HIJAB CASE JUDGMENT | AISHAT SHIFA VERSUS THE STATE OF KARNATAKA & ORS

AISHAT SHIFA VERSUS THE STATE OF KARNATAKA & ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 7095 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 5236 OF 2022)
AISHAT SHIFA .....APPELLANT(S)
VERSUS
THE STATE OF KARNATAKA & ORS. .....RESPONDENT(S)
W I T H
WRIT PETITION (CIVIL) NO. 120 OF 2022
CIVIL APPEAL NO. 7075 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15405 OF 2022)
CIVIL APPEAL NO. 6957 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 9217 OF 2022)
CIVIL APPEAL NOS. 7078-7083 OF 2022
(ARISING OUT OF SLP (CIVIL) NOS. 15407-15412 OF 2022)
CIVIL APPEAL NO. 7077 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15419 OF 2022)
CIVIL APPEAL NO. 7074 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15403 OF 2022)
CIVIL APPEAL NO. 7076 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15418 OF 2022)
2
CIVIL APPEAL NO. 7072 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 11396 OF 2022)
CIVIL APPEAL NO. 6934 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 7794 OF 2022)
CIVIL APPEAL NO. 7084 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15402 OF 2022)
CIVIL APPEAL NO. 7085 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15416 OF 2022)
CIVIL APPEAL NO. 7092 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15404 OF 2022)
CIVIL APPEAL NO. 7088 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15414 OF 2022)
WRIT PETITION (CIVIL) NO. 95 OF 2022
CIVIL APPEAL NO. 7087 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15413 OF 2022)
CIVIL APPEAL NO. 7090 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15401 OF 2022)
CIVIL APPEAL NO. 7096 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 5690 OF 2022)
CIVIL APPEAL NO. 7091 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15399 OF 2022)
CIVIL APPEAL NO. 7089 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15417 OF 2022)
3
CIVIL APPEAL NO. 7086 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15400 OF 2022)
CIVIL APPEAL NO. 7069 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17648 OF 2022
(DIARY NO. 21273 OF 2022)
CIVIL APPEAL NO. 7098 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17656 OF 2022
(DIARY NO. 9117 OF 2022)
CIVIL APPEAL NO. 7093 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17653 OF 2022
(DIARY NO. 25867 OF 2022)
CIVIL APPEAL NO. 7099 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17663 OF 2022
(DIARY NO. 11577 OF 2022)
A N D
CIVIL APPEAL NO. 7070 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17647 OF 2022
(DIARY NO. 21272 OF 2022)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by
the Full Bench of the Karnataka High Court on 15.3.2022,
dismissing the challenge to the Government Order dated
5.2.2022. Such Government Order directed the Government
4
Schools in Karnataka to abide by the prescribed uniform, and the
private schools were directed to mandate a uniform as decided
by their Board of Management.
PREFACE
2. Before adverting to the submissions made by the counsels on
both sides, it is imperative to give a background of the ethos and
principles of secularism adopted in the Constitution of India.
Though the term ‘secular’ has a wide amplitude and has been
understood differently in different parts of the world, it is
important to comprehend the same in context of the Indian
Constitution.
3. The word “secular” is now part of the Preamble of the
Constitution. What is meant by “Secular” (पंथ�नरपे� in the
Hindi version of the Constitution) needs to be discussed first. The
word ‘Secular’ was inserted in the Preamble of the Constitution
by the 42nd Amendment w.e.f. 3.1.1977. It is commonly
understood in contradistinction to the term ‘religious’. The
political philosophy of a secular government has been developed
in the West in the historical context of the pre-eminence of the
established Church and the exercise of power by it over the
society and its institutions. The democratic State thereafter
gradually replaced and marginalized the influence of the Church.
5
The idea of secularism may have been borrowed in the Indian
Constitution from the West; however, it has adopted its own
unique brand based on its particular history and exigencies which
are far distinct in many ways from secularism as defined and
followed in European countries, the United States of America and
Australia.1
4. The use of word ‘panthnirpeksh’ in the Constitution brings out
the difference in the terms "Dharmanirpeksh" and
"Panthnirpeksh". ‘Panth’, or sect, symbolizes devotion towards
any specific belief, way of worship or form of God, but Dharma
symbolizes absolute and eternal values which can never change,
like the laws of nature. Dharma is what upholds, sustains and
results in the well-being and upliftment of the Praja (citizens)
and the society as a whole.
5. This Court in a judgment reported as A.S. Narayana
Deekshitulu v. State of A.P. & Ors.2 quoted the concept of
Dharma explained by Justice M. Rama Jois in his Legal and
Constitutional History of India as “it is most difficult to define
Dharma. Dharma has been explained to be that which helps the
upliftment of living beings. Therefore, that which ensures welfare
(of living beings) is surely Dharma. The learned rishis have
declared that which sustains is Dharma”. This Court held that
1 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (11 Judges Bench) 2 (1996) 9 SCC 548
6
“when dharma is used in the context of duties of the individuals
and powers of the King (the State), it means constitutional law
(Rajadharma). Likewise, when it is said that Dharmarajya is
necessary for the peace and prosperity of the people and for
establishing an egalitarian society, the word dharma in the
context of the word Rajya only means law, and Dharmarajya
means rule of law and not rule of religion or a theocratic State”.
Any action, big or small, that is free from selfishness, is part of
dharma. Thus, having love for all human beings is dharma. This
Court held as under:
“156. It is because of the above that if one were to ask
“What are the signs and symptoms of dharma?”, the
answer is: that which has no room for narrowmindedness, sectarianism, blind faith, and dogma. The
purity of dharma, therefore, cannot be compromised with
sectarianism. A sectarian religion is open to a limited
group of people whereas dharma embraces all and
excludes none. This is the core of our dharma, our psyche.
157. Nothing further is required to bring home the
distinction between religion and dharma; and so I say that
the word ‘religion’ in Articles 25 and 26 has to be
understood not in a narrow sectarian sense but
encompassing our ethos of . Let us
strive to achieve this; let us spread the message of our
dharma by availing and taking advantage of the freedom
guaranteed by Articles 25 and 26 of our Constitution.”
6. This Court in Kesavananda Bharati v. State of Kerala &
Anr.3, even prior to the addition of the word ‘Secular’ by the 42nd
Amendment, held that the fundamental features of the
3 (1973) 4 SCC 225
7
Constitution, namely, secularism, democracy and the freedom of
individual would always subsist in the welfare State. Hon’ble
Justice H.R. Khanna in his judgment referred to the statement of
K. Santhanam, a prominent member of the Constituent
Assembly and Editor of a newspaper. It was observed as under:
“1481. …K. Santhanam, a prominent southern member
of the Assembly and editor of a major newspaper,
described the situation in terms of three revolutions. The
political revolution would end, he wrote, with
independence. The social revolution meant ‘to get (India)
out of the medievalism based on birth, religion, custom,
and community and reconstruct her social structure on
modern foundations of law, individual merit, and secular
education’. The third revolution was an economic one:
‘The transition from primitive rural economy to scientific
and planned agriculture and industry’. Radhakrishnan
(now President of India) believed India must have a
‘socio-economic revolution’ designed not only to bring
about ‘the real satisfaction of the fundamental needs of
the common man’, but to go much deeper and bring about
‘a fundamental change in the structure of Indian
society’…” (Emphasis Supplied)
7. The secular character of the State was reiterated in a later
Constitution Bench judgment reported as Smt. Indira Nehru
Gandhi v. Shri Raj Narain 4 wherein it was held as under:
“252. It has been stated by me on p. 685 (SCC p. 767) of
the judgment (already reproduced above) that the secular
character of the State, according to which the State shall
not discriminate against any citizen on the ground of
religion only cannot likewise be done away with. The
above observations show that the secular character of the
Constitution and the rights guaranteed by Article 15
pertain to the basic structure of the Constitution…”
4 1975 (Supp.) SCC 1
8
8. The word ‘Secular’ after being added in the Preamble was also
considered by a three-Judge Bench judgment of this Court
reported as Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra & Ors.5. This Court was considering an appeal
against the setting aside of election of the appellant under the
Representation of the People Act, 1951 to the Maharashtra State
Assembly on the ground of speeches made by him in the course
of election campaign. It was held that “the Secular State, rising
above all differences of religion, attempts to secure the good of
all its citizens irrespective of their religious beliefs and
practices…”
9. The term ‘Secular’ was also considered by a nine-Judges Bench
of this Court reported as S.R. Bommai & Ors. v. Union of India
& Ors.6. It was held that our Constitution does not prohibit the
practice of any religion either privately or publicly. The relevant
extract of the judgment reads thus:
“146. These provisions by implication prohibit the
establishment of a theocratic State and prevent the State
either identifying itself with or favouring any particular
religion or religious sect or denomination. The State is
enjoined to accord equal treatment to all religions and
religious sects and denominations.
xx xx xx
148. One thing which prominently emerges from the
above discussion on secularism under our Constitution is
that whatever the attitude of the State towards the
religions, religious sects and denominations, religion
5 (1976) 2 SCC 17
6 (1994) 3 SCC 1
9
cannot be mixed with any secular activity of the State. In
fact, the encroachment of religion into secular activities is
strictly prohibited…
xx xx xx
304. Both the expressions — ‘socialist’ and ‘secular’ — by
themselves are not capable of precise definition. We are,
however, not concerned with their general meaning or
content. Our object is to ascertain the meaning of the
expression “secular” in the context of our Constitution. As
the discussion hereafter would demonstrate, the 42nd
Amendment merely made explicit what was implicit in
it…..................... While the citizens of this country are
free to profess, practice and propagate such religion, faith
or belief as they choose, so far as the State is concerned,
i.e., from the point of view of the State, the religion, faith
or belief of a person is immaterial. To it, all are equal and
all are entitled to be treated equally. How is this equal
treatment possible, if the State were to prefer or promote
a particular religion, race or caste, which necessarily
means a less favourable treatment of all other religions,
races and castes. How are the constitutional promises of
social justice, liberty of belief, faith or worship and
equality of status and of opportunity to be attained unless
the State eschews the religion, faith or belief of a person
from its consideration altogether while dealing with him,
his rights, his duties and his entitlements? Secularism is
thus more than a passive attitude of religious tolerance.
It is a positive concept of equal treatment of all religions.
This attitude is described by some as one of neutrality
towards religion or as one of benevolent neutrality.…"
10. In the same year, in a judgment reported as Santosh Kumar &
Ors. v. Secretary, Ministry of Human Resources
Development & Anr.7, a question arose as to whether the
inclusion of Sanskrit in the syllabus of Central Board of
Secondary Education as an elective subject so far as teaching in
7 (1994) 6 SCC 579
10
secondary school is concerned is permissible. This Court quoted
that “It would be profitable to note that according to Justice H.R.
Khanna secularism is neither anti-God nor pro-God; it treats
alike the devout, the agnostic and the atheist. According to him,
secularism is not antithesis of religious devoutness. He would
like to dispel the impression that if a person is devout Hindu or
devout Muslim, he ceases to be secular.”
11. The National Curriculum Framework for School Education
published by National Council of Educational Research and
Training was challenged before this Court in a judgment reported
as Ms. Aruna Roy & Ors. v. Union of India & Ors.8. This Court
relied upon S.B. Chavan Committee Report, 1999 which strongly
recommended education about religions as an instrument of
social cohesion and social and religious harmony, when it said “a
word of caution is required here. Education about religions must
be handled with extreme care. All steps must be taken in
advance to ensure that no personal prejudice or narrow-minded
perceptions are allowed to distort the real purpose of this
venture and no rituals, dogmas and superstitions are propagated
in the name of education about religions. All religions therefore
have to be treated with equal respect (sarva dharma sambhav)
8 (2002) 7 SCC 368
11
and that there has to be no discrimination on the ground of any
religion (panthnirapekshata).” It was observed as under:
“29. At this stage, we would quote the relevant part of
the S.B. Chavan Committee’s Report as under:
xx xx xx
12. In view of the diverse character of our
country, it is essential that certain national values
are also imbibed by our young students. They
should be acquainted with the history of India's
freedom struggle, cultural heritage, constitutional
obligations and the features comprising our
national identity. The Committee feels that some
of these national values can be imparted indirectly
at the primary stage while at the middle and
secondary levels, these can be included in the
curriculum.
13. Another aspect that must be given some
thought is religion, which is the most misused and
misunderstood concept. The process of making
the students acquainted with the basics of all
religions, the values inherent therein and also a
comparative study of the philosophy of all
religions should begin at the middle stage in
schools and continue up to the university level.
Students have to be made aware that the basic
concept behind every religion is common, only the
practices differ. Even if there are differences of
opinion in certain areas, people have to learn to
coexist and carry no hatred against any religion.”
xxx xxx
37. Therefore, in our view, the word “religion” should not
be misunderstood nor contention could be raised that as
it is used in the National Policy of Education, secularism
would be at peril. On the contrary, let us have a
secularistic democracy where even a very weak man
hopes to prevail over a very strong man (having post,
power or property) on the strength of rule of law by proper
12
understanding of duties towards the society. Value-based
education is likely to help the nation to fight against all
kinds of prevailing fanaticism, ill will, violence, dishonesty,
corruption, exploitation and drug abuse. ............... Let
knowledge, like the sun, shine for all and that there should
not be any room for narrow-mindedness, blind faith and
dogma. For this purpose also, if the basic tenets of all
religions over the world are learnt, it cannot be said that
secularism would not survive.”
12. In T.M.A. Pai Foundation, it was held that the State is not
prevented from making any law in relation to religious practice
and the same is permissible under Article 25(2)(a) of the
Constitution of India. The limited jurisdiction granted by Article
25(2) relates to the making of a law in relation to economic,
financial, political or other secular activities associated with the
religious practice. The Court held as under:
“83. Article 25(2) gives specific power to the State to make
any law regulating or restricting any economic, financial,
political or other secular activity, which may be associated
with religious practice as provided by sub-clause (a) of
Article 25(2). This is a further curtailment of the right to
profess, practise and propagate religion conferred on the
persons under Article 25(1). Article 25(2)(a) covers only a
limited area associated with religious practice, in respect of
which a law can be made. A careful reading of Article
25(2)(a) indicates that it does not prevent the State from
making any law in relation to the religious practice as such.
The limited jurisdiction granted by Article 25(2) relates to
the making of a law in relation to economic, financial,
political or other secular activities associated with the
religious practice”.
13. Thus, though the concept of secularism emerged in the west, it
has taken a different colour over the period of time. In a
13
democratic country like India, consisting of multiple religions,
regions, faith, languages, food and clothing, the concept of
secularism is to be understood differently. Secularism, as
adopted under our Constitution, is that religion cannot be
intertwined with any of the secular activities of the State. Any
encroachment of religion in the secular activities is not
permissible. Secularism thus means treating all religions equally,
respecting all religions and protecting the practices of all
religions. The positive meaning of secularism would be nondiscrimination by the State on the basis of religious faith and
practices. Secularism can be practiced by adopting a completely
neutral approach towards religion or by a positive approach
wherein though the State believes and respects all religions, but
does not favour any.
FACTUAL BACKGROUND
14. The challenge in the present appeals is to the Government Order
dated 5.2.2022, the translated copy of which reads as under:
“Proceedings of the Government of Karnataka
Subject – Regarding a dress code for students of all
schools and colleges of the state.
Refer – 1) Karnataka Education Act 1983
2) Government Circular:509 SHH 2013, Date:31-
01-2014
Preamble:-
14
As mentioned in the above at reference No.1, the
Karnataka Education Act 1983 passed by the Government
of Karnataka (1-1995) Section [7(2)(g)(v)]* stipulates
that all the school students studying in Karnataka should
behave in a fraternal manner, transcend their group
identity and develop an orientation towards social justice.
Under the Section 133 of the above law, the government
has the authority to issue directions to schools and
colleges in this regard.
The above-mentioned circular at reference No.2
underlines how Pre-university education is an important
phase in the lives of students. All the schools and colleges
in the state have set up development committees in order
to implement policies in line with the policies of the
government, utilize budgetary allocations, improve basic
amenities and maintain their academic standards. It is
recommended that the schools and colleges abide by the
directions of these development committees.
Any such supervisory committee in schools and
colleges (SDMC in Government Institutions and ParentsTeachers’ Associations and the management in private
institutions) should strive to provide a conducive
academic environment and enforce a suitable code of
conduct in accordance with government regulations. Such
a code of conduct would pertain to that particular school
or college.
Various initiatives have been undertaken to ensure
that students in schools and colleges have a standardized
learning experience. However, it has been brought to the
education department’s notice that students in a few
institutions have been carrying out their religious
observances, which has become an obstacle to unity and
uniformity in the schools and colleges.
The question relating to a uniform dress code over
individual dressing choices has come up in several cases
before the Honourable Supreme Court and High Courts,
which have ruled as below.
1) In para 9 of the Hon’ble High Court of Kerala’s
ruling in W.P. (C) No.35293/2018, date : 04-12-
15
2018, it cites a ruling by the Hon’ble Supreme
Court:
“9. The Apex Court in Asha Renjan and
others v/s State of Bihar and others
[(2017) 4 SCC 397] accepted the balance
test when competing rights are involved
and has taken a view that individual
interest must yield to the larger public
interest. Thus, conflict to competing rights
can be resolved not by negating individual
rights but by upholding larger right to
remain, to hold such relationship between
institution and students.”
2) In the case of Fatima Hussain Syed v/s Bharat
Education Society and Ors. (AIR 2003 Bom 75),
in a similar incident regarding the dress code,
when a controversy occurred at Kartik High
School, Mumbai. The Bombay High Court
appraised the matter, and ruled that it was not
a violation of Article 25 of the Constitution for
the principal to prohibit the wearing of head
scarf or head covering in the school.
3) Subsequent to the Hon’ble Supreme Court’s
abovementioned ruling, the Hon’ble Madras
High Court, in V. Kamalamma v/s Dr. MGR
Medical University, Tamil Nadu and Ors. upheld
the modified dress code mandated by the
university. A similar issue has been considered
by the Madras High Court in Shri. M
Venkatasubbarao Matriculation Higher
Secondary School Staff Association v/s Shri M.
Venkatasubbarao Matriculation Higher
Secondary School (2004) 2 MLJ 653 case.
As mentioned in the abovementioned rulings of
the Hon’ble Supreme Court and various High
Courts, since the prohibition of a headscarf or a
garment covering the head is not a violation of
Article 25 of the Constitution. Additionally, in terms
of the [Karnataka Education Act, 1983 Article 133
Sub Rule (2) and Article 7(1)(i), 7(2)(g)(v) and
Karnataka Education Act (Classification,
Regulation, Curriculum Scheduling, Others) of
16
Rules 1995 as per Rule 11]**, the government has
decreed as belowGovernment Order No: EP14 SHH 2022
Bengaluru Dated: 05.02.2022
In the backdrop of the issues highlighted in the
proposal, using the powers granted by Karnataka
Education Act, 1983 Sub-Rule 133 (2) [Section
7(1)(i), 7(2)(g)(v) and Karnataka Education Act
(Classification, Regulation, Curriculum Scheduling,
Others) of Rules 1995 as per Rule 11**, all the
government schools in the state are mandated to
abide by the official uniform. Private schools should
mandate a uniform decided upon by their board of
management.
In colleges that come under the pre-university
education department’s jurisdiction, the uniforms
mandated by the College Development Committee,
or the board of management, should be worn. In
the event that the management does mandate a
uniform, students should wear clothes that are in
the interests of unity, equality and public order.
By the Order of the Governor of Karnataka,
And in his name
Padmini SN
Joint Secretary to the Government
Education Department (Pre-University)
*Substituted by the Corrigendum/Addendum dated 5.2.2022
**Inserted by the Corrigendum/Addendum dated 5.2.2022”
15. The Karnataka Education Act, 19839, under which the above
Government Order has been issued, was enacted with a view to
foster the harmonious development of the mental and physical
faculties of students and cultivate a scientific and secular outlook
9 For short, the ‘Act’
17
through education. The long title and some of the relevant
provisions of the Act read thus:
“An Act to provide for better organisation, development,
discipline and control of the educational institutions in the
State.
Whereas it is considered necessary to provide for the
planned development of educational institutions
inculcation of healthy educational practice, maintenance
and improvement in the standards of education and better
organisation, discipline and control over educational
institutions in the State with a view to fostering the
harmonious development of the mental and physical
faculties of students and cultivating a scientific and
secular outlook through education;
Section-5. Promotion of education of the weaker sections
and the handicapped. – The State Government shall
endeavour to promote the education of the handicapped,
backward classes and the weaker sections of the society
including the economically weaker section thereof and in
particular of the Scheduled Castes, Scheduled Tribes with
special care by adopting towards that end such measure
as may be appropriate.
xx xx xx
Section-7. Government to prescribe curricula, etc. – (1)
Subject to such rules as may be prescribed, the State
Government may, in respect of educational institutions,
by order specify,-
xx xx xx
(h) the facilities to be provided, such as buildings,
sanitary arrangements, playground, furniture,
equipment, library, teaching aid, laboratory and
workshops;
(i) such other matters as are considered necessary.
(2) The curricula under sub-section (1) may also include
schemes in respect of,-
18
xx xx xx
(v) to promote harmony and the spirit of common
brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities to
renounce practices derogatory to the dignity of women;
(vi) to value and preserve the rich heritage of our
composite culture;
xx xx xx
(viii) to develop the scientific temper, humanism and the
spirit of inquiry and reform;
xx xx xx
(x) to strive towards excellence in all spheres of individual
and collective activity, so that the nation constantly rises
to higher levels of endevaour and achievement.”
16. The Act also contemplates withdrawal of recognition if any local
authority or the Governing Council of any private educational
institution denies admission to any citizen on the ground of
religion, race, caste, language or any of them [Section 39
(1)(b)]; or directly or indirectly encourages in the educational
institution any propaganda or practice wounding the religious
feelings of any class of citizens of India or insulting religion or
the religious belief of that class [Section 39 (1)(c)].
17. The impugned Government Order has been issued by exercising
the powers conferred under Section 133 of the Act, which reads
as thus:
“133. Powers of Government to give directions.- (1) The
State Government may, subject to other provisions of this
19
Act, by order, direct the Commissioner of Public
Instruction or the Director or any other officer not below
the rank of the District Educational Officer to make an
enquiry or to take appropriate proceeding under this Act
in respect of any matter specified in the said order and
the Director or the other officer, as the case may be, shall
report to the State Government in due course the result
of the enquiry made or the proceeding taken by him.
(2) The State Government may give such directions to
any educational institution or tutorial institution as in its
opinion are necessary or expedient for carrying out the
purposes of this Act or to give effect to any of the
provisions contained therein or of any rules or orders
made thereunder and the Governing Council or the owner,
as the case may be, of such institution shall comply with
every such direction.
(3) The State Government may also give such directions
to the officers or authorities under its control as in its
opinion are necessary or expedient for carrying out the
purposes of this Act, and it shall be the duty of such officer
or authority to comply with such directions.”
18. The State Government is also empowered to make rules to carry
out the purposes of this Act under Section 145 of the Act. Subsection (2) thereof provides that in particular and without
prejudice to the generality of the foregoing power, the Rules may
provide for the establishment or maintenance and administration
of educational institutions [Section 145 (2)(xii)]; the purposes
for which the premises of the educational institutions may be
used and the restrictions and conditions subject to which such
premises may be used for any other purpose [Section 145
(2)(xxix)]; and all matters expressly required by the Act to be
prescribed or in respect of which the Act makes no provision or
20
makes insufficient provision and a provision is, in the opinion of
the State Government, necessary for the proper implementation
of the Act [Section 145 (2)(xL)].
19. In pursuance of the above statutory provisions, the Karnataka
Educational Institutions (Classification, Regulation and
Prescription of Curricula etc.) Rules, 199510 were framed. Rule
11 of the said Rules provides for uniform, clothing, text books
etc., which reads thus:
“11. Provision of Uniform, Clothing, Text Books etc., (1)
Every recognised educational institution may specify its
own set of Uniform. Such uniform once specified shall not
be changed within the period of next five years.
(2) When an educational institution intends to change the
uniform as specified in sub-rule (1) above, it shall issue
notice to parents in this regard at least one year in
advance.
(3) Purchase of uniform clothing and text books from the
school or from a shop etc., suggested by school
authorities and stitching of uniform clothing with the
tailors suggested by the school authorities, shall be at the
option of the student or his parent. The school authorities
shall make no compulsion in this regard.”
20. Rule 16 of the Rules provides for the constitution and functions
of District Level Education Regulating Authority. An order was
passed by the State on 31.1.2014 constituting College
Betterment Committee for the purpose of proper utilization of
the grants sanctioned to it and for developing basic infrastructure
10 For short, the ‘Rules’
21
and maintaining the quality of education. Such Committee is
chaired by Member of Legislative Assembly as well as
representatives of parents, one of whom is a woman, one SC/ST,
another member with an interest in educational field, two
student representatives out of which one shall be girl, Vice
Principal/Senior Teacher of High School and Senior Lecturers of
the college. The principal of the respective college is the Member
Secretary. Such College Betterment Committee of the
Government Pre-University College for Girls, Udupi, on
23.6.2018, passed the following resolution:
“RESOLUTION
xx xx xx
4. Further, it is resolved to maintain the same uniform in
this year also as maintained in the last year like blue
colored chudidar pant, white colored with blue color
checks top and blue pant colored shawl on the shoulders,
in all the six days of the week. Also, it is decided to
handover the responsibility of providing the uniform to
the poor girl students from the donors, to the VicePresident Yashpal Suvarna and powers were given to the
Principal to take decision to after checking availability of
the uniform in the shops.”
21. The challenge to the Circular dated 5.2.2022 before the High
Court remained unsuccessful on various grounds which are not
necessary to be extracted herein.
22. Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan, Ms.
Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr.
22
A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi,
Mr. Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave,
learned Senior Advocates and Mr. Prashant Bhushan, Ms. Kirti
Singh, Mr. Rishad Ahmed Chowdhury, Mr. Shoeb Alam, Mr.
Rahmatullah Kotwal, Ms. Thulasi K. Raj, Mohd. Nizamuddin
Pasha, learned counsels have assisted the Court in this matter
on behalf of the appellants; whereas, Mr. Tushar Mehta, Solicitor
General, Mr. K.M. Natraj, Additional Solicitor General, Mr.
Prabhuling Navadgi, Advocate General for the State of
Karnataka, Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu,
learned Senior Advocates, argued on behalf of the Respondents.
The arguments covered various issues which will be dealt with
hereinafter at appropriate stages.
23. We have heard learned counsels for the parties at length. I find
that the following questions arise for consideration in the present
appeals:
“(i) Whether the appeals should be heard along with
Kantaru Rajeevaru (Right to Religion, In Re-9J)
and/or should the present appeals be referred to the
Constitution Bench in terms of Article 145(3) of the
Constitution?
(ii) Whether the State Government could delegate its
decision to implement the wearing of uniform by the
College Development Committee or the Board of
Management and whether the Government Order
insofar as it empowers a College Development
Committee to decide on the restriction/prohibition or
23
otherwise on headscarves is ex facie violative of
Section 143 of the Act?
(iii) What is ambit and scope of the right to freedom
of ‘conscience’ and ‘religion’ under Article 25?
(iv) What is the ambit and scope of essential
religious practices under Article 25 of the
Constitution?
(v) Whether fundamental rights of freedom of
expression under Article 19(1)(a) and right of
privacy under Article 21 mutually exclusive or are
they complementary to each other; and whether the
Government Order does not meet the injunction of
reasonableness for the purposes of Article 21 and
Article 14?
(vi) Whether the Government Order impinges upon
Constitutional promise of fraternity and dignity
under the Preamble as well as fundamental duties
enumerated under Article 51-A sub-clauses (e) and
(f)?
(vii) Whether, if the wearing of hijab is considered as
an essential religious practice, the student can seek
right to wear headscarf to a secular school as a
matter of right?
(viii) Whether a student-citizen in the constitutional
scheme is expected to surrender her fundamental
rights under Articles 19, 21 and 25 as a precondition for accessing education in a State
institution?
(ix) Whether in the constitutional scheme, the State
is obligated to ensure ‘reasonable
accommodation’ to its citizens?
(x) Whether the Government Order is contrary to
the legitimate State interest of promoting literacy
24
and education as mandated under Articles 21, 21A,
39(f), 41, 46 and 51A of the Constitution?
(xi) Whether the Government Order neither
achieves any equitable access to education, nor
serves the ethic of secularism, nor is true to the
objective of the Karnataka Education Act?”
Question (i)- Whether the appeals should be heard along with
Kantaru Rajeevaru (Right to Religion, In Re-9J) and/or should
the present appeals be referred to the Constitution Bench in terms of
Article 145(3) of the Constitution?
24. The preliminary submission of learned counsel for the appellants
is that the present case ought to be referred to a larger bench in
view of the order of this Court reported as Kantaru Rajeevaru
(Sabarimala Temple Review-5J.) v. Indian Young Lawyers
Association & Ors.11. One of the arguments raised for such
submission was that it has to be decided as to what is considered
to be essentially religious, essential to religion and integral part
of religion. The contention was that “religion” is a means to
express one's “faith”. The larger Bench of this Court framed the
questions of law in an order12. However, the reasons13 recorded
for the reference state the ambit to be “the contours of judicial
review in matters pertaining to essential religious practices”. The
questions referred to in the said case relate to the extent to
which the Court can inquire into the issue as to whether a
11 (2020) 2 SCC 1 12 (2020) 3 SCC 52 13 (2020) 9 SCC 121
25
particular practice would be qualified as an integral, essential
part of religion.
25. It was also argued that the present case involves a substantial
question of law relating to interpretation of the Constitution,
therefore, ought to be referred to a Constitution Bench in terms
of Article 145(3) of the Constitution.
26. It is noted that the review in Kantaru Rajeevaru (Right to
Religion, In Re-9J.) is to consider much wider questions. The
argument that the matter should be referred to a larger Bench
to be heard along with such referred cases does not warrant
consideration. The questions referred to the larger Bench relate
to power of judicial review in the matters of essential religious
practices. But the said question need not be examined in the
present matter as the issue herein is whether a religious practice,
which may be an essential religious practice, can be regulated
by the State in a secular institution. Therefore, I do not find it
necessary to tag the present appeals along with Kantaru
Rajeevaru.
27. The argument that the present appeals involve a substantial
question of law as to the interpretation of the Constitution, and
thus should be referred to the Bench of Five Judges in terms of
Article 145(3) of the Constitution is not tenable. Reliance is
placed on a 9-Judges bench judgment reported as K.S.
26
Puttaswamy and Anr. v. Union of India & Ors.14, wherein
this Court held “When a substantial question as to the
interpretation of the Constitution arises, it is this Court and this
Court alone under Article 145(3) that is to decide what the
interpretation of the Constitution shall be, and for this purpose,
the Constitution entrusts this task to a minimum of 5 Judges of
this Court”.
28. There is no dispute about the proposition canvassed. The issue
in the present matter is however as to whether the students can
enforce their religious beliefs in a secular institution. Thus, the
issues raised do not become a substantial question of law as to
the interpretation of the Constitution only for the reason that the
right claimed by the appellants is provided under the
Constitution. Hence, I do not find the need to refer the matter to
a larger bench or that the same should be heard along with
Kantaru Rajeevaru.
Question (ii)- Whether the State Government could delegate its
decision to implement the wearing of uniform by the College
Development Committee or the Board of Management and whether the
Government Order insofar as it empowers a College Development
Committee to decide on the restriction/prohibition or otherwise on
headscarves is ex facie violative of Section 143 of the Act?
29. The argument raised is with reference to Section 143 of the Act.
It is contended that the State Government can delegate all or
14 (2017) 10 SCC 1
27
any of its powers exercisable by it, or to be exercised also by
such office/authority subordinate to the State Government, as
may be specified in the notification. It is the contention of the
learned counsel for the appellants that the notification dated
31.1.2014 is to delegate the essential State functions in favour
of a non-statutory authority. Therefore, such notification violates
the mandate of Section 143 of the Act. Section 143 of the Act
reads thus:
“143. Delegation. – The State Government may by
notification in the official gazette, delegate all or any
powers exercisable by it under this Act or rules made
thereunder, in relation to such matter and subject to such
conditions, if any as may be specified in the direction, to
be exercised also by such officer or authority subordinate
to the State Government as may be specified in the
notification.”
30. It is contended by the learned counsel for the appellants that the
power to maintain public order is the responsibility of the State
Government and, therefore, the State Government could not
delegate its authority to College Development Committee which
is not State within the meaning of Article 12 as it is a mechanism
created by the State. The Circular issued by the Government of
Karnataka dated 31.1.2014, published in the official Gazette,
reads thus:
“Government of Karnataka
No. ED 580 SHH 2013 Department of Education
Multistore Building
Bangalore dated 31-01-
2014
28
CIRCULAR
Education department is providing 1st and 2nd PUC
education in the state. PUC education is the main stage in the
student’s life. In accordance with the government and
department direction and in order to utilise the grants as well
as in maintaining academic standards and development of
infrastructure, we are hereby directed to form a college
development committee and to follow the guidelines as under:
1. President MLA of the respective constitution
2. Vice President Local representative nominated by
the MLA
3. Members 1) 4 members from the students
parents and among them 1 parent
should be a female and 1 parent
should belong to schedule
caste/schedule tribe.
2) The person who is interested in
the education field.
3) 2 members from the students
representative, among them 1
should be a girl student (this is not
applicable for boys college)
4) Vice Principal/Senior Teacher
from respective composite P.U.
college.
5) Senior Lecturer of PU College.
4. Secretary
member
Principal of the respective PU
College.
SD/ 31-01-2014
(S.H. Curiyavar)
Under Secretary to the Govt
Dept of Education (P.U Education).”
31. Furthermore, learned counsels for the appellants have also
vehemently argued that the Government Order dated 5.2.2022
refers to some of the judgments which do not deal with the issue
of wearing hijab, but still it is concluded that use of headscarf or
29
a garment covering the head is not in violation of Article 25. It
is averred that though the operative part of the order seems to
be facially religious-neutral, it targets a particular community in
effect. It is also contended that the High Court has supplanted
the reasons to uphold the said Government Order even though
the reasons recorded therein are not sufficient to prohibit the use
of headscarf. Hence, at the outset, the State ought to prove the
jurisdiction to issue such a circular.
32. The alternate argument is that the College Development
Committee, a non-statutory authority, cannot exercise power of
the State Government under Part III of the Constitution. It was
contended that the law which can restrict the right of an
individual under Article 19(1)(a), Article 25(2), or any other right
falling within part III of the Constitution, can only be by way of
a law made by the competent legislature. Mr. Shoeb Alam
referred to judgments of this Court reported as State of
Madhya Pradesh & Anr. v. Thakur Bharat Singh15, State of
West Bengal v. Anwar Ali Sarkar16, Bishambhar Dayal
Chandra Mohan & Ors. v. State of Uttar Pradesh & Ors.17
and a recent order passed by this Court reported as Pharmacy
Council of India v. Rajeev College of Pharmacy & Ors.18 to
15 AIR 1967 SC 1170
16 AIR 1952 SC 75 17 (1982) 1 SCC 39
18 2022 SCC OnLine SC 1224
30
support such contention. However, Mr. Dushyant Dave argued
that the rights in Part III of the Constitution can be restricted or
regulated by a statute made by competent legislature and also
includes any law as defined under Article 13(2) & (3) of the
Constitution. Articles 13(2) and (3) of the Constitution are
relevant for the purposes of the present proposition, which reads
thus:
“13. Laws inconsistent with or in derogation of the
fundamental rights.—
xx xx xx
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent
of the contravention, be void.
(3) In this article, unless the context otherwise
requires,—
(a) “law” includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;”
33. I do not find any merit in the said argument raised by the
appellants. The College Development Committee is envisaged to
be an in-house mechanism to ensure better utilization of grants
as well as maintaining academic standards and development of
infrastructure. Such directions are relatable to sub-section (3) of
Sections 133 and 145 of the Act. In any case, the constitution of
the College Development Committee is not in conflict with any of
the provisions of the Act. The said circular was published in the
31
Karnataka Gazette, issued in exercise of the executive powers of
the State, supplementing the provisions of the Act and not
supplanting all or any of the provisions thereof.
34. The Government Order is in two parts. The first part is the
Preamble which gives the background leading to the order
impugned before the High Court. The second part, i.e., the
operative part of the order alone bears the Government Order
number and date. The order mandates that the uniform
prescribed by the College Development Committee or the Board
of Management should be worn. The appellants have though
understood the order to be interfering with their essential
religious practices.
35. The executive power under Article 73 extends to all matters in
respect of which the Parliament has power to make laws or under
Article 162 in respect of the matters where legislature of the
State has power to make laws.19 The question is whether
restrictions can be imposed by the executive in respect of the
rights specified under Part III such as Articles 19, 21, 25 and
31A.
36. There is no dispute about the proposition that in the absence of
any statute or the statutory rule, but in exercise of the executive
19 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549
32
power, the State can issue an executive order. However, the
argument raised is that restrictions under Part III of the
Constitution can only be imposed by way of a statutory law and
not by way of an executive power.
37. Now, coming to the judgments referred to by the learned counsel
for the appellant for the abovementioned contention; in Anwar
Ali Sarkar, this Court was considering the conviction of the
respondent by the Special Court established under Section 3 of
the West Bengal Special Courts Ordinance, 1949, which was
replaced by the West Bengal Special Courts Act, 1950. It was
the provision of the Act which was set aside being discriminatory.
This Court, in fact, inter-alia held that “this is further made clear
by defining "law" in Article 13 (which renders void any law which
takes away or abridges the rights conferred by part III) as
including, among other things, any "order" or "notification", so
that even executive orders or notifications must not infringe
Article 14. The trilogy of articles thus ensures non-discrimination
in State action both in the legislative and the administrative
spheres in the democratic republic of India”. Thus, the said
judgment is thus not helpful to the argument raised.
38. In Thakur Bharat Singh, this Court dismissed an appeal filed
by the State against the judgment of the High Court reported as
33
Thakur Bharat Singh v. State of M.P. & Anr.20. The High
Court struck down Section 3(1)(b) of the Madhya Pradesh Public
Security Act, 1959 when the writ petitioner before the High Court
was prohibited to be in Raipur District and was directed to remain
within the municipal limits of Jhabua District and was also
ordered to report daily to the Police Station Officer, Jhabua. The
High Court held as under:
“For the foregoing reasons, our conclusion is that clauses
(a) and (c) of section 3(1) of the Act are valid, but clause
(b) being violative of article 19(1)(d) of the Constitution
is invalid. As clause (b) is invalid, the direction made
against the appellant Bharatsingh under that clause
asking him to reside in Jhabua was clearly illegal and was
rightly quashed by the learned Single Judge. On quashing
that direction, the further direction that Bharatsingh
should notify his movements by reporting himself daily to
the Police Station Officer, Jhabua, cannot survive. The
learned Single Judge, therefore, rightly quashed the order
made against Bharatsingh directing him to notify his
movements and report himself daily to the Police Station
Officer, Jhabua, though he did so on the erroneous view
that clause (c) of section 3(1) was inextricably woven with
clause (b) thereof and was invalid. The result is that both
these appeals are dismissed. In the circumstances of the
case, we leave the parties to bear their own costs of the
two appeals.”
39. An appeal against the said judgment was dismissed by this Court
wherein this Court held as under:
“7. We are therefore of the view that the order made by
the State in exercise of the authority conferred by Section
3(1)(b) of the Madhya Pradesh Public Security Act 25 of
1959 was invalid and for the acts done to the prejudice of
the respondent after the declaration of emergency under
Article 352 no immunity from the process of the Court
20 AIR 1964 MP 175
34
could be claimed under Article 358, of the Constitution,
since the order was not supported by any valid
legislation.”
40. The aforementioned judgment is in respect of the statute
enacted by a State Legislature, the provision of which was found
to be invalid. The issue raised in the aforesaid case has no parity
with the facts of the present case.
41. In Bishambhar Dayal Chandra Mohan, the State Government
contended that the impugned teleprinter message dated March
31, 1981 was in the nature of an executive instruction issued by
the State Government under its powers under Article 162 of the
Constitution for the due observance of the provisions of the U.P.
Foodgrains Dealers (Licensing and Restriction on Hoarding)
Order, 1976 and the Uttar Pradesh Foodgrains (Procurement and
Regulation of Trade) Order, 1978. It was the stand of the State
that no person can carry on business in foodgrains as a dealer
or as a commission agent, except under and in accordance with
the terms and conditions of a valid licence issued in that behalf
under the two orders. In these circumstances, this Court held as
under:
“33. Under Article 19(1)(g) of the Constitution, a citizen
has the right to carry on any occupation, trade or business
and the only restriction on this unfettered right is the
authority of the State to make a law imposing reasonable
restrictions under clause (6)............
41. There still remains the question whether the seizure
of wheat amounts to deprivation of property without the
35
authority of law. Article 300-A provides that no person
shall be deprived of his property save by authority of law.
The State Government cannot while taking recourse to
the executive power of the State under Article 162,
deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere
executive fiat or order. Article 162, as is clear from the
opening words, is subject to other provisions of the
Constitution. It is, therefore, necessarily subject to Article
300-A. The word “law” in the context of Article 300-A
must mean an Act of Parliament or of a State legislature,
a rule, or a statutory order, having the force of law, that
is positive or State made law…”
42. The writ petitions filed by the dealers were dismissed. In the
aforesaid case, the restriction was put by an executive order,
which was found to be a reasonable restriction in terms of Article
19(6) of the Constitution. Even the said judgment does not aid
the appellants and has no applicability to the facts of the present
case.
43. Furthermore, reliance on a recent judgment of this Court
reported as Pharmacy Council of India is unfound as it has no
parity with the facts of the present case. The Pharmacy Council
of India, an authority created under the Pharmacy Act, 1948,
resolved on 17.7.2019 to put a moratorium on the opening of
new pharmacy colleges for running Diploma as well as Degree
courses in pharmacy for a period of five years. The argument
raised by the appellant was that Sections 3, 10 and 12 of the
Pharmacy Act confer the power to regulate, therefore, such
36
power would include the power to prohibit also. This Court
negated such an argument and held as under:
“55. Since we have held that the
Resolutions/communications dated 17th July 2019 and
9th September 2019 of the Central Council of the
appellant-PCI, which are in the nature of executive
instructions, could not impose restrictions on the
fundamental right to establish educational institutions
under Article 19(1)(g) of the Constitution of India, we do
not find it necessary to consider the submissions
advanced on other issues. We find that the
Resolutions/communications dated 17th July 2019 and
9th September 2019 of the Central Council of the
appellant-PCI are liable to be struck down on this short
ground.”
44. A perusal of the above judgment shows that an authority under
the Act had put a moratorium on the opening of new pharmacy
colleges, thus, prohibiting the right conferred on an individual
under Article 19(1)(g) of the Constitution. The same however
was by virtue of a resolution not supported by any statute.
Therefore, the said judgment of this Court has no applicability to
the facts of the present case.
45. Furthermore, this Court in a judgment reported as Shri Dwarka
Nath Tewari v. State of Bihar21 was considering Article 182 of
the Bihar Education Code. The Court found that Article 182 of
the Code is not in exercise of any power granted under the
statute and thus cannot deprive the petitioners of their rights in
21 AIR 1959 SC 249
37
the properties which were the subject matter of the writ petition.
This Court held as under:
“13. It is clear, therefore, from the portion of the preface
extracted above, that Article 182 of the Code has no
greater sanction than an administrative order or rule, and
is not based on any statutory authority or other authority
which could give it the force of law. Naturally, therefore,
the learned Solicitor-General, with his usual fairness,
conceded that the article relied upon by the respondents
as having the force of law, has no such force, and could
not, therefore, deprive the petitioners of their rights in the
properties aforesaid.”
46. "Law”, as contemplated under Articles 19(2) and 25(2), falls
within Part III of the Constitution. Therefore, law, as defined
under Article 13(3), would include any ordinance, order, bye-law,
rule, regulation, notification, custom or usage in the territory of
India to have the force of law. The order issued by the State
Government would thus be a law within the meaning of Article
13(2) read with Article 13(3)(a), which is a valid exercise of
power under Article 19(1)(a) read with Article 19(2), and Article
25(1) read with Article 25(2) of the Constitution.
47. The Government Order relates to the powers conferred on the
executive under Section 133 of the Act and rule-making power
of the State under Article 162 of the Constitution. The said
Government Order does not run contrary to any of the provisions
of the Act and the rules framed thereunder. Therefore, the
executive was well within its jurisdiction to ensure that the
38
students come in the uniform prescribed by the College
Development Committee.
48. The College Development Committee so constituted consists of
Member of the Legislative Assembly, representatives of the
students, faculty members etc. Therefore, such authority is a
representative body of the students and teachers including the
Member of the Legislative Assembly and Principal of the College
as Member Secretary. Such Committee cannot be said to be
beyond the scope of Section 143 of the Act. Such authority
established in exercise of the powers vested with the State
Government is not in contravention of any of the provisions of
the statute. In terms of Article 162 of the Constitution, the State
Government in exercise of its executive power could create the
College Development Committee as such Committee does not
contravene any of the provisions of the statute or the rules
framed thereunder.
49. In view of the above, I find that the State Government has the
power to constitute a College Development Committee by
notification dated 31.1.2014 in terms of Section 143 of the Act.
The State Government could confer its power to be exercised by
such office/authority subordinate to the State Government. It is
noted that the word ‘authority’ has not been defined under the
Act. The authority contemplated by the Act could be a non-
39
statutory authority such as of a person or a group of persons
who may be authorized to exercise powers under Section 143 of
the Act.
50. Further, it is well settled that executive powers can be used to
supplement the statutory rules. This Court in a judgment
reported as Sant Ram Sharma v. State of Rajasthan & Ors.22
held that it is true that Government cannot amend or supersede
statutory rules by administrative instructions, but if the rules are
silent on any particular point, the Government can fill up the
gaps and supplement the rules and issue instructions not
inconsistent with the rules already framed thereunder. This Court
in a judgment reported as Union of India & Anr. v. Ashok
Kumar Aggarwal23 held as under:
“59. The law laid down above has consistently been
followed and it is a settled proposition of law that an
authority cannot issue orders/office
memorandum/executive instructions in contravention of
the statutory rules. However, instructions can be issued
only to supplement the statutory rules but not to supplant
it. Such instructions should be subservient to the
statutory provisions. (Vide Union of India v. Majji
Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S)
191] , P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 :
1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru
Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 :
1989 SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC
166], C. Rangaswamaiah v. Karnataka
Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448]
and Joint Action Committee of Air Line Pilots' Assn. of
India v. DG of Civil Aviation [(2011) 5 SCC 435 : AIR
2011 SC 2220] .)”
22 AIR 1967 SC 1910
23 (2013) 16 SCC 147
40
51. The Preamble of the Act aims towards fostering harmonious
development of the mental and physical faculties of students and
cultivating a scientific and secular outlook through education.
52. The curricula under Section 7(2) of the Act is to promote
harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or
sectional diversities, to renounce practices derogatory to the
dignity of women, to value and preserve the rich heritage of our
composite culture, to develop scientific temper, humanism and
the spirit of inquiry and reform and to strive towards excellence
in all spheres of individual and collective activity, so that the
nation constantly rises to higher levels of endeavor and
achievement. The said provision is substantially pari materia
with the fundamental duties enumerated in Part IV-A of the
Constitution inserted by 42nd Amendment, required to be
followed by the institutions covered under the Act.
53. The said provisions show that the mandate of the statute is to
renounce sectional diversities, to develop humanism and to
cultivate scientific and secular outlook. The sectarian approach
that certain students will carry their religious beliefs to secular
schools run by the State would be antithesis of the mandate of
the statute. All students need to act and follow the discipline of
41
the school. Out of the many steps required to ensure uniformity
while imparting education, one of them is to wear the uniform
dress without any addition or subtraction to the same. Any
modification to the uniform would cease to be the uniform,
defeating the very purpose of prescribing under Rule 11 and as
mandated by the College Development Committee.
54. Mr. Dushyant Dave referred to an extract which appears to be
from a booklet published by the Department of Pre-University
Education containing guidelines for the year 2021-2022. It is
contended that such guidelines have contemplated that uniform
is not mandatory and that some College Principals and
Management Committee have imposed uniforms as mandatory,
which is illegal. The relevant clause reads as under:
“Uniform is not mandatory for students studying in Pre
University college under Government / Pre University
Education Department / Education Act. But some college
principals and management committee members have
imposed uniforms as mandatory which is illegal. Any
violation of the foregoing instructions will be taken
seriously.”
55. In respect of the said contention, I find that the students were
following uniform prescribed by the College Development
Committee. It is not the case of any of the students that they
were not wearing uniform for the academic session 2021-22.
The only claim raised was in relation to right to wear the
headscarf during the academic year 2021-22, the year in
42
controversy, and to which the guidelines relate. The recognized
educational institution in terms of Section 2(30) of the Act
means an educational institution recognized under the Act and
includes one deemed to be recognized thereunder. The
recognition of educational institutions is contemplated by
Section 36 of the Act whereas the educational institutions
established and run by the State Government or by the authority
sponsored by the Central or the State Government or by a local
authority and approved by the competent authority shall be
deemed to be the educational institution recognized under the
Act. The students are not disputing the mandate to wear
uniform. It appears that the guidelines have been made part of
the brochure without taking into consideration Rule 11 of the
Rules which contemplates that every recognised educational
institution may specify its own set of uniform. Therefore, the
guidelines run counter to the statutory Rule 11 framed in
exercise of the powers conferred under Section 145 of the Act.
Thus, the uniform, having been prescribed in terms of the Act
and the rules framed thereunder, the guidelines to the contrary
are non-est and in any case had not been followed during the
academic year in question.
56. The Government Order dated 5.2.2022 contemplates that the
prescribed uniform should be followed. It necessarily excludes all
religious symbols visible to naked eye. The argument that the
43
students wear Rudraksha or a Cross is mentioned only to deal
with an argument so raised. Anything worn by the students
under his/her shirt cannot be said to be objectionable in terms
of the Government Order issued.
57. In view of the above enunciation of law, I do not find that the
constitution of the College Development Committee contravenes
any of the provisions of the Act or the Rules made thereunder or
that the regulation of uniform by such Committee is beyond its
scope.
Question (iii)- What is the ambit and scope of right to freedom of
‘conscience’ and ‘religion’ under Article 25?
58. At the outset, it is pertinent to mention that the Constitution
does not define the term ‘Religion’, though it is used in Articles
15, 16, 25, 26, 27, 28 and 30. The Articles which are under
consideration for the purpose of present appeals read thus:
“14. Equality before law.—The State shall not deny to any
person equality before the law or the equal protection of
the laws within the territory of India.
15. Prohibition of discrimination on grounds of religion,
race, caste, sex or place of brith.—(1) The State shall not
discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction or condition with regard
to—
44
(a) access to shops, public restaurants, hotels and places
of public entertainment; or
(b) xx xx xx
19. Protection of certain rights regarding freedom of
speech, etc.—(1) All citizens shall have the right—
(a) to freedom of speech and expression;
xx xx xx
(2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and
integrity of India,] the security of the State, friendly
relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation
or incitement to an offence.
xx xx xx
25. Freedom of conscience and free profession, practice
and propagation of religion.—(1) Subject to public order,
morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and
propagate religion.
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial,
political or other secular activity which may be associated
with religious practice;
(b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character
to all classes and sections of Hindus.”
59. Mr. Huzefa Ahmadi and Mr. Dushyant Dave have quoted from the
proceedings of the Constituent Assembly Debates, to bring about
45
the thought process which had gone into to present the
Constitution to the people of India. Mr. Ahmadi relies upon the
speech of Dr. Ambedkar to the Constituent Assembly on
25.11.1949 (Constituent Assembly Debates, Volume XI, Page
979) to the following effect:
“The third thing we must do is not to be content with mere
political democracy. We must make our political
democracy a social democracy as well. Political
democracy cannot last unless there lies at the base of it
social democracy. What does social democracy mean? It
means a way of life which recognizes liberty, equality and
fraternity as the principles of life. These principles of
liberty, equality and fraternity are not to be treated as
separate items in a trinity. They form a union of trinity in
the sense that to divorce one from the other is to defeat
the very purpose of democracy. Liberty cannot be
divorced from equality, equality cannot be divorced from
liberty. Nor can liberty and equality be divorced from
fraternity. Without equality, liberty would produce the
supremacy of the few over the many. Equality without
liberty would kill individual initiative. Without fraternity,
liberty would produce the supremacy of the few over the
many. Equality without liberty would kill individual
initiative. Without fraternity, liberty and equality could
not become a natural course of things.”
60. Mr. Dave referred to the report dated 25.5.1949 of the Advisory
Committee on Minorities by the Constituent Assembly, presided
by Hon’ble Sardar Vallabhbhai J. Patel, wherein it was stated as
under:
“It is not our intention to commit the minorities to a
particular position in a hurry. If they really have come
honestly to the conclusion that in the changed conditions
of this country, it is in the interest of all to lay down real
and genuine foundations of a secular State, then nothing
is better for the minorities than to trust the good-sense
and sense of fairness of the majority, and to place
46
confidence in them. So also it is for us who happen to be
in a majority to think about what the minorities feel, and
how we in their position.”
61. In Constituent Assembly Debates, Volume V, dated 27.8.1947, it
was opined as under:
“The Draft Constitution is also criticised because of the
safeguards it provides for minorities. In this, the Drafting
Committee has no responsibility. It follows the decisions
of the Constituent Assembly. Speaking for myself, I have
no doubt that the Constituent Assembly has done wisely
in providing such safeguards for minorities as it has done.
In this country both the minorities and the majorities have
followed a wrong path. It is wrong for the majority to
deny the existence of minorities. It is equally wrong for
the minorities to perpetuate themselves. A solution must
be found which will serve a double purpose. It must
recognize the existence of the minorities to start with. It
must also be such that it will enable majorities and
minorities to merge someday into one. ..............”
62. In the Constituent Assembly Debate dated 6.12.1948, while
considering the draft Article 19, which is now Article 25, Pandit
Lakshmi Kanta Maitra expressed his views as follows:
“By secular State, as I understand it, is meant that the
State is not going to make any discrimination whatsoever
on the ground of religion or community against any
person professing any particular form of religious faith.
This means in essence that no particular religion in the
State will receive any State patronage whatsoever. The
State is not going to establish, patronize or endow any
particular religion to the exclusion of or in preference to
others and that no citizen in the State will have any
preferential treatment or will be discriminated against
simply on the ground that he professed a particular form
of religion. In other words in the affairs of the State the
professing of any particular religion will not be taken into
consideration at all. This I consider to be the essence of
a secular state.”
47
63. Mr. Kamat also referred to the proposed amendment moved by
Mr. Tajamul Husain on 3rd December, 1948 proposing an
amendment to the following effect:
“No person shall have any visible sign or mark or name,
and no person shall wear any dress whereby his religion
may be recognised.”
64. The argument raised is that since the amendment was not
accepted, therefore, the citizens have a right to have visible sign
mark or name or dress so that their religion may be recognized.
Though the amendment was not moved, but the fact that such
discussion had taken place in the Constituent Assembly shows
that the Constituent Assembly was aware of wearing of different
clothing by the people of India which the member was
suggesting to be not carried out. Since the Constitution is silent
about the clothes to be worn by the citizens, therefore, the
concern shown by a member of the Constituent Assembly should
not be put under the carpet. In fact, Mr. Tajamul Husain further
raised an argument as under:
“Mr. Tajamul Husain: I wish to point out that religion is
a private affair between man and his God. It has no
concern with anyone else in the world. What is the religion
of others is also no concern of mine. Then why have
visible signs by which one's religion may be recognised?
You will find, Sir, that in all civilized countries—and
civilized countries now-a-days are the countries in Europe
and America—there is no visible sign or mark by which a
man can be recognised as to what religion he professes.
48
xx xx xx
So I do not want these things. I know I am 100 years
ahead of the present times. But still, I shall have my say.
In civilized countries in England there was a time when
there was no uniformity of dress. In this country you find
all sorts of dresses.
You find dhoties, you find pyjamas, you find kurtas, you
find shirts, —and again, no shirts, no dhoties, nakedness,
all sorts of things. That was the same thing in England at
one time.
xx xx xx
Mr. Tajamul Husain: I am sorry for the interruption of
the Maulana. My name I will change when the whole
country adopts my resolution. Then, he will not be able to
find out what I am and who I am.
Now, Sir, I was talking about dress. There was a England
when there was no uniformity, but the Honourable the
Law Minister will agree with me that an Act was actually
passed in Parliament by which there was uniformity of
dress and now in England and in the whole of Europe and
in America there is uniformity of dress. We are one nation.
Let us all have one kind of dress; one kind of name; and
no visible signs. In conclusion, I say we are going to be a
secular State. We should not, being a secular State, be
recognised by our dress. If you have a particular kind of
dress, you know at once that so and so is a Hindu or a
Muslim. This thing should be done away with. With these
words, I move my amendment.
(Amendment 589 and 583 were not moved.)”
65. On the other hand, learned Solicitor General referred to the
speech of Dr. B.R. Ambedkar in the Constituent Assembly Vol.
VII, p. 781, which reads as under:
“The religious conceptions in this country are so vast that
they cover every aspect of life from birth to death. There
49
is nothing extraordinary in saying that we ought to strive
hereafter to limit the definition of religion in such a
manner that we shall not extend it beyond beliefs and
such rituals as may be connected with ceremonials which
are essentially religious.”
66. In respect of the Constituent Assembly Debates, this Court in
A.K. Gopalan v. State of Madras24 held that the Court could
only search for the objective intent of the legislature primarily in
the words used in the enactment, aided by such historical
material such as reports of statutory committees. The Court did
not put any importance on the speeches made by some of the
members of the Constituent Assembly in the course of the
debate on Article 15 (now Article 21). The result appears to be
that while it is not proper to take into consideration the individual
opinions of Members of Assembly to construe the meaning of a
particular clause, when a question is raised whether a certain
phrase or expression was up for consideration at all or not, a
reference to the debates may be permitted.
67. In State of Travancore-Cochin & Ors. v. Bombay Company
Ltd., Alleppey25, this Court held that the speeches made by the
members of the Constituent Assembly in the course of debates
on the draft Constitution is unwarranted. It was noted that this
form of extrinsic aid to the interpretation of statutes is not
24 AIR 1950 SC 27
25 AIR 1952 SC 366
50
admissible has been generally accepted in England, and the
same rule has been observed in the construction of Indian
statutes as well — see Administrator-General of Bengal v. Prem
Nath Mallick [22 IA 107, 118].
68. In a nine-Judges Bench judgment in Indra Sawhney & Ors. v.
Union of India & Ors.26, this Court held that what is said during
the debates is not conclusive or binding upon the Court because
several members may have expressed several views, all of which
may not be reflected in the provision finally enacted. Therefore,
views of the members of the Constituent Assembly are not really
to be relied upon after this Court in a number of judgments have
expressed about the rights under Article 25 of the Constitution.
69. Thus, the debates show the in-depth knowledge of the members
of the Constituent Assembly at that relevant point of time, but
more than 70 years later, with the interpretation of various
provisions by the Constitutional Courts, it is not advisable to rely
solely upon views of the individual members in such debates.
70. Further, the argument of Mr. Dave is that Article 25 protects
religious practices and that the expression ‘essential religious
practice’ has been wrongly used by this Court in Shayara Bano
v. Union of India & Ors.27. It was contended that the judgment
26 1992 Supp (3) SCC 217 27 (2017) 9 SCC 1
51
in Commissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt28 has
not used the expression ‘essential religious practice’. Therefore,
wearing of a headscarf may not be essential, but is a religious
practice, thus, protected by Article 25.
71. Dr. Dhawan, in support of his arguments, argued that the rights
available to the students are the right to dress, free speech and
expression not affecting public order or morality and the right of
privacy, relying upon judgments in National Legal Services
Authority v. Union of India & Ors.29 and K.S. Puttaswamy.
It is contended that wearing of hijab is an essential religious
practice, and that the action of the State is discriminatory on the
grounds of religion and sex.
72. Mr. Tushar Mehta, learned Solicitor General appearing for the
State rebutted the arguments raised on behalf of the appellants
and gave the background of issuance of the Government Order
dated 5.2.2022. He submitted that on 29.3.2013, the College
Development Committee, Udupi, prescribed the uniform for the
girl students and since then the same was being followed by
them. On 31.1.2014, a circular was issued by the Government
regarding formation of a College Development Committee
comprising inter alia the local member of the Legislative
28 AIR 1954 SC 282 (1954 SCR 1005)
29 (2014) 5 SCC 438
52
Assembly, representatives of parents, student representatives
and teachers and Principal of the Pre-University College.
73. It was on 23.6.2018, that the College Development Committee,
Udupi, prescribed a dress code for the students. On 31.12.2019,
the College Development Committee of another College i.e.,
Kundapura Pre-University College, Udupi, unanimously resolved
that the uniform of the students for the academic year would
continue to be same as one prescribed in the previous years.
74. The students at the time of admission to the pre-university
course undertook to comply with all the rules and regulations of
the Pre-University College. It was pointed out that suddenly in
the middle of the academic term, the issue of hijab was
generated in the social media by the activists of Popular Front of
India. The police papers in this respect were handed over to the
High Court in a sealed cover as mentioned on page 126 of the
order of the High Court. It is stated that the chargesheet has
since been filed. Thereafter, some representations were made by
the parents of the students and/or students requesting hijab to
be worn in classrooms.
75. The College Development Committee directed to maintain status
quo. Five students thereafter filed Writ Petition No. 2146 of 2022
on 29.1.2022 seeking an interim prayer that they be allowed to
continue to attend school wearing headscarves. On 31.1.2022,
53
the College Development Committee, Udupi, decided that
students must not wear hijab in classrooms whereas the
Kundapura Pre-University College resolved it on 2.2.2022. There
was a counter-reaction for the demands raised. It is in these
circumstances that the Government issued the impugned order.
76. It is contended that such directions were issued to the
colleges/institutions and not to the individual students as per the
mandate of the Act. The Preamble of the Act is to provide for the
planned development of educational institutions, inculcating
healthy educational practice, maintenance and improvement in
the standards of education, better organization, discipline and
control over educational institutions so as to cultivate a scientific
and secular outlook through education. Section 133(2) of the Act
empowers the State Government to give directions to any
educational institution as in its opinion are necessary or
expedient for carrying out the purposes of the Act. Therefore,
the Government Order was issued to direct the
colleges/institutions to ensure that wherever uniform is
mandated by the College Development Committee or the Board
of Management, it should be worn. But if such uniform is not
mandated, the students should wear clothes which are in the
interest of unity, equality and public order. Therefore, the circular
was issued to the colleges to ensure compliance of norm of
54
uniform in a non-discriminatory manner, irrespective of any
religious faith of the students.
77. The legality of Rule 11 of the Rules is not under challenge. In
terms of the said Rule, the educational institutions have a right
to prescribe a uniform to the students attending the said school.
The scope of judicial review of the decisions of the educational
institutions vis-a-vis its pupil is narrower than a purely
administrative action. Reference was made to T.M.A Pai
Foundation wherein it was held as under:
“64. An educational institution is established only for the
purpose of imparting education to the students. In such
an institution, it is necessary for all to maintain discipline
and abide by the rules and regulations that have been
lawfully framed. The teachers are like foster parents who
are required to look after, cultivate and guide the students
in their pursuit of education. The teachers and the
institution exist for the students and not vice versa. Once
this principle is kept in mind, it must follow that it
becomes imperative for the teaching and other staff of an
educational institution to perform their duties properly,
and for the benefit of the students.........”
78. In the matters of campus discipline of the educational
institutions, the Court does not substitute its own views in place
of the school authority except in a case of manifest injustice or
to interfere with a decision which does not pass the test of
Wednesbury reasonableness. This Court in a judgment reported
55
as Chairman, J & K State Board of Education v. Feyaz
Ahmed Malik30, held as under:
“20. .............. From the discussions in the impugned
judgment, it is clear that the High Court has taken upon
itself the task of finding out a scheme to tackle the
problem of mass malpractice in examination. In our
considered view the approach of the High Court in the
matter is erroneous and this has vitiated the judgment. In
matters concerning campus discipline of educational
institutions and conduct of examinations the duty is
primarily vested in the authorities in charge of the
institutions. In such matters the court should not try to
substitute its own views in place of the authorities
concerned nor thrust its views on them. That is not to say
that the court cannot at all interfere with the decisions of
the authorities in such matters. The court has undoubtedly
the power to intervene to correct any error in complying
with the provisions of the rules, regulations or notifications
and to remedy any manifest injustice being perpetrated
on the candidates. ................”
79. In Ahmedabad St. Xavier’s College Society & Anr. v. State
of Gujarat & Anr.31, it was held that the educational institutions
are temples of learning and thus discipline is required to be
maintained between the teacher and the taught.
“30. Educational institutions are temples of learning. The
virtues of human intelligence are mastered and harmonised
by education. Where there is complete harmony between the
teacher and the taught, where the teacher imparts and the
student receives, where there is complete dedication of the
teacher and the taught in learning, where there is discipline
between the teacher and the taught, where both are
worshippers of learning, no discord or challenge will arise.
An educational institution runs smoothly when the teacher
and the taught are engaged in the common ideal of pursuit
of knowledge. ........... The right to administer is to be
tempered with regulatory measures to facilitate smooth
30 (2000) 3 SCC 59
31 (1974) 1 SCC 717
56
administration. The best administration will reveal no trace
or colour of minority. A minority institution should shine in
exemplary eclectism in the administration of the institution.
The best compliment that can be paid to a minority
institution is that it does not rest on or proclaim its minority
character.
31. Regulations which will serve the interests of the
students, regulations which will serve the interests of the
teachers are of paramount importance in good
administration. Regulations in the interest of efficiency of
teachers, discipline and fairness in administration are
necessary for preserving harmony among affiliated
institutions.”
80. In respect of minority institutions, this Court in a judgment
reported as Bihar State Madarasa Education Board v.
Madarasa Hanfia Arabic College32 held that the State has
power to regulate the educational needs and discipline of a
minority institution.
“6. .......... This Court has all along held that though the
minorities have right to establish and administer educational
institution of their own choice but they have no right to
maladminister and the State has power to regulate
management and administration of such institutions in the
interest of educational need and discipline of the institution.
Such regulation may have indirect effect on the absolute
right of minorities but that would not violate Article 30(1) of
the Constitution as it is the duty of the State to ensure
efficiency in educational institutions. The State has,
however, no power to completely take over the management
of a minority institution. ................. Minority institutions
cannot be allowed to fall below the standard of excellence on
the pretext of their exclusive right of management but at the
same time their constitutional right to administer their
institutions cannot be completely taken away by superseding
or dissolving Managing Committee or by appointing ad hoc
committees in place thereof. .............”
32 (1990) 1 SCC 428
57
81. In Modern Dental College & Research Centre v. State of
Madhya Pradesh33, it was held that the right under Article
19(1)(g) is not absolute but is subject to reasonable restrictions
under clause (6) in the larger interest and welfare of student
community and to promote merit, achieve excellence and curb
malpractices, fee and admissions could certainly be regulated.
This Court held as under:
“57. It is well settled that the right under Article 19(1)(g) is
not absolute in terms but is subject to reasonable restrictions
under clause (6). Reasonableness has to be determined
having regard to the nature of right alleged to be infringed,
purpose of the restriction, extent of restriction and other
relevant factors. In applying these factors, one cannot lose
sight of the directive principles of State policy. The Court has
to try to strike a just balance between the fundamental
rights and the larger interest of the society. The Court
interferes with a statute if it clearly violates the fundamental
rights. The Court proceeds on the footing that the legislature
understands the needs of the people. The Constitution is
primarily for the common man. Larger interest and welfare
of student community to promote merit, achieve excellence
and curb malpractices, fee and admissions can certainly be
regulated.”
82. It has been argued that Article 25 of the Constitution must be
given a conjunctive meaning. In Article 25(1), the term
‘conscience’ needs to be given not only the widest connotation
but also an interconnected meaning. It is contended to be wide
enough to cover the use of hijab, which reflects an expression
of conscience. It is argued that the terms ‘conscience’, ‘profess’
33 (2016) 7 SCC 353
58
and ‘practice’, as occurring in Article 25(1), are distinct and at
the same time, interconnected. Practice would necessarily
include conscience, and therefore both are inseparable.
83. It is further submitted that the right to dress inheres in the right
to freedom of speech and expression, right to identity, and the
right to dignity under Article 21 of the Constitution of India.
Restriction on dress, even in the context of uniform, must have
a rational nexus with the object sought to be achieved. Dress
has been referred also in the context of expression of self. It is
submitted that Muslim women wearing hijab is a symbolic
expression of their identity to the public as a woman who follows
Islam. The wearing of hijab does not cause any issue of public
disorder or disturbance. Moreover, an arbitrary, unsubstantiated
and illogical constraint imposed on the appearance of Muslim
women and their choice of self-presentment is constitutionally
impermissible and an explicit violation of Article 19 guaranteed
in the Constitution. It was submitted that the purpose of uniform
is not to erase the markers of individuality. Simply by wearing
the prescribed dress code, diverse distinctions which exist
amongst the students would not evaporate. In multi-cultural
societies, students should be taught to acknowledge, accept and
respect diversities in the society. It is further submitted that the
impugned Government Order is exclusionary and destructive of
59
tolerance and diversity in the classroom. The classroom is
expected to be uniform but not homogenous.
84. This Court in S.P. Mittal v. Union of India34 held that, it is
“obvious that religion, undefined by the Constitution, is
incapable of precise judicial definition either. In the background
of the provisions of the Constitution and the light shed by
judicial precedent, we may say religion is a matter of faith. It is
a matter of belief and doctrine. It concerns the conscience i.e.
the spirit of man. It must be capable of overt expression in word
and deed, such as, worship or ritual. So, religion is a matter of
belief and doctrine, concerning the human spirit, expressed
overtly in the form of ritual and worship. Some religions are
easily identifiable as religions; some are easily identifiable as
not religions. There are many in the penumbral region which
instinctively appear to some as religions and to others as not
religions”.
85. Further, in A.S. Narayana Deekshitulu, this Court held that “A
religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be
conducive to their spiritual well-being. ...Every religion must
believe in a conscience and ethical and moral precepts.
Therefore, whatever binds a man to his own conscience and
34 (1983) 1 SCC 51
60
whatever moral or ethical principles regulate the lives of men
believing in that theistic, conscience or religious belief that alone
can constitute religion as understood in the Constitution which
fosters feeling of brotherhood, amity, fraternity and equality of
all persons which find their foothold in secular aspect of the
Constitution. Secular activities and aspects do not constitute
religion which brings under its own cloak every human activity.
86. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi v. State of U.P.35, this Court held that the religious
freedoms guaranteed by Articles 25 and 26 is intended to be a
guide to a community life and ordains every religion to act
according to its cultural and social demands to establish an
egalitarian social order. Articles 25 and 26, therefore, strike a
balance between the rigidity of right of religious belief and faith
and their intrinsic restrictions in matters of religion, religious
beliefs and guaranteed freedom of conscience to commune with
his Cosmos/Creator and realize his spiritual self.
87. Thus, religion believes in conscience and ethical and moral
precepts. The freedom of conscience is what binds a man to his
own conscience and whatever moral or ethical principles
regulate the lives of men. There is a fine distinction between
freedom of conscience and religion. The scope of protection
35 (1997) 4 SCC 606
61
under Article 25 goes beyond religious beliefs. This provision
affords to all persons freedom to beliefs which may not
necessarily be religious but which may spring from one’s
conscience. Freedom of religion, on the other hand, grants one
the right to follow one’s faith, the established form of which
gives a set of ethical norms to its followers and defines the
rituals, observances, ceremonies and modes of worship.
88. I need to examine the right to freedom of conscience and
religion in light of the restrictions provided under Article 25(1)
of the Constitution. Such right is not just subject to public order,
morality and health but also ‘other provisions of Part III’. This
would also include Article 14 which provides for equality before
law. In T.M.A. Pai Foundation, this Court reiterated that
Article 25(1) is not only subject to public order, morality and
health, but also to other provisions of Part III of the
Constitution. It was observed as under:
“82. Article 25 gives to all persons the freedom of conscience
and the right to freely profess, practise and propagate
religion. This right, however, is not absolute. The opening
words of Article 25(1) make this right subject to public order,
morality and health, and also to the other provisions of Part
III of the Constitution. This would mean that the right given
to a person under Article 25(1) can be curtailed or regulated
if the exercise of that right would violate other provisions of
Part III of the Constitution, or if the exercise thereof is not
in consonance with public order, morality and health. The
general law made by the Government contains provisions
relating to public order, morality and health; these would
have to be complied with, and cannot be violated by any
62
person in exercise of his freedom of conscience or his
freedom to profess, practise and propagate religion. For
example, a person cannot propagate his religion in such a
manner as to denigrate another religion or bring about
dissatisfaction amongst people.”
89. The object of the Government Order was to ensure that there is
parity amongst the students in terms of uniform. It was only to
promote uniformity and encourage a secular environment in the
schools. This is in tune with the right guaranteed under Article
14 of the Constitution. Hence, restrictions on freedom of religion
and conscience have to be read conjointly along with other
provisions of Part III as laid down under the restrictions of
Article 25(1).
Question (iv) - What is the ambit and scope of essential religious
practices under Article 25 of the Constitution?
90. The appellants have contended that wearing of a headscarf is an
essential religious practice followed by the women following
Islam since time immemorial. It is averred that the same has
been provided for in their religious scriptures and thus is
essential to the religion. The argument is that the impugned
Government Order impinges upon their right of wearing
headscarf as an essential religious practice, and is thus violative
of the right guaranteed under Article 25 of the Constitution.
91. To rebut the said argument of essential religious practice, Mr.
Tushar Mehta relied upon a judgment of this Court reported as
63
Commissioner of Police & Ors. v. Acharya
Jagadishwarananda Avadhuta & Anr.36 wherein, this Court
held that essential part of a religion means the core beliefs upon
which a religion is founded. It is upon the cornerstone of
essential parts or practices that the superstructure of a religion
is built, without which a religion will be no religion. The test to
determine whether a part or practice is essential to a religion is
to find out whether the nature of the religion would be changed
without that part or practice. If taking away of that part or
practice results in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an
essential or integral part of the religion.
92. The argument of the learned Solicitor General is that in the Writ
Petition filed titled Aishat Shifa v. State of Karnataka & Ors.,
there is a reference to Verse 31 Chapter 24 and Verse 31 Chapter
34 of the Holy Quran. In Shaheena & Anr. v. State of
Karnataka & Ors. (Writ Petition No. 3038 of 2022), the
petitioners have quoted Verse 26 Chapter 7, Verse 31 Chapter
24 and Verse 59 Chapter 33 of the Holy Quran indicating that
wearing of headscarf is part of the religious identity and essential
in Islamic faith. The reliance was also placed upon the judgment
of the Kerala High Court reported as Amnah Bint Basheer &
36 (2004) 12 SCC 770 (Acharya Jagadishwarananda Avadhuta-II)
64
Anr. v. Central Board of Secondary Education (CBSE), New
Delhi & Anr.37
93. It is contended by the learned Solicitor General that wearing of
hijab may be a practice, it may be an ideal or a permissible
practice, but to raise it to the level of an essential religious
practice, something more is required to be pleaded and proved
and it has to be shown that if the headscarf is not worn, the
identity of the person as a believer in the faith itself would be
jeopardized as explained by this Court in A.S. Narayana
Deekshitulu and Acharya Jagadishwarananda AvadhutaII, referred to above.
94. Mr. Prabhuling K. Navadgi, learned Advocate General referred to
Verse 31 of Surah 24 of the Holy Quran to assert that wearing of
a headscarf is not an essential feature of the Islamic practice. It
is argued that wearing of a headscarf may be a religious practice
but is not essential to the religion as non-following of such
practice would not lead a believer to be non-Muslim. The
essential religious practices are those practices, if not followed,
would render the person religion less. Learned Advocate General
of the State of Karnataka argued that the protection under Article
25 is only to the essential religious practices and not to every
religious belief. What constitutes the essential part of religion is
37 AIR 2016 Ker 115
65
primarily to be ascertained with reference to the doctrine of that
religion itself. Article 25(2)(a) contemplates not the regulation
by the State of all religious practices as such, but regulation of
essential religious practices which are economic, commercial or
political, though they are associated with religious practice.
95. To appreciate the argument raised, I firstly need to examine the
tenets of Muslim Law. In the Mulla’s Mohammedan Law, 5th
edition, 2019, it was stated that the Prophet Muhammad himself
declared that the Holy Quran was revealed to him by the angel
“Gabriel” in various portions and at different times. The texts are
held by Mohammedans to be decisive as being the words of God
transmitted to man through the Prophet. It is explained that
there are four sources of Mohammedan Law, namely, (1) the
Quran; (2) Hadis, i.e., precepts, actions and sayings of the
Prophet Muhammad, not written down during his lifetime, but
preserved by tradition and handed down by authorized persons;
(3) Ijmaa, i.e., a concurrence of opinion of the companions of
Muhammad and his disciples; and (4) Qiyas, being analogical
deductions derived from a comparison of the first three sources
when they do not apply to the particular case.
96. Still further, five duties38 have been laid down for the Muslims
by the Prophet, the same are reproduced as under:
38 Page 14 Mulla’s Mohammedan Law, 5th edition, 2019
66
“(i) Kalma :- It is the duty of every Muslim to recite
kalma. Kalma implies certain Hymns proclaiming
the unity of God accepting Mohammed as the
Prophet.
(ii) Namaz :- Every Muslim must say prayers (Namaz)
five times a day and on every Friday he must offer
his afternoon prayer at the Mosque.
(iii) Zakat :- It is the duty of every Muslim to offer
Zakat or charity to the poor and needy.
(iv) Ramzan :- The most pious duty of every Muslim is
to observe fasts in the holy month of ‘Ramzan’.
(v) Haj :- Every Muslim, should go for Haj or
pilgrimage to Mecca at least once in his lifetime.”
97. In same Chapter39, according to the ‘Shariat’, religious
commandment (Hukum) of Allah are of five types, which reads
thus:
“(i) Farz – Five daily prayers (namaz) – One must do
strictly.
(ii) Haram – Drinking wine – One must forbade strictly.
(iii) Mandub/Additional Prayers on the id – One may do.
(iv) Makrum – Eating certain kinds of fish prohibited –
One may refrain from.
(v) Jaiz or Mubah – Thousands of Jaiz things, such as
travelling by air – Shariat is indifferent towards it.”
98. The Chapter 740 also gives the description of laws which have
modified the Mohammedan Law. Such statutes are as under:
“(i) The Indian Contract Act, 1872.
(ii) The Usuary Law Repeal Act.
(iii) Usurious Loans Act.
(iv) The Religious Toleration Act.
(v) The Freedom of Religion Act, 1850.
(vi) The Waqf Validating Act.
(vii) The Shariat Act, 1937.
(viii) The Dissolution of Muslim Marriage Act, 1939.
39 Page 19 Mulla’s Mohammedan Law, 5th edition, 2019
40 Page 106 Mulla’s Mohammedan Law, 5th edition, 2019
67
(ix) The Special Marriages Act, 1954. (When a Muslim
solemnizes or registers his marriage under this
Act, such marriage and the liability for Mahr, the
dissolution of such marriage and succession to the
property of such Muslim and of the issue of such
marriage is not governed by Muslim Law).
(x) Constitution of India : The Muslim Law of Preemption stands subject to Act 19(1)(f) of the
Constitution.
(xi) Muslim Law relating to crimes, procedure and
slavery stand abrogated by laws enacted in this
regard by the Legislature.”
99. There are various text books interpreting the verses of the Holy
Quran. However, reference is made to the interpretation given
by Abdullah Yusuf Ali, translation in English published alongside
the original Arabic text, completed in Lahore on 4.4.1937. The
interpretation by Yusuf Ali has been referred to by this Court in
a number of judgments41. Mr. Aditya Sondhi and Mohd.
Nizamuddin Pasha have also referred to the Holy Quran by
Abdullah Yusuf Ali in their written submissions. The English
translation and meaning ascribed to such translation available
online “The Glorious Quran” read thus:
“Surah 24 Verse 31
31. And say to the believing women that they
should lower their gaze and guard(2984) their
modesty; that they should not display their beauty
and ornaments(2985) except what (must
ordinarily) appear thereof; that they should draw
their veils over their bosoms and not display their
beauty except to their husbands, their fathers, their
husband’s fathers, their sons, their husbands’ sons,
41 Mohd. Ahmed Khan v. Shah Bano Begum & Ors., (1985) 2 SCC 556; Danial Latifi & Anr. v.
Union of India, (2001) 7 SCC 740; Iqbal Bano v. State of U.P. & Anr., (2007) 6 SCC 785;
and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
68
their brothers or their brothers’ sons, or their
sisters’ sons, or their women or the slaves whom
their right hands possess, or male servants free of
physical needs, or small children who have no sense
of the shame of sex; and that they should not strike
their feet in order to draw attention to their hidden
ornaments.(2986) And O ye Believers! turn ye all
together towards Allah, that ye may attain
Bliss.(2987)
2984 The need for modesty is the same in both
men and women. But on account of the
differentiation of the sexes in nature,
temperaments, and social life, a greater amount of
privacy is required for women than for men,
especially in the matter of dress and the
uncovering of the bosom.
2985 Zinah means both natural beauty and
artificial ornaments. I think both are implied here,
but chiefly the former. The woman is asked not to
make a display of her figure or appear in undress
except to the following classes of people: (1) her
husband, (2) her near relatives who would be living
in the same house, and with whom a certain
amount of neglige is permissible; (3) her women,
i.e., her maid-servants, who would be constantly in
attendance on her: some Commentators include all
believing women; it is not good form in a Muslim
household for women to meet other women,
except when they are properly dressed; (4) slaves,
male and female, as they would be in constant
attendance (but with the abolition of slavery this
no longer applies); (5) old or infirm men-servants;
and (6) infants or small children before they get a
sense of sex. Cf. also 33:59.
2986 It is one of the tricks of showy or unchaste
women to tinkle their ankle ornaments, to draw
attention to themselves.
2987 While all these details of the purity and good
form of domestic life are being brought to our
attention, we are clearly reminded that the chief
object we should hold in view is our spiritual
welfare. All our brief life on this earth is a
69
probation, and we must take our individual,
domestic, and social life all contribute to our
holiness, so that we can get the real success and
bliss which is the aim of our spiritual endeavor.(R).”
Surah 33 Verse 36
36. It is not fitting for a Believer, man or woman,
when a matter has been decided by Allah and His
Messenger to have any option about their
decision:(3721) if any one disobeys Allah and His
Messenger, he is indeed on a clearly wrong Path.
3721 We must not put our own wisdom in
competition with Allah’s wisdom. Allah’s decree is
often known to us by the logic of facts. We must
accept it loyally, and do the best we can to help in
our own way to carry it out. We must make our will
consonant to Allah’s Will. (R).”
100. The students in one of the writ petitions before the High Court
referred to the following verses from the Holy Quran. Such
verses from the Book “The Glorious Quran” by Yusuf Ali read as
under:
“Surah 34 Verse 31
31. The Unbelievers say: “We shall neither believe
in this scripture nor in (any) that (came) before it.”
(3834) Couldst thou but see when the wrong-doers
will be made to stand before their Lord, throwing
back the word (of blame)(3835) on one another!
Those who had been despised will say to the
arrogant ones: (3836) “Had it not been for you, we
should certainly have been believers!”
3834 To the Pagans all scriptures are taboo,
whether it be the Qur’an or any Revelation that
came before it. The people of the Book
despised the Pagans, but in their arrogant
assumption of superiority, prevented them, by
their example, from accepting the latest and
70
most universal Scripture when it came in the
form of the Qur’an. This relative position of
men who fancy themselves on their
knowledge, and men whom they despise but
exploit and mislead, always exists on this
earth. I have mentioned the people of the Book
and the Pagan Arabs merely by way of
illustration.
3835 One disbelief is as bad as another. There
is little to choose between them. But when the
final account will be taken, there will be mutual
recriminations between the one and the other.
3836 The Pagans will naturally say to the
people of the Book; ‘You misled us; you had
previous Revelations, and you should have
known how Allah sent His Messengers; had it
not been for your bad example, we should
have received Allah’s Revelation and become
Believers’. Or the humble followers will say this
to their leaders, or those less gifted will say to
those by whom they were misled and
exploited. The dichotomy is between such as
pretentiously held their heads high in the world
and such as they profited by but held in
contempt.
Surah 33 Verse 59
59. O Prophet! Tell thy wives and daughters, and
the believing women, (3764) that they should cast
their outer garments over (3765) their persons
(when abroad): that is most convenient, that they
should be known (3766) (as such) and not
molested. And Allah is Oft-Forgiving, (3767) Most
Merciful.
3764 This is for all Muslim women, those of
the Prophet’s household, as well as the others.
They were asked to cover themselves with
outer garments when walking around. (R).
3765 J ilbab, plural Jalabib: an outer garment:
a long gown covering the whole body, or a
71
cloak covering the neck and bosom.
3766 The object was not to restrict the liberty
of women but to protect them from harm and
molestation. In the East and the West a
distinctive public dress of some sort or another
has always been a badge of honour or
distinction, both among men and women. This
can be traced back to the earliest civilisations.
Assyrian Law in its palmiest days (say, 7th
Century B.C.), enjoined the veiling of married
women and forbade the veiling of slaves and
women of ill fame: see Cambridge Ancient
History, III, 107.
3767 That is, if a Muslim woman sincerely
tries to observe this rule, but owing to human
weakness falls short of the ideal, then “Allah is
Oft-Forgiving, Most Merciful” (Cf.24:30-31).
(R).
Surah 7 Verse 26
26. O ye Children of Adam! We have bestowed
raiment (1008) upon you to cover your shame, as
well as to be an adornment to you. But the raiment
of righteousness, - that is the best. Such are among
the Signs of Allah, that they may receive
admonition!
1008 There is a double philosophy of clothes
here, to correspond with the double
signification of verse 20 above, as explained in
n. 1006. Spiritually, Allah created man “bare
and alone” (6:94): the soul in its naked purity
and beauty knew no shame because it knew no
guilt: after it was touched by guilt and soiled by
evil, its thoughts and deeds became its clothing
and adornments, good or bad, honest or
meretricious, according to the inner motives
which gave them colour. So in the case of the
body: it is pure and beautiful, as long as it is
not defiled by misuse; its clothing and
ornaments may be good or meretricious,
according to the motives in the mind and
character; if good, they are the symbols of
72
purity and beauty; but the best clothing and
ornament we could have comes from
righteousness, which covers the nakedness of
sin, and adorns us with virtues. (R).”
101. The Hedaya, commentary on Islamic Laws, 2nd edition was
published in April, 1870. The same is available online. The
reprint of such publication, word-to-word, line-to-line and pageto-page was published in the year 1979 by Kitab Bhavan, New
Delhi. The interpretation of the Holy Quran in the Hedaya had
been quoted by this Court in a number of judgments42. Volume
I, Book VI of Vows is now regulated by the Penal Code (Note at
the end of Volume I); Volume II Book VIII relating to Larceny
stands omitted as now regulated by Penal Code, Act No. XLV of
1860; Book V and XII dealing Ittak, or the Manumission of
Slaves stands deleted in consequence of the abolition of slavery
by Act No. V of 1843.
102. It is noted that the issue of essential religious practices in the
context of Islamic law has been raised at earlier instances also
before this Court, though for other practices. In a judgment
reported as Mohd. Hanif Quareshi and others v. State of
Bihar43, this Court found the sacrifice of a cow to be not
42 Mohd. Hanif Quareshi & Ors. v. State of Bihar, AIR 1958 SC 731;
Valia Peedikakkandi Katheessa Umma & Ors. v. Pathakkalan Narayanath Kunhamu & Ors.,
AIR 1964 SC 275;
N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 SC 792; and,
Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1
43 AIR 1958 SC 731
73
obligatory and essential to the religion of Islam. The Court
negated the argument of the appellants when it was held that
there is “no material on the record before us which will enable
us to say, in the face of the foregoing facts, that the sacrifice of
a cow on that day in an obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the premises, it is not
possible for us to uphold this claim of the petitioners”. This Court
held as under:
“13. Coming now to the arguments as to the violation of
the petitioners' fundamental rights, it will be convenient
to take up first the complaint founded on Article 25(1)…
What then, we inquire, are the materials placed before us
to substantiate the claim that the sacrifice of a cow is
enjoined or sanctioned by Islam? …
............ All that was placed before us during the
argument were Surah XXII, Verses 28 and 33, and Surah
CVIII. What the Holy book enjoins is that people should
pray unto the Lord and make sacrifice. We have no
affidavit before us by any Maulana explaining the
implications of those verses or throwing any light on this
problem. We, however, find it laid down in Hamilton's
translation of Hedaya Book XLIII at p. 592 that it is the
duty of every free Mussulman, arrived at the age of
maturity, to offer a sacrifice on the Yd Kirban, or festival
of the sacrifice, provided he be then possessed of Nisab
and be not a traveller. The sacrifice established for one
person is a goat and that for seven a cow or a camel. It
is therefore, optional for a Muslim to sacrifice a goat for
one person or a cow or a camel for seven persons. It does
not appear to be obligatory that a person must sacrifice a
cow. The very fact of an option seems to run counter to
the notion of an obligatory duty. It is, however, pointed
out that a person with six other members of his family
may afford to sacrifice a cow but may not be able to afford
to sacrifice seven goats…We have, however, no material
on the record before us which will enable us to say, in the
face of the foregoing facts, that the sacrifice of a cow on
74
that day is an obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the premises, it is
not possible for us to uphold this claim of the petitioners.”
103. In Mohd. Ahmed Khan v. Shah Bano Begum & Ors.44, this
Court held that the provisions of Muslim Personal Law do not
countenance cases in which the wife is unable to maintain herself
after the divorce. Though the effect of the said judgment was
nullified by a Statute, but the fact remains that the personal law
was not approved by this Court. It was held as under:
“14. These statements in the text books are inadequate
to establish the proposition that the Muslim husband is
not under an obligation to provide for the maintenance of
his divorced wife, who is unable to maintain herself. One
must have regard to the entire conspectus of the Muslim
Personal Law in order to determine the extent, both in
quantum and in duration, of the husband's liability to
provide for the maintenance of an indigent wife who has
been divorced by him. Under that law, the husband is
bound to pay Mahr to the wife as a mark of respect to her.
True, that he may settle any amount he likes by way of
dower upon his wife, which cannot be less than 10
Dirhams, which is equivalent to three or four rupees
(Mulla's Mahomedan Law, Eighteenth Edn., para 286, p.
308). But, one must have regard to the realities of life.
Mahr is a mark of respect to the wife. The sum settled by
way of Mahr is generally expected to take care of the
ordinary requirements of the wife, during the marriage
and after. But these provisions of the Muslim Personal Law
do not countenance cases in which the wife is unable to
maintain herself after the divorce. We consider it not only
incorrect but unjust, to extend the scope of the
statements extracted above to cases in which a divorced
wife is unable to maintain herself. We are of the opinion
that the application of those statements of law must be
restricted to that class of cases, in which there is no
possibility of vagrancy or destitution arising out of the
indigence of the divorced wife…”
44 (1985) 2 SCC 556
75
104. The Constitution Bench in a judgment reported as Dr. M. Ismail
Faruqui & Ors. v. Union of India & Ors.45 held that offering
of prayer or worship is a religious practice, but its offering at
every location where such prayers can be offered would not be
an essential or integral part of such religious practice. It was held
as under:
“77. It may be noticed that Article 25 does not contain
any reference to property unlike Article 26 of the
Constitution. The right to practise, profess and propagate
religion guaranteed under Article 25 of the Constitution
does not necessarily include the right to acquire or own
or possess property. Similarly this right does not extend
to the right of worship at any and every place of worship
so that any hindrance to worship at a particular place per
se may infringe the religious freedom guaranteed under
Articles 25 and 26 of the Constitution. The protection
under Articles 25 and 26 of the Constitution is to religious
practice which forms an essential and integral part of the
religion. A practice may be a religious practice but not an
essential and integral part of practice of that religion.
78. While offer of prayer or worship is a religious practice,
its offering at every location where such prayers can be
offered would not be an essential or integral part of such
religious practice unless the place has a particular
significance for that religion so as to form an essential or
integral part thereof. Places of worship of any religion
having particular significance for that religion, to make it
an essential or integral part of the religion, stand on a
different footing and have to be treated differently and
more reverentially.
xx xx xx
82. … A mosque is not an essential part of the practice of
the religion of Islam and namaz (prayer) by Muslims can
be offered anywhere, even in open…”
45 (1994) 6 SCC 360
76
105. Later, a three-Judges Bench judgment of this Court reported as
Javed & Ors. v. State of Haryana & Ors.46 negated the
argument that no religious scripture or authority has been
brought to the notice of the Court which provides that marrying
less than four women or abstaining from procreating a child from
each and every wife would be irreligious or offensive to the
dictates of the religion. It was held as under:
“44. The Muslim law permits marrying four women. The
personal law nowhere mandates or dictates it as a duty
to perform four marriages. No religious scripture or
authority has been brought to our notice which provides
that marrying less than four women or abstaining from
procreating a child from each and every wife in case of
permitted bigamy or polygamy would be irreligious or
offensive to the dictates of the religion. In our view, the
question of the impugned provision of the Haryana Act
being violative of Article 25 does not arise...”
106. In Shayara Bano, Justice Nariman, speaking for himself and
Justice Lalit, noted that “a practice does not acquire the sanction
of religion simply because it is permitted” and applied the
essential religious practices test. It was held as under:
“54. … it is clear that triple talaq is only a form of talaq
which is permissible in law, but at the same time, stated to
be sinful by the very Hanafi school which tolerates it.
According to Javed [Javed v. State of Haryana, (2003) 8
SCC 369 : 2004 SCC (L&S) 561] , therefore, this would not
form part of any essential religious practice. Applying the
test stated in Acharya Jagadishwarananda [Commr. of
Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12
SCC 770], it is equally clear that the fundamental nature of
46 (2003) 8 SCC 369
77
the Islamic religion, as seen through an Indian Sunni
Muslim's eyes, will not change without this practice.
107. Justice Kurian Joseph, concurring with Justices Nariman and
Lalit, held that on an examination of the Holy Quran and Islamic
legal scholarship, the practice of triple talaq could not be
considered an essential religious practice. He opined that
“merely because a practice has continued for long, that by itself
cannot make it valid if it has been expressly declared to be
impermissible”.
108. The judgments referred to above had the direct or indirect effect
on modifying the understanding of the verses of the Holy Quran,
apart from the statutes mentioned by Mulla in his book referred
to above. But I would examine the question that if the believers
of the faith hold an opinion that wearing of hijab is an essential
religious practice, the question is whether the students can seek
to carry their religious beliefs and symbols to a secular school.
109. A reading of the judgment in Sri Shirur Mutt shows an
argument that secular activities which may be associated with
religion but do not really constitute an essential part of it are
amenable to State regulation. The power to legislate in respect
of all secular activities was not accepted. The question examined
was the scope of clause (b) of Article 26 which speaks of
management of its own “affairs in matters of religion.” The
78
language undoubtedly suggests that there could be other affairs
of a religious denomination or a section thereof which are not
matters of religion and to which the guarantee given by this
clause would not apply. The question is, where is the line to be
drawn between what are matters of religion and what are not. It
was held that what constitutes an essential part of a religion is
primarily to be ascertained with reference to the doctrines of that
religion itself. This Court held as under:
“17. … A religion undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by those who profess
that religion as conducive to their spiritual well-being, but it
would not be correct to say that religion is nothing else but
a doctrine or belief… The guarantee under our Constitution
not only protects the freedom of religious opinion but it
protects also acts done in pursuance of a religion and this is
made clear by the use of the expression “practice of religion”
in Article 25.”
xxx xxx xxx
19. … What constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of
that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to the
idol at particular hours of the day … all these would be
regarded as parts of religion and the mere fact that they
involve expenditure of money or employment of priests and
servants or the use of marketable commodities would not
make them secular activities partaking of a commercial or
economic character; all of them are religious practices and
should be regarded as matters of religion within the meaning
of Article 26(b).”
79
110. In Ratilal Panachand Gandhi v. State of Bombay47, it has
been held that “religious practices or performances of acts in
pursuance of religious belief are as much a part of religion as
faith or belief in particular doctrines and the distinction between
matters of religion and those of secular administration of
religious properties may, at times, appear to be a thin one. But
in cases of doubt, the court should take a common sense view
and be actuated by considerations of practical necessity.”
111. In a judgment reported as Durgah Committee, Ajmer v. Syed
Hussain Ali48, the challenge was to the Durgah Khwaja Saheb
Act 36 of 1955. The challenge was in respect of freedom
guaranteed under Article 26I and (d) of the Constitution. The
property in respect of which claim had been made consisted of
offerings made either in or outside the shrine. This Court quoted
from Sri Shirur Mutt to say that the word “religion” has not
been defined in the Constitution and is a term which is hardly
susceptible of any rigid definition. It was held that the practices,
though religious, may have sprung from merely superstitious
beliefs and may in that sense be extraneous and unessential
accretions to religion itself, cannot be accepted unless such
practices are found to constitute an essential and integral part of
a religion and their claim for the protection under Article 26 may
47 AIR 1954 SC 388
48 AIR 1961 SC 1402
80
have to be carefully scrutinized. It was held that protection must
be confined to such religious practices as are an essential and an
integral part of it and no other. This Court held that Articles 25
and 26 together safeguard the citizen's right to freedom of
religion. It was observed as under:
“33. … …Whilst we are dealing with this point it may not
be out of place incidentally to strike a note of caution and
observe that in order that the practices in question should
be treated as a part of religion they must be regarded by
the said religion as its essential and integral part;
otherwise even purely secular practices which are not an
essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for
being treated as religious practices within the meaning of
Article 26. Similarly, even practices though religious may
have sprung from merely superstitious beliefs and may in
that sense be extraneous and unessential accretions to
religion itself. Unless such practices are found to
constitute an essential and integral part of a religion their
claim for the protection under Article 26 may have to be
carefully scrutinised; in other words, the protection must
be confined to such religious practices as are an essential
and an integral part of it and no other.” (Emphasis
Supplied)
112. In Sri Venkataramana Devaru & Ors. v. State of Mysore &
Ors.49, the question examined was whether the right of a
religious denomination to manage its own affairs in matters of
religion guaranteed under Article 26(b) is subject to, and can be
controlled by, a law protected by Article 25(2)(b). This Court held
that Article 25 deals with the rights of individuals and Article 26
protects the rights of denominations. It was observed as follows:
49 AIR 1958 SC 255
81
“29. The result then is that there are two provisions of
equal authority, neither of them being subject to the
other. The question is how the apparent conflict between
them is to be resolved. The rule of construction is well
settled that when there are in an enactment two
provisions which cannot be reconciled with each other,
they should be so interpreted that, if possible, effect could
be given to both. This is what is known as the rule of
harmonious construction. Applying this rule, if the
contention of the appellants is to be accepted, then Article
25(2)(b) will become wholly nugatory in its application to
denominational temples, though, as stated above, the
language of that Article includes them. On the other hand,
if the contention of the respondents is accepted, then full
effect can be given to Article 26(b) in all matters of
religion, subject only to this that as regards one aspect of
them, entry into a temple for worship, the rights declared
under Article 25(2)(b) will prevail. While, in the former
case, Article 25(2)(b) will be put wholly out of operation,
in the latter, effect can be given to both that provision and
Article 26(b). We must accordingly hold that Article 26(b)
must be read subject to Article 25(2)(b).”
113. In a later judgment reported as Tilkayat Shri Govindlalji
Maharaj Etc. v. State of Rajasthan & Ors.50, the validity of
Nathdwara Temple Act, 1959 was the subject matter of
consideration. It was held that the protection under Article 25 is
not absolute and the Court may have to enquire whether the
practice in question is religious in character and if it is, whether
it can be regarded as an integral or essential part of the religion.
It was held as under:
“55. Articles 25 and 26 constitute the fundamental rights
to freedom of religion guaranteed to the citizens of this
country. Article 25(1) protects the citizen’s fundamental
right to freedom of conscience and his right freely to
profess, practice and propagate religion. The protection
50 AIR 1963 SC 1638
82
given to this right is, however, not absolute. It is subject
to public order, morality and health as Article 25(1) itself
denotes. It is also subject to the laws, existing or future,
which are specified in Article 25(2)….
xxx xxx xxx
57. In deciding the question as to whether a given
religious practice is an integral part of the religion or not,
the test always would be whether it is regarded as such
by the community following the religion or not. This
formula may in some cases present difficulties in its
operation. Take the case of a practice in relation to food
or dress.….. This question will always have to be decided
by the Court and in doing so, the Court may have to
enquire whether the practice in question is religious in
character and if it is, whether it can be regarded as an
integral or essential part of the religion, and the finding
of the Court on such an issue will always depend upon the
evidence adduced before it as to the conscience of the
community and the tenets of its religion. It is in the light
of this possible complication which may arise in some
cases that this Court struck a note of caution in the case
of Durgah Committee Ajmer v. Syed Hussain Ali [(1962)
1 SCR 383 at p. 411] and observed that in order that the
practices in question should be treated as a part of
religion they must be regarded by the said religion as its
essential and integral part; otherwise even purely secular
practices which are not an essential or an integral part of
religion are apt to be clothed with a religious form and
may make a claim for being treated as religious practices
within the meaning of Article 26.”
114. In Acharya Jagdishwaranand Avadhuta & Ors. v.
Commissioner of Police, Calcutta & Anr.51, the question was
whether performance of Tandava dance is a religious rite or
practice essential to the tenets of the religious faith of the
followers of Ananda Marga. Such argument was not accepted,
51 (1983) 4 SCC 522
83
when this Court held that “even conceding that Tandava dance
has been prescribed as a religious rite for every follower of the
Ananda Marga it does not follow as a necessary corollary that
Tandava dance to be performed in the public is a matter of
religious rite”. Later, in a judgment reported as Acharya
Jagadishwarananda Avadhuta-II, it was held that the
protection guaranteed under Articles 25 and 26 of the
Constitution is not confined to matters of doctrine or belief but
extends to acts done in pursuance of religion and, therefore,
contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion.
What constitutes an integral or essential part of religion has to
be determined with reference to its doctrines, practices, tenets,
historical background of the given religion. This Court held as
under:
“9. … What is meant by “an essential part or practices of
a religion” is now the matter for elucidation. Essential part
of a religion means the core beliefs upon which a religion
is founded. Essential practice means those practices that
are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the
superstructure of a religion is built, without which a
religion will be no religion. Test to determine whether a
part or practice is essential to a religion is to find out
whether the nature of the religion will be changed without
that part or practice. If the taking away of that part or
practice could result in a fundamental change in the
character of that religion or in its belief, then such part
could be treated as an essential or integral part. There
cannot be additions or subtractions to such part because
it is the very essence of that religion and alterations will
change its fundamental character. It is such permanent
84
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.”
115. In the Constitution Bench judgment reported as Young
Lawyers Association & Ors. (Sabarimala Temple, In Re) v.
State of Kerala & Ors.52, it was held as under:
“208. In clause (1), Article 25 protects
the equal entitlement of all persons to a freedom of
conscience and to freely profess, protect and propagate
religion. By conferring this right on all persons, the
Constitution emphasises the universal nature of the right.
By all persons, the Constitution means exactly what it
says : every individual in society without distinction of any
kind whatsoever is entitled to the right. By speaking of an
equal entitlement, the Constitution places every
individual on an even platform. Having guaranteed
equality before the law and the equal protection of laws
in Article 14, the draftspersons specifically continued the
theme of an equal entitlement as an intrinsic element of
the freedom of conscience and of the right to profess,
practise and propagate religion. There are three defining
features of clause (1) of Article 25 : first, the entitlement
of all persons without exception, second, the recognition
of an equal entitlement; and third, the recognition both of
the freedom of conscience and the right freely to profess,
practise and propagate religion. The right under Article
25(1) is evidently an individual right for, it is in the
individual that a conscience inheres. Moreover, it is the
individual who professes, practises and propagates
religion. Freedom of religion in Article 25(1) is a right
which the Constitution recognises as dwelling in each
individual or natural person.
52 (2019) 11 SCC 1
85
209. Yet, the right to the freedom of religion is not
absolute. For the Constitution has expressly made it
subject to public order, morality and health on one hand
and to the other provisions of Part III, on the other. The
subjection of the individual right to the freedom of religion
to the other provisions of the Part is a nuanced departure
from the position occupied by the other rights to freedom
recognised in Articles 14, 15, 19 and 21. While
guaranteeing equality and the equal protection of laws in
Article 14 and its emanation, in Article 15, which prohibits
discrimination on grounds of religion, race, caste, sex or
place of birth, the Constitution does not condition these
basic norms of equality to the other provisions of Part III.
Similar is the case with the freedoms guaranteed by
Article 19(1) or the right to life under Article 21. The
subjection of the individual right to the freedom of religion
under Article 25(1) to the other provisions of Part III was
not a matter without substantive content. Evidently, in the
constitutional order of priorities, the individual right to the
freedom of religion was not intended to prevail over but
was subject to the overriding constitutional postulates of
equality, liberty and personal freedoms recognised in the
other provisions of Part III.
210. Clause (2) of Article 25 protects laws which existed
at the adoption of the Constitution and the power of the
State to enact laws in future, dealing with two categories.
The first of those categories consists of laws regulating or
restricting economic, financial, political or other secular
activities which may be associated with religious
practices. Thus, in sub-clause (a) of Article 25(2), the
Constitution has segregated matters of religious practice
from secular activities, including those of an economic,
financial or political nature. The expression “other secular
activity” which follows upon the expression “economic,
financial, political” indicates that matters of a secular
nature may be regulated or restricted by law. The fact
that these secular activities are associated with or, in
other words, carried out in conjunction with religious
practice, would not put them beyond the pale of
legislative regulation. The second category consists of
laws providing for (i) social welfare and reform; or (ii)
throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. The
expression “social welfare and reform” is not confined to
matters only of the Hindu religion. .........”
86
116. In Bijoe Emmanuel v. State of Kerala53, it was held that
“Article 25 is an article of faith in the Constitution, incorporated
in recognition of the principle that the real test of a true
democracy is the ability of even an insignificant minority to find
its identity under the country's Constitution. This has to be borne
in mind in interpreting Article 25”. This Court upheld the right of
the students belonging to Jehovah’s Witnesses not to sing
National Anthem in the school prayer though the students stood
at the time of singing of the National Anthem. In the said case,
the circular of the State Government dated 18.2.1970 was in
question mandating that all schools in the State shall have
morning assembly and that the whole school shall sing National
Anthem in the assembly. The circular was not restricted to
secular schools only but to all schools. The said judgment is of
no help to the arguments raised as it does not deal with secular
schools only.
117. Thus, to sum up, the essential religious practice doctrine was
developed when the State interfered with certain practices qua
religious places or religious festivities or performance of religious
rituals in public or where such practices curtailed fundamental
rights such as:
53 (1986) 3 SCC 615
87
(i) In Sri Shirur Mutt, the statute interfered with the
management of the Mutt.
(ii) In Ratilal Panachand Gandhi, a notification issued under
the Bombay Public Trusts Act was under challenged which
covered the temples and Mutt entitling the Government to
control them through the Charity Commissioner.
(iii) In Durgah Committee, the challenge was to the
constitutional validity of the Dargah Khwaja Saheb Act, 1955
on the ground that it interferes with the right of
management of the Durgah.
(iv) In Tilkayat Shri Govindlalji Maharaj, the validity of
Nathdwara Temple Act, 1959 was challenged on the ground
that all the properties of the Nathdwara Temple are the
private properties of the appellant and that the State
legislature was not competent to enact the Act. It was the
argument that even if Nathdwara Temple was held to be a
public temple, the appellant as a Mahant or a Shebiat had a
beneficial interest in the office of the high priest as well as
the properties of the temple as the rights of the appellant
under Articles 14, 19(1)(f) and 31(2) of the Constitution of
India have been contravened.
(v) In Dawoodi Bohra, the religious faith and tenets of
Dawoodi Bohra community conferring power of
excommunication from the community on its religious head
88
as part of the management of the religious affairs under
Article 26(b) of the Constitution was upheld.
(vi) The Shayara Bano case relating to triple talaq was in
respect of gender equality granted under Articles 14 and 15
of the Constitution of India.
118. The essential religious practice in the abovementioned cases
related to (i) right of management of places of worship, (ii) right
of individual qua places of worship and (iii) curtailment of
fundamental rights of individuals through religious practices. The
claim of the appellants is not to perform a religious activity in a
religious institution but to wear headscarf in public place as a
matter of social conduct expected from the believers of the faith.
But in the present, the students want to subjugate their freedom
of choice of dress to be regulated by religion than by the State
while they are in fact students of a state school. The equality
before law is to treat all citizens equally, irrespective of caste,
creed, sex or place of birth. Such equality cannot be breached
by the State on the basis of religious faith.
119. The Constitution has negatively worded Article 25(2). Article
25(2)(a) gives primacy to laws made by competent legislature
for regulation of secular aspects and Article 25(2)(b) gives
primacy to “social welfare” and “reform”. In other words, if the
State seeks to regulate the economic, political, financial or other
89
secular aspects connected with religion, the State law is to have
primacy over the proposed right. Similarly, if a particular
practice/belief/part of any religion is in existence and is found to
be subjected to either “social welfare” and “reform”, such right
will have to give way to “social welfare” and “reform”.
120. It is reiterated that Article 25(2) being negatively couched is
clearly an enabling provision which provides the power to the
State in the matters mentioned therein. The said provision does
not curtail or restrict the otherwise positive right under Article
25(1) in the absence of any intervention by the State in the
nature of legislative or executive power.
121. Justice H.R. Khanna had quoted the statement of K. Santhanam
in Kesavananda Bharati in respect of social revolution to get
India out of the medievalism based on factors like birth, religion,
custom, and community and reconstruct her social structure on
modern foundations of law, individual merit, and secular
education. I find that religion is not to be understood in a narrow
sectarian sense but by encompassing our ethos that all should
be treated alike. Secular State means rising above all
differences of religions, and attempting to secure the good of all
its citizens irrespective of their religious beliefs and practices.
The faith or belief of a person is immaterial from the point of
view of the State. For the State, all are equal and all are entitled
90
to be treated equally. The Constitutional promises of social
justice, liberty of belief, faith or worship and equality of status
and of opportunity cannot be attained unless the State eschews
the religion, faith or belief of a person from its consideration
altogether while dealing with him. Secularism is thus more than
a passive attitude of religious tolerance. It is a positive concept
of equal treatment of all religions. Therefore, the object of the
State is to bridge the gap between different sections of the
society and to harmonize the relationship between the citizens
to ensure growth of community in all spheres i.e., social,
economic and political.
122. The appellants have also made a comparison with the rights of
the followers of the Sikh faith by arguing that since Kirpan is
allowed in terms of Explanation I to Article 25, therefore, the
students who want to wear headscarf should be equally
protected as in the case of the followers of the Sikh students.
The Full Bench of the Punjab & Haryana High Court in Gurleen
Kaur & Ors. v. State of Punjab & Ors.54 held that the essential
religious practice of the followers of Sikh faith includes retaining
hair unshorn, which is one of the most important and
fundamental tenets of the Sikh religion. The Full Bench of the
High Court held as under:
54 2009 SCC OnLine P& H 6132
91
“128............A perusal of explanation I under Article 25 of the
Constitution of India reveals, that wearing and carrying a
“kirpan” by Sikhs is deemed to be included in the profession
of the Sikh religion. During the course of examining historical
facts, legislation on the ‘Sikh religion’, the “Sikh
rehatmaryada”. the “Sikh ardas” and the views of authors and
scholars of the Sikh religion, we arrived at the conclusion that
wearing and carrying of “kirpans” though an important and
significant aspect of the Sikh religion, is nowhere close to the
importance and significance of maintaining hair unshorn. If
the Constitution of India itself recognizes wearing and
carrying of “kirpans” as a part of the profession of the Sikh
religion, we have no hesitation, whatsoever, to conclude that
wearing hair unshorn must essentially be accepted as a
fundamental requirement in the profession of the Sikh
religion. For the present controversy, we hereby, accordingly,
hold that retaining hair unshorn is one of the most important
and fundamental tenets of the Sikh religion. In fact, it is
undoubtedly a part of the religious consciousness of the Sikh
faith.”
123. It appears that no appeal has been filed against the judgment of
the Full Bench. Thus, the said judgment is final as on today. The
issue in the present appeals is not the essential religious
practices of the people following Sikh faith. It would not be
proper to discuss the essential religious practices of the followers
of the said faith without hearing them. The practices of each of
the faith have to be examined on the basis of the tenets of that
religion alone. The essential religious practices of the followers
of Sikh faith cannot be made basis of wearing of hijab/headscarf
by the believers of Islamic faith.
124. Mr. Mohd. Nizamuddin Pasha relied upon a Constitution Bench
judgment of this Court reported as M. Siddiq (Dead) through
92
LRs. (Ram Janmabhumi Temple Case) v. Mahant Suresh
Das & Ors.55 wherein this Court held that Courts should not
enter into an area of theology and attempt to interpret religious
scriptures. This Court held as under:
“90. During the course of the submissions, it has
emerged that the extreme and even absolute view of
Islam sought to be portrayed by Mr P.N. Mishra does not
emerge as the only available interpretation of Islamic law
on a matter of theology. Hence, in the given set of facts
and circumstances, it is inappropriate for this Court to
enter upon an area of theology and to assume the role of
an interpreter of the Hadees. The true test is whether
those who believe and worship have faith in the religious
efficacy of the place where they pray. The belief and faith
of the worshipper in offering namaz at a place which is for
the worshipper a mosque cannot be challenged. It would
be preposterous for this Court to question it on the ground
that a true Muslim would not offer prayer in a place which
does not meet an extreme interpretation of doctrine
selectively advanced by Mr Mishra. This Court, as a
secular institution, set up under a constitutional regime
must steer clear from choosing one among many possible
interpretations of theological doctrine and must defer to
the safer course of accepting the faith and belief of the
worshipper.
91. Above all, the practise of religion, Islam being no
exception, varies according to the culture and social
context. That indeed is the strength of our plural society.
Cultural assimilation is a significant factor which shapes
the manner in which religion is practised. In the plural
diversity of religious beliefs as they are practised in India,
cultural assimilation cannot be construed as a feature
destructive of religious doctrine. On the contrary, this
process strengthens and reinforces the true character of
a country which has been able to preserve its unity by
accommodating, tolerating and respecting a diversity of
religious faiths and ideas. There can be no hesitation in
rejecting the submission made by Mr Mishra. Our Court is
founded on and owes its existence to a constitutional
55 (2020) 1 SCC 1
93
order. We must firmly reject any attempt to lead the Court
to interpret religious doctrine in an absolute and extreme
form and question the faith of worshippers. Nothing would
be as destructive of the values underlying Article 25 of the
Constitution.”
125. There is no dispute about the proposition canvassed. The
practice of wearing of hijab may be a ‘religious practice’ or an
‘essential religious practice’ or it may be social conduct for the
women of Islamic faith. The interpretations by the believers of
the faith about wearing of headscarf is the belief or faith of an
individual. The religious belief cannot be carried to a secular
school maintained out of State funds. It is open to the students
to carry their faith in a school which permits them to wear Hijab
or any other mark, may be tilak, which can be identified to a
person holding a particular religious belief but the State is within
its jurisdiction to direct that the apparent symbols of religious
beliefs cannot be carried to school maintained by the State from
the State funds. Thus, the practice of wearing hijab could be
restricted by the State in terms of the Government Order.
Question (v)- Whether fundamental rights of freedom of
expression under Article 19(1)(a) and right of privacy under Article
21 mutually exclusive or are they complementary to each other; and
whether the Government Order does not meet the injunction of
reasonableness for the purposes of Article 21 and Article 14?
126. It is argued that a citizen is entitled to express oneself by not
just wearing a dress of her choice, but also in the context of her
94
cultural traditions, and that such dress which allows others to
identify that she belongs to a particular community, embraces a
particular culture, and represents the values of that culture.
127. It is submitted that there cannot be any law which prohibits such
expression as long as it does not disturb the public order or
violates the accepted norms of decency and morality as
prescribed by law. It is contended that it is the responsibility of
the State to protect the composite culture of India, but the same
has been intervened through the Government Order, contrary to
the rights enshrined in the Constitution. The argument is also as
to whether, this right to express herself by wearing a hijab, stops
at the school gate and that beyond the school gate, she has no
right to express herself to convey to others that she embraces a
certain culture and she wishes to identify herself with that
culture. Such expression, at the time when the notification was
issued, neither had the tendency to, nor was there any evidence
to show that it, in any way, disturbed public order, or was
violative of decency or morality. The rights and duties conferred
under the aforementioned provisions transcends the boundaries
of the school gate. A citizen or student does not forego her
fundamental rights and protections guaranteed under the
Constitution, which includes the freedom to express her culture,
the moment she steps into the school premises. It is also
submitted that wearing an article of clothing, reflecting the
95
distinct culture of a citizen, is consistent with the fundamental
right of a citizen to conserve her culture under Article 29(1) and
it is the fundamental duty of citizens to preserve and protect that
culture which is part of the rich heritage of India.
128. The argument of the appellants is based upon the Preamble of
the Government Order dated 5.2.2022 wherein it was recited
that prohibition of a headscarf or a garment covering the head is
not violative of Article 25 of the Constitution, apart from the fact
that it is in terms of the Act and the rules framed thereunder. It
is also argued that the State Government has not mentioned the
role of Popular Front of India in the order passed, therefore, the
State Government is not justified to refer to Popular Front of
India during the course of arguments. In other words, the State
cannot supplement the reasons than what is mentioned in the
order.
129. It is averred that the Preamble refers to the three judgments of
the High Courts as discussed above and a judgment of this Court
reported as Asha Ranjan v. State of Bihar & Ors.56. The
contention is that the judgment in Fathima Thasneem (Minor)
& Anr. v. The State of Kerala & Ors.57 of the Kerala High Court
does not support the stand of the State Government, whereas,
the judgment in Asha Ranjan is not in respect of wearing of a
56 (2017) 4 SCC 397 57 2018 SCC OnLine Ker 5267
96
headscarf, therefore, to rely upon the said judgment to convey
that wearing of headscarf is not in violation of Article 25 shows
complete non-application of mind. The State cannot thus
supplement the reasons in support of the prohibition to use
headscarf before the High Court or before this Court.
130. Reliance has been placed upon Mohinder Singh Gill & Anr. v.
Chief Election Commissioner, New Delhi & Ors58, wherein it
was held that when a statutory functionary makes an order
based on certain grounds, its validity must be judged by the
reasons so mentioned and it cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning, may, by the time it comes to Court
on account of a challenge, get validated by additional grounds
later brought out.
131. In Maneka Gandhi v. Union of India & Anr.59, this Court held
that even if a right is not specifically named in Article 19(1), it
may still be a fundamental right covered by some clause of that
article, if it is an integral part of a named fundamental right. It
was observed that “….be that as it may, the law is now settled,
as I apprehend it, that no article in Part III is an island but part
of a continent, and the conspectus of the whole part gives the
direction and correction needed for interpretation of these basic
58 (1978) 1 SCC 405
59 (1978) 1 SCC 248
97
provisions. Man is not dissectible into separate limbs and,
likewise, cardinal rights in an organic constitution, which make
man human have a synthesis. The proposition is indubitable that
Article 21 does not, in a given situation, exclude Article 19 if both
rights are breached.”
132. In National Legal Services Authority, this Court held that
Article 19(1)(a) of the Constitution states that all citizens shall
have the right to freedom of speech and expression, which
includes one's right to expression of his self-identified gender. It
was held as under:
“69. Article 19(1) of the Constitution guarantees certain
fundamental rights, subject to the power of the State to
impose restrictions from (sic on) exercise of those rights.
The rights conferred by Article 19 are not available to any
person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognised
and guaranteed as the natural rights inherent in the
status of the citizen of a free country. Article 19(1)(a) of
the Constitution states that all citizens shall have the right
to freedom of speech and expression, which includes
one's right to expression of his self-identified gender. The
self-identified gender can be expressed through dress,
words, action or behaviour or any other form. No
restriction can be placed on one's personal appearance or
choice of dressing, subject to the restrictions contained in
Article 19(2) of the Constitution.”
133. In Devidas Ramachandra Tuljapurkar v. State of
Maharashtra & Ors.60, this Court held as under:
“93. Having stated about the test that is applicable to
determine obscenity we are required to dwell upon the
60 (2015) 6 SCC 1
98
right to freedom of speech and expression. The words,
“freedom of speech and expression” find place in the
association words “liberty of thought, expression, belief,
faith and worship”, which form a part of the Preamble of
the Constitution. The Preamble has its own sanctity and
the said concepts have been enshrined in the Preamble.
xxx xxx
99. Interpreting Article 19(1)(a) of the Constitution, the
test is always to see the said article in aid of the
Preambular objectives which form a part of the basic
structure of the Constitution. Article 19(1)(a) is
intrinsically linked with the Preambular objectives and it
is the duty of the Court to progressively realise the values
of the Constitution. In Maneka Gandhi v. Union of
India [Maneka Gandhi v. Union of India, (1978) 1 SCC
248] , it has been held : (SCC p. 280, para 5)
“5. … It is indeed difficult to see on what principle
we can refuse to give its plain natural meaning to
the expression ‘personal liberty’ as used in Article
21 and read it in a narrow and restricted sense so
as to exclude those attributes of personal liberty
which are specifically dealt with in Article 19. We do
not think that this would be a correct way of
interpreting the provisions of the Constitution
conferring fundamental rights. The attempt of the
Court should be to expand the reach and ambit of
the fundamental rights rather than attenuate their
meaning and content by a process of judicial
construction. The wavelength for comprehending
the scope and ambit of the fundamental rights has
been set by this Court in R.C. Cooper case [Rustom
Cawasjee Cooper v. Union of India, (1970) 2 SCC
298] and ....that each freedom has different
dimensions and there may be overlapping between
different fundamental rights and therefore it is not
a valid argument to say that the expression
‘personal liberty’ in Article 21 must be so interpreted
as to avoid overlapping between that article and
Article 19(1). The expression ‘personal liberty’ in
Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal
liberty of man and some of them have….”
99
134. In St. Stephen’s College v. University of Delhi61, this Court
held that it is essential that there should be proper mix of
students of different communities in all educational institutions.
It has been held as under:
“81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a
relatively homogeneous society. It may lead to religious
bigotry which is the bane of mankind. In the nation
building with secular character sectarian schools or
colleges, segregated faculties or universities for imparting
general secular education are undesirable and they may
undermine secular democracy. They would be
inconsistent with the central concept of secularism and
equality embedded in the Constitution. Every educational
institution irrespective of community to which it belongs
is a ‘melting pot’ in our national life. The students and
teachers are the critical ingredients. It is there they
develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there
should be proper mix of students of different communities
in all educational institutions.”
135. In Navtej Singh Johar & Ors. v. Union of India62, the
freedom of expression was referred to observe that the
transgender persons have a right to express their self-identified
gender by way of speech, mannerism, behavior, presentation
and clothing, etc. The said judgment was relied upon to submit
that the right to wear a particular clothing emerges from the
right of dignity enshrined under Article 21 of the Constitution. It
was held as under:
61 (1992) 1 SCC 558
62 (2018) 10 SCC 1
100
“641.2. In National Legal Services Authority v. Union of
India [National Legal Services Authority v. Union of India,
(2014) 5 SCC 438], this Court noted that gender identity
is an important aspect of personal identity and is inherent
to a person. It was held that transgender persons have
the right to express their self-identified gender by way of
speech, mannerism, behaviour, presentation and
clothing, etc. [ Ibid, paras 69-72.] The Court also noted
that like gender identity, sexual orientation is integral to
one's personality, and is a basic aspect of selfdetermination, dignity and freedom. [ Ibid, para 22.] The
proposition that sexual orientation is integral to one's
personality and identity was affirmed by the Constitution
Bench in K.S. Puttaswamy v. Union of India [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1, paras
144, 145 and 647.].”
136. The object of the Act is to maintain discipline and control over
the educational institutions in the State with a view to foster the
harmonious development of the mental and physical faculties of
the students. Therefore, discipline and control are with regard to
educational institutions, and not with regard to students. In
terms of Section 5 of the Act, the State Government’s endeavor
is to promote the education of the handicap, backward classes
and the weaker sections of the society including the economically
weaker sections, whereas curricula under Section 7 includes
promotion of national integration and inculcation of the sense of
the duties of the citizens, enshrined under Article 51 of the
Constitution. It is also pointed out that the State provides
uniform to all the students from Class I to Class X as a part of
its social obligations and to maintain parity with all students
101
studying in the Government Schools without any distinction of
caste, creed, sex or religion.
137. Sections 15(b) and 39 (b) & (c) of the Act delineate the
circumstances for the reasonable excuse for non-attendance of
the child at an approved school. One of the accepted excuses is
when religious instructions not approved by his parents are made
compulsory. Sections 39 (1)(b) and (c) deals with withdrawal of
recognition to such schools which deny admission to any citizen
on grounds of religion, race, caste, language or where there is
direct or indirect encouragement in the educational institution of
any propaganda or practice wounding the religious feelings of
any class of citizens of India.
138. Rule 11 of the Rules has mandated the recognized educational
institutions including private institutions to prescribe uniforms.
Once the uniform is fixed, it is provided that it shall not be
changed for the period of next five years and when it is intended
to be changed, notice for the same shall be given to the parents
at least one year in advance. It is thus argued that specifications
regarding disallowance of hijab was applied abruptly at the end
of the academic section and also applied retrospectively when
the girls had been stopped from entering school on or about
31.12.2021, though the Government Order was notified on
5.2.2022.
102
139. I do not find any merit in the above arguments raised by the
appellants. The Government order is in exercise of the executive
powers of the State. The reasons for an enactment of a Statute,
Rules and statutory order are not required to be part of it. It is
only when the issue of constitutionality is raised, the executive
is required to satisfy the Court about the legality of action taken.
The right under Article 19(1)(a) as a right of expression to dress
as per one’s own will, however, is also subject to reasonable
restrictions under sub-clause (2) of Article 19. The State has not
put a restriction on the exercise of right conferred under Article
19(1)(a) but has regulated the same in a manner that during the
school hours on working days and in the class, the students shall
wear the uniform as prescribed. Since it is a regulatory provision
for wearing of uniform, hence, the decision of the State
Government mandating the College Development Committee to
ensure the students wear the uniform as prescribed does not
violate the freedom guaranteed under Article 19(1)(a), rather
reinforces the right to equality under Article 14. The College
Development Committee is constituted in terms of the statutory
provisions and, therefore, the direction of the State that the
College Development Committee shall ensure that the students
wear the dress as prescribed cannot be said to be violative of
Part III of the Constitution.
103
140. The test of invasion of Article 19(1)(a) is required to be examined
by the test of doctrine of Pith and Substance in view of the
judgment of this Court reported as Bachan Singh v. State of
Punjab63 wherein this Court held as under:
“60. From a survey of the cases noticed above, a
comprehensive test which can be formulated, may be
restated as under:
“Does the impugned law, in its pith and substance, whatever
may be its form and object, deal with any of the fundamental
rights conferred by Article 19(1)? If it does, does it abridge
or abrogate any of those rights? And even if it does not, in
its pith and substance, deal with any of the fundamental
rights conferred by Article 19(1), is the direct and inevitable
effect of the impugned law such as to abridge or abrogate
any of those rights?”
The mere fact that the impugned law incidentally, remotely
or collaterally has the effect of abridging or abrogating those
rights, will not satisfy the test. If the answer to the above
queries be in the affirmative, the impugned law in order to
be valid, must pass the test of reasonableness under Article
19. But if the impact of the law on any of the rights under
clause (1) of Article 19 is merely incidental, indirect, remote
or collateral and is dependent upon factors which may or
may not come into play, the anvil of Article 19 will not be
available for judging its validity.” (Emphasis Supplied)
141. It is to be observed that the Act, Rules and the orders issued
under the said Act were enacted to provide for better
organization, development, discipline and control of the
educational institutions in the State. The primary object was
encouraging holistic development through education and its
various facets. The prescribing of uniform is only an incidental
63 (1980) 2 SCC 684
104
action in furtherance of the core object of the Act. Therefore,
keeping in view Bachan Singh, some incidental effect on the
right under Article 19(1)(a) cannot be said to be an unreasonable
restriction, also being mindful of the fact that it is not an absolute
right.
142. The freedom of expression under Article 19(1)(a) of the
Constitution means right to express one’s opinions by word of
mouth, printing, picture, or in any other manner. It includes the
freedom of communication and the right to propagate or publish
one’s opinion. The communication of ideas could be made
through any medium, newspaper, magazine or movie. Such right
is though subject to reasonable restrictions on grounds set out
under Article 19(2) of the Constitution64.
143. Further, the right to privacy as crystallized in the Constitution
Bench judgment of K.S. Puttaswamy has to be read in the
context of other provisions of the Constitution in the present
appeals. This Court laid down as under:
“298. ……………The freedoms under Article 19 can be fulfilled
where the individual is entitled to decide upon his or her
preferences. Read in conjunction with Article 21, liberty
enables the individual to have a choice of preferences on
various facets of life including what and how one will eat, the
way one will dress, the faith one will espouse and a myriad
other matter on which autonomy and self-determination
require a choice to be made within the privacy of the mind.
The constitutional right to the freedom of religion under
64 S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 547
105
Article 25 has implicit within it the ability to choose a faith
and the freedom to express or not express those choices to
the world. These are some illustrations of the manner in
which privacy facilitates freedom and is intrinsic to the
exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared to
be a fundamental right. Nor have we tagged the provisions
of Part III with an alpha-suffixed right to privacy: this is not
an act of judicial redrafting. Dignity cannot exist without
privacy. Both reside within the inalienable values of life,
liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the
individual. It is a constitutional value which straddles across
the spectrum of fundamental rights and protects for the
individual a zone of choice and self-determination.
xxx xxx xxx
377. It goes without saying that no legal right can be
absolute. Every right has limitations. This aspect of the
matter is conceded at the Bar. Therefore, even a
fundamental right to privacy has limitations. The limitations
are to be identified on case-to-case basis depending upon
the nature of the privacy interest claimed. There are
different standards of review to test infractions of
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles
(even if only slightly differently across some of them).
Having emphatically interpreted the Constitution's liberty
guarantee to contain a fundamental right to privacy, it is
necessary for me to outline the manner in which such a right
to privacy can be limited. I only do this to indicate the
direction of the debate as the nature of limitation is not at
issue here.
xxx xxx xxx
526. But this is not to say that such a right is absolute. This
right is subject to reasonable regulations made by the State
to protect legitimate State interests or public interest.
However, when it comes to restrictions on this right, the drill
of various articles to which the right relates must be
scrupulously followed. For example, if the restraint on
privacy is over fundamental personal choices that an
individual is to make, State action can be restrained under
Article 21 read with Article 14 if it is arbitrary and
106
unreasonable; and under Article 21 read with Article
19(1)(a) only if it relates to the subjects mentioned in Article
19(2) and the tests laid down by this Court for such
legislation or subordinate legislation to pass muster under
the said article. Each of the tests evolved by this Court, qua
legislation or executive action, under Article 21 read with
Article 14; or Article 21 read with Article 19(1)(a) in the
aforesaid examples must be met in order that State action
pass muster. In the ultimate analysis, the balancing act that
is to be carried out between individual, societal and State
interests must be left to the training and expertise of the
judicial mind.
xxx xxx xxx
639. The right to privacy as already observed is not
absolute. The right to privacy as falling in Part III of the
Constitution may, depending on its variable facts, vest in one
part or the other, and would thus be subject to the
restrictions of exercise of that particular fundamental right.
National security would thus be an obvious restriction, so
would the provisos to different fundamental rights,
dependent on where the right to privacy would arise. The
public interest element would be another aspect.”
144. In a Constitution Bench judgment reported as I.R. Coelho v.
State of Tamil Nadu65, this Court held that it can no longer be
stated that protection provided by fundamental rights comes in
isolated pools. On the contrary, these rights together provide a
comprehensive guarantee against excesses by State authorities.
This Court held as under:
“60. It is evident that it can no longer be contended that
protection provided by fundamental rights comes in
isolated pools. On the contrary, these rights together
provide a comprehensive guarantee against excesses by
state authorities. Thus post-Maneka Gandhi’s case it is
clear that the development of fundamental rights has
been such that it no longer involves the interpretation of
65 (1999) 7 SCC 580
107
rights as isolated protections which directly arise but they
collectively form a comprehensive test against the
arbitrary exercise of state power in any area that occurs
as an inevitable consequence. The protection of
fundamental rights has, therefore, been considerably
widened.”
145. Thus, the rights of citizens of this country cannot be
compartmentalized into one right or the other. The rights of
citizens have to be read together so as to provide a purposeful
meaning to Part III of the Constitution. Thus, all the
Fundamental Rights under Part III of the Constitution are to be
read in aid of each other. They constitute a bouquet of rights
which can’t be read in isolation and have to be read together as
a whole.
146. However, it is to be noted that none of the fundamental rights is
absolute. The curtailment of the right is permissible by following
due procedure which can withstand the test of reasonableness.
The intent and object of the Government Order is only to
maintain uniformity amongst the students by adherence to the
prescribed uniform. It is reasonable as the same has the effect
of regulation of the right guaranteed under Article 19(1)(a).
Thus, the right of freedom of expression under Article 19(1)(a)
and of privacy under Article 21 are complementary to each other
and not mutually exclusive and does meet the injunction of
reasonableness for the purposes of Article 21 and Article 14.
108
Question (vi)- Whether the Government Order impinges upon
Constitutional promise of fraternity and dignity under the Preamble
as well as fundamental duties enumerated under Article 51-A subclauses (e) and (f)?
147. Mr. Ahmadi has argued that the impugned Government Order
dated 5.2.2002 impinges upon the constitutional promise of
“Fraternity” as mentioned in the Preamble as well as in the
fundamental duties enumerated in Article 51A (e) and (f). It is
argued that the liberty, equality and fraternity is the trinity of the
constitutional values to invoke horizontal and social sensitivity
towards inequalities. It is contended that liberty is of thought,
expression, belief, faith and worship; equality is of status and
opportunity; and fraternity assures dignity of the individual.
148. In Indra Sawhney, Hon. Justice P.B. Sawant in his order said
that “inequality ill-favours fraternity, and unity remains a dream
without fraternity. The goal enumerated in the Preamble of the
Constitution, of fraternity assuring the dignity of the individual
and the unity and integrity of the nation must, therefore, remain
unattainable so long as the equality of opportunity is not
ensured to all.” (para 412).
149. This Court in a judgment reported as Subramanian Swamy v.
Union of India, Ministry of Law & Ors.66 had the occasion to
66 (2016) 7 SCC 221
109
interpret the term “fraternity” (बंधु
ता) as the constitutional value
which is to be cultivated by the people themselves as part of
their social behavior. It is to be understood in the breed of
homogeneity in a positive sense and not to trample dissent and
diversity. This Court observed as under:
“153. The term “fraternity” has a significant place in the
history of constitutional law. It has, in fact, come into
prominence after the French Revolution. The motto of
Republican France echoes:“Liberté, égalité, fraternité”, or
“Liberty, equality, fraternity”. The term “fraternity” has an
animating effect in the constitutional spectrum. The
Preamble states that it is a constitutional duty to promote
fraternity assuring the dignity of the individual. Be it
stated that fraternity is a Preambulatory promise….
xx xx xx
156. Fraternity as a concept is characteristically different
from the other constitutional goals. It, as a constitutional
concept, has a keen bond of sorority with other concepts.
And hence, it must be understood in the breed of
homogeneity in a positive sense and not to trample
dissent and diversity. It is neither isolated nor lonely. The
idea of fraternity is recognised as a constitutional norm
and a precept. It is a constitutional virtue that is required
to be sustained and nourished.
157. It is a constitutional value which is to be cultivated
by the people themselves as a part of their social
behaviour. There are two Schools of Thought; one
canvassing individual liberalisation and the other
advocating for protection of an individual as a member of
the collective. The individual should have all the rights
under the Constitution but simultaneously he has the
responsibility to live up to the constitutional values like
essential brotherhood—the fraternity—that strengthens
the societal interest. Fraternity means brotherhood and
common interest. Right to censure and criticise does not
conflict with the constitutional objective to promote
fraternity. Brotherliness does not abrogate and rescind
110
the concept of criticism. In fact, brothers can and should
be critical. Fault-finding and disagreement is required
even when it leads to an individual disquiet or group
disquietude. Enemies Enigmas Oneginese on the part of
some does not create a dent in the idea of fraternity but,
a significant one, liberty to have a discordant note does
not confer a right to defame the others. The dignity of an
individual is extremely important.
xx xx xx
161. The concept of fraternity under the Constitution
expects every citizen to respect the dignity of the other.
Mutual respect is the fulcrum of fraternity that assures
dignity. It does not mean that there cannot be dissent or
difference or discordance or a different voice. It does not
convey that all should join the chorus or sing the same
song. Indubitably not. One has a right to freedom of
speech and expression. One is also required to maintain
the constitutional value which is embedded in the idea of
fraternity that assures the dignity of the individual. One
is obliged under the Constitution to promote the idea of
fraternity. It is a constitutional obligation.”
150. Reference is also made to another three-Judges Bench judgment
of this Court in Prathvi Raj Chauhan v. Union of India &
Ors.67 wherein it is observed that there is a preambular
assurance that the republic would be one which guarantees to its
people liberty, dignity, equality of status and opportunity and
fraternity. It is fraternity, poignantly embedded through the
provisions of Part III, which assures true equality, where the
State treats all alike, assures the benefits of growth and
prosperity to all, with equal liberties to all, and what is more,
67 (2020) 4 SCC 727
111
which guarantees that every citizen treats every other citizen
alike. This Court held as under:
“15. ................ That is why the preambular assurance
that the republic would be one which guarantees to its
people liberties, dignity, equality of status and
opportunity and fraternity.
xx xx xx
17. The making of this provision—and others, in my view,
is impelled by the trinity of the preambular vision that the
Constitution Makers gave to this country. ................. In
my opinion, all the three—Liberty, Equality and Fraternity,
are intimately linked. The right to equality, sans liberty or
fraternity, would be chimerical—as the concept presently
known would be reduced to equality among equals, in
every manner—a mere husk of the grand vision of the
Constitution. Likewise, liberty without equality or
fraternity, can well result in the perpetuation of existing
inequalities and worse, result in licence to indulge in
society's basest practices. It is fraternity, poignantly
embedded through the provisions of Part III, which
assures true equality, where the State treats all alike,
assures the benefits of growth and prosperity to all, with
equal liberties to all, and what is more, which guarantees
that every citizen treats every other citizen alike.
xx xx xx
34. ................... It is to address problems of a
segmented society, that express provisions of the
Constitution which give effect to the idea of fraternity,
or bandhutva (बंधुत्व ) referred to in the Preamble, and
statutes like the Act, have been framed. These underline
the social — rather collective resolve — of ensuring that
all humans are treated as humans, that their innate
genius is allowed outlets through equal opportunities and
each of them is fearless in the pursuit of her or his
dreams. The question which each of us has to address, in
everyday life, is can the prevailing situation of exclusion
based on caste identity be allowed to persist in a
democracy which is committed to equality and the rule of
law? If so, till when? And, most importantly, what each
one of us can do to foster this feeling of fraternity
112
amongst all sections of the community without reducing
the concept (of fraternity) to a ritualistic formality, a tacit
acknowledgment, of the “otherness” of each one's
identity.”
151. The impugned Government Order was said to be an anti-thesis
of diversity, though based upon misunderstood fraternal
behavior when it is asserted that all the school students studying
in the State of Karnataka should behave in a fraternal manner,
transcend their group identity and develop an orientation
towards social justice. It is argued that the Government Order
suggests that the ethic of fraternity is best served by complete
erasure of all differences. It does not mean ‘flattening out of
differences’, or forced assimilation. Reference was made to a
judgment of this Court reported as Tehseen S. Poonawalla v.
Union of India & Ors.,68 wherein it was held that the aim of
our Constitution is unity in diversity and to impede any
fissiparous tendencies for enriching the unity amongst Indians
by assimilating the diversities. It was also argued that the
Government Order uses the words ‘unity’ and ‘uniformity’
interchangeably and that uniformity is not a constitutional or
statutory mandate, and has no nexus with unity. It is argued that
plurality of voices celebrates the constitutionalist idea of a liberal
democracy and the same ought not to be suppressed. This Court
held as under:
68 (2018) 9 SCC 501
113
“21. Freedom of speech and expression in different forms
is the élan vital of sustenance of all other rights and is the
very seed for germinating the growth of democratic
views. Plurality of voices celebrates the constitutionalist
idea of a liberal democracy and ought not to be
suppressed. That is the idea and essence of our nation
which cannot be, to borrow a line from Rabindranath
Tagore, “broken up into fragments by narrow domestic
walls” of caste, creed, race, class or religion. Pluralism
and tolerance are essential virtues and constitute the
building blocks of a truly free and democratic society. It
must be emphatically stated that a dynamic
contemporary constitutional democracy imbibes the
essential feature of accommodating pluralism in thought
and approach so as to preserve cohesiveness and unity.
Intolerance arising out of a dogmatic mindset sows the
seeds of upheaval and has a chilling effect on freedom of
thought and expression. Hence, tolerance has to be
fostered and practised and not allowed to be diluted in
any manner.
xx xx xx
26. In the obtaining situation, the need to preserve and
maintain unity amongst the fellow citizens of our country,
who represent different castes, creed and races, follow
different religions and use multiple languages, ought to
be discussed and accentuated. It is requisite to state that
our country must sustain, exalt and celebrate the feeling
of solidarity and harmony so that the spirit of oneness is
entrenched in the collective character. Sans such harmony
and understanding, we may unwittingly pave the path of
disaster.
xx xx xx
28. “Unity” in the context of a nation means unity
amongst the fellow citizens. It implies integration of the
citizens whereby the citizens embrace a feeling of “We”
with a sense of bonding with fellow citizens which would
definitely go a long way in holding the Indian society
together. Emile Durkheim, French sociologist, has said
that when unity is based on heterogeneity and diversity,
it can very well be described as organic solidarity.
Durkheim's view would be acceptable in the context of the
114
Indian society as it exhibits a completely organic social
solidarity.
xx xx xx
31. Unity in Diversity must be recognized as the most
potent weapon in India's armoury which binds different
and varied kinds of people in the solemn thread of
humanity. This diversity is the strength of our nation and
for realising this strength, it is sine qua non that we
sustain it and shun schismatic tendencies. It has to be
remembered that the unique feature of “Unity in
Diversity” inculcates in the citizens the virtue of
respecting the opinions and choices of others. Such
respect imbibes the feeling of acceptance of plurality and
elevates the idea of tolerance by promoting social
cohesion and infusing a sense of fraternity and comity.”
152. Reliance is also placed upon the judgments of this Court reported
as St. Stephen’s College, Sri Adi Visheshwara of Kashi
Vishwanath Temple, and State of Karnataka & Anr. v. Dr.
Praveen Bhai Thogadia69 wherein the concept of unity in
diversity was held to be the Constitutional aim. It was submitted
that unity in diversity is the most potent weapon in India’s
armoury which binds different and varied kinds of people in the
solemn thread of humanity. Unity in diversity inculcates in the
citizens the virtue of respecting the opinions and choices of
others. Such respect imbibes the feeling of acceptance of
plurality and elevates the idea of tolerance by promoting social
cohesion and infusing a sense of fraternity and comity.
69 (2004) 4 SCC 684
115
153. Referring to National Education Policy, 2020, it is argued that the
schools are spaces of diversity and critical thinking. It is fraternal
free thinking public places as the needs and expectations are
different. The policy does not mention ‘uniform’ or ‘discipline’.
The fundamental principles which will guide the Indian Education
System as well as individual institutions are as under:
“2. full equity and inclusion as the cornerstone of all
educational decisions to ensure that all students are able
to thrive in the education system;
Ethics and human & Constitutional values like empathy,
respect for others, cleanliness, courtesy, democratic,
spirit, spirit of service, respect for public property,
scientific temper, liberty, responsibility, pluralism,
equality, and justice;
6.12. Students will be sensitized through this new school
culture, brought in by teachers, trained social workers
and counsellors as well as through corresponding changes
to bring in an inclusive school curriculum. The school
curriculum will include, early on, material on human
values such as respect for all persons, empathy,
tolerance, human rights, gender, equality, non-violence,
global citizenship, inclusion, and equity. It would also
include more detailed knowledge of various cultures,
religions, languages, gender identities, etc. to sensitize
and develop respect for diversity. Any biases and
stereotypes in school curriculum will be removed and
more material will be included that is relevant and
relatable to all communities.
3.4. Once infrastructure and participation are in place,
ensuring quality will be the key in retention of students,
so that they (particularly, girls and students from other
socio-economically disadvantaged groups) do not lose
interest in attending school. This will require a system of
incentives for deploying teachers with knowledge of the
local language to areas with high dropout rates, as well
as overhauling the curriculum to make it more engaging
and useful.”
116
154. In K.S. Puttaswamy, the distinction between private and public
spaces was drawn and it was stated that both must be free to
the extent that there should be freedom to think, without any
direct or indirect pressures on thought and belief. Thus, the
schools must give students the privacy and the freedom to think
about their choices. Therefore, the Government Order creates an
arbitrary barrier to education and to fraternal spaces.
155. Not disputing with the above observations, it is important to
interpret the expressions ‘fraternity’ and ‘dignity’ in view of the
objective behind the Government Order. The concept of
fraternity and dignity do not stand alone but have to be inferred
from the context, circumstances and the purpose sought to be
achieved. There is no dispute, as asserted in the written
submissions, that the purpose of introducing fraternity as a
constitutional value is to invoke horizontal or social sensitivity
towards inequalities, in addition to the vertical, or top-down
political prescriptions towards inequalities. Fraternity is in fact
social sensitivity. The students herein are in the age group of 15
to 18 years. The seed of education should germinate equally
amongst all students. Therefore, the Preambular goal of justice,
liberty, equality or fraternity would be better served by removing
any religious differences, inequalities and treating students alike
before they attain the age of adulthood.
117
156. The students have been given a uniform platform to grow and
take quantum leap in their further pursuits. The homogeneity
amongst the students in the matter of uniform would prepare
them to grow without any distinction on the basis of religious
symbols, if not worn during the classroom studies in a PreUniversity College.
157. Still further, the Hindi word of fraternity is “बंधुत्व” that is
brotherhood. Brotherhood is amongst all the citizens of the
Country and not of a particular community. Fraternity is the
antithesis of a segmented society wherein all humans are treated
equally and their innate genius is allowed an outlet by exposing
them to equal opportunities.
158. The argument is that the appellants seek equal access to public
education where they would have the opportunity to fraternize
across religious, class and gender boundaries, an opportunity
which would not be available to them if they were to transfer to
religious schools. Hence, the Government Order has created an
arbitrary barrier to education and to fraternal spaces.
159. I do not find any merit in the argument raised. Fraternity is a
noble goal but cannot be seen from the prism of one community
alone. It is a goal for all citizens of the country irrespective of
caste, creed, sex and religion. The abstract idea of fraternity, as
118
discussed in the judgments referred to by learned counsel for
the appellants, has to be applied to the ground realities wherein
some students wearing headscarf in a secular school run by the
State Government would stand out and overtly appear
differently. The concept of fraternity will stand fragmented as the
apparent distinction of some of the students wearing headscarf
would not form a homogenous group of students in a school
where education is to be imparted homogeneously and equally,
irrespective of any religious identification mark. The
Constitutional goal of fraternity would be defeated if the students
are permitted to carry their apparent religious symbols with
them to the classroom. None of the judgments referred to by the
learned counsel for the appellants deal with an issue of fraternity
in respect of a section of the citizens who wish to carry their
religious symbols to a classroom. The Constitutional goal as
emanating from the Preamble would not be achieved if fraternity
is given a narrow meaning in respect of the students identifying
themselves with the religious symbols in the classroom.
160. I do not find any merit in the argument raised that the use of
the phrase “behave in a fraternal manner by transcending their
group identity as the young students” in the impugned Order can
be said to be violative of any law. Before a student goes for
higher studies in colleges, she should not grow with a specific
identity, but under the umbrella of equality guaranteed under
119
Article 14 transcending the group identity. Religion, which is a
private affair, has no meaning in a secular school run by the
State. The students are free to profess their religion and carry
out their religious activities other than when they are attending
a classroom where religious identities should be left behind.
161. Accordingly, I do not find that the Government Order impinges
on the Constitutional promise of fraternity and dignity. Instead,
it promotes an equal environment where such fraternal values
can be imbibed and nurtured without any hindrance of any kind.
162. Though, it is argued that wearing of a piece of cloth on the head
does not violate or contravene the uniform prescribed. The
dictionary meaning of word ‘Uniform’ is as under:
 Blacks Law Dictionary (Uniform, Adjective)
Conforming to one rule, mode, or unvarying standard;
not different at different times or places; application
to all places or divisions of a country.
 Cambridge English Dictionary (Uniform, noun)
A particular set of clothes that has to be worn by the
members of the same organization or group of people.
A type of clothes that is connected with a particular
group of people.
 Merriam Webster Dictionary
(Uniform, noun) Dress of a distinctive design or
fashion worn by members of a particular group and
serving as a means of identification.
(Adjective) Having always the same form, manner or
degree: not varying or variable. Of the same form with
others- conforming to one rule or more. Presenting an
120
unvaried appearance of surface, pattern or color. (eg.-
uniform procedures, uniform red brick houses)
163. The issue as to whether a person professing Islam can support a
beard as a member of the Indian Air Force came up for
consideration before the Single Bench of the Punjab and Haryana
High Court in No. 786505-N Leading Aircraftsman Ansari
Aaftab Ahmed v. Union of India & Ors.70. The Single Bench
referred to the principles of Islam by Maulana Wahiduddin Khan
from his book “Islam the Voice of Human Nature” and the rules
applicable to the airmen to hold that growing of beard violates
the norms of uniform. Accordingly, the writ petitions were
dismissed. An intra-court appeal was also dismissed71. The
matter came up for hearing before this Court in a judgment
reported as Mohammed Zubair Corporal No. 781467-G v.
Union of India & Ors.72. This Court dismissed the appeal
finding no reason to take a view of the matter at variance with
the view taken by the High Court. It was noticed that there are
varying interpretations, one of which is that it is desirable to
maintain a beard. Therefore, in respect of an airman employed
by the Indian Air Force, beard was not found permissible in terms
of the Rules framed.
70 2008 L.I.C. 4004 (CWP No. 14927 of 2005 decided on 14.7.2008) 71 LPA No. 196 of 2008 decided on 31.7.2008 72 (2017) 2 SCC 115
121
164. The uniform prescribed would lose its meaning if the student is
permitted to add or subtract any part of uniform. The schools are
nurseries for training the citizen for future endeavours. If, the
norms of the uniform in the school are permitted to be breached,
then what kind of discipline is sought to imparted to the
students. The freedom of expression guaranteed under Article
19(1)(a) does not extend to the wearing of headscarf. Once the
uniform is prescribed, all students are bound to follow the
uniform so prescribed. The uniform is to assimilate the students
without any distinction of rich or poor, irrespective of caste, creed
or faith and for the harmonious development of the mental and
physical faculties of the students and to cultivate a secular
outlook. The wearing of hijab is not permitted only during the
school time, therefore, the students can wear it everywhere else
except in schools. The wearing of anything other than the
uniform is not expected in schools run by the State as a secular
institution. In a secular school maintained at the cost of the
State, the State is competent to not permit anything other than
the uniform.
165. The argument that the wearing of a headscarf provides dignity
to the girl students is also not tenable. The students are
attending an all-girls’ college. The students are at liberty to carry
their religious symbols outside the schools but in pre-university
college, the students should look alike, feel alike, think alike and
122
study together in a cohesive cordial atmosphere. That is the
objective behind a uniform, so as to bring about uniformity in
appearances.
Question (vii)- Whether, if the wearing of hijab is considered as an
essential religious practice, the student can seek right to wear
headscarf to a secular school as a matter of right?
166. The argument is that hijab is an additional cloth worn on the
head, and that it does not cause any harm to any other person.
The argument is based upon Conscience & Religion (Article 25),
Culture (Articles 29 and 51-A(f)), Identity (Articles 19 and 21 -
Autonomy, Dignity, Choice) and Secularism (Articles 19 and 21 -
Autonomy, Dignity, Choice), therefore, the students have been
wrongly denied admission to an educational institution on the
basis of religion. The contention of the students is that by
denying the right to wear headscarf, they have also been denied
to attend the classes which stand foul with the mandate of clause
(2) of Article 29.
167. I do not find any merit in the said argument. The schools run by
the State are open for admission irrespective of any religion,
race, caste, language or any of them. Even the Act mandates
that the students would be admitted without any restriction on
such grounds. However, the students are required to follow the
discipline of the school in the matter of uniform. They have no
123
right to be in the school in violation of the mandate of the
uniform prescribed under the Statute and the Rules.
168. In M. Ajmal Khan v. The Election Commission of India, rep.
by its Chief Election Commissioner, New Delhi-I & Ors.73,
the challenge was to the Elector Roll with photographs
particularly of Muslim Gosha Women in the eligible voters’ list.
The argument was that wearing of purdah by Muslim women is
one of the principles laid down in Holy Quran and it has to be
strictly followed by Muslim women. Therefore, any interference
with such religious practice would amount to interfering with the
fundamental right of the Muslim women, which is guaranteed
under Article 25 of the Constitution of India. The Madras High
Court dismissed such writ petition holding that such direction of
the Election Commission is not violative of Article 25 of the
Constitution. It was held that “the decision of the Election
Commission of putting the photographs in the electoral roll was
taken with a view to improving the fidelity of the electoral rolls
and to check impersonation and eradicate bogus voting. Hence,
the argument of the learned counsel that the decision violates
the right to privacy is required to be rejected". The said judgment
though is in the context of elections but the ratio thereof is
applicable to the present matters, the education to a school by
73 2006 SCC OnLine Mad 794 : (2006) 5 CTC 121
124
the State is constitutional mandate to be carried out in a nondiscriminatory manner irrespective of caste, sex and religion.
169. The State has not denied admission to the students from
attending classes. If they choose not to attend classes due to the
uniform that has been prescribed, it is a voluntary act of such
students and cannot be said to be in violation of Article 29 by the
State. It is not a denial of rights by the State but instead a
voluntary act of the students. It would thus not amount to denial
of right to education if a student, by choice, does not attend the
school. A student, thus, cannot claim the right to wear a
headscarf to a secular school as a matter of right.
Question (viii)- Whether a student-citizen in the constitutional
scheme is expected to surrender her fundamental rights under
Articles 19, 21 and 25 as a pre-condition for accessing education in a
State institution?
170. Mr. Shoeb Alam argued that in the Constitutional scheme, there
cannot be any barter of fundamental rights for the enjoyment of
a privilege or a right. It is argued that the State cannot attach a
condition of barter for the grant of access to school/education
available to a student under Article 21 and, in return, ask for a
girl child to cede her right to wear the hijab inside the school,
which is her fundamental right to privacy, dignity and autonomy.
Reliance was placed upon a judgment of this Court reported as
Re the Kerala Education Bill, 1957 - Reference under
125
Article 143(1) of the Constitution of India74 dealing with the
issue of Kerala Education Bill. The provision authorized the State
to take over the management of the educational institution as a
pre-condition for recognition and aid to the educational
institution. This Court said to the following effect:
“31. … Therefore, the conditions imposed by the said Bill
on aided institutions established and administered by
minority communities, like the Christians, including the
Anglo-Indian community, will lead to the closing down of
all these aided schools unless they are agreeable to
surrender their fundamental right of management. No
educational institution can in actual practice be carried on
without aid from the State and if they will not get it unless
they surrender their rights they will, by compulsion of
financial necessities, be compelled to give up their rights
under Article 30(1). The legislative powers conferred on
the legislature of the States by Articles 245 and 246 are
subject to the other provisions of the Constitution and
certainly to the provisions of Part III which confers
fundamental rights which are, therefore, binding on the
State Legislature. The State Legislature cannot, it is clear,
disregard or override those provisions merely by
employing indirect methods of achieving exactly the same
result. Even the legislature cannot do indirectly what it
certainly cannot do directly…”
171. In Nar Singh Pal v. Union of India & Ors.75, it was held that
the casual labor does not mean that he had surrendered all his
constitutional rights in favour of the respondents. It was thus
submitted that fundamental rights under the Constitution cannot
be bartered. They cannot be compromised, nor can there be any
74 AIR 1958 SC 956 : 1959 SCR 995 75 (2000) 3 SCC 588
126
estoppel against the exercise of Fundamental Rights available
under the Constitution.
172. Reliance was also placed upon nine-Judges Bench judgment in
Ahmedabad St. Xavier’s College Society wherein the said Act
was declared as unconstitutional which warranted educational
institutions to surrender their management to the State in order
to get affiliation. This Court held that in this situation, the
condition which involves surrender is as effective a deterrent to
the exercise of the right under Article 30(1) as a direct
prohibition would be. Thus considered, it is apparent that the
religious minority does not voluntarily waive its right — it has
been coerced because of the basic importance of the privilege
involved, namely, affiliation. This Court held as under:
“161. It is doubtful whether the fundamental right under
Article 30(1) can be bartered away or surrendered by any
voluntary act or that it can be waived. The reason is that the
fundamental right is vested in a plurality of persons as a unit
or if we may say so, in a community of persons necessarily
fluctuating. Can the present members of a minority
community barter away or surrender the right under the
article so as to bind its future members as a unit? The
fundamental right is for the living generation. By a voluntary
act of affiliation of an educational institution established and
administered by a religious minority the past members of the
community cannot surrender the right of the future members
of that community. The future members of the community
do not derive the right under Article 30(1) by succession or
inheritance.”
173. The view of Hon’ble Justice D.Y. Chandrachud in K.S.
Puttaswamy was referred where ‘decisional autonomy’ has
127
been discussed to comprehend intimate personal choices such
as those governing reproduction as well as choices expressed in
public such as faith or modes of dress. It was held as under:
“248. Privacy has distinct connotations including (i)
spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, “The Four Parts
of Privacy in India”, Economic & Political Weekly (2015),
Vol. 50 Issue 22, at p. 32.] Spatial control denotes the
creation of private spaces. Decisional autonomy
comprehends intimate personal choices such as those
governing reproduction as well as choices expressed in
public such as faith or modes of dress…
xxx xxx xxx
297. …Privacy enables each individual to take crucial
decisions which find expression in the human personality.
It enables individuals to preserve their beliefs, thoughts,
expressions, ideas, ideologies, preferences and choices
against societal demands of homogeneity. Privacy is an
intrinsic recognition of heterogeneity, of the right of the
individual to be different and to stand against the tide of
conformity in creating a zone of solitude. Privacy protects
the individual from the searching glare of publicity in
matters which are personal to his or her life. Privacy
attaches to the person and not to the place where it is
associated. Privacy constitutes the foundation of all liberty
because it is in privacy that the individual can decide how
liberty is best exercised. Individual dignity and privacy are
inextricably linked in a pattern woven out of a thread of
diversity into the fabric of a plural culture.”
174. Furthermore, Hon’ble Justice Chelameswar in K.S. Puttaswamy
held as under:
“372. … Insofar as religious beliefs are concerned, a good
deal of the misery our species suffer owes its existence to
and centres around competing claims of the right to
propagate religion. Constitution of India protects the
liberty of all subjects guaranteeing the freedom of
conscience and right to freely profess, practise and
128
propagate religion. While the right to freely “profess,
practise and propagate religion” may be a facet of free
speech guaranteed under Article 19(1)(a), the freedom of
the belief or faith in any religion is a matter of conscience
falling within the zone of purely private thought process
and is an aspect of liberty…
373. … The choice of appearance and apparel are also
aspects of the right to privacy. The freedom of certain
groups of subjects to determine their appearance and
apparel (such as keeping long hair and wearing a turban)
are protected not as a part of the right to privacy but as
a part of their religious belief. Such a freedom need not
necessarily be based on religious beliefs falling under
Article 25…”
175. I do not find that the Government Order takes away any right
of a student available to her under Article 21 of the Constitution,
or that it contemplates any barter of fundamental rights. The
right to education under Article 21 continues to be available but
it is the choice of the student to avail such right or not. The
student is not expected to put a condition, that unless she is
permitted to come to a secular school wearing a headscarf, she
would not attend the school. The decision is of the student and
not of school when the student opts not to adhere to the uniform
rules.
Question (ix)- Whether in the constitutional scheme, the State is
obligated to ensure ‘reasonable accommodation’ to its citizens?
176. The argument is that the school should reasonably accommodate
the students for wearing headscarf as it does not interfere with
any of the rights of the fellow students.
129
177. Learned counsel for the appellants have referred to the
judgments of this Court reported as Jeeja Ghosh & Anr. v.
Union of India & Ors.76, Vikash Kumar v. Union Public
Service Commission & Ors.77 and Ravinder Kumar
Dhariwal & Anr. v. Union of India & Ors.78.
178. This Court in Ravinder Kumar Dhariwal held that the
reasonable accommodation principle is a component of the right
of equality and the right against discrimination. The concept of
reasonable accommodation arose in the context of
accommodating a differently abled candidate, a member of the
Central Railway Police Force to provide him an alternative
suitable post.
179. In Jeeja Ghosh, this Court was considering the rights of a
differently-abled person in using the facility of a flight. This Court
found that Civil Aviation Requirements issued by Directorate
General of Civil Aviation that no airline shall refuse to carry
persons with disability or persons with reduced mobility and their
assistive aids/devices, escorts and guide dogs including their
presence in the cabin should be made available to the
passengers at the time of check-in. There was a violation of such
directive by the airline when this Court held that equality not
76 (2016) 7 SCC 761 77 (2021) 5 SCC 370
78 2021 SCC OnLine SC 1293
130
only implies preventing discrimination, but goes beyond in
remedying discrimination in the society. In concrete terms, it
means embracing the notion of positive rights, affirmative action
and reasonable accommodation. This Court held as under:
“40. … In concrete terms, it means embracing the notion
of positive rights, affirmative action and reasonable
accommodation...”
180. In Vikash Kumar, this Court held as under:
“62. … if disability as a social construct has to be
remedied, conditions have to be affirmatively created for
facilitating the development of the disabled. Reasonable
accommodation is founded in the norm of inclusion.
Exclusion results in the negation of individual dignity and
worth or they can choose the route of reasonable
accommodation, where each individuals' dignity and
worth is respected…”
181. The argument of the appellants is however that they are seeking
reasonable accommodation by the school authorities to permit
them to attend school wearing matching headscarf/hijab in
addition to the prescribed uniform which would be in conformity
with the fundamental rights guaranteed under Article 25 and 21
of the Constitution.
182. The concept of reasonable accommodation came to be
introduced in respect of a special child or person. In Bijoe
Emmanuel, it has been held that the real test of a true
democracy is the ability of even an insignificant minority to find
its identity under the Constitution. In the aforesaid case,
131
students, believer of Jehovah, expressed their inability to sing
National Anthem though they were extending all respect when
the National Anthem was to be played. In the case of the
appellants, democracy is not in test but the question is whether
the school, having prescribed the uniform, has a right to insist
that all students wear the same uniform so as not to have
inequality or disparity in the matter of wearing of uniform. Rule
11 in fact shows that any change in uniform can be affected only
after serving notice to the parents and once uniform is
prescribed, it cannot be changed in five years, meaning thereby
that there is a continuity of the uniform and the period for which
uniform is prescribed is to be followed.
183. The argument that the Kendriya Vidyalaya across the country
permit wearing of headscarf/hijab for Muslim girls, therefore, the
same should be followed in the State as well. Kendriya Vidyalaya
is an autonomous body under the Ministry of Education,
Government of India. The purpose of the same is to meet the
educational needs of children of transferable Central Government
employees, including Defence and Para-military personnel by
providing a common programme of education. The two
institutions, one under the State and other under the Central
Government have independent organisations and scope of work.
It may be that some State may permit headscarf and others do
132
not. It is a decision taken by the State which cannot be said to
be arbitrary on that ground alone.
184. The parties have referred to some foreign judgments in support
of their respective arguments including judgments on the
question of reasonable accommodation. Ours is a unique country
having people from different faiths and religions professing
different practices. Therefore, the judgments of other countries
having different social structure and polity would not provide a
reasonable basis to determine the question of religious practices
in such a wide and varied country like ours.
185. Thus, though the principle of reasonable accommodation has
been adopted by the Courts in our country, such contention does
not arise in the present case. Constitutional goals such as
secularism, fraternity, dignity mean equality for all, preference
to none. The accommodation sought is contrary to spirit of Article
14 as it would result in different treatment of students in secular
schools who may be following varied religions beliefs.
Question (x)- Whether the Government Order is contrary to the
legitimate State interest of promoting literacy and education as
mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the
Constitution?
186. It has been argued that the Government Order is contrary to the
legitimate State interest of promoting literacy and education as
mandated under Articles 21 and 21A as well as the directive
133
principles contained in Articles 39(f), 41, 46 and fundamental
duties as mentioned in Article 51A. It was said to have the effect
of restricting education for women.
187. It is also submitted that the Government Order is not in the ‘best
interest of the child’, especially the child’s identity, social wellbeing and physical, emotional and intellectual development in
terms of Section 2(9) of the Juvenile Justice (Care and Protection
of Children) Act, 2015.
188. Reference is also made to the Commission of Protection of Child
Rights Act, 2005 enacted in view of the international treaty,
Convention on the Rights of the Child, acceded by India on
11.12.1992. The Act was enacted to give effect to the policies
adopted by the Government in this regard and the standards
prescribed in the Convention. As per Article 1 of the Convention,
child means every human being below the age of 18 years unless
under the law applicable to the child, majority is attained earlier.
Article 14 of the Convention states that the State Parties shall
respect the right of children to freedom of thought, conscience
and religion and that freedom to manifest one’s religion or beliefs
may be subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms of others. It is
thus contended that in terms of the Convention to which India is
134
a signatory, the child has a freedom of thought, conscience and
religion and to manifest one’s religion or belief, subject only to
the limitations prescribed thereunder. Therefore, the restriction
to use headscarf violates not only the fundamental rights
guaranteed under the Constitution but also the International
Convention.
189. The Commission of Protection of Child Rights Act, 2005, enacted
in pursuance of Convention on the Rights of Child, has been
referred to contemplate that the right of freedom of thought,
conscience and religion are to be subservient to the rights
provided under the Constitution of India. However, such rights
cannot be larger than the rights available to the citizens under
the Constitution. Therefore, freedom of religion in the
Convention or the Act are not independent rights but have to be
read along with the Constitutional provisions.
190. The pre-university college is open to all students of all castes and
religions. The doors of such institutions are not closed to any
student of any community. The object of the State is to provide
an opportunity for the students to study in the secular schools.
It is for the students to avail such a facility. If a particular student
feels that she cannot compromise with the wearing of headscarf
or of any other student to wear any outwardly religious symbol,
the school would be justified not to allow such student, in the
135
larger interest of treating all the students alike as a part of
mandate of Article 14, which is central to the theme of Part III
of the Constitution. The headscarf is not permitted in the school
for the students who are studying in Class 10+1 or 10+2. The
students have many years ahead of them where they can carry
on their religious faith but the Government Order mandating
wearing of uniform cannot be faulted with since the object is in
tune with the principles of the Constitution.
191. The judgment of this Court reported as Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr.79 held
that the right of education has been read into right to life in
Article 21. The argument is that a child who is denied right to
access education is not only deprived of his right to live with
dignity, he is also deprived of his right to freedom of speech and
expression enshrined in Article 19(1)(a) of the Constitution. The
right to education is thus a part of Article 21. The State has not
put any restriction to avail such right of education. The right of
education is available to every student. The State has only
regulated the right in a manner that students come to the school
to attend classes only in the prescribed uniform, and the same
has been done to achieve the statutory and constitutional goals.
The students cannot assert that they have a right to education
79 (2012) 6 SCC 1
136
but they would avail such right as per their own wish and in the
manner which they consider appropriate. Schools are to prepare
the students for their future endeavors in life. Discipline is one
of the attributes which the students learn in schools. Defiance to
rules of the school would in fact be antithesis of discipline which
cannot be accepted from the students who are yet to attain
adulthood. Therefore, they should grow in an atmosphere of
brotherhood and fraternity and not in the environment of rebel
or defiance. The argument that the school is insisting on
surrendering or curtailing the right to wear a headscarf as a precondition to access the education is not tenable as the right to
education is available but only condition is that the students
should attend the classes in prescribed uniform.
192. The Government Order cannot be said to be contrary to the
legitimate State goal of promoting literacy and education. Article
21A is not applicable as all the students are over 14 years of age.
The students have a right to education under Article 21, but not
of insisting on wearing something additional to the uniform, in a
secular school, as a part of their religion.
193. In fact, the Act itself contemplates providing of opportunities and
facilities in a healthy manner and maintaining the dignity of
childhood and youth so that there is no moral or material
abandonment. The uniform for the students has been prescribed
137
so that there is no distinction between the students coming from
diverse background and that each student grows in an
environment of equality, fairness and equal opportunities. The
uniform is an equalizer of inequalities. Therefore, prescribing
uniform for children at an impressionable age is not only
important but has a salutary effect on the mental development
of the child to grow in the environment of oneness. The said
object is in tune with Article 39(f) of the Constitution of India
which reads as thus:
“39(f) that children are given opportunities and facilities
to develop in a healthy manner and in conditions of
freedom and dignity and that childhood and youth are
protected against exploitation and against moral and
material abandonment.”
194. Hence, the Government Order cannot be said to be contrary to
the State goal of promoting literacy and education as mandated
under the Constitution. The Government Order only ensures that
the uniform prescribed is adhered to by the students and it
cannot be said that State is restricting the access to education
to the girl students through such an Order.
Question (xi)- Whether the Government Order neither achieves
any equitable access to education, nor serves the ethic of secularism,
nor is true to the objective of the Karnataka Education Act?
195. The argument is that the State is under a positive obligation to
create an environment conducive for the exercise of fundamental
138
rights. Conversely, it means that the subjects have no
responsibility to create a conducive environment in a nondiscriminatory manner. If the students of one faith insist on a
particular dress, there is no stopping for the others to carry their
faiths and beliefs to the schools. It would not be conducive to the
pious atmosphere of the school where the students seek
admission for education. In fact, uniform fosters a sense of
‘equality’ amongst students- instills a sense of oneness,
diminishes individual differences, helps focus on learning as
students would not be bothered about their social status,
improves discipline, fewer conflicts in school, promotes school
spirit- generates a sense of belonging, pride, loyalty towards the
school, relieves economic pressure on the parents, ensures
equality before the educational institution, serves the need of a
diverse community and promotes a positive sense of communal
identity and does not lead to the growth of disparities of wealth
and style. School is the time to learn and lay foundation for the
future pursuits in life. The students are expected to maintain
discipline and the school is responsible to lay a strong foundation
so as to nurture the students as responsible citizens of the
country.
139
196. In Indibly Creative Private Ltd. & Ors. v. Government of
West Bengal & Ors.80, the release of a movie in the State of
West Bengal was not permitted on account of threatened breach
of peace. It was in these circumstances, this Court held that the
State is duty-bound to ensure the prevalence of conditions in
which the constitutional freedoms can be exercised. This Court
held as under:
“50. The freedoms which are guaranteed by Article 19
are universal. Article 19(1) stipulates that all citizens shall
have the freedoms which it recognises. Political freedoms
impose a restraining influence on the State by carving out
an area in which the State shall not interfere. Hence,
these freedoms are perceived to impose obligations of
restraint on the State. But, apart from imposing
“negative” restraints on the State these freedoms impose
a positive mandate as well. In its capacity as a public
authority enforcing the rule of law, the State must ensure
that conditions in which these freedoms flourish are
maintained. In the space reserved for the free exercise of
speech and expression, the State cannot look askance
when organised interests threaten the existence of
freedom. The State is duty-bound to ensure the
prevalence of conditions in which of those freedoms can
be exercised. The instruments of the State must be
utilised to effectuate the exercise of freedom. When
organised interests threaten the properties of theatre
owners or the viewing audience with reprisals, it is the
plain duty of the State to ensure that speech is not
silenced by the fear of the mob. Unless we were to read
a positive obligation on the State to create and maintain
conditions in which the freedoms guaranteed by the
Constitution can be exercised, there is a real danger that
art and literature would become victims of intolerance. In
the present case, we are of the view that there has been
an unconstitutional attempt to invade the fundamental
rights of the producers, the actors and the audience.
Worse still, by making an example out of them, there has
80 (2020) 12 SCC 436
140
been an attempt to silence criticism and critique. Others
who embark upon a similar venture would be subject to
the chilling effect of “similar misadventures”. This cannot
be countenanced in a free society. Freedom is not a
supplicant to power.”
197. As discussed above, secularism is applicable to all citizens,
therefore, permitting one religious community to wear their
religious symbols would be antithesis to secularism. Thus, the
Government Order cannot be said to be against the ethic of
secularism or to the objective of the Karnataka Education Act,
1983.
198. In view of the discussions above, I dismiss all appeals and the
writ petitions, though on different grounds than what prevailed
before the High Court. No Costs.
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 13, 2022.
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE/ORIGINAL JURISDICTION)
Civil Appeal No. 7095 Of 2022
(Arising Out Of S.L.P. (C) No. 5236 Of 2022)
Aishat Shifa …..Appellant(s)
VERSUS
The State of Karnataka & Ors. .… Respondent(s)
With
Writ Petition (C) No.120 Of 2022
Civil Appeal No.7075 Of 2022
(Arising Out Of S.L.P. (C) No. 15405 Of 2022)
Civil Appeal No. 6957 Of 2022
(Arising Out Of S.L.P. (C) No. 9217 Of 2022)
Civil Appeal Nos.7078-7083 Of 2022
(Arising Out Of S.L.P. (C) Nos.15407-15412 Of 2022)
Civil Appeal No. 7077 Of 2022
(Arising Out Of S.L.P. (C) No. 15419 Of 2022)
Civil Appeal No. 7074 Of 2022
(Arising Out Of S.L.P. (C) No.15403 Of 2022)
Civil Appeal No.7076 Of 2022
(Arising Out Of S.L.P. (C) No.15418 Of 2022)
1
Civil Appeal No. 7072 Of 2022
(Arising Out Of S.L.P. (C) No. 11396 Of 2022)
Civil Appeal No. 6934 Of 2022
(Arising Out Of S.L.P. (C) No. 7794 Of 2022)
Civil Appeal No. 7084 Of 2022
(Arising Out Of S.L.P. (C) No. 15402 Of 2022)
Civil Appeal No. 7085 Of 2022
(Arising Out Of S.L.P. (C) No. 15416 Of 2022)
Civil Appeal No. 7092 Of 2022
(Arising Out Of S.L.P. (C) No. 15404 Of 2022)
Civil Appeal No. 7088 Of 2022
(Arising Out Of S.L.P. (C) No. 15414 Of 2022)
Writ Petition (C) No.95 Of 2022
Civil Appeal No.7087 Of 2022
(Arising Out Of S.L.P. (C) No. 15413 Of 2022)
Civil Appeal No.7090 Of 2022
(Arising Out Of S.L.P. (C) No. 15401 Of 2022)
Civil Appeal No. 7096 Of 2022
(Arising Out Of S.L.P. (C) No. 5690 Of 2022)
Civil Appeal No. 7091 Of 2022
(Arising Out Of S.L.P. (C) No. 15399 Of 2022)
Civil Appeal No.7089 Of 2022
(Arising Out Of S.L.P. (C) No. 15417 Of 2022)
Civil Appeal No. 7086 Of 2022
(Arising Out Of S.L.P. (C) No. 15400 Of 2022)
Civil Appeal No. 7069 Of 2022
(Arising Out Of S.L.P. (C) No.17648 Of 2022)
(Diary No.21273 Of 2022)
2
Civil Appeal No. 7098 Of 2022
(Arising Out Of S.L.P. (C) No.17656 Of 2022)
 (Diary No.9117 Of 2022)
Civil Appeal No. 7093 Of 2022
(Arising Out Of S.L.P. (C) No.17653 Of 2022)
(Diary No.25867 Of 2022)
Civil Appeal No. 7099 Of 2022
(Arising Out Of S.L.P. (C) No.17663 Of 2022)
(Diary No.11577 Of 2022)
Civil Appeal No. 7070 Of 2022
(Arising Out Of S.L.P. (C) No.17647 Of 2022)
(Diary No.21272 Of 2022)
J U D G M E N T
Sudhanshu Dhulia, J
1. In the long hearing of this case, which went on for
several days, I had the privilege of listening to the
erudite submissions of learned counsels from both
sides. On behalf of the Petitioners we have heard, Mr.
Kapil Sibal, Mr. Rajeev Dhawan, Mr. Dushyant Dave, Mr.
Salman Khurshid, Mr. Colin Gonsalves, Mr. Yusuf Hatim
Muchhala, Mr. Huzefa Ahmadi, Ms. Meenakshi Arora, Mr.
3
Aditya Sondhi, Mr. Sanjay R. Hegde, Mr. Devadatt
Kamat, Ms. Jayna Kothari, Mr. A.M. Dar learned Senior
Advocates and Mr. Prashant Bhushan, Mr. Shoeb Alam,
Mr. Nizam Pasha, Ms. Kirti Singh and Mr. Thulasi K. Raj
learned Advocates. The arguments on behalf of the
State were made by Mr. Tushar Mehta, Solicitor General
of India, Mr. K.M. Nataraj, Additional Solicitor General of
India and Mr. Prabhuling Navadgi, Advocate General for
Karnataka learned Senior Advocates. Mr. R.
Venkatramani, Ms. V. Mohana and Mr. Dama Seshadri
Naidu, learned Senior Advocates have appeared on
behalf of the teachers.
2. I had the advantage of going through the Judgement of
Justice Hemant Gupta. Justice Gupta has recorded each
argument which was raised at the Bar before us in the
long hearing of the case and he has given his findings
on each of the issues. It is a very well composed
Judgement. I am, however, unable to agree with the
decision of Justice Gupta. I am therefore giving a
separate opinion, on this important matter.
4
3. While I do so, I am conscious that as far as possible,
a Constitutional Court must speak in one voice. Split
verdicts and discordant notes do not resolve a dispute.
Finality is not reached. But then to borrow the words of
Lord Atkin (which he said though in an entirely different
context), “…finality is a good thing, but Justice is
better.”
1
4. The Judgement impugned before this Court was
pronounced by the Karnataka High Court on March 15,
2022. This was challenged before this Court in several
SLP’s. Apart from the SLP we also had before us two
Writ Petitions filed under Article 32 of the Constitution of
India. The Karnataka High Court was dealing with 7
Petitions where the lead matter was W.P. (C) No. 2347 of
2022. All the same while we deal with the facts of the
present case, we would be referring to Aishat Shifa who
was there in Special Leave Petition (Civil) 5236 of 2022,
and was one of the two Petitioners before the Karnataka
High Court, in Writ Petition (Civil) No. 2880 of 2022. We
have heard this as the lead matter. On 22.09.2022
1 Ras Behari Lal and Others vs. The King-Emperor in AIR 1933 PC 208
5
leave was granted by this Court, and Judgement was
reserved.
5. In the district of Udupi in Karnataka there is a small
town called Kundapura. Aishat Shifa and Tehrina Begum
were the two second year students of Government PreUniversity College in Kundapura. They both follow Islam
religion and wear hijab. According to them they have
been wearing hijab, inside their classrooms, ever since
they joined the college, more than a year back. They
say that in the past they had never faced any objection
from anyone, including the college administration and
their wearing of hijab inside their classroom was never
an issue.
6. On February 3, 2022, these two girl students were
stopped at the gate of their college. They were told that
they will have to take off their hijab before entering the
college. Since they refused to take off their hijab, they
were denied entry in the college, by the college
administration.
6
7. The next day that is February 4, 2022, both made a
representation before the Deputy Commissioner Udupi,
praying that direction be given to the college authorities
to let them enter their college and complete their
studies. No effective orders were passed by the Deputy
Commissioner, but instead the Government came up
with an Order on February 5, 2022. This G.O has a
Preamble, which refers to the Karnataka Education Act,
1983 and the Rules framed therein, from where it draws
its powers and then cites three Judgments of different
High Courts to conclude that prohibiting hijab does not
amount to a violation of Article 25 of the Constitution. It
then mandates that the Government schools must have
a school uniform and the colleges which come under
the jurisdiction of the Pre-University Education
Department the uniform which is prescribed by the
College Development Committees (in Government
colleges), and Board of Management (in private
schools), should be worn. There was, however, a caveat,
which said that in the event the Board of Management
did not mandate any uniform then students should wear
7
clothes that are “in the interest of unity, equality and
public order.”

8. Since the entire G.O. has been reproduced by Justice
Hemant Gupta in his Judgement I need not reproduce
the entire G.O., but the relevant portion of the G.O are
as under:
“In the backdrop of the issues highlighted
in the proposal, using the powers granted
by the Karnataka Education Act Section
133 (2), all the government schools in the
state are mandated to abide by the
official uniform. Private schools should
mandate a uniform decided upon by their
board of management.
In colleges that come under the preuniversity education department’s
jurisdiction the uniforms mandated by the
College Development Committee, or the
board of management, should be worn. In
the event that the management does [sic
does not] mandate a uniform, students
should wear clothes that are in the
interests of unity, equality and public
order.
By the Orders of the Governor of
Karnataka”
9. Since hijab was not made a part of the ‘uniform,’ and
wearing it was not ‘in the interest of unity, equality and
public order,’ as the G.O. mandated, the Petitioners
8
were denied entry in their school. This Court has been
informed at the Bar, that similar restriction was imposed
on other school going girls in different parts in
Karnataka.
10. The two girls, who were the students were then
constrained to file Writ Petitions before the Karnataka
High Court. Initially the case went before a learned
Single Judge of the High Court, who in turn, considering
the importance of the matter, referred it to the Chief
Justice for constituting a larger bench. A three-judge
bench was constituted by the Chief justice, which has
heard the matter at length and then passed its orders
on March 15, 2022, dismissing the Writ Petitions, an
order which is presently impugned before this Court.
11. Before the Karnataka High Court as well as before
this Court the main argument of the Petitioners was
that the G.O. dated February 5, 2022, and the
restrictions imposed by the school authorities in not
permitting the Petitioners to wear hijab inside their
classrooms amounts to a violation of their Fundamental
9
Rights given to them under Article 19(1)(a) and Article
25(1) of the Constitution of India as well as under
Articles 14 and 21 of the Constitution. Some of the
Petitioners also raised a claim that wearing of hijab is a
part of their Essential Religious Practice. The argument
of the State on the other hand would be that the G.O
only directs the school authorities of respective schools
to prescribe a school uniform. It is an innocuous order,
which is religion neutral. As to the argument on
Fundamental Rights, the reply was that Fundamental
Rights are not absolute and they are always subject to
reasonable restrictions. Prohibiting hijab inside a
classroom is a reasonable restriction. Wearing of hijab
was also said to be not an Essential Religious Practice.
12. The Karnataka High Court had formulated four
questions for its consideration. These questions are as
follows:
a) Whether wearing hijab/headscarf is a part of
Essential Religious practice in Islamic Faith
protected under Article 25 of the Constitution.
10
b) Whether prescription of school uniform is not
legally permissible, as being violative of
petitioners’ Fundamental Rights inter-alia
guaranteed under Article 19(1)(a), (i.e., freedom of
expression) and 21 (i.e., privacy) of the
Constitution.
c) Whether the Government Order dated 05.02.2022
apart from being incompetent is issued without
application of mind and further is manifestly
arbitrary and therefore violates Article 14 and 15
of the Constitution?
d) Whether any case is made out in Writ Petition
Number 2146 of 2022 for issuance of a direction
for initiating disciplinary enquiry against
Respondent No. 6 to 14 and for issuance of a Writ
of Quo Warranto against Respondent No. 15 and
16?
13. As far as the first question is concerned the High
Court has given a finding that wearing of hijab by
Muslim women does not form a part of Essential
Religious Practice in Islamic faith. On the second
11
question it was held that prescription of school uniform
places only a reasonable restriction which is
Constitutionally permissible and cannot be objected by
the students. As regards the third, i.e., the G.O of 5
February 2022 it was again held that the Government
has powers to issue such an order and no case is made
out for its invalidation. The fourth point was also given
in the negative.
14. One of the grounds raised by the Petitioners in
their challenge to the validity of the G.O. dated
February 5, 2022 is that it is merely an Executive Order.
But it has far reaching consequences as far as
curtailment of Fundamental Rights of the Petitioner are
concerned given to her under Article 19(1)(a) and 25(1)
of the Constitution. It was submitted that the settled
position of law is that restrictions on Fundamental
Rights can only be imposed by a statutory law and not
by executive order. The decision of this Court in Kharak
Singh v. State of Uttar Pradesh2 was relied upon.
This submission, however, is not correct and therefore
2 (1964) 1 SCR 332
12
declined. The reasons being, that under Section 1333
 of
the Karnataka Education Act, 1983 the Government has
powers to give directions. Section 145 of the 1983 Act
gives the State Government powers to make Rules,
which have been made and are called the Karnataka
Educational Institutions (Classification, Regulation and
Prescription of Curricula Etc.,) Rules, 1995. Rule 11(1),4
of the above Rules’ states that the recognized
educational institutions can prescribe uniform.
Therefore, the State Government in any case has
powers to prescribe a uniform/dress code. Therefore,
the submissions that the G.O is not a valid law is not
correct. The G.O draws its source from the statue and
the statutory rules. Therefore, it has the force of law.
Nevertheless, the fact remains that it still has to pass
3 ‘133. Powers of Government to give directions-(1) The State Government may, subject to the other provisions
of this Act, by order, direct the Commissioner of Public Instruction or the Director or any other officer not
below the rank of the District Educational Officer to make an enquiry or to take appropriate proceedings under
this Act in respect of any matter specified in the said order and the Director or the other officer, as the case may
be, shall report to the State Government in due course the result of the enquiry made or the proceedings taken
by him.
(2) The State Government may give such directions to any educational institution or tutorial institution
as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of
the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the
owner, as the case may be, of such institution shall comply with every such direction.
(3) The State Government may also give such directions to the officers or authorities under its control
as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of
such officer or authority to comply with such direction”
4 ‘11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised education institution may specify
its own set of Uniform. Such uniform once specified shall not be changed within the period of next five years.
13
muster the provisions of Articles 19 and 25 of the
Constitution.
15. Out of the four questions formulated by the
Karnataka High Court the first question is in fact the
crucial one. Everything depended on the determination
on this question. But then the Court had set a very tall
order for the Petitioners to prove their case. The
Petitioners had to prove that wearing of hijab forms a
core belief in the religion of Islam. ERP also meant that
such a practice should be fundamental to follow as a
religious belief or practice as ERP was held to be the
foundation, on which the superstructure of the religion
was erected. Essential Religious Practice would mean a
practice without which religion would not remain the
same religion. Also, the Petitioners had to prove that the
practice of wearing hijab is a practice which is being
followed since the very beginning of their religion. This
was the task set up for the Petitioners to prove their
case. But this was not enough, this was only the
threshold requirement. The Petitioners also had to prove
that the ERP does not militate against any of the
14
Constitutional values. This perhaps was right, because
an ERP which is an invasion on the Fundamental Rights
of others will not be given the protection. The Court
held as follows5
:
“…There is absolutely no material
placed on record to prima facie show
that wearing of hijab is a part of an
essential religious practise in Islam
and that the Petitioners have been
wearing hijab from the beginning.
This apart, it can hardly be argued
that hijab being a matter of attire,
can be justifiably treated as
fundamental to Islamic faith. It is not
that if the alleged practise of wearing
hijab is not adhered to, those not
wearing hijab become the sinners,
Islam loses its glory and it ceases to
be a religion. Petitioners have
miserably failed to meet the threshold
requirement of pleadings and proof as
to wearing hijab is an inviolable
religious practice in Islam and much
less a part of ‘essential religious
practice’…”
As the Petitioners did not meet the threshold
requirement, the High Court did not feel it necessary to
touch on the aspect of Constitutional Values. Therefore,
they stated that :-
“It hardly needs to be stated that if
Essential Religious Practice as a
threshold requirement is not satisfied
5 Para XII at Page 87 of the Judgement
15
then the case would by extension not
travel to the merits surrounding the
domain of those Constitutional
Values.”
16. The Judgement then upholds the validity of the
G.O dated February 5, 2022 and holds that the
authorities have power to prescribe uniform in schools.
17. In my opinion, the question of Essential Religious
Practices, which we have also referred in this judgement
as ERP, was not at all relevant in the determination of
the dispute before the Court. I say this because when
protection is sought under Article 25(1) of the
Constitution of India, as is being done in the present
case, it is not required for an individual to establish that
what he or she asserts is an ERP. It may simply be any
religious practice, a matter of faith or conscience! Yes,
what is asserted as a Right should not go against
“public order, morality and health,” and of course, it is
subject to other provisions of Part III of the Constitution.
18. Partly, the Petitioners had to be blamed for the
course taken by the Court as it was indeed the
Petitioners or some of the Petitioners who had claimed
16
that wearing of hijab is an essential practice in Islam.
Before us, however, when arguments were raised at the
Bar, some of the Counsels did admit that ERP was not
the core issue in the matter, but the Petitioners before
the Karnataka High Court had no choice as they were,
inter alia, attacking the Government Order dated 5
February 2022, which clearly stated that prohibiting
hijab in schools will not be violative of Article 25 of the
Constitution of India. Be that as it may, the fact remains
that the point was raised. It was made the core issue by
the Court, and it went against the Petitioners.
19. The approach of the High Court could have been
different. Instead of straightaway taking the ERP route,
as a threshold requirement, the Court could have first
examined whether the restriction imposed by the school
or the G.O on wearing a hijab, were valid restrictions?
Or whether these restrictions are hit by the Doctrine of
Proportionality. In Bijoe Emmanuel and Ors. vs
State of Kerala and Ors6
. this is what the Court had
to say:
“…Therefore, whenever the
Fundamental Right to freedom of
6 1986 3 SCC 615; Para 19
17
conscience and to profess, practice and
propagate religion is invoked, the act
complained of as offending the
Fundamental Right must be examined
to discover whether such act is to
protect public order, morality and
health, whether it is to give effect to the
other provisions of Part III of the
Constitution or whether it is authorized
by a law made to regulate or restrict
any economic, financial, political or
secular activity which may be
associated with religious practice or to
provide for social welfare and reform. It
is the duty and function of the court so
to do.”
20. Be that as it may, let us examine as to how and
what the entire concept of Essential Religious Practice
has been defined by this Court.
21. The test of ERP has been laid down by this Court in
the past to resolve disputes of a particular nature,
which we shall discuss in a while. By and large these
were the cases where a challenge was made to State
interference on what was claimed to be an “essential
religious practice.” What was raised was the protection
of Article 25 as well as Article 26 of the Constitution of
India. In other words, these were the cases where both
Article 25 (1) and (2) and Article 26 were in play.
Essentially, these were the cases where the rituals and
18
practices of a denomination or a sect of a particular
religion sought protection against State intervention.
Even when Rights of an individual were raised, as we
may say in the case of Shayara Bano v. Union of
India and Ors.7
 which is the Triple Talaq case or the
case of Indian Young Lawyers Association and Ors,
(Sabarimala Temple, In Re.) v. State of Kerala and
Ors.8 which is commonly known as the Sabarimala
case, these were cases where an individual right was
asserted against a religious practice or where there was
an assertion, primarily on a religious identity. In the
case at hand, the question is not merely of religious
practice or identity but also of ‘freedom of expression,’
given to a citizen under Article 19(1)(a) of the
Constitution of India, and this makes this case different.
22. The expression ‘essential religious practices’ it
seems was taken from the Constituent Assembly
Debates. In response to a query, Dr. Ambedkar
categorically said that what is protected under Article
25 of the Constitution is not every religious practice but
only such practices which are essentially religious. The
7 (2017) 9 SCC 1
8 (2019) 11 SCC 1
19
relevant passage of the Constituent Assembly Debates
VII: 781 is reproduced hereunder:
“…there is nothing extraordinary in
saying that we ought to strive hereafter
to limit the definition of religion in such a
manner that we shall not extend it
beyond beliefs and such rituals as may
be connected with ceremonials which
are essentially religious…”
23. The first case, all the same, in this regard which
came up for consideration before the Supreme Court
was Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt9 which is famously known as the Shirur
Mutt case. The facts of this case were that the
Mathadhipati of Shirur Math at Udupi had preferred a
challenge to the powers of the Commissioner under the
Madras Hindu Religious Endowments Act (Act 2 of 1927)
who was exercising control over the affairs of Shirur
Math. The Writ Petition was allowed by the Madras High
Court and a Writ of Prohibition was granted in favour of
the Mathadhipati. This order was challenged before the
Supreme Court by the Commissioner, Hindu Religious
9 (1954) SCR 1005
20
Endowments, Madras. Inter-alia, therefore before the
Supreme Court was the question of whether the
provisions of the Act were an invasion on the exercise of
Fundamental Rights of the Mathadhipati and the
Management of the Temple, given to them under Article
25 and 26 of the Constitution. This Court then
proceeded to elaborate on the meaning of religion and
how it has to be understood in the context of the
Constitution. While delivering the concurring opinion on
behalf of the Seven Judge Constitutional Bench, Justice
B.K. Mukherjea held as follows:
“…Religion is certainly a matter of faith
with individuals or communities and it is
not necessarily theistic. There are well
known religions in India like Buddhism
and Jainism which do not believe in God
or in any Intelligent First Cause. A religion
undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by
those who profess that religion as
conducive to their spiritual well being, but
it would not be correct to say that religion
is nothing else but a doctrine of belief. A
religion may not only lay down a code of
ethical rules for its followers to accept, it
might prescribe rituals and observances,
ceremonies and models of worship which
are regarded as integral parts of religion,
and these forms and observances might
extend even to matters of food and
dress.10
10 Para 17 of Shirur Mutt Cae (supra)
21
24. The Court held that the guarantee under her
Constitution not only protects the freedom of religious
opinion but it protects also, acts done in pursuance of a
religion and this is made clear using the expression
‘practice of religion,’ in Article 25. This Court rejected
the submissions of the Ld. Attorney General of India, as
he then was, that the State must be allowed to regulate
the secular activities which are associated with a
religion which do not constitute the essential part of it.
The observations falling from the court in the Shirur
Mutt Case (supra), in this regard were as follows:
“19. …The learned Attorney-General lays
stress upon clause 2(a) of the article and
his contention is that all secular activities,
which may be associated with religion but
do not really constitute an essential part
of it, are amenable to State regulation.
20. … The contention formulated in such
broad terms cannot, we think, be
supported. In the first place, what
constitutes the essential part of a
religion is primarily to be
ascertained with reference to the
doctrines of that religion itself. If the
tenets of any religious sect of the Hindus
prescribe that offerings of food should be
given to the idol at particular hours of the
day, that periodical ceremonies should be
performed in a certain way at certain
periods of the year or that there should
22
be daily recital of sacred texts or
oblations to the sacred fire, all these
would be regarded as parts of religion and
mere fact that they involve expenditure of
money or employment of priests and
servants or the use of marketable
commodities would not make them
secular activities partaking of a
commercial or economic character; all of
them are religious practices and should
be regarded as matters of religion within
the meaning of Article 26(b)11.’
(emphasis supplied)
Thereafter though the concept like ERP had come, but
what constitutes Essential Religious Practices was left
to the doctrine of that religion itself.
25. The next case which came up for consideration of
this Court was in Ratilal Panachand Gandhi v. State
of Bombay and Ors.12 wherein the Petitioners had
challenged the Constitutional validity of the Act known
as the Bombay Public Trusts Act, 1950 inter-alia, on
grounds that the provisions in the Act were an invasion
of their Fundamental Rights, given to them under Article
25 as well as Article 26 of the Constitution. Basically, it
followed the same line of thought as laid down in the
11 Para 19 & 20
12 1954 SCR 1055; Para
23
Shirur Mutt (supra) case. The observations of the
court are:
“10. …The free exercise of religion by
which is meant the performance of
outward acts in pursuance of religious
belief, is, as stated above, subject to
State regulation imposed to secure order,
public health and morals of the people.
What sub-clause (a) of clause 2 of Article
25 contemplates is not State regulation of
the religious practices as such which are
protected unless they run counter to
public health or morality but of activities
which are really of an economic,
commercial or political character though
they are associated with religious
practices.”
26. We now come to the decision of the Supreme
Court in Durgah Committee, Ajmer, and Anr. v.
Syed Hussain Ali and Ors.13 In this case the
‘khadims’ of the Hazrat Haji Moinuddin Chishti had
challenged the Constitutional Validity of the Dargah
Hazrat Khwaja Saheb Act, 1955 before the Rajasthan
High Court. The ‘khadims' of the Durgah of Khwaja
Moin-ud-din Chishti (also known as the Durgah Khwaja
Saheb, Ajmer), claimed to be the followers of a Sufi sect
or Silsila called Chishti and they claimed they were
doing service in the Dargah of Sufi Saint Hazrat Haji
13 (1962) 1 SCR 383
24
Moinuddin Chishti. Their case was that the interference
of the Dargah Committee amounts to an invasion of the
Fundamental Rights, inter alia, guaranteed to them
under Article 25(1) of the Constitution of India. The
Rajasthan High Court had substantially allowed their
claim and against the said order the Dargah Committee
was before the Supreme Court. The questions which fell
for consideration before this Court was whether any
person as a Sunni Muslim could manage the affairs of
the Durgah or whether this could only be done by the
followers of Chishti Silsila. There were some other
questions as well, which would not be relevant for
discussion in the context of this decision. The Supreme
Court had allowed the appeal of the Durgah Committee
by setting aside the order of the Rajasthan High Court,
holding, inter alia that khadims could not claim the right
under Article 25(1) of the Constitution of India. The
Supreme Court in this case, went on to determine as to
what would be an ERP and how the Court would
determine the same. All the same this was done again
as there was an interplay of Article 25 and Article 26 of
25
the Constitution, and what was being asserted were the
Rights of a Sect or a denomination against State
intervention.
27. The Judgements of this Court in Acharya J.
Avadhuta & Ors. v. Commissioner of Police,
Calcutta & Anr.14 and Commissioner of Police &
Ors. v. Acharya J. Avadduta15 both relate to the
performance of tandav dance in a public place by the
followers of the faith of ‘Anand Margis.’ The Kolkata
Police had banned such performance of tandav dance in
public places under Section 144 of the Code of Criminal
Procedure, 1973. The matter ultimately came up before
this Court in 1983 and it was held that performing
tandav dance in public places is not an essential part of
the ‘Anand Margi’ faith. The matter again reached
before this Court in 2004 and a 3-Judge bench of this
Court reached the same conclusion by relying upon the
earlier Judgement of 1983.
28. Therefore, what can be clearly distinguished here
is that while dealing with the concept of Essential
Religious Practices or whether a particular practice can
14 (1983) 4 SCC 522
15 (2004) 12 SCC 770
26
be termed as an ERP, this Court was dealing with
questions related to both Article 25 as well as Article 26
of the Constitution. These were the cases which were
either concerned with the management of an activity
related to a religious shrine or Institution or where the
State had met some kind of resistance or challenge by
the citizens, who claimed rights both under Article 25
and 26 of the Constitution of India. These were also the
cases where a community, sect or a religious
denomination of a religion was against the State action.
This, however, is not presently the case before this
Court. We have before us a case of assertion of
individual Right as different from what would be a
community Right. We are concerned only with Article
25(1) and not with Article 25(2) or Article 26 of the
Constitution of India. Whereas Clause 1 of Article 25
deals with individual rights, Article 25(2) and Article 26
of the Constitution of India, deal by and large with
community-based rights. In that sense what has been
decided by this Court earlier as ERP would not be of
much help to us. For this reason, the entire exercise
27
done by the Karnataka High Court, in evaluating the
rights of the Petitioners only on the touchstone of ERP,
was incorrect.
29. In the more recent case of Shayara Bano (supra)
the majority opinion of 3:2 held that Triple Talaq
constitutes an irregular and not an essential practice
amongst Sunni Muslims. It was stated as follows:
“54. …Applying the aforesaid tests, it is
clear that Triple Talaq is only a form of
talaq which is permissible in law, but at
the same time, stated to be sinful by
the very Hanafi School which tolerates
it. According to Javed16, therefore, this
would not form part of any essential
religious practice. Applying the test
stated in Acharya Jagadishwarananda it
is equally clear that the fundamental
nature of the Islamic religion, as seen
through an Indian Sunni Muslim’s eyes,
will not change without this practice…”
30. In the Sabarimala Temple (supra) case the
question before the Constitutional Bench was whether
women devotees between the ages of 10-50 years had
the Right to enter the temple of Lord Ayyappa located in
Sabarimala, Kerala. Subsequently, this Right was denied
to them by the Temple Authorities, on the basis of
customary practice and tradition. Allowing the Writ
16 Javed v State of Haryana, (2003) 8 SCC 369 [cited in Shayara Bano (supra)]
28
Petition by 4:1 majority, the bench held in favour of
women devotees and struck down the restrictions
placed upon them to be violative of their Fundamental
Rights under the Constitution of India.
31. In both the cases cited above again the essential
determination before the Court was of religion and
religious practice. Freedom of expression given to a
citizen under Article 19(1)(a) was not an issue, and if at
all it was it was on the periphery. In other words, not the
central issue.
32. We are presently concerned with an entirely
different set of facts. We must deal with only Article
25(1), and not with Article 25(2), or even with Article 26
of the Constitution of India. Article 25(1) deals with the
Rights of an individual, whereas Article 25 (2), and
Article 26 deal with the Rights of communities or
religious denominations, as referred above. Additionally,
we must deal with the Fundamental Rights given to an
individual under Article 19(1)(a) and its interplay with
Article 25(1) of the Constitution.
29
33. Article 25 gives a citizen the “freedom of
conscience and free profession, practice and
propagation of religion.” It does not speak of Essential
Religious Practice. This concept comes in only when we
are dealing with Article 25(2) or Article 26, and where
there is an inter-play of these two Articles.
34. We have before us two children, two girl students,
asserting their identity by wearing hijab, and claim
protection under Article 19 and Article 25 of the
Constitution of India. Whether wearing hijab is an ERP in
Islam or not is not essential for the determination of this
dispute. If the belief is sincere, and it harms no one
else, there can be no justifiable reasons for banning
hijab in a classroom.
35. The Karnataka High Court, however, has made a
detailed study as to what is ERP and whether wearing a
hijab constitutes a part of ERP in Islam. Suras and
verses from the Holy Quran have been referred and
explained, and then taking assistance of a commentary
on the Holy Book, the High Court concludes that
30
wearing of hijab is not an essential religious practice in
Islam and at best it is directory in nature, not
mandatory. The decisions of the Supreme Court which
we have referred above, and some other decisions as
well have been considered while dealing as to what
constitutes an ERP, and then a determination has been
made that what is being claimed as a right is not an
essential religious practice at all!
36. Apart from the fact that ERP was not essential to
the determination of the dispute, which we have
already said above, there is another aspect which is
even more important, which would explain as to why
the Courts should be slow in the matters of determining
as to what is an ERP. In my humble opinion Courts are
not the forums to solve theological questions. Courts
are not well equipped to do that for various reasons, but
most importantly because there will always be more
than one viewpoint on a particular religious matter, and
therefore nothing gives the authority to the Court to
pick one over the other. The Courts, however, must
interfere when the boundaries set by the Constitution
31
are broken, or where unjustified restrictions are
imposed.
37. In the case of M. Siddiq (Dead) Through LR’s v.
Mahant Suresh Das and Ors.17 popularly known as
the Ram Janmabhoomi Case this Court had cautioned
not to venture into areas of theology with which the
Courts are not well equipped. There may be diversity of
views within a religion and to choose one over others,
may not be correct. Courts should steer clear from
interpreting religious scriptures. It was observed by the
Court as follows:
“90. During the course of the
submissions, it has emerged that the
extreme and even absolute view of Islam
sought to be portrayed by Mr. P.N. Mishra
does not emerge as the only available
interpretation of Islamic law on a matter
of theology. Hence, in the given set of
facts and circumstances, it is
inappropriate for this Court to enter
upon an area of theology and to assume
the role of an interpreter of the Hadees.
The true test is whether those who
believe and worship have faith in the
religious efficacy of the place where they
pray. The belief and faith of the
worshipper in offering namaz at a place
which is for the worshipper a mosque
cannot be challenged. It would be
preposterous for this Court to question it
on the ground that a true Muslim would
17 (2020) 1 SCC 1; Para 90 & 91
32
not offer prayer in a place which does
not meet an extreme interpretation of
doctrine selectively advanced by Mr.
Mishra. This Court, as a secular
institution, set up under a
constitutional regime must steer
clear from choosing one among
many possible interpretations of
theological doctrine and must defer
to the safer course of accepting the
faith and belief of the worshipper.’
91. Above all, the practice of religion,
Islam being no exception, varies
according to the culture and social
context. That indeed is the strength of
our plural society. Cultural assimilation is
a significant factor which shapes the
manner in which religion is practiced. In
the plural diversity of religious beliefs as
they are practiced in India, cultural
assimilation cannot be construed as a
feature destructive of religious doctrine.
On the contrary, this process
strengthens and reinforces the true
character of a country which has been
able to preserve its unity by
accommodating, tolerating, and
respecting a diversity of religious faiths
and ideas. There can be no hesitation
in rejecting any attempt to lead the
Court to interpret religious doctrine
in an absolute and extreme form
and question the faith of
worshippers. Nothing would be as
destructive of the values underlying
 Article 25 of the Constitution.18
 ’
 (emphasis
supplied)
18 Paras 90 & 91
33
38. In any case as to what constitutes an Essential
Religious Practice, in all its complexities, is a matter
which is pending consideration before a Nine Judge
Constitutional bench of this Court19 and therefore in any
case it may not be proper for me to go any further into
this aspect.
39. The decision which is of essential importance in
this case for our purposes is the decision given by this
Court in the case of Bijoe Emmanuel (supra). It is
necessary to refer to this case in some detail, as in my
opinion this case is the guiding star which will show us
the path laid down by the well established principles of
our Constitutional values, the path of understanding
and tolerance, which we may also call as “reasonable
accommodation,” as explained by some of the lawyers
before this Court. Karnataka High Court, all the same,
chose not to rely on this seminal Judgement for reasons
that “Bijoe Emmanuel is not the best vehicle for
drawing a proposition essentially founded on the
19 Kantaru Rajeevaru vs Indian Young Lawyers Assn. and Ors. [R.P. (C) No. 3358 of 2018 in W.P. (C) No. 373
of 2006]
34
freedom of conscience
20
.” But this is not correct. This
decision of the Supreme Court is most relevant in the
present case, both on the facts as well as on law.
40. Let us now look into the facts of that case:
Three girl children in Kerala who belonged to a faith
called Jehovah’s Witnesses, were attending a
government school. Every morning when the National
Anthem was sung in the school these three students
used to respectfully stand up for the National Anthem,
like other children in the school; but they did not sing
the National Anthem. They did so as their faith forbid
them to sing for anyone else but Jehovah. Initially this
was not noticed but then someone complained before
the highest authority in the State, which led to the
expulsion of these three children from their school, by
orders passed by the Deputy Inspector of schools and
then the Headmistress of the school. The children filed
their Writ Petition before the Kerala High Court which
was dismissed by the learned Single Judge as also
their appeal by a division bench of Kerala High Court.
They finally approached the Supreme Court of India
20 Para X1(iii) at Page 85 of the Impugned Judgement
35
and filed their Special Leave Petition before this Court.
Their case was simple: they do not show disrespect to
the National Flag or the National Anthem. They stand
respectfully when the National Anthem is sung, they
only do not participate in singing as they sincerely
believe their faith forbids them to sing for anyone but
Jehovah.
41. The Petition of these three girl children was
dismissed by the Kerala High Court as the Kerala High
Court did not find any word or thought in the Indian
National Anthem which could offend anyone’s religious
susceptibilities. Hence the Kerala High Court concluded
that there was absolutely no reason for the children not
to sing the national anthem! While examining their case
Justice O. Chinnappa Reddy, who wrote this Judgement
for the Court rejected the approach of the High Court
and said that the High Court had actually misdirected
itself in doing so and it went off at a tangent. The
objection of the Petitioners was not to the language of
the National Anthem, but they simply refused to sing
any National Anthem, irrespective of any country as
36
they sincerely believe that this is what their religion
prescribes them to do.
42. The Supreme Court then cites two judgements of
the United States Supreme Court, which we must refer
here as well, since they relate to schools and the
‘discipline’ imposed by the schools. The first is the case
of Minersville School District v. Gobitis21 and the
second is West Virginia State Board of Education v.
Barnette22
. While referring to the two judgement(s) my
source shall remain the Judgement of Bijoe Emmanuel
(supra).
43. In Minersville (supra) the question was whether
compulsory saluting of the National Flag infringed upon
the liberties guaranteed by the Fourteenth Amendment
of the Constitution of the United States of America. The
majority opinion delivered by Justice Frankfurter upheld
the requirement on grounds that such decisions are to
be left to the school boards. Justice Stone gave his
dissent and said,
“History teaches us that there have been
but few infringements of personal liberty
21 310 US 586 (1940)
22 319 US 624 (1943)
37
by the State which have not been
justified, as they are here, in the name of
righteousness and the public good, and
few which have not been dictated, as
they are now, at politically helpless
minorities23.”
In short, the US Supreme Court did not interfere in the
compulsory saluting of the National Flag in a Public
School. The reference of this case, is however,
important here as very soon this decision was overruled
by the Supreme Court in the case of Barnetta (supra)
which is the second case.
44. The second case is the one which only a few years
later, overruled Gobitis (supra). Justice Jackson, the
author of the Judgement in Barnetta referred to the
famous dilemma of Abraham Lincoln which was “Must
a government of necessity be too strong for the
liberties of its people, or too weak to maintain its own
existence?” Justice Jackson then said:
“It may be doubted whether Mr. Lincoln
would have thought that the strength of
government to maintain itself would be
impressively vindicated by our
confirming power of the state to expel a
handful of children from school…”
23 Para 21 of Bijoe Emmanuel (supra)
38
45. While going into the logic of Justice Frankfurter of
non-interference with the School Authorities, as that
would make the Court a School Board, Justice Jackson
went onto say:
“There are village tyrants as well as
village Hampdens, but none who acts
under colour of law is beyond the reach
of the Constitution….. We cannot,
because of modest estimates of our
competence in such specialities as public
education, withhold the judgement that
history authenticates as the function of
this Court when liberty is infringed.”
Justice Jackson then concludes:24
,
“If there is any fixed star in our
constitutional constellation, it is
that no official, high or petty, can
prescribe what shall be orthodox in
politics, nationalism, religion, or
other matters of opinion or force
citizens to confess by word or act
their faith therein. If there are any
circumstances which permit an
exception, they do not now occur
to us.
We think the action of the local
authorities in compelling the flag
salute and pledge transcends
constitutional limitations on their
power and invades the sphere of
intellect and spirit which it is the
purpose of the First Amendment to
our Constitution to reserve from all
official control.”
24 Para 22 of Bijoe Emmanuel (supra)
39
46. Justice O. Chinnappa Reddy in his Judgement has
traced the struggles and the difficulties faced by the
faithful of Jehovah in different countries where they had
met similar restrictions. The Court then invokes Article
19(1)(a) and Article 25(1), in favor of the petitioners. It
says:
“Article 19(1)(a) of the Constitution
guarantees to all citizens freedom of
speech and expression, but Article
19(2) provides that nothing in Article
19(1)(a) shall prevent a State from
making any law, insofar as such law
imposes reasonable restrictions on the
exercise of the right conferred by the
said sub-clause in the interests of the
sovereignty and integrity of India, the
security of the State, friendly relations
with foreign States, public order,
decency or morality, or in relation to
contempt of court, defamation or
incitement to an offence. Article 25(1)
guarantees to all persons freedom of
conscience and the right freely to
profess, practise and propagate
religion, subject to order, morality and
health and to the other provisions of
Part III of the Constitution.”
47. It was then held that it is not disrespectful to the
National Anthem if the girls respectfully stand when the
National Anthem was sung, but may not have joined in
the singing. Their expulsion from school was therefore
40
held to be in violation of their Fundamental Right of
Freedom of Speech and Expression given to them under
Article 19(1)(a) of the Constitution of India. The
Government Circular which directed that the entire
school should sing National Anthem was not ‘law’ as
given in Clause 2 of Article 19 of the Constitution. The
law i.e., the statutory law was ‘The Prevention of Insults
to National Honour Act, 1971’. A person who
respectfully stands when the National Anthem is sung
but does not participate in the singing does not commit
an offence under the Act. Offence is only committed
when a person prevents another from singing National
Anthem. The Court thus impliedly also meant that the
freedom to sing would also mean freedom to remain
silent.
48. Article 25 of the Constitution, was described as an
article of faith and it was observed as follows:
“18. …Article 25 is an article of faith in
the Constitution, incorporated in
recognition of the principle that the real
test of a true democracy is the ability of
even an insignificant minority to find its
identity under the country’s
Constitution. This has to be borne in
mind in interpreting Article 25.”
41
49. The girls before us today face the same
predicament as the Jehovah’s Witnesses in the above
case. The present Petitioners too wear hijab as an
article of their faith. They too believe that it is a part of
their religion and social practice. In my considered
opinion therefore, this case is squarely covered by the
case of Bijoe Emmanuel (supra) and the ratio laid
down therein.
50. Coming back to the order of Karnataka High Court
there is another finding which is difficult to accept. This
is where the High Court determines that the Petitioners
cannot assert their Fundamental Rights inside a
classroom which the Court terms as “qualified public
places” and the rights inside a school are only
“derivative right.” The court states as under:
“It hardly needs to be stated that schools
are qualified public places that are
structured predominantly for imparting
educational instructions to the students.
Such qualified Spaces by their very
nature repeal the assertion of individual
rights to the detriment of the general
discipline and decorum. Even the
substantive rights themselves
metamorphise into a kind of derivatives
rights in such places.”25
25 Para XIV (iv) at Page 100 of the Impugned Judgement
42
The Hight Court rejects the case of the Petitioners on
‘reasonable accommodation,’ and also the argument that
schools are a showroom for diversity of culture, for reason
that the schools being ‘qualified public places’ schoolgirls
have to follow the dress code, which does not prescribe
hijab. It says:
“It hardly needs to be stated the
content and scope of a right, in terms of
its exercise are circumstantially
dependent. Ordinarily, liberties of
persons stand curtailed inter-alia by his
position, placement and the like. The
extent of autonomy is enormous at
home, since ordinarily resident of a
person is treated as his inviolable
castle. However, in qualified public
places like schools, courts, war rooms,
defense camp, etc., the freedom of
individuals as of necessity, is curtailed
consistent with the discipline and
decorum and function and purpose26.”
51. Comparison of a school with a war room or
defense camp, seems odd, to say the least. Schools are
not required to have the discipline and regimentation of
a military camp. Nevertheless, in my understanding,
what the High Court wanted to convey was that all
public places have a certain degree of discipline and
26 Para XIV (vii) at Page 104 of the Impugned Judgement
43
limitations and the degree of enjoyment of a Right by
an individual inside his house or anywhere outside a
public space is different to what he or she would enjoy
once they are inside a public space. As a general
principle, one can have no quarrel with this proposition.
But then let us come to the facts of the case. Laying
down a principle is one thing, justifying that to the facts
of a case is quite another. We must be a judge of fact as
well as a judge of law. Do the facts of the case justify
the restrictions inside a classroom, which is admittedly
a public place? In my opinion there is no justification for
this.
52. School is a public place, yet drawing a parallel
between a school and a jail or a military camp, is not
correct. Again, if the point which was being made by the
High Court was regarding discipline in a school, then
that must be accepted. It is necessary to have discipline
in schools. But discipline not at the cost of freedom, not
at the cost of dignity. Asking a pre university schoolgirl
to take off her hijab at her school gate, is an invasion on
her privacy and dignity. It is clearly violative of the
44
Fundamental Right given to her under Article 19(1)(a)
and 21 of the Constitution of India. This right to her
dignity27 and her privacy28 she carries in her person,
even inside her school gate or when she is in her
classroom. It is still her Fundamental Right, not a
“derivative right” as has been described by the High
Court.
53. In the Puttaswamy judgement (supra), Justice
D.Y. Chandrachud in Paragraph 298 of his Judgement
says as under:
‘298. Privacy of the individual is an essential
aspect of dignity. Dignity has both an intrinsic
and instrumental value. As an intrinsic value,
human dignity is an entitlement or a
constitutionally protected interest in itself. In its
instrumental facet, dignity and freedom are
inseparably intertwined, each being a
facilitative tool to achieve the other. The ability
of the individual to protect a zone of privacy
enables the realisation of the full value of life
and liberty. Liberty has a broader meaning of
which privacy is a subset. All liberties may not
be exercised in privacy. Yet others can be
fulfilled only within a private space. Privacy
enables the individual to retain the autonomy of
the body and mind. The autonomy of the
individual is the ability to make decisions on
vital matters of concern to life. Privacy has not
been couched as an independent fundamental
right. But that does not detract from the
constitutional protection afforded to it, once the
27 Maneka Gandhi vs Union of India and Anr. [(1978) 1 SCC 248]; Para 85
28 K.S. Puttaswamy and Anr. vs Union of India and Ors. [(2017) 10 SCC 1]
45
true nature of privacy and its relationship with
those fundamental rights which are expressly
protected is understood. Privacy lies across the
spectrum of protected freedoms. The guarantee
of equality is a guarantee against arbitrary
State action. It prevents the State from
discriminating between individuals. The
destruction by the State of a sanctified personal
space whether of the body or of the mind is
violative of the guarantee against arbitrary
State action. Privacy of the body entitles an
individual to the integrity of the physical
aspects of personhood. The intersection
between one's mental integrity and privacy
entitles the individual to freedom of thought,
the freedom to believe in what is right, and the
freedom of self-determination. When these
guarantees intersect with gender, they create a
private space which protects all those elements
which are crucial to gender identity. The family,
marriage, procreation and sexual orientation
are all integral to the dignity of the individual.
Above all, the privacy of the individual
recognises an inviolable right to determine how
freedom shall be exercised. An individual may
perceive that the best form of expression is to
remain silent. Silence postulates a realm of
privacy. An artist finds reflection of the soul in a
creative endeavour. A writer expresses the
outcome of a process of thought. A musician
contemplates upon notes which musically lead
to silence. The silence, which lies within,
reflects on the ability to choose how to convey
thoughts and ideas or interact with others.
These are crucial aspects of personhood. The
freedoms under Article 19 can be fulfilled where
the individual is entitled to decide upon his or
her preferences. Read in conjunction with
Article 21, liberty enables the individual to have
a choice of preferences on various facets of life
including what and how one will eat, the way
one will dress, the faith one will espouse and a
46
myriad other matters on which autonomy and
self-determination require a choice to be made
within the privacy of the mind. The
constitutional right to the freedom of religion
under Article 25 has implicit within it the ability
to choose a faith and the freedom to express or
not express those choices to the world. These
are some illustrations of the manner in which
privacy facilitates freedom and is intrinsic to the
exercise of liberty. The Constitution does not
contain a separate article telling us that privacy
has been declared to be a fundamental right.
Nor have we tagged the provisions of Part III
with an alpha-suffixed right to privacy: this is
not an act of judicial redrafting. Dignity cannot
exist without privacy. Both reside within the
inalienable values of life, liberty and freedom
which the Constitution has recognised. Privacy
is the ultimate expression of the sanctity of the
individual. It is a constitutional value which
straddles across the spectrum of fundamental
rights and protects for the individual a zone of
choice and self-determination.’
54. The counsels representing the State before this
Court had underlined the importance of G.O dated
05.02.2022 which was to enforce discipline in schools,
including in Pre-University classes, and apply a dress
code. The object of the act therefore was the
betterment of education and to inculcate a sense of
discipline among school going children. The learned
Advocate General of Karnataka submitted that the law
in the present case which is the G.O dated 5th February,
47
2022, is primarily for the enforcement of dress code in
schools including Pre-University classes. It may only
incidentally be giving an impact on the rights which the
Petitioners claim under Article 19 and 25 of the
Constitution of India. What has to be seen is the pith
and substance of the law which is the enforcement of
uniforms in schools, which in turn is to maintain
discipline in schools. For this submission the learned
Advocate General has relied upon Bachan Singh v.
State of Punjab29 which says:
“60. From a survey of the cases noticed
above, a comprehensive test which can
be formulated, may be restated as
under:
“Does the impugned law, in its pith
and substance, whatever may be its
form and object, deal with any of
the fundamental rights conferred by
Article 19(1)? If it does, does it
abridge or abrogate any of those
rights? And even if it does not, in its
pith and substance, deal with any
of the fundamental rights conferred
by Article 19(1), is the direct and
inevitable effect of the impugned
law such as to abridge or abrogate
any of those rights?”
The mere fact that the impugned
law incidentally, remotely or
29 (1980) 2 SCC 684
48
collaterally has the effect of
abridging or abrogating those
rights, will not satisfy the test. If the
answer to the above queries be in
the affirmative, the impugned law
in order to be valid, must pass the
test of reasonableness under Article
19. But if the impact of the law on
any of the rights under clause (1) of
Article 19 is merely incidental,
indirect, remote or collateral and is
dependent upon factors which may
or may not come into play, the anvil
of Article 19 will not be available for
judging its validity.”
All the same, I do not see the applicability of the above
submission in the facts of the controversy before this
Court. The G.O specifically seeks to address the question
of hijab, which is evident from the preamble of the G.O.
Moreover, the above submission of the learned Advocate
General is not correct in view of the Puttaswamy
judgement (supra) which says:
“24. The decisions in M.P. Sharma [M.P.
Sharma v. Satish Chandra, AIR 1954 SC
300: 1954 Cri LJ 865 : 1954 SCR 1077]
and Kharak Singh [Kharak Singh v. State
of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ
329 : (1964) 1 SCR 332] adopted a
doctrinal position on the relationship
between Articles 19 and 21, based on the
view of the majority in Gopalan [A.K.
Gopalan v. State of Madras, AIR 1950 SC
27 : 1950 SCR 88] . This view stands
abrogated particularly by the judgment
in Cooper [Rustom Cavasjee
49
Cooper v. Union of India, (1970) 1 SCC
248] and the subsequent statement of
doctrine in Maneka [Maneka
Gandhi v. Union of India, (1978) 1 SCC
248] . The decision in Maneka [Maneka
Gandhi v. Union of India, (1978) 1 SCC
248], in fact, expressly recognised that it
is the dissenting judgment of Subba Rao,
J. in Kharak Singh [Kharak Singh v. State
of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ
329 : (1964) 1 SCR 332] which represents
the exposition of the correct
constitutional principle. The
jurisprudential foundation which held the
field sixty-three years ago in M.P.
Sharma [M.P. Sharma v. Satish Chandra,
AIR 1954 SC 300: 1954 Cri LJ 865 : 1954
SCR 1077] and fifty-five years ago
in Kharak Singh [Kharak Singh v. State of
U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ
329 : (1964) 1 SCR 332] has given way to
what is now a settled position in
constitutional law. Firstly, the
fundamental rights emanate from basic
notions of liberty and dignity and the
enumeration of some facets of liberty as
distinctly protected rights under Article 19
does not denude Article 21 of its
expansive ambit. Secondly, the validity of
a law which infringes the fundamental
rights has to be tested not with reference
to the object of State action but on the
basis of its effect on the guarantees of
freedom. Thirdly, the requirement of
Article 14 that State action must not be
arbitrary and must fulfil the requirement
of reasonableness, imparts meaning to
the constitutional guarantees in Part III.”
55. We would now be examining some decisions of
foreign Courts as in order to appreciate the assertion of
50
religious and cultural rights in our school premises, it
would be worthwhile to refer to some of the similar
controversies which had come up before the Courts of
other Countries which have a Constitutional Democracy.
There are two cases which I would like to refer here. The
first case is the ‘nose-stud’ case of the Constitutional
Court of South Africa and the second one is a decision
of the House of Lords in England.
56. The South African case though has to be seen in
the background of the Constitutional Law of South Africa
where dignity is a right given to its citizens under its
Constitution. Equality Courts have also been established
in South Africa to hear the disputes relating to cases of
discrimination. But nevertheless, the basic principle and
the law remains the same.
57. Sunali was a student of Class 10 in Durban Girls
High School (DGHS). The Code of Conduct of the school
prohibited wearing jewellery in school. When Sunali was
in class 10, her mother gave her a nose stud to wear,
which was not a fashion statement, but a part of
Sunali’s Hindu-Tamil culture. The school objected to the
51
nose-stud and Sunali was asked to remove it. When
Sunali refused to remove the nose stud her mother was
called. Her mother reasoned with the authorities that
this is a part of her Hindu-Tamil culture and it cannot be
removed. Ultimately, Sunali through her mother had to
file a Petition before the Equality Court, where such
matters of discrimination are heard since Sunali had
alleged discrimination by her school. The Equality Court
held that though a prima facie case for discrimination
had been made out, it could not be termed as ‘unfair’30
,
thus dismissing her case. Thereafter, the matter was
taken in appeal before the High Court which allowed her
appeal and held that asking Sunali to remove her nose
stud amounts to discrimination which is wrong. Both the
school and the administration went to the Constitutional
Court which heard the matter and again decided in
favour of Sunali.
58. As to the argument of the school that nose stud
was not central to Sunali’s religion or culture and it is
only an optional practice, this is what was said by the
Constitutional Court, the Highest Court of South Africa:
30 Para 14 at Page 14 of the Judgement
52
“86. The School further argued that the
nose stud is not central to Sunali’s
religion or culture, but it is only an
optional practice. I agree that the
centrality of a practice or a belief must
play a role in determining how far
another party must go to accommodate
that belief. The essence of reasonable
accommodation is an exercise of
proportionality. Persons who merely
appear to adhere to a religious and/or
cultural practice, but who are willing to
forego it if necessary, can hardly
demand the same adjustment from
others as those whose identity will be
seriously undermined if they do not
follow their belief. The difficult question
is how to determine centrality. Should we
enquire into centrality of the practice or
belief to the community, or to the
individual?
87. While it is tempting to consider the
objective importance or centrality of a
belief to a particular religion or culture in
determining whether the discrimination
is fair, that approach raises many
difficulties. In my view, courts should not
involve themselves in determining the
objective centrality of practices, as this
would require them to substitute their
judgement of the meaning of a practice
for that of the person before them and
often to take sides in bitter internal
disputes. This is true both for religious
and cultural practices. If Sunali states
that the nose stud is central to her as a
South Indian Tamil Hindu, it is not for the
Court to tell her that she is wrong
because others do not relate to that
religion or culture in the same way.”
53
59. What was also pleaded on behalf of the School was
that the nose stud after all is a cultural and not a
religious issue and therefore the infringement of any
right, if at all, is much less. This issue was dealt with as
follows:
“91. The next string of the School’s
centrality bow was that the infringement
of Sunali’s right to equality is less severe
because the nose stud is cultural rather
than a religious adornment. This was also
the basis originally relied upon by the
School for refusing the exemption and
why it could recognise the stud’s cultural
significance without granting Sunali an
exemption. To my mind the argument is
flawed. As stated above, religious and
cultural practices can be equally
important to a persons’ identity. What is
relevant is not whether a practice is
characterised as religious or cultural but
its meaning to the person involved.
92. The School also argued that if Sunali
did not like the Code, she could simply go
to another school that would allow her to
wear the nose stud. I cannot agree. In my
view the effect of this would be to
marginalise religions and cultures,
something that is completely inconsistent
with the values of our Constitution. As
already noted, out Constitution does not
tolerate diversity as a necessary evil, but
affirms it as one of the primary treasures
of our nation. There may, however, be
occasions where the specific factual
circumstances make the availability of
another school a relevant consideration in
searching for a reasonable
54
accommodation. However, there are no
such circumstances in this case and the
availability of another school is therefore
not a relevant consideration.”
60. Ultimately what was held is given below as follows:
“112. The discrimination has had a
serious impact on Sunali and, although
the evidence shows that uniforms serve
an important purpose, it does not show
that the purpose is significantly
furthered by refusing Sunali her
exemption. Allowing the stud would not
have imposed an undue burden on the
School A reasonable accommodation
would have been achieved by allowing
Sunali to wear the nose stud. I would
therefore confirm the High Court’s
finding of unfair discrimination.”
61. The other case, which was also relied by the
Karnataka High Court is Regina (SB) v. Governors of
Denbigh High School31
. Primarily the controversy was
that the school, allowed wearing of hijab, but what was
further insisted was wearing of jilbab (which is more or
less a burqa). Jilbab was denied and this led to the
litigation where the restriction of the school on jilbab
was upheld. In this background we must appreciate the
observations of the Court, it was said:
“But schools are different. Their task is to
educate the young from all the many and
diverse families and communities in this
country in accordance with the national
31 [2007] 1 AC 100
55
curriculum. Their task is to help all of
their pupils achieve their full potential.
This includes growing up to play whatever
part they choose in the society in which
they are living. The school’s task is also to
promote the ability of people of diverse
races, religions and cultures to live
together in harmony. Fostering a sense of
community and cohesion within the
school is an important part of that. A
uniform dress code can play its role in
smoothing over ethnic, religious and
social divisions. But it does more than
that. Like it or not, this is a society
committed, in principle and in law, to
equal freedom for men and women to
choose how they will lead their lives
within the law. Young girls from ethnic,
cultural or religious minorities growing up
here face particularly difficult choices:
how far to adopt or to distance
themselves from the dominant culture. A
good school will enable and support
them. This particular school is a good
school: that, it appears, is one reason why
Shabina Begum wanted to stay there. It is
also a mixed school. That was what led to
the difficulty. It would not have arisen in a
girls’ school with an all female staff.”
62. When a decision has to be made between school
discipline and cultural and religious rights of minorities
a balance has to be maintained. That is what was held.
Baroness Hale of Richmond while elaborating on this
issue referred to “Culture, Religion and Gender” (2003)
56
by Professor Frances Raday the exact Paragraph at 98
which reads like this:
“genuine individual consent to a
discriminatory practice or dissent from it
may not be feasible where these girls are
not yet adult. The question is whether
patriarchal family control should be
allowed to result in girls being socialised
according to the implications of veiling
while still attending public educational
institutions . . . A mandatory policy that
rejects veiling in state educational
institutions may provide a crucial
opportunity for girls to choose the
feminist freedom of state education over
the patriarchal dominance of their
families. Also for the families, such a
policy may send a clear message that the
benefits of state education are tied to the
obligation to respect women’s and girl’s
right to equality and freedom . . . On the
other hand, a prohibition of veiling
risks violating the liberal principle of
respect for individual autonomy and
cultural diversity for parents as well
as students. It may also result in
traditionalist families not sending
their children to the state
educational institutions. In this
educational context, implementation
of the right to equality is a complex
matter, and the determination of the
way it should be achieved depends
upon the balance between these two
conflicting policy priorities in a
specific social environment”
 (emphasis
supplied)
57
63. The Karnataka High Court has placed reliance upon
two US Judgements passed by the District Courts there,
that is Miller v. Gills32 and Christmas v. El Reno
Board of Education33. All the same the facts of these
cases are different and in none of the two cases the
action of the school authorities debarred students from
attending their classes. There is another judgement
relied upon by Karnataka High Court which is
Employment Division v. Smith34.This is a US
Supreme Court Judgement.
64. The facts of the case were quite different. The
issue being examined was whether the State of Oregon
was justified in denying unemployment benefits to
persons who had been dismissed from their jobs owing
to their consumption of “peyote,” which had been
classified as a ‘controlled substance’ (under the
Controlled Substances Act, 1970), when it was being
consumed as a part of religious beliefs. The
consumption of peyote was admittedly a criminal
offence. It was contended by the respondents that as it
32 315 F. Supp. 94 (N.D. Ill. 1969)
33 313 F. Supp. 618 (W.D. Okla. 1970)
34 494 US 872 (1990)
58
was only being consumed in pursuance of their religious
belief and they would not be liable to be subjected to
the applicable criminal law. This argument was rejected
and it was held that if certain conduct (such as
consumption of peyote), which is prohibited by law,
then there would be no federal right to engage in such
conduct. It was in this particular context of the
applicability of the criminal law on an individual for a
conduct already prohibited that such law was said to be
‘facially neutral.’ On this note, the following was stated:
“13. …We have never held that an
individual's religious beliefs excuse him
from compliance with an otherwise
valid law prohibiting conduct that the
State is free to regulate. On the
contrary, the record of more than a
century of our free exercise
jurisprudence contradicts that
proposition. As described succinctly by
Justice Frankfurter in Minersville School
Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586,
594-595, 60 S.Ct. 1010, 1012-1013, 84
L.Ed. 1375 (1940): "Conscientious
scruples have not, in the course of the
long struggle for religious toleration,
relieved the individual from obedience
to a general law not aimed at the
promotion or restriction of religious
beliefs. The mere possession of
religious convictions which contradict
the relevant concerns of a political
society does not relieve the citizen from
59
the discharge of political
responsibilities.”
65. Another question which the School Administration
and the State must answer in the present case is as to
what is more important to them: Education of a girl
child or Enforcement of a Dress Code! We have been
informed at the Bar by many of the Senior counsels
appearing for the Petitioners, that the unfortunate
fallout of the enforcement of hijab ban in schools in
Karnataka has been that some of the girl students have
not been able to appear in their Board examinations,
and many others were forced to seek transfer to other
schools, most likely madrasas, where they may not get
the same standard of education. This is for a girl child,
for whom it was never easy, in the first place, to reach
her school gate.
66. One of the best sights in India today, is of a girl
child leaving for her school in the morning, with her
school bag on her back. She is our hope, our future. But
it is also a fact, that it is much more difficult for a girl
child to get education, as compared to her brother. In
60
villages and semi urban areas in India, it is
commonplace for a girl child to help her mother in her
daily chores of cleaning and washing, before she can
grab her school bag. The hurdles and hardships a girl
child undergoes in gaining education are many times
more than a male child. This case therefore has also to
be seen in the perspective of the challenges already
faced by a girl child in reaching her school. The question
this Court would therefore put before itself is also
whether we are making the life of a girl child any better
by denying her education, merely because she wears a
hijab!
67. All the Petitioners want is to wear a hijab! Is it too
much to ask in a democracy? How is it against public
order, morality or health? or even decency or against
any other provision of Part III of the Constitution. These
questions have not been sufficiently answered in the
Karnataka High Court Judgement. The State has not
given any plausible reasons either in the Government
Order dated 5 February 2022, or in the counter affidavit
before the High Court. It does not appeal to my logic or
61
reason as to how a girl child who is wearing a hijab in a
classroom is a public order problem or even a law-andorder problem. To the contrary reasonable
accommodation in this case would be a sign of a mature
society which has learnt to live and adjust with its
differences. In his famous dissent delivered in United
States v. Schwimmer35 Justice Oliver Wendell Holmes
Jr., said as under:
“22. …if there is any principle of the
Constitution that more imperatively calls
for attachment than any other it is the
principle of free thought-not free thought
for those who agree with us but freedom
for the thought that we hate…”
68. A girl child has the right to wear hijab in her house
or outside her house, and that right does not stop at her
school gate. The child carries her dignity and her
privacy even when she is inside the school gates, in her
classroom. She retains her fundamental rights. To say
that these rights become derivative rights inside a
classroom, is wholly incorrect.
69. We live in a Democracy and under the Rule of Law,
and the Laws which govern us must pass muster the
35 279 US 644 (1929); Para 22
62
Constitution of India. Amongst many facets of our
Constitution, one is Trust. Our Constitution is also a
document of Trust. It is the trust the minorities have
reposed upon the majority. Commenting on the report of
the Advisory committee on minorities, Sardar Vallabh
Bhai Patel made a statement before the Constitute
Assembly on 24 May 1949, which should be referred
here. He said, “…. it is not our intention to commit the
minorities to a particular position in a hurry. If they
really have to come honestly to the conclusion that in
the changed conditions of this country, it is in the
interest of all to lay down real and genuine foundations
of a secular State, then nothing is better for the
minorities than to trust the good- sense and sense of
fairness of the majority, and to place confidence in
them. So also, it is for us who happened to be in a
majority to think about what the minorities feel, and
how we in their position would feel if we were treated in
the manner in which they are treated.
36”
70. The question of diversity, raised by the Petitioners
before the Karnataka High Court, was not considered by
36 25th May, 1949: Constituent Assembly Debates, Volume VIII
63
the Court since it was thought to be a ‘hollow rhetoric,’
and the submissions made by the lawyers on ‘unity and
diversity,’ were dismissed as an “oft quoted platitude.”
This is what was said, “Petitioners’ contention that a
class room should be a place for recognition and
reflection of diversity of society, a mirror image of the
society (socially and ethically) in its deeper analysis is
only a hollow rhetoric, ‘unity in diversity’ being the oft
quoted platitude….
37 ”
71. The question of diversity and our rich plural culture
is, however, important in the context of our present
case. Our schools, in particular our Pre-University
colleges are the perfect institutions where our children,
who are now at an impressionable age, and are just
waking up to the rich diversity of this nation, need to be
counselled and guided, so that they imbibe our
constitutional values of tolerance and accommodation,
towards those who may speak a different language, eat
different food, or even wear different clothes or
apparels! This is the time to foster in them sensitivity,
empathy and understanding towards different religions,
37 Para XIV(v) at Page 101 of Impugned Judgement
64
languages and cultures. This is the time when they
should learn not to be alarmed by our diversity but to
rejoice and celebrate this diversity. This is the time
when they must realise that in diversity is our strength.
72. The National Education Policy 2020, of the
Government of India underlines the need for inculcating
the values of tolerance and understanding in education
and making the children aware of the rich diversity of
this country. The Principles of the Policy state that ‘It
aims at producing engaged, productive, and
contributing citizens for building an equitable, inclusive,
and pural society as envisaged by our Constitution.’
73. In the case of Aruna Roy v. Union of India38 this
Court had elaborated on the Constitutional Values of
religious tolerance and diversity of culture and its need
in our education system. It was observed as follows by
Justice Dharmadhikari in the concurring opinion
authored by him:
“25. …These need to be inculcated at
appropriate stages in education right
from the primary years. Students have
to be given the awareness that the
essence of every religion is common,
only the practices differ…”
38 (2002) 7 SCC 368
65
At another place in their judgement the court has said as
under:
“86. …The complete neutrality towards
religion and apathy for all kinds of
religious teachings in institutions of the
State have not helped in removing
mutual misunderstandings and
intolerance inter se between sections of
the people of different religions, faiths
and belief. ‘Secularism’, therefore, is
susceptible to a positive meaning that
is developing and understanding and
respect towards different religion.”
74. A Constitutional Bench of this Court in Navtej
Singh Johar and Ors. v. Union of India, Ministry of
Law and Justice39 while speaking on diversity, dissent,
liberty and accommodation spoke the following while
delivering concurring opinions:-
“375. The Constitution brought
about a transfer of political power.
But it reflects above all, a vision of a
society governed by justice.
Individual liberty is its soul. The
constitutional vision of justice
accommodates differences of
culture, ideology and orientation.
The stability of its foundation lies in
its effort to protect diversity in all its
facets; in the beliefs, ideas and ways
of living of her citizens. Democratic
as it is, out Constitution does not
demand conformity. Nor does it
contemplate the mainstreaming of
culture. It nurtures dissent as the
39 (2018) 10 SCC 1
66
safety valve for societal conflict. Our
ability to recognise others who are
different is a sign of our own
evolution. We miss the symbols of a
compassionate and humane society
only at our peril40.”
75. In the case of St. Stephen’s College v.
University of Delhi41 while delivering the majority
opinion on behalf of the bench, Justice K Jagannatha
Shetty held as follows:
“81. Even in practice, such claims
are likely to be met with
considerable hostility. It may not be
conducive to have a relatively
homogeneous society. It may lead to
religious bigotry which is the bane of
mankind. In the nation building with
secular character sectarian schools
or colleges segregated faculties or
universities for imparting general
secular education are undesirable
and they may undermine secular
democracy. They would be
inconsistent with the central concept
of secularism and equality
embedded in the Constitution. Every
educational institution irrespective of
community to which it belongs is a
‘melting pot’ in our national life. The
students and teachers are the
critical ingredients. It is there they
develop respect for, and tolerance
of, the cultures and beliefs of others.
It is essential therefore, that there
should be proper mix of students of
40 Para 375, Concurring Opinion by Dr. Justice D.Y. Chandrachud, (supra)
41 (1992) 1 SCC 558
67
different communities in all
educational institutions42.”
76. It is the Fundamental Duty of every citizen, under
Part IV A of the Constitution of India to ‘value and
preserve the rich heritage of our composite culture.’
43
77. Adverting to the Statutory Provisions applicable in
this case, namely, the Karnataka Education Act, 1983
which is the source of the G.O. dated 05.02.2022 speaks
inter-alia that the curriculum in schools and colleges
must promote the rich and composite culture of our
country. Section 7 of the above Act prescribes that one
of the curriculum in the school can be “moral and
ethical education” and the it further says that the
school should also “to promote harmony and the spirit
of common brotherhood amongst all the people of India
transcending religious, linguistic, and regional or
sectional diversities to renounce practices derogatory to
the dignity of women”
78. The preamble to the Constitution secures to all its
citizens “LIBERTY of thought, expression, belief, faith
and worship.” It is the Preamble again which seeks to
promote among them all, “FRATERNITY assuring the
42 Para 81 (supra)
43 Article 51A(f) of the Constitution of India
68
dignity of the individual and the unity and integrity of
the Nation.”
The Government Order dated 5 February, 2022, and the
restrictions on the wearing of hijab, also goes against
our constitutional value of fraternity and human dignity.
Liberty, equality, fraternity, the triptych of the French
Revolution is also a part of our Preamble. It is true that
whereas liberty and equality are well established,
properly understood, and recognized concepts in politics
and law, fraternity for some reasons has largely
remained incognito. The framers of our Constitution
though had a different vision. Fraternity had a different,
and in many ways a much larger meaning with the main
architect of our Constitution, Dr Ambedkar. In his own
words: “my social philosophy may be said to be
enshrined in these words: liberty, equality and fraternity.
Let no one, however, say that I have borrowed my
philosophy from the French Revolution. I have not. My
philosophy has roots in religion and not in political
science. I have derived them from my Master, the
Buddha
44
.” Dr Ambedkar gave the highest place to
44Ministry of Social Justice and Empowerment, Government of India, Dr. Babasaheb Ambedkar: Writings and
Speeches, 2020 (Vol XVII, Part III); Preface
Accessed at https://www.mea.gov.in/Images/CPV/Volume17_Part_III.pdf
69
fraternity as it was the only real safeguard against the
denial of liberty or equality. “These principles of liberty,
equality and fraternity are not to be treated as separate
items in trinity. They form a union of trinity in the sense
that to diverse one from the other is to defeat the very
purpose of democracy. Liberty cannot be divorced from
equality; equality cannot be divorced from liberty. Nor
can liberty and equality be divorced from fraternity.
Without equality, liberty would produce a supremacy of
the few over the many. Equality without liberty would kill
individual initiative. Without fraternity liberty and
equality could not become a natural course of things.
45 ”
79. Fraternity, which is our Constitutional value, would
therefore require us to be tolerant, and as some of the
learned Counsels would argue to be, reasonably
accommodating, towards the belief and religious
practices of others. We should remember the appeal
made by Justice O. Chinnappa Reddy in Bijoe
Emmanuel (supra) “Our tradition teaches tolerance;
our philosophy preaches tolerance; our Constitution
practices tolerance; let us not dilute it.”
45 Speech of Dr. Ambedkar on 25th November, 1949: Constituent Assembly Debates, Volume XI
70
80. Under our Constitutional scheme, wearing a hijab
should be simply a matter of Choice. It may or may not
be a matter of essential religious practice, but it still is,
a matter of conscience, belief, and expression. If she
wants to wear hijab, even inside her class room, she
cannot be stopped, if it is worn as a matter of her
choice, as it may be the only way her conservative
family will permit her to go to school, and in those
cases, her hijab is her ticket to education.
81. The unfortunate fallout of the hijab restriction would
be that we would have denied education to a girl child.
A girl child for whom it is still not easy to reach her
school gate. This case here, therefore, has also to be
seen in the perspective of the challenges already faced
by a girl child in reaching her school. The question this
Court would put before itself is also whether we are
making the life of a girl child any better by denying her
education merely because she wears a hijab!
82. Our Constitution has visualised a just society and it is
for this reason that the first virtue that is secures for the
71
citizens is ‘Justice’ which is the first of our Preambular
promises. Rawls in his ‘A Theory of Justice’ writes: “…
Justice is the first virtue of social institutions, as truth is
of system of thoughts…” “…Therefore in a just society
the liberties of equal citizenship are taken as settled,
the rights secured by justice are not subject to political
bargaining or to the calculus of social interest…” 46
83. By asking the girls to take off their hijab before they
enter the school gates, is first an invasion on their
privacy, then it is an attack on their dignity, and then
ultimately it is a denial to them of secular education.
These are clearly violative of Article 19(1)(a), Article 21
and Article 25(1) of the Constitution of India.
84. Consequently, I allow all the appeals as well as the
Writ Petitions, but only to the extent as ordered below:
a) The order of the Karnataka High Court dated March
15, 2022, is hereby set aside;
b) The G.O. dated February 5, 2022 is hereby
quashed and,
46 Rawls, John (1921): A Theory of Social Justice, Rev. Ed.; The Belknap Press of the Harvard University
Press, Cambridge, Massachusetts
72
c) There shall be no restriction on the wearing of
hijab anywhere in schools and colleges in
Karnataka.
 .…….............................J.
 [SUDHANSHU DHULIA]
New Delhi,
October 13, 2022.
73
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO. 7095 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 5236 OF 2022)
AISHAT SHIFA .....APPELLANT(S)
VERSUS
THE STATE OF KARNATAKA & ORS. .....RESPONDENT(S)
W I T H
WRIT PETITION (CIVIL) NO. 120 OF 2022
CIVIL APPEAL NO. 7075 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15405 OF 2022)
CIVIL APPEAL NO. 6957 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 9217 OF 2022)
CIVIL APPEAL NOS. 7078-7083 OF 2022
(ARISING OUT OF SLP (CIVIL) NOS. 15407-15412 OF 2022)
CIVIL APPEAL NO. 7077 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15419 OF 2022)
CIVIL APPEAL NO. 7074 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15403 OF 2022)
CIVIL APPEAL NO. 7076 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15418 OF 2022)
CIVIL APPEAL NO. 7072 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 11396 OF 2022)
2
CIVIL APPEAL NO. 6934 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 7794 OF 2022)
CIVIL APPEAL NO. 7084 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15402 OF 2022)
CIVIL APPEAL NO. 7085 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15416 OF 2022)
CIVIL APPEAL NO. 7092 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15404 OF 2022)
CIVIL APPEAL NO. 7088 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15414 OF 2022)
WRIT PETITION (CIVIL) NO. 95 OF 2022
CIVIL APPEAL NO. 7087 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15413 OF 2022)
CIVIL APPEAL NO. 7090 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15401 OF 2022)
CIVIL APPEAL NO. 7096 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 5690 OF 2022)
CIVIL APPEAL NO. 7091 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15399 OF 2022)
CIVIL APPEAL NO. 7089 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15417 OF 2022)
CIVIL APPEAL NO. 7086 OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 15400 OF 2022)
CIVIL APPEAL NO. 7069 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17648 OF 2022
(DIARY NO. 21273 OF 2022)
3
CIVIL APPEAL NO. 7098 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17656 OF 2022
(DIARY NO. 9117 OF 2022)
CIVIL APPEAL NO. 7093 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17653 OF 2022
(DIARY NO. 25867 OF 2022)
CIVIL APPEAL NO. 7099 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17663 OF 2022
(DIARY NO. 11577 OF 2022)
A N D
CIVIL APPEAL NO. 7070 OF 2022
ARISING OUT OF SLP (CIVIL) NO. 17647 OF 2022
(DIARY NO. 21272 OF 2022)
O R D E R
In view of the divergent views expressed by the
Bench, the matter be placed before Hon’ble The Chief
Justice of India for constitution of an appropriate Bench.
……..........................J.
 [ HEMANT GUPTA ]
……..........................J.
 [ SUDHANSHU DHULIA ]
New Delhi;
OCTOBER 13, 2022.

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर