Hijab verdict

Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism," Justice Gupta concluded.

The Karnataka government order allowing educational institutes to ban students from wearing hijab (headscarves) was to promote parity, ensure uniformity and maintain a secular environment in schools, Justice Hemant Gupta held on Thursday. [Aishat Shifa and ors vs State of Karnataka]

The Supreme Court had earlier today delivered a split verdict in the challenge to the Karnataka government order (GO) effectively empowering government colleges in the State to ban the wearing of hijab by Muslim girl students on campus.

Justice Hemant Gupta who headed the bench upheld the government decision in a 133-page verdict, while Justice Sudhanshu Dhulia struck it down.

The challenge before the Supreme Court is against a Karnataka High Court decision from March 15 upholding the Karnataa government order.

The Karnataka High Court had upheld the GO after a detailed hearing by a full-Bench.

The petitioners – Muslim girl students from various colleges in Karnataka – had approached the High Court after they were denied permission to attend classes on account of wearing hijab.

A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held that:

– Hijab is not a part of essential religious practices of Islam;

– Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);

– The government has the power to pass the GO; no case is made out for its invalidation.

How Justice Gupta viewed the issue

The top court judge framed and answered eleven questions of law in his judgment.

1. Whether the appeals should be heard along with Sabarimala case and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?

On this, Justice Gupta observed that while there was no dispute about the legal proposition presented by the appellants, the matter does not involve any substantial question of law.

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.”

He thus answered the question in the negative.

2. 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 empowering a College Development Committee to decide on the restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Karnataka Education Act?

Justice Gupta opined that the State government was within its right to form College Development Committees, that are envisaged to be an in-house mechanism towards using funds, maintaining academic standards and developing infrastructure.

Such directions are relatable to sub-section (3) of Sections 133 and 145 of the [Karnataka Education] Act. In any case, the constitution of the College Development Committee is not in conflict with any of the provisions of the Act,” the judge said.

The State government has the power to constitute a College Development Committee by notification dated January 31, 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 nonstatutory authority such as of a person or a group of persons who may be authorized to exercise powers under Section 143 of the Act,” the judgment said.

Regarding the validity of the GO, he ruled executive powers can be used to supplement the statutory rules.

Further, the GO excludes all religious symbols and not just hijab, the judgment highlighted.

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.

3. What is the ambit and scope of right to freedom of ‘conscience’ and ‘religion’ under Article 25?

In answering this question, Justice Gupta first addressed the petitioners’ reliance on the Constituent Assembly Debates.

He said that it is not advisable to rely solely upon views of the individual members in such debates more than 70 years after it happened.

” … 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.

While agreeing that freedom of conscience offer wide protections under Article 25, Justice Gupta relied on the decision in TMA Pai to hold that it is subject to under fundamental rights as outlined in Part III of the Constitution.

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).

4. What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

The judge answered this question by quoting extensively from Islamic holy texts as to the position on headscarves.

He then answered the petitioner’s contention that since kirpans (daggers worn on the body by Sikhs) are permitted, hijabs too should be.

The judge noted that a full-Bench of the Punjab and Haryana High Court had upheld turban it as an essential religious practice and moreover, the Sikh community was not a party to this case.

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,” the Court said.

He eventually concluded that religious beliefs cannot be carried to a state-funded secular school.

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,”.

5. 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?

Justice Gupta ruled that all fundamental rights have to be read as a whole, and restrictions can be imposed if it meets the test of reasonableness, which the GO did.

The prescribed uniform in this case does not violate the freedom of speech/expression but rather, reinforces the right to quality, the judge underscored.

“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.

6. 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)?

Justice Gupta said that it is important to interpret the expressions ‘fraternity’ and ‘dignity’ in view of the objective behind the Government Order.

He argued that while fraternity is a noble goal, it would be defeated if students are permitted to carry ‘apparent’ religious symbols on their person to the classroom. Further, fraternity cannot be seen from one community’s prism alone.

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 Pre-University College,” he said.

The judge said that students are free to wear their hijabs outside the classrooms but when they are attending class, the religious identities should be left behind.

Thus, he held that the GO in effect promoted an equal environment where fraternal values can be imbibed and nurtured without hindrances.

Pertinently, Justice Gupta also rejected the argument that not allowing the appellants to wear hijab is an affront to their dignity.

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 preuniversity college, the students should look alike, feel alike, think alike and study together in a cohesive cordial atmosphere. That is the objective behind a uniform, so as to bring about uniformity in appearances.

7. If the wearing of hijab is considered as an essential religious practice, can students seek right to wear headscarf to a secular school as a matter of right?

In answering this question, Justice Gupta said that 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, he held.

They have no right to be in the school in violation of the mandate of the uniform prescribed under the statute and the Rules,” the judgment underlined.

8. 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?

The GO does not take away any rights of students under Article 21 of a student available to her under Article 21 (right to life) nor contemplates any barter of fundamental rights, the judge ruled.

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.

9. Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens?

The judge dismissed the argument of the petitioners that the State government ought to have permitted hijabs like Centrally-run Kendriya Vidyalayas (KVs) do.

He said that the State government institutions and Central government institutions have different scope of work.

“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 not. It is a decision taken by the State which cannot be said to be arbitrary on that ground alone,” the judgment said.

Justice Gupta also said foreign judgments could be relied on as those have different social structures and polity. He stressed that the accommodation sought by the petitioner-students violates the right to equality.

” … 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.

10. 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?

Given that the pre-university colleges are open to students of all castes and religions in line with constitutional principles, the GO cannot be faulted with in this regard, Justice Gupta reasoned.

If a particular student feels that she cannot compromise with the wearing of headscarf or of any other student to wear any outwardly religious symbol, the school would be justified not to allow such student, in the larger interest of treating all the students alike as a part of mandate of Article 14, which is central to the theme of Part III of the Constitution,” it was stated.

The petitioner-students and those similarly-placed cannot assert that they have a right to education that would avail as per their own manners, Justice Gupta opined, since schools are to prepare students for future endeavors.

He emphasised discipline and the right to education under Article 21, and said the students cannot insist on wearing a hijab over their uniform.

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.

11. Does the Government Order achieve any equitable access to education, serve the ethic of secularism, and is true to the objective of the Karnataka Education Act.

Justice Gupta again laid stress on the importance of education and discipline in this regard, stating that,

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.

He pointed to the role of uniforms in promoting equality, oneness, ensuring fewer conflicts, generating pride and loyalty, relieving economic pressure of parents etc in this regard.

In view of the above, Justice Gupta dismissed the appeals and upheld the GO.

Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism,” he concluded.

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