The Supreme Court ordered that due to the divergent views on Hijab Ban, matter be placed before The Chief Justice of India for the constitution of an appropriate bench.
The challenge in the appeals is to an order passed by the Full Bench of the Karnataka High Court, dismissing the challenge to the Government Order. 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.
The preliminary submission of counsel for the appellants is that the present case ought to be referred to a larger bench in view of the order of the Court reported as Kantaru Rajeevaru (Sabarimala Temple Review-5J.) v. Indian Young Lawyers Association & Ors.
It was 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.
The appellants contended 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.
It was argued that the College Development Committee, a non-statutory authority, cannot exercise power of the State Government under Part III of the Constitution.
It was further 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.
Tushar Mehta, Solicitor General appearing for the State, contended that 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.
He submitted that 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.
Justice Hemant Gupta observed that 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.
He said that 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 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.
He further said that 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.
“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” the court added.
Justice Hemant Gupta held that 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 by insisting on wearing something additional to the uniform, in a secular school, as a part of their religion.
He dismissed all appeals and the writ petitions, though on different grounds than what prevailed before the High Court.
On the other hand Justice Sudhanshu Dhulia said that 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 Judgment.
“It does not appeal to my logic or reasons 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”, he added.
He further stated that a girl child has the right to wear a 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.
He observed that the Government Order, and the restrictions on the wearing of hijab, goes against our constitutional values of fraternity and human dignity. Liberty, equality, fraternity, the triptych of the French Revolution is also a part of our Preamble.
He further added that by asking the girls to take off their hijab before they enter the school gates, is first an invasion of 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.
Justice Sudhanshu Dhulia set aside the order of the Karnataka High Court and quashed the government order.
The division bench of Justice Hemant Gupta and Justice Sudhanshu Dhulia in view of the divergent views expressed, ordered that the matter be placed before The Chief Justice of India for constitution of an appropriate Bench.
Case title: Aishat Shifa v/s The State of Karnataka & Ors.
Citation: Civil appeal no. 7095 of 2022