Hijab ban case - Karnataka High Court judgement - Smt Resham vs State of Karnataka

Hijab ban case - Karnataka High Court judgement 

Karnataka High Court has pronounced its verdict on Hijab Ban Case. Full Bench of Karnataka High Court presided by Chief Justice has upheld the Hijab Ban GO of 5th February 2022. High Court pronounced that Hijab is not essential religious practice in Islam and and the school uniform is not violative of fundamental rights and held it to be reasonable restriction.

Hijab Ban Karnataka High Court Decision| Hijab Ban पर हाई कोर्ट का बड़ा फैसला | The Constitution

Hijab ban case - Karnataka High Court judgement

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 15TH DAY OF MARCH, 2022

PRESENT

THE HON’BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

AND

THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT

AND

THE HON’BLE MS. JUSTICE J. M. KHAZI

WRIT PETITION NO. 2347/2022 (GM-RES) C/w

WRIT PETITION NO. 2146/2022 (GM-RES),

WRIT PETITION NO. 2880/2022 (GM-RES),

WRIT PETITION NO. 3038/2022 (GM-RES),

WRIT PETITION NO. 3424/2022 (GM-RES-PIL),

WRIT PETITION NO. 4309/2022 (GM-RES),

WRIT PETITION NO. 4338/2022 (GM-RES-PIL)

IN W.P. NO.2347 OF 2022

BETWEEN:

1 . SMT RESHAM,

D/O K FARUK,

AGED ABOUT 17 YEARS,

THROUGH NEXT FRIEND

 SRI MUBARAK,

S/O F FARUK,

AGED ABOUT 21 YEARS,

BOTH RESIDING AT NO.9-138,

PERAMPALI ROAD,

SANTHEKATTE,

SANTHOSH NAGARA, MANIPAL ROAD,

KUNJIBETTU POST,

UDUPI, KARNATAKA-576105.

… PETITIONER

(BY PROF. RAVIVARMA KUMAR, SENIOR ADVOCATE FOR

SHRI ABHISHEK JANARDHAN, SHRI ARNAV. A. BAGALWADI &

SHRI SHATHABISH SHIVANNA, ADVOCATES)

2

AND:

1 . STATE OF KARNATAKA,

REPRESENTED BY THE PRINCIPAL SECRETARY,

DEPARTMENT OF PRIMARY AND

SECONDARY EDUCATION

2 . GOVERNMENT PU COLLEGE FOR GIRLS

BEHIND SYNDICATE BANK

NEAR HARSHA STORE

UDUPI

KARNATAKA-576101

REPRESENTED BY ITS PRINCIPAL

3 . DISTRICT COMMISSIONER

UDUPI DISTRICT

MANIPAL

AGUMBE - UDUPI HIGHWAY

ESHWAR NAGAR

MANIPAL, KARNATAKA-576104.

4 . THE DIRECTOR

KARNATAKA PRE-UNIVERSITY BOARD

DEPARTMENT OF PRE-UNIVERSITY EDUCATION

KARNATAKA, 18TH CROSS ROAD,

SAMPIGE ROAD,

MALESWARAM,

BENGALURU-560012.

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI,

SHRI SURYANSHU PRIYADARSHI &

SHRI ANANYA RAI, ADVOCATES FOR

RESPONDENTS 1 TO 3

SHRI DEEPAK NARAJJI, ADVOCATE IN IA 2/2022

SHRI KALEESWARAM RAJ & RAJITHA T.O. ADVOCATES IN

IA 3/2022 & IA 7/2022

SMT. THULASI K. RAJ & RAJITHA T.O ADVOCATES IN

IA 4/2022 & IA 6/2022

SHRI SUSHAL TIWARI, ADVOCATE IN IA 5/2022

SHRI BASAVAPRASAD KUNALE &

SHRI MOHAMMED AFEEF, ADVOCATES IN IA 8/2022

SHRI AKASH V.T. ADVOCATE IN IA 9/2022

SHRI R. KIRAN, ADVOCATE, IN IA 10/2022

SHRI AMRUTHESH N.P., ADVOCATE IN IA 11/2022

3

SHRI MOHAMMAD SHAKEEB, ADVOCATE IN IA 12/2022

Ms. MAITREYI KRISHNAN, ADVOCATE IN IA 13/2022

SHRI ADISH C. AGGARWAL, SENIOR ADVOCATE IN IA 14/2022,

IA 18/2022, IA 19/2022 & IA 21/2022

SHRI GIRISH KUMAR. R., ADVOCATE, IN IA 15/2022

Smt. SHUBHASHINI. S.P. PARTY-IN-PERSON IN IA 16/2022

SHRI ROHAN KOTHARI, ADVOCATE IN IA 17/2022

SHRI RANGANATHA P.M., PARTY-IN-PERSON IN IA 20/2022)

 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE

RESPONDENT No. 2 NOT TO INTERFERE WITH THE PETITIONERS

FUNDAMENTAL RIGHT TO PRACTICE THE ESSENTIAL PRACTICES

OF HER RELIGION, INCLUDING WEARING OF HIJAB TO THE

RESPONDENT No. 2 UNIVERSITY WHILE ATTENDING CLASSES AND

ETC.

IN W.P. NO.2146 OF 2022

BETWEEN:

1 . AYESHA HAJEERA ALMAS

AGED ABOUT 18 YEARS,

D/O MUPTHI MOHAMMED ABRURUL,

STUDENT,

REPRESENTED BY HER MOTHER KARANI,

SADIYA BANU

W/O MUPTHI MOHAMMED ABRURUL,

AGED ABOUT 40 YEARS,

R/AT NO 2-82 C KAVRADY,

OPP TO URDU SCHOOL,

KANDLUR VTC KAVRADY,

P O KAVRADI,

KUNDAPURA UDUPI 576211

2 . RESHMA

AGE ABOUT 17 YEARS

D/O K FARUK

STUDENT

REPRESENTED BY HER MOTHER

RAHMATH W/O K FARUK

AGED ABOUT 45 YEARS

R/AT NO 9-138 PERAMPALLI ROAD

AMBAGILU SANTOSH NAGAR

SANTHEKATTE UDUPI 576105

3 . ALIYA ASSADI

AGED ABOUT 17 YEARS,

4

D/O AYUB ASSADI

STUDENT

REPRESENTED BY HER FATHER

AYUB ASSADI

S/O ABDUL RAHIM

AGED ABOUT 49 YEARS,

R/AT NO 4-2-66 ABIDA MANZIL

NAYARKERE ROAD KIDIYOOR

AMBALAPADI UDUPI 576103

4 . SHAFA

AGED ABOUT 17 YEARS,

D/O MOHAMMED SHAMEEM

STUDENT

REPRESENTED BY HER MOTHER

SHAHINA

W/O MOHAMMED SHAMEEM

AGED ABOUT 42 YEARS,

R/AT NO 3-73 MALLAR

GUJJI HOUSE MALLAR VILLAGE

MAJOOR KAUP UDUPI 576106

5 . MUSKAAN ZAINAB

AGED ABOUT 17 YEARS

D/O ABDUL SHUKUR

STUDENT

REPRESENTED BY HER FATHER

ABDUL SHUKUR

S/O D ISMAIL SAHEB

AGED ABOUT 46 YEARS

R/AT NO 9-109 B,

VADABHANDESHWARA MALPE UDUPI 576108

… PETITIONERS

(BY SHRI. SANJAY HEGDE, SENIOR ADVOCATE FOR

SHRI MOHAMMED TAHIR & SMT.TANVEER AHMED MIR,

ADVOCATES FOR PETITIONERS 1, 3 TO 5)

(V/O DT. 15.02.2022, PETITION IN RESPECT OF PETITIONER No.2

STANDS DISMISSED AS WITHDRAWN)

AND:

1 . CHIEF SECRETARY

PRIMARY AND HIGHER EDUCATION EDUCATION

DEPARTMENT

KARNATAKA GOVERNMENT MINISTRY

MS BUILDING BANGALORE 560001

5

2 . DIRECTOR

PU EDUCATION DEPARTMENT

MALLESHWARAM

EDUCATION DEPARTMENT

BANGALORE 560012

3 . DEPUTY DIRECTOR

PRE UNIVERSITY COLLEGE

UDUPI DIST UDUPI 576101

4 . DEPUTY COMMISSIONER

DC OFFICE UDUPI

CITY UDUPI 576101

5 . GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

REP BY ITS PRINCIPAL

6 . RUDRE GOWDA

S/O NOT KNOWN

AGE ABOUT 55 YEARS,

OCCUPATION PRINCIPAL

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

7 . GANGADHAR SHARMA

AGE ABOUT 51

S/O NOT KNOWN

VICE PRINCIPAL OF GOVT COLLEGE

R/AT NO 21/69 ANRGHYA

7TH CROSS MADVANAGAR

ADIUDUPI UDUPI 576102

8 . DR YADAV

AGE ABOUT 56

S/O NOT KNOWN

HISTORY LECTURER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

9 . PRAKASH SHETTY

AGE ABOUT 45

S/O NOT KNOWN

POLITICAL SCIENCE SUB LECTURER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

6

10 . DAYANANDA D

AGE ABOUT 50 YEARS,

S/O NOW KNOWN

SOCIOLOGY SUB LECTURER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

11 . RUDRAPPA

AGE ABOUT 51 YEARS

S/O NOT KNOWN

CHEMISTRY SUB LECTURER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

12 . SHALINI NAYAK

AGE ABOUT 48 YEARS,

W/O NOT KNOWN

BIOLOGY SUB LECTURER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

13 . CHAYA SHETTY

AGE ABOUT 40 YEARS,

W/O NOT KNOWN

PHYSICS SUB LECTURER

R/AT KUTPADY UDYAVAR UDUPI 574118

14 . DR USHA NAVEEN CHANDRA

AGE ABOUT 50 YEARS

W/O NOT KNOWN TEACHER

OFFICE AT GOVT PU COLLEGE FOR GIRLS

UDUPI CITY UDUPI 576101

15 . RAGHUPATHI BHAT

S/O LATE SRINIVAS BHARITHYA

AGE ABOUT 53 YEARS

LOCAL MLA AND

UNAUTHIRIZED CHAIRMAN OF CDMC

D NO 8-32 AT SHIVALLY VILLAGE PO

SHIVALLY UDUPI 576102

16 . YASHPAL ANAND SURANA

AGE ABOUT 50 YEARS

S/O NOT KNOWN

AUTHORIZED VICE CHAIRMAN OF CDMC

R/AT AJJARAKADU UDUPI H O UDUPI 576101

 … RESPONDENTS

7

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI,

SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 4.

SHRI S.S. NAGANAND, SENIOR ADVOCATE FOR

SHRI RAKESH S.N. & SHRI S. VIVEKANANDA, ADVOCATES FOR R5 & R6.

SHRI RAGHAVENDRA SRIVATSA, ADVOCATE FOR R-7

SHRI GURU KRISHNA KUMAR, SENIOR ADVOCATE FOR

SHRI K. MOHAN KUMAR, ADVOCATE FOR R-8 & IN IA 2/2022

SHRI VENKATARAMANI, SENIOR ADVOCATE FOR

SHRI KASHYAP N. NAIK, ADVOCATE FOR R-12

SHRI VENKATARAMANI, SENIOR ADVOCATE FOR

SHRI VIKRAM PHADKE, ADVOCATE FOR R-13

SHRI NISHAN G.K. ADVOCATE FOR R-14

SHRI SAJAN POOVAYYA, SENIOR ADVOCATE FOR

SHRI MANU KULKARNI & SHRI VISHWAS N., ADVOCATES

FOR R-15

SHRI SAJAN POOVAYYA, SENIOR ADVOCATE FOR

SHRI MRINAL SHANKAR & SHRI N.S. SRIRAJ GOWDA, ADVOCATES

FOR R-16

SHRI SHIRAJ QUARAISHI & SHRI RUDRAPPA P., ADVOCATES IN IA

6/2022)

 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE THE

WRIT OF MANDMAUS AND ORDER TO RESPONDENT NOS. 1 AND 2

TO INITIATE ENQUIRY AGAINST THE RESPONDENT NO.5 COLLEGE

AND RESPONDENT NO.6 i.e., PRINCIPLE FOR VIOLATING

INSTRUCTION ENUMERATED UNDER CHAPTER 6 HEADING OF

IMPORTANT INFORMATION OF GUIDELINES OF PU DEPARTMENT

FOR ACADEMIC YEAR OF 2021-22 SAME AT ANNEXURE-J FOR

MAINTAINING UNIFORM IN THE P U COLLEGE AND ETC.

IN W.P. NO.2880 OF 2022

BETWEEN:

1 . MISS AISHAT SHIFA

D/O ZULFIHUKAR

AGED ABOUT 17 YEARS

SANTOSH NAGAR

HEMMADY POST

KUNDAPUR TALUK

8

UDUPI DISTRICT-576230

REP BY HER NATURAL GUARDIAN AND

FATHER MR ZULFHUKAR

2 . MISS THAIRIN BEGAM

D/O MOHAMMAD HUSSAIN

AGED ABOUT 18 YEARS

KAMPA KAVRADY

KANDLUR POST

KUNDAPURA

UDUPI DISTRICT-576201.

… PETITIONERS

(BY SHRI DEVADUTT KAMAT, SENIOR ADVOCATE FOR

SHRI MOHAMMAD NIYAZ, ADVOCATE FOR PETITIONERS)

AND:

1 . THE STATE OF KARNATAKA

VIDHANA SOUDHA

DR AMBEDKAR ROAD

BANGALORE - 560001

REPRESENTED BY ITS PRINCIPAL SECRETARY

2 . THE UNDER SECRETARY TO GOVERNMENT

DEPARTMENT OF EDUCATION

VIKAS SOUDHA

BANGALORE-560001.

3 . THE DIRECTORATE

DEPARTMENT OF PRE UNIVERSITY EDUCATION

BANGALORE-560009.

4 . THE DEPUTY COMMISSIONER

UDUPI DISTRICT

SHIVALLI RAJATADRI

MANIPAL

UDUPI-576104.

5 . THE PRINCIPAL

GOVERNMENT PU COLLEGE

KUNDAPURA

UDUPI DISTRICT-576201.

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

9

SHRI SUSHAL TIWARI,

SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 5

SHRI AIYAPPA, K.G. ADVOCATE IN IA 2/2022.

SHRI S. VIVEKANANDA, ADVOCATE IN IA 3/2022

SMT. SHIVANI SHETTY, ADVOCATE IN IA 4/2022.

SHRI SHASHANK SHEKAR JHA, ADVOCATE IN IA 5/2022)

 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE

IMPUGNED DIRECTION DATED 05.02.2022 VIDE ORDER No.EP 14

SHH 2022 PASSED BY THE RESPONDENT NO. 2 VIDE ANNEXURE-A

AND ETC.

IN W.P. NO.3038 OF 2022

BETWEEN:

1 . MISS SHAHEENA

D/O ABDUL RAHEEM

AGED ABOUT 19 YEARS

SANTOSH NAGAR

HEMMADI POST, KUNDAPUR TALUK

UDUPI DISTRICT-576230.

2 . MISS SHIFA MINAZ

D/O NAYAZ AHAMMAD

AGED ABOUT 18 YEARS

SANTOSH NAGAR

HEMMADI POST,

KUNDAPUR TALUK

UDUPI DISTRICT-576230.

… PETITIONERS

(BY SHRI YUSUF MUCHCHALA, SENIOR ADVOCATE FOR

SHRI NAVEED AHMED, ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA

VIDHANA SOUDHA

DR AMBEDKAR ROAD

BANGALORE-560001

REPRESENTED BY ITS PRINCIPAL SECRETARY

2 . THE UNDER SECRETARY TO GOVERNMENT

DEPARTMENT OF EDUCATION

VIKAS SOUDHA

10

BANGALORE-560001.

3 . THE DIRECTORATE

DEPARTMENT OF PRE UNIVERSITY EDUCATION

BANGALORE-560009

4 . THE DEPUTY COMMISSIONER

UDUPI DISTRICT

SHIVALLI RAJATADRI MANIPAL

UDUPI-576104.

5 . THE PRINCIPAL

GOVERNMENT PU COLLEGE

KUNDAPURA

UDUPI DISTRICT-576201.

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES)

 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE

IMPUGNED DIRECTION DATED 05.02.2022 VIDE ORDER No.EP 14

SHH 2022 PASSED BY THE RESPONDENT NO. 2 VIDE ANNEXURE-A

AND ETC.

IN W.P. NO.3424 OF 2022

BETWEEN:

DR VINOD G KULKARNI

M.D. (BOM) (PSYCHIATRY) D P M (BOM)

FIPS LLB (KSLU)

AGED ABOUT 70 YEARS,

OCCUPATION CONSULTING

NEUROPSYCHIATRIST ADVOCATE AND

SOCIAL ACTIVIST

R/O MANAS PRABHAT COLONY,

VIDYANAGAR, HUBBALLI -580 021

DIST DHARWAD KARNATAKA

CELL NO.9844089068

… PETITIONER

(BY DR. VINOD G. KULKARNI, PETITIONER -IN-PERSON)

11

AND:

1 . THE UNION OF INDIA

NEW DELHI

REPRESENTED BY

THE PRINCIPAL SECRETARY TO

MINISTRY OF HOME AFFAIRS

NORTH BLOCK NEW DELHI-110011

PH NO.01123092989

01123093031

Email: ishso@nic.in

2 . THE UNION OF INDIA

NEW DELHI

REPRESENTED BY

THE PRINCIPAL SECRETARY TO

MINISTRY OF LAW AND JUSTICE

4TH FLOOR A-WING SHASHI BAHAR

NEW DELHI--110011

PH NO.01123384205

Email: secylaw-dla@nic.in

3 . THE STATE OF KARNATAKA

BY ITS CHIEF SECRETARY

VIDHANA SOUDHA

BANGALURU-560001

Email: cs@karnataka.gov.in

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES FOR RESPONDENT No.3.

 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA, PRAYING FOR APPROPRIATE

WRIT OR ORDER OR DIRECTIONS IN THE NATURE OF MANDAMUS

OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTIONS BE

ISSUED TO THE RESPONDENTS TO DECLARE THAT ALL THE

STUDENTS OF VARIOUS SCHOOLS AND COLLEGES IN KARNATAKA

AND IN THE COUNTRY SHALL ATTEND THEIR INSTITUTIONS BY

SPORTING THE STIPULATED UNIFORM AND ETC.

12

IN W.P. NO.4309 OF 2022

BETWEEN:

1 . MS ASLEENA HANIYA

D/O LATE MR UBEDULLAH

AGED ABOUT 18 YEARS

R/AT NO.1560 13TH MAIN ROAD HAL 3RD STAGE

KODIHALLI BANGALORE-560008

STUDYING AT NEW HORIZON COLLEGE

ADDRESS 3RD A CROSS 2ND A MAIN ROAD

NGEF LAYOUT, KASTURI NAGAR

BANGALORE-560043.

2 . MS ZUNAIRA AMBER T

AGED ABOUT 16 YEARS

MINOR REPRESENTED BY HER FATHER

MR TAJ AHMED

R/A NO.674 9TH A MAIN 1ST STAGE 1ST CROSS

CMH ROAD OPPOSITE KFC SIGNAL

INDIRANAGAR

BANGALORE-560038

STUDYING AT SRI CHAITANYA TECHNO SCHOOL

ADDRESS-PLOT NO.84/1 GARDEN HOUSE 5TH MAIN

SRR KALYAN MANTAPA

OMBR LAYOUT, BANASWADI

KASTURI NAGAR

BENGALURU-560043.

… PETITIONERS

(BY SHRI A.M. DAR, SENIOR ADVOCATE FOR

SHRI MUNEER AHMED, ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA

REPRESENTED BY THE PRINCIPAL SECRETARY

DEPARTMENT OF PRIMARY AND SECONDARY DEPARTMENT

2ND GATE 6TH FLOOR M S BUILDING

DR AMBEDKAR VEEDHI

BENGALURU-560001.

2 . THE UNDER SECRETARY TO GOVERNMENT

DEPARTMENT OF EDUCATION

VIKAS SOUDHA

BANGALORE-560001.

13

3 . THE DIRECTOR

KARNATAKA PRE-UNIVERSITY BOARD

DEPARTMENT OF PRE-UNIVERSITY EDUCATION

KARNATAKA

NO.18TH CROSS ROAD SAMPIGE ROAD

MALESWARAM

BENGALURU-560012.

4 . THE COMMISSIONER

EDUCATION DEPARTMENT

GOVT OF KARNATAKA

N T ROAD

BANGALORE-560001.

5 . DIRECTOR GENERAL OF POLICE

STATE OF KARNATAKA

STATE POLICE HEADQUARTERS NO.2

NRUPATHUNGA ROAD

BANGALORE-560001.

6 . THE PRINCIPAL

REPRESENTED BY COLLEGE MANAGEMENT

NEW HORIZON COLLEGE

ADDRESS 3RD A CROSS 2ND A MAIN ROAD

NGEF LAYOUT, KASTURI NAGAR

BANGALORE-560043.

7 . THE PRINCIPAL

REPRESENTED BY SCHOOL MANAGEMENT

SRI CHAITANYA TECHNO SCHOOL

ADDRESS PLOT NO.84/1 GARDEN HOUSE

5TH MAIN SRR KALYAAN MANTAPA

OMBR LAYOUT, BANASWADI KASTURI NAGAR

BENGALURU-560043.

8 . THE INSPECTOR OF POLICE

RAMAMURTHYNAGAR POLICE STATION

KEMPE GOWDA UNDER PASS ROAD

NGEF LAYOUT

DOORAVANI NAGAR, BENGALURU

KARNATAKA-560016.

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 5 & 8)

14

 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED

GOVERNMENT ORDER NO. EP 14 SHH 2022 DATED 05.02.2022,

PRODUCED AS ANNEXURE-A AND ETC.

IN W.P. NO.4338 OF 2022

BETWEEN:

GHANSHYAM UPADHYAY

AGED 51 YEARS,

INDIAN INHABITANT,

OCCUPATION,

ADVOCATE HAVING HIS OFFICE AT 506,

ARCADIA PREMISES,

195, NCPA ROAD,

NARIMAN POINT,

MUMBAI-400021

… PETITIONER

(BY SHRI SUBHASH JHA & AMRUTHESH. N.P., ADVOCATES FOR

PETITIONER)

AND:

1 . UNION OF INDIA

THROUGH THE MINISTRY OF HOME AFFAIRS,

NEW DELHI

REPRESENTED BY ITS SECRETARY

2 . STATE OF KARNATAKA

THROUGH THE HOME MINISTRY

VIDHANA SOUDHA,

BENGALURU-560001

REPRESENTED BY CHIEF SECRETARY

3 . THE PRINCIPAL SECRETARY

DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION,

VIDHAN SOUDHA,

BENGALURU-560001

4 . THE DIRECTOR

CENTRAL BUREAU OF INVESTIGATION,

KARNATAKA

15

5 . NATIONAL INVESTIGATION AGENCY

BENGALURU,

KARNATAKA

REPRESENTED BY DIRECTOR

 … RESPONDENTS

(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W

SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL

SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE

SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &

Ms. ANANYA RAI, ADVOCATES FOR RESPONDENT NOS. 2 & 3.

 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA, PRAYING TO DIRECT THE CBI/NIA

AND/OR SUCH OTHER INVESTIGATION AGENCY AS THIS HONBLE

COURT MAY DEEM FIT AND PROPER TO MAKE A THOROUGH

INVESTIGATION WITH REGARD TO THE MASSIVE AGITATION

TAKING PLACE ALL OVER THE COUNTRY AND SPIRALLING EFFECT

AND IMPACT BEYOND THE GEOGRAPHICAL LIMITS OF INDIA IN

THE AFTERMATH OF ISSUANCE OF GOVERNEMNT ORDER

DTD.5.2.2022 ISSUED UNDER KARNATAKA EDUCATION ACT 1983

BY THE STATE OF KARNATAKA AND TO FIND OUT AS TO WHETHER

THERE IS INVOLVEMENT OF RADICAL ISLAMIST ORGANIZATIONS

SUCH AS PFI, SIO (STUDENT ISLAMIC ORGANIZATION) CFI

(CAMPUS FRONT OF INDIA) JAMAAT-E-ISLAMI WHICH IS FUNDED

BY SAUDI ARABIAN UNIVERSITES TO ISLAMISE INDIA AND TO

ADVANCE RADICAL ISLAM IN INDIA AND SUBMIT THE REPORT OF

SUCH ENQUIRY/INVESTIGATION TO THIS HON’BLE COURT WITHIN

SUCH MEASURABLE PERIOD OF TIME AS THIS HONBLE COURT

MAY DEEM FIT AND PROPER AND ETC.

THESE WRIT PETITIONS, HAVING BEEN HEARD AND

RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT

OF JUDGMENT, THIS DAY, THE CHIEF JUSTICE PRONOUNCED

THE FOLLOWING:

ORDER

This judgment, we desire to begin with what Sara

Slininger from Centralia, Illinois concluded her well

16

researched article “VEILED WOMEN: HIJAB, RELIGION, AND

CULTURAL PRACTICE-2013”:

“The hijab’s history…is a complex one, influenced

by the intersection of religion and culture over time. While

some women no doubt veil themselves because of

pressure put on them by society, others do so by choice

for many reasons. The veil appears on the surface to be a

simple thing. That simplicity is deceiving, as the hijab

represents the beliefs and practices of those who wear it

or choose not to, and the understandings and

misunderstandings of those who observe it being worn.

Its complexity lies behind the veil.”

Three of these cases namely W.P.No.2347/2022,

W.P.No.2146/2022 & W.P.No.2880/2022, were referred by

one of us (Krishna S Dixit J.) vide order dated 09.02.2022 to

consider if a larger Bench could be constituted to hear them.

The Reference Order inter alia observed:

“All these matters essentially relate to proscription

of hijab (headscarf) while prescribing the uniform for

students who profess Islamic faith…The recent

Government Order dated 05.02.2022 which arguably

facilitates enforcement of this rule is also put in challenge.

Whether wearing of hijab is a part of essential religious

practice in Islam, is the jugular vein of all these

matters...The said question along with other needs to be

answered in the light of constitutional guarantees

availing to the religious minorities. This Court after

hearing the matter for some time is of a considered

opinion that regard being had to enormous public

importance of the questions involved, the batch of these

cases may be heard by a Larger Bench, if Hon’ble the

Chief Justice so decides in discretion…In the above

circumstances, the Registry is directed to place the

papers immediately at the hands of Hon’ble the Chief

Justice for consideration...”

17

Accordingly, this Special Bench came to be constituted

the very same day vide Notification dated 09.02.2022 to hear

these petitions, to which other companion cases too joined.

(i)

I. PETITIONERS’ GRIEVANCES & PRAYERS BRIEFLY

STATED:

(i) In Writ Petition No. 2347/2022, filed by a

petitioner – girl student on 31.01.2022, the 1st, 3rd & 4th

respondents happen to be the State Government & its

officials, and the 2nd respondent happens to be the

Government Pre–University College for Girls, Udupi. The

prayer is for a direction to the respondents to permit the

petitioner to wear hijab (head – scarf) in the class room, since

wearing it is a part of ‘essential religious practice’ of Islam.

(ii) In Writ Petition No. 2146/2022 filed by a

petitioner–girl student on 29.01.2022, the 1st, 3rd & 4th

respondents happen to be the State Government & its officials

and the 2nd respondent happens to be the Government Pre –

University College for Girls, Udupi. The prayer column has the

following script:

“1. Issue the WRIT OF MANDAMUS and order to

respondent no 1 and 2 to initiate enquiry against

the Respondent 5 college and Respondent no 6 i.e.

Principal for violating instruction enumerated under

Chapter 6 heading of “Important information” of

18

Guidelines of PU Department for academic year of

2021-22 same at ANNEXURE J for maintaining

uniform in the PU college.,

2. Issue WRIT OF MANDAMUS to Respondent

no 3 conduct enquiry against the Respondent no 6

to 14 for their Hostile approach towards the

petitioners students.,

3. Issue WRIT OF QUO WARRANTO against the

Respondent no 15 and 16 under which authority

and law they interfering in the administration of

Respondent no 5 school and promoting their

political agenda. And,

4. DECLARE that the status quo referred in the

letter dated 25/01/2022 at ANNEXURE H is with

the consonance to the Department guidelines for the

academic year 2021-22 same at ANNEXURE J…”

(iii) In Writ Petition Nos.2880/2022, 3038/2022 &

4309/2022, petitioner – girl students seek to lay a challenge

to the Government Order dated 05.02.2022. This order

purportedly issued under section 133 read with sections 7(2)

& (5) of the Karnataka Education Act, 1983 (hereafter ‘1983

Act’) provides that, the students should compulsorily adhere

to the dress code/uniform as follows:

a. in government schools, as prescribed by the

government;

b. in private schools, as prescribed by the school

management;

c. in Pre–University colleges that come within the

jurisdiction of the Department of the Pre–

University Education, as prescribed by the

19

College Development Committee or College

Supervision Committee; and

d. wherever no dress code is prescribed, such

attire that would accord with ‘equality &

integrity’ and would not disrupt the ‘public

order’.

(iv) In Writ Petition No.3424/2022 (GM-RES-PIL),

filed on 14.02.2022 (when hearing of other cases was

half way through), petitioner – Dr.Vinod Kulkarni

happens to be a consulting neuro – psychiatrist,

advocate & social activist. The 1st and 2nd respondents

happen to be the Central Government and the 3rd

respondent happens to be the State Government. The

first prayer is for a direction to the respondents “to

declare that all the students of various schools and

colleges in Karnataka and in the country shall attend

their institutions by sporting the stipulated uniform” (sic).

Second prayer reads “To permit Female Muslim students

to sport Hijab provided they wear the stipulated school

uniform also” (sic).

(v) In Writ Petition No.4338/2022 (GM-RESPIL), filed on 25.02.2022 (when hearing of other cases

was half way through), one Mr. Ghanasham Upadhyay

is the petitioner. The 1st respondent is the Central

20

Government, 2nd & 3rd respondents happen to be the

State Government & its Principal Secretary, Department

of Primary & Secondary Education; the 4th & 5th

respondents happen to be the Central Bureau of

Investigation and National Investigation Agency. The gist

of the lengthy and inarticulate prayers are that the

Central Bureau of Investigation/National Investigation

Agency or such other investigating agency should make

a thorough investigation in the nationwide agitation

after the issuance of the Government Order dated

05.02.2022 to ascertain the involvement of radical

organizations such as Popular Front of India, Students

Islamic Organization of India, Campus Front of India

and Jamaat-e-Islami; to hold and declare that wearing of

hijab, burqa or such “other costumes by male or female

Muslims and that sporting beard is not an integral part

of essential religious practice of Islam” and therefore,

prescription of dress code is permissible. There are other

incoherent and inapplicable prayers that do not merit

mentioning here.

(vi) The State and its officials are represented by

the learned Advocate General. The respondent–Colleges

21

and other respondents are represented by their

respective advocates. The State has filed the Statement

of Objections (this is adopted in all other matters) on

10.02.2022; other respondents have filed their

Statements of Objections, as well. Some petitioners have

filed their Rejoinder to the Statement of Objections. The

respondents resist the Writ Petitions making submission

in justification of the impugned order.

II. BROAD CONTENTIONS OF PETITIONERS:

(i) Petitioner – students profess and practice Islamic

faith. Wearing of hijab (head – scarf) is an ‘essential religious

practice’ in Islam, the same being a Quranic injunction vide

AMNAH BINT BASHEER vs. CENTRAL BOARD OF SECONDARY

EDUCATION1 and AJMAL KHAN vs. ELECTION COMMISSION

OF INDIA2. Neither the State Government nor the Schools can

prescribe a dress code/uniform that does not permit the

students to wear hijab. The action of the respondent – schools

in insisting upon the removal of hijab in the educational

institutions is impermissible, as being violative of the

fundamental right guaranteed under Article 25 of the

1 (2016) SCC OnLine Ker 41117

2 (2006) SCC OnLine Mad 794

22

Constitution vide SRI VENKATARAMANA DEVARU vs. STATE

OF MYSORE3 and INDIAN YOUNG LAWYERS ASSOCIATION vs.

STATE OF KERALA4

(ii) The impugned Government Order dated

05.02.2022 is structured with a wrong narrative that wearing

of hijab is not a part of ‘essential religious practice’ of Islam

and therefore, prescribing or authorizing the prescription of

dress code/uniform to the students consistent with the said

narrative, is violative of their fundamental right to freedom of

conscience and the right to practice their religious faith

constitutionally guaranteed under Article 25 vide BIJOE

EMMANUAL vs. STATE OF KERALA5.

(iii) One’s personal appearance or choice of dressing is

a protected zone within the ‘freedom of expression’ vide

NATIONAL LEGAL SERVICES AUTHORITY vs. UNION OF

INDIA6; What one wears and how one dresses is a matter of

individual choice protected under ‘privacy jurisprudence’ vide

K.S PUTTASWAMY vs. UNION OF INDIA7. The Government

Order and the action of the schools to the extent that they do

3 1958 SCR 895

4 (2019) 11 SCC 1

5 (1986) 3 SCC 615

6 (2014) 5 SCC 438

7 (2017) 10 SCC 1

23

not permit the students to wear hijab in the institutions are

repugnant to these fundamental rights constitutionally

availing under Articles 19(1)(a) & 21.

(iv) The action of the State and the schools suffers

from the violation of ‘doctrine of proportionality’ inasmuch as

in taking the extreme step of banning the hijab within the

campus, the possible alternatives that pass the ‘least

restrictive test’ have not been explored vide MODERN DENTAL

COLLEGE vs. STATE OF MADHYA PRADESH8 and MOHD.

FARUK V. STATE OF MADHYA PRADESH9.

(v) The impugned Government Order suffers from

‘manifest arbitrariness’ in terms of SHAYARA BANO VS.

UNION OF INDIA10. The impugned Government Order suffers

from a gross non-application of mind and a misdirection in

law since it is founded on a wrong legal premise that the Apex

Court in AHSA RENJAN vs. STATE OF BIHAR11, the High

Courts in Writ Petition(C) No. 35293/2018, FATHIMA

HUSSAIN vs. BHARATH EDUCATION SOCIETY12,

V.KAMALAMMA vs. DR. M.G.R. MEDICAL UNIVERSITY and SIR

8 (2016) 7 SCC 353

9 (1969) 1 SCC 853

10 (2017) 9 SCC 1

11 (2017) 4 SCC 397

12 AIR 2003 Bom 75

24

M. VENKATA SUBBARAO MARTICULATION HIGHER

SECONDARY SCHOOL STAFF ASSOCIATION vs. SIR M.

VENKATA SUBBARAO MARTICULATION HIGHER SECONDARY

SCHOOL13 have held that the wearing of hijab is not a part of

essential religious practice of Islam when contrary is their

demonstrable ratio.

(vi) The impugned Government Order is the result of

acting under dictation and therefore, is vitiated on this

ground of Administrative Law, going by the admission of

learned Advocate General that the draftsmen of this order has

gone too far and the draftsman exceeded the brief vide

ORIENT PAPER MILLS LTD vs. UNION OF INDIA14 and

MANOHAR LAL vs. UGRASEN15. Even otherwise, the grounds

on which the said government order is structured being

unsustainable, it has to go and that supportive grounds

cannot be supplied de hors the order vide MOHINDER SINGH

GILL vs. CHIEF ELECTION COMMISSIONER.

16

(vii) The Government is yet to take a final decision with

regard to prescription of uniform in the Pre-University

13 (2004) 2 MLJ 653

14 (1970) 3 SCC 76

15 (2010) 11 SCC 557

16 AIR 1978 SC 851

25

Colleges and a High Level Committee has to be constituted for

that purpose. The Kendriya Vidyalayas under the control of

the Central Government too permit the wearing of hijab (headscarf). There is no reason why similar practise should not be

permitted in other institutions.

(viii) The Karnataka Education Act, 1983 or the Rules

promulgated thereunder do not authorize prescription of any

dress code/uniform at all. Prescribing dress code in a school

is a matter of ‘police power’ which does not avail either to the

government or to the schools in the absence of statutory

enablement. Rule 11 of Karnataka Educational Institutions

(Classification, Regulation and Prescription of Curricula, etc)

Rules, 1995 (hereafter ‘1995 Curricula Rules’) to the extent it

provides for prescription of uniform is incompetent and

therefore, nothing can be tapped from it.

(ix) The College Betterment (Development) Committee

constituted under Government Circular dated 31.1.2014 is

only an extra-legal authority and therefore, its prescription of

dress code/uniform for the students is without jurisdiction.

The prospectus issued by the Education Department prohibits

prescription of any uniform. The composition & complexion of

26

College Betterment (Development) Committee under the

Government Circular dated 31.1.2014 inter alia compromising

of local Member of Legislative Assembly as its President and

his nominee as the Vice – President would unjustifiably

politicize the educational environment and thereby, pollute

the tender minds. The Pre-University institutions are expected

to be independent and safe spaces.

 (x) The College Betterment (Development) Committee

which inter alia comprises of the local Member of Legislative

Assembly vide the Government Circular dated 31.1.2014,

apart from being unauthorized, is violative of ‘doctrine of

separation of powers’ which is a basic feature of our

Constitution vide KESAVANANDA BHARATI vs. STATE OF

KERALA17 read with RAI SAHIB RAM JAWAYA KAPUR vs.

STATE OF PUNJAB18, and STATE OF WEST BENGAL vs.

COMMITTEE FOR PROTECTION OF DEMOCRACTIC RIGHTS19

also infringes upon of the principle of accountability vide

BHIM SINGH vs. UNION OF INDIA20. This committee has no

power to prescribe school uniforms.

17 AIR 1973 SC 1461

18 AIR 1955 SC 549

19 (2010) 3 SCC 571

20 (2010) 5 SCC 538

27

(xi) The ground of ‘public order’ (sārvajanika

suvyavasthe) on which the impugned Government Order is

founded is un-understandable; this expression is construed

with reference to ‘public disorder’ and therefore, the State

action is bad vide COMMISSIONER OF POLICE vs. C. ANITA21.

If wearing of hijab disrupts the public order, the State should

take action against those responsible for such disruption and

not ban the wearing of hijab. Such a duty is cast on the State

in view of a positive duty vide GULAM ABBAS vs. STATE OF

UTTAR PRADESH22, INDIBILY CREATIVE PVT. LTD vs. STATE

OF WEST BENGAL23. In addition such a right cannot be

curtailed based on the actions of the disrupters, i.e., the

‘hecklers don’t get the veto’ vide TERMINIELLO vs. CHICAGO24,

BROWN vs. LOUISIANA25, TINKER vs. DES MOINES26, which

view is affirmed by the Apex Court in UNION OF INDIA vs.

K.M.SHANKARAPPA27. This duty is made more onerous

because of positive secularism contemplated by the

21 (2004) 7 SCC 467

22 (1982) 1 SCC 71

23 (2020) 12 SCC 436

24 337 U.S. 1 (1949)

25 383 U.S. 131 (1966)

26 393 U.S. 503 (1969)

27 (2001) 1 SCC 582

28

Constitution vide STATE OF KARNATAKA vs. PRAVEEN BHAI

THOGADIA (DR.)28, ARUNA ROY vs. UNION OF INDIA29.

(xii) Proscribing hijab in the educational institutions

apart from offending women’s autonomy is violative of Article

14 inasmuch as the same amounts to ‘gender–based’

discrimination which Article 15 does not permit. It also

violates right to education since entry of students with hijab

to the institution is interdicted. The government and the

schools should promote plurality, not uniformity or

homogeneity but heterogeneity in all aspects of lives as

opposed to conformity and homogeneity consistent with the

constitutional spirit of diversity and inclusiveness vide

VALSAMMA PAUL (MRS) vs. COCHIN UNIVERSITY30, SOCIETY

FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN vs. UNION

OF INDIA31 and NAVTEJ SINGH JOHAR vs. UNION OF INDIA32.

(xiii) The action of the State and the school authorities is

in derogation of International Conventions that provide for

protective discrimination of women’s rights vide UNIVERSAL

DECLARATION OF HUMAN RIGHTS (1948), CONVENTION OF

28 (2004) 4 SCC 684

29 (2002) 7 SCC 368

30 (1996) 3 SCC 545

31 (2012) 6 SCC 1

32 AIR 2018 SC 4321

29

ELIMINATION ON ALL FORMS OF DISCRIMINATION AGAINST

WOMEN (1981), INTERNATIONAL COVENANTS ON CIVIL AND

POLITICAL RIGHTS (1966), UNITED NATIONS CONVENTION ON

RIGHTS OF CHILD (1989). To provide for a holistic and

comparative view of the ‘principle of reasonable

accommodation’ as facets of ‘substantive–equality’ under

Article 14 & 15 vide LT. COL. NITISHA vs. UNION OF INDIA33;

petitioners referred to the following decisions of foreign

jurisdictions in addition to native ones: MEC FOR

EDUCATION: KWAZULU – NATAL vs. NAVANEETHUM

PILLAY34, CHRISTIAN EDUCATION SOUTH AFRICA vs.

MINISTER OF EDUCATION35, R. vs. VIDEOFLEX36, BALVIR

SSINGH MULTANI vs. COMMISSION SCOLAIRE MARGUERITE -

BOURGEOYS37, ANTONIE vs. GOVERNING BODY, SETTLERS

HIGH SCHOOL38 and MOHAMMAD FUGICHA vs. METHODIST

CHRUCH IN KENYA39.

(xiv) In W.P.No.2146/2022, the school teachers have

been acting in derogation of the Brochure of the Education

33 (2021) SCC OnLine SC 261

34 [CCT51/06 [2007] ZACC 21]

35 [2000] ZACC 2

36 1948 2D 395

37 (2006) SCC OnLine Can SC 6

38 2002 (4) SA 738 (T)

39 (2016) SCC OnLine Kenya 3023

30

Department which prohibits prescribing any kind of uniform

inasmuch as they are forcing the students to remove hijab

and therefore, disciplinary action should be taken against

them. The respondents – 15 & 16 have no legal authority to

be on the College Betterment (Development) Committee and

therefore, they are liable to be removed by issuing a Writ of

Quo Warranto.

III. CONTENTIONS OF RESPONDENT – STATE &

COLLEGE AUTHORITIES:

Respondents i.e., State, institutions and teachers per

contra contend that:

(i) The fact matrix emerging from the petition

averments lacks the material particulars as to the wearing of

hijab being in practice at any point of time; no evidentiary

material worth mentioning is loaded to the record of the case,

even in respect of the scanty averments in the petition. Since

how long, the students have been wearing hijab invariably has

not been pleaded. At no point of time these students did wear

any head scarf not only in the class room but also in the

institution. Even otherwise, whatever rights petitioners claim

under Article 25 of the Constitution, are not absolute. They

are susceptible to reasonable restriction and regulation by

31

law. In any circumstance, the wearing hijab arguably as

being part of ‘essential religious practice’ in Islam cannot be

claimed by the students as a matter of right in all-girlinstitutions like the respondent PU College, Udupi.

(ii) Wearing hijab or head scarf is not a part of

‘essential religious practice’ of Islamic faith; the Holy Quran

does not contain any such injunctions; the Apex Court has

laid down the principles for determining what is an ‘essential

religious practice’ vide COMMISSIONER HINDU RELIGIOUS

ENDOWMENTS MADRAS vs. SRI LAKSHMINDRA THIRTHA

SWAMIAR OF SRI SHIRUR MUTT40, DURGAH COMMITTEE,

AJMER vs. SYED HUSSAIN ALI41, M. ISMAIL FARUQUI vs.

UNION OF INDIA42, A.S. NARAYANA DEEKSHITULU vs. STATE

OF ANDHRA PRADESH43, JAVED vs. STATE OF HARYANA44,

COMMISSIONER OF POLICE vs. ACHARYA

JAGADISHWARANANDA AVADHUTA45, AJMAL KHAN vs. THE

ELECTION COMMISSION46, SHARAYA BANO, INDIAN YOUNG

LAWYERS ASSOCIATION. Wearing hijab at the most may be a

40 AIR 1954 SC 282

41 AIR 1961 SC 1402

42 (1994) 4 SCC 360

43 (1996) 9 SCC 611

44 (2003) 8 SCC 369

45 (2004) 12 SCC 770

46 2006 SCC OnLine Mad 794

32

‘cultural’ practice which has nothing to do with religion.

Culture and religion are different from each other.

 (iii) The educational institutions of the kind being

‘qualified public places’, the students have to adhere to the

campus discipline and dress code as lawfully prescribed since

years i.e., as early as 2004. The parents have in the

admission forms of their wards (minor students) have

signified their consent to such adherence. All the students

had been accordingly adhering to the same all through. It is

only in the recent past; quite a few students have raked up

this issue after being brainwashed by some fundamentalist

Muslim organizations like Popular Front of India, Campus

Front of India, Jamaat-e-Islami, and Students Islamic

Organization of India. An FIR is also registered. Police papers

are furnished to the court in a sealed cover since investigation

is half way through. Otherwise, the students and parents of

the Muslim community do not have any issue at all.

Therefore, they cannot now turn around and contend or act to

the contrary.

(iv) The power to prescribe school uniform is inherent

in the concept of school education itself. There is sufficient

33

indication of the same in the 1983 Act and the 1995 Curricula

Rules. It is wrong to argue that prescription of uniform is a

‘police power’ and that unless the Statute gives the same;

there cannot be any prescription of dress code for the

students. The so called ‘prospectus’ allegedly issued by the

Education Department prohibiting prescription of

uniform/dress code in the schools does not have any

authenticity nor legal efficacy.

(v) The Government Order dated 05.02.2022 is

compliant with the scheme of the 1983 Act, which provides

for ‘cultivating a scientific and secular outlook through

education’ and this G.O. has been issued under Section 133

read with Sections 7(1)(i), 7(2)(g)(v) of the Act and Rule 11 of

the 1995 Curricula Rules; this order only authorizes the

prescription of dress code by the institutions on their own and

it as such, does not prescribe any. These Sections and the

Rule intend to give effect to constitutional secularism and to

the ideals that animate Articles 39(f) & 51(A). The children

have to develop in a healthy manner and in conditions of

‘freedom and dignity’; the school has to promote the spirit of

harmony and common brotherhood transcending religious,

linguistic, regional or sectional diversities. The practices that

34

are derogatory to the dignity of women have to be renounced.

All this would help nation building. This view is reflected in

the decision of Apex Court in MOHD. AHMED KHAN vs. SHAH

BANO BEGUM47.

(vi) The Government Order dated 5.02.2022 came to be

issued in the backdrop of social unrest and agitations within

the educational institutions and without engineered by

Popular Front of India, Students Islamic Organization of

India, Campus Front of India & Jamaat-e-Islami. The action of

the institutions in insisting adherence to uniforms is in the

interest of maintaining ‘peace & tranquility’. The term ‘public

order’ (sārvajanika suvyavasthe) employed in the Government

Order has contextual meaning that keeps away from the same

expression employed in Article 19(2) of the Constitution.

(vii) The ‘College Betterment (Development) Committees’

have been established vide Government Circular dated

31.01.2014 consistent with the object of 1983 Act and 1995

Curricula Rules. For about eight years or so, it has been in

place with not even a little finger being raised by anyone nor

is there any complaint against the composition or functioning

of these Committees. This Circular is not put in challenge in

47 (1985) 2 SCC 556

35

any of the Writ Petitions. These autonomous Committees have

been given power to prescribe uniforms/dress code vide SIR

M. VENKATA SUBBARAO & ASHA RENJAN supra, FATHIMA

THASNEEM vs. STATE OF KERALA48 and JANE SATHYA vs.

MEENAKSHI SUNDARAM ENGINEERING COLLEGE49. The

Constitution does not prohibit elected representatives of the

people being made a part of such committees.

(viii) The right to wear hijab if claimed under Article

19(1)(a), the provisions of Article 25 are not invocable

inasmuch as the simultaneous claims made under these two

provisions are not only mutually exclusive but denuding of

each other. In addition, be it the freedom of conscience, be it

the right to practise religion, be it the right to expression or be

it the right to privacy, all they are not absolute rights and

therefore, are susceptible to reasonable restriction or

regulation by law, of course subject to the riders prescribed

vide CHINTAMAN RAO vs. STATE OF MADHYA PRADESH50

and MOHD. FARUK V. STATE OF MADHYA PRADESH, supra.

(ix) Permitting the petitioner – students to wear hijab

(head – scarf) would offend the tenets of human dignity

48 2018 SCC OnLine Ker 5267

49 2012 SCC OnLine Mad 2607

50 AIR 1951 SC 118

36

inasmuch as, the practice robs away the individual choice of

Muslim women; the so called religious practice if claimed as a

matter of right, the claimant has to prima facie satisfy its

constitutional morality vide K.S PUTTAWAMY supra, INDIAN

YOUNG LAWYERS ASSOCIATION supra. There is a big shift in

the judicial approach to the very idea of essential religious

practice in Islamic faith since the decision in SHAYARA

BANO, supra, which the case of the petitioners overlooks. To

be an essential religious practice that merits protection under

Article 25, it has to be shown to be essential to the religion

concerned, in the sense that if the practice is renounced, the

religion in question ceases to be the religion.

 (x) Children studying in schools are placed under the

care and supervision of the authorities and teachers of the

institution; therefore, they have ‘parental and quasi – parental’

authority over the school children. This apart, schools are

‘qualified public places’ and therefore exclusion of religious

symbols is justified in light of 1995 Curricula Regulation that

are premised on the objective of secular education, uniformity

and standardization vide ADI SAIVA SIVACHARIYARGAL NALA

37

SANGAM vs. STATE OF TAMIL NADU51, S.R. BOMMAI vs.

UNION OF INDIA52, S.K. MOHD. RAFIQUE vs. CONTAI

RAHAMANIA HIGH MADRASAH53 and CHURCH OF GOD (FULL

GOSPEL) IN INDIA vs. K.K.R MAJECTIC COLONY WELFARE

ASSCOIATION54. What is prescribed in Kendriya Vidyalayas

as school uniform is not relevant for the State to decide on the

question of school uniform/dress code in other institutions.

This apart there is absolutely no violation of right to

education in any sense.

 (xi) Petitioner-students in Writ Petition No.2146/2022

are absolutely not justified in seeking a disciplinary enquiry

against some teachers of the respondent college and removal

of some others from their position by issuing a Writ of Quo

Warranto. As already mentioned above, the so called

prospectus/instructions allegedly issued by the Education

Department prohibiting the dress code in the colleges cannot

be the basis for the issuance of coercive direction for

refraining the enforcement of dress code. The authenticity and

efficacy of the prospectus/instructions are not established.

51 (2016) 2 SCC 725

52 (1994) 3 SCC 1

53 (2020) 6 SCC 689

54 (2000) 7 SCC 282

38

 In support of their contention and to provide for a

holistic and comparative view, the respondents have referred

to the following decisions of foreign jurisdictions, in addition

to native ones: LEYLA SAHIN vs. TURKEY55, WABE and MH

MÜLLER HANDEL56, REGINA vs. GOVERNORS OF DENBIGH

HIGH SCHOOL57 and UNITED STATES vs. O’BRIEN58 and

KOSE vs. TURKEY59.

IV. All these cases broadly involving common questions of

law & facts are heard together on day to day basis with

the concurrence of the Bar. There were a few Public

Interest Litigations espousing or opposing the causes

involved in these cases. However, we decline to grant

indulgence in them by separate orders. Similarly, we

decline to entertain applications for impleadment and

intervention in these cases, although we have adverted

to the written submissions/supplements filed by the

respective applicants.

Having heard the learned counsel appearing for

the parties and having perused the papers on record, we

55 Application No. 44774/98

56 C-804/18 and C-341/19 dated 15th July 2021

57 [2006] 2 WLR 719

58 391 US 367 (1968)

59 Application No. 26625/02

39

have broadly framed the following questions for

consideration:

SL.NO. QUESTIONS FOR CONSIDERATION

1. Whether wearing hijab/head-scarf is a part of

‘essential religious practice’ in Islamic Faith protected

under Article 25 of the Constitution?

2. Whether prescription of school uniform is not legally

permissible, as being violative of petitioners

Fundamental Rights inter alia guaranteed under

Articles, 19(1)(a), (i.e., freedom of expression) and 21,

(i.e., privacy) of the Constitution?

3. Whether the Government Order dated 05.02.2022

apart from being incompetent is issued without

application of mind and further is manifestly arbitrary

and therefore, violates Articles 14 & 15 of the

Constitution?

4. Whether any case is made out in W.P.No.2146/2022

for issuance of a direction for initiating disciplinary

enquiry against respondent Nos.6 to 14 and for

issuance of a Writ of Quo Warranto against

respondent Nos.15 & 16?

V. SECULARISM AND FREEDOM OF CONSCIENCE &

RELIGION UNDER OUR CONSTITUTION:

Since both the sides in their submissions emphasized on

Secularism and freedom of conscience & right to religion, we

need to concisely treat them in a structured way. Such a need

is amplified even for adjudging the validity of the Government

Order dated 05.02.2022, which according to the State gives

effect to and operationalizes constitutional Secularism.

40

SECULARISM AS A BASIC FEATURE OF OUR

CONSTITUTION:

(i) ‘India, that is Bharat’ (Article 1), since centuries, has

been the sanctuary for several religions, faiths & cultures that

have prosperously co-existed, regardless of the ebb & flow of

political regimes. Chief Justice S.R. Das in IN RE: KERALA

EDUCATION BILL60 made the following observation lauding

the greatness of our heritage:

“…Throughout the ages endless inundations of men of

diverse creeds, cultures and races - Aryans and nonAryans, Dravidians and Chinese, Scythians, Huns,

Pathans and Mughals - have come to this ancient land

from distant regions and climes. India has welcomed

them all. They have met and gathered, given and taken

and got mingled, merged and lost in one body. India's

tradition has thus been epitomised in the following noble

lines:

"None shall be turned away From the shore of this vast

sea of humanity that is India" (Poems by Rabindranath

Tagore)…”

In S.R.BOMMAI, supra at paragraph 25, the Hon’ble Supreme

Court of India observed: “India can rightly be described as the

world’s most heterogeneous society. It is a country with a rich

heritage. Several races have converged in this subcontinent. They brought with them their own cultures,

languages, religions and customs. These diversities threw up

60 (1959) 1 SCR 996

41

their own problems but the early leadership showed wisdom

and sagacity in tackling them by preaching the philosophy of

accommodation and tolerance…”

(ii) The 42nd Amendment (1976) introduced the word

‘secular’ to the Preamble when our Constitution already had

such an animating character ab inceptio. Whatever be the

variants of its meaning, secularism has been a Basic Feature

of our polity vide KESAVANANDA, supra even before this

Amendment. The ethos of Indian secularism may not be

approximated to the idea of separation between Church and

State as envisaged under American Constitution post First

Amendment (1791). Our Constitution does not enact Karl

Marx’s structural-functionalist view ‘Religion is the opium of

masses’ (1844). H.M.SEERVAI, an acclaimed jurist of yester

decades in his magnum opus ‘Constitutional Law of India,

Fourth Edition, Tripathi at page 1259, writes: ‘India is a

secular but not an anti-religious State, for our Constitution

guarantees the freedom of conscience and religion. Articles 27

and 28 emphasize the secular nature of the State…’ Indian

secularism oscillates between sārva dharma samabhāava and

dharma nirapekshata. The Apex Court in INDIRA NEHRU

42

GANDHI vs. RAJ NARAIN61 explained the basic feature of

secularism to mean that the State shall have no religion of its

own and all persons shall be equally entitled to the freedom of

conscience and the right freely to profess, practice and

propagate religion. Since ages, India is a secular country. For

India, there is no official religion, inasmuch as it is not a

theocratic State. The State does not extend patronage to any

particular religion and thus, it maintains neutrality in the

sense that it does not discriminate anyone on the basis of

religious identities per se. Ours being a ‘positive secularism’

vide PRAVEEN BHAI THOGADIA supra, is not antithesis of

religious devoutness but comprises in religious tolerance. It is

pertinent to mention here that Article 51A(e) of our

Constitution imposes a Fundamental Duty on every citizen ‘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’. It is relevant to mention

here itself that this constitutional duty to transcend the

sectional diversities of religion finds its utterance in section

7(2)(v) & (vi) of the 1983 Act which empowers the State

61 (1975) Supp. SCC 1

43

Government to prescribe the curricula that would amongst

other inculcate the sense of this duty.

VI. CONSTITUTIONAL RIGHT TO RELIGION AND

RESTRICTIONS THEREON:

(i) Whichever be the society, ‘you can never separate

social life from religious life’ said Alladi Krishnaswami Aiyar

during debates on Fundamental Rights in the Advisory

Committee (April 1947). The judicial pronouncements in

America and Australia coupled with freedom of religion

guaranteed in the Constitutions of several other countries

have substantially shaped the making of inter alia Articles 25

& 26 of our Constitution. Article 25(1) & (2) read as under:

“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.

Explanation I - The wearing and carrying of kirpans shall

be deemed to be included in the profession of the Sikh

religion.

44

Explanation II - In sub clause (b) of clause reference to

Hindus shall be construed as including a reference to

persons professing the Sikh, Jaina or Buddhist religion,

and the reference to Hindu religious institutions shall be

construed accordingly.”

This Article guarantees that every person in India shall have

the freedom of conscience and also the right to profess

practise and propagate religion. It is relevant to mention that

unlike Article 29, this article does not mention ‘culture’ as

such, which arguably may share a common border with

religion. We shall be touching the cultural aspect of hijab,

later. We do not propose to discuss about this as such. The

introduction of word ‘conscience’ was at the instance of Dr.

B.R.Ambedkar, who in his wisdom could visualize persons

who do not profess any religion or faith, like Chāarvāakas,

atheists & agnostics. Professor UPENDRA BAXI in ‘THE

FUTURE OF HUMAN RIGHTS’ (Oxford), 3rd Edition, 2008, at

page 149 says:

“…Under assemblage of human rights, individual human

beings may choose atheism or agnosticism, or they may make

choices to belong to fundamental faith communities.

Conscientious practices of freedom of conscience enable exit

through conversion from traditions of religion acquired initially

by the accident of birth or by the revision of choice of faith,

which may thus never be made irrevocably once for all…”

45

BIJOE EMMANUEL, supra operationalized the freedom of

conscience intricately mixed with a great measure of right to

religion. An acclaimed jurist DR. DURGA DAS BASU in his

‘Commentary on the Constitution of India’, 8th Edition at page

3459 writes: “It is next to be noted that the expression ‘freedom

of conscience’ stands in juxtaposition to the words “right freely

to profess, practise and propagate religion”. If these two parts

of Art. 25(1) are read together, it would appear, by the

expression ‘freedom of conscience’ reference is made to the

mental process of belief or non-belief, while profession, practice

and propagation refer to external action in pursuance of the

mental idea or concept of the person...It is also to be noted that

the freedom of conscience or belief is, by its nature, absolute, it

would become subject to State regulation, in India as in the

U.S.A. as soon as it is externalized i.e., when such belief is

reflected into action which must necessarily affect other

people...”

(ii) There is no definition of religion or conscience in

our constitution. What the American Supreme Court in DAVIS

V. BEASON62 observed assumes relevance: “...the term religion

has reference to one’s views of his relation to his Creator and to

62 (1889) 133 US 333

46

the obligation they impose of reverence for His Being and

character and of obedience to His will. It is often confounded

with cultus of form or worship of a particular sect, but is

distinguishable from the latter”. WILL DURANT, a great

American historian (1885-1981) in his Magnum Opus ‘THE

STORY OF CIVILIZATION’, Volume 1 entitled ‘OUR ORIENTAL

HERITAGE’ at pages 68 & 69 writes:

‘The priest did not create religion, he merely used it, as a

statesman uses the impulses and customs of mankind;

religion arises not out of sacerdotal invention or

chicanery, but out of the persistent wonder, fear,

insecurity, hopefulness and loneliness of men…” The

priest did harm by tolerating superstition and

monopolizing certain forms of knowledge…Religion

supports morality by two means chiefly: myth and tabu.

Myth creates the supernatural creed through which

celestial sanctions may be given to forms of conduct

socially (or sacerdotally) desirable; heavenly hopes and

terrors inspire the individual to put up with restraints

placed upon him by his masters and his group. Man is

not naturally obedient, gentle, or chaste; and next to that

ancient compulsion which finally generates conscience,

nothing so quietly and continuously conduces to these

uncongenial virtues as the fear of the gods…’.

In NARAYANAN NAMBUDRIPAD vs. MADRAS63, Venkatarama

Aiyar J. quoted the following observations of Leathem C.J in

63 AIR 1954 MAD 385

47

ADELAIDE CO. OF JEHOVAH’S WITNESSES INC. V.

COMMONWEALTH64:

“It would be difficult, if not impossible, to devise a

definition of religion which would satisfy the

adherents of all the many and various religions

which exist, or have existed, in the world. There are

those who regard religion as consisting principally

in a system of beliefs or statement of doctrine. So

viewed religion may be either true or false. Others

are more inclined to regard religion as prescribing a

code of conduct. So viewed a religion may be good

or bad. There are others who pay greater attention

to religion as involving some prescribed form of

ritual or religious observance. Many religious

conflicts have been concerned with matters of ritual

and observance…”

In SHIRUR MUTT supra, ‘religion’ has been given the widest

possible meaning. The English word ‘religion’ has different

shades and colours. It does not fully convey the Indian

concept of religion i.e., ‘dharma’ which has a very wide

meaning, one being ‘moral values or ethics’ on which the life

is naturally regulated. The Apex Court referring to the

aforesaid foreign decision observed:

“…We do not think that the above definition can be

regarded as either precise or adequate. Articles 25 and

26 of our Constitution are based for the most part

upon article 44(2) of the Constitution of Eire and we have

great doubt whether a definition of "religion" as given

above could have been in the minds of our Constitutionmakers when they framed the Constitution. Religion is

certainly a matter of faith with individuals or communities

64 (1943) 67 C.L.R. 116, 123

48

and it is not necessarily theistic. There are well known

religions in India like Buddhism and Jainism which do

not believe in God or in any Intelligent First Cause. A

religion undoubtedly has its basis in a system of beliefs

or doctrines which are regarded by those who profess

that religion as conducive to their spiritual well being, but

it would not be correct to say that religion is nothing else

but a doctrine of belief. A religion may not only lay down

a code of ethical rules for its followers to accept, it might

prescribe rituals and observances, ceremonies and modes

of worship which are regarded as integral parts of

religion, and these forms and observances might extend

even to matters of food and dress…”

(iii) It is relevant to quote what BERTRAND RUSSELL

in his ‘EDUCATION AND SOCIAL ORDER’ (1932) at page 69

wrote: ‘Religion is a complex phenomenon, having both an

individual and a social aspect …throughout history, increase of

civilization has been correlated with decrease of religiosity.’

The free exercise of religion under Article 25 is subject to

restrictions imposed by the State on the grounds of public

order, morality and health. Further it is made subordinate to

other provisions of Part III. Article 25(2)(a) reserves the power

of State to regulate or restrict any economic, financial,

political and other secular activities which may be associated

with religious practice. Article 25(2)(b) empowers the State to

legislate for social welfare and reform even though by so

doing, it might interfere with religious practice.

49

H.M.SEERVAI65 at paragraph 11.35, page 1274, states: “It has

been rightly held by Justice Venkatarama Aiyar for a very

strong Constitution Bench that Article 25(2) which provides for

social and economic reform is, on a plain reading, not limited to

individual rights. So, by an express provision, the freedom of

religion does not exclude social and economic reform although

the scope of social reform, would require to be defined.” This

apart, Article 25(1) deals with rights of individuals whereas

Article 25(2) is much wider in its content and has reference to

communities. This Article, it is significant to note, begins with

the expression ‘Subject to…’. Limitations imposed on religious

practices on the ground of public order, morality and health

having already been saved by the opening words of Article

25(1), the saving would cover beliefs and practices even

though considered essential or vital by those professing the

religion. The text & context of this Article juxtaposed with

other unmistakably show that the freedom guaranteed by this

provision in terms of sanctity, are placed on comparatively a

lower pedestal by the Makers of our Constitution qua other

Fundamental Rights conferred in Part III. This broad view

65 Constitutional Law of India: A Critical Commentary, 4th Edition

50

draws support from a catena of decisions of the Apex Court

beginning with VENKATARAMANA DEVARU, supra.

(iv) RELIGIOUS FREEDOM UNDER OUR

CONSTITUTION VIS-À-VIS AMERICAN CONSTITUTION:

The First Amendment to the US Constitution confers

freedoms in absolute terms and the freedoms granted are the

rule and restrictions on those freedoms are the exceptions

evolved by their courts. However, the Makers of our

Constitution in their wisdom markedly differed from this view.

Article 25 of our Constitution begins with the restriction and

further incorporates a specific provision i.e., clause (2) that in

so many words saves the power of State to regulate or restrict

these freedoms. Mr.Justice Douglas of the US Supreme Court

in KINGSLEY BOOKS INC. vs. BROWN66, in a sense lamented

about the absence of a corresponding provision in their

Constitution, saying “If we had a provision in our Constitution

for ‘reasonable’ regulation of the press such as India has

included in hers, there would be room for argument that

censorship in the interest of morality would be permissible”. In

a similar context, what Chief Justice Hidayatullah, observed

66 354 US 436 (1957)

51

in K.A.ABBAS vs. UNION OF INDIA 67 makes it even more

evoking:

“…The American Constitution stated the guarantee in

absolute terms without any qualification. The Judges try

to give full effect to the guarantee by every argument they

can validly use. But the strongest proponent of the

freedom (Justice Douglas) himself recognised in the

Kingsley case that there must be a vital difference in

approach... In spite of the absence of such a provision

Judges in America have tried to read the words

'reasonable restrictions' into the First Amendment and

thus to make the rights it grants subject to reasonable

regulation …”

Succinctly put, in the United States and Australia, the

freedom of religion was declared in absolute terms and courts

had to evolve exceptions to that freedom, whereas in India,

Articles 25 & 26 of the Constitution appreciably embody the

limits of that freedom.

(v) What is observed in INDIAN YOUNG LAWYERS

ASSOCIATION, supra at paragraphs 209 & 210 about the

scope and content of freedom of religion is illuminating:

“…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

recognized in Articles 14, 15, 19 and 21. While

67 1971 SCR (2) 446

52

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 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.

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. However, in matters of

temple entry, the Constitution recognised the disabilities

which Hindu religion had imposed over the centuries

which restricted the rights of access to dalits and to

various groups within Hindu society. The effect of clause

(2) of Article 25 is to protect the ability of the state to

53

enact laws, and to save existing laws on matters

governed by sub-clauses (a) and (b). Clause (2) of Article

25 is clarificatory of the regulatory power of the state over

matters of public order, morality and health which

already stand recognised in clause (1). Clause 1 makes

the right conferred subject to public order, morality and

health. Clause 2 does not circumscribe the ambit of the

‘subject to public order, morality or health’ stipulation in

clause 1. What clause 2 indicates is that the authority of

the state to enact laws on the categories is not

trammelled by Article 25…”

VII. AS TO PROTECTION OF ESSENTIAL RELIGIOUS

PRACTICE AND THE TEST FOR ITS ASCERTAINMENT:

(i) Since the question of hijab being a part of essential

religious practice is the bone of contention, it becomes

necessary to briefly state as to what is an essential religious

practice in Indian context and how it is to be ascertained. This

doctrine can plausibly be traced to the Chief Architect of our

Constitution, Dr. B.R.Ambedkar and to his famous statement

in the Constituent Assembly during debates on the

Codification of Hindu Law: “the religious conception 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…” [Constituent Assembly Debates VII:

54

781]. In ACHARYA JAGADISHWARANANDA AVADHUTA,

supra, it has been observed at paragraph 9 as under:

“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, etc.

of the given religion… 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.”

(ii) INDIAN YOUNG LAWYERS ASSOCIATION surveyed

the development of law relating to essential religious practice

and the extent of its constitutional patronage consistent with

55

the long standing view. Ordinarily, a religious practice in

order to be called an ‘essential religious practice’ should have

the following indicia: (i) Not every activity associated with the

religion is essential to such religion. Practice should be

fundamental to religion and it should be from the time

immemorial. (ii) Foundation of the practice must precede the

religion itself or should be co-founded at the origin of the

religion. (iii) Such practice must form the cornerstone of religion

itself. If that practice is not observed or followed, it would result

in the change of religion itself and, (iv) Such practice must be

binding nature of the religion itself and it must be compelling.

That a practice claimed to be essential to the religion has

been carried on since time immemorial or is grounded in

religious texts per se does not lend to it the constitutional

protection unless it passes the test of essentiality as is

adjudged by the Courts in their role as the guardians of the

Constitution.

ESSENTIAL RELIGIOUS PRACTICE SHOULD ASSOCIATE

WITH CONSTITUTIONAL VALUES:

(i) March of law regarding essential religious practice: Law

is an organic social institution and not just a black letter

section. In order to be ‘living law of the people’, it marches

56

with the ebb and flow of the times, either through legislative

action or judicial process. Constitution being the

Fundamental Law of the Land has to be purposively

construed to meet and cover changing conditions of social &

economic life that would have been unfamiliar to its Framers.

Since SHAYARA BANO, there has been a paradigm shift in the

approach to the concept of essential religious practice, as

rightly pointed by the learned Advocate General. In INDIAN

YOUNG LAWYERS ASSOCIATION, this branch of law marched

further when the Apex Court added another dimension to the

concept of essential religious practice, by observing at

paragraphs 289 & 291 as under:

“For decades, this Court has witnessed claims resting on

the essentiality of a practice that militate against the

constitutional protection of dignity and individual freedom

under the Constitution. It is the duty of the courts to

ensure that what is protected is in conformity with

fundamental constitutional values and guarantees and

accords with constitutional morality. While the

Constitution is solicitous in its protection of religious

freedom as well as denominational rights, it must be

understood that dignity, liberty and equality constitute

the trinity which defines the faith of the Constitution.

Together, these three values combine to define a

constitutional order of priorities. Practices or beliefs which

detract from these foundational values cannot claim

legitimacy...

Our Constitution places the individual at the heart of the

discourse on rights. In a constitutional order

characterized by the Rule of Law, the constitutional

57

commitment to egalitarianism and the dignity of every

individual enjoins upon the Court a duty to resolve the

inherent tensions between the constitutional guarantee of

religious freedom afforded to religious denominations and

constitutional guarantees of dignity and equality afforded

to individuals. There are a multiplicity of intersecting

constitutional values and interests involved in

determining the essentiality of religious practices. In order

to achieve a balance between competing rights and

interests, the test of essentiality is infused with these

necessary limitations.”

Thus, a person who seeks refuge under the umbrella of Article

25 of the Constitution has to demonstrate not only essential

religious practice but also its engagement with the

constitutional values that are illustratively mentioned at

paragraph 291 of the said decision. It’s a matter of concurrent

requirement. It hardly needs to be stated, if essential religious

practice as a threshold requirement is not satisfied, the case

does not travel to the domain of those constitutional values.

VIII. SOURCES OF ISLAMIC LAW, HOLY QURAN BEING

ITS PRINCIPAL SOURCE:

1. The above having been said, now we need to

concisely discuss about the authentic sources of Islamic law

inasmuch as Quran and Ahadith are cited by both the sides

in support of their argument & counter argument relating to

wearing of hijab. At this juncture, we cannot resist our feel to

reproduce Aiyat 242 of the Quran which says: "It is expected

58

that you will use your commonsense". (Quoted by the Apex

Court in SHAH BANO, supra.

(i) SIR DINSHAH FARDUNJI MULLA’S TREATISE68,

at sections 33, 34 & 35 lucidly states:

“33. Sources of Mahomedan Law: There are four

sources of Mahomedan law, namely, (1) the Koran; (2)

Hadis, that is, precepts, actions and sayings of the

Prophet Mahomed, not written down during his lifetime,

but preserved by tradition and handed down by

authorized persons; (3) Ijmaa, that is, a concurrence of

opinion of the companions of Mahomed and his disciples;

and (4) Qiyas, being analogical deductions derived from a

comparison of the first three sources when they did not

apply to the particular case.”

“34. Interpretation of the Koran: The Courts, in

administering Mahomedan law, should not, as a rule,

attempt to put their own construction on the Koran in

opposition to the express ruling of Mahomedan

commentators of great antiquity and high authority.”

“35. Precepts of the Prophet: Neither the ancient texts

nor the preceipts of the Prophet Mahomed should be

taken literally so as to deduce from them new rules of

law, especially when such proposed rules do not conduce

to substantial justice…”

(ii) FYZEE’S TREATISE: Referring to another Islamic

jurist of great repute Asaf A.A. Fyzee69, what the Apex Court

at paragraphs 7 & 54 in SHAYARA BANO, supra, observed

evokes interest:

68 Principles of Mahomedan law, 20th Edition (2013)

69 Outlines of Muhammadan, Law 5th Edition (2008)

59

“7. There are four sources for Islamic law- (i) Quran (ii)

Hadith (iii) Ijma (iv) Qiyas. The learned author has rightly

said that the Holy Quran is the “first source of law”.

According to the learned author, pre-eminence is to be

given to the Quran. That means, sources other than the

Holy Quran are only to supplement what is given in it

and to supply what is not provided for. In other words,

there cannot be any Hadith, Ijma or Qiyas against what

is expressly stated in the Quran. Islam cannot be antiQuran...

54. …Indeed, Islam divides all human action into five

kinds, as has been stated by Hidayatullah, J. in his

Introduction to Mulla (supra). There it is stated:

“E. Degrees of obedience: Islam divides all actions into

five kinds which figure differently in the sight of God and

in respect of which His Commands are different. This

plays an important part in the lives of Muslims.

(i) First degree: Fard. Whatever is commanded in the

Koran, Hadis or ijmaa must be obeyed.Wajib. Perhaps a

little less compulsory than Fard but only slightly less

so.(ii) Second degree: Masnun, Mandub and Mustahab:

These are recommended actions.(iii) Third degree: Jaiz or

Mubah: These are permissible actions as to which religion

is indifferent (iv) Fourth degree: Makruh: That which is

reprobated as unworthy (v) Fifth degree: Haram: That

which is forbidden.”

The Apex Court at paragraph 55 of SHAYARA BANO has

treated the structural hierarchy of binding nature of Islamic

norms starting from Quran and ending with Haram, while

proscribing the obnoxious practice of triple talaq. The

argument of hijab being mandatory under Ahadith, if not

under Quran, shall be treated hereinafter, in the light of such

a structure.

60

2. AS TO WHICH AUTHORITATIVE COMMENTARY

ON HOLY QURAN, WE ARE PRINCIPALLY RELYING UPON

AND REASONS FOR THAT:

(i) At the outset we make it clear that, in these cases,

our inquiry concerns the nature and practice of wearing of

hijab amongst Muslim women and therefore, references to the

Holy Quran and other sources of Islamic law shall be confined

to the same. During the course of hearing, the versions of

different authors on this scripture were cited, viz., Abdullah

Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab, Dr.

Mustafa Khattab, Muhammad Taqi-ud-Din al-Hilali,

Muhammad Muhsin Khan, Dr. Ghali. However, this Court

prefers to bank upon the ‘The Holy Quran: Text, Translation

and Commentary’ by Abdullah Yusuf Ali, (published by

Goodword Books; 2019 reprint), there being a broad unanimity

at the Bar as to its authenticity & reliability. The speculative

and generalizing mind of this author views the verses of the

scriptures in their proper perspective. He provides the

unifying principles that underlie. His monumental work has a

systematic completeness and perfection of form. It is pertinent

to reproduce Abdullah Yusuf Ali’s ‘Preface to First Edition’ of

his book, which is as under:

61

“…In translating the Text I have aired no views of my

own, but followed the received commentators. Where they

differed among themselves, I have had to choose what

appeared to me to be the most reasonable opinion from all

points of view. Where it is a question merely of words, I

have not considered the question important enough to

discuss in the Notes, but where it is a question of

substance, I hope adequate explanations will be found in

the notes. Where I have departed from the literal

translation in order to express the spirit of the original

better in English, I have explained the literal meaning in

the Notes… Let me explain the scope of the Notes. I have

made them as short as possible consistently with the

object I have in view, viz., to give to the English reader,

scholar as well as general reader, a fairly complete but

concise view of what I understand to be the meaning of

the Text…”

(ii) There is yet another reason as to why we place our

reliance on the commentary of Mr. Abdullah Yusuf Ali. The

Apex court itself in a catena of cases has treated the same as

the authoritative work. In SHAYARA BANO, we find the

following observations at paragraphs 17 & 18:

“17. Muslims believe that the Quran was revealed by God

to the Prophet Muhammad over a period of about 23

years, beginning from 22.12.609, when Muhammad was

40 years old. The revelation continued upto the year 632

– the year of his death. Shortly after Muhammad’s death,

the Quran was completed by his companions, who had

either written it down, or had memorized parts of it.

These compilations had differences of perception.

Therefore, Caliph Usman - the third, in the line of caliphs

recorded a standard version of the Quran, now known as

Usman’s codex. This codex is generally treated, as the

original rendering of the Quran.

18. During the course of hearing, references to the Quran

were made from ‘The Holy Quran: Text Translation and

Commentary’ by Abdullah Yusuf Ali, (published by Kitab

62

Bhawan, New Delhi, 14th edition, 2016). Learned counsel

representing the rival parties commended, that the text

and translation in this book, being the most reliable,

could safely be relied upon. The text and the inferences

are therefore drawn from the above publication…The

Quran is divided into ‘suras’ (chapters). Each ‘sura’

contains ‘verses’, which are arranged in sections.…”

The above apart, none at the Bar has disputed the profound

scholarship of this writer or the authenticity of his

commentary. We too find construction of and comments on

suras and verses of the scripture illuminative and immensely

appealing to reason & justice.

IX. AS TO HIJAB BEING A QURANIC INJUNCTION:

(i) Learned advocates appearing for the petitioners

vehemently argued that the Quran injuncts Muslim women to

wear hijab whilst in public gaze. In support, they heavily

banked upon certain suras from Abdullah Yusuf Ali’s book.

Before we reproduce the relevant suras and verses, we feel it

appropriate to quote what Prophet had appreciably said at

sūra (ii) verse 256 in Holy Quran: ‘Let there be no

compulsion in religion…’ What Mr. Abdullah Yusuf Ali in

footnote 300 to this verse, appreciably reasons out, is again

worth quoting: ‘Compulsion is incompatible with religion

because religion depends upon faith and will, and these would

be meaningless if induced by force...’ With this at heart, we are

63

reproducing the following verses from the scripture, which

were pressed into service at the Bar.

Sūra xxiv (Nūr):

The environmental and social influences which most

frequently wreck our spiritual ideals have to do with sex,

and especially with its misuse, whether in the form of

unregulated behavior, of false charges or scandals, or

breach of the refined conventions of personal or domestic

privacy. Our complete conquest of all pitfalls in such

matters enables us to rise to the higher regions of Light

and of God-created Nature, about which a mystic doctrine

is suggested. This subject is continued in the next Sūra.

Privacy should be respected, and the utmost decorum

should be observed in dress and manners

(xxiv. 27 – 34, and C. 158)

Domestic manners and manners in public or collective life

all contribute to the highest virtues, and are part of our

spiritual duties leading upto God”

(xxiv. 58 – 64, and C. 160).

“And say to the believing women

That they should lower

Their gaze and guard∗

.

 Their modesty; that they

Should not display their

Beauty and ornaments* except

What (must ordinarily) appear

Thereof; that they should

Draw their veils over

Their bosoms and not display

Their beauty except

To their husband, their fathers,

Their husbands’ father, their sons,

Their husbands’ sons,

Their brothers or their brothers’ sons,

Or their sisters’ sons,

∗

 References to the footnote attached to these verses shall be made in

subsequent paragraphs.

64

Or their women, or the slaves

Whom their right hands

Possess, or male servants

Free from physical needs,

Or small children who

Have no sense of the shame

Of sex; that they

Should strike their feet

In order to draw attention

To their hidden ornaments.

And O ye Believers!

Turn ye all together

Towards God, that ye

May attain Bliss.*” (xxiv. 31, C. – 158)

Sūra xxxiii (Ahzāb)

“Prophet! Tell

Thy wives and daughters,

And the believing women*

,

That they should case

Their outer garments over*

Their persons (when abroad):

That is most convenient,

That they should be known*

(As such) and not molested.

And God is Oft – Forgiving, *

Most Merciful.” (xxxiii. 59, C. - 189)

Is hijab Islam-specific?

(ii) Hijab is a veil ordinarily worn by Muslim women, is true.

Its origin in the Arabic verb hajaba, has etymological

similarities with the verb “to hide”. Hijab nearly translates to

partition, screen or curtain. There are numerous dimensions

of understanding the usage of the hijab: visual, spatial, ethical

* Id

65

and moral. This way, the hijab hides, marks the difference,

protects, and arguably affirms the religious identity of the

Muslim women. This word as such is not employed in Quran,

cannot be disputed, although commentators may have

employed it. Indian jurist Abdullah Yusuf Ali referring to sūra

(xxxiii), verse 59, at footnote 3765 in his book states: “Jilbāb,

plural Jalābib: an outer garment; a long gown covering the

whole body, or a cloak covering the neck as bosom.”. In the

footnote 3760 to Verse 53, he states: “…In the wording, note

that for Muslim women generally, no screen or hijab

(Purdah) is mentioned, but only a veil to cover the bosom,

and modesty in dress. The screen was a special feature

of honor for the Prophet’s household, introduced about

five or six years before his death...” Added, in footnote

3767 to verse 59 of the same sura, he opines: “This rule was

not absolute: if for any reason it could not be observed,

‘God is Oft. Returning, Most Merciful.’…” Thus, there is

sufficient intrinsic material within the scripture itself to

support the view that wearing hijab has been only

recommendatory, if at all it is.

(iii) The Holy Quran does not mandate wearing of hijab

or headgear for Muslim women. Whatever is stated in the

66

above sūras, we say, is only directory, because of absence of

prescription of penalty or penance for not wearing hijab, the

linguistic structure of verses supports this view. This apparel

at the most is a means to gain access to public places and not

a religious end in itself. It was a measure of women

enablement and not a figurative constraint. There is a

laudable purpose which can be churned out from Yusuf Ali’s

footnotes 2984, 2985 & 2987 to verses in Sūra xxiv (Nūr) and

footnotes 3764 & 3765 to verses in Sūra xxxiii (Ahzāb). They

are reproduced below:

Sūra xxiv (Nūr)

“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 uncovering of the bosom.”

“2985. Zinat 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 negligé 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

67

attendance; but this item would now be blank, with

the abolition of slavery; (5) old or infirm menservants; and (6) infants or small children before

they get a sense of sex.

“2987. While all these details of the purity

and the 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 make 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.

Mystics understand the rules of decorum

themselves to typify spiritual truths. Our soul, like a

modest maiden, allows not her eyes to stray from

the One True God. And her beauty is not for vulgar

show but for God.”

Sūra xxxiii (Ahzāb)

“3764. This is for all Muslim women, those of

the Prophet’s household, as well as the others. The

times were those of insecurity (see next verse) and

they were asked to cover themselves with outer

garments when walking abroad. It was never

contemplated that they should be confined to their

houses like prisoners.”

“3765. Jilbāb, plural Jalābib: an outer

garment; a long gown covering the whole body, or a

cloak covering the neck as bosom.”

(iv) The essential part of a religion is primarily to be

ascertained with reference to the doctrine of that religion itself,

gains support from the following observations in INDIAN

YOUNG LAWYERS ASSOCIATION:

68

“286. In determining the essentiality of a practice, it is

crucial to consider whether the practice is prescribed to

be of an obligatory nature within that religion. If a

practice is optional, it has been held that it cannot be said

to be ‘essential’ to a religion. A practice claimed to be

essential must be such that the nature of the religion

would be altered in the absence of that practice. If there

is a fundamental change in the character of the religion,

only then can such a practice be claimed to be an

‘essential’ part of that religion.”

It is very pertinent to reproduce what the Islamic jurist Asaf

A.A. Fyzee, supra at pages 9-11 of his book states:

“…We have the Qur’an which is the very word of God.

Supplementary to it we have Hadith which are the

Traditions of the Prophet- the records of his actions and

his sayings- from which we must derive help and

inspiration in arriving at legal decisions. If there is

nothing either in the Qur’an or in the Hadith to answer

the particular question which is before us, we have to

follow the dictates of secular reason in accordance with

certain definite principles. These principles constitute the

basis of sacred law or Shariat as the Muslim doctors

understand it. And it is these fundamental juristic notions

which we must try to study and analyse before we

approach the study of the Islamic civil law as a whole, or

even that small part of it which in India is known as

Muslim law...”

(v) Petitioners pressed into service sūra (xxxiii), verse

59, in support of their contention that wearing hijab is an

indispensable requirement of Islamic faith. This contention is

bit difficult to countenance. It is relevant to refer to the

historical aspects of this particular verse as vividly explained

by Abdullah Yusuf Ali himself at footnote 3766:

69

“The object was not to restrict the liberty of women, but to

protect them from harm and molestation under the

conditions then existing in Medina. In the East and in 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 civilizations. Assyrian Law in its palmist days

(say, 7th century B.C.), enjoined the veiling of married

women and forbade the veiling of slaves and women of ill

fame: see Cambridge Ancient History, III.107”

It needs to be stated that wearing hijab is not religion-specific,

as explained by Sara Slininger from Centralia, Illinois in her

research paper “VEILED WOMEN: HIJAB, RELIGION, AND

CULTURAL PRACTICE”. What she writes throws some light on

the socio-cultural practices of wearing hijab in the region,

during the relevant times:

“Islam was not the first culture to practice veiling their

women. Veiling practices started long before the Islamic

prophet Muhammad was born. Societies like the

Byzantines, Sassanids, and other cultures in Near and

Middle East practiced veiling. There is even some

evidence that indicates that two clans in southwestern

Arabia practiced veiling in pre-Islamic times, the Banū

Ismāʿīl and Banū Qaḥṭān. Veiling was a sign of a

women’s social status within those societies. In

Mesopotamia, the veil was a sign of a woman’s high

status and respectability. Women wore the veil to

distinguish Slininger themselves from slaves and

unchaste women. In some ancient legal traditions, such

as in Assyrian law, unchaste or unclean women, such as

harlots and slaves, were prohibited from veiling

themselves. If they were caught illegally veiling, they

were liable to severe penalties. The practice of veiling

spread throughout the ancient world the same way that

many other ideas traveled from place to place during this

time: invasion.”

70

(vi) Regard being had to the kind of life conditions

then obtaining in the region concerned, wearing hijab was

recommended as a measure of social security for women and

to facilitate their safe access to public domain. At the most

the practice of wearing this apparel may have something to do

with culture but certainly not with religion. This gains

credence from Yusuf Ali’s Note 3764 to verse 59 which runs

as under:

“…The times were those of insecurity (see next verse) and

they were asked to cover themselves with outer garments

when walking abroad. It was never contemplated that

they should be confined to their houses like prisoners.”

History of mankind is replete with instances of abuse and

oppression of women. The region and the times from which

Islam originated were not an exception. The era before the

introduction of Islam is known as Jahiliya-a time of barbarism

and ignorance. The Quran shows concern for the cases of

‘molestation of innocent women’ and therefore, it

recommended wearing of this and other apparel as a measure

of social security. May be in the course of time, some

elements of religion permeated into this practice as ordinarily

happens in any religion. However, that per se does not render

the practice predominantly religious and much less essential

71

to the Islamic faith. This becomes evident from Ali’s footnote

3768 to verse 60 which concludes with the following profound

line “Alas! We must ask ourselves the question: ‘Are these

conditions present among us today?’” Thus, it can be

reasonably assumed that the practice of wearing hijab had a

thick nexus to the socio-cultural conditions then prevalent in

the region. The veil was a safe means for the women to leave

the confines of their homes. Ali’s short but leading question is

premised on this analysis. What is not religiously made

obligatory therefore cannot be made a quintessential aspect of

the religion through public agitations or by the passionate

arguments in courts.

(vii) Petitioners also relied upon verses 4758 & 4759

(Chapter 12) from Dr.Muhammad Muhsin Khan’s ‘The

Translation of the Meanings of Sahih Al-Bukhari, ArabicEnglish’, Volume 6, Darussalam publication, Riyadh, Saudi

Arabia. This verse reads:

“4758. Narrated ‘Aishah’: May Allah bestow His Mercy

on the early emigrant women. When Allah revealed:

“…and to draw their veils all over their Juyubihinna (i.e.,

their bodies, faces, necks and bosoms)…” (V.24:31) they

tore their Murut (woolen dresses or waist-binding clothes

or aprons etc.) and covered their heads and faces with

those torn Muruts.

72

4759. Narrated Safiyya bint Shaiba: Aishah used to say:

“When (the Verse): ‘… and to draw their veils all over

their Juhubihinna (i.e., their bodies, faces, necks and

bosoms, etc.)…’ (V.24:31) was revealed, (the ladies) cult

their waist-sheets from their margins and covered their

heads and faces with those cut pieces of cloth.”

Firstly, no material is placed by the petitioners to show the

credentials of the translator namely Dr.Muhammad Muhsin

Khan. The first page of volume 6 describes him as: “Formerly

Director, University Hospital, Islamic University, Al-Madina, AlMunawwara (Kingdom of Saudi Arabia). By this, credentials

required for a commentator cannot be assumed. He has held

a prominent position in the field of medicine, is beside the

point. We found reference to this author in a decision of

Jammu & Kashmir High Court in LUBNA MEHRAJ VS.

MEHRAJ-UD-DIN KANTH70. Even here, no credentials are

discussed nor is anything stated about the authenticity and

reliability of his version of Ahadith. Secondly, the text &

context of the verse do not show its obligatory nature. Our

attention is not drawn to any other verses in the translation

from which we can otherwise infer its mandatory nature.

Whichever be the religion, whatever is stated in the

scriptures, does not become per se mandatory in a wholesale

way. That is how the concept of essential religious practice, is

70 2004 (1) JKJ 418

73

coined. If everything were to be essential to the religion

logically, this very concept would not have taken birth. It is on

this premise the Apex Court in SHAYARA BANO, proscribed

the 1400 year old pernicious practice of triple talaq in Islam.

What is made recommendatory by the Holy Quran cannot be

metamorphosed into mandatory dicta by Ahadith which is

treated as supplementary to the scripture. A contra argument

offends the very logic of Islamic jurisprudence and normative

hierarchy of sources. This view gains support from paragraph

42 of SHAYARA BANO which in turn refers to Fyzee’s work.

Therefore, this contention too fails.

X. AS TO VIEWS OF OTHER HIGH COURTS ON HIJAB

BEING AN ESSENTIAL RELIGIOUS PRACTICE:

Strangely, in support of their version and counter version,

both the petitioners and the respondents drew our attention

to two decisions of the Kerala High Court, one decision of

Madras and Bombay each. Let us examine what these cases

were and from which fact matrix, they emanated.

(i) In re AMNAH BINT BASHEER, supra: this judgment

was rendered by a learned Single Judge A.Muhamed

Mustaque J. of Hon’ble Kerala High Court on 26.4.2016.

Petitioner, the students (minors) professing Islam had an

74

issue with the dress code prescribed for All India Pre-Medical

Entrance Test, 2016. This prescription by the Central Board

of Secondary Education was in the wake of large scale

malpractices in the entrance test during the previous years.

At paragraph 29, learned Judge observed:

“Thus, the analysis of the Quranic injunctions and the

Hadiths would show that it is a farz to cover the head

and wear the long sleeved dress except face part and

exposing the body otherwise is forbidden (haram). When

farz is violated by action opposite to farz that action

becomes forbidden (haram). However, there is a

possibility of having different views or opinions for the

believers of the Islam based on Ijithihad (independent

reasoning). This Court is not discarding such views. The

possibility of having different propositions is not a ground

to deny the freedom, if such propositions have some

foundation in the claim…”

Firstly, it was not a case of school uniform as part of

Curricula as such. Students were taking All India PreMedical Entrance Test, 2016 as a onetime affair and not on

daily basis, unlike in schools. No Rule or Regulation having

force of law prescribing such a uniform was pressed into

service. Secondly, the measure of ensuring personal

examination of the candidates with the presence of one lady

member prior to they entering the examination hall was a

feasible alternative. This ‘reasonable exception’ cannot be

stretched too wide to swallow the rule itself. That feasibility

75

evaporates when one comes to regular adherence to school

uniform on daily basis. Thirdly, learned Judge himself in all

grace states: “However, there is a possibility of having different

views or opinions for the believers of the Islam based on

Ijithihad (independent reasoning). In formulating our view,

i.e., in variance with this learned Judge’s, we have heavily

drawn from the considered opinions of Abdullah Yusuf Ali’s

works that are recognized by the Apex Court as being

authoritative vide SHAYARA BANO and in other several

decisions. There is no reference to this learned authors’

commentary in the said judgment. Learned Judge refers to

other commentators whose credentials and authority are not

forthcoming. The fact that the Writ Appeal against the same

came to be negatived71 by a Division Bench, does not make

much difference. Therefore, from this decision, both the sides

cannot derive much support for their mutually opposing

versions.

(ii) In re FATHIMA THASNEEM supra: the girl students

professing Islam had an issue with the dress code prescribed

by the management of a school run by a religious minority

(Christians) who had protection under Articles 29 & 30 of the

71 (2016) SCC Online Ker 487

76

Constitution. This apart, learned Judge i.e., A.Muhamed

Mustaque J. was harmonizing the competing interests

protected by law i.e., community rights of the minority

educational institution and the individual right of a student.

He held that the former overrides the latter and negatived the

challenge, vide order dated 4.12.2018 with the following

observation:

“10. In such view of the matter, I am of the considered

view that the petitioners cannot seek imposition of their

individual right as against the larger right of the

institution. It is for the institution to decide whether the

petitioners can be permitted to attend the classes with the

headscarf and full sleeve shirt. It is purely within the

domain of the institution to decide on the same. The Court

cannot even direct the institution to consider such a

request. Therefore, the writ petition must fail. Accordingly,

the writ petition is dismissed. If the petitioners approach

the institution for Transfer Certificate, the school authority

shall issue Transfer Certificate without making any

remarks. No doubt, if the petitioners are willing to abide

by the school dress code, they shall be permitted to

continue in the same school…”

This decision follows up to a particular point the reasoning in

the earlier decision (2016), aforementioned. Neither the

petitioners nor the respondent-State can bank upon this

decision, its fact matrix being miles away from that of these

petitions. This apart, what we observed about the earlier

decision substantially holds water for this too.

77

(iii) In re FATHIMA HUSSAIN, supra: This decision by a

Division Bench of Bombay High Court discussed about

Muslim girl students’ right to wear hijab “…in exclusive girls

section cannot be said to in any manner acting inconsistent

with the aforesaid verse 31 or violating any injunction provided

in Holy Quran. It is not an obligatory overt act enjoined by

Muslim religion that a girl studying in all girl section

must wear head-covering. The essence of Muslim religion or

Islam cannot be said to have been interfered with by directing

petitioner not to wear head-scarf in the school.” These

observations should strike the death knell to Writ Petition

Nos.2146, 2347, 3038/2022 wherein the respondent college

happens to be all-girl-institution (not co-education). The

Bench whilst rejecting the petition, at paragraph 8 observed:

“We therefore, do not find any merit in the contention of the

learned counsel for the petitioner that direction given by the

Principal to the petitioner on 28-11-2001 to not to wear headscarf or cover her head while attending school is violative of

Article 25 of Constitution of India.” We are at loss to know how

this decision is relevant for the adjudication of these petitions.

(iv) In re SIR M. VENKATA SUBBARAO, supra: The

challenge in this case was to paragraph 1 of the Code of

78

Conduct prescribing a dress code for the teachers. The

Division Bench of Madras High Court while dismissing the

challenge at paragraph 16 observed as under:

“For the foregoing reasons and also in view of the

fact that the teachers are entrusted with not only

teaching subjects prescribed under the syllabus, but also

entrusted with the duty of inculcating discipline amongst

the students, they should set high standards of discipline

and should be a role model for the students. We have

elaborately referred to the role of teachers in the earlier

portion of the order. Dress code, in our view, is one of the

modes to enforce discipline not only amongst the

students, but also amongst the teachers. Such imposition

of dress code for following uniform discipline cannot be

the subject matter of litigation that too, at the instance of

the teachers, who are vested with the responsibility of

inculcating discipline amongst the students. The Court

would be very slow to interfere in the matter of discipline

imposed by the management of the school only on the

ground that it has no statutory background. That apart,

we have held that the management of the respondent

school had the power to issue circulars in terms of clause

6 of Annexure VIII of the Regulations. In that view of the

matter also, we are unable to accept the contention of the

learned counsel for appellant in questioning the circular

imposing penalty for not adhering to the dress code.”

This case has completely a different fact matrix. Even the

State could not have banked upon this in structuring the

impugned Govt. Order dated 5.2.2022. The challenge to the

dress code was by the teacher and not by the students. The

freedom of conscience or right to religion under Article 25 was

not discussed. This decision is absolutely irrelevant.

79

(v) In re PRAYAG DAS vs. CIVIL JUDGE

BULANDSHAHR72: This decision is cited by the petitioner in

W.P.No.4338/2022 (PIL) who supports the case of the State.

This decision related to a challenge to the prescription of

dress code for the lawyers. The Division Bench of Allahabad

High Court whilst rejecting the challenge, observed at

paragraph 20 as under:

“In our opinion the various rules prescribing the dress of

an Advocate serve a very useful purpose. In the first

place, they distinguish an Advocate from a litigant or

other members of the public who may be jostling with him

in a Court room. They literally reinforce the

Shakespearian aphorism that the apparel oft proclaims

the man. When a lawyer is in prescribed dress his

identity can never be mistaken. In the second place, a

uniform prescribed dress worn by the members of the Bar

induces a seriousness of purpose and a sense of decorum

which are highly conducive to the dispensation of

justice...”

This decision is not much relevant although it gives some idea

as to the justification for prescribing uniform, be it in a

profession or in an educational institution. Beyond this, it is

of no utility to the adjudication of issues that are being

debated in these petitions.

72 1973 SCC OnLine All 333

80

XI. AS TO WEARING HIJAB BEING A MATTER OF

FREEDOM OF CONSCIENCE:

(1) Some of the petitioners vehemently argued that,

regardless of right to religion, the girl students have the

freedom of conscience guaranteed under Article 25 itself and

that they have been wearing hijab as a matter of conscience

and therefore, interdicting this overt act is offensive to their

conscience and thus, is violative of their fundamental right. In

support, they heavily rely upon BIJOE EMMANUEL supra,

wherein at paragraph 25, it is observed as under:

“We are satisfied, in the present case, that the expulsion

of the three children from the school for the reason that

because of their conscientiously held religious faith, they

do not join the singing of the national anthem in the

morning assembly though they do stand up respectfully

when the anthem is sung, is a violation of their

fundamental right to freedom of conscience and freely to

profess, practice and propagate religion.” .

Conscience is by its very nature subjective. Whether the

petitioners had the conscience of the kind and how they

developed it are not averred in the petition with material

particulars. Merely stating that wearing hijab is an overt act of

conscience and therefore, asking them to remove hijab would

offend conscience, would not be sufficient for treating it as a

ground for granting relief. Freedom of conscience as already

mentioned above, is in distinction to right to religion as was

81

clarified by Dr. B.R.Ambedkar in the Constituent Assembly

Debates. There is scope for the argument that the freedom of

conscience and the right to religion are mutually exclusive.

Even by overt act, in furtherance of conscience, the matter

does not fall into the domain of right to religion and thus, the

distinction is maintained. No material is placed before us for

evaluation and determination of pleaded conscience of the

petitioners. They have not averred anything as to how they

associate wearing hijab with their conscience, as an overt act.

There is no evidence that the petitioners chose to wear their

headscarf as a means of conveying any thought or belief on

their part or as a means of symbolic expression. Pleadings at

least for urging the ground of conscience are perfunctory, to

say the least.

(2) BIJOE EMMANUEL CASE: ITS FACT MATRIX AND

RATIO DECIDENDI:

(i) Since the petitioners heavily banked upon BIJOE

EMMANUEL, in support of their contention as to freedom of

conscience, we need to examine what were the material facts

of the case and the propositions of law emanating therefrom.

This exercise we have undertaken in the light of what Rupert

Cross and J.W.Harris in their ‘PRECEDENT IN ENGLISH LAW’,

82

4th Edition – CLARENDON, at page 39 have said: “the ratio

decidendi is best approached by a consideration of the

structure of a typical judgment…A Judge generally summarizes

the evidence, announcing his findings of fact and reviews the

arguments that have been addressed to him by counsel for

each of the parties. If a point of law has been raised, he often

discusses a number of previous decisions…It is not everything

said by a Judge when giving judgment that constitutes a

precedent…This status is reserved for his pronouncements on

the law…The dispute is solely concerned with the facts…It is

not always easy to distinguish law from fact and the reasons

which led a Judge to come to a factual conclusion…” What

LORD HALSBURY said more than a century ago in the

celebrated case of QUINN vs. LEATHEM73' is worth noting. He

had craftily articulated that a decision is an authority for the

proposition that is laid down in a given fact matrix, and not

for all that which logically follows from what has been so laid

down.

(ii) With the above in mind, let us examine the

material facts of BIJOE EMMANUEL: Three ‘law abiding

children’ being the faithful of Jehovah witnesses, did

73 (1901) A.C. 495

83

respectfully stand up but refused to sing the National Anthem

in the school prayer. This refusal was founded on the dicta of

their religion. They were expelled under the instructions of

Deputy Inspector of School. These instructions were proven to

have no force of law. They did not prevent the singing of

National Anthem nor did they cause any disturbance while

others were singing. Only these facts tailored the skirt, rest

being the frills. The decision turned out to be more on the

right to religion than freedom of conscience, although there is

some reference to the conscience. The court recognized the

negative of a fundamental right i.e., the freedom of speech &

expression guaranteed under Article 19 as including right to

remain silent. What weighed with the court was the fact ‘the

children were well behaved, they respectfully stood up when

the National Anthem was sung and would continue to do so

respectfully in the future’ (paragraph 23). Besides, Court found

that their refusal to sing was not confined to Indian National

Anthem but extended to the Songs of every other country.

84

(iii) True it is that the BIJOE EMMANUEL reproduces

the following observation of Davar J. made in JAMSHEDJI

CURSETJEE TARACHAND vs. SOONABAI74:

“…If this is the belief of the community--and it is proved

undoubtedly to be the belief of the Zoroastrian

community--a secular judge is bound to accept that belief-

-it is not for him to sit in judgment on that belief--he has

no right to interfere with the conscience of a donor who

makes a gift in favour of what he believes to be in

advancement of his religion and for the welfare of his

community or of mankind…”

These observations essentially relate to ‘the belief of the

Zoroastrian community’. It very little related to the ‘freedom of

conscience’ as envisaged under Article 25 of the Constitution

enacted about four decades thereafter. The expression

‘conscience of a donor’ is in the light of religious belief much

away from ‘freedom of conscience’. After all the meaning of a

word takes its colour with the companion words i.e., noscitur

a sociis. After all, a word in a judgment cannot be construed

as a word employed in a Statute. In the absence of

demonstrable conformity to the essentials of a decision, the

denomination emerging as a ratio would not be an

operationable entity in every case comprising neighbourly fact

matrix. What is noticeable is that BIJOE EMMANUEL did not

demarcate the boundaries between ‘freedom of conscience’

74 (1909) 33 BOM. 122

85

and ‘right to practise religion’ presumably because the overt

act of the students in respectfully standing up while National

Anthem was being sung transcended the realm of their

conscience and took their case to the domain of religious

belief. Thus, BIJOE EMMANUEL is not the best vehicle for

drawing a proposition essentially founded on freedom of

conscience.

XII. PLEADINGS AND PROOF AS TO ESSENTIAL

RELIGIOUS PRACTICE:

(i) In order to establish their case, claimants have to

plead and prove that wearing of hijab is a religious

requirement and it is a part of ‘essential religious practice’ in

Islam in the light of a catena of decision of the Apex Court

that ultimately ended with INDIAN YOUNG LAWYERS

ASSOCIATION. The same has already been summarized by us

above. All these belong to the domain of facts. In NARAYANA

DEEKSHITHULU, it is said: “…What are essential parts of

religion or religious belief or matters of religion and religious

practice is essentially a question of fact to be considered in the

context in which the question has arisen and the evidencefactual or legislative or historic-presented in that context is

required to be considered and a decision reached…” The

86

claimants have to plead these facts and produce requisite

material to prove the same. The respondents are more than

justified in contending that the Writ Petitions lack the

essential averments and that the petitioners have not loaded

to the record the evidentiary material to prove their case. The

material before us is extremely meager and it is surprising

that on a matter of this significance, petition averments

should be as vague as can be. We have no affidavit before us

sworn to by any Maulana explaining the implications of the

suras quoted by the petitioners’ side. Pleadings of the

petitioners are not much different from those in MOHD. HANIF

QUARESHI, supra which the Apex Court had critized. Since

how long all the petitioners have been wearing hijab is not

specifically pleaded. The plea with regard to wearing of hijab

before they joined this institution is militantly absent. No

explanation is offered for giving an undertaking at the time of

admission to the course that they would abide by school

discipline. The Apex Court in INDIAN YOUNG LAWYERS

ASSOCIATION, supra, has stated that matters that are

essential to religious faith or belief; have to be adjudged on

the evidence borne out by record. There is absolutely no

material placed on record to prima facie show that wearing of

87

hijab is a part of an essential religious practice in Islam and

that the petitioners have been wearing hijab from the

beginning. This apart, it can hardly be argued that hijab being

a matter of attire, can be justifiably treated as fundamental to

Islamic faith. It is not that if the alleged practice of wearing

hijab is not adhered to, those not wearing hijab become the

sinners, Islam loses its glory and it ceases to be a religion.

Petitioners have miserably failed to meet the threshold

requirement of pleadings and proof as to wearing hijab is an

inviolable religious practice in Islam and much less a part of

‘essential religious practice’.

XIII. AS TO SCHOOL DISCIPLINE & UNIFORM AND

POWER TO PRESCRIBE THE SAME:

(i) We are confronted with the question whether there

is power to prescribe dress code in educational institutions.

This is because of passionate submissions of the petitioners

that there is absolutely no such power in the scheme of 1983

Act or the Rules promulgated thereunder. The idea of

In view of the above discussion, we are of the

considered opinion that wearing of hijab by

Muslim women does not form a part of essential

religious practice in Islamic faith.

88

schooling is incomplete without teachers, taught and the

dress code. Collectively they make a singularity. No

reasonable mind can imagine a school without uniform. After

all, the concept of school uniform is not of a nascent origin. It

is not that, Moghuls or Britishers brought it here for the first

time. It has been there since the ancient gurukul days. Several

Indian scriptures mention samavastr/shubhravesh in

Samskrit, their English near equivalent being uniform.

‘HISTORY OF DHARMASĀSTRA’ by P.V. Kane, Volume II, page

278 makes copious reference to student uniforms. (This work

is treated by the Apex Court as authoritative vide DEOKI

NANDAN vs. MURLIDHAR75). In England, the first recorded

use of standardized uniform/dress code in institutions dates

to back to 1222 i.e., Magna Carta days. ‘LAW, RELIGIOUS

FREEDOMS AND EDUCATION IN EUROPE’ is edited by Myrian

Hunter-Henin; Mark Hill, a contributor to the book, at

Chapter 15 titles his paper ‘BRACELETS, RINGS AND VEILS:

THE ACCOMMODATION OF RELIGIOUS SYMBOLS IN THE

UNIFORM POLICIES OF ENGLISH SCHOOLS’. At page 308,

what he pens is pertinent:

75 AIR 1957 SC 133

89

‘…The wearing of a prescribed uniform for school children

of all ages is a near-universal feature of its educational

system, whether in state schools or in private (fee-paying)

schools. This is not a matter of primary or secondary

legislation or of local governmental regulation but rather

reflects a widespread and long-standing social practice. It

is exceptional for a school not to have a policy on uniform

for its pupils. The uniform (traditionally black or grey

trousers, jumpers and jackets in the coloured livery of the

school and ties for boys serves to identify individuals as

members of a specific institution and to encourage and

promote the corporate, collective ethos of the school. More

subtly, by insisting upon identical clothing (often from a

designated manufacturer) it ensures that all school

children dress the same and appear equal: thus,

differences of social and economic background that would

be evident from the nature and extent of personal

wardrobes are eliminated. It is an effective leveling

feature-particularly in comprehensive secondary schools

whose catchment areas may include a range of school

children drawn from differing parental income brackets

and social classes…’

‘AMERICAN JURISPRUDENCE’, 2nd Edition. (1973), Volume

68, edited by The Lawyers Cooperative Publishing Company

states:

Ҥ249. In accord with the general principle that school

authorities may make reasonable rules and regulations

governing the conduct of pupils under their control, it may

be stated generally that school authorities may prescribe

the kind of dress to be worn by students or make

reasonable regulations as to their personal

appearance…It has been held that so long as students

are under the control of school authorities, they may be

required to wear a designated uniform, or may be

forbidden to use face powder or cosmetics, or to wear

transparent hosiery low-necked dresses, or any style of

clothing tending toward immodesty in dress…

§251. Several cases have held that school regulations

proscribing certain hairstyles were valid, usually on the

90

basis that a legitimate school interest was served by such

a regulation. Thus, it has been held that a public high

school regulation which bars a student from attending

classes because of the length or appearance of his hair is

not invalid as being unreasonable, and arbitrary as

having no reasonable connection with the successful

operation of the school, since a student’s unusual

hairstyle could result in the distraction of other pupils,

and could disrupt and impede the maintenance of a

proper classroom atmosphere or decorum…”

(ii) The argument of petitioners that prescribing

school uniforms pertains to the domain of ‘police power’ and

therefore, unless the law in so many words confers such

power, there cannot be any prescription, is too farfetched. In

civilized societies, preachers of the education are treated next

to the parents. Pupils are under the supervisory control of the

teachers. The parents whilst admitting their wards to the

schools, in some measure share their authority with the

teachers. Thus, the authority which the teachers exercise over

the students is a shared ‘parental power’. The following

observations In T.M.A.PAI FOUNDATION, at paragraph 64,

lend credence to this view:

“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…”

91

It is relevant to state that not even a single ruling of a court

nor a sporadic opinion of a jurist nor of an educationist was

cited in support of petitioners argument that prescribing

school uniform partakes the character of ‘police power’.

Respondents are justified in tracing this power to the text &

context of sections 7(2) & 133 of the 1983 Act read with Rule

11 of 1995 Curricula Rules. We do not propose to reproduce

these provisions that are as clear as gangetic waters. This

apart, the Preamble to the 1983 Act mentions inter alia of

“fostering the harmonious development of the mental and

physical faculties of students and cultivating a scientific and

secular outlook through education.” Section 7(2)(g)(v) provides

for promoting “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.” The Apex Court in

MODERN DENTAL COLLEGE, supra, construed the term

‘education’ to include ‘curricula’ vide paragraph 123. The

word ‘curricula’ employed in section 7(2) of the Act needs to

be broadly construed to include the power to prescribe

uniform. Under the scheme of 1983 Act coupled with

international conventions to which India is a party, there is a

92

duty cast on the State to provide education at least up to

particular level and this duty coupled with power includes the

power to prescribe school uniform.

(iii) In the LAW OF TORTS, 26th Edition by RATANLAL

AND DHIRAJLAL at page 98, parental and quasi parental

authority is discussed: “The old view was that the authority of

a schoolmaster, while it existed, was the same as that of a

parent. A parent, when he places his child with a schoolmaster,

delegates to him all his own authority, so far as it is necessary

for the welfare of the child. The modern view is that the

schoolmaster has his own independent authority to act for the

welfare of the child. This authority is not limited to offences

committed by the pupil upon the premises of the school, but

may extend to acts done by such pupil while on the way to and

from the school…” It is relevant to mention an old English case

in REX vs. NEWPORT (SALOP)76 which these authors have

summarized as under:

“At a school for boys there was a rule prohibiting smoking

by pupils whether in the school or in public. A pupil after

returning home smoked a cigarette in a public street and

next day the schoolmaster administered to him five

strokes with a cane. It was held that the father of the boy

by sending him to the school authorized the schoolmaster

to administer reasonable punishment to the boy for

76 (1929) 2 KB 416

93

breach of a school rule, and that the punishment

administered was reasonable.”

Even in the absence of enabling provisions, we are of the view

that the power to prescribe uniform as of necessity inheres in

every school subject to all just exceptions.

(iv) The incidental question as to who should prescribe

the school uniform also figures for our consideration in the

light of petitioners’ contention that government has no power

in the scheme of 1983 Act. In T.M.A.PAI FOUNDATION, the

Apex Court observed at paragraph 55 as under:

“…There can be no doubt that in seeking affiliation or

recognition, the Board or the university or the affiliating or

recognizing authority can lay down conditions consistent

with the requirement to ensure the excellence of

education. It can, for instance, indicate the quality of the

teachers by prescribing the minimum qualifications that

they must possess, and the courses of study and

curricula. It can, for the same reasons, also stipulate the

existence of infrastructure sufficient for its growth, as a

pre-requisite. But the essence of a private educational

institution is the autonomy that the institution must have

in its management and administration. There,

necessarily, has to be a difference in the administration

of private unaided institutions and the government-aided

institutions. Whereas in the latter case, the Government

will have greater say in the administration, including

admissions and fixing of fees, in the case of private

unaided institutions, maximum autonomy in the day-today administration has to be with the private unaided

institutions. Bureaucratic or governmental interference in

the administration of such an institution will undermine

its independence...”

94

Section 133(2) of the 1983 Act vests power in the government

to give direction to any educational institution for carrying out

the purposes of the Act or to give effect to any of the

provisions of the Act or the Rules, and that the institution be

it governmental, State aided or privately managed, is bound

to obey the same. This section coupled with section 7(2)

clothes the government with power inter alia to prescribe or

caused to be prescribed school uniform. The government vide

Circular dated 31.1.2014 accordingly has issued a direction.

Significantly, this is not put in challenge and we are not called

upon to adjudge its validity, although some submissions were

made de hors the pleadings that to the extent the Circular

includes the local Member of the Legislative Assembly and his

nominee respectively as the President and Vice President of

the College Betterment (Development) Committee, it is

vulnerable for challenge. In furtherance thereof, it has also

issued a Government Order dated 5.2.2022. We shall be

discussing more about the said Circular and the Order, a bit

later. Suffice it to say now that the contention as to absence

of power to prescribe dress code in schools is liable to be

rejected.

95

XIV. AS TO PRESCRIPTION OF SCHOOL UNIFORM TO

THE EXCLUSION OF HIJAB IF VIOLATES ARTICLES, 14,

15, 19(1)(a) & 21:

(i) There has been a overwhelming juridical opinion

in all advanced countries that in accord with the general

principle, the school authorities may make reasonable

regulations governing the conduct of pupils under their

control and that they may prescribe the kind of dress to be

worn by students or make reasonable regulations as to their

personal appearance, as well. In MILLER vs. GILLS77, a rule

that the students of an agricultural high school should wear a

khaki uniform when in attendance at the class and whilst

visiting public places within 5 miles of the school is not ultra

vires, unreasonable, and void. Similarly, in CHRISTMAS vs. EL

RENO BOARD OF EDUCATION78, a regulation prohibiting male

students who wore hair over their eyes, ears or collars from

participating in a graduation diploma ceremony, which had

no effect on the student’s actual graduation from high school,

so that no educational rights were denied, has been held

valid. It is also true that our Constitution protects the rights

of school children too against unreasonable regulations.

However, the prescription of dress code for the students that

77 (D.C. III) 315 F SUP. 94

78 (D.C. Okla.) 313 F SUPP. 618

96

too within the four walls of the class room as distinguished

from rest of the school premises does not offend

constitutionally protected category of rights, when they are

‘religion-neutral’ and ‘universally applicable’ to all the

students. This view gains support from Justice Scalia’s

decision in EMPLOYMENT DIVISION vs. SMITH79. School

uniforms promote harmony & spirit of common brotherhood

transcending religious or sectional diversities. This apart, it is

impossible to instill the scientific temperament which our

Constitution prescribes as a fundamental duty vide Article

51A(h) into the young minds so long as any propositions such

as wearing of hijab or bhagwa are regarded as religiously

sacrosanct and therefore, not open to question. They

inculcate secular values amongst the students in their

impressionable & formative years.

(ii) The school regulations prescribing dress code for

all the students as one homogenous class, serve

constitutional secularism. It is relevant to quote the

observations of Chief Justice Venkatachalaiah, in ISMAIL

FARUQUI, supra:

79 494 U.S. 872 (1990)

97

“The concept of secularism is one facet of the right to

equality woven as the central golden thread in the fabric

depicting the pattern of the scheme in our Constitution…

In a pluralist, secular polity law is perhaps the greatest

integrating force. Secularism is more than a passive…It is

a positive concept of equal treatment of all religions. What

is material is that it is a constitutional goal and a Basic

Feature of the Constitution.”

It is pertinent to mention that the preamble to the 1983 Act

appreciably states the statutory object being “fostering the

harmonious development of the mental and physical faculties

of students and cultivating a scientific and secular outlook

through education.” This also accords with the Fundamental

Duty constitutionally prescribed under Article 51A(e) in the

same language, as already mentioned above. Petitioners’

argument that ‘the goal of education is to promote plurality, not

promote uniformity or homogeneity, but heterogeneity’ and

therefore, prescription of student uniform offends the

constitutional spirit and ideal, is thoroughly misconceived.

(iii) Petitioners argued that regardless of their freedom

of conscience and right to religion, wearing of hijab does

possess cognitive elements of ‘expression’ protected under

Article 19(1)(a) vide NATIONAL LEGAL SERVICES AUTHORITY,

supra and it has also the substance of privacy/autonomy that

are guarded under Article 21 vide K.S.PUTTASWAMY, supra.

98

Learned advocates appearing for them vociferously submit

that the Muslim students would adhere to the dress code with

hijab of a matching colour as may be prescribed and this

should be permitted by the school by virtue of ‘reasonable

accommodation’. If this proposal is not conceded to, then

prescription of any uniform would be violative of their rights

availing under these Articles, as not passing the ‘least

restrictive test’ and ‘proportionality test’, contended they. In

support, they press into service CHINTAMAN RAO and MD.

FARUK, supra. Let us examine this contention. The Apex

Court succinctly considered these tests in INTERNET &

MOBILE ASSN. OF INDIA vs. RESERVE BANK OF INDIA80, with

the following observations:

"…While testing the validity of a law imposing a

restriction on the carrying on of a business or a

profession, the Court must, as formulated in Md.

Faruk, attempt an evaluation of (i) its direct and

immediate impact upon of the fundamental rights of

the citizens affected thereby (ii) the larger public

interest sought to be ensured in the light of the object

sought to be achieved (iii) the necessity to restrict the

citizens’ freedom (iv) the inherent pernicious nature of

the act prohibited or its capacity or tendency to be

harmful to the general public and (v) the possibility of

achieving the same object by imposing a less drastic

restraint... On the question of proportionality, the

learned Counsel for the petitioners relies upon the

four-pronged test summed up in the opinion of the

majority in Modern Dental College and Research

80 (2020) 10 SCC 274

99

Centre v. State of Madhya Pradesh. These four tests

are (i) that the measure is designated for a proper

purpose (ii) that the measures are rationally

connected to the fulfilment of the purpose (iii) that

there are no alternative less invasive measures and

(iv) that there is a proper relation between the

importance of achieving the aim and the importance

of limiting the right…But even by our own standards,

we are obliged to see if there were less intrusive

measures available and whether RBI has at least

considered these alternatives..."

(iv) All rights have to be viewed in the contextual

conditions which were framed under the Constitution and the

way in which they have evolved in due course. As already

mentioned above, the Fundamental Rights have relative

content and their efficacy levels depend upon the

circumstances in which they are sought to be exercised. To

evaluate the content and effect of restrictions and to adjudge

their reasonableness, the aforesaid tests become handy.

However, the petitions we are treating do not involve the right

to freedom of speech & expression or right to privacy, to such

an extent as to warrant the employment of these tests for

evaluation of argued restrictions, in the form of school dress

code. The complaint of the petitioners is against the violation

of essentially ‘derivative rights’ of the kind. Their grievances

do not go to the core of substantive rights as such but lie in

the penumbra thereof. So, by a sheer constitutional logic, the

100

protection that otherwise avails to the substantive rights as

such cannot be stretched too far even to cover the derivative

rights of this nature, regardless of the ‘qualified public places’

in which they are sought to be exercised. It hardly needs to be

stated that schools are ‘qualified public places’ that are

structured predominantly for imparting educational

instructions to the students. Such ‘qualified spaces’ by their

very nature repel the assertion of individual rights to the

detriment of their general discipline & decorum. Even the

substantive rights themselves metamorphise into a kind of

derivative rights in such places. These illustrate this: the

rights of an under – trial detenue qualitatively and

quantitatively are inferior to those of a free citizen. Similarly,

the rights of a serving convict are inferior to those of an under

– trial detenue. By no stretch of imagination, it can be

gainfully argued that prescription of dress code offends

students’ fundamental right to expression or their autonomy.

In matters like this, there is absolutely no scope for complaint

of manifest arbitrariness or discrimination inter alia under

Articles 14 & 15, when the dress code is equally applicable to

all the students, regardless of religion, language, gender or

the like. It is nobody’s case that the dress code is sectarian.

101

 (v) Petitioners’ contention that ‘a class room should be

a place for recognition and reflection of diversity of society, a

mirror image of the society (socially & ethically)’ in its deeper

analysis is only a hollow rhetoric, ‘unity in diversity’ being the

oft quoted platitude since the days of IN RE KERALA

EDUCATION BILL, supra , wherein paragraph 51 reads: ‘…the

genius of India has been able to find unity in diversity by

assimilating the best of all creeds and cultures.’ The counsel

appearing for Respondent Nos.15 & 16 in W.P.No.2146/2022,

is justified in pressing into service a House of Lords decision

in REGINA vs. GOVERNORS OF DENBIGH HIGH SCHOOL,

supra wherein at paragraph 97, it is observed as under:

“But schools are different. Their task is to educate the

young from all the many and diverse families and

communities in this country in accordance with the

national curriculum. Their task is to help all of their pupils

achieve their full potential. This includes growing up to

play whatever part they choose in the society in which

they are living. The school’s task is also to promote the

ability of people of diverse races, religions and cultures to

live together in harmony. Fostering a sense of community

and cohesion within the school is an important part of

that. A uniform dress code can play its role in smoothing

over ethnic, religious and social divisions…”

(vi) It hardly needs to be stated that our Constitution

is founded on the principle of ‘limited government’. “What is

the most important gift to the common person given by this

102

Constitution is ‘fundamental rights’, which may be called

‘human rights’ as well.” It is also equally true that in this

country, the freedom of citizens has been broadening

precedent by precedent and the most remarkable feature of

this relentless expansion is by the magical wand of judicial

activism. Many new rights with which the Makers of our

Constitution were not familiar, have been shaped by the

constitutional courts. Though the basic human rights are

universal, their regulation as of necessity is also a

constitutional reality. The restriction and regulation of rights

be they fundamental or otherwise are a small price which

persons pay for being the members of a civilized community.

There has to be a sort of balancing of competing interests i.e.,

the collective rights of the community at large and the

individual rights of its members. True it is that the Apex

Court in NATIONAL LEGAL SERVICES AUTHORITY supra, said

that dressing too is an ‘expression’ protected under Article

19(1)(a) and therefore, ordinarily, no restriction can be placed

on one’s personal appearance or choice of apparel. However, it

also specifically mentioned at paragraph 69 that this right is

“subject to the restrictions contained in Article 19(2) of the

Constitution.” The said decision was structured keeping the

103

‘gender identity’ at its focal point, attire being associated with

such identity. Autonomy and privacy rights have also

blossomed vide K.S.PUTTASWAMY, supra. We have no quarrel

with the petitioners’ essential proposition that what one

desires to wear is a facet of one’s autonomy and that one’s

attire is one’s expression. But all that is subject to reasonable

regulation.

(vii) Nobody disputes that persons have a host of rights

that are constitutionally guaranteed in varying degrees and

they are subject to reasonable restrictions. What is reasonable

is dictated by a host of qualitative & quantitative factors.

Ordinarily, a positive of the right includes its negative. Thus,

right to speech includes right to be silent vide BIJOE

EMMANUEL. However, the negative of a right is not invariably

coextensive with its positive aspect. Precedentially speaking,

the right to close down an industry is not coextensive with its

positive facet i.e., the right to establish industry under Article

19(1)(g) vide EXCEL WEAR vs. UNION OF INDIA81. Similarly,

the right to life does not include the right to die under Article

21 vide COMMON CAUSE vs. UNION OF INDIA82, attempt to

81 AIR 1979 SC 25

82 (2018) 5 SCC 1

104

commit suicide being an offence under Section 309 of Indian

Penal Code. It hardly needs to be stated the content & scope

of a right, in terms of its exercise are circumstantially

dependent. Ordinarily, liberties of a person stand curtailed

inter alia by his position, placement and the like. The extent of

autonomy is enormous at home, since ordinarily residence of

a person is treated as his inviolable castle. However, in

‘qualified public places’ like schools, courts, war rooms,

defence camps, etc., the freedom of individuals as of

necessity, is curtailed consistent with their discipline &

decorum and function & purpose. Since wearing hijab as a

facet of expression protected under Article 19(1)(a) is being

debated, we may profitably advert to the ‘free speech

jurisprudence’ in other jurisdictions. The Apex Court in

INDIAN EXPRESS NEWSPAPERS vs. UNION OF INDIA83

observed:

"While examining the constitutionality of a law

which is alleged to contravene Article 19(1)(a) of the

Constitution, we cannot, no doubt, be solely guided

by the decisions of the Supreme Court of the United

States of America. But in order to understand the

basic principles of freedom of speech and expression

and the need for that freedom in a democratic

country, we may take them into consideration...".

83 (1985) 1 SCC 641

105

(viii) In US, the Fourteenth Amendment is held to

protect the First Amendment rights of school children against

unreasonable rules or regulations vide BURNSIDE vs.

BYARS84. Therefore, a prohibition by the school officials, of a

particular expression of opinion is held unsustainable where

there is no showing that the exercise of the forbidden right

would materially interfere with the requirements of a school’

positive discipline. However, conduct by a student, in class or

out of it, which for any reason-whether it stems from time,

place, or type of behavior-materially disrupts class work or

involves substantial disorder or invasion of the rights of

others, is not immunized by the constitutional guaranty of

freedom of speech vide JOHN F. TINKER vs. DES MOINES

INDEPENDENT COMMUNITY SCHOOL, supra In a country

wherein right to speech & expression is held to heart, if school

restrictions are sustainable on the ground of positive

discipline & decorum, there is no reason as to why it should

be otherwise in our land. An extreme argument that the

students should be free to choose their attire in the school

individually, if countenanced, would only breed indiscipline

that may eventually degenerate into chaos in the campus and

84 363 F 2d 744 (5th Cir. 1966)

106

later, in the society at large. This is not desirable to say the

least. It is too farfetched to argue that the school dress code

militates against the fundamental freedoms guaranteed under

Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore,

the same should be outlawed by the stroke of a pen.

(ix) CONCEDING HIJAB ON THE PRINCIPLE OF

REASONABLE ACCOMMODATION:

The counsel for the petitioners passionately submitted

that the students should be permitted to wear hijab of

structure & colour that suit to the prescribed dress code. In

support of this, they bank upon the ‘principle of reasonable

accommodation’. They drew our attention to the prevalent

practice of dress codes/uniforms in Kendriya Vidyalayas. We

are not impressed by this argument. Reasons are not far to

seek: firstly, such a proposal if accepted, the school uniform

ceases to be uniform. There shall be two categories of girl

students viz., those who wear the uniform with hijab and

those who do it without. That would establish a sense of

‘social-separateness’, which is not desirable. It also offends

the feel of uniformity which the dress-code is designed to

bring about amongst all the students regardless of their

religion & faiths. As already mentioned above, the statutory

107

scheme militates against sectarianism of every kind.

Therefore, the accommodation which the petitioners seek

cannot be said to be reasonable. The object of prescribing

uniform will be defeated if there is non-uniformity in the

matter of uniforms. Youth is an impressionable period when

identity and opinion begin to crystallize. Young students are

able to readily grasp from their immediate environment,

differentiating lines of race, region, religion, language, caste,

place of birth, etc. The aim of the regulation is to create a

‘safe space’ where such divisive lines should have no place

and the ideals of egalitarianism should be readily apparent to

all students alike. Adherence to dress code is a mandatory for

students. Recently, a Division Bench of this Court disposed

off on 28.08.2019, Writ Petition No.13751 OF 2019 (EDNRES-PIL) between MASTER MANJUNATH vs. UNION OF INDIA

on this premise. What the Kendriya Vidyalayas prescribe as

uniform/dress code is left to the policy of the Central

Government. Ours being a kind of Federal Structure

(Professor K.C. Wheare), the Federal Units, namely the States

need not toe the line of Center.

(x) Petitioners’ heavy reliance on the South African

court decision in MEC FOR EDUCATION: KWAZULU-NATAL,

108

supra, does not much come to their aid. Constitutional

schemes and socio-political ideologies vary from one country

to another, regardless of textual similarities. A Constitution of

a country being the Fundamental Law, is shaped by several

streams of forces such as history, religion, culture, way of life,

values and a host of such other factors. In a given fact matrix,

how a foreign jurisdiction treats the case cannot be the sole

model readily availing for adoption in our system which

ordinarily treats foreign law & foreign judgments as matters of

facts. Secondly, the said case involved a nose stud, which is

ocularly insignificantly, apparently being as small as can be.

By no stretch of imagination, that would not in any way affect

the uniformity which the dress code intends to bring in the

class room. That was an inarticulate factor of the said

judgment. By and large, the first reason supra answers the

Malaysian court decision too85. Malaysia being a theistic

Nation has Islam as the State religion and the court in its

wisdom treated wearing hijab as being a part of religious

practice. We have a wealth of material with which a view in

respectful variance is formed. Those foreign decisions cited by

85 HJH HALIMATUSSAADIAH BTE HJ KAMARUDDIN V. PUBLIC

SERVICES COMMISSION, MALAYSIA (CIVIL APPEAL NO. 01-05-92)

DECIDED ON 5-8-1994 [1994] 3 MLJ

109

the other side of spectrum in opposing hijab argument, for the

same reasons do not come to much assistance. In several

countries, wearing of burqa or hijab is prohibited, is of no

assistance to us. Noble thoughts coming from whichever

direction are most welcome. Foreign decisions also throw light

on the issues debated, cannot be disputed. However, courts

have to adjudge the causes brought before them essentially in

accordance with native law.

XV. AS TO VALIDITY OF GOVERNMENT CIRCULAR

DATED 31.1.2014 CONCERNING THE FORMATION OF

SCHOOL BETTERMENT (DEVELOPMENT) COMMITTEES:

(i) The government vide Circular dated 31.1.2014

directed constitution of School Betterment Committee inter

alia with the object of securing State Aid & its appropriation

and enhancing the basic facilities & their optimum utilization.

This Committee in every Pre-University College shall be

headed by the local Member of Legislative Assembly (MLA) as

its President and his nominee as the Vice President. The

Principal of the College shall be the Member Secretary. Its

In view of the above, we are of the considered opinion

that the prescription of school uniform is only a

reasonable restriction constitutionally permissible which

the students cannot object to.

110

membership comprises of student representatives, parents,

one educationist, a Vice Principal/Senior Professor & a Senior

Lecturer. The requirement of reservation of SC/ST/Women is

horizontally prescribed. It is submitted at the Bar that these

Committees have been functioning since about eight years or

so with no complaints whatsoever. Petitioners argued for

Committee’s invalidation on the ground that the presence of

local Member of Legislative Assembly and his nominee would

only infuse politics in the campus and therefore, not

desirable. He also submits that even otherwise, the College

Development Committee being extra-legal authority has no

power to prescribe uniform.

(ii) We are not much inclined to undertake a deeper

discussion on the validity of constitution & functioning of

School Betterment (Development) Committees since none of

the Writ Petitions seeks to lay challenge to Government

Circular of January 2014. Merely because these Committees

are headed by the local Member of Legislative Assembly, we

cannot hastily jump to the conclusion that their formation is

bad. It is also relevant to mention what the Apex Court said in

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STATE OF PUNJAB VS. GURDEV SINGH86, after referring to

Professor Wade’s Administrative Law:

“…Apropos to this principle, Prof. Wade states: "the

principle must be equally true even where the 'brand' of

invalidity' is plainly visible; for their also the order can

effectively be resisted in law only by obtaining the

decision of the Court (See: Administrative Law 6th Ed. p.

352). Prof. Wade sums up these principles: The truth of

the matter is that the court will invalidate an order only if

'the right remedy is sought by the right person in the right

proceedings and circumstances. The order may be

hypothetically a nullity, but the Court may refuse to

quash it because of the plain- tiff's lack of standing,

because he does not deserve a discretionary remedy,

because he has waived his rights, or for some other legal

reason. In any such case the 'void' order remains effective

and is, in reality, valid. It follows that an order may be

void for one purpose and valid for another, and that it

may be void against one person but valid against

another." (Ibid p. 352) It will be clear from these

principles, the party aggrieved by the invalidity of the

order has to approach the Court for relief of declaration

that the order against him is inoperative and not binding

upon him. He must approach the Court within the

prescribed period of limitation. If the statutory time limit

expires the Court cannot give the declaration sought

for...”

It is nobody’s case that the Government Circular is void ab

initio and consequently, the School Betterment (Development)

Committees are non est. They have been functioning since last

eight years and no complaint is raised about their

performance, nor is any material placed on record that

warrants consideration of the question of their validity despite

86 AIR 1992 SC 111

112

absence of pleadings & prayers. It hardly needs to be stated

that schools & hospitals amongst other, are the electoral

considerations and therefore, peoples’ representatives do

show concern for the same, as a measure of their

performances. That being the position, induction of local

Members of Legislative Assembly in the Committees per se is

not a ground for voiding the subject Circular.

(iii) We have already held that the schools &

institutions have power to prescribe student uniform. There is

no legal bar for the School Betterment (Development)

Committees to associate with the process of such

prescription. However, there may be some scope for the view

that it is not desirable to have elected representatives of the

people in the school committees of the kind, one of the

obvious reasons being the possible infusion of ‘party-politics’

into the campus. This is not to cast aspersion on anyone. We

are not unaware of the advantages of the schools associating

with the elected representatives. They may fetch funds and

such other things helping development of institutions. This

apart, no law or ruling is brought to our notice that interdicts

their induction as the constituent members of such

committees.

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XVI. AS TO VALIDITY OF GOVERNMENT ORDER DATED

5.2.2022 PROVIDING FOR PRESCRIPTION OF DRESS

CODES IN EDUCATIONAL INSTITUTIONS:

 (i) The validity of Government Order dated

05.02.2022 had been hotly debated in these petitions.

Petitioners argue that this order could not have been issued

in purported exercise of power under sections 133 and 7(2) of

the 1983 Act read with Rule 11 of the 1995 Curricula Rules.

The State and other contesting respondents contend to the

contrary, inter alia by invoking sections 142 & 143 of the

1983 Act, as well. This Order per se does not prescribe any

dress code and it only provides for prescription of uniform in

four different types of educational institutions. The near

English version of the above as submitted by both the sides is

already stated in the beginning part of the judgment.

However, the same is reiterated for the ease of reference:

Students should compulsorily adhere to the dress code/uniform

as follows:

a. in government schools, as prescribed by the

government;

b. in private schools, as prescribed by the school

management;

c. in Pre–University colleges that come within the

jurisdiction of the Department of the Pre–University

114

Education, as prescribed by the College Development

Committee or College Supervision Committee; and

d. wherever no dress code is prescribed, such attire that

would accord with ‘equality & integrity’ and would not

disrupt the ‘public order’.

(ii) Petitioners firstly argued that this Order suffers

from material irregularity apparent on its face inasmuch as

the rulings cited therein do not lay down the ratio which the

government wrongly states that they do. This Order refers to

two decisions of the Kerala High Court and one decision of

Bombay and Madras High Courts each. We have already

discussed all these decisions supra at paragraph (X) and

therefore, much need not be discussed here. Regardless of the

ratio of these decisions, if the Government Order is otherwise

sustainable in law, which we believe it does, the challenge

thereto has to fail for more than one reason: The subject

matter of the Government Order is the prescription of school

uniform. Power to prescribe, we have already held, avails in

the scheme of 1983 Act and the Rules promulgated

thereunder. Section 133(2) of the Act which is broadly worded

empowers the government to issue any directions to give effect

to the purposes of the Act or to any provision of the Act or to

any Rule made thereunder. This is a wide conferment of

power which obviously includes the authority to prescribe

115

school dress code. It is more so because Rule 11 of 1995

Curricula Rules itself provides for the prescription of school

uniform and its modalities. The Government Order can be

construed as the one issued to give effect to this rule itself.

Such an order needs to be construed in the light of the said

rule and the 2014 Circular, since there exists a kinship inter

se. Therefore, the question as to competence of the

government to issue order of the kind is answered in the

affirmative.

(iii) Petitioners’ second contention relates to exercise of

statutory power by the government that culminated into

issuance of the impugned order. There is difference between

existence of power and the exercise of power; existence of

power per se does not justify its exercise. The public power

that is coupled with duty needs to be wielded for effectuating

the purpose of its conferment. Learned counsel appearing for

the students argued that the Government Order has to be

voided since the reasons on which it is structured are ex facie

bad and that new grounds cannot be imported to the body of

the Order for infusing validity thereto vide COMMISSIONER OF

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POLICE vs. GORDHANDAS BHANJE87. This decision

articulated the Administrative Law principle that the validity

of a statutory order has to be adjudged only on the reasons

stated in the order itself. We have no quarrel with this

principle which has been reiterated in MOHINDER SINGH

GILL, supra. However, we are not sure of its invocation in a

case wherein validity of the impugned order can otherwise be

sustained on the basis of other intrinsic material. As we have

already mentioned, the Government Order is issued to give

effect to the purposes of the 1983 Act and to Rule 11 of the

1995 Curricula Rules. That being the position the question of

un-sustainability of some of the reasons on which the said

Order is constructed, pales into insignificance.

 (iv) Petitioners next argued that the Government Order

cites ‘sārvajanika suvyavasthe’ i.e., ‘public order’ as one of the

reasons for prescribing uniform to the exclusion of hijab;

disruption of public order is not by those who wear this

apparel but by those who oppose it; most of these opposers

wear bhagwa or such other cloth symbolic of religious

overtones. The government should take action against the

hooligans disrupting peace, instead of asking the Muslim girl

87 AIR 1952 SC 16

117

students to remove their hijab. In support of this contention,

they drew attention of the court to the concept of ‘hecklers

veto’ as discussed in K.M.SHANKARAPPA, supra. They further

argued that ours being a ‘positive secularism’, the State

should endeavor to create congenial atmosphere for the

exercise of citizens rights, by taking stern action against those

who obstruct vide PRAVEEN BHAI THOGADIA, supra. Again

we do not have any quarrel with the proposition of law.

However, we are not convinced that the same is invocable for

invalidating the Government Order, which per se does not

prescribe any uniform but only provides for prescription in a

structured way, which we have already upheld in the light of

our specific finding that wearing hijab is not an essential

religious practice and school uniform to its exclusion can be

prescribed. It hardly needs to be stated that the uniform can

exclude any other apparel like bhagwa or blue shawl that may

have the visible religious overtones. The object of prescribing

uniform cannot be better stated than by quoting from

‘MANUAL ON SCHOOL UNIFORMS’ published by U.S.

Department of Education:

‘A safe and disciplined learning environment is the first

requirement of a good school. Young people who are safe

and secure, who learn basic American values and the

118

essentials of good citizenship, are better students. In

response to growing levels of violence in our schools,

many parents, teachers, and school officials have come to

see school uniforms as one positive and creative way to

reduce discipline problems and increase school safety.’

(v) We hasten to add that certain terms used in a

Government Order such as ‘public order’, etc., cannot be

construed as the ones employed in the Constitution or

Statutes. There is a sea of difference in the textual structuring

of legislation and in promulgating a statutory order as the one

at hands. The draftsmen of the former are ascribed of due

diligence & seriousness in the employment of terminology

which the government officers at times lack whilst textually

framing the statutory policies. Nowadays, courts do often

come across several Government Orders and Circulars which

have lavish terminologies, at times lending weight to the

challenge. The words used in Government Orders have to be

construed in the generality of their text and with common

sense and with a measure of grace to their linguistic pitfalls.

The text & context of the Act under which such orders are

issued also figure in the mind. The impugned order could

have been well drafted, is true. ‘There is scope for improvement

even in heaven’ said Oscar Wilde. We cannot resist ourselves

from quoting what Justice Holmes had said in TOWNE vs.

119

EISNER88, “a word is not a crystal, transparent and

unchanged; it is the skin of a living thought and may vary

greatly in color and content according to the circumstances and

the time in which it is used.” Thus, there is no much scope for

invoking the concept of ‘law and order’ as discussed in ANITA

and GULAB ABBAS, supra, although the Government Order

gives a loose impression that there is some nexus between

wearing of hijab and the ‘law & order’ situation.

(vi) Petitioners had also produced some ‘loose papers’

without head and tail, which purported to be of a brochure

issued by the Education Department to the effect that there

was no requirement of any school uniform and that the

prescription of one by any institution shall be illegal. There is

nothing on record for authenticating this version. Those

producing the same have not stated as to who their author is

and what legal authority he possessed to issue the same.

Even otherwise, this purported brochure cannot stand in the

face of Government Order dated 05.02.2022 whose validity we

have already considered. Similarly, petitioners had banked

upon the so called research papers allegedly published by

‘Pew Research Centre’ about religious clothing and personal

88 245 U.S.418 (1918)

120

appearance. They contend that this paper is generated from

the research that studied various religious groups &

communities and that a finding has been recorded: ‘Most

Hindu, Muslim and Sikh women cover their heads outside the

home’ and therefore, the Government Order which militates

against this social reality, is arbitrary. We are not inclined to

subscribe to this view. No credentials of the researchers are

stated nor the representative character of the statistics

mentioned in the papers are demonstrated. The authenticity

of the contents is apparently lacking.

(vii) Petitioners contended that the said Government

Order has been hastily issued even when the contemplated

High Powered Committee was yet to look into the issue as to

the desirability of prescription and modules of dress codes in

the educational institutions. The contents of Government

Order give this impression, is true. However, that is too feeble

a ground for faltering a policy decision like this. At times,

regard being had to special conditions like social unrest and

public agitations, governments do take certain urgent

decisions which may appear to be knee-jerk reactions.

However, these are matters of perceptions. May be, such

decisions are at times in variance with their earlier stand.

121

Even that cannot be faltered when they are dictated by

circumstances. After all, in matters of this kind, the doctrine

of ‘estoppel’ does not readily apply. Whether a particular

decision should be taken at a particular time, is a matter left

to the executive wisdom, and courts cannot run a race of

opinions with the Executive, more particularly when policy

content & considerations that shaped the decision are not

judicially assessable. The doctrine of ‘separation of powers’

which figures in our constitution as a ‘basic feature’ expects

the organs of the State to show due deference to each other’s

opinions. The last contention that the Government Order is a

product of ‘acting under dictation’ and therefore, is bad in law

is bit difficult to countenance. Who acted under whose

dictation cannot be adjudged merely on the basis of some

concessional arguments submitted on behalf of the State

Government. Such a proposition cannot be readily invoked

inasmuch as invocation would affect the institutional dignity

& efficacy of the government. A strong case has to be made to

invoke such a ground, in terms of pleadings & proof.

In view of the above, we are of the considered opinion

that the government has power to issue the impugned

Order dated 05.2.2022 and that no case is made out for

its invalidation.

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XVII. INTERNATIONAL CONVENTIONS AND

EMANCIPATION OF WOMEN:

(i) There have been several International Conventions

& Conferences in which India is a participant if not a

signatory. UNIVERSAL DECLARATION OF HUMAN RIGHTS

(1948), CONVENTION OF ELIMINATION ON ALL FORMS OF

DISCRIMINATION AGAINST WOMEN (1981), INTERNATIONAL

COVENANTS ON CIVIL AND POLITICAL RIGHTS (1966),

UNITED NATIONS CONVENTION ON RIGHTS OF CHILD (1989),

are only a few to name. Under our Constitutional

Jurisprudence, owing to Article 51 which provides for

promotion of international peace & security, the International

Conventions of the kind assume a significant role in

construing the welfare legislations and the statutes which

have kinship to the subject matter of such Conventions. In a

sense, these instruments of International Law permeate into

our domestic law. Throughout, there has been both legislative

& judicial process to emancipate women from pernicious

discrimination in all its forms and means. Women regardless

of religion being equal, if not superior to men, are also joining

defence services on permanent commission basis vide Apex

123

Court decision in C.A.No.9367-9369/2011 between THE

SECRETARY, MINISTRY OF DEFENCE vs. BABITA PUNIYA,

decided on 17.2.2020. Be it business, industry, profession,

public & private employments, sports, arts and such other

walks of life, women are breaking the glass ceiling and faring

better than their counterparts.

(ii) It is relevant to quote what Dr. B.R.Ambedkar in

his book ‘PAKISTAN OR THE PARTITION OF INDIA’ (1945) at

Chapter X, Part 1 titled ‘Social Stagnation’ wrote:

“…A woman (Muslim) is allowed to see only her

son, brothers, father, uncles, and husband, or any other

near relation who may be admitted to a position of trust.

She cannot even go to the Mosque to pray, and must wear

burka (veil) whenever she has to go out. These burka

woman walking in the streets is one of the most hideous

sights one can witness in India…The Muslims have all

the social evils of the Hindus and something more. That

something more is the compulsory system of purdah for

Muslim women… Such seclusion cannot have its

deteriorating effect upon the physical constitution of

Muslim women… Being completely secluded from the

outer world, they engage their minds in petty family

quarrels with the result that they become narrow and

restrictive in their outlook… They cannot take part in any

outdoor activity and are weighed down by a slavish

mentality and an inferiority complex…Purdah women in

particular become helpless, timid…Considering the large

number of purdah women amongst Muslims in India, one

can easily understand the vastness and seriousness of

the problem of purdah…As a consequence of the purdah

system, a segregation of Muslim women is brought about

…”

124

What the Chief Architect of our Constitution observed more

than half a century ago about the purdah practice equally

applies to wearing of hijab there is a lot of scope for the

argument that insistence on wearing of purdah, veil, or

headgear in any community may hinder the process of

emancipation of woman in general and Muslim woman in

particular. That militates against our constitutional spirit of

‘equal opportunity’ of ‘public participation’ and ‘positive

secularism’. Prescription of school dress code to the exclusion

of hijab, bhagwa, or any other apparel symbolic of religion can

be a step forward in the direction of emancipation and more

particularly, to the access to education. It hardly needs to be

stated that this does not rob off the autonomy of women or

their right to education inasmuch as they can wear any

apparel of their choice outside the classroom.

XVIII. AS TO PRAYER FOR A WRIT OF QUO WARRANTO

IN SOME WRIT PETITIONS:

The petitioners in W.P. No.2146/2022, have sought for a

Writ of Mandamus for initiating a disciplinary enquiry on the

ground that the respondent Nos.6 to 14 i.e., Principal &

teachers of the respondent-college are violating the

departmental guidelines which prohibit prescription of any

125

uniform and for their hostile approach. Strangely, petitioners

have also sought for a Writ of Quo Warranto against

respondent Nos. 15 & 16 for their alleged interference in the

administration of 5th respondent school and for promoting

political agenda. The petition is apparently ill-drafted and

pleadings lack cogency and coherence that are required for

considering the serious prayers of this kind. We have already

commented upon the Departmental Guidelines as having no

force of law. Therefore, the question of the said respondents

violating the same even remotely does not arise. We have also

recorded a finding that the college can prescribe uniform to

the exclusion of hijab or bhagwa or such other religious

symbols, and therefore, the alleged act of the respondents in

seeking adherence to the school discipline & dress code

cannot be faltered. Absolutely no case is made out for

granting the prayers or any other reliefs on the basis of these

pleadings. The law of Quo Warranto is no longer in a fluid

state in our country; the principles governing issuance of this

writ having been well defined vide UNIVERSITY OF MYSORE

vs. C.D. GOVINDA RAO89 . For seeking a Writ of this nature,

one has to demonstrate that the post or office which the

89 AIR 1965 SC 491

126

person concerned holds is a public post or a public office. In

our considered view, the respondent Nos.15 & 16 do not hold

any such position in the respondent-school. Their placement

in the College Betterment (Development) Committee does not

fill the public character required as a pre-condition for the

issuance of Writ of Quo Warranto.

From the submissions made on behalf of the

Respondent – Pre – University College at Udupi and the

material placed on record, we notice that all was well with the

dress code since 2004. We are also impressed that even

Muslims participate in the festivals that are celebrated in the

‘ashta mutt sampradāya’, (Udupi being the place where eight

Mutts are situated). We are dismayed as to how all of a

sudden that too in the middle of the academic term the issue

of hijab is generated and blown out of proportion by the

powers that be. The way, hijab imbroglio unfolded gives scope

for the argument that some ‘unseen hands’ are at work to

In view of the above, we are of the considered opinion

that no case is made out in W.P. No.2146/2022 for

issuance of a direction for initiating disciplinary

enquiry against respondent Nos. 6 to 14. The prayer for

issuance of Writ of Quo Warranto against respondent

Nos. 15 and 16 is rejected being not maintainable.

127

engineer social unrest and disharmony. Much is not

necessary to specify. We are not commenting on the ongoing

police investigation lest it should be affected. We have perused

and returned copies of the police papers that were furnished

to us in a sealed cover. We expect a speedy & effective

investigation into the matter and culprits being brought to

book, brooking no delay.

XIX. THE PUBLIC INTEREST LITIGATIONS:

(i) One Dr. Vinod Kulkarni has filed PIL in

W.P.No.3424/2022 seeking a Writ of Mandamus to the

Central Government and State Government inter alia ‘to

permit Female Muslim students to sport Hijab provided they

wear the stipulated school uniform also’ (sic). The petition

mentions about BIJOE EMMANUEL, INDIAN YOUNG LAWYERS

ASSOCIATION, JAGADISHWARANANDA AVADHUTA,

CHANDANMAL vs. STATE OF WEST BENGAL90 and such other

cases. Petition is unsatisfactorily structured on the basis of

some print & electronic media reports that are not made part

of the paper book. There is another PIL in GHANSHYAM

UPADHYAY VS. UNION OF INDIA in W.P.No.4338/2022 (GM-

90 AIR 1986 CAL. 104

128

RES-PIL) inter alia seeking a Writ of Mandamus for

undertaking an investigation by the Central Bureau of

Investigation (CBI), National Investigating Agency (NIA) as to

the involvement of radical Islamic organizations such as

Popular Front of India, Students Islamic Organization of

India, Campus Front of India and Jamaat-e-Islami and their

funding by some foreign universities to Islamize India. There

are other incoherent prayers. This petitioner opposes the case

of students who desire to wear hijab. Most of the contentions

taken up in these petitions are broadly treated in the

companion Writ Petitions. We are not inclined to entertain

these two Writ Petitions filed in PIL jurisdiction, both on the

ground of their maintainability & merits. The second petition,

it needs to be stated, seeks to expand the parameters of the

essential lis involved in all these cases much beyond the

warranted frame of consideration. In W.P.No.3942/2022 (GMRES-PIL) between ABDUL MANSOOR MURTUZA SAYED AND

STATE OF KARNATAKA decided on 25.02.2022, we have

already held that when the aggrieved parties are effectively

prosecuting their personal causes, others cannot interfere by

invoking PIL jurisdiction. A battery of eminent lawyers are

129

representing the parties on both the sides. Even otherwise, no

exceptional case is made out for our indulgence.

In the above circumstances, all these petitions being

devoid of merits, are liable to be and accordingly are

dismissed. In view of dismissal of these Writ Petitions, all

pending applications pale into insignificance and are

accordingly, disposed off.

Costs made easy.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

Sd/-

JUDGE

SJ/CBC

In view of the above, we are of the considered opinion

that both the above Writ Petitions filed as Public

Interest Litigations are liable to be rejected, absolutely

no case having been made out for indulgence.