SC on HIJAB- 2022

Aishat Shifa       v.           State of Karnataka        [SC  Oct 2022]

Note: The Supreme Court delivered a split judgment in this case. We present here separate judgments of both the Judges.

Judgment delivered by J. Hemant Gupta:

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.

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.

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.

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).

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.

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.

Judgment delivered by J. Sudhanshu Dhulia:

The test of ERP has been laid down by this Court in the past to resolve disputes of a particular nature, which we shall discuss in a while. By and large these were the cases where a challenge was made to State interference on what was claimed to be an “essential religious practice.” What was raised was the protection of Article 25 as well as Article 26 of the Constitution of India. In other words, these were the cases where both Article 25 (1) and (2) and Article 26 were in play. Essentially, these were the cases where the rituals and practices of a denomination or a sect of a particular religion sought protection against State intervention. In the case at hand, the question is not merely of religious practice or identity but also of ‘freedom of expression,’ given to a citizen under Article 19(1)(a), and this makes this case different.

In any case as to what constitutes an Essential Religious Practice is a matter which is pending consideration before a Nine Judge Constitutional bench of this Court and therefore in any case it may not be proper for me to go any further into this aspect.

All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement. The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to my logic or  reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and- order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences.

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.

We live in a Democracy and under the Rule of Law, and the Laws which govern us must pass muster the Constitution of India. Amongst many facets of our Constitution, one is Trust. Our Constitution is also a document of Trust. It is the trust the minorities have reposed upon the majority.

Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.

The unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!

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).

Consequently, I allow all the appeals as well as the Writ Petitions, but only to the extent as ordered below:

1. a) The order of the Karnataka High Court dated March 15, 2022, is hereby set aside;
2. b) The G.O. dated February 5, 2022 is hereby quashed and,
3. c) There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.