Case Analysis: Aishat Sifha v. State of Karnataka

DATE OF THE CASE: 13 October, 2022



BENCH/JUDGES: Justice Hemant Gupta and Justice Sudhanshu Dhulia

LEGAL PROVISIONS: Article 14, 15, 21, 21-A, 25 in The Constitution Of India 1949


  1. The appeal in the current appeal proceedings is against the High Court of Karnataka ruling of 15 March 2022, in which the appeal against the government decision of 5 February 2022 was dismissed. Such decree instructed public schools in Karnataka to adhere to prescribed uniforms and private schools to wear uniforms as specified by the board.
  1.  The problem began when the university banned a hijab-wearing Muslim girl from her university in Udupi. The girls even suggested wearing a uniform dupatta to cover their heads, arguing that they didn’t need to wear a separate hijab of a certain color or material, but the university refused. The university has allowed hijabs to be worn on campus, but no longer allows them to attend lectures. The outfit allegedly violated school conduct and prevented her from attending class.
  1. The Karnataka Education Act was enacted by the Government of Karnataka  in 1983. Section [7(2)(g)(v)] of the law stipulates that all  students studying in Karnataka shall act in a fraternal manner, transcend their group identity and develop  social justice aspirations. According to Article 133 of the above law, the government has the power to issue instructions to schools and universities in this regard.
  1. The government order, dated February 5, 2022, stated that uniforms are mandatory as mandated by state governments, faculty management and university development boards. Furthermore, college students who follow religious principles were found to have a negative impact on “equality and team spirit” in colleges.
  1. The above circular emphasizes that pre-university education is an important stage in a student’s life. All schools and colleges in the state have established development committees  to implement policies in line with government guidelines, utilize budget allocations, improve basic facilities, and maintain  academic standards. . Schools and colleges are encouraged to follow the guidance of these development committees.


  1.  Is wearing a hijab/headscarf part of an essential religious practice of the Islamic faith protected by Article 25 of the Constitution?
  • Whether requiring students to wear prescribed uniforms is legitimate or not, as it violates their fundamental rights, including those protected by Article 19(1)(a) (freedom of speech) and Article 21 (privacy) of the Constitution.
  • Apart from being incompetent and issued without authority, is the Government order dated 05.02.2022 clearly arbitrary and thus contrary to Articles 14 and 15 of the Constitution?


Arguments from the Petitioner’s side:

Petitioners initially argued that wearing  the hijab is an essential religious practice in Islam and that the defendant’s claim to ban the wearing of the hijab in the classroom violates the rights of Muslim schoolgirls under Article 25 of the Constitution. They then argued that personal appearance and choice of dressing are personal rights protected  under Article 19(1)(a) of the Constitution and under  Article 21 of the Constitution.

 Petitioners also allege violations of the “principle of proportionality,” arguing that the government order in question was clearly arbitrary. They argued that the Karnataka State Education Act 1983 or any regulations enacted therein did not allow for any dress code or uniform requirements. Similarly, the University Improvement (Development) Commission, established under a 2014 government memorandum, is an extra-statutory body with no authority to impose dress codes or uniforms on students. The government order cites public policy as a consideration for dress codes and uniforms, so if wearing the hijab violates public policy, rather than banning the wearing of the hijab, the state should take appropriate action against those causing such disruption.

They had also argued that the hijab prescription offends women’s autonomy, and is violative of Article 14 of the Constitution, by virtue of creating gender–based discrimination, which Article 15 of the Constitution does not permit.

Finally, they had argued that the dress code violates the right to education of students with hijab, whose entry to the institutions is prohibited, and that is in derogation of international conventions that provide for protective discrimination of women’s rights, as well as the Brochure of the Education Department, which prohibits prescribing any kind of uniform. Some of the petitions had demanded that school teachers forcing students to remove hijab before entering institutions should have disciplinary action initiated against them.

Arguments from the Respondent’s side

The respondents had argued that the rights under Article 25 are not absolute, and that the wearing of hijab or head scarf is not a part of the ‘essential religious practice’ of Islamic faith, since the Quran does not contain any such injunctions.

They had argued that the power to prescribe school uniform is inherent in the concept of school education itself, and the impugned government order only authorizes the prescription of dress code by the institutions on their own and does not prescribe any by itself.

They had contended that the simultaneous claims to wear hijab inside the classroom under Articles 19(1)(a) and 25 are not only mutually exclusive, but denuding of each other. Additionally, the freedom of conscience, the right to practice religion, the right to expression and the right to privacy are all subject to reasonable restriction or regulation by law.

Finally, they had averred that wearing hijab offends tenets of human dignity, robs away the individual choice of Muslim women, and militates against constitutional morality.


“A two-judge bench of the Supreme Court delivered a split opinion on an appeal against a Karnataka High Court decision upholding a state order that mandated a uniform for educational institutions, consequently banning the hijab. Writing for the Court, Justice Gupta affirmed the High Court’s decision, while Justice Dhulia decided in favour of the appellants.”[1] The case will now be referred to a larger bench of Supreme Court.

Critical Analysis:

J. Hemant Gupta- Justice Gupta starts his decision by talking about secularism and trying to explain what it means in a way, and sets the tone for the rest of his decision. Even though he says that the idea of secularism in the Indian Constitution is different from the Western idea, which strictly separates religion from the activities of the State, and that it means “treating all religions equally, respecting all religions, and protecting the practises of all religions,” he starts by saying what he thinks secularism is:

“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.”[2]

Justice Gupta bases the discussion on the notion that students should “wear attire that are in the interest of unity, equality, and public order”. He closes his point in a single paragraph, providing neither more nor specific reasoning. He remarks, “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).”[3]

The notion of discipline is the driving force behind Justice Gupta’s opinion. Twenty-two times in the ruling, the word “discipline” appears in various contexts, but it appears most frequently in the precedent set by Justice Gupta. Additionally, Justice Gupta frequently used the word “discipline” with the word “uniform”, highlighting how discipline (and once, “discipline and control!”) cannot exist without a uniform on numerous times. One particularly special paragraph in which Justice Gupta makes the following observations highlights his profound regard for discipline:

“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.”[4]

Justice Gupta, used the word “discipline” twenty-two times in his judgement, while the word “proportionality,” the legal standard used to evaluate when an infringement of rights by the state is justified or not is used zero times in his judgement.

There are several gaps in the reasoning of his judgement if it is broken down para by para, citing the same reason one of the renowned Constitutional Law author “Gautam Bhatia”, writes “Once uniform (not a constitutional test) and uniformity (not the right constitutional test) fall away, Justice Gupta’s judgment does not have a leg to stand on, and falls away along with them.”[5]

J. Sudhanshu Dhulia– Justice Dhulia’s decision poses a wide range of queries and starts off in a completely different place than Justice Gupta’s did. He started by talking about the ERP test and approaches it in an interesting way. “According to Justice Dhulia, the ERP test has historically been applied to cases involving the management of religious property or the assertion of collective rights against the State.

However, in this instance, the right of an individual (to wear the hijab) against the State is at issue. According to Justice Dhulia, ERP is inapplicable not this situation since diverse interpretations of religious doctrine exist in every faith, and it is not the role of the court to favour one interpretation over another.”[6]He notes in his judgement- “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.”[7]

After coming to this conclusion, Justice Dhulia focuses his attention aside from ERP, towards the freedom of conscience and the significant ruling in the Bijoe Emmanuel case. This is the second essential element in his evaluation. Recalling how the Supreme Court had allowed three Jehovah’s Witness students to refrain from singing the national anthem at their school assembly as long as they observed a respectful silence throughout its playing .

He then cites Bijoe Emmanuel to contextualise the idea of “reasonable accommodation”—which Justice Gupta categorically rejects—in Indian constitutional theory. Justice Dhulia believes that the conditions are identical. Justice Dhulia therefore uses Bijoe Emmanuel case in support of the allegations that, first, the condition for seeking Article 25(1) protection is solely a matter of conscience and, second, that, once that requirement has been satisfied, there is a right to a reasonable accommodation of difference.

 In his ruling, Justice Dhulia states, “we are making the life of a girl child any better by denying her education, merely because she wears a hijab!”[8]  He continues, “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-and order 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.”[9]

Justice Dhulia agrees that things are a little trickier than they first appear. For instance, it is a well-known fact that a girl’s access to education is frequently a contentious issue between her and her (conservative) family, with permission to attend school being conditional upon the wearing of the hijab. In paragraph 80 of his judgement, he notes, “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.”[10]


  1. Divyanshu Singh Chauhan, “Case Analysis: Aishat Shifa v/s State of Karnataka”, Legal Service India, accessed June 19, 2023,institutions%2C%20consequently%20banning%20the%20hijab
  2.  Aishat Shifa v/s State of Karnataka, Indian Kanoon –
  3. Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC) 842]
  4.  Vineet Bhalla, “Dissecting the Karnataka HC’s Hijab judgement”, The Leaflet, accessed June 19, 2023

[1] Policy Review LS, “Aishat Shifa: Decoding Justice Gupta’s Opinion in the SC’s Hijab Decision”, Law School Policy Review & Kautilya Society, accessed June 19, 2023.

[2] Para (13), Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC) 842]

[3] Aishat Shifa v. State of Karnataka [2022 LiveLaw (SC) 842], Paragraph (89).

[4] State of Karnataka vs. Aishat Shifa [2022 LiveLaw (SC)842], Paragraph (188).

[5]  Bhatia G, “Discipline or Freedom: The Supreme Court’s Split Verdict in the Hijab Case”, Indian Constitutional Law and Philosophy,  accessed June 19, 2023

[6] Ibid

[7] Para (36), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]

[8] Para (66), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]

[9] Para (67), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]

[10] Para (80), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]