Court: Hon’ble Supreme Court of India
Date: October 13, 2022
Judges: Justice Hemant Gupta and Justice Sudhanshu Dhulia
The Karnataka Education Act, 1983 passed by government of Karnataka, specifies that all student studying in schools and colleges within the state ought to conduct themselves in brotherly manner, outstrip their group identity and enlarge inclinations towards social justice. The Act was enacted with a view to promote secular outlook through education.
The Karnataka Government passed an order by exercising the power conferred to it under section 133 of the Karnataka Education Act, stating that all schools within the state must compulsorily adhere to the established uniform and carrying hijab within the campus of schools may not be regarded as exception. The impugned government order has been issued abovementioned Act.
The repercussion of the said order was that the Muslim ladies carrying the hijab was not permitted to enter in educational institutions. The constitutionality of the impugned order was challenged before The Karnataka High Court on behalf of the aggrieved college students. Full Bench of Karnataka High Court upheld the Hijab ban in school and colleges within the state.
Hence, an appeal had been preferred before the Supreme Court against the judgement of Karnataka High Court.
- What is the realm and extent of essential religious practices under Article 25 of the Constitution?
- Whether the wearing of hijab is considered as an essential religious practice in the Islamic faith?
- Whether the impugned govt. order ensure secular education to all or is it consistent with the object sought to be achieved by the above-mentioned Act?
CONTENTION OF THE PARTIES:
- CONTENTIONS OF APPELLANT
- It was submitted that carrying hijab is an essential religious practice of Islamic religion. And therefore, any restriction or prohibition imposed by state on wearing hijab is violative of Article 25 of the Constitution.
- It was contended that the right to dress in the context of uniform included in the guarantee given under article 19 of constitution i.e., right to freedom of speech and expression. And this right can be restricted subject to reasonable restriction. The wearing of hijab is not prejudicial to public interest. Thus, an explicit violation of right to freedom of speech and expression.
- It was submitted that the matters of administration and discipline of the educational institutions are fall under the jurisdiction of the authority in charge of such institution, and the Court cannot interfere except in a case of manifest arbitrariness, unreasonableness or injustice which does not satisfy Wednesbury Principles. It was averred that the impugned Government Order is arbitrary, unreasonable and requires courts interference.
- It was further submitted that denying entry in educational institutions due to uniform also in violation of Article 29.
- CONTENTION OF RESPONDENTS:
- It was submitted that the governmental order prohibiting hijab in the educational institution is an unharmed order which in its entirety a religious neutral. With regard to the alleged violation of Article 19 of Constitution, the state contended that the fundamental rights are never absolute and they can be restricted subject to reasonable restriction. Restriction on wearing hijab in schools and colleges is reasonable restriction,
- The state further submitted that the wearing hijab is not an essential religious practice and therefore imposition of ban on wearing hijab cannot be regarded as violation of Article 25 of Constitution.
At the Supreme Court, the two-judge bench delivered a split judgment in this case. Justice Hemant Gupta agreeing with the High Court upheld the ban on wearing hijab, while Justice Sudhanshu Dhulia overruled the decision of High Court, and struck down the ban.
The Judgement of Hemant Gupta J.
Justice Gupta begins his decision with the idea of secularism and observed that carrying hijab is the matter of faith or belief of a particular religion which is insignificant from the point of view of the secular State. It was further observed that it treats all religions alike, respects all religion and protects the practices of all religions.
Justice Gupta is of the view that any school maintained out of state funds cannot permit to carry any symbolic expression of religious belief, as it would be antithesis to secularism. It is within the jurisdiction of state to manage & direct that any apparent expression of religious beliefs cannot be carried to educational institutions maintained wholly or partly out of the State endowments. Thus, being a religious practice, it can be restricted by state.
With respect to the alleged violation of Article 29 of constitution by state, the view taken by Justice Gupta was that, State has not denied admission to the students from attending classes. It was observed that not to attend classes due to uniform is the choice made by such students voluntarily. Thus, in a secular school right to wear a hijab cannot be claimed as a matter of right.
Thus, the impugned Order cannot be held as contrary to principle of secularism.
The Judgement of Sudhanshu Dhulia, J:
In the opinion of Justice Dhulia, the issue that whether wearing hijab is an ERP or not, is not at all relevant in adjudication of the question before this Court. It is not imperative for claiming protection under Article 25(1) to establish that the alleged practice is an ERP. It may be any religious practice which is the matter of conscience or belief of a particular religion and it must be consistent with public order, health and morality.
Justice Dhulia observed that discipline is inevitable in educational institutions, but discipline cannot be inculcated at the cost of freedom or dignity. In his view it’s just and proper for a girl child to wear hijab in her house or outside her house, and even at school. Prohibition on hijab is an invasion of privacy and dignity of a girl child. It is evidently infringement of the Fundamental Right guaranteed under Article 19(1)(a) and 21 of the Constitution.
It was further observed that the constitutional validity of a law which violates any rights guaranteed under Part-III of Constitution has to be tested on the basis of its effect on fundamental right & not on the basis of object of State action. Further, there is need to strike a balance between school discipline and cultural and religious rights of minorities.
The Court finally observed that condition which requires the girls to take off their hijabs before entering into the school is to first invade their privacy and violate their dignity. These apparently in violation of Article 19(1)(a), Article 21.
- The order of the Karnataka High Court is hereby set aside;
- The impugned government order is revoked and,
- The restriction on the wearing of hijab anywhere in schools and colleges in Karnataka has been removed.
DEFECTS OF LAW:
The Supreme Court vide its final judgement and order delivered a split verdict on petition challenging the Impugned Government Order. While Justice Hemant Gupta upheld the ban on hijab in educational institution & dismissed the appeals, Justice Sudhanshu Dhulia quashed the impugned government order and allowed the appeal. Considering the spilt judgements of both the judges the matter will now be referred to the Hon’ble the Chief Justice of India for constitution of relevant bench.
It is matter of common knowledge that in many households, a girl’s access to education is a contentious issue between her and her family. Though wearing hijab may not be a ERP, but it still it is a matter of conscience & belief of followers of Islam. It must be the choice of a girl whether she wants to wear hijab, or not. It should be her choice whether she wants to wear hijab at her home, outside her home or even at her classrooms. In some orthodox family, hijab is the only condition on which girl child permitted to attend the school. In such cases imposing prohibition on wearing hijab is tantamount to denial of the right to education to Muslim girls.
Educational institutions are temples of learning and thus discipline is required to be maintained between the teacher and the taught. And the discipline must not violate the dignity of students.
The court ought to have taken into consideration the fact that there should be uniformity in the classrooms but classrooms cannot be expected to have homogeneity. An effort directed towards the establishment of relatively homogenous society may lead to communal violence or may be at the prejudice of minority religion which is the bane of mankind.
Hijab is basically an additional cloth worn on the head by Muslim women who are followers of Islamic Faith, it does not cause any harm to any other religion nor does it challenge the idea of secularism or constitutional fraternity.
If slight diversity in clothing based on one’s religious identity could result in drastic consequences, then the rights of the followers of the Sikh faith to wear kirpan can also be questioned.
The Full Bench of the Punjab & Haryana High Court in Gurleen Kaur & Ors. v. State of Punjab & Ors held that the ERP of Sikh religion includes retaining hair unshorn. If constitutional recognition to the ERP of the Sikh faith is not opposed to the secularism or constitutional fraternity and is not conflicting with homogenous education, how does the wearing of a hijab which is religious symbols of a different faith lead to such results?
In India, it is considerably more challenging for a girl child to attend school, as compared to a male child in the family. The misfortune or the obstacle a girl child experience in attending schools is usually more than a male child. Thus, the court ought to observe the case from the standpoint of the hardships experienced by a girl child in attending school.
The main controversy in present case is wearing hijab in schools. Is it too much excessive or unreasonable demand in a democracy? It is difficult to understand that how it is against public order, morality, decency or against any other provision of Part III of the Constitution.
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 can regulate management in the interest of educational need and discipline of the institution. How can the discipline of schools affect adversely merely by wearing hijab is difficult to understand.
The need of the moment is to inculcate values like sensitivity, delicacy and compassion in the students towards different religions, cultures and languages. They should not feel frightened by our diversity rather pleasure of having this and should celebrate this diversity.
The Court has to carefully appreciate the significance of Articles 19, 21, and 25 of constitution and interpret it in a harmonious manner.
NAME: NEHA ARYA
COLLEGE: LAW CENTRE-II, FACULTY OF LAW, UNIVERSITY OF DELHI
 Chairman, J & K State Board of Education v. Feyaz Ahmed Malik (2000) 3 SCC 59
 The Constitution of India Art.29
 Ahmedabad St. Xavier’s College Society & Anr. v. State of Gujarat & Anr (1974) 1 SCC 717
 St. Stephen’s College v. University of Delhi(1992) 1 SCC 558
 Gurleen Kaur & Ors. v. State of Punjab & Ors2009 SCC Online P& H 6132
 Bihar State Madarasa Education Board v. Madarasa Hanfia Arabic College (1990) 1 SCC 428
 Aruna Roy v. Union of India(2002) 7 SCC 368