Peedikakkandi Katheessa Umma & Ors. v. Pathakkalan Narayanath Kunhamu &
Ors., AIR 1964 SC 275;
N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 SC 792;
and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
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the Penal Code (Note at the end of Volume I); Volume II Book VIII
relating to Larceny stands omitted as now regulated by Penal Code, Act
No. XLV of 1860; Book V and XII dealing Ittak, or the Manumission of
Slaves stands deleted in consequence of the abolition of slavery by Act
No. V of 1843.
102. It is noted that the issue of essential religious practices in the
context of Islamic law has been raised at earlier instances also before
this Court, though for other practices. In a judgment reported as Mohd.
Hanif Quareshi and others v. State of Bihar43, this Court found the
sacrifice of a cow to be not obligatory and essential to the religion of
Islam. The Court negated the argument of the appellants when it was
held that there is “no material on the record before us which will
enable us to say, in the face of the foregoing facts, that the sacrifice
of a cow on that day in an obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the premises, it is not possible
for us to uphold this claim of the petitioners”. This Court held as
under:
“13. Coming now to the arguments as to the violation of the
petitioners’ fundamental rights, it will be convenient to take up
first the complaint founded on Article 25(1)…
What then, we inquire, are the materials placed before us to
substantiate the claim that the sacrifice of a cow is enjoined or
sanctioned by Islam? …
............ All that was placed before us
during the argument were
Surah XXII, Verses 28 and 33, and Surah CVIII. What the Holy
book enjoins is that people should pray unto the Lord and make
sacrifice. We have no affidavit before us by any Maulana explaining
the implications of those verses or throwing any light on this
problem. We, however, find it laid down in Hamilton’s translation
of Hedaya Book XLIII at p. 592 that it is the duty of every free
Mussulman, arrived at the age of maturity, to offer a sacrifice on
the Yd Kirban, or festival of the sacrifice, provided he be then
possessed of Nisab and be not a traveller. The sacrifice established
for one person is a goat and that for seven a cow or a camel. It is
therefore, optional for a Muslim to sacrifice a goat for one person
or a cow or a camel for seven persons. It does not appear to be
43 AIR 1958 SC 731
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obligatory that a person must sacrifice a cow. The very fact of an
option seems to run counter to the notion of an obligatory duty. It
is, however, pointed out that a person with six other members of
his family may afford to sacrifice a cow but may not be able to
afford to sacrifice seven goats…We have, however, no material
on the record before us which will enable us to say, in the face of
the foregoing facts, that the sacrifice of a cow on that day is an
obligatory overt act for a Mussalman to exhibit his religious belief
and idea. In the premises, it is not possible for us to uphold this
claim of the petitioners.”
103. In Mohd. Ahmed Khan v. Shah Bano Begum & Ors.44,
this Court held that the provisions of Muslim Personal Law do not
countenance cases in which the wife is unable to maintain herself after
the divorce. Though the effect of the said judgment was nullified by a
Statute, but the fact remains that the personal law was not approved by
this Court. It was held as under:
“14. These statements in the text books are inadequate to establish
the proposition that the Muslim husband is not under an obligation
to provide for the maintenance of his divorced wife, who is unable
to maintain herself. One must have regard to the entire
conspectus of the Muslim Personal Law in order to determine the
extent, both in quantum and in duration, of the husband’s liability
to provide for the maintenance of an indigent wife who has been
divorced by him. Under that
law, the husband is bound to pay
Mahr to the wife as a mark of respect to her. True, that he may
settle any amount he likes by way of dower upon his wife, which
cannot be less than 10 Dirhams, which is equivalent to three or
four rupees (Mulla’s Mahomedan Law, Eighteenth Edn., para
286, p. 308). But, one must have regard to the realities of life.
Mahr is a mark of respect to the wife. The sum settled by way of
Mahr is generally expected to take care of the ordinary
requirements of the wife, during the marriage and after. But these
provisions of the Muslim Personal Law do not countenance cases
in which the wife is unable to maintain herself after the divorce.
We consider it not only incorrect but unjust, to extend the scope
of the statements extracted above to cases in which a divorced
wife is unable to maintain herself. We are of the opinion that the
44 (1985) 2 SCC 556
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application of those statements of law must be restricted to that
class of cases, in which there is no possibility of vagrancy or
destitution arising out of the indigence of the divorced wife…”
104. The Constitution Bench in a judgment reported as Dr. M.
Ismail Faruqui & Ors. v. Union of India & Ors.45 held that offering
of prayer or worship is a religious practice, but its offering at every
location where such prayers can be offered would not be an essential or
integral part of such religious practice. It was held as under:
“77. It may be noticed that Article 25 does not contain any
reference to property unlike Article 26 of the Constitution. The
right to practise, profess and propagate religion guaranteed under
Article 25 of the Constitution does not necessarily include the
right to acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and every place of
worship so that any hindrance to worship at a particular place per
se may infringe the religious freedom guaranteed under Articles
25 and 26 of the Constitution. The protection under Articles 25
and 26 of the Constitution is to religious practice which forms an
essential and integral part of the religion. A practice may be a
religious practice but not an essential and integral part of practice
of that religion.
78. While offer of prayer or worship is a religious practice, its
offering at every location where such
prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.
xx
xx
xx
82. … A mosque is not an essential part of the practice of the
religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open…”
45 (1994) 6 SCC 360
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105. Later, a three-Judges Bench judgment of this Court reported
as Javed & Ors. v. State of Haryana & Ors.46 negated the argument
that no religious scripture or authority has been brought to the notice of
the Court which provides that marrying less than four women or abstaining
from procreating a child from each and every wife would be irreligious
or offensive to the dictates of the religion. It was held as under:
“44. The Muslim law permits marrying four women. The personal
law nowhere mandates or dictates it as a duty to perform four
marriages. No religious scripture or authority has been brought to
our notice which provides that marrying less than four women or
abstaining from procreating a child from each and every wife in
case of permitted bigamy or polygamy would be irreligious or
offensive to the dictates of the religion. In our view, the question
of the impugned provision of the Haryana Act being violative of
Article 25 does not arise...”
106. In Shayara Bano, Justice Nariman, speaking for himself
and Justice Lalit, noted that “a practice does not acquire the sanction
of religion simply because it is permitted” and applied the essential
religious practices test. It was held as under:
“54. … 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 Javed [Javed
v. State of Haryana, (2003) 8 SCC 369 : 2004 SCC (L&S) 561],
therefore, this would not form part of any essential religious practice.
Applying the test stated in Acharya Jagadishwarananda [Commr.
of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12
SCC 770], 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.
107. Justice Kurian Joseph, concurring with Justices Nariman and
Lalit, held that on an examination of the Holy Quran and Islamic legal
scholarship, the practice of triple talaq could not be considered an essential
religious practice. He opined that “merely because a practice has
continued for long, that by itself cannot make it valid if it has been
expressly declared to be impermissible”.
46 (2003) 8 SCC 369
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108. The judgments referred to above had the direct or indirect
effect on modifying the understanding of the verses of the Holy Quran,
apart from the statutes mentioned by Mulla in his book referred to above.
But I would examine the question that if the believers of the faith hold an
opinion that wearing of hijab is an essential religious practice, the question
is whether the students can seek to carry their religious beliefs and
symbols to a secular school.
109. A reading of the judgment in Sri Shirur Mutt shows an
argument that secular activities which may be associated with religion
but do not really constitute an essential part of it are amenable to State
regulation. The power to legislate in respect of all secular activities was
not accepted. The question examined was the scope of clause (b) of
Article 26 which speaks of management of its own “affairs in matters of
religion.” The language undoubtedly suggests that there could be other
affairs of a religious denomination or a section thereof which are not
matters of religion and to which the guarantee given by this clause would
not apply. The question is, where is the line to be drawn between what
are matters of religion and what are not. It was held that what
constitutes an essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. This Court held as
under:
“17. … 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 or belief… The
guarantee under our 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 by the use of
the expression “practice of religion” in Article 25.”
xxx
xxx
xxx
19. … 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 … all these would be regarded as
parts of religion and the 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
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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).”
110. In Ratilal Panachand Gandhi v. State of Bombay47, it has
been held that “religious practices or performances of acts in
pursuance of religious belief are as much a part of religion as faith
or belief in particular doctrines and the distinction between matters
of religion and those of secular administration of religious
properties may, at times, appear to be a thin one. But in cases of
doubt, the court should take a common sense view and be actuated
by considerations of practical necessity.”
111. In a judgment reported as Durgah Committee, Ajmer v.
Syed Hussain Ali48, the challenge was to the Durgah Khwaja Saheb
Act 36 of 1955. The challenge was in respect of freedom guaranteed
under Article 26I and (d) of the Constitution. The property in respect of
which claim had been made consisted of offerings made either in or
outside the shrine. This Court quoted from Sri Shirur Mutt to say that
the word “religion” has not been defined in the Constitution and is a term
which is hardly susceptible of any rigid definition. It was held that the
practices, though religious, may have sprung from merely superstitious
beliefs and may in that sense be extraneous and unessential accretions
to religion itself, cannot be accepted unless such practices are found to
constitute an essential and integral part
of a religion and their claim for
the protection under Article 26 may have to be carefully scrutinized. It
was held that protection must be confined to such religious practices as
are an essential and an integral part of it and no other. This Court held
that Articles 25 and 26 together safeguard the citizen’s right to freedom
of religion. It was observed as under:
“33. … …Whilst we are dealing with this point it may not be out
of place incidentally to strike a note of caution and observe that in
order that the practices in question should be treated as a part of
religion they must be regarded by the said religion as its essential
and integral part; otherwise even purely secular practices which
are not an essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26.
47 AIR 1954 SC 388
48 AIR 1961 SC 1402
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Similarly, even practices though religious may have sprung from
merely superstitious beliefs and may in that sense be extraneous
and unessential accretions to religion itself. Unless such practices
are found to constitute an essential and integral part of a
religion their claim for the protection under Article 26 may
have to be carefully scrutinised; in other words, the protection
must be confined to such religious practices as are an essential
and an integral part of it and no other.” (Emphasis Supplied)
112. In Sri Venkataramana Devaru & Ors. v. State of Mysore
& Ors.49, the question examined was whether the right of a religious
denomination to manage its own affairs in matters of religion guaranteed
under Article 26(b) is subject to, and can be controlled by, a law protected
by Article 25(2)(b). This Court held that Article 25 deals with the rights
of individuals and Article 26 protects the rights of denominations. It was
observed as follows:
“29. The result then is that there are two provisions of equal
authority, neither of them being subject to the other. The question
is how the apparent conflict between them is to be resolved. The
rule of construction is well settled that when there are in an
enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that, if possible, effect could
be given to both. This is what is known as the rule of harmonious
construction. Applying
this rule, if the contention of the appellants
is to be accepted, then Article 25(2)(b) will become wholly nugatory
in its application to denominational temples, though, as stated above,
the language of that Article includes them. On the other hand, if
the contention of the respondents is accepted, then full effect can
be given to Article 26(b) in all matters of religion, subject only to
this that as regards one aspect of them, entry into a temple for
worship, the rights declared under Article 25(2)(b) will prevail.
While, in the former case, Article 25(2)(b) will be put wholly out
of operation, in the latter, effect can be given to both that provision
and Article 26(b). We must accordingly hold that Article 26(b)
must be read subject to Article 25(2)(b).”
113. In a later judgment reported as Tilkayat Shri Govindlalji
Maharaj Etc. v. State of Rajasthan & Ors.50, the validity of Nathdwara
49 AIR 1958 SC 255
50 AIR 1963 SC 1638
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Temple Act, 1959 was the subject matter of consideration. It was held
that the protection under Article 25 is not absolute and the Court may
have to enquire whether the practice in question is religious in character
and if it is, whether it can be regarded as an integral or essential part of
the religion. It was held as under:
“55. Articles 25 and 26 constitute the fundamental rights to freedom
of religion guaranteed to the citizens of this country. Article 25(1)
protects the citizen’s fundamental right to freedom of conscience
and his right freely to profess, practice and propagate religion.
The protection given to this right is, however, not absolute. It
is subject to public order, morality and health as Article 25(1) itself
denotes. It is also subject to the laws, existing or future, which are
specified in Article 25(2)….
xxx
xxx
xxx
57. In deciding the question as to whether a given religious
practice is an integral part of the religion or not, the test
always would be whether it is regarded as such by the
community following the religion or not. This formula may in
some cases present difficulties in its operation. Take the case of a
practice in relation to food or dress.….. This question will always
have to be decided by the Court and in doing so, the Court may
have to enquire whether the practice in question is religious in
character and if it is, whether it can be regarded as an integral
or essential part of the religion, and the finding of the
Court
on such an issue will always depend upon the evidence
adduced before it as to the conscience of the community and
the tenets of its religion. It is in the light of this possible
complication which may arise in some cases that this Court struck
a note of caution in the case of Durgah Committee Ajmer v.
Syed Hussain Ali [(1962) 1 SCR 383 at p. 411] and observed
that in order that the practices in question should be treated as a
part of religion they must be regarded by the said religion as its
essential and integral part; otherwise even purely secular practices
which are not an essential or an integral part of religion are apt to
be clothed with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26.”
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114. In Acharya Jagdishwaranand Avadhuta & Ors. v.
Commissioner of Police, Calcutta & Anr.51, the question was whether
performance of Tandava dance is a religious rite or practice essential to
the tenets of the religious faith of the followers of Ananda Marga. Such
argument was not accepted, when this Court held that “even conceding
that Tandava dance has been prescribed as a religious rite for every
follower of the Ananda Marga it does not follow as a necessary
corollary that Tandava dance to be performed in the public is a
matter of religious rite”. Later, in a judgment reported as Acharya
Jagadishwarananda Avadhuta-II, it was held that the protection
guaranteed under Articles 25 and 26 of the Constitution is not confined
to matters of doctrine or belief but extends to acts done in pursuance of
religion and, therefore, contains a guarantee for rituals, observances,
ceremonies and modes of worship which are essential or integral part of
religion. What constitutes an integral or essential part of religion has to
be determined with reference to its doctrines, practices, tenets, historical
background of the given religion. This Court held as under:
“9. … What is meant by “an essential part or practices of a religion”
is now the matter for elucidation. Essential part of a religion means
the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious
belief. It is upon the cornerstone of essential parts or practices
that the superstructure of a religion is built, without which a religion
will be no religion. Test to determine whether a part or practice is
essential to a religion is to find out whether the nature of the
religion will be changed without that part or practice. If the taking
away of that part or practice could result in a fundamental change
in the character of that religion or in its belief, then such part
could be treated as an essential or integral part. There cannot be
additions or subtractions to such part because it is the very essence
of that religion and alterations will change its fundamental
character. It is such permanent essential parts which are protected
by the Constitution. Nobody can say that an essential part or
practice of one’s religion has changed from a particular date or
by an event. Such alterable parts or practices are definitely not
the “core” of religion whereupon the belief is based and religion is
founded upon. They could only be treated as mere embellishments
to the non-essential (sic essential) part or practices.”
51 (1983) 4 SCC 522
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115. In the Constitution Bench judgment reported as Young
Lawyers Association & Ors. (Sabarimala Temple, In Re) v. State of
Kerala & Ors.52, it was held as under:
“208. In clause (1), Article 25 protects the equal entitlement
of all persons to a freedom of conscience and to freely profess,
protect and propagate religion. By conferring this right on
all persons, the Constitution emphasises the universal nature
of the right. By all persons, the Constitution means exactly
what it says : every individual in society without distinction
of any kind whatsoever is entitled to the right. By speaking
of an equal entitlement, the Constitution places every
individual on an even platform. Having guaranteed equality
before the law and the equal protection of laws in Article 14, the
draftspersons specifically continued the theme of an equal
entitlement as an intrinsic element of the freedom of conscience
and of the right to profess, practise and propagate religion. There
are three defining features of clause (1) of Article 25 : first, the
entitlement of all persons without exception, second, the
recognition of an equal entitlement; and third, the recognition
both of the freedom of conscience and the right freely to profess,
practise and propagate religion. The right under Article 25(1) is
evidently an individual right for, it is in the individual that a
conscience inheres. Moreover, it is the individual who professes,
practises and propagates religion. Freedom of
religion in Article
25(1) is a right which the Constitution recognises as dwelling in
each individual or natural person.
209. Yet, the right to the freedom of religion is not absolute. For
the Constitution has expressly made it subject to public order,
morality and health on one hand and to the other provisions of
Part III, on the other. The subjection of the individual right to the
freedom of religion to the other provisions of the Part is a nuanced
departure from the position occupied by the other rights to freedom
recognised in Articles 14, 15, 19 and 21. While guaranteeing
equality and the equal protection of laws in Article 14 and its
emanation, in Article 15, which prohibits discrimination on grounds
of religion, race, caste, sex or place of birth, the Constitution does
not condition these basic norms of equality to the other provisions
52 (2019) 11 SCC 1
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of Part III. Similar is the case with the freedoms guaranteed by
Article 19(1) or the right to life under Article 21. The subjection
of the individual right to the freedom of religion under Article 25(1)
to the other provisions of Part III was not a matter without
substantive content. Evidently, in the constitutional order of
priorities, the individual right to the freedom of religion was not
intended to prevail over but was subject to the overriding
constitutional postulates of equality, liberty and personal freedoms
recognised in the other provisions of Part III.
210. Clause (2) of Article 25 protects laws which existed at the
adoption of the Constitution and the power of the State to enact
laws in future, dealing with two categories. The first of those
categories consists of laws regulating or restricting economic,
financial, political or other secular activities which may be
associated with religious practices. Thus, in sub-clause (a) of
Article 25(2), the Constitution has segregated matters of religious
practice from secular activities, including those of an economic,
financial or political nature. The expression “other secular activity”
which follows upon the expression “economic, financial, political”
indicates that matters of a secular nature may be regulated or
restricted by law. The fact that these secular activities are
associated with or, in other words, carried out in conjunction with
religious practice,
would not put them beyond the pale of legislative
regulation. The second category consists of laws providing for (i)
social welfare and reform; or (ii) throwing open of Hindu religious
institutions of a public character to all classes and sections of
Hindus. The expression “social welfare and reform” is not
confined to matters only of the Hindu religion. ..............”
116. In Bijoe Emmanuel v. State of Kerala53, it was held that
“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". This Court upheld the right of the students
belonging to Jehovah’s Witnesses not to sing National Anthem in the
school prayer though the students stood at the time of singing of the
National Anthem. In the said case, the circular of the State Government
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dated 18.2.1970 was in question mandating that all schools in the State
shall have morning assembly and that the whole school shall sing National
Anthem in the assembly. The circular was not restricted to secular schools
only but to all schools. The said judgment is of no help to the arguments
raised as it does not deal with secular schools only.
117. Thus, to sum up, the essential religious practice doctrine was
developed when the State interfered with certain practices qua religious
places or religious festivities or performance of religious rituals in public
or where such practices curtailed fundamental rights such as:
(i)
In Sri Shirur Mutt, the statute interfered with the
management of the Mutt.
(ii)
In Ratilal Panachand Gandhi, a notification issued under
the Bombay Public Trusts Act was under challenged which
covered the temples and Mutt entitling the Government to
control them through the Charity Commissioner.
(iii)
In Durgah Committee, the challenge was to the
constitutional validity of the Dargah Khwaja Saheb Act,
1955 on the ground that it interferes with the right of
management of the Durgah.
(iv)
In Tilkayat Shri Govindlalji Maharaj, the validity of
Nathdwara Temple Act, 1959 was challenged on the ground
that all the properties of the Nathdwara Temple are the
private properties of the appellant and that the State
legislature was not competent to enact the Act. It was the
argument that even if Nathdwara Temple was held to be a
public temple,
the appellant as a Mahant or a Shebiat had a
beneficial interest in the office of the high priest as well as
the properties of the temple as the rights of the appellant
under Articles 14, 19(1)(f) and 31(2) of the Constitution of
India have been contravened.
(v)
In Dawoodi Bohra, the religious faith and tenets of
Dawoodi Bohra community conferring power of
excommunication from the community on its religious head
as part of the management of the religious affairs under
Article 26(b) of the Constitution was upheld.
(vi)
The Shayara Bano case relating to triple talaq was in
respect of gender equality granted under Articles 14 and
15 of the Constitution of India.
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118. The essential religious practice in the abovementioned cases
related to (i) right of management of places of worship, (ii) right of
individual qua places of worship and (iii) curtailment of fundamental
rights of individuals through religious practices. The claim of the appellants
is not to perform a religious activity in a religious institution but to wear
headscarf in public place as a matter of social conduct expected from
the believers of the faith. But in the present, the students want to subjugate
their freedom of choice of dress to be regulated by religion than by the
State while they are in fact students of a state school. The equality
before law is to treat all citizens equally, irrespective of caste, creed, sex
or place of birth. Such equality cannot be breached by the State on the
basis of religious faith.
119. The Constitution has negatively worded Article 25(2). Article
25(2)(a) gives primacy to laws made by competent legislature for
regulation of secular aspects and Article 25(2)(b) gives primacy to “social
welfare” and “reform”. In other words, if the State seeks to regulate the
economic, political, financial or other secular aspects connected with
religion, the State law is to have primacy over the proposed right. Similarly,
if a particular practice/belief/part of any religion is in existence and is
found to be subjected to either “social welfare” and “reform”, such right
will have to give way to
“social welfare” and “reform”.
120. It is reiterated that Article 25(2) being negatively couched is
clearly an enabling provision which provides the power to the State in
the matters mentioned therein. The said provision does not curtail or
restrict the otherwise positive right under Article 25(1) in the absence of
any intervention by the State in the nature of legislative or executive
power.
121. Justice H.R. Khanna had quoted the statement of K.
Santhanam in Kesavananda Bharati in respect of social revolution to
get India out of the medievalism based on factors like birth, religion,
custom, and community and reconstruct her social structure on modern
foundations of law, individual merit, and secular education. I find that
religion is not to be understood in a narrow sectarian sense but by
encompassing our ethos that all should be treated alike. Secular State
means rising above all differences of religions, and attempting to secure
the good of all its citizens irrespective of their religious beliefs and
practices. The faith or belief of a person is immaterial from the point of
view of the State. For the State, all are equal and all are entitled to be
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treated equally. The Constitutional promises of social justice, liberty of
belief, faith or worship and equality of status and of opportunity cannot
be attained unless the State eschews the religion, faith or belief of a
person from its consideration altogether while dealing with him.
Secularism is thus more than a passive attitude of religious tolerance. It
is a positive concept of equal treatment of all religions. Therefore, the
object of the State is to bridge the gap between different sections of the
society and to harmonize the relationship between the citizens to ensure
growth of community in all spheres i.e., social, economic and political.
122. The appellants have also made a comparison with the rights
of the followers of the Sikh faith by arguing that since Kirpan is allowed
in terms of Explanation I to Article 25, therefore, the students who want
to wear headscarf should be equally protected as in the case of the
followers of the Sikh students. The Full Bench of the Punjab & Haryana
High Court in Gurleen Kaur & Ors. v. State of Punjab & Ors.54 held
that the essential religious practice of the followers of Sikh faith includes
retaining hair unshorn, which is one of the most important and fundamental
tenets of the Sikh religion. The Full Bench of the High Court held as
under:
“128 A perusal of explanation I under Article 25 of the Constitution
of India reveals, that wearing and carrying a “kirpan” by Sikhs is
deemed to be included in the
profession of the Sikh religion. During
the course of examining historical facts, legislation on the ‘Sikh
religion’, the “Sikh rehatmaryada”. the “Sikh ardas” and the views
of authors and scholars of the Sikh religion, we arrived at the
conclusion that wearing and carrying of “kirpans” though an
important and significant aspect of the Sikh religion, is nowhere
close to the importance and significance of maintaining hair
unshorn. If the Constitution of India itself recognizes wearing and
carrying of “kirpans” as a part of the profession of the Sikh religion,
we have no hesitation, whatsoever, to conclude that wearing hair
unshorn must essentially be accepted as a fundamental
requirement in the profession of the Sikh religion. For the present
controversy, we hereby, accordingly, hold that retaining hair unshorn
is one of the most important and fundamental tenets of the Sikh
religion. In fact, it is undoubtedly a part of the religious
consciousness of the Sikh faith.”
54 2009 SCC OnLine P& H 6132
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123. It appears that no appeal has been filed against the judgment
of the Full Bench. Thus, the said judgment is final as on today. The issue
in the present appeals is not the essential religious practices of the people
following Sikh faith. It would not be proper to discuss the essential
religious practices of the followers of the said faith without hearing them.
The practices of each of the faith have to be examined on the basis of
the tenets of that religion alone. The essential religious practices of the
followers of Sikh faith cannot be made basis of wearing of hijab/headscarf
by the believers of Islamic faith.
124. Mr. Mohd. Nizamuddin Pasha relied upon a Constitution Bench
judgment of this Court reported as M. Siddiq (Dead) through LRs.
(Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.55
wherein this Court held that Courts should not enter into an area of
theology and attempt to interpret religious scriptures. This Court held as
under:
“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
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 practise 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
55 (2020) 1 SCC 1
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significant factor which shapes the manner in which religion is
practised. In the plural diversity of religious beliefs as they are
practised 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 the submission made by
Mr Mishra. Our Court is founded on and owes its existence to a
constitutional order. We must firmly reject 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.”
125. There is no dispute about the proposition canvassed. The
practice of wearing of hijab may be a ‘religious practice’ or an ‘essential
religious practice’ or it may be social conduct for the women of Islamic
faith. The interpretations by the believers of the faith about wearing of
headscarf is the belief or faith of an individual. The religious belief cannot
be carried to a secular school maintained out of State funds. It is open to
the students to carry their faith in a school which permits them to wear
Hijab or any other mark, may be tilak, which can be identified to a person
holding a particular religious belief
but the State is within its jurisdiction
to direct that the apparent symbols of religious beliefs cannot be carried
to school maintained by the State from the State funds. Thus, the practice
of wearing hijab could be restricted by the State in terms of the
Government Order.
Question (v)- Whether fundamental rights of freedom of expression
under Article 19(1)(a) and right of privacy under Article 21 mutually
exclusive or are they complementary to each other; and whether
the Government Order does not meet the injunction of
reasonableness for the purposes of Article 21 and Article 14?
126. It is argued that a citizen is entitled to express oneself by not
just wearing a dress of her choice, but also in the context of her cultural
traditions, and that such dress which allows others to identify that she
belongs to a particular community, embraces a particular culture, and
represents the values of that culture.
127. It is submitted that there cannot be any law which prohibits
such expression as long as it does not disturb the public order or violates
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the accepted norms of decency and morality as prescribed by law. It is
contended that it is the responsibility of the State to protect the composite
culture of India, but the same has been intervened through the
Government Order, contrary to the rights enshrined in the Constitution.
The argument is also as to whether, this right to express herself by wearing
a hijab, stops at the school gate and that beyond the school gate, she has
no right to express herself to convey to others that she embraces a
certain culture and she wishes to identify herself with that culture. Such
expression, at the time when the notification was issued, neither had the
tendency to, nor was there any evidence to show that it, in any way,
disturbed public order, or was violative of decency or morality. The rights
and duties conferred under the aforementioned provisions transcends
the boundaries of the school gate. A citizen or student does not forego
her fundamental rights and protections guaranteed under the Constitution,
which includes the freedom to express her culture, the moment she steps
into the school premises. It is also submitted that wearing an article of
clothing, reflecting the distinct culture of a citizen, is consistent with the
fundamental right of a citizen to conserve her culture under Article 29(1)
and it is the fundamental duty of citizens to preserve and protect that
culture which is part of the rich heritage of India.
128.
The argument of the appellants is based upon the Preamble
of the Government Order dated 5.2.2022 wherein it was recited that
prohibition of a headscarf or a garment covering the head is not violative
of Article 25 of the Constitution, apart from the fact that it is in terms of
the Act and the rules framed thereunder. It is also argued that the State
Government has not mentioned the role of Popular Front of India in the
order passed, therefore, the State Government is not justified to refer to
Popular Front of India during the course of arguments. In other words,
the State cannot supplement the reasons than what is mentioned in the
order.
129. It is averred that the Preamble refers to the three judgments
of the High Courts as discussed above and a judgment of this Court
reported as Asha Ranjan v. State of Bihar & Ors.56. The contention is
that the judgment in Fathima Thasneem (Minor) & Anr. v. The State
of Kerala & Ors.57 of the Kerala High Court does not support the stand
of the State Government, whereas, the judgment in Asha Ranjan is not
56 (2017) 4 SCC 397
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in respect of wearing of a headscarf, therefore, to rely upon the said
judgment to convey that wearing of headscarf is not in violation of Article
25 shows complete non-application of mind. The State cannot thus
supplement the reasons in support of the prohibition to use headscarf
before the High Court or before this Court.
130. Reliance has been placed upon Mohinder Singh Gill &
Anr. v. Chief Election Commissioner, New Delhi & Ors.58, wherein it
was held that when a statutory functionary makes an order based on
certain grounds, its validity must be judged by the reasons so mentioned
and it cannot be supplemented by fresh reasons in the shape of affidavit
or otherwise. Otherwise, an order bad in the beginning, may, by the time
it comes to Court on account of a challenge, get validated by additional
grounds later brought out.
131. In Maneka Gandhi v. Union of India & Anr.59, this Court
held that even if a right is not specifically named in Article 19(1), it may
still be a fundamental right covered by some clause of that article, if it is
an integral part of a named fundamental right. It was observed that
“….be that as it may, the law is now settled, as I apprehend it, that
no article in Part III is an island but part of a continent, and the
conspectus of the whole part gives the direction and correction
needed for interpretation of these basic provisions. Man is not
dissectible into separate limbs and, likewise, cardinal rights in an
organic constitution,
which make man human have a synthesis. The
proposition is indubitable that Article 21 does not, in a given
situation, exclude Article 19 if both rights are breached.”
132. In National Legal Services Authority, this Court held that
Article 19(1)(a) of the Constitution states that all citizens shall have the
right to freedom of speech and expression, which includes one’s right to
expression of his self-identified gender. It was held as under:
“69. Article 19(1) of the Constitution guarantees certain
fundamental rights, subject to the power of the State to impose
restrictions from (sic on) exercise of those rights. The rights
conferred by Article 19 are not available to any person who is not
a citizen of India. Article 19(1) guarantees those great basic rights
which are recognised and guaranteed as the natural rights inherent
58 (1978) 1 SCC 405
59 (1978) 1 SCC 248
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in the status of the citizen of a free country. Article 19(1)(a) of
the Constitution states that all citizens shall have the right to
freedom of speech and expression, which includes one’s right to
expression of his self-identified gender. The self-identified gender
can be expressed through dress, words, action or behaviour or
any other form. No restriction can be placed on one’s personal
appearance or choice of dressing, subject to the restrictions
contained in Article 19(2) of the Constitution.”
133. In Devidas Ramachandra Tuljapurkar v. State of
Maharashtra & Ors.60, this Court held as under:
“93. Having stated about the test that is applicable to determine
obscenity we are required to dwell upon the right to freedom of
speech and expression. The words, “freedom of speech and
expression” find place in the association words “liberty of thought,
expression, belief, faith and worship”, which form a part of the
Preamble of the Constitution. The Preamble has its own sanctity
and the said concepts have been enshrined in the Preamble.
xxx
xxx
99. Interpreting Article 19(1)(a) of the Constitution, the test is
always to see the said article in aid of the Preambular objectives
which form a part of the basic structure of the Constitution. Article
19(1)(a) is intrinsically linked with the Preambular objectives and
it is the duty of the Court to progressively realise the values of the
Constitution. In Maneka Gandhi v. Union of
India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , it has been held
: (SCC p. 280, para 5)
“5. … It is indeed difficult to see on what principle we can
refuse to give its plain natural meaning to the expression
‘personal liberty’ as used in Article 21 and read it in a narrow
and restricted sense so as to exclude those attributes of personal
liberty which are specifically dealt with in Article 19. We do
not think that this would be a correct way of interpreting the
provisions of the Constitution conferring fundamental rights.
The attempt of the Court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their
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meaning and content by a process of judicial construction. The
wavelength for comprehending the scope and ambit of the
fundamental rights has been set by this Court in R.C. Cooper
case [Rustom Cawasjee Cooper v. Union of India, (1970) 2
SCC 298] and ....that each freedom has different dimensions
and there may be overlapping between different fundamental
rights and therefore it is not a valid argument to say that the
expression ‘personal liberty’ in Article 21 must be so interpreted
as to avoid overlapping between that article and Article 19(1).
The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have….”
134. In St. Stephen’s College v. University of Delhi61, this Court
held that it is essential that there should be proper mix of students of
different communities in all educational institutions. It has been held as
under:
“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
institutions.”
135. In Navtej Singh Johar & Ors. v. Union of India62, the
freedom of expression was referred to observe that the transgender
persons have a right to express their self-identified gender by way of
speech, mannerism, behavior, presentation and clothing, etc. The said
61 (1992) 1 SCC 558
62 (2018) 10 SCC 1
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS.
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