Case Analysis: Aishat Shifa v. State of Karnataka & Ors., (2022) Hijab Ban Case

The Case Analysis 'Aishat Shifa v. State of Karnataka & Ors.' by Shivani Sangwan throws light on the Supreme Court's verdict on Karnataka Hijab Ban Case. On 13 October 2022, the Supreme Court issued a split decision regarding the ban on wearing the hijab in educational institutions in Karnataka. One judge ruled that the state government has the right to enforce uniform policies in schools, while the other judge argued that wearing the hijab is a personal choice that cannot be restricted by the government.

All appeals against the Karnataka High Court decision, which held in March that wearing the hijab by Muslim women is not required by Islam and that the Karnataka government has the authority to implement the uniform requirement, were rejected by Justice Hemant Gupta in his ruling. Contrary to the senior judge on the bench, Justice Sudhanshu Dhulia allowed all of the appeals. In the main body of his decision, Justice Dhulia stated that a Muslim girl's decision to wear a headscarf is her own and that there cannot be any restrictions placed on that decision.

Court: The Supreme Court of India

Bench: Justice Hemant Gupta and Sudhanshu Dhulia

Citation: Civil Appeal No. 7095 of 2022

Date of Judgment: 13th October 2022

"If she wants to wear hijab, even inside her classroom, 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, & in those cases, her hijab is her ticket to education. 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!,"- Justice Sudhanshu Dhulia

Facts of the Case

The facts that gave rise to the appeal are as follows:

1. The challenge in the present appeal was in context 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."

The Government Order was passed in consonance with the Karnataka Education Act 1983.

2. The Government of Karnataka passed the Karnataka Education Act in 1983. All school pupils enrolled in Karnataka are required by Section [7(2)(g)(v)] to act in a fraternal manner, transcend group identity, and cultivate a sense of social justice. The government may give this kind of instruction to schools and colleges under Section 133 of the aforementioned statute.

3. To implement government programs, use budgetary resources, improve basic facilities, and uphold academic standards, all of the state's colleges and universities have established development committees. It is advised that the colleges and institutions follow the guidelines set forth by these development committees.

4. The Act also provides for the withdrawal of recognition if a local authority or the governing council of a private educational institution refuses to admit a citizen on the basis of their race, religion, caste, or language [Section 39 (1)(b)]; or directly or indirectly supports in the educational institution any propaganda or practice that hurts the religious feelings of any class of Indian citizens or insults their religion or religious beliefs.

5. The impugned Government Order has been issued by exercising the powers conferred under Section 133 of the Act which states:

• 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 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 proceeding taken by him.
• 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.
• 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.

6. The State Government is also empowered to make rules to carry out the purposes of this Act under Section 145 of the Act. Sub-section (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)].

7. The challenge to the Circular dated 5.2.2022 before the High Court remained unsuccessful on various grounds.

Issues Involved

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

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 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?

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

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

5. Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 are 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?

6. Whether the Government Order impinges upon the Constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51-A sub-clauses (e) and (f)?

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

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?

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

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?

Laws Applied

The Constitution of India

Equality before law (Article 14) —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Protection of certain rights regarding freedom of speech, etc. (Article 19) — (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions [or co-operative societies];

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(g) to practise any profession, or to carry on any occupation, trade or business.

(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 4 [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.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing, in the interests of [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in 5 [sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 1 [nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry, or service, whether to the exclusion, complete or partial, of citizens or otherwise.]

Protection of life and personal liberty (Article 21) —No person shall be deprived of his life or personal liberty except according to a procedure established by law.

Right to education (Article 21A) —The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]

Freedom of conscience and free profession, practice, and propagation of religion (Article 25) —(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, practice, 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. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Right of minorities to establish and administer educational institutions(Article 30) —

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Certain principles of policy to be followed by the State (Article 39) —The State shall, in particular, direct its policy towards securing—

(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.

Right to work, to education, and to public assistance in certain cases (Article 41) —The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education, and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections (Article 46) —The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Fundamental duties (Article 51A) — It shall be the duty of every citizen of India—

(e) 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;

(f) to value and preserve the rich heritage of our composite culture;

Rules of Court, etc. (Article 145) — The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

Karnataka Education Act,1983

Delegation (Section 143) - 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.

Judgment

The Supreme Court issued a split verdict about whether Muslim students need to remove their hijabs at the school gates. Justice Hemant Gupta upheld Karnataka's prohibitive government order of February 5, saying

"apparent symbols of religious belief cannot be worn to secular schools maintained from State funds".

He further added, 'secularity' meant uniformity, manifested by parity among students in terms of uniformity. Thus, held that adherence to the uniform was a reasonable restriction to free expression. The discipline reinforced equality. The State had never forced students out of State schools by restricting hijab. The decision to stay out was a "voluntary act" of the student.

In his divergent opinion, Justice Sudhanshu Dhulia said secularity meant tolerance to "diversity". Wearing or not wearing a hijab to school was "ultimately a matter of choice". For girls from conservative families,

"her hijab is her ticket to education".

He held "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. There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.

Justice Gupta, in his opinion, said students need to follow the discipline of wearing the school uniform without any "addition, subtraction or modification". A student cannot claim the right to wear a headscarf to a secular school as a matter of right.

"A girl's right to express herself by wearing a hijab stopped at the school gate".

In return to this Justice Dhulia observed that

"It is necessary to have discipline in schools. But discipline not at the cost of freedom or dignity… She carries her dignity and privacy in her person, even inside her school gate or classroom."

This case would now be re-heard by a larger Bench.

Conclusion

Different perspectives on the law and its application are at the root of the division within the bench. But upon closer inspection, the distinction becomes much more fundamental; it is a distinction in point of view. One of these worlds is one where students are treated like undifferentiated lumps of clay who are to be moulded into what the authority considers to be "model citizens." It is one where authority tolerates no "rebel or defiance," homogeneity, the denial of difference, and the "unanimity of the graveyard," as well as one tune and one song.

The other world values diversity and plurality, freedom, and plurality, diversity and the expression of diversity over homogeneity, the beauty of an orchestra with many voices rather than just one, the classroom as a place of liberation rather than control, and views students as autonomous, thinking beings who are capable of making choices, even difficult ones that must be negotiated.

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