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

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)

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)

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

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.

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

“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

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. 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

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

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

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

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

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:-

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-

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

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’

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,-

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

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

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’

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.

A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi,

Mr. Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave,

learned Senior Advocates and Mr. Prashant Bhushan, Ms. Kirti

Singh, Mr. Rishad Ahmed Chowdhury, Mr. Shoeb Alam, Mr.

Rahmatullah Kotwal, Ms. Thulasi K. Raj, Mohd. Nizamuddin

Pasha, learned counsels have assisted the Court in this matter

on behalf of the appellants; whereas, Mr. Tushar Mehta, Solicitor

General, Mr. K.M. Natraj, Additional Solicitor General, Mr.

Prabhuling Navadgi, Advocate General for the State of

Karnataka, Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu,

learned Senior Advocates, argued on behalf of the Respondents.

The arguments covered various issues which will be dealt with

hereinafter at appropriate stages.

23. We have heard learned counsels for the parties at length. I find

that the following questions arise for consideration in the present

appeals:

“(i) Whether the appeals should be heard along with

Kantaru Rajeevaru (Right to Religion, In Re-9J)

and/or should the present appeals be referred to the

Constitution Bench in terms of Article 145(3) of the

Constitution?

(ii) Whether the State Government could delegate its

decision to implement the wearing of uniform by the

College Development Committee or the Board of

Management and whether the Government Order

insofar as it empowers a College Development

Committee to decide on the restriction/prohibition or

otherwise on headscarves is ex facie violative of

Section 143 of the Act?

(iii) What is ambit and scope of the right to freedom

of ‘conscience’ and ‘religion’ under Article 25?

(iv) What is the ambit and scope of essential

religious practices under Article 25 of the

Constitution?

(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

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

particular practice would be qualified as an integral, essential

part of religion.

25. It was also argued that the present case involves a substantial

question of law relating to interpretation of the Constitution,

therefore, ought to be referred to a Constitution Bench in terms

of Article 145(3) of the Constitution.

26. It is noted that the review in Kantaru Rajeevaru (Right to

Religion, In Re-9J.) is to consider much wider questions. The

argument that the matter should be referred to a larger Bench

to be heard along with such referred cases does not warrant

consideration. The questions referred to the larger Bench relate

to power of judicial review in the matters of essential religious

practices. But the said question need not be examined in the

present matter as the issue herein is whether a religious practice,

which may be an essential religious practice, can be regulated

by the State in a secular institution. Therefore, I do not find it

necessary to tag the present appeals along with Kantaru

Rajeevaru.

27. The argument that the present appeals involve a substantial

question of law as to the interpretation of the Constitution, and

thus should be referred to the Bench of Five Judges in terms of

Article 145(3) of the Constitution is not tenable. Reliance is

placed on a 9-Judges bench judgment reported as K.S.

Puttaswamy and Anr. v. Union of India & Ors.14, wherein

this Court held “When a substantial question as to the

interpretation of the Constitution arises, it is this Court and this

Court alone under Article 145(3) that is to decide what the

interpretation of the Constitution shall be, and for this purpose,

the Constitution entrusts this task to a minimum of 5 Judges of

this Court”.

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

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

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

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

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

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

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

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

could be claimed under Article 358, of the Constitution,

since the order was not supported by any valid

legislation.”

40. The aforementioned judgment is in respect of the statute

enacted by a State Legislature, the provision of which was found

to be invalid. The issue raised in the aforesaid case has no parity

with the facts of the present case.

41. In Bishambhar Dayal Chandra Mohan, the State Government

contended that the impugned teleprinter message dated March

31, 1981 was in the nature of an executive instruction issued by

the State Government under its powers under Article 162 of the

Constitution for the due observance of the provisions of the U.P.

Foodgrains Dealers (Licensing and Restriction on Hoarding)

Order, 1976 and the Uttar Pradesh Foodgrains (Procurement and

Regulation of Trade) Order, 1978. It was the stand of the State

that no person can carry on business in foodgrains as a dealer

or as a commission agent, except under and in accordance with

the terms and conditions of a valid licence issued in that behalf

under the two orders. In these circumstances, this Court held as

under:

“33. Under Article 19(1)(g) of the Constitution, a citizen

has the right to carry on any occupation, trade or business

and the only restriction on this unfettered right is the

authority of the State to make a law imposing reasonable

restrictions under clause (6)............

41. There still remains the question whether the seizure

of wheat amounts to deprivation of property without the

authority of law. Article 300-A provides that no person

shall be deprived of his property save by authority of law.

The State Government cannot while taking recourse to

the executive power of the State under Article 162,

deprive a person of his property. Such power can be

exercised only by authority of law and not by a mere

executive fiat or order. Article 162, as is clear from the

opening words, is subject to other provisions of the

Constitution. It is, therefore, necessarily subject to Article

300-A. The word “law” in the context of Article 300-A

must mean an Act of Parliament or of a State legislature,

a rule, or a statutory order, having the force of law, that

is positive or State made law…”

42. The writ petitions filed by the dealers were dismissed. In the

aforesaid case, the restriction was put by an executive order,

which was found to be a reasonable restriction in terms of Article

19(6) of the Constitution. Even the said judgment does not aid

the appellants and has no applicability to the facts of the present

case.

43. Furthermore, reliance on a recent judgment of this Court

reported as Pharmacy Council of India is unfound as it has no

parity with the facts of the present case. The Pharmacy Council

of India, an authority created under the Pharmacy Act, 1948,

resolved on 17.7.2019 to put a moratorium on the opening of

new pharmacy colleges for running Diploma as well as Degree

courses in pharmacy for a period of five years. The argument

raised by the appellant was that Sections 3, 10 and 12 of the

Pharmacy Act confer the power to regulate, therefore, such

power would include the power to prohibit also. This Court

negated such an argument and held as under:

“55. Since we have held that the

Resolutions/communications dated 17th July 2019 and

9th September 2019 of the Central Council of the

appellant-PCI, which are in the nature of executive

instructions, could not impose restrictions on the

fundamental right to establish educational institutions

under Article 19(1)(g) of the Constitution of India, we do

not find it necessary to consider the submissions

advanced on other issues. We find that the

Resolutions/communications dated 17th July 2019 and

9th September 2019 of the Central Council of the

appellant-PCI are liable to be struck down on this short

ground.”

44. A perusal of the above judgment shows that an authority under

the Act had put a moratorium on the opening of new pharmacy

colleges, 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

the properties which were the subject matter of the writ petition.

This Court held as under:

“13. It is clear, therefore, from the portion of the preface

extracted above, that Article 182 of the Code has no

greater sanction than an administrative order or rule, and

is not based on any statutory authority or other authority

which could give it the force of law. Naturally, therefore,

the learned Solicitor-General, with his usual fairness,

conceded that the article relied upon by the respondents

as having the force of law, has no such force, and could

not, therefore, deprive the petitioners of their rights in the

properties aforesaid.”

46. "Law”, as contemplated under Articles 19(2) and 25(2), falls

within Part III of the Constitution. Therefore, law, as defined

under Article 13(3), would include any ordinance, order, bye-law,

rule, regulation, notification, custom or usage in the territory of

India to have the force of law. The order issued by the State

Government would thus be a law within the meaning of Article

13(2) read with Article 13(3)(a), which is a valid exercise of

power under Article 19(1)(a) read with Article 19(2), and Article

25(1) read with Article 25(2) of the Constitution.

47. The Government Order relates to the powers conferred on the

executive under Section 133 of the Act and rule-making power

of the State under Article 162 of the Constitution. The said

Government Order does not run contrary to any of the provisions

of the Act and the rules framed thereunder. Therefore, the

executive was well within its jurisdiction to ensure that the

students come in the uniform prescribed by the College

Development Committee.

48. The College Development Committee so constituted consists of

Member of the Legislative Assembly, representatives of the

students, faculty members etc. Therefore, such authority is a

representative body of the students and teachers including the

Member of the Legislative Assembly and Principal of the College

as Member Secretary. Such Committee cannot be said to be

beyond the scope of Section 143 of the Act. Such authority

established in exercise of the powers vested with the State

Government is not in contravention of any of the provisions of

the statute. In terms of Article 162 of the Constitution, the State

Government in exercise of its executive power could create the

College Development Committee as such Committee does not

contravene any of the provisions of the statute or the rules

framed thereunder.

49. In view of the above, I find that the State Government has the

power to constitute a College Development Committee by

notification dated 31.1.2014 in terms of Section 143 of the Act.

The State Government could confer its power to be exercised by

such office/authority subordinate to the State Government. It is

noted that the word ‘authority’ has not been defined under the

Act. The authority contemplated by the Act could be a non-

statutory authority such as of a person or a group of persons

who may be authorized to exercise powers under Section 143 of

the Act.

50. Further, it is well settled that executive powers can be used to

supplement the statutory rules. This Court in a judgment

reported as Sant Ram Sharma v. State of Rajasthan & Ors.22

held that it is true that Government cannot amend or supersede

statutory rules by administrative instructions, but if the rules are

silent on any particular point, the Government can fill up the

gaps and supplement the rules and issue instructions not

inconsistent with the rules already framed thereunder. This Court

in a judgment reported as Union of India & Anr. v. Ashok

Kumar Aggarwal23 held as under:

“59. The law laid down above has consistently been

followed and it is a settled proposition of law that an

authority cannot issue orders/office

memorandum/executive instructions in contravention of

the statutory rules. However, instructions can be issued

only to supplement the statutory rules but not to supplant

it. Such instructions should be subservient to the

statutory provisions. (Vide Union of India v. Majji

Jangamayya [(1977) 1 SCC 606 : 1977 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

51. The Preamble of the Act aims towards fostering harmonious

development of the mental and physical faculties of students and

cultivating a scientific and secular outlook through education.

52. The curricula under Section 7(2) of the Act is to promote

harmony and the spirit of common brotherhood amongst all the

people of India transcending religious, linguistic and regional or

sectional diversities, to renounce practices derogatory to the

dignity of women, to value and preserve the rich heritage of our

composite culture, to develop scientific temper, humanism and

the spirit of inquiry and reform and to strive towards excellence

in all spheres of individual and collective activity, so that the

nation constantly rises to higher levels of endeavor and

achievement. The said provision is substantially pari materia

with the fundamental duties enumerated in Part IV-A of the

Constitution inserted by 42nd Amendment, required to be

followed by the institutions covered under the Act.

53. The said provisions show that the mandate of the statute is to

renounce sectional diversities, to develop humanism and to

cultivate scientific and secular outlook. The sectarian approach

that certain students will carry their religious beliefs to secular

schools run by the State would be antithesis of the mandate of

the statute. All students need to act and follow the discipline of

the school. Out of the many steps required to ensure uniformity

while imparting education, one of them is to wear the uniform

dress without any addition or subtraction to the same. Any

modification to the uniform would cease to be the uniform,

defeating the very purpose of prescribing under Rule 11 and as

mandated by the College Development Committee.

54. Mr. Dushyant Dave referred to an extract which appears to be

from a booklet published by the Department of Pre-University

Education containing guidelines for the year 2021-2022. It is

contended that such guidelines have contemplated that uniform

is not mandatory and that some College Principals and

Management Committee have imposed uniforms as mandatory,

which is illegal. The relevant clause reads as under:

“Uniform is not mandatory for students studying in Pre

University college under Government / Pre University

Education Department / Education Act. But some college

principals and management committee members have

imposed uniforms as mandatory which is illegal. Any

violation of the foregoing instructions will be taken

seriously.”

55. In respect of the said contention, I find that the students were

following uniform prescribed by the College Development

Committee. It is not the case of any of the students that they

were not wearing uniform for the academic session 2021-22.

The only claim raised was in relation to right to wear the

headscarf during the academic year 2021-22, the year in

controversy, and to which the guidelines relate. The recognized

educational institution in terms of Section 2(30) of the Act

means an educational institution recognized under the Act and

includes one deemed to be recognized thereunder. The

recognition of educational institutions is contemplated by

Section 36 of the Act whereas the educational institutions

established and run by the State Government or by the authority

sponsored by the Central or the State Government or by a local

authority and approved by the competent authority shall be

deemed to be the educational institution recognized under the

Act. The students are not disputing the mandate to wear

uniform. It appears that the guidelines have been made part of

the brochure without taking into consideration Rule 11 of the

Rules which contemplates that every recognised educational

institution may specify its own set of uniform. Therefore, the

guidelines run counter to the statutory Rule 11 framed in

exercise of the powers conferred under Section 145 of the Act.

Thus, the uniform, having been prescribed in terms of the Act

and the rules framed thereunder, the guidelines to the contrary

are non-est and in any case had not been followed during the

academic year in question.

56. The Government Order dated 5.2.2022 contemplates that the

prescribed uniform should be followed. It necessarily excludes all

religious symbols visible to naked eye. The argument that the

students wear Rudraksha or a Cross is mentioned only to deal

with an argument so raised. Anything worn by the students

under his/her shirt cannot be said to be objectionable in terms

of the Government Order issued.

57. In view of the above enunciation of law, I do not find that the

constitution of the College Development Committee contravenes

any of the provisions of the Act or the Rules made thereunder or

that the regulation of uniform by such Committee is beyond its

scope.

Question (iii)- What is the ambit and scope of right to freedom of

‘conscience’ and ‘religion’ under Article 25?

58. At the outset, it is pertinent to mention that the Constitution

does not define the term ‘Religion’, though it is used in Articles

15, 16, 25, 26, 27, 28 and 30. The Articles which are under

consideration for the purpose of present appeals read thus:

“14. Equality before law.—The State shall not deny to any

person equality before the law or the equal protection of

the laws within the territory of India.

15. Prohibition of discrimination on grounds of religion,

race, caste, sex or place of brith.—(1) The State shall not

discriminate against any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race,

caste, sex, place of birth or any of them, be subject to

any disability, liability, restriction or condition with regard

to—

(a) access to shops, public restaurants, hotels and places

of public entertainment; or

(b) 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

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

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.”

63. Mr. Kamat also referred to the proposed amendment moved by

Mr. Tajamul Husain on 3rd December, 1948 proposing an

amendment to the following effect:

“No person shall have any visible sign or mark or name,

and no person shall wear any dress whereby his religion

may be recognised.”

64. The argument raised is that since the amendment was not

accepted, therefore, the citizens have a right to have visible sign

mark or name or dress so that their religion may be recognized.

Though the amendment was not moved, but the fact that such

discussion had taken place in the Constituent Assembly shows

that the Constituent Assembly was aware of wearing of different

clothing by the people of India which the member was

suggesting to be not carried out. Since the Constitution is silent

about the clothes to be worn by the citizens, therefore, the

concern shown by a member of the Constituent Assembly should

not be put under the carpet. In fact, Mr. Tajamul Husain further

raised an argument as under:

“Mr. Tajamul Husain: I wish to point out that religion is

a private affair between man and his God. It has no

concern with anyone else in the world. What is the religion

of others is also no concern of mine. Then why have

visible signs by which one's religion may be recognised?

You will find, Sir, that in all civilized countries—and

civilized countries now-a-days are the countries in Europe

and America—there is no visible sign or mark by which a

man can be recognised as to what religion he professes.

xx 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

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

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

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

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,

the College Development Committee, Udupi, decided that

students must not wear hijab in classrooms whereas the

Kundapura Pre-University College resolved it on 2.2.2022. There

was a counter-reaction for the demands raised. It is in these

circumstances that the Government issued the impugned order.

76. It is contended that such directions were issued to the

colleges/institutions and not to the individual students as per the

mandate of the Act. The Preamble of the Act is to provide for the

planned development of educational institutions, inculcating

healthy educational practice, maintenance and improvement in

the standards of education, better organization, discipline and

control over educational institutions so as to cultivate a scientific

and secular outlook through education. Section 133(2) of the Act

empowers the State Government to give directions to any

educational institution as in its opinion are necessary or

expedient for carrying out the purposes of the Act. Therefore,

the Government Order was issued to direct the

colleges/institutions to ensure that wherever uniform is

mandated by the College Development Committee or the Board

of Management, it should be worn. But if such uniform is not

mandated, the students should wear clothes which are in the

interest of unity, equality and public order. Therefore, the circular

was issued to the colleges to ensure compliance of norm of

uniform in a non-discriminatory manner, irrespective of any

religious faith of the students.

77. The legality of Rule 11 of the Rules is not under challenge. In

terms of the said Rule, the educational institutions have a right

to prescribe a uniform to the students attending the said school.

The scope of judicial review of the decisions of the educational

institutions vis-a-vis its pupil is narrower than a purely

administrative action. Reference was made to T.M.A Pai

Foundation wherein it was held as under:

“64. An educational institution is established only for the

purpose of imparting education to the students. In such

an institution, it is necessary for all to maintain discipline

and abide by the rules and regulations that have been

lawfully framed. The teachers are like foster parents who

are required to look after, cultivate and guide the students

in their pursuit of education. The teachers and the

institution exist for the students and not vice versa. Once

this principle is kept in mind, it must follow that it

becomes imperative for the teaching and other staff of an

educational institution to perform their duties properly,

and for the benefit of the students.........”

78. In the matters of campus discipline of the educational

institutions, the Court does not substitute its own views in place

of the school authority except in a case of manifest injustice or

to interfere with a decision which does not pass the test of

Wednesbury reasonableness. This Court in a judgment reported

as Chairman, J & K State Board of Education v. Feyaz

Ahmed Malik30, held as under:

“20. .............. From the discussions in the impugned

judgment, it is clear that the High Court has taken upon

itself the task of finding out a scheme to tackle the

problem of mass malpractice in examination. In our

considered view the approach of the High Court in the

matter is erroneous and this has vitiated the judgment. In

matters concerning campus discipline of educational

institutions and conduct of examinations the duty is

primarily vested in the authorities in charge of the

institutions. In such matters the court should not try to

substitute its own views in place of the authorities

concerned nor thrust its views on them. That is not to say

that the court cannot at all interfere with the decisions of

the authorities in such matters. The court has undoubtedly

the power to intervene to correct any error in complying

with the provisions of the rules, regulations or notifications

and to remedy any manifest injustice being perpetrated

on the candidates. ................”

79. In Ahmedabad St. Xavier’s College Society & Anr. v. State

of Gujarat & Anr.31, it was held that the educational institutions

are temples of learning and thus discipline is required to be

maintained between the teacher and the taught.

“30. Educational institutions are temples of learning. The

virtues of human intelligence are mastered and harmonised

by education. Where there is complete harmony between the

teacher and the taught, where the teacher imparts and the

student receives, where there is complete dedication of the

teacher and the taught in 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

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

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

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

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

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

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

person in exercise of his freedom of conscience or his

freedom to profess, practise and propagate religion. For

example, a person cannot propagate his religion in such a

manner as to denigrate another religion or bring about

dissatisfaction amongst people.”

89. The object of the Government Order was to ensure that there is

parity amongst the students in terms of uniform. It was only to

promote uniformity and encourage a secular environment in the

schools. This is in tune with the right guaranteed under Article

14 of the Constitution. Hence, restrictions on freedom of religion

and conscience have to be read conjointly along with other

provisions of Part III as laid down under the restrictions of

Article 25(1).

Question (iv) - What is the ambit and scope of essential religious

practices under Article 25 of the Constitution?

90. The appellants have contended that wearing of a headscarf is an

essential religious practice followed by the women following

Islam since time immemorial. It is averred that the same has

been provided for in their religious scriptures and thus is

essential to the religion. The argument is that the impugned

Government Order impinges upon their right of wearing

headscarf as an essential religious practice, and is thus violative

of the right guaranteed under Article 25 of the Constitution.

91. To rebut the said argument of essential religious practice, Mr.

Tushar Mehta relied upon a judgment of this Court reported as

Commissioner of Police & Ors. v. Acharya

Jagadishwarananda Avadhuta & Anr.36 wherein, this Court

held that essential part of a religion means the core beliefs upon

which a religion is founded. It is upon the cornerstone of

essential parts or practices that the superstructure of a religion

is built, without which a religion will be no religion. The test to

determine whether a part or practice is essential to a religion is

to find out whether the nature of the religion would be changed

without that 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)

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

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

“(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

(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

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

probation, and we must take our individual,

domestic, and social life all contribute to our

holiness, so that we can get the real success and

bliss which is the aim of our spiritual endeavor.(R).”

Surah 33 Verse 36

36. It is not fitting for a Believer, man or woman,

when a matter has been decided by Allah and His

Messenger to have any option about their

decision:(3721) if any one disobeys Allah and His

Messenger, he is indeed on a clearly wrong Path.

3721 We must not put our own wisdom in

competition with Allah’s wisdom. Allah’s decree is

often known to us by the logic of facts. We must

accept it loyally, and do the best we can to help in

our own way to carry it out. We must make our will

consonant to Allah’s Will. (R).”

100. The students in one of the writ petitions before the High Court

referred to the following verses from the Holy Quran. Such

verses from the Book “The Glorious Quran” by Yusuf Ali read as

under:

“Surah 34 Verse 31

31. The Unbelievers say: “We shall neither believe

in this scripture nor in (any) that (came) before it.”

(3834) Couldst thou but see when the wrong-doers

will be made to stand before their Lord, throwing

back the word (of blame)(3835) on one another!

Those who had been despised will say to the

arrogant ones: (3836) “Had it not been for you, we

should certainly have been believers!”

3834 To the Pagans all scriptures are taboo,

whether it be the Qur’an or any Revelation that

came before it. The people of the Book

despised the Pagans, but in their arrogant

assumption of superiority, prevented them, by

their example, from accepting the latest and

most universal Scripture when it came in the

form of the Qur’an. This relative position of

men who fancy themselves on their

knowledge, and men whom they despise but

exploit and mislead, always exists on this

earth. I have mentioned the people of the Book

and the Pagan Arabs merely by way of

illustration.

3835 One disbelief is as bad as another. There

is little to choose between them. But when the

final account will be taken, there will be mutual

recriminations between the one and the other.

3836 The Pagans will naturally say to the

people of the Book; ‘You misled us; you had

previous Revelations, and you should have

known how Allah sent His Messengers; had it

not been for your bad example, we should

have received Allah’s Revelation and become

Believers’. Or the humble followers will say this

to their leaders, or those less gifted will say to

those by whom they were misled and

exploited. The dichotomy is between such as

pretentiously held their heads high in the world

and such as they profited by but held in

contempt.

Surah 33 Verse 59

59. O Prophet! Tell thy wives and daughters, and

the believing women, (3764) that they should cast

their outer garments over (3765) their persons

(when abroad): that is most convenient, that they

should be known (3766) (as such) and not

molested. And Allah is Oft-Forgiving, (3767) Most

Merciful.

3764 This is for all Muslim women, those of

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

They were asked to cover themselves with

outer garments when walking around. (R).

3765 J ilbab, plural Jalabib: an outer garment:

a long gown covering the whole body, or a

cloak covering the neck and bosom.

3766 The object was not to restrict the liberty

of women but to protect them from harm and

molestation. In the East and the West a

distinctive public dress of some sort or another

has always been a badge of honour or

distinction, both among men and women. This

can be traced back to the earliest civilisations.

Assyrian Law in its palmiest days (say, 7th

Century B.C.), enjoined the veiling of married

women and forbade the veiling of slaves and

women of ill fame: see Cambridge Ancient

History, III, 107.

3767 That is, if a Muslim woman sincerely

tries to observe this rule, but owing to human

weakness falls short of the ideal, then “Allah is

Oft-Forgiving, Most Merciful” (Cf.24:30-31).

(R).

Surah 7 Verse 26

26. O ye Children of Adam! We have bestowed

raiment (1008) upon you to cover your shame, as

well as to be an adornment to you. But the raiment

of righteousness, - that is the best. Such are among

the Signs of Allah, that they may receive

admonition!

1008 There is a double philosophy of clothes

here, to correspond with the double

signification of verse 20 above, as explained in

n. 1006. Spiritually, Allah created man “bare

and alone” (6:94): the soul in its naked purity

and beauty knew no shame because it knew no

guilt: after it was touched by guilt and soiled by

evil, its thoughts and deeds became its clothing

and adornments, good or bad, honest or

meretricious, according to the inner motives

which gave them colour. So in the case of the

body: it is pure and beautiful, as long as it is

not defiled by misuse; its clothing and

ornaments may be good or meretricious,

according to the motives in the mind and

character; if good, they are the symbols of

purity and beauty; but the best clothing and

ornament we could have comes from

righteousness, which covers the nakedness of

sin, and adorns us with virtues. (R).”

101. The Hedaya, commentary on Islamic Laws, 2nd edition was

published in April, 1870. The same is available online. The

reprint of such publication, word-to-word, line-to-line and 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

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

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

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

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

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

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).”

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

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

“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

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

when this Court held that “even conceding that Tandava dance

has been prescribed as a religious rite for every follower of the

Ananda Marga it does not follow as a necessary corollary that

Tandava dance to be performed in the public is a matter of

religious rite”. Later, in a judgment reported as Acharya

Jagadishwarananda Avadhuta-II, it was held that the

protection guaranteed under Articles 25 and 26 of the

Constitution is not confined to matters of doctrine or belief but

extends to acts done in pursuance of religion and, therefore,

contains a guarantee for rituals, observances, ceremonies and

modes of worship which are essential or integral part of religion.

What constitutes an integral or essential part of religion has to

be determined with reference to its doctrines, practices, tenets,

historical background of the given religion. This Court held as

under:

“9. … What is meant by “an essential part or practices of

a religion” is now the matter for elucidation. Essential part

of a religion means the core beliefs upon which a religion

is founded. Essential practice means those practices that

are fundamental to follow a religious belief. It is upon the

cornerstone of essential parts or practices that the

superstructure of a religion is built, without which a

religion will be no religion. Test to determine whether a

part or practice is essential to a religion is to find out

whether the nature of the religion will be changed without

that part or practice. If the taking away of that part or

practice could result in a fundamental change in the

character of that religion or in its belief, then such part

could be treated as an essential or integral part. There

cannot be additions or subtractions to such part because

it is the very essence of that religion and alterations will

change its fundamental character. It is such permanent

essential parts which are protected by the Constitution.

Nobody can say that an essential part or practice of one's

religion has changed from a particular date or by an

event. Such alterable parts or practices are definitely not

the “core” of religion whereupon the belief is based and

religion is founded upon. They could only be treated as

mere embellishments to the non-essential (sic essential)

part or practices.”

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

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. .........”

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

(i) In Sri Shirur Mutt, the statute interfered with the

management of the Mutt.

(ii) In Ratilal Panachand Gandhi, a notification issued under

the Bombay Public Trusts Act was under challenged which

covered the temples and Mutt entitling the Government to

control them through the Charity Commissioner.

(iii) In Durgah Committee, the challenge was to the

constitutional validity of the Dargah Khwaja Saheb Act, 1955

on the ground that it interferes with the right of

management of the Durgah.

(iv) In Tilkayat Shri Govindlalji Maharaj, the validity of

Nathdwara Temple Act, 1959 was challenged on the ground

that all the properties of the Nathdwara Temple are the

private properties of the appellant and that the State

legislature was not competent to enact the Act. It was the

argument that even if Nathdwara Temple was held to be a

public temple, the appellant as a Mahant or a Shebiat had a

beneficial interest in the office of the high priest as well as

the properties of the temple as the rights of the appellant

under Articles 14, 19(1)(f) and 31(2) of the Constitution of

India have been contravened.

(v) In Dawoodi Bohra, the religious faith and tenets of

Dawoodi Bohra community conferring power of

excommunication from the community on its religious head

as part of the management of the religious affairs under

Article 26(b) of the Constitution was upheld.

(vi) The Shayara Bano case relating to triple talaq was in

respect of gender equality granted under Articles 14 and 15

of the Constitution of India.

118. The essential religious practice in the abovementioned cases

related to (i) right of management of places of worship, (ii) right

of individual qua places of worship and (iii) curtailment of

fundamental rights of individuals through religious practices. The

claim of the appellants is not to perform a religious activity in a

religious institution but to wear headscarf in public place as a

matter of social conduct expected from the believers of the faith.

But in the present, the students want to subjugate their freedom

of choice of dress to be regulated by religion than by the State

while they are in fact students of a state school. The equality

before law is to treat all citizens equally, irrespective of caste,

creed, sex or place of birth. Such equality cannot be breached

by the State on the basis of religious faith.

119. The Constitution has negatively worded Article 25(2). Article

25(2)(a) gives primacy to laws made by competent legislature

for regulation of secular aspects and Article 25(2)(b) gives

primacy to “social welfare” and “reform”. In other words, if the

State seeks to regulate the economic, political, financial or other

secular aspects connected with religion, the State law is to have

primacy over the proposed right. Similarly, if a particular

practice/belief/part of any religion is in existence and is found to

be subjected to either “social welfare” and “reform”, such right

will have to give way to “social welfare” and “reform”.

120. It is reiterated that Article 25(2) being negatively couched is

clearly an enabling provision which provides the power to the

State in the matters mentioned therein. The said provision does

not curtail or restrict the otherwise positive right under Article

25(1) in the absence of any intervention by the State in the

nature of legislative or executive power.

121. Justice H.R. Khanna had quoted the statement of K. Santhanam

in Kesavananda Bharati in respect of social revolution to get

India out of the medievalism based on factors like birth, religion,

custom, and community and reconstruct her social structure on

modern foundations of law, individual merit, and secular

education. I find that religion is not to be understood in a narrow

sectarian sense but by encompassing our ethos that all should

be treated alike. Secular State means rising above all

differences of religions, and attempting to secure the good of all

its citizens irrespective of their religious beliefs and practices.

The faith or belief of a person is immaterial from the point of

view of the State. For the State, all are equal and all are entitled

to be 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

“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

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

order. We must firmly reject any attempt to lead the Court

to interpret religious doctrine in an absolute and extreme

form and question the faith of worshippers. Nothing would

be as destructive of the values underlying Article 25 of the

Constitution.”

125. There is no dispute about the proposition canvassed. The

practice of wearing of hijab may be a ‘religious practice’ or an

‘essential religious practice’ or it may be social conduct for the

women of Islamic faith. The interpretations by the believers of

the faith about wearing of headscarf is the belief or faith of an

individual. The religious belief cannot be carried to a secular

school maintained out of State funds. It is open to the students

to carry their faith in a school which permits them to wear Hijab

or any other mark, may be tilak, which can be identified to a

person holding a particular religious belief but the State is within

its jurisdiction to direct that the apparent symbols of religious

beliefs cannot be carried to school maintained by the State from

the State funds. Thus, the practice of wearing hijab could be

restricted by the State in terms of the Government Order.

Question (v)- Whether fundamental rights of freedom of

expression under Article 19(1)(a) and right of privacy under Article

21 mutually exclusive or are they complementary to each other; and

whether the Government Order does not meet the injunction of

reasonableness for the purposes of Article 21 and Article 14?

126. It is argued that a citizen is entitled to express oneself by not

just wearing a dress of her choice, but also in the context of her

cultural traditions, and that such dress which allows others to

identify that she belongs to a particular community, embraces a

particular culture, and represents the values of that culture.

127. It is submitted that there cannot be any law which prohibits such

expression as long as it does not disturb the public order or

violates the accepted norms of decency and morality as

prescribed by law. It is contended that it is the responsibility of

the State to protect the composite culture of India, but the same

has been intervened through the Government Order, contrary to

the rights enshrined in the Constitution. The argument is also as

to whether, this right to express herself by wearing a hijab, stops

at the school gate and that beyond the school gate, she has no

right to express herself to convey to others that she embraces a

certain culture and she wishes to identify herself with that

culture. Such expression, at the time when the notification was

issued, neither had the tendency to, nor was there any evidence

to show that it, in any way, disturbed public order, or was

violative of decency or morality. The rights and duties conferred

under the aforementioned provisions transcends the boundaries

of the school gate. A citizen or student does not forego her

fundamental rights and protections guaranteed under the

Constitution, which includes the freedom to express her culture,

the moment she steps into the school premises. It is also

submitted that wearing an article of clothing, reflecting the

distinct culture of a citizen, is consistent with the fundamental

right of a citizen to conserve her culture under Article 29(1) and

it is the fundamental duty of citizens to preserve and protect that

culture which is part of the rich heritage of India.

128. The argument of the appellants is based upon the Preamble of

the Government Order dated 5.2.2022 wherein it was recited

that prohibition of a headscarf or a garment covering the head is

not violative of Article 25 of the Constitution, apart from the fact

that it is in terms of the Act and the rules framed thereunder. It

is also argued that the State Government has not mentioned the

role of Popular Front of India in the order passed, therefore, the

State Government is not justified to refer to Popular Front of

India during the course of arguments. In other words, the State

cannot supplement the reasons than what is mentioned in the

order.

129. It is averred that the Preamble refers to the three judgments of

the High Courts as discussed above and a judgment of this Court

reported as Asha Ranjan v. State of Bihar & Ors.56. The

contention is that the judgment in Fathima Thasneem (Minor)

& Anr. v. The State of Kerala & Ors.57 of the Kerala High Court

does not support the stand of the State Government, whereas,

the judgment in Asha Ranjan is not in respect of wearing of a

56 (2017) 4 SCC 397 57 2018 SCC OnLine Ker 5267

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

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

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….”

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

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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)

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)

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.

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.

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.”

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

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.

7. The next day that is February 4, 2022, both made a

representation before the Deputy Commissioner Udupi,

praying that direction be given to the college authorities

to let them enter their college and complete their

studies. No effective orders were passed by the Deputy

Commissioner, but instead the Government came up

with an Order on February 5, 2022. This G.O has a

Preamble, which refers to the Karnataka Education Act,

1983 and the Rules framed therein, from where it draws

its powers and then cites three Judgments of different

High Courts to conclude that prohibiting hijab does not

amount to a violation of Article 25 of the Constitution. It

then mandates that the Government schools must have

a school uniform and the colleges which come under

the jurisdiction of the Pre-University Education

Department the uniform which is prescribed by the

College Development Committees (in Government

colleges), and Board of Management (in private

schools), should be worn. There was, however, a caveat,

which said that in the event the Board of Management

did not mandate any uniform then students should wear

clothes that are “in the interest of unity, equality and

public order.”

8. Since the entire G.O. has been reproduced by Justice

Hemant Gupta in his Judgement I need not reproduce

the entire G.O., but the relevant portion of the G.O are

as under:

“In the backdrop of the issues highlighted

in the proposal, using the powers granted

by the Karnataka Education Act Section

133 (2), all the government schools in the

state are mandated to abide by the

official uniform. Private schools should

mandate a uniform decided upon by their

board of management.

In colleges that come under the 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

were denied entry in their school. This Court has been

informed at the Bar, that similar restriction was imposed

on other school going girls in different parts in

Karnataka.

10. The two girls, who were the students were then

constrained to file Writ Petitions before the Karnataka

High Court. Initially the case went before a learned

Single Judge of the High Court, who in turn, considering

the importance of the matter, referred it to the Chief

Justice for constituting a larger bench. A three-judge

bench was constituted by the Chief justice, which has

heard the matter at length and then passed its orders

on March 15, 2022, dismissing the Writ Petitions, an

order which is presently impugned before this Court.

11. Before the Karnataka High Court as well as before

this Court the main argument of the Petitioners was

that the G.O. dated February 5, 2022, and the

restrictions imposed by the school authorities in not

permitting the Petitioners to wear hijab inside their

classrooms amounts to a violation of their Fundamental

Rights given to them under Article 19(1)(a) and Article

25(1) of the Constitution of India as well as under

Articles 14 and 21 of the Constitution. Some of the

Petitioners also raised a claim that wearing of hijab is a

part of their Essential Religious Practice. The argument

of the State on the other hand would be that the G.O

only directs the school authorities of respective schools

to prescribe a school uniform. It is an innocuous order,

which is religion neutral. As to the argument on

Fundamental Rights, the reply was that Fundamental

Rights are not absolute and they are always subject to

reasonable restrictions. Prohibiting hijab inside a

classroom is a reasonable restriction. Wearing of hijab

was also said to be not an Essential Religious Practice.

12. The Karnataka High Court had formulated four

questions for its consideration. These questions are as

follows:

a) Whether wearing hijab/headscarf is a part of

Essential Religious practice in Islamic Faith

protected under Article 25 of the Constitution.

b) Whether prescription of school uniform is not

legally permissible, as being violative of

petitioners’ Fundamental Rights inter-alia

guaranteed under Article 19(1)(a), (i.e., freedom of

expression) and 21 (i.e., privacy) of the

Constitution.

c) Whether the Government Order dated 05.02.2022

apart from being incompetent is issued without

application of mind and further is manifestly

arbitrary and therefore violates Article 14 and 15

of the Constitution?

d) Whether any case is made out in Writ Petition

Number 2146 of 2022 for issuance of a direction

for initiating disciplinary enquiry against

Respondent No. 6 to 14 and for issuance of a Writ

of Quo Warranto against Respondent No. 15 and

16?

13. As far as the first question is concerned the High

Court has given a finding that wearing of hijab by

Muslim women does not form a part of Essential

Religious Practice in Islamic faith. On the second

question it was held that prescription of school uniform

places only a reasonable restriction which is

Constitutionally permissible and cannot be objected by

the students. As regards the third, i.e., the G.O of 5

February 2022 it was again held that the Government

has powers to issue such an order and no case is made

out for its invalidation. The fourth point was also given

in the negative.

14. One of the grounds raised by the Petitioners in

their challenge to the validity of the G.O. dated

February 5, 2022 is that it is merely an Executive Order.

But it has far reaching consequences as far as

curtailment of Fundamental Rights of the Petitioner are

concerned given to her under Article 19(1)(a) and 25(1)

of the Constitution. It was submitted that the settled

position of law is that restrictions on Fundamental

Rights can only be imposed by a statutory law and not

by executive order. The decision of this Court in Kharak

Singh v. State of Uttar Pradesh2 was relied upon.

This submission, however, is not correct and therefore

2 (1964) 1 SCR 332

declined. The reasons being, that under Section 1333

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.

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

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

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

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

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

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

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

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)

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

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

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

Moinuddin Chishti. Their case was that the interference

of the Dargah Committee amounts to an invasion of the

Fundamental Rights, inter alia, guaranteed to them

under Article 25(1) of the Constitution of India. The

Rajasthan High Court had substantially allowed their

claim and against the said order the Dargah Committee

was before the Supreme Court. The questions which fell

for consideration before this Court was whether any

person as a Sunni Muslim could manage the affairs of

the Durgah or whether this could only be done by the

followers of Chishti Silsila. There were some other

questions as well, which would not be relevant for

discussion in the context of this decision. The Supreme

Court had allowed the appeal of the Durgah Committee

by setting aside the order of the Rajasthan High Court,

holding, inter alia that khadims could not claim the right

under Article 25(1) of the Constitution of India. The

Supreme Court in this case, went on to determine as to

what would be an ERP and how the Court would

determine the same. All the same this was done again

as there was an interplay of Article 25 and Article 26 of

the Constitution, and what was being asserted were the

Rights of a Sect or a denomination against State

intervention.

27. The Judgements of this Court in Acharya J.

Avadhuta & Ors. v. Commissioner of Police,

Calcutta & Anr.14 and Commissioner of Police &

Ors. v. Acharya J. Avadduta15 both relate to the

performance 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

be termed as an ERP, this Court was dealing with

questions related to both Article 25 as well as Article 26

of the Constitution. These were the cases which were

either concerned with the management of an activity

related to a religious shrine or Institution or where the

State had met some kind of resistance or challenge by

the citizens, who claimed rights both under Article 25

and 26 of the Constitution of India. These were also the

cases where a community, sect or a religious

denomination of a religion was against the State action.

This, however, is not presently the case before this

Court. We have before us a case of assertion of

individual Right as different from what would be a

community Right. We are concerned only with Article

25(1) and not with Article 25(2) or Article 26 of the

Constitution of India. Whereas Clause 1 of Article 25

deals with individual rights, Article 25(2) and Article 26

of the Constitution of India, deal by and large with

community-based rights. In that sense what has been

decided by this Court earlier as ERP would not be of

much help to us. For this reason, the entire exercise

done by the Karnataka High Court, in evaluating the

rights of the Petitioners only on the touchstone of ERP,

was incorrect.

29. In the more recent case of Shayara Bano (supra)

the majority opinion of 3:2 held that Triple Talaq

constitutes an irregular and not an essential practice

amongst Sunni Muslims. It was stated as follows:

“54. …Applying the aforesaid tests, it is

clear that Triple Talaq is only a form of

talaq which is permissible in law, but at

the same time, stated to be sinful by

the very Hanafi School which tolerates

it. According to Javed16, therefore, this

would not form part of any essential

religious practice. Applying the test

stated in Acharya 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)]

Petition by 4:1 majority, the bench held in favour of

women devotees and struck down the restrictions

placed upon them to be violative of their Fundamental

Rights under the Constitution of India.

31. In both the cases cited above again the essential

determination before the Court was of religion and

religious practice. Freedom of expression given to a

citizen under Article 19(1)(a) was not an issue, and if at

all it was it was on the periphery. In other words, not the

central issue.

32. We are presently concerned with an entirely

different set of facts. We must deal with only Article

25(1), and not with Article 25(2), or even with Article 26

of the Constitution of India. Article 25(1) deals with the

Rights of an individual, whereas Article 25 (2), and

Article 26 deal with the Rights of communities or

religious denominations, as referred above. Additionally,

we must deal with the Fundamental Rights given to an

individual under Article 19(1)(a) and its interplay with

Article 25(1) of the Constitution.

33. Article 25 gives a citizen the “freedom of

conscience and free profession, practice and

propagation of religion.” It does not speak of Essential

Religious Practice. This concept comes in only when we

are dealing with Article 25(2) or Article 26, and where

there is an inter-play of these two Articles.

34. We have before us two children, two girl students,

asserting their identity by wearing hijab, and claim

protection under Article 19 and Article 25 of the

Constitution of India. Whether wearing hijab is an ERP in

Islam or not is not essential for the determination of this

dispute. If the belief is sincere, and it harms no one

else, there can be no justifiable reasons for banning

hijab in a classroom.

35. The Karnataka High Court, however, has made a

detailed study as to what is ERP and whether wearing a

hijab constitutes a part of ERP in Islam. Suras and

verses from the Holy Quran have been referred and

explained, and then taking assistance of a commentary

on the Holy Book, the High Court concludes that

wearing of hijab is not an essential religious practice in

Islam and at best it is directory in nature, not

mandatory. The decisions of the Supreme Court which

we have referred above, and some other decisions as

well have been considered while dealing as to what

constitutes an ERP, and then a determination has been

made that what is being claimed as a right is not an

essential religious practice at all!

36. Apart from the fact that ERP was not essential to

the determination of the dispute, which we have

already said above, there is another aspect which is

even more important, which would explain as to why

the Courts should be slow in the matters of determining

as to what is an ERP. In my humble opinion Courts are

not the forums to solve theological questions. Courts

are not well equipped to do that for various reasons, but

most importantly because there will always be more

than one viewpoint on a particular religious matter, and

therefore nothing gives the authority to the Court to

pick one over the other. The Courts, however, must

interfere when the boundaries set by the Constitution

are broken, or where unjustified restrictions are

imposed.

37. In the case of M. Siddiq (Dead) Through LR’s v.

Mahant Suresh Das and Ors.17 popularly known as

the Ram Janmabhoomi Case this Court had cautioned

not to venture into areas of theology with which the

Courts are not well equipped. There may be diversity of

views within a religion and to choose one over others,

may not be correct. Courts should steer clear from

interpreting religious scriptures. It was observed by the

Court as follows:

“90. During the course of the

submissions, it has emerged that the

extreme and even absolute view of Islam

sought to be portrayed by Mr. P.N. Mishra

does not emerge as the only available

interpretation of Islamic law on a matter

of theology. Hence, in the given set of

facts and circumstances, it is

inappropriate for this Court to enter

upon an area of theology and to assume

the 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

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

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]

freedom of conscience

.” 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

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

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)

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)

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)

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

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.”

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

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

limitations and the degree of enjoyment of a Right by

an individual inside his house or anywhere outside a

public space is different to what he or she would enjoy

once they are inside a public space. As a general

principle, one can have no quarrel with this proposition.

But then let us come to the facts of the case. Laying

down a principle is one thing, justifying that to the facts

of a case is quite another. We must be a judge of fact as

well as a judge of law. Do the facts of the case justify

the restrictions inside a classroom, which is admittedly

a public place? In my opinion there is no justification for

this.

52. School is a public place, yet drawing a parallel

between a school and a jail or a military camp, is not

correct. Again, if the point which was being made by the

High Court was regarding discipline in a school, then

that must be accepted. It is necessary to have discipline

in schools. But discipline not at the cost of freedom, not

at the cost of dignity. Asking a pre university schoolgirl

to take off her hijab at her school gate, is an invasion on

her privacy and dignity. It is clearly violative of the

Fundamental Right given to her under Article 19(1)(a)

and 21 of the Constitution of India. This right to her

dignity27 and her privacy28 she carries in her person,

even inside her school gate or when she is in her

classroom. It is still her Fundamental Right, not a

“derivative right” as has been described by the High

Court.

53. In the Puttaswamy judgement (supra), Justice

D.Y. Chandrachud in Paragraph 298 of his Judgement

says as under:

‘298. Privacy of the individual is an essential

aspect of dignity. Dignity has both an intrinsic

and instrumental value. As an intrinsic value,

human dignity is an entitlement or a

constitutionally protected interest in itself. In its

instrumental facet, dignity and freedom are

inseparably intertwined, each being a

facilitative tool to achieve the other. The ability

of the individual to protect a zone of privacy

enables the realisation of the full value of life

and liberty. Liberty has a broader meaning of

which privacy is a subset. All liberties may not

be exercised in privacy. Yet others can be

fulfilled only within a private space. Privacy

enables the individual to retain the 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]

true nature of privacy and its relationship with

those fundamental rights which are expressly

protected is understood. Privacy lies across the

spectrum of protected freedoms. The guarantee

of equality is a guarantee against arbitrary

State action. It prevents the State from

discriminating between individuals. The

destruction by the State of a sanctified personal

space whether of the body or of the mind is

violative of the guarantee against arbitrary

State action. Privacy of the body entitles an

individual to the integrity of the physical

aspects of personhood. The intersection

between one's mental integrity and privacy

entitles the individual to freedom of thought,

the freedom to believe in what is right, and the

freedom of self-determination. When these

guarantees intersect with gender, they create a

private space which protects all those elements

which are crucial to gender identity. The family,

marriage, procreation and sexual orientation

are all integral to the dignity of the individual.

Above all, the privacy of the individual

recognises an inviolable right to determine how

freedom shall be exercised. An individual may

perceive that the best form of expression is to

remain silent. Silence postulates a realm of

privacy. An artist finds reflection of the soul in a

creative endeavour. A writer expresses the

outcome of a process of thought. A musician

contemplates upon notes which musically lead

to silence. The silence, which lies within,

reflects on the ability to choose how to convey

thoughts and ideas or interact with others.

These are crucial aspects of personhood. The

freedoms under Article 19 can be fulfilled where

the individual is entitled to decide upon his or

her preferences. Read in conjunction with

Article 21, liberty enables the individual to have

a choice of preferences on various facets of life

including what and how one will eat, the way

one will dress, the faith one will espouse and a

myriad other matters on which autonomy and

self-determination require a choice to be made

within the privacy of the mind. The

constitutional right to the freedom of religion

under Article 25 has implicit within it the ability

to choose a faith and the freedom to express or

not express those choices to the world. These

are some illustrations of the manner in which

privacy facilitates freedom and is intrinsic to the

exercise of liberty. The Constitution does not

contain a separate article telling us that privacy

has been declared to be a fundamental right.

Nor have we tagged the provisions of Part III

with an alpha-suffixed right to privacy: this is

not an act of judicial redrafting. Dignity cannot

exist without privacy. Both reside within the

inalienable values of life, liberty and freedom

which the Constitution has recognised. Privacy

is the ultimate expression of the sanctity of the

individual. It is a constitutional value which

straddles across the spectrum of fundamental

rights and protects for the individual a zone of

choice and self-determination.’

54. The counsels representing the State before this

Court had underlined the importance of G.O dated

05.02.2022 which was to enforce discipline in schools,

including in Pre-University classes, and apply a dress

code. The object of the act therefore was the

betterment of education and to inculcate a sense of

discipline among school going children. The learned

Advocate General of Karnataka submitted that the law

in the present case which is the G.O dated 5th February,

2022, is primarily for the enforcement of dress code in

schools including Pre-University classes. It may only

incidentally be giving an impact on the rights which the

Petitioners claim under Article 19 and 25 of the

Constitution of India. What has to be seen is the pith

and substance of the law which is the enforcement of

uniforms in schools, which in turn is to maintain

discipline in schools. For this submission the learned

Advocate General has relied upon Bachan Singh v.

State of Punjab29 which says:

“60. From a survey of the cases noticed

above, a comprehensive test which can

be formulated, may be restated as

under:

“Does the impugned law, in its pith

and substance, whatever may be its

form and object, deal with any of

the fundamental rights conferred by

Article 19(1)? If it does, does it

abridge or abrogate any of those

rights? And even if it does not, in its

pith and substance, deal with any

of the fundamental rights conferred

by Article 19(1), is the direct and

inevitable effect of the impugned

law such as to abridge or abrogate

any of those rights?”

The mere fact that the impugned

law incidentally, remotely or

29 (1980) 2 SCC 684

collaterally has the effect of

abridging or abrogating those

rights, will not satisfy the test. If the

answer to the above queries be in

the affirmative, the impugned law

in order to be valid, must pass the

test of reasonableness under Article

19. But if the impact of the law on

any of the rights under clause (1) of

Article 19 is merely incidental,

indirect, remote or collateral and is

dependent upon factors which may

or may not come into play, the anvil

of Article 19 will not be available for

judging its validity.”

All the same, I do not see the applicability of the above

submission in the facts of the controversy before this

Court. The G.O specifically seeks to address the question

of hijab, which is evident from the preamble of the G.O.

Moreover, the above submission of the learned Advocate

General is not correct in view of the Puttaswamy

judgement (supra) which says:

“24. The decisions in M.P. Sharma [M.P.

Sharma v. Satish Chandra, AIR 1954 SC

300: 1954 Cri LJ 865 : 1954 SCR 1077]

and Kharak Singh [Kharak Singh v. State

of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ

329 : (1964) 1 SCR 332] adopted a

doctrinal position on the relationship

between Articles 19 and 21, based on the

view of the majority in Gopalan [A.K.

Gopalan v. State of Madras, AIR 1950 SC

27 : 1950 SCR 88] . This view stands

abrogated particularly by the judgment

in Cooper [Rustom Cavasjee

Cooper v. Union of India, (1970) 1 SCC

248] and the subsequent statement of

doctrine in Maneka [Maneka

Gandhi v. Union of India, (1978) 1 SCC

248] . The decision in Maneka [Maneka

Gandhi v. Union of India, (1978) 1 SCC

248], in fact, expressly recognised that it

is the dissenting judgment of Subba Rao,

J. in Kharak Singh [Kharak Singh v. State

of U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ

329 : (1964) 1 SCR 332] which represents

the exposition of the correct

constitutional principle. The

jurisprudential foundation which held the

field sixty-three years ago in M.P.

Sharma [M.P. Sharma v. Satish Chandra,

AIR 1954 SC 300: 1954 Cri LJ 865 : 1954

SCR 1077] and fifty-five years ago

in Kharak Singh [Kharak Singh v. State of

U.P., AIR 1963 SC 1295 : (1963) 2 Cri LJ

329 : (1964) 1 SCR 332] has given way to

what is now a settled position in

constitutional law. Firstly, the

fundamental rights emanate from basic

notions of liberty and dignity and the

enumeration of some facets of liberty as

distinctly protected rights under Article 19

does not denude Article 21 of its

expansive ambit. Secondly, the validity of

a law which infringes the fundamental

rights has to be tested not with reference

to the object of State action but on the

basis of its effect on the guarantees of

freedom. Thirdly, the requirement of

Article 14 that State action must not be

arbitrary and must fulfil the requirement

of reasonableness, imparts meaning to

the constitutional guarantees in Part III.”

55. We would now be examining some decisions of

foreign Courts as in order to appreciate the assertion of

religious and cultural rights in our school premises, it

would be worthwhile to refer to some of the similar

controversies which had come up before the Courts of

other Countries which have a Constitutional Democracy.

There are two cases which I would like to refer here. The

first case is the ‘nose-stud’ case of the Constitutional

Court of South Africa and the second one is a decision

of the House of Lords in England.

56. The South African case though has to be seen in

the background of the Constitutional Law of South Africa

where dignity is a right given to its citizens under its

Constitution. Equality Courts have also been established

in South Africa to hear the disputes relating to cases of

discrimination. But nevertheless, the basic principle and

the law remains the same.

57. Sunali was a student of Class 10 in Durban Girls

High School (DGHS). The Code of Conduct of the school

prohibited wearing jewellery in school. When Sunali was

in class 10, her mother gave her a nose stud to wear,

which was not a fashion statement, but a part of

Sunali’s Hindu-Tamil culture. The school objected to the

nose-stud and Sunali was asked to remove it. When

Sunali refused to remove the nose stud her mother was

called. Her mother reasoned with the authorities that

this is a part of her Hindu-Tamil culture and it cannot be

removed. Ultimately, Sunali through her mother had to

file a Petition before the Equality Court, where such

matters of discrimination are heard since Sunali had

alleged discrimination by her school. The Equality Court

held that though a prima facie case for discrimination

had been made out, it could not be termed as ‘unfair’30

thus dismissing her case. Thereafter, the matter was

taken 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

“86. The School further argued that the

nose stud is not central to Sunali’s

religion or culture, but it is only an

optional practice. I agree that the

centrality of a practice or a belief must

play a role in determining how far

another party must go to accommodate

that belief. The essence of reasonable

accommodation is an exercise of

proportionality. Persons who merely

appear to adhere to a religious and/or

cultural practice, but who are willing to

forego it if necessary, can hardly

demand the same adjustment from

others as those whose identity will be

seriously undermined if they do not

follow their belief. The difficult question

is how to determine centrality. Should we

enquire into centrality of the practice or

belief to the community, or to the

individual?

87. While it is tempting to consider the

objective importance or centrality of a

belief to a particular religion or culture in

determining whether the discrimination

is fair, that approach raises many

difficulties. In my view, courts should not

involve themselves in determining the

objective centrality of practices, as this

would require them to substitute their

judgement of the meaning of a practice

for that of the person before them and

often to take sides in bitter internal

disputes. This is true both for religious

and cultural practices. If Sunali states

that the nose stud is central to her as a

South Indian Tamil Hindu, it is not for the

Court to tell her that she is wrong

because others do not relate to that

religion or culture in the same way.”

59. What was also pleaded on behalf of the School was

that the nose stud after all is a cultural and not a

religious issue and therefore the infringement of any

right, if at all, is much less. This issue was dealt with as

follows:

“91. The next string of the School’s

centrality bow was that the infringement

of Sunali’s right to equality is less severe

because the nose stud is cultural rather

than a religious adornment. This was also

the basis originally relied upon by the

School for refusing the exemption and

why it could recognise the stud’s cultural

significance without granting Sunali an

exemption. To my mind the argument is

flawed. As stated above, religious and

cultural practices can be equally

important to a persons’ identity. What is

relevant is not whether a practice is

characterised as religious or cultural but

its meaning to the person involved.

92. The School also argued that if Sunali

did not like the Code, she could simply go

to another school that would allow her to

wear the nose stud. I cannot agree. In my

view the effect of this would be to

marginalise religions and cultures,

something that is completely inconsistent

with the values of our Constitution. As

already noted, out Constitution does not

tolerate diversity as a necessary evil, but

affirms it as one of the primary treasures

of our nation. There may, however, be

occasions where the specific factual

circumstances make the availability of

another school a relevant consideration in

searching for a reasonable

accommodation. However, there are no

such circumstances in this case and the

availability of another school is therefore

not a relevant consideration.”

60. Ultimately what was held is given below as follows:

“112. The discrimination has had a

serious impact on Sunali and, although

the evidence shows that uniforms serve

an important purpose, it does not show

that the purpose is significantly

furthered by refusing Sunali her

exemption. Allowing the stud would not

have imposed an undue burden on the

School A reasonable accommodation

would have been achieved by allowing

Sunali to wear the nose stud. I would

therefore confirm the High Court’s

finding of unfair discrimination.”

61. The other case, which was also relied by the

Karnataka High Court is Regina (SB) v. Governors of

Denbigh High School31

. Primarily the controversy was

that the school, allowed wearing of hijab, but what was

further insisted was wearing of jilbab (which is more or

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

curriculum. Their task is to help all of

their pupils achieve their full potential.

This includes growing up to play whatever

part they choose in the society in which

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

promote the ability of people of diverse

races, religions and cultures to live

together in harmony. Fostering a sense of

community and cohesion within the

school is an important part of that. A

uniform dress code can play its role in

smoothing over ethnic, religious and

social divisions. But it does more than

that. Like it or not, this is a society

committed, in principle and in law, to

equal freedom for men and women to

choose how they will lead their lives

within the law. Young girls from ethnic,

cultural or religious minorities growing up

here face particularly difficult choices:

how far to adopt or to distance

themselves from the dominant culture. A

good school will enable and support

them. This particular school is a good

school: that, it appears, is one reason why

Shabina Begum wanted to stay there. It is

also a mixed school. That was what led to

the difficulty. It would not have arisen in a

girls’ school with an all female staff.”

62. When a decision has to be made between school

discipline and cultural and religious rights of minorities

a balance has to be maintained. That is what was held.

Baroness Hale of Richmond while elaborating on this

issue referred to “Culture, Religion and Gender” (2003)

by Professor Frances Raday the exact Paragraph at 98

which reads like this:

“genuine individual consent to a

discriminatory practice or dissent from it

may not be feasible where these girls are

not yet adult. The question is whether

patriarchal family control should be

allowed to result in girls being socialised

according to the implications of veiling

while still attending public educational

institutions . . . A mandatory policy that

rejects veiling in state educational

institutions may provide a crucial

opportunity for girls to choose the

feminist freedom of state education over

the patriarchal dominance of their

families. Also for the families, such a

policy may send a clear message that the

benefits of state education are tied to the

obligation to respect women’s and girl’s

right to equality and freedom . . . On the

other hand, a prohibition of veiling

risks violating the liberal principle of

respect for individual autonomy and

cultural diversity for parents as well

as students. It may also result in

traditionalist families not sending

their children to the state

educational institutions. In this

educational context, implementation

of the right to equality is a complex

matter, and the determination of the

way it should be achieved depends

upon the balance between these two

conflicting policy priorities in a

specific social environment”

(emphasis

supplied)

63. The Karnataka High Court has placed reliance upon

two US Judgements passed by the District Courts there,

that is Miller v. Gills32 and Christmas v. El Reno

Board of Education33. All the same the facts of these

cases are different and in none of the two cases the

action of the school authorities debarred students from

attending their classes. There is another judgement

relied upon by Karnataka High Court which is

Employment Division v. Smith34.This is a US

Supreme Court Judgement.

64. The facts of the case were quite different. The

issue being examined was whether the State of Oregon

was justified in denying unemployment benefits to

persons who had been dismissed from their jobs owing

to their consumption of “peyote,” which had been

classified as a ‘controlled substance’ (under the

Controlled Substances Act, 1970), when it was being

consumed as a part of religious beliefs. The

consumption of peyote was admittedly a criminal

offence. It was contended by the respondents that as it

32 315 F. Supp. 94 (N.D. Ill. 1969)

33 313 F. Supp. 618 (W.D. Okla. 1970)

34 494 US 872 (1990)

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

the discharge of political

responsibilities.”

65. Another question which the School Administration

and the State must answer in the present case is as to

what is more important to them: Education of a girl

child or Enforcement of a Dress Code! We have been

informed at the Bar by many of the Senior counsels

appearing for the Petitioners, that the unfortunate

fallout of the enforcement of hijab ban in schools in

Karnataka has been that some of the girl students have

not been able to appear in their Board examinations,

and many others were forced to seek transfer to other

schools, most likely madrasas, where they may not get

the same standard of education. This is for a girl child,

for whom it was never easy, in the first place, to reach

her school gate.

66. One of the best sights in India today, is of a girl

child leaving for her school in the morning, with her

school bag on her back. She is our hope, our future. But

it is also a fact, that it is much more difficult for a girl

child to get education, as compared to her brother. In

villages and semi urban areas in India, it is

commonplace for a girl child to help her mother in her

daily chores of cleaning and washing, before she can

grab her school bag. The hurdles and hardships a girl

child undergoes in gaining education are many times

more than a male child. This case therefore has also to

be seen in the perspective of the challenges already

faced by a girl child in reaching her school. The question

this Court would therefore put before itself is also

whether we are making the life of a girl child any better

by denying her education, merely because she wears a

hijab!

67. All the Petitioners want is to wear a hijab! Is it too

much to ask in a democracy? How is it against public

order, morality or health? or even decency or against

any other provision of Part III of the Constitution. These

questions have not been sufficiently answered in the

Karnataka High Court Judgement. The State has not

given any plausible reasons either in the Government

Order dated 5 February 2022, or in the counter affidavit

before the High Court. It does not appeal to my logic or

reason as to how a girl child who is wearing a hijab in a

classroom is a public order problem or even a law-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

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

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

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

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

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

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.’

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

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

.” 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

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

80. Under our Constitutional scheme, wearing a hijab

should be simply a matter of Choice. It may or may not

be a matter of essential religious practice, but it still is,

a matter of conscience, belief, and expression. If she

wants to wear hijab, even inside her class room, she

cannot be stopped, if it is worn as a matter of her

choice, as it may be the only way her conservative

family will permit her to go to school, and in those

cases, her hijab is her ticket to education.

81. The unfortunate fallout of the hijab restriction would

be that we would have denied education to a girl child.

A girl child for whom it is still not easy to reach her

school gate. This case here, therefore, has also to be

seen in the perspective of the challenges already faced

by a girl child in reaching her school. The question this

Court would put before itself is also whether we are

making the life of a girl child any better by denying her

education merely because she wears a hijab!

82. Our Constitution has visualised a just society and it is

for this reason that the first virtue that is secures for the

citizens is ‘Justice’ which is the first of our Preambular

promises. Rawls in his ‘A Theory of Justice’ writes: “…

Justice is the first virtue of social institutions, as truth is

of system of thoughts…” “…Therefore in a just society

the liberties of equal citizenship are taken as settled,

the rights secured by justice are not subject to political

bargaining or to the calculus of social interest…” 46

83. By asking the girls to take off their hijab before they

enter the school gates, is first an invasion on their

privacy, then it is an attack on their dignity, and then

ultimately it is a denial to them of secular education.

These are clearly violative of Article 19(1)(a), Article 21

and Article 25(1) of the Constitution of India.

84. Consequently, I allow all the appeals as well as the

Writ Petitions, but only to the extent as ordered below:

a) The order of the Karnataka High Court dated March

15, 2022, is hereby set aside;

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

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.

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)

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)

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.

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

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