Karnataka High Court
Ayesha Hajeera Almas vs Chief Secretary on 15 March, 2022
Bench: Chief Justice, Krishna S J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
AND
THE HON'BLE MS. JUSTICE J. M. KHAZI
WRIT PETITION NO. 2347/2022 (GM-RES) C/w
WRIT PETITION NO. 2146/2022 (GM-RES),
WRIT PETITION NO. 2880/2022 (GM-RES),
WRIT PETITION NO. 3038/2022 (GM-RES),
WRIT PETITION NO. 3424/2022 (GM-RES-PIL),
WRIT PETITION NO. 4309/2022 (GM-RES),
WRIT PETITION NO. 4338/2022 (GM-RES-PIL)
IN W.P. NO.2347 OF 2022
BETWEEN:
1. SMT RESHAM,
D/O K FARUK,
AGED ABOUT 17 YEARS,
THROUGH NEXT FRIEND
SRI MUBARAK,
S/O F FARUK,
AGED ABOUT 21 YEARS,
BOTH RESIDING AT NO.9-138,
PERAMPALI ROAD,
SANTHEKATTE,
SANTHOSH NAGARA, MANIPAL ROAD,
KUNJIBETTU POST,
UDUPI, KARNATAKA-576105.
... PETITIONER
(BY PROF. RAVIVARMA KUMAR, SENIOR ADVOCATE FOR
SHRI ABHISHEK JANARDHAN, SHRI ARNAV. A. BAGALWADI &
SHRI SHATHABISH SHIVANNA, ADVOCATES)
2
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF PRIMARY AND
SECONDARY EDUCATION
2. GOVERNMENT PU COLLEGE FOR GIRLS
BEHIND SYNDICATE BANK
NEAR HARSHA STORE
UDUPI
KARNATAKA-576101
REPRESENTED BY ITS PRINCIPAL
3. DISTRICT COMMISSIONER
UDUPI DISTRICT
MANIPAL
AGUMBE - UDUPI HIGHWAY
ESHWAR NAGAR
MANIPAL, KARNATAKA-576104.
4. THE DIRECTOR
KARNATAKA PRE-UNIVERSITY BOARD
DEPARTMENT OF PRE-UNIVERSITY EDUCATION
KARNATAKA, 18TH CROSS ROAD,
SAMPIGE ROAD,
MALESWARAM,
BENGALURU-560012.
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI,
SHRI SURYANSHU PRIYADARSHI &
SHRI ANANYA RAI, ADVOCATES FOR
RESPONDENTS 1 TO 3
SHRI DEEPAK NARAJJI, ADVOCATE IN IA 2/2022
SHRI KALEESWARAM RAJ & RAJITHA T.O. ADVOCATES IN
IA 3/2022 & IA 7/2022
SMT. THULASI K. RAJ & RAJITHA T.O ADVOCATES IN
IA 4/2022 & IA 6/2022
SHRI SUSHAL TIWARI, ADVOCATE IN IA 5/2022
SHRI BASAVAPRASAD KUNALE &
SHRI MOHAMMED AFEEF, ADVOCATES IN IA 8/2022
SHRI AKASH V.T. ADVOCATE IN IA 9/2022
SHRI R. KIRAN, ADVOCATE, IN IA 10/2022
SHRI AMRUTHESH N.P., ADVOCATE IN IA 11/2022
3
SHRI MOHAMMAD SHAKEEB, ADVOCATE IN IA 12/2022
Ms. MAITREYI KRISHNAN, ADVOCATE IN IA 13/2022
SHRI ADISH C. AGGARWAL, SENIOR ADVOCATE IN IA 14/2022,
IA 18/2022, IA 19/2022 & IA 21/2022
SHRI GIRISH KUMAR. R., ADVOCATE, IN IA 15/2022
Smt. SHUBHASHINI. S.P. PARTY-IN-PERSON IN IA 16/2022
SHRI ROHAN KOTHARI, ADVOCATE IN IA 17/2022
SHRI RANGANATHA P.M., PARTY-IN-PERSON IN IA 20/2022)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENT No. 2 NOT TO INTERFERE WITH THE PETITIONERS
FUNDAMENTAL RIGHT TO PRACTICE THE ESSENTIAL PRACTICES
OF HER RELIGION, INCLUDING WEARING OF HIJAB TO THE
RESPONDENT No. 2 UNIVERSITY WHILE ATTENDING CLASSES AND
ETC.
IN W.P. NO.2146 OF 2022
BETWEEN:
1. AYESHA HAJEERA ALMAS
AGED ABOUT 18 YEARS,
D/O MUPTHI MOHAMMED ABRURUL,
STUDENT,
REPRESENTED BY HER MOTHER KARANI,
SADIYA BANU
W/O MUPTHI MOHAMMED ABRURUL,
AGED ABOUT 40 YEARS,
R/AT NO 2-82 C KAVRADY,
OPP TO URDU SCHOOL,
KANDLUR VTC KAVRADY,
P O KAVRADI,
KUNDAPURA UDUPI 576211
2. RESHMA
AGE ABOUT 17 YEARS
D/O K FARUK
STUDENT
REPRESENTED BY HER MOTHER
RAHMATH W/O K FARUK
AGED ABOUT 45 YEARS
R/AT NO 9-138 PERAMPALLI ROAD
AMBAGILU SANTOSH NAGAR
SANTHEKATTE UDUPI 576105
3. ALIYA ASSADI
AGED ABOUT 17 YEARS,
4
D/O AYUB ASSADI
STUDENT
REPRESENTED BY HER FATHER
AYUB ASSADI
S/O ABDUL RAHIM
AGED ABOUT 49 YEARS,
R/AT NO 4-2-66 ABIDA MANZIL
NAYARKERE ROAD KIDIYOOR
AMBALAPADI UDUPI 576103
4. SHAFA
AGED ABOUT 17 YEARS,
D/O MOHAMMED SHAMEEM
STUDENT
REPRESENTED BY HER MOTHER
SHAHINA
W/O MOHAMMED SHAMEEM
AGED ABOUT 42 YEARS,
R/AT NO 3-73 MALLAR
GUJJI HOUSE MALLAR VILLAGE
MAJOOR KAUP UDUPI 576106
5. MUSKAAN ZAINAB
AGED ABOUT 17 YEARS
D/O ABDUL SHUKUR
STUDENT
REPRESENTED BY HER FATHER
ABDUL SHUKUR
S/O D ISMAIL SAHEB
AGED ABOUT 46 YEARS
R/AT NO 9-109 B,
VADABHANDESHWARA MALPE UDUPI 576108
... PETITIONERS
(BY SHRI. SANJAY HEGDE, SENIOR ADVOCATE FOR
SHRI MOHAMMED TAHIR & SMT.TANVEER AHMED MIR,
ADVOCATES FOR PETITIONERS 1, 3 TO 5)
(V/O DT. 15.02.2022, PETITION IN RESPECT OF PETITIONER No.2
STANDS DISMISSED AS WITHDRAWN)
AND:
1. CHIEF SECRETARY
PRIMARY AND HIGHER EDUCATION EDUCATION
DEPARTMENT
KARNATAKA GOVERNMENT MINISTRY
MS BUILDING BANGALORE 560001
5
2. DIRECTOR
PU EDUCATION DEPARTMENT
MALLESHWARAM
EDUCATION DEPARTMENT
BANGALORE 560012
3. DEPUTY DIRECTOR
PRE UNIVERSITY COLLEGE
UDUPI DIST UDUPI 576101
4. DEPUTY COMMISSIONER
DC OFFICE UDUPI
CITY UDUPI 576101
5. GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
REP BY ITS PRINCIPAL
6. RUDRE GOWDA
S/O NOT KNOWN
AGE ABOUT 55 YEARS,
OCCUPATION PRINCIPAL
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
7. GANGADHAR SHARMA
AGE ABOUT 51
S/O NOT KNOWN
VICE PRINCIPAL OF GOVT COLLEGE
R/AT NO 21/69 ANRGHYA
7TH CROSS MADVANAGAR
ADIUDUPI UDUPI 576102
8. DR YADAV
AGE ABOUT 56
S/O NOT KNOWN
HISTORY LECTURER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
9. PRAKASH SHETTY
AGE ABOUT 45
S/O NOT KNOWN
POLITICAL SCIENCE SUB LECTURER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
6
10 . DAYANANDA D
AGE ABOUT 50 YEARS,
S/O NOW KNOWN
SOCIOLOGY SUB LECTURER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
11 . RUDRAPPA
AGE ABOUT 51 YEARS
S/O NOT KNOWN
CHEMISTRY SUB LECTURER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
12 . SHALINI NAYAK
AGE ABOUT 48 YEARS,
W/O NOT KNOWN
BIOLOGY SUB LECTURER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
13 . CHAYA SHETTY
AGE ABOUT 40 YEARS,
W/O NOT KNOWN
PHYSICS SUB LECTURER
R/AT KUTPADY UDYAVAR UDUPI 574118
14 . DR USHA NAVEEN CHANDRA
AGE ABOUT 50 YEARS
W/O NOT KNOWN TEACHER
OFFICE AT GOVT PU COLLEGE FOR GIRLS
UDUPI CITY UDUPI 576101
15 . RAGHUPATHI BHAT
S/O LATE SRINIVAS BHARITHYA
AGE ABOUT 53 YEARS
LOCAL MLA AND
UNAUTHIRIZED CHAIRMAN OF CDMC
D NO 8-32 AT SHIVALLY VILLAGE PO
SHIVALLY UDUPI 576102
16 . YASHPAL ANAND SURANA
AGE ABOUT 50 YEARS
S/O NOT KNOWN
AUTHORIZED VICE CHAIRMAN OF CDMC
R/AT AJJARAKADU UDUPI H O UDUPI 576101
... RESPONDENTS
7
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI,
SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 4.
SHRI S.S. NAGANAND, SENIOR ADVOCATE FOR
SHRI RAKESH S.N. & SHRI S. VIVEKANANDA, ADVOCATES FOR R-
5 & R6.
SHRI RAGHAVENDRA SRIVATSA, ADVOCATE FOR R-7
SHRI GURU KRISHNA KUMAR, SENIOR ADVOCATE FOR
SHRI K. MOHAN KUMAR, ADVOCATE FOR R-8 & IN IA 2/2022
SHRI VENKATARAMANI, SENIOR ADVOCATE FOR
SHRI KASHYAP N. NAIK, ADVOCATE FOR R-12
SHRI VENKATARAMANI, SENIOR ADVOCATE FOR
SHRI VIKRAM PHADKE, ADVOCATE FOR R-13
SHRI NISHAN G.K. ADVOCATE FOR R-14
SHRI SAJAN POOVAYYA, SENIOR ADVOCATE FOR
SHRI MANU KULKARNI & SHRI VISHWAS N., ADVOCATES
FOR R-15
SHRI SAJAN POOVAYYA, SENIOR ADVOCATE FOR
SHRI MRINAL SHANKAR & SHRI N.S. SRIRAJ GOWDA, ADVOCATES
FOR R-16
SHRI SHIRAJ QUARAISHI & SHRI RUDRAPPA P., ADVOCATES IN IA
6/2022)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE THE
WRIT OF MANDMAUS AND ORDER TO RESPONDENT NOS. 1 AND 2
TO INITIATE ENQUIRY AGAINST THE RESPONDENT NO.5 COLLEGE
AND RESPONDENT NO.6 i.e., PRINCIPLE FOR VIOLATING
INSTRUCTION ENUMERATED UNDER CHAPTER 6 HEADING OF
IMPORTANT INFORMATION OF GUIDELINES OF PU DEPARTMENT
FOR ACADEMIC YEAR OF 2021-22 SAME AT ANNEXURE-J FOR
MAINTAINING UNIFORM IN THE P U COLLEGE AND ETC.
IN W.P. NO.2880 OF 2022
BETWEEN:
1. MISS AISHAT SHIFA
D/O ZULFIHUKAR
AGED ABOUT 17 YEARS
SANTOSH NAGAR
HEMMADY POST
KUNDAPUR TALUK
8
UDUPI DISTRICT-576230
REP BY HER NATURAL GUARDIAN AND
FATHER MR ZULFHUKAR
2. MISS THAIRIN BEGAM
D/O MOHAMMAD HUSSAIN
AGED ABOUT 18 YEARS
KAMPA KAVRADY
KANDLUR POST
KUNDAPURA
UDUPI DISTRICT-576201.
... PETITIONERS
(BY SHRI DEVADUTT KAMAT, SENIOR ADVOCATE FOR
SHRI MOHAMMAD NIYAZ, ADVOCATE FOR PETITIONERS)
AND:
1. THE STATE OF KARNATAKA
VIDHANA SOUDHA
DR AMBEDKAR ROAD
BANGALORE - 560001
REPRESENTED BY ITS PRINCIPAL SECRETARY
2. THE UNDER SECRETARY TO GOVERNMENT
DEPARTMENT OF EDUCATION
VIKAS SOUDHA
BANGALORE-560001.
3. THE DIRECTORATE
DEPARTMENT OF PRE UNIVERSITY EDUCATION
BANGALORE-560009.
4. THE DEPUTY COMMISSIONER
UDUPI DISTRICT
SHIVALLI RAJATADRI
MANIPAL
UDUPI-576104.
5. THE PRINCIPAL
GOVERNMENT PU COLLEGE
KUNDAPURA
UDUPI DISTRICT-576201.
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
9
SHRI SUSHAL TIWARI,
SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 5
SHRI AIYAPPA, K.G. ADVOCATE IN IA 2/2022.
SHRI S. VIVEKANANDA, ADVOCATE IN IA 3/2022
SMT. SHIVANI SHETTY, ADVOCATE IN IA 4/2022.
SHRI SHASHANK SHEKAR JHA, ADVOCATE IN IA 5/2022)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED DIRECTION DATED 05.02.2022 VIDE ORDER No.EP 14
SHH 2022 PASSED BY THE RESPONDENT NO. 2 VIDE ANNEXURE-A
AND ETC.
IN W.P. NO.3038 OF 2022
BETWEEN:
1 . MISS SHAHEENA
D/O ABDUL RAHEEM
AGED ABOUT 19 YEARS
SANTOSH NAGAR
HEMMADI POST, KUNDAPUR TALUK
UDUPI DISTRICT-576230.
2 . MISS SHIFA MINAZ
D/O NAYAZ AHAMMAD
AGED ABOUT 18 YEARS
SANTOSH NAGAR
HEMMADI POST,
KUNDAPUR TALUK
UDUPI DISTRICT-576230.
... PETITIONERS
(BY SHRI YUSUF MUCHCHALA, SENIOR ADVOCATE FOR
SHRI NAVEED AHMED, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
VIDHANA SOUDHA
DR AMBEDKAR ROAD
BANGALORE-560001
REPRESENTED BY ITS PRINCIPAL SECRETARY
2. THE UNDER SECRETARY TO GOVERNMENT
DEPARTMENT OF EDUCATION
VIKAS SOUDHA
10
BANGALORE-560001.
3. THE DIRECTORATE
DEPARTMENT OF PRE UNIVERSITY EDUCATION
BANGALORE-560009
4. THE DEPUTY COMMISSIONER
UDUPI DISTRICT
SHIVALLI RAJATADRI MANIPAL
UDUPI-576104.
5. THE PRINCIPAL
GOVERNMENT PU COLLEGE
KUNDAPURA
UDUPI DISTRICT-576201.
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED DIRECTION DATED 05.02.2022 VIDE ORDER No.EP 14
SHH 2022 PASSED BY THE RESPONDENT NO. 2 VIDE ANNEXURE-A
AND ETC.
IN W.P. NO.3424 OF 2022
BETWEEN:
DR VINOD G KULKARNI
M.D. (BOM) (PSYCHIATRY) D P M (BOM)
FIPS LLB (KSLU)
AGED ABOUT 70 YEARS,
OCCUPATION CONSULTING
NEUROPSYCHIATRIST ADVOCATE AND
SOCIAL ACTIVIST
R/O MANAS PRABHAT COLONY,
VIDYANAGAR, HUBBALLI -580 021
DIST DHARWAD KARNATAKA
CELL NO.9844089068
... PETITIONER
(BY DR. VINOD G. KULKARNI, PETITIONER -IN-PERSON)
11
AND:
1 . THE UNION OF INDIA
NEW DELHI
REPRESENTED BY
THE PRINCIPAL SECRETARY TO
MINISTRY OF HOME AFFAIRS
NORTH BLOCK NEW DELHI-110011
PH NO.01123092989
01123093031
Email: [email protected]
2 . THE UNION OF INDIA
NEW DELHI
REPRESENTED BY
THE PRINCIPAL SECRETARY TO
MINISTRY OF LAW AND JUSTICE
4TH FLOOR A-WING SHASHI BAHAR
NEW DELHI--110011
PH NO.01123384205
Email: [email protected]
3 . THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BANGALURU-560001
Email: [email protected]
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES FOR RESPONDENT No.3.
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING FOR APPROPRIATE
WRIT OR ORDER OR DIRECTIONS IN THE NATURE OF MANDAMUS
OR ANY OTHER APPROPRIATE WRIT ORDER OR DIRECTIONS BE
ISSUED TO THE RESPONDENTS TO DECLARE THAT ALL THE
STUDENTS OF VARIOUS SCHOOLS AND COLLEGES IN KARNATAKA
AND IN THE COUNTRY SHALL ATTEND THEIR INSTITUTIONS BY
SPORTING THE STIPULATED UNIFORM AND ETC.
12
IN W.P. NO.4309 OF 2022
BETWEEN:
1. MS ASLEENA HANIYA
D/O LATE MR UBEDULLAH
AGED ABOUT 18 YEARS
R/AT NO.1560 13TH MAIN ROAD HAL 3RD STAGE
KODIHALLI BANGALORE-560008
STUDYING AT NEW HORIZON COLLEGE
ADDRESS 3RD A CROSS 2ND A MAIN ROAD
NGEF LAYOUT, KASTURI NAGAR
BANGALORE-560043.
2. MS ZUNAIRA AMBER T
AGED ABOUT 16 YEARS
MINOR REPRESENTED BY HER FATHER
MR TAJ AHMED
R/A NO.674 9TH A MAIN 1ST STAGE 1ST CROSS
CMH ROAD OPPOSITE KFC SIGNAL
INDIRANAGAR
BANGALORE-560038
STUDYING AT SRI CHAITANYA TECHNO SCHOOL
ADDRESS-PLOT NO.84/1 GARDEN HOUSE 5TH MAIN
SRR KALYAN MANTAPA
OMBR LAYOUT, BANASWADI
KASTURI NAGAR
BENGALURU-560043.
... PETITIONERS
(BY SHRI A.M. DAR, SENIOR ADVOCATE FOR
SHRI MUNEER AHMED, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY
DEPARTMENT OF PRIMARY AND SECONDARY DEPARTMENT
2ND GATE 6TH FLOOR M S BUILDING
DR AMBEDKAR VEEDHI
BENGALURU-560001.
2. THE UNDER SECRETARY TO GOVERNMENT
DEPARTMENT OF EDUCATION
VIKAS SOUDHA
BANGALORE-560001.
13
3. THE DIRECTOR
KARNATAKA PRE-UNIVERSITY BOARD
DEPARTMENT OF PRE-UNIVERSITY EDUCATION
KARNATAKA
NO.18TH CROSS ROAD SAMPIGE ROAD
MALESWARAM
BENGALURU-560012.
4. THE COMMISSIONER
EDUCATION DEPARTMENT
GOVT OF KARNATAKA
N T ROAD
BANGALORE-560001.
5. DIRECTOR GENERAL OF POLICE
STATE OF KARNATAKA
STATE POLICE HEADQUARTERS NO.2
NRUPATHUNGA ROAD
BANGALORE-560001.
6. THE PRINCIPAL
REPRESENTED BY COLLEGE MANAGEMENT
NEW HORIZON COLLEGE
ADDRESS 3RD A CROSS 2ND A MAIN ROAD
NGEF LAYOUT, KASTURI NAGAR
BANGALORE-560043.
7. THE PRINCIPAL
REPRESENTED BY SCHOOL MANAGEMENT
SRI CHAITANYA TECHNO SCHOOL
ADDRESS PLOT NO.84/1 GARDEN HOUSE
5TH MAIN SRR KALYAAN MANTAPA
OMBR LAYOUT, BANASWADI KASTURI NAGAR
BENGALURU-560043.
8. THE INSPECTOR OF POLICE
RAMAMURTHYNAGAR POLICE STATION
KEMPE GOWDA UNDER PASS ROAD
NGEF LAYOUT
DOORAVANI NAGAR, BENGALURU
KARNATAKA-560016.
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES FOR RESPONDENTS 1 TO 5 & 8)
14
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
GOVERNMENT ORDER NO. EP 14 SHH 2022 DATED 05.02.2022,
PRODUCED AS ANNEXURE-A AND ETC.
IN W.P. NO.4338 OF 2022
BETWEEN:
GHANSHYAM UPADHYAY
AGED 51 YEARS,
INDIAN INHABITANT,
OCCUPATION,
ADVOCATE HAVING HIS OFFICE AT 506,
ARCADIA PREMISES,
195, NCPA ROAD,
NARIMAN POINT,
MUMBAI-400021
... PETITIONER
(BY SHRI SUBHASH JHA & AMRUTHESH. N.P., ADVOCATES FOR
PETITIONER)
AND:
1. UNION OF INDIA
THROUGH THE MINISTRY OF HOME AFFAIRS,
NEW DELHI
REPRESENTED BY ITS SECRETARY
2. STATE OF KARNATAKA
THROUGH THE HOME MINISTRY
VIDHANA SOUDHA,
BENGALURU-560001
REPRESENTED BY CHIEF SECRETARY
3. THE PRINCIPAL SECRETARY
DEPARTMENT OF PRIMARY AND SECONDARY EDUCATION,
VIDHAN SOUDHA,
BENGALURU-560001
4. THE DIRECTOR
CENTRAL BUREAU OF INVESTIGATION,
KARNATAKA
15
5. NATIONAL INVESTIGATION AGENCY
BENGALURU,
KARNATAKA
REPRESENTED BY DIRECTOR
... RESPONDENTS
(BY SHRI PRABHULING K. NAVADGI, ADVOCATE GENERAL A/W
SHRI. ARUNA SHYAM, ADDITIONAL ADVOCATE GENERAL
SHRI VINOD KUMAR, ADDITIONAL GOVERNMENT ADVOCATE
SHRI SUSHAL TIWARI, SHRI SURYANSHU PRIYADARSHI &
Ms. ANANYA RAI, ADVOCATES FOR RESPONDENT NOS. 2 & 3.
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECT THE CBI/NIA
AND/OR SUCH OTHER INVESTIGATION AGENCY AS THIS HONBLE
COURT MAY DEEM FIT AND PROPER TO MAKE A THOROUGH
INVESTIGATION WITH REGARD TO THE MASSIVE AGITATION
TAKING PLACE ALL OVER THE COUNTRY AND SPIRALLING EFFECT
AND IMPACT BEYOND THE GEOGRAPHICAL LIMITS OF INDIA IN
THE AFTERMATH OF ISSUANCE OF GOVERNEMNT ORDER
DTD.5.2.2022 ISSUED UNDER KARNATAKA EDUCATION ACT 1983
BY THE STATE OF KARNATAKA AND TO FIND OUT AS TO WHETHER
THERE IS INVOLVEMENT OF RADICAL ISLAMIST ORGANIZATIONS
SUCH AS PFI, SIO (STUDENT ISLAMIC ORGANIZATION) CFI
(CAMPUS FRONT OF INDIA) JAMAAT-E-ISLAMI WHICH IS FUNDED
BY SAUDI ARABIAN UNIVERSITES TO ISLAMISE INDIA AND TO
ADVANCE RADICAL ISLAM IN INDIA AND SUBMIT THE REPORT OF
SUCH ENQUIRY/INVESTIGATION TO THIS HON'BLE COURT WITHIN
SUCH MEASURABLE PERIOD OF TIME AS THIS HONBLE COURT
MAY DEEM FIT AND PROPER AND ETC.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE CHIEF JUSTICE PRONOUNCED
THE FOLLOWING:
ORDER
This judgment, we desire to begin with what Sara
Slininger from Centralia, Illinois concluded her well
researched article "VEILED WOMEN: HIJAB, RELIGION, AND
CULTURAL PRACTICE-2013":
"The hijab's history...is a complex one, influenced
by the intersection of religion and culture over time. While
some women no doubt veil themselves because of
pressure put on them by society, others do so by choice
for many reasons. The veil appears on the surface to be a
simple thing. That simplicity is deceiving, as the hijab
represents the beliefs and practices of those who wear it
or choose not to, and the understandings and
misunderstandings of those who observe it being worn.
Its complexity lies behind the veil."
Three of these cases namely W.P.No.2347/2022,
W.P.No.2146/2022 & W.P.No.2880/2022, were referred by
one of us (Krishna S Dixit J.) vide order dated 09.02.2022 to
consider if a larger Bench could be constituted to hear them.
The Reference Order inter alia observed:
"All these matters essentially relate to proscription
of hijab (headscarf) while prescribing the uniform for
students who profess Islamic faith...The recent
Government Order dated 05.02.2022 which arguably
facilitates enforcement of this rule is also put in challenge.
Whether wearing of hijab is a part of essential religious
practice in Islam, is the jugular vein of all these
matters...The said question along with other needs to be
answered in the light of constitutional guarantees
availing to the religious minorities. This Court after
hearing the matter for some time is of a considered
opinion that regard being had to enormous public
importance of the questions involved, the batch of these
cases may be heard by a Larger Bench, if Hon'ble the
Chief Justice so decides in discretion...In the above
circumstances, the Registry is directed to place the
papers immediately at the hands of Hon'ble the Chief
Justice for consideration..."
Accordingly, this Special Bench came to be constituted
the very same day vide Notification dated 09.02.2022 to hear
these petitions, to which other companion cases too joined.
(i)
I. PETITIONERS' GRIEVANCES & PRAYERS BRIEFLY
STATED:
(i) In Writ Petition No. 2347/2022, filed by a
petitioner - girl student on 31.01.2022, the 1st, 3rd & 4th
respondents happen to be the State Government & its
officials, and the 2nd respondent happens to be the
Government Pre-University College for Girls, Udupi. The
prayer is for a direction to the respondents to permit the
petitioner to wear hijab (head - scarf) in the class room, since
wearing it is a part of 'essential religious practice' of Islam.
(ii) In Writ Petition No. 2146/2022 filed by a
petitioner-girl student on 29.01.2022, the 1st, 3rd & 4th
respondents happen to be the State Government & its officials
and the 2nd respondent happens to be the Government Pre -
University College for Girls, Udupi. The prayer column has the
following script:
"1. Issue the WRIT OF MANDAMUS and order to
respondent no 1 and 2 to initiate enquiry against
the Respondent 5 college and Respondent no 6 i.e.
Principal for violating instruction enumerated under
Chapter 6 heading of "Important information" of
Guidelines of PU Department for academic year of
2021-22 same at ANNEXURE J for maintaining
uniform in the PU college.,
2. Issue WRIT OF MANDAMUS to Respondent
no 3 conduct enquiry against the Respondent no 6
to 14 for their Hostile approach towards the
petitioners students.,
3. Issue WRIT OF QUO WARRANTO against the
Respondent no 15 and 16 under which authority
and law they interfering in the administration of
Respondent no 5 school and promoting their
political agenda. And,
4. DECLARE that the status quo referred in the
letter dated 25/01/2022 at ANNEXURE H is with
the consonance to the Department guidelines for the
academic year 2021-22 same at ANNEXURE J..."
(iii) In Writ Petition Nos.2880/2022, 3038/2022 &
4309/2022, petitioner - girl students seek to lay a challenge
to the Government Order dated 05.02.2022. This order
purportedly issued under section 133 read with sections 7(2)
& (5) of the Karnataka Education Act, 1983 (hereafter '1983
Act') provides that, the students should compulsorily adhere
to the dress code/uniform as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre-University colleges that come within the
jurisdiction of the Department of the Pre-
University Education, as prescribed by the
College Development Committee or College
Supervision Committee; and
d. wherever no dress code is prescribed, such
attire that would accord with 'equality &
integrity' and would not disrupt the 'public
order'.
(iv) In Writ Petition No.3424/2022 (GM-RES-PIL),
filed on 14.02.2022 (when hearing of other cases was
half way through), petitioner - Dr.Vinod Kulkarni
happens to be a consulting neuro - psychiatrist,
advocate & social activist. The 1st and 2nd respondents
happen to be the Central Government and the 3rd
respondent happens to be the State Government. The
first prayer is for a direction to the respondents "to
declare that all the students of various schools and
colleges in Karnataka and in the country shall attend
their institutions by sporting the stipulated uniform" (sic).
Second prayer reads "To permit Female Muslim students
to sport Hijab provided they wear the stipulated school
uniform also" (sic).
(v) In Writ Petition No.4338/2022 (GM-RES-
PIL), filed on 25.02.2022 (when hearing of other cases
was half way through), one Mr. Ghanasham Upadhyay
is the petitioner. The 1st respondent is the Central
Government, 2nd & 3rd respondents happen to be the
State Government & its Principal Secretary, Department
of Primary & Secondary Education; the 4th & 5th
respondents happen to be the Central Bureau of
Investigation and National Investigation Agency. The gist
of the lengthy and inarticulate prayers are that the
Central Bureau of Investigation/National Investigation
Agency or such other investigating agency should make
a thorough investigation in the nationwide agitation
after the issuance of the Government Order dated
05.02.2022 to ascertain the involvement of radical
organizations such as Popular Front of India, Students
Islamic Organization of India, Campus Front of India
and Jamaat-e-Islami; to hold and declare that wearing of
hijab, burqa or such "other costumes by male or female
Muslims and that sporting beard is not an integral part
of essential religious practice of Islam" and therefore,
prescription of dress code is permissible. There are other
incoherent and inapplicable prayers that do not merit
mentioning here.
(vi) The State and its officials are represented by
the learned Advocate General. The respondent-Colleges
and other respondents are represented by their
respective advocates. The State has filed the Statement
of Objections (this is adopted in all other matters) on
10.02.2022; other respondents have filed their
Statements of Objections, as well. Some petitioners have
filed their Rejoinder to the Statement of Objections. The
respondents resist the Writ Petitions making submission
in justification of the impugned order.
II. BROAD CONTENTIONS OF PETITIONERS:
(i) Petitioner - students profess and practice Islamic
faith. Wearing of hijab (head - scarf) is an 'essential religious
practice' in Islam, the same being a Quranic injunction vide
AMNAH BINT BASHEER vs. CENTRAL BOARD OF SECONDARY
EDUCATION1 and AJMAL KHAN vs. ELECTION COMMISSION
OF INDIA2. Neither the State Government nor the Schools can
prescribe a dress code/uniform that does not permit the
students to wear hijab. The action of the respondent - schools
in insisting upon the removal of hijab in the educational
institutions is impermissible, as being violative of the
fundamental right guaranteed under Article 25 of the
1 (2016) SCC OnLine Ker 41117
2 (2006) SCC OnLine Mad 794
Constitution vide SRI VENKATARAMANA DEVARU vs. STATE
OF MYSORE3 and INDIAN YOUNG LAWYERS ASSOCIATION vs.
STATE OF KERALA4
(ii) The impugned Government Order dated
05.02.2022 is structured with a wrong narrative that wearing
of hijab is not a part of 'essential religious practice' of Islam
and therefore, prescribing or authorizing the prescription of
dress code/uniform to the students consistent with the said
narrative, is violative of their fundamental right to freedom of
conscience and the right to practice their religious faith
constitutionally guaranteed under Article 25 vide BIJOE
EMMANUAL vs. STATE OF KERALA5.
(iii) One's personal appearance or choice of dressing is
a protected zone within the 'freedom of expression' vide
NATIONAL LEGAL SERVICES AUTHORITY vs. UNION OF
INDIA6; What one wears and how one dresses is a matter of
individual choice protected under 'privacy jurisprudence' vide
K.S PUTTASWAMY vs. UNION OF INDIA7. The Government
Order and the action of the schools to the extent that they do
3 1958 SCR 895
4 (2019) 11 SCC 1
5 (1986) 3 SCC 615
6 (2014) 5 SCC 438
7 (2017) 10 SCC 1
not permit the students to wear hijab in the institutions are
repugnant to these fundamental rights constitutionally
availing under Articles 19(1)(a) & 21.
(iv) The action of the State and the schools suffers
from the violation of 'doctrine of proportionality' inasmuch as
in taking the extreme step of banning the hijab within the
campus, the possible alternatives that pass the 'least
restrictive test' have not been explored vide MODERN DENTAL
COLLEGE vs. STATE OF MADHYA PRADESH8 and MOHD.
FARUK V. STATE OF MADHYA PRADESH9.
(v) The impugned Government Order suffers from
'manifest arbitrariness' in terms of SHAYARA BANO VS.
UNION OF INDIA10. The impugned Government Order suffers
from a gross non-application of mind and a misdirection in
law since it is founded on a wrong legal premise that the Apex
Court in AHSA RENJAN vs. STATE OF BIHAR11, the High
Courts in Writ Petition(C) No. 35293/2018, FATHIMA
HUSSAIN vs. BHARATH EDUCATION SOCIETY12,
V.KAMALAMMA vs. DR. M.G.R. MEDICAL UNIVERSITY and SIR
8 (2016) 7 SCC 353
9 (1969) 1 SCC 853
10 (2017) 9 SCC 1
11 (2017) 4 SCC 397
12 AIR 2003 Bom 75
M. VENKATA SUBBARAO MARTICULATION HIGHER
SECONDARY SCHOOL STAFF ASSOCIATION vs. SIR M.
VENKATA SUBBARAO MARTICULATION HIGHER SECONDARY
SCHOOL13 have held that the wearing of hijab is not a part of
essential religious practice of Islam when contrary is their
demonstrable ratio.
(vi) The impugned Government Order is the result of
acting under dictation and therefore, is vitiated on this
ground of Administrative Law, going by the admission of
learned Advocate General that the draftsmen of this order has
gone too far and the draftsman exceeded the brief vide
ORIENT PAPER MILLS LTD vs. UNION OF INDIA14 and
MANOHAR LAL vs. UGRASEN15. Even otherwise, the grounds
on which the said government order is structured being
unsustainable, it has to go and that supportive grounds
cannot be supplied de hors the order vide MOHINDER SINGH
GILL vs. CHIEF ELECTION COMMISSIONER.16
(vii) The Government is yet to take a final decision with
regard to prescription of uniform in the Pre-University
13 (2004) 2 MLJ 653
14 (1970) 3 SCC 76
15 (2010) 11 SCC 557
16 AIR 1978 SC 851
Colleges and a High Level Committee has to be constituted for
that purpose. The Kendriya Vidyalayas under the control of
the Central Government too permit the wearing of hijab (head-
scarf). There is no reason why similar practise should not be
permitted in other institutions.
(viii) The Karnataka Education Act, 1983 or the Rules
promulgated thereunder do not authorize prescription of any
dress code/uniform at all. Prescribing dress code in a school
is a matter of 'police power' which does not avail either to the
government or to the schools in the absence of statutory
enablement. Rule 11 of Karnataka Educational Institutions
(Classification, Regulation and Prescription of Curricula, etc)
Rules, 1995 (hereafter '1995 Curricula Rules') to the extent it
provides for prescription of uniform is incompetent and
therefore, nothing can be tapped from it.
(ix) The College Betterment (Development) Committee
constituted under Government Circular dated 31.1.2014 is
only an extra-legal authority and therefore, its prescription of
dress code/uniform for the students is without jurisdiction.
The prospectus issued by the Education Department prohibits
prescription of any uniform. The composition & complexion of
College Betterment (Development) Committee under the
Government Circular dated 31.1.2014 inter alia compromising
of local Member of Legislative Assembly as its President and
his nominee as the Vice - President would unjustifiably
politicize the educational environment and thereby, pollute
the tender minds. The Pre-University institutions are expected
to be independent and safe spaces.
(x) The College Betterment (Development) Committee
which inter alia comprises of the local Member of Legislative
Assembly vide the Government Circular dated 31.1.2014,
apart from being unauthorized, is violative of 'doctrine of
separation of powers' which is a basic feature of our
Constitution vide KESAVANANDA BHARATI vs. STATE OF
KERALA17 read with RAI SAHIB RAM JAWAYA KAPUR vs.
STATE OF PUNJAB18, and STATE OF WEST BENGAL vs.
COMMITTEE FOR PROTECTION OF DEMOCRACTIC RIGHTS19
also infringes upon of the principle of accountability vide
BHIM SINGH vs. UNION OF INDIA20. This committee has no
power to prescribe school uniforms.
17 AIR 1973 SC 1461
18 AIR 1955 SC 549
19 (2010) 3 SCC 571
20 (2010) 5 SCC 538
(xi) The ground of 'public order' (sārvajanika
suvyavasthe) on which the impugned Government Order is
founded is un-understandable; this expression is construed
with reference to 'public disorder' and therefore, the State
action is bad vide COMMISSIONER OF POLICE vs. C. ANITA21.
If wearing of hijab disrupts the public order, the State should
take action against those responsible for such disruption and
not ban the wearing of hijab. Such a duty is cast on the State
in view of a positive duty vide GULAM ABBAS vs. STATE OF
UTTAR PRADESH22, INDIBILY CREATIVE PVT. LTD vs. STATE
OF WEST BENGAL23. In addition such a right cannot be
curtailed based on the actions of the disrupters, i.e., the
'hecklers don't get the veto' vide TERMINIELLO vs. CHICAGO24,
BROWN vs. LOUISIANA25, TINKER vs. DES MOINES26, which
view is affirmed by the Apex Court in UNION OF INDIA vs.
K.M.SHANKARAPPA27. This duty is made more onerous
because of positive secularism contemplated by the
21 (2004) 7 SCC 467
22 (1982) 1 SCC 71
23 (2020) 12 SCC 436
24 337 U.S. 1 (1949)
25 383 U.S. 131 (1966)
26 393 U.S. 503 (1969)
27 (2001) 1 SCC 582
Constitution vide STATE OF KARNATAKA vs. PRAVEEN BHAI
THOGADIA (DR.)28, ARUNA ROY vs. UNION OF INDIA29.
(xii) Proscribing hijab in the educational institutions
apart from offending women's autonomy is violative of Article
14 inasmuch as the same amounts to 'gender-based'
discrimination which Article 15 does not permit. It also
violates right to education since entry of students with hijab
to the institution is interdicted. The government and the
schools should promote plurality, not uniformity or
homogeneity but heterogeneity in all aspects of lives as
opposed to conformity and homogeneity consistent with the
constitutional spirit of diversity and inclusiveness vide
VALSAMMA PAUL (MRS) vs. COCHIN UNIVERSITY30, SOCIETY
FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN vs. UNION
OF INDIA31 and NAVTEJ SINGH JOHAR vs. UNION OF INDIA32.
(xiii) The action of the State and the school authorities is
in derogation of International Conventions that provide for
protective discrimination of women's rights vide UNIVERSAL
DECLARATION OF HUMAN RIGHTS (1948), CONVENTION OF
28 (2004) 4 SCC 684
29 (2002) 7 SCC 368
30 (1996) 3 SCC 545
31 (2012) 6 SCC 1
32 AIR 2018 SC 4321
ELIMINATION ON ALL FORMS OF DISCRIMINATION AGAINST
WOMEN (1981), INTERNATIONAL COVENANTS ON CIVIL AND
POLITICAL RIGHTS (1966), UNITED NATIONS CONVENTION ON
RIGHTS OF CHILD (1989). To provide for a holistic and
comparative view of the 'principle of reasonable
accommodation' as facets of 'substantive-equality' under
Article 14 & 15 vide LT. COL. NITISHA vs. UNION OF INDIA33;
petitioners referred to the following decisions of foreign
jurisdictions in addition to native ones: MEC FOR
EDUCATION: KWAZULU - NATAL vs. NAVANEETHUM
PILLAY34, CHRISTIAN EDUCATION SOUTH AFRICA vs.
MINISTER OF EDUCATION35, R. vs. VIDEOFLEX36, BALVIR
SSINGH MULTANI vs. COMMISSION SCOLAIRE MARGUERITE -
BOURGEOYS37, ANTONIE vs. GOVERNING BODY, SETTLERS
HIGH SCHOOL38 and MOHAMMAD FUGICHA vs. METHODIST
CHRUCH IN KENYA39.
(xiv) In W.P.No.2146/2022, the school teachers have
been acting in derogation of the Brochure of the Education
33 (2021) SCC OnLine SC 261
34 [CCT51/06 [2007] ZACC 21]
35 [2000] ZACC 2
36 1948 2D 395
37 (2006) SCC OnLine Can SC 6
38 2002 (4) SA 738 (T)
39 (2016) SCC OnLine Kenya 3023
Department which prohibits prescribing any kind of uniform
inasmuch as they are forcing the students to remove hijab
and therefore, disciplinary action should be taken against
them. The respondents - 15 & 16 have no legal authority to
be on the College Betterment (Development) Committee and
therefore, they are liable to be removed by issuing a Writ of
Quo Warranto.
III. CONTENTIONS OF RESPONDENT - STATE &
COLLEGE AUTHORITIES:
Respondents i.e., State, institutions and teachers per
contra contend that:
(i) The fact matrix emerging from the petition
averments lacks the material particulars as to the wearing of
hijab being in practice at any point of time; no evidentiary
material worth mentioning is loaded to the record of the case,
even in respect of the scanty averments in the petition. Since
how long, the students have been wearing hijab invariably has
not been pleaded. At no point of time these students did wear
any head scarf not only in the class room but also in the
institution. Even otherwise, whatever rights petitioners claim
under Article 25 of the Constitution, are not absolute. They
are susceptible to reasonable restriction and regulation by
law. In any circumstance, the wearing hijab arguably as
being part of 'essential religious practice' in Islam cannot be
claimed by the students as a matter of right in all-girl-
institutions like the respondent PU College, Udupi.
(ii) Wearing hijab or head scarf is not a part of
'essential religious practice' of Islamic faith; the Holy Quran
does not contain any such injunctions; the Apex Court has
laid down the principles for determining what is an 'essential
religious practice' vide COMMISSIONER HINDU RELIGIOUS
ENDOWMENTS MADRAS vs. SRI LAKSHMINDRA THIRTHA
SWAMIAR OF SRI SHIRUR MUTT40, DURGAH COMMITTEE,
AJMER vs. SYED HUSSAIN ALI41, M. ISMAIL FARUQUI vs.
UNION OF INDIA42, A.S. NARAYANA DEEKSHITULU vs. STATE
OF ANDHRA PRADESH43, JAVED vs. STATE OF HARYANA44,
COMMISSIONER OF POLICE vs. ACHARYA
JAGADISHWARANANDA AVADHUTA45, AJMAL KHAN vs. THE
ELECTION COMMISSION46, SHARAYA BANO, INDIAN YOUNG
LAWYERS ASSOCIATION. Wearing hijab at the most may be a
40 AIR 1954 SC 282
41 AIR 1961 SC 1402
42 (1994) 4 SCC 360
43 (1996) 9 SCC 611
44 (2003) 8 SCC 369
45 (2004) 12 SCC 770
46 2006 SCC OnLine Mad 794
'cultural' practice which has nothing to do with religion.
Culture and religion are different from each other.
(iii) The educational institutions of the kind being
'qualified public places', the students have to adhere to the
campus discipline and dress code as lawfully prescribed since
years i.e., as early as 2004. The parents have in the
admission forms of their wards (minor students) have
signified their consent to such adherence. All the students
had been accordingly adhering to the same all through. It is
only in the recent past; quite a few students have raked up
this issue after being brainwashed by some fundamentalist
Muslim organizations like Popular Front of India, Campus
Front of India, Jamaat-e-Islami, and Students Islamic
Organization of India. An FIR is also registered. Police papers
are furnished to the court in a sealed cover since investigation
is half way through. Otherwise, the students and parents of
the Muslim community do not have any issue at all.
Therefore, they cannot now turn around and contend or act to
the contrary.
(iv) The power to prescribe school uniform is inherent
in the concept of school education itself. There is sufficient
indication of the same in the 1983 Act and the 1995 Curricula
Rules. It is wrong to argue that prescription of uniform is a
'police power' and that unless the Statute gives the same;
there cannot be any prescription of dress code for the
students. The so called 'prospectus' allegedly issued by the
Education Department prohibiting prescription of
uniform/dress code in the schools does not have any
authenticity nor legal efficacy.
(v) The Government Order dated 05.02.2022 is
compliant with the scheme of the 1983 Act, which provides
for 'cultivating a scientific and secular outlook through
education' and this G.O. has been issued under Section 133
read with Sections 7(1)(i), 7(2)(g)(v) of the Act and Rule 11 of
the 1995 Curricula Rules; this order only authorizes the
prescription of dress code by the institutions on their own and
it as such, does not prescribe any. These Sections and the
Rule intend to give effect to constitutional secularism and to
the ideals that animate Articles 39(f) & 51(A). The children
have to develop in a healthy manner and in conditions of
'freedom and dignity'; the school has to promote the spirit of
harmony and common brotherhood transcending religious,
linguistic, regional or sectional diversities. The practices that
are derogatory to the dignity of women have to be renounced.
All this would help nation building. This view is reflected in
the decision of Apex Court in MOHD. AHMED KHAN vs. SHAH
BANO BEGUM47.
(vi) The Government Order dated 5.02.2022 came to be
issued in the backdrop of social unrest and agitations within
the educational institutions and without engineered by
Popular Front of India, Students Islamic Organization of
India, Campus Front of India & Jamaat-e-Islami. The action of
the institutions in insisting adherence to uniforms is in the
interest of maintaining 'peace & tranquility'. The term 'public
order' (sārvajanika suvyavasthe) employed in the Government
Order has contextual meaning that keeps away from the same
expression employed in Article 19(2) of the Constitution.
(vii) The 'College Betterment (Development) Committees'
have been established vide Government Circular dated
31.01.2014 consistent with the object of 1983 Act and 1995
Curricula Rules. For about eight years or so, it has been in
place with not even a little finger being raised by anyone nor
is there any complaint against the composition or functioning
of these Committees. This Circular is not put in challenge in
47 (1985) 2 SCC 556
any of the Writ Petitions. These autonomous Committees have
been given power to prescribe uniforms/dress code vide SIR
M. VENKATA SUBBARAO & ASHA RENJAN supra, FATHIMA
THASNEEM vs. STATE OF KERALA48 and JANE SATHYA vs.
MEENAKSHI SUNDARAM ENGINEERING COLLEGE49. The
Constitution does not prohibit elected representatives of the
people being made a part of such committees.
(viii) The right to wear hijab if claimed under Article
19(1)(a), the provisions of Article 25 are not invocable
inasmuch as the simultaneous claims made under these two
provisions are not only mutually exclusive but denuding of
each other. In addition, be it the freedom of conscience, be it
the right to practise religion, be it the right to expression or be
it the right to privacy, all they are not absolute rights and
therefore, are susceptible to reasonable restriction or
regulation by law, of course subject to the riders prescribed
vide CHINTAMAN RAO vs. STATE OF MADHYA PRADESH50
and MOHD. FARUK V. STATE OF MADHYA PRADESH, supra.
(ix) Permitting the petitioner - students to wear hijab
(head - scarf) would offend the tenets of human dignity
48 2018 SCC OnLine Ker 5267
49 2012 SCC OnLine Mad 2607
50 AIR 1951 SC 118
inasmuch as, the practice robs away the individual choice of
Muslim women; the so called religious practice if claimed as a
matter of right, the claimant has to prima facie satisfy its
constitutional morality vide K.S PUTTAWAMY supra, INDIAN
YOUNG LAWYERS ASSOCIATION supra. There is a big shift in
the judicial approach to the very idea of essential religious
practice in Islamic faith since the decision in SHAYARA
BANO, supra, which the case of the petitioners overlooks. To
be an essential religious practice that merits protection under
Article 25, it has to be shown to be essential to the religion
concerned, in the sense that if the practice is renounced, the
religion in question ceases to be the religion.
(x) Children studying in schools are placed under the
care and supervision of the authorities and teachers of the
institution; therefore, they have 'parental and quasi - parental'
authority over the school children. This apart, schools are
'qualified public places' and therefore exclusion of religious
symbols is justified in light of 1995 Curricula Regulation that
are premised on the objective of secular education, uniformity
and standardization vide ADI SAIVA SIVACHARIYARGAL NALA
SANGAM vs. STATE OF TAMIL NADU51, S.R. BOMMAI vs.
UNION OF INDIA52, S.K. MOHD. RAFIQUE vs. CONTAI
RAHAMANIA HIGH MADRASAH53 and CHURCH OF GOD (FULL
GOSPEL) IN INDIA vs. K.K.R MAJECTIC COLONY WELFARE
ASSCOIATION54. What is prescribed in Kendriya Vidyalayas
as school uniform is not relevant for the State to decide on the
question of school uniform/dress code in other institutions.
This apart there is absolutely no violation of right to
education in any sense.
(xi) Petitioner-students in Writ Petition No.2146/2022
are absolutely not justified in seeking a disciplinary enquiry
against some teachers of the respondent college and removal
of some others from their position by issuing a Writ of Quo
Warranto. As already mentioned above, the so called
prospectus/instructions allegedly issued by the Education
Department prohibiting the dress code in the colleges cannot
be the basis for the issuance of coercive direction for
refraining the enforcement of dress code. The authenticity and
efficacy of the prospectus/instructions are not established.
51 (2016) 2 SCC 725
52 (1994) 3 SCC 1
53 (2020) 6 SCC 689
54 (2000) 7 SCC 282
In support of their contention and to provide for a
holistic and comparative view, the respondents have referred
to the following decisions of foreign jurisdictions, in addition
to native ones: LEYLA SAHIN vs. TURKEY55, WABE and MH
MÜLLER HANDEL56, REGINA vs. GOVERNORS OF DENBIGH
HIGH SCHOOL57 and UNITED STATES vs. O'BRIEN58 and
KOSE vs. TURKEY59.
IV. All these cases broadly involving common questions of
law & facts, are heard together on day to day basis with
the concurrence of the Bar. There were a few Public
Interest Litigations espousing or opposing the causes
involved in these cases. However, we decline to grant
indulgence in them by separate orders. Similarly, we
decline to entertain applications for impleadment and
intervention in these cases, although we have adverted
to the written submissions/supplements filed by the
respective applicants.
Having heard the learned counsel appearing for
the parties and having perused the papers on record, we
56 C-804/18 and C-341/19 dated 15th July 2021
57 [2006] 2 WLR 719
58 391 US 367 (1968)
have broadly framed the following questions for
consideration:
SL.NO. QUESTIONS FOR CONSIDERATION
1. Whether wearing hijab/head-scarf is a part of
'essential religious practice' in Islamic Faith protected
under Article 25 of the Constitution?
2. Whether prescription of school uniform is not legally
permissible, as being violative of petitioners
Fundamental Rights inter alia guaranteed under
Articles, 19(1)(a), (i.e., freedom of expression) and 21,
(i.e., privacy) of the Constitution?
3. Whether the Government Order dated 05.02.2022
apart from being incompetent is issued without
application of mind and further is manifestly arbitrary
and therefore, violates Articles 14 & 15 of the
Constitution?
4. Whether any case is made out in W.P.No.2146/2022
for issuance of a direction for initiating disciplinary
enquiry against respondent Nos.6 to 14 and for
issuance of a Writ of Quo Warranto against
respondent Nos.15 & 16?
V. SECULARISM AND FREEDOM OF CONSCIENCE &
RELIGION UNDER OUR CONSTITUTION:
Since both the sides in their submissions emphasized on
Secularism and freedom of conscience & right to religion, we
need to concisely treat them in a structured way. Such a need
is amplified even for adjudging the validity of the Government
Order dated 05.02.2022, which according to the State gives
effect to and operationalizes constitutional Secularism.
SECULARISM AS A BASIC FEATURE OF OUR
CONSTITUTION:
(i) 'India, that is Bharat' (Article 1), since centuries, has
been the sanctuary for several religions, faiths & cultures that
have prosperously co-existed, regardless of the ebb & flow of
political regimes. Chief Justice S.R. Das in IN RE: KERALA
EDUCATION BILL60 made the following observation lauding
the greatness of our heritage:
"...Throughout the ages endless inundations of men of
diverse creeds, cultures and races - Aryans and non-
Aryans, Dravidians and Chinese, Scythians, Huns,
Pathans and Mughals - have come to this ancient land
from distant regions and climes. India has welcomed
them all. They have met and gathered, given and taken
and got mingled, merged and lost in one body. India's
tradition has thus been epitomised in the following noble
lines:
"None shall be turned away From the shore of this vast
sea of humanity that is India" (Poems by Rabindranath
Tagore)..."
In S.R.BOMMAI, supra at paragraph 25, the Hon'ble Supreme
Court of India observed: "India can rightly be described as the
world's most heterogeneous society. It is a country with a rich
heritage. Several races have converged in this sub-
continent. They brought with them their own cultures,
languages, religions and customs. These diversities threw up
60 (1959) 1 SCR 996
their own problems but the early leadership showed wisdom
and sagacity in tackling them by preaching the philosophy of
accommodation and tolerance..."
(ii) The 42nd Amendment (1976) introduced the word
'secular' to the Preamble when our Constitution already had
such an animating character ab inceptio. Whatever be the
variants of its meaning, secularism has been a Basic Feature
of our polity vide KESAVANANDA, supra even before this
Amendment. The ethos of Indian secularism may not be
approximated to the idea of separation between Church and
State as envisaged under American Constitution post First
Amendment (1791). Our Constitution does not enact Karl
Marx's structural-functionalist view 'Religion is the opium of
masses' (1844). H.M.SEERVAI, an acclaimed jurist of yester
decades in his magnum opus 'Constitutional Law of India,
Fourth Edition, Tripathi at page 1259, writes: 'India is a
secular but not an anti-religious State, for our Constitution
guarantees the freedom of conscience and religion. Articles 27
and 28 emphasize the secular nature of the State...' Indian
secularism oscillates between sārva dharma samabhāava and
dharma nirapekshata. The Apex Court in INDIRA NEHRU
GANDHI vs. RAJ NARAIN61 explained the basic feature of
secularism to mean that the State shall have no religion of its
own and all persons shall be equally entitled to the freedom of
conscience and the right freely to profess, practice and
propagate religion. Since ages, India is a secular country. For
India, there is no official religion, inasmuch as it is not a
theocratic State. The State does not extend patronage to any
particular religion and thus, it maintains neutrality in the
sense that it does not discriminate anyone on the basis of
religious identities per se. Ours being a 'positive secularism'
vide PRAVEEN BHAI THOGADIA supra, is not antithesis of
religious devoutness but comprises in religious tolerance. It is
pertinent to mention here that Article 51A(e) of our
Constitution imposes a Fundamental Duty on every citizen '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'. It is relevant to mention
here itself that this constitutional duty to transcend the
sectional diversities of religion finds its utterance in section
7(2)(v) & (vi) of the 1983 Act which empowers the State
61 (1975) Supp. SCC 1
Government to prescribe the curricula that would amongst
other inculcate the sense of this duty.
VI. CONSTITUTIONAL RIGHT TO RELIGION AND
RESTRICTIONS THEREON:
(i) Whichever be the society, 'you can never separate
social life from religious life' said Alladi Krishnaswami Aiyar
during debates on Fundamental Rights in the Advisory
Committee (April 1947). The judicial pronouncements in
America and Australia coupled with freedom of religion
guaranteed in the Constitutions of several other countries
have substantially shaped the making of inter alia Articles 25
& 26 of our Constitution. Article 25(1) & (2) read as under:
"25. Freedom of conscience and free profession, practice
and propagation of religion
(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, practise 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 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."
This Article guarantees that every person in India shall have
the freedom of conscience and also the right to profess
practise and propagate religion. It is relevant to mention that
unlike Article 29, this article does not mention 'culture' as
such, which arguably may share a common border with
religion. We shall be touching the cultural aspect of hijab,
later. We do not propose to discuss about this as such. The
introduction of word 'conscience' was at the instance of Dr.
B.R.Ambedkar, who in his wisdom could visualize persons
who do not profess any religion or faith, like Chāarvāakas,
atheists & agnostics. Professor UPENDRA BAXI in 'THE
FUTURE OF HUMAN RIGHTS' (Oxford), 3rd Edition, 2008, at
page 149 says:
"...Under assemblage of human rights, individual human
beings may choose atheism or agnosticism, or they may make
choices to belong to fundamental faith communities.
Conscientious practices of freedom of conscience enable exit
through conversion from traditions of religion acquired initially
by the accident of birth or by the revision of choice of faith,
which may thus never be made irrevocably once for all..."
BIJOE EMMANUEL, supra operationalized the freedom of
conscience intricately mixed with a great measure of right to
religion. An acclaimed jurist DR. DURGA DAS BASU in his
'Commentary on the Constitution of India', 8th Edition at page
3459 writes: "It is next to be noted that the expression 'freedom
of conscience' stands in juxtaposition to the words "right freely
to profess, practise and propagate religion". If these two parts
of Art. 25(1) are read together, it would appear, by the
expression 'freedom of conscience' reference is made to the
mental process of belief or non-belief, while profession, practice
and propagation refer to external action in pursuance of the
mental idea or concept of the person...It is also to be noted that
the freedom of conscience or belief is, by its nature, absolute, it
would become subject to State regulation, in India as in the
U.S.A. as soon as it is externalized i.e., when such belief is
reflected into action which must necessarily affect other
people..."
(ii) There is no definition of religion or conscience in
our constitution. What the American Supreme Court in DAVIS
V. BEASON62 observed assumes relevance: "...the term religion
has reference to one's views of his relation to his Creator and to
62 (1889) 133 US 333
the obligation they impose of reverence for His Being and
character and of obedience to His will. It is often confounded
with cultus of form or worship of a particular sect, but is
distinguishable from the latter". WILL DURANT, a great
American historian (1885-1981) in his Magnum Opus 'THE
STORY OF CIVILIZATION', Volume 1 entitled 'OUR ORIENTAL
HERITAGE' at pages 68 & 69 writes:
'The priest did not create religion, he merely used it, as a
statesman uses the impulses and customs of mankind;
religion arises not out of sacerdotal invention or
chicanery, but out of the persistent wonder, fear,
insecurity, hopefulness and loneliness of men..." The
priest did harm by tolerating superstition and
monopolizing certain forms of knowledge...Religion
supports morality by two means chiefly: myth and tabu.
Myth creates the supernatural creed through which
celestial sanctions may be given to forms of conduct
socially (or sacerdotally) desirable; heavenly hopes and
terrors inspire the individual to put up with restraints
placed upon him by his masters and his group. Man is
not naturally obedient, gentle, or chaste; and next to that
ancient compulsion which finally generates conscience,
nothing so quietly and continuously conduces to these
uncongenial virtues as the fear of the gods...'.
In NARAYANAN NAMBUDRIPAD vs. MADRAS63, Venkatarama
Aiyar J. quoted the following observations of Leathem C.J in
63 AIR 1954 MAD 385
ADELAIDE CO. OF JEHOVAH'S WITNESSES INC. V.
COMMONWEALTH64:
"It would be difficult, if not impossible, to devise a
definition of religion which would satisfy the
adherents of all the many and various religions
which exist, or have existed, in the world. There are
those who regard religion as consisting principally
in a system of beliefs or statement of doctrine. So
viewed religion may be either true or false. Others
are more inclined to regard religion as prescribing a
code of conduct. So viewed a religion may be good
or bad. There are others who pay greater attention
to religion as involving some prescribed form of
ritual or religious observance. Many religious
conflicts have been concerned with matters of ritual
and observance..."
In SHIRUR MUTT supra, 'religion' has been given the widest
possible meaning. The English word 'religion' has different
shades and colours. It does not fully convey the Indian
concept of religion i.e., 'dharma' which has a very wide
meaning, one being 'moral values or ethics' on which the life
is naturally regulated. The Apex Court referring to the
aforesaid foreign decision observed:
"...We do not think that the above definition can be
regarded as either precise or adequate. Articles 25 and
26 of our Constitution are based for the most part
upon article 44(2) of the Constitution of Eire and we have
great doubt whether a definition of "religion" as given
above could have been in the minds of our Constitution-
makers when they framed the Constitution. Religion is
certainly a matter of faith with individuals or communities
64 (1943) 67 C.L.R. 116, 123
and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do
not believe in God or in any Intelligent First Cause. A
religion undoubtedly has its basis in a system of beliefs
or doctrines which are regarded by those who profess
that religion as conducive to their spiritual well being, but
it would not be correct to say that religion is nothing else
but a doctrine of belief. A religion may not only lay down
a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and modes
of worship which are regarded as integral parts of
religion, and these forms and observances might extend
even to matters of food and dress..."
(iii) It is relevant to quote what BERTRAND RUSSELL
in his 'EDUCATION AND SOCIAL ORDER' (1932) at page 69
wrote: 'Religion is a complex phenomenon, having both an
individual and a social aspect ...throughout history, increase of
civilization has been correlated with decrease of religiosity.'
The free exercise of religion under Article 25 is subject to
restrictions imposed by the State on the grounds of public
order, morality and health. Further it is made subordinate to
other provisions of Part III. Article 25(2)(a) reserves the power
of State to regulate or restrict any economic, financial,
political and other secular activities which may be associated
with religious practice. Article 25(2)(b) empowers the State to
legislate for social welfare and reform even though by so
doing, it might interfere with religious practice.
H.M.SEERVAI65 at paragraph 11.35, page 1274, states: "It has
been rightly held by Justice Venkatarama Aiyar for a very
strong Constitution Bench that Article 25(2) which provides for
social and economic reform is, on a plain reading, not limited to
individual rights. So, by an express provision, the freedom of
religion does not exclude social and economic reform although
the scope of social reform, would require to be defined." This
apart, Article 25(1) deals with rights of individuals whereas
Article 25(2) is much wider in its content and has reference to
communities. This Article, it is significant to note, begins with
the expression 'Subject to...'. Limitations imposed on religious
practices on the ground of public order, morality and health
having already been saved by the opening words of Article
25(1), the saving would cover beliefs and practices even
though considered essential or vital by those professing the
religion. The text & context of this Article juxtaposed with
other unmistakably show that the freedom guaranteed by this
provision in terms of sanctity, are placed on comparatively a
lower pedestal by the Makers of our Constitution qua other
Fundamental Rights conferred in Part III. This broad view
65 Constitutional Law of India: A Critical Commentary, 4th Edition
draws support from a catena of decisions of the Apex Court
beginning with VENKATARAMANA DEVARU, supra.
(iv) RELIGIOUS FREEDOM UNDER OUR
CONSTITUTION VIS-À-VIS AMERICAN CONSTITUTION:
The First Amendment to the US Constitution confers
freedoms in absolute terms and the freedoms granted are the
rule and restrictions on those freedoms are the exceptions
evolved by their courts. However, the Makers of our
Constitution in their wisdom markedly differed from this view.
Article 25 of our Constitution begins with the restriction and
further incorporates a specific provision i.e., clause (2) that in
so many words saves the power of State to regulate or restrict
these freedoms. Mr.Justice Douglas of the US Supreme Court
in KINGSLEY BOOKS INC. vs. BROWN66, in a sense lamented
about the absence of a corresponding provision in their
Constitution, saying "If we had a provision in our Constitution
for 'reasonable' regulation of the press such as India has
included in hers, there would be room for argument that
censorship in the interest of morality would be permissible". In
a similar context, what Chief Justice Hidayatullah, observed
66 354 US 436 (1957)
in K.A.ABBAS vs. UNION OF INDIA 67 makes it even more
evoking:
"...The American Constitution stated the guarantee in
absolute terms without any qualification. The Judges try
to give full effect to the guarantee by every argument they
can validly use. But the strongest proponent of the
freedom (Justice Douglas) himself recognised in the
Kingsley case that there must be a vital difference in
approach... In spite of the absence of such a provision
Judges in America have tried to read the words
'reasonable restrictions' into the First Amendment and
thus to make the rights it grants subject to reasonable
regulation ..."
Succinctly put, in the United States and Australia, the
freedom of religion was declared in absolute terms and courts
had to evolve exceptions to that freedom, whereas in India,
Articles 25 & 26 of the Constitution appreciably embody the
limits of that freedom.
(v) What is observed in INDIAN YOUNG LAWYERS
ASSOCIATION, supra at paragraphs 209 & 210 about the
scope and content of freedom of religion is illuminating:
"...Yet, the right to the freedom of religion is not absolute.
For the Constitution has expressly made it subject to
public order, morality and health on one hand and to the
other provisions of Part III, on the other. The subjection of
the individual right to the freedom of religion to the other
provisions of the Part is a nuanced departure from the
position occupied by the other rights to freedom
recognized in Articles 14, 15, 19 and 21. While
67 1971 SCR (2) 446
guaranteeing equality and the equal protection of laws
in Article 14 and its emanation, in Article 15, which
prohibits discrimination on grounds of religion, race,
caste, sex or place of birth, the Constitution does not
condition these basic norms of equality to the other
provisions of Part III. Similar is the case with the
freedoms guaranteed by Article 19(1) or the right to life
under Article 21. The subjection of the individual right to
the freedom of religion under Article 25(1) to the other
provisions of Part III was not a matter without
substantive content. Evidently, in the constitutional order
of priorities, the individual right to the freedom of religion
was not intended to prevail over but was subject to the
overriding constitutional postulates of equality, liberty
and personal freedoms recognised in the other provisions
of Part III.
Clause (2) of Article 25 protects laws which existed at the
adoption of the Constitution and the power of the state to
enact laws in future, dealing with two categories. The
first of those categories consists of laws regulating or
restricting economic, financial, political or other secular
activities which may be associated with religious
practices. Thus, in sub-clause (a) of Article 25 (2), the
Constitution has segregated matters of religious practice
from secular activities, including those of an economic,
financial or political nature. The expression "other secular
activity" which follows upon the expression "economic,
financial, political" indicates that matters of a secular
nature may be regulated or restricted by law. The fact
that these secular activities are associated with or, in
other words, carried out in conjunction with religious
practice, would not put them beyond the pale of
legislative regulation. The second category consists of
laws providing for (i) social welfare and reform; or (ii)
throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. The
expression "social welfare and reform" is not confined to
matters only of the Hindu religion. However, in matters of
temple entry, the Constitution recognised the disabilities
which Hindu religion had imposed over the centuries
which restricted the rights of access to dalits and to
various groups within Hindu society. The effect of clause
(2) of Article 25 is to protect the ability of the state to
enact laws, and to save existing laws on matters
governed by sub-clauses (a) and (b). Clause (2) of Article
25 is clarificatory of the regulatory power of the state over
matters of public order, morality and health which
already stand recognised in clause (1). Clause 1 makes
the right conferred subject to public order, morality and
health. Clause 2 does not circumscribe the ambit of the
'subject to public order, morality or health' stipulation in
clause 1. What clause 2 indicates is that the authority of
the state to enact laws on the categories is not
trammelled by Article 25..."
VII. AS TO PROTECTION OF ESSENTIAL RELIGIOUS
PRACTICE AND THE TEST FOR ITS ASCERTAINMENT:
(i) Since the question of hijab being a part of essential
religious practice is the bone of contention, it becomes
necessary to briefly state as to what is an essential religious
practice in Indian context and how it is to be ascertained. This
doctrine can plausibly be traced to the Chief Architect of our
Constitution, Dr. B.R.Ambedkar and to his famous statement
in the Constituent Assembly during debates on the
Codification of Hindu Law: "the religious conception in this
country are so vast that they cover every aspect of life from
birth to death...there is nothing extraordinary in saying that we
ought to strive hereafter to limit the definition of religion in such
a manner that we shall not extend it beyond beliefs and such
rituals as may be connected with ceremonials which are
essentially religious..." [Constituent Assembly Debates VII:
781]. In ACHARYA JAGADISHWARANANDA AVADHUTA,
supra, it has been observed at paragraph 9 as under:
"The protection guaranteed under Articles 25 and 26 of the
Constitution is not confined to matters of doctrine or belief
but extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals, observances,
ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an integral or
essential part of religion has to be determined with reference
to its doctrines, practices, tenets, historical background, etc.
of the given religion... What is meant by "an essential part or
practices of a religion" is now the matter for elucidation.
Essential part of a religion means the core beliefs upon
which a religion is founded. Essential practice means those
practices that are fundamental to follow a religious belief. It
is upon the cornerstone of essential parts or practices that
the superstructure of a religion is built, without which a
religion will be no religion. Test to determine whether a part
or practice is essential to a religion is to find out whether the
nature of the religion will be changed without that part or
practice. If the taking away of that part or practice could
result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an
essential or integral part. There cannot be additions or
subtractions to such part because it is the very essence of
that religion and alterations will change its fundamental
character. It is such permanent essential parts which are
protected by the Constitution. Nobody can say that an
essential part or practice of one's religion has changed from
a particular date or by an event. Such alterable parts or
practices are definitely not the "core" of religion whereupon
the belief is based and religion is founded upon. They could
only be treated as mere embellishments to the non-essential
(sic essential) part or practices."
(ii) INDIAN YOUNG LAWYERS ASSOCIATION surveyed
the development of law relating to essential religious practice
and the extent of its constitutional patronage consistent with
the long standing view. Ordinarily, a religious practice in
order to be called an 'essential religious practice' should have
the following indicia: (i) Not every activity associated with the
religion is essential to such religion. Practice should be
fundamental to religion and it should be from the time
immemorial. (ii) Foundation of the practice must precede the
religion itself or should be co-founded at the origin of the
religion. (iii) Such practice must form the cornerstone of religion
itself. If that practice is not observed or followed, it would result
in the change of religion itself and, (iv) Such practice must be
binding nature of the religion itself and it must be compelling.
That a practice claimed to be essential to the religion has
been carried on since time immemorial or is grounded in
religious texts per se does not lend to it the constitutional
protection unless it passes the test of essentiality as is
adjudged by the Courts in their role as the guardians of the
Constitution.
ESSENTIAL RELIGIOUS PRACTICE SHOULD ASSOCIATE
WITH CONSTITUTIONAL VALUES:
(i) March of law regarding essential religious practice: Law
is an organic social institution and not just a black letter
section. In order to be 'living law of the people', it marches
with the ebb and flow of the times, either through legislative
action or judicial process. Constitution being the
Fundamental Law of the Land has to be purposively
construed to meet and cover changing conditions of social &
economic life that would have been unfamiliar to its Framers.
Since SHAYARA BANO, there has been a paradigm shift in the
approach to the concept of essential religious practice, as
rightly pointed by the learned Advocate General. In INDIAN
YOUNG LAWYERS ASSOCIATION, this branch of law marched
further when the Apex Court added another dimension to the
concept of essential religious practice, by observing at
paragraphs 289 & 291 as under:
"For decades, this Court has witnessed claims resting on
the essentiality of a practice that militate against the
constitutional protection of dignity and individual freedom
under the Constitution. It is the duty of the courts to
ensure that what is protected is in conformity with
fundamental constitutional values and guarantees and
accords with constitutional morality. While the
Constitution is solicitous in its protection of religious
freedom as well as denominational rights, it must be
understood that dignity, liberty and equality constitute
the trinity which defines the faith of the Constitution.
Together, these three values combine to define a
constitutional order of priorities. Practices or beliefs which
detract from these foundational values cannot claim
legitimacy...
Our Constitution places the individual at the heart of the
discourse on rights. In a constitutional order
characterized by the Rule of Law, the constitutional
commitment to egalitarianism and the dignity of every
individual enjoins upon the Court a duty to resolve the
inherent tensions between the constitutional guarantee of
religious freedom afforded to religious denominations and
constitutional guarantees of dignity and equality afforded
to individuals. There are a multiplicity of intersecting
constitutional values and interests involved in
determining the essentiality of religious practices. In order
to achieve a balance between competing rights and
interests, the test of essentiality is infused with these
necessary limitations."
Thus, a person who seeks refuge under the umbrella of Article
25 of the Constitution has to demonstrate not only essential
religious practice but also its engagement with the
constitutional values that are illustratively mentioned at
paragraph 291 of the said decision. It's a matter of concurrent
requirement. It hardly needs to be stated, if essential religious
practice as a threshold requirement is not satisfied, the case
does not travel to the domain of those constitutional values.
VIII. SOURCES OF ISLAMIC LAW, HOLY QURAN BEING
ITS PRINCIPAL SOURCE:
1. The above having been said, now we need to
concisely discuss about the authentic sources of Islamic law
inasmuch as Quran and Ahadith are cited by both the sides
in support of their argument & counter argument relating to
wearing of hijab. At this juncture, we cannot resist our feel to
reproduce Aiyat 242 of the Quran which says: "It is expected
that you will use your commonsense". (Quoted by the Apex
Court in SHAH BANO, supra.
(i) SIR DINSHAH FARDUNJI MULLA'S TREATISE68,
at sections 33, 34 & 35 lucidly states:
"33. Sources of Mahomedan Law: There are four
sources of Mahomedan law, namely, (1) the Koran; (2)
Hadis, that is, precepts, actions and sayings of the
Prophet Mahomed, not written down during his lifetime,
but preserved by tradition and handed down by
authorized persons; (3) Ijmaa, that is, a concurrence of
opinion of the companions of Mahomed and his disciples;
and (4) Qiyas, being analogical deductions derived from a
comparison of the first three sources when they did not
apply to the particular case."
"34. Interpretation of the Koran: The Courts, in
administering Mahomedan law, should not, as a rule,
attempt to put their own construction on the Koran in
opposition to the express ruling of Mahomedan
commentators of great antiquity and high authority."
"35. Precepts of the Prophet: Neither the ancient texts
nor the preceipts of the Prophet Mahomed should be
taken literally so as to deduce from them new rules of
law, especially when such proposed rules do not conduce
to substantial justice..."
(ii) FYZEE'S TREATISE: Referring to another Islamic
jurist of great repute Asaf A.A. Fyzee69, what the Apex Court
at paragraphs 7 & 54 in SHAYARA BANO, supra, observed
evokes interest:
68 Principles of Mahomedan law, 20th Edition (2013)
69 Outlines of Muhammadan, Law 5th Edition (2008)
"7. There are four sources for Islamic law- (i) Quran (ii)
Hadith (iii) Ijma (iv) Qiyas. The learned author has rightly
said that the Holy Quran is the "first source of law".
According to the learned author, pre-eminence is to be
given to the Quran. That means, sources other than the
Holy Quran are only to supplement what is given in it
and to supply what is not provided for. In other words,
there cannot be any Hadith, Ijma or Qiyas against what
is expressly stated in the Quran. Islam cannot be anti-
Quran...
54. ...Indeed, Islam divides all human action into five
kinds, as has been stated by Hidayatullah, J. in his
Introduction to Mulla (supra). There it is stated:
"E. Degrees of obedience: Islam divides all actions into
five kinds which figure differently in the sight of God and
in respect of which His Commands are different. This
plays an important part in the lives of Muslims.
(i) First degree: Fard. Whatever is commanded in the
Koran, Hadis or ijmaa must be obeyed.Wajib. Perhaps a
little less compulsory than Fard but only slightly less
so.(ii) Second degree: Masnun, Mandub and Mustahab:
These are recommended actions.(iii) Third degree: Jaiz or
Mubah: These are permissible actions as to which religion
is indifferent (iv) Fourth degree: Makruh: That which is
reprobated as unworthy (v) Fifth degree: Haram: That
which is forbidden."
The Apex Court at paragraph 55 of SHAYARA BANO has
treated the structural hierarchy of binding nature of Islamic
norms starting from Quran and ending with Haram, while
proscribing the obnoxious practice of triple talaq. The
argument of hijab being mandatory under Ahadith, if not
under Quran, shall be treated hereinafter, in the light of such
a structure.
2. AS TO WHICH AUTHORITATIVE COMMENTARY
ON HOLY QURAN, WE ARE PRINCIPALLY RELYING UPON
AND REASONS FOR THAT:
(i) At the outset we make it clear that, in these cases,
our inquiry concerns the nature and practice of wearing of
hijab amongst Muslim women and therefore, references to the
Holy Quran and other sources of Islamic law shall be confined
to the same. During the course of hearing, the versions of
different authors on this scripture were cited, viz., Abdullah
Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab, Dr.
Mustafa Khattab, Muhammad Taqi-ud-Din al-Hilali,
Muhammad Muhsin Khan, Dr. Ghali. However, this Court
prefers to bank upon the 'The Holy Quran: Text, Translation
and Commentary' by Abdullah Yusuf Ali, (published by
Goodword Books; 2019 reprint), there being a broad unanimity
at the Bar as to its authenticity & reliability. The speculative
and generalizing mind of this author views the verses of the
scriptures in their proper perspective. He provides the
unifying principles that underlie. His monumental work has a
systematic completeness and perfection of form. It is pertinent
to reproduce Abdullah Yusuf Ali's 'Preface to First Edition' of
his book, which is as under:
"...In translating the Text I have aired no views of my
own, but followed the received commentators. Where they
differed among themselves, I have had to choose what
appeared to me to be the most reasonable opinion from all
points of view. Where it is a question merely of words, I
have not considered the question important enough to
discuss in the Notes, but where it is a question of
substance, I hope adequate explanations will be found in
the notes. Where I have departed from the literal
translation in order to express the spirit of the original
better in English, I have explained the literal meaning in
the Notes... Let me explain the scope of the Notes. I have
made them as short as possible consistently with the
object I have in view, viz., to give to the English reader,
scholar as well as general reader, a fairly complete but
concise view of what I understand to be the meaning of
the Text..."
(ii) There is yet another reason as to why we place our
reliance on the commentary of Mr. Abdullah Yusuf Ali. The
Apex court itself in a catena of cases has treated the same as
the authoritative work. In SHAYARA BANO, we find the
following observations at paragraphs 17 & 18:
"17. Muslims believe that the Quran was revealed by God
to the Prophet Muhammad over a period of about 23
years, beginning from 22.12.609, when Muhammad was
40 years old. The revelation continued upto the year 632
- the year of his death. Shortly after Muhammad's death,
the Quran was completed by his companions, who had
either written it down, or had memorized parts of it.
These compilations had differences of perception.
Therefore, Caliph Usman - the third, in the line of caliphs
recorded a standard version of the Quran, now known as
Usman's codex. This codex is generally treated, as the
original rendering of the Quran.
18. During the course of hearing, references to the Quran
were made from 'The Holy Quran: Text Translation and
Commentary' by Abdullah Yusuf Ali, (published by Kitab
Bhawan, New Delhi, 14th edition, 2016). Learned counsel
representing the rival parties commended, that the text
and translation in this book, being the most reliable,
could safely be relied upon. The text and the inferences
are therefore drawn from the above publication...The
Quran is divided into 'suras' (chapters). Each 'sura'
contains 'verses', which are arranged in sections...."
The above apart, none at the Bar has disputed the profound
scholarship of this writer or the authenticity of his
commentary. We too find construction of and comments on
suras and verses of the scripture illuminative and immensely
appealing to reason & justice.
IX. AS TO HIJAB BEING A QURANIC INJUNCTION:
(i) Learned advocates appearing for the petitioners
vehemently argued that the Quran injuncts Muslim women to
wear hijab whilst in public gaze. In support, they heavily
banked upon certain suras from Abdullah Yusuf Ali's book.
Before we reproduce the relevant suras and verses, we feel it
appropriate to quote what Prophet had appreciably said at
sūra (ii) verse 256 in Holy Quran: 'Let there be no
compulsion in religion...' What Mr. Abdullah Yusuf Ali in
footnote 300 to this verse, appreciably reasons out, is again
worth quoting: 'Compulsion is incompatible with religion
because religion depends upon faith and will, and these would
be meaningless if induced by force...' With this at heart, we are
reproducing the following verses from the scripture, which
were pressed into service at the Bar.
Sūra xxiv (Nūr):
The environmental and social influences which most
frequently wreck our spiritual ideals have to do with sex,
and especially with its misuse, whether in the form of
unregulated behavior, of false charges or scandals, or
breach of the refined conventions of personal or domestic
privacy. Our complete conquest of all pitfalls in such
matters enables us to rise to the higher regions of Light
and of God-created Nature, about which a mystic doctrine
is suggested. This subject is continued in the next Sūra.
Privacy should be respected, and the utmost decorum
should be observed in dress and manners
(xxiv. 27 - 34, and C. 158)
Domestic manners and manners in public or collective life
all contribute to the highest virtues, and are part of our
spiritual duties leading upto God"
(xxiv. 58 - 64, and C. 160).
"And say to the believing women
That they should lower
Their gaze and guard∗.
Their modesty; that they
Should not display their
Beauty and ornaments* except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty except
To their husband, their fathers,
Their husbands' father, their sons,
Their husbands' sons,
Their brothers or their brothers' sons,
Or their sisters' sons,
∗
References to the footnote attached to these verses shall be made in
subsequent paragraphs.
Or their women, or the slaves
Whom their right hands
Possess, or male servants
Free from physical needs,
Or small children who
Have no sense of the shame
Of sex; that they
Should strike their feet
In order to draw attention
To their hidden ornaments.
And O ye Believers!
Turn ye all together
Towards God, that ye
May attain Bliss.*" (xxiv. 31, C. - 158)
Sūra xxxiii (Ahzāb)
"Prophet! Tell
Thy wives and daughters,
And the believing women*,
That they should case
Their outer garments over*
Their persons (when abroad):
That is most convenient,
That they should be known*
(As such) and not molested.
And God is Oft - Forgiving, *
Most Merciful." (xxxiii. 59, C. - 189)
Is hijab Islam-specific?
(ii) Hijab is a veil ordinarily worn by Muslim women, is true.
Its origin in the Arabic verb hajaba, has etymological
similarities with the verb "to hide". Hijab nearly translates to
partition, screen or curtain. There are numerous dimensions
of understanding the usage of the hijab: visual, spatial, ethical
* Id
and moral. This way, the hijab hides, marks the difference,
protects, and arguably affirms the religious identity of the
Muslim women. This word as such is not employed in Quran,
cannot be disputed, although commentators may have
employed it. Indian jurist Abdullah Yusuf Ali referring to sūra
(xxxiii), verse 59, at footnote 3765 in his book states: "Jilbāb,
plural Jalābib: an outer garment; a long gown covering the
whole body, or a cloak covering the neck as bosom.". In the
footnote 3760 to Verse 53, he states: "...In the wording, note
that for Muslim women generally, no screen or hijab
(Purdah) is mentioned, but only a veil to cover the bosom,
and modesty in dress. The screen was a special feature
of honor for the Prophet's household, introduced about
five or six years before his death..." Added, in footnote
3767 to verse 59 of the same sura, he opines: "This rule was
not absolute: if for any reason it could not be observed,
'God is Oft. Returning, Most Merciful.'..." Thus, there is
sufficient intrinsic material within the scripture itself to
support the view that wearing hijab has been only
recommendatory, if at all it is.
(iii) The Holy Quran does not mandate wearing of hijab
or headgear for Muslim women. Whatever is stated in the
above sūras, we say, is only directory, because of absence of
prescription of penalty or penance for not wearing hijab, the
linguistic structure of verses supports this view. This apparel
at the most is a means to gain access to public places and not
a religious end in itself. It was a measure of women
enablement and not a figurative constraint. There is a
laudable purpose which can be churned out from Yusuf Ali's
footnotes 2984, 2985 & 2987 to verses in Sūra xxiv (Nūr) and
footnotes 3764 & 3765 to verses in Sūra xxxiii (Ahzāb). They
are reproduced below:
Sūra xxiv (Nūr)
"2984. The need for modesty is the same in
both men and women. But on account of the
differentiation of the sexes in nature, temperaments
and social life, a greater amount of privacy is
required for women than for men, especially in the
matter of dress and uncovering of the bosom."
"2985. Zinat means both natural beauty and
artificial ornaments. I think both are implied here
but chiefly the former. The woman is asked 'not to
make a display of her figure or appear in undress
except to the following classes of people: (1) her
husband, (2) her near relatives who would be living
in the same house, and with whom a certain
amount of negligé is permissible: (3) her women i.e.,
her maid-servants, who would be constantly in
attendance on her; some Commentators include all
believing women; it is not good form in a Muslim
household for women to meet other women, except
when they are properly dressed; (4) slaves, male
and female, as they would be in constant
attendance; but this item would now be blank, with
the abolition of slavery; (5) old or infirm men-
servants; and (6) infants or small children before
they get a sense of sex.
"2987. While all these details of the purity
and the good form of domestic life are being brought
to our attention, we are clearly reminded that the
chief object we should hold in view is our spiritual
welfare. All our brief life on this earth is a
probation, and we must make our individual,
domestic, and social life all contribute to our
holiness, so that we can get the real success and
bliss which is the aim of our spiritual endeavor.
Mystics understand the rules of decorum
themselves to typify spiritual truths. Our soul, like a
modest maiden, allows not her eyes to stray from
the One True God. And her beauty is not for vulgar
show but for God."
Sūra xxxiii (Ahzāb)
"3764. This is for all Muslim women, those of
the Prophet's household, as well as the others. The
times were those of insecurity (see next verse) and
they were asked to cover themselves with outer
garments when walking abroad. It was never
contemplated that they should be confined to their
houses like prisoners."
"3765. Jilbāb, plural Jalābib: an outer
garment; a long gown covering the whole body, or a
cloak covering the neck as bosom."
(iv) The essential part of a religion is primarily to be
ascertained with reference to the doctrine of that religion itself,
gains support from the following observations in INDIAN
YOUNG LAWYERS ASSOCIATION:
"286. In determining the essentiality of a practice, it is
crucial to consider whether the practice is prescribed to
be of an obligatory nature within that religion. If a
practice is optional, it has been held that it cannot be said
to be 'essential' to a religion. A practice claimed to be
essential must be such that the nature of the religion
would be altered in the absence of that practice. If there
is a fundamental change in the character of the religion,
only then can such a practice be claimed to be an
'essential' part of that religion."
It is very pertinent to reproduce what the Islamic jurist Asaf
A.A. Fyzee, supra at pages 9-11 of his book states:
"...We have the Qur'an which is the very word of God.
Supplementary to it we have Hadith which are the
Traditions of the Prophet- the records of his actions and
his sayings- from which we must derive help and
inspiration in arriving at legal decisions. If there is
nothing either in the Qur'an or in the Hadith to answer
the particular question which is before us, we have to
follow the dictates of secular reason in accordance with
certain definite principles. These principles constitute the
basis of sacred law or Shariat as the Muslim doctors
understand it. And it is these fundamental juristic notions
which we must try to study and analyse before we
approach the study of the Islamic civil law as a whole, or
even that small part of it which in India is known as
Muslim law..."
(v) Petitioners pressed into service sūra (xxxiii), verse
59, in support of their contention that wearing hijab is an
indispensable requirement of Islamic faith. This contention is
bit difficult to countenance. It is relevant to refer to the
historical aspects of this particular verse as vividly explained
by Abdullah Yusuf Ali himself at footnote 3766:
"The object was not to restrict the liberty of women, but to
protect them from harm and molestation under the
conditions then existing in Medina. In the East and in the
West a distinctive public dress of some sort or another
has always been a badge of honour or distinction, both
among men and women. This can be traced back to the
earliest civilizations. Assyrian Law in its palmist days
(say, 7th century B.C.), enjoined the veiling of married
women and forbade the veiling of slaves and women of ill
fame: see Cambridge Ancient History, III.107"
It needs to be stated that wearing hijab is not religion-specific,
as explained by Sara Slininger from Centralia, Illinois in her
research paper "VEILED WOMEN: HIJAB, RELIGION, AND
CULTURAL PRACTICE". What she writes throws some light on
the socio-cultural practices of wearing hijab in the region,
during the relevant times:
"Islam was not the first culture to practice veiling their
women. Veiling practices started long before the Islamic
prophet Muhammad was born. Societies like the
Byzantines, Sassanids, and other cultures in Near and
Middle East practiced veiling. There is even some
evidence that indicates that two clans in southwestern
Arabia practiced veiling in pre-Islamic times, the Banū
Ismāʿīl and Banū Qaḥṭān. Veiling was a sign of a
women's social status within those societies. In
Mesopotamia, the veil was a sign of a woman's high
status and respectability. Women wore the veil to
distinguish Slininger themselves from slaves and
unchaste women. In some ancient legal traditions, such
as in Assyrian law, unchaste or unclean women, such as
harlots and slaves, were prohibited from veiling
themselves. If they were caught illegally veiling, they
were liable to severe penalties. The practice of veiling
spread throughout the ancient world the same way that
many other ideas traveled from place to place during this
time: invasion."
(vi) Regard being had to the kind of life conditions
then obtaining in the region concerned, wearing hijab was
recommended as a measure of social security for women and
to facilitate their safe access to public domain. At the most
the practice of wearing this apparel may have something to do
with culture but certainly not with religion. This gains
credence from Yusuf Ali's Note 3764 to verse 59 which runs
as under:
"...The times were those of insecurity (see next verse) and
they were asked to cover themselves with outer garments
when walking abroad. It was never contemplated that
they should be confined to their houses like prisoners."
History of mankind is replete with instances of abuse and
oppression of women. The region and the times from which
Islam originated were not an exception. The era before the
introduction of Islam is known as Jahiliya-a time of barbarism
and ignorance. The Quran shows concern for the cases of
'molestation of innocent women' and therefore, it
recommended wearing of this and other apparel as a measure
of social security. May be in the course of time, some
elements of religion permeated into this practice as ordinarily
happens in any religion. However, that per se does not render
the practice predominantly religious and much less essential
to the Islamic faith. This becomes evident from Ali's footnote
3768 to verse 60 which concludes with the following profound
line "Alas! We must ask ourselves the question: 'Are these
conditions present among us today?'" Thus, it can be
reasonably assumed that the practice of wearing hijab had a
thick nexus to the socio-cultural conditions then prevalent in
the region. The veil was a safe means for the women to leave
the confines of their homes. Ali's short but leading question is
premised on this analysis. What is not religiously made
obligatory therefore cannot be made a quintessential aspect of
the religion through public agitations or by the passionate
arguments in courts.
(vii) Petitioners also relied upon verses 4758 & 4759
(Chapter 12) from Dr.Muhammad Muhsin Khan's 'The
Translation of the Meanings of Sahih Al-Bukhari, Arabic-
English', Volume 6, Darussalam publication, Riyadh, Saudi
Arabia. This verse reads:
"4758. Narrated 'Aishah': May Allah bestow His Mercy
on the early emigrant women. When Allah revealed:
"...and to draw their veils all over their Juyubihinna (i.e.,
their bodies, faces, necks and bosoms)..." (V.24:31) they
tore their Murut (woolen dresses or waist-binding clothes
or aprons etc.) and covered their heads and faces with
those torn Muruts.
4759. Narrated Safiyya bint Shaiba: Aishah used to say:
"When (the Verse): '... and to draw their veils all over
their Juhubihinna (i.e., their bodies, faces, necks and
bosoms, etc.)...' (V.24:31) was revealed, (the ladies) cult
their waist-sheets from their margins and covered their
heads and faces with those cut pieces of cloth."
Firstly, no material is placed by the petitioners to show the
credentials of the translator namely Dr.Muhammad Muhsin
Khan. The first page of volume 6 describes him as: "Formerly
Director, University Hospital, Islamic University, Al-Madina, Al-
Munawwara (Kingdom of Saudi Arabia). By this, credentials
required for a commentator cannot be assumed. He has held
a prominent position in the field of medicine, is beside the
point. We found reference to this author in a decision of
Jammu & Kashmir High Court in LUBNA MEHRAJ VS.
MEHRAJ-UD-DIN KANTH70. Even here, no credentials are
discussed nor is anything stated about the authenticity and
reliability of his version of Ahadith. Secondly, the text &
context of the verse do not show its obligatory nature. Our
attention is not drawn to any other verses in the translation
from which we can otherwise infer its mandatory nature.
Whichever be the religion, whatever is stated in the
scriptures, does not become per se mandatory in a wholesale
way. That is how the concept of essential religious practice, is
70 2004 (1) JKJ 418
coined. If everything were to be essential to the religion
logically, this very concept would not have taken birth. It is on
this premise the Apex Court in SHAYARA BANO, proscribed
the 1400 year old pernicious practice of triple talaq in Islam.
What is made recommendatory by the Holy Quran cannot be
metamorphosed into mandatory dicta by Ahadith which is
treated as supplementary to the scripture. A contra argument
offends the very logic of Islamic jurisprudence and normative
hierarchy of sources. This view gains support from paragraph
42 of SHAYARA BANO which in turn refers to Fyzee's work.
Therefore, this contention too fails.
X. AS TO VIEWS OF OTHER HIGH COURTS ON HIJAB
BEING AN ESSENTIAL RELIGIOUS PRACTICE:
Strangely, in support of their version and counter version,
both the petitioners and the respondents drew our attention
to two decisions of the Kerala High Court, one decision of
Madras and Bombay each. Let us examine what these cases
were and from which fact matrix, they emanated.
(i) In re AMNAH BINT BASHEER, supra: this judgment
was rendered by a learned Single Judge A.Muhamed
Mustaque J. of Hon'ble Kerala High Court on 26.4.2016.
Petitioner, the students (minors) professing Islam had an
issue with the dress code prescribed for All India Pre-Medical
Entrance Test, 2016. This prescription by the Central Board
of Secondary Education was in the wake of large scale
malpractices in the entrance test during the previous years.
At paragraph 29, learned Judge observed:
"Thus, the analysis of the Quranic injunctions and the
Hadiths would show that it is a farz to cover the head
and wear the long sleeved dress except face part and
exposing the body otherwise is forbidden (haram). When
farz is violated by action opposite to farz that action
becomes forbidden (haram). However, there is a
possibility of having different views or opinions for the
believers of the Islam based on Ijithihad (independent
reasoning). This Court is not discarding such views. The
possibility of having different propositions is not a ground
to deny the freedom, if such propositions have some
foundation in the claim..."
Firstly, it was not a case of school uniform as part of
Curricula as such. Students were taking All India Pre-
Medical Entrance Test, 2016 as a onetime affair and not on
daily basis, unlike in schools. No Rule or Regulation having
force of law prescribing such a uniform was pressed into
service. Secondly, the measure of ensuring personal
examination of the candidates with the presence of one lady
member prior to they entering the examination hall was a
feasible alternative. This 'reasonable exception' cannot be
stretched too wide to swallow the rule itself. That feasibility
evaporates when one comes to regular adherence to school
uniform on daily basis. Thirdly, learned Judge himself in all
grace states: "However, there is a possibility of having different
views or opinions for the believers of the Islam based on
Ijithihad (independent reasoning). In formulating our view,
i.e., in variance with this learned Judge's, we have heavily
drawn from the considered opinions of Abdullah Yusuf Ali's
works that are recognized by the Apex Court as being
authoritative vide SHAYARA BANO and in other several
decisions. There is no reference to this learned authors'
commentary in the said judgment. Learned Judge refers to
other commentators whose credentials and authority are not
forthcoming. The fact that the Writ Appeal against the same
came to be negatived71 by a Division Bench, does not make
much difference. Therefore, from this decision, both the sides
cannot derive much support for their mutually opposing
versions.
(ii) In re FATHIMA THASNEEM supra: the girl students
professing Islam had an issue with the dress code prescribed
by the management of a school run by a religious minority
(Christians) who had protection under Articles 29 & 30 of the
71 (2016) SCC Online Ker 487
Constitution. This apart, learned Judge i.e., A.Muhamed
Mustaque J. was harmonizing the competing interests
protected by law i.e., community rights of the minority
educational institution and the individual right of a student.
He held that the former overrides the latter and negatived the
challenge, vide order dated 4.12.2018 with the following
observation:
"10. In such view of the matter, I am of the considered
view that the petitioners cannot seek imposition of their
individual right as against the larger right of the
institution. It is for the institution to decide whether the
petitioners can be permitted to attend the classes with the
headscarf and full sleeve shirt. It is purely within the
domain of the institution to decide on the same. The Court
cannot even direct the institution to consider such a
request. Therefore, the writ petition must fail. Accordingly,
the writ petition is dismissed. If the petitioners approach
the institution for Transfer Certificate, the school authority
shall issue Transfer Certificate without making any
remarks. No doubt, if the petitioners are willing to abide
by the school dress code, they shall be permitted to
continue in the same school..."
This decision follows up to a particular point the reasoning in
the earlier decision (2016), aforementioned. Neither the
petitioners nor the respondent-State can bank upon this
decision, its fact matrix being miles away from that of these
petitions. This apart, what we observed about the earlier
decision substantially holds water for this too.
(iii) In re FATHIMA HUSSAIN, supra: This decision by a
Division Bench of Bombay High Court discussed about
Muslim girl students' right to wear hijab "...in exclusive girls
section cannot be said to in any manner acting inconsistent
with the aforesaid verse 31 or violating any injunction provided
in Holy Quran. It is not an obligatory overt act enjoined by
Muslim religion that a girl studying in all girl section
must wear head-covering. The essence of Muslim religion or
Islam cannot be said to have been interfered with by directing
petitioner not to wear head-scarf in the school." These
observations should strike the death knell to Writ Petition
Nos.2146, 2347, 3038/2022 wherein the respondent college
happens to be all-girl-institution (not co-education). The
Bench whilst rejecting the petition, at paragraph 8 observed:
"We therefore, do not find any merit in the contention of the
learned counsel for the petitioner that direction given by the
Principal to the petitioner on 28-11-2001 to not to wear head-
scarf or cover her head while attending school is violative of
Article 25 of Constitution of India." We are at loss to know how
this decision is relevant for the adjudication of these petitions.
(iv) In re SIR M. VENKATA SUBBARAO, supra: The
challenge in this case was to paragraph 1 of the Code of
Conduct prescribing a dress code for the teachers. The
Division Bench of Madras High Court while dismissing the
challenge at paragraph 16 observed as under:
"For the foregoing reasons and also in view of the
fact that the teachers are entrusted with not only
teaching subjects prescribed under the syllabus, but also
entrusted with the duty of inculcating discipline amongst
the students, they should set high standards of discipline
and should be a role model for the students. We have
elaborately referred to the role of teachers in the earlier
portion of the order. Dress code, in our view, is one of the
modes to enforce discipline not only amongst the
students, but also amongst the teachers. Such imposition
of dress code for following uniform discipline cannot be
the subject matter of litigation that too, at the instance of
the teachers, who are vested with the responsibility of
inculcating discipline amongst the students. The Court
would be very slow to interfere in the matter of discipline
imposed by the management of the school only on the
ground that it has no statutory background. That apart,
we have held that the management of the respondent
school had the power to issue circulars in terms of clause
6 of Annexure VIII of the Regulations. In that view of the
matter also, we are unable to accept the contention of the
learned counsel for appellant in questioning the circular
imposing penalty for not adhering to the dress code."
This case has completely a different fact matrix. Even the
State could not have banked upon this in structuring the
impugned Govt. Order dated 5.2.2022. The challenge to the
dress code was by the teacher and not by the students. The
freedom of conscience or right to religion under Article 25 was
not discussed. This decision is absolutely irrelevant.
(v) In re PRAYAG DAS vs. CIVIL JUDGE
BULANDSHAHR72: This decision is cited by the petitioner in
W.P.No.4338/2022 (PIL) who supports the case of the State.
This decision related to a challenge to the prescription of
dress code for the lawyers. The Division Bench of Allahabad
High Court whilst rejecting the challenge, observed at
paragraph 20 as under:
"In our opinion the various rules prescribing the dress of
an Advocate serve a very useful purpose. In the first
place, they distinguish an Advocate from a litigant or
other members of the public who may be jostling with him
in a Court room. They literally reinforce the
Shakespearian aphorism that the apparel oft proclaims
the man. When a lawyer is in prescribed dress his
identity can never be mistaken. In the second place, a
uniform prescribed dress worn by the members of the Bar
induces a seriousness of purpose and a sense of decorum
which are highly conducive to the dispensation of
justice..."
This decision is not much relevant although it gives some idea
as to the justification for prescribing uniform, be it in a
profession or in an educational institution. Beyond this, it is
of no utility to the adjudication of issues that are being
debated in these petitions.
72 1973 SCC OnLine All 333
XI. AS TO WEARING HIJAB BEING A MATTER OF
FREEDOM OF CONSCIENCE:
(1) Some of the petitioners vehemently argued that,
regardless of right to religion, the girl students have the
freedom of conscience guaranteed under Article 25 itself and
that they have been wearing hijab as a matter of conscience
and therefore, interdicting this overt act is offensive to their
conscience and thus, is violative of their fundamental right. In
support, they heavily rely upon BIJOE EMMANUEL supra,
wherein at paragraph 25, it is observed as under:
"We are satisfied, in the present case, that the expulsion
of the three children from the school for the reason that
because of their conscientiously held religious faith, they
do not join the singing of the national anthem in the
morning assembly though they do stand up respectfully
when the anthem is sung, is a violation of their
fundamental right to freedom of conscience and freely to
profess, practice and propagate religion." .
Conscience is by its very nature subjective. Whether the
petitioners had the conscience of the kind and how they
developed it are not averred in the petition with material
particulars. Merely stating that wearing hijab is an overt act of
conscience and therefore, asking them to remove hijab would
offend conscience, would not be sufficient for treating it as a
ground for granting relief. Freedom of conscience as already
mentioned above, is in distinction to right to religion as was
clarified by Dr. B.R.Ambedkar in the Constituent Assembly
Debates. There is scope for the argument that the freedom of
conscience and the right to religion are mutually exclusive.
Even by overt act, in furtherance of conscience, the matter
does not fall into the domain of right to religion and thus, the
distinction is maintained. No material is placed before us for
evaluation and determination of pleaded conscience of the
petitioners. They have not averred anything as to how they
associate wearing hijab with their conscience, as an overt act.
There is no evidence that the petitioners chose to wear their
headscarf as a means of conveying any thought or belief on
their part or as a means of symbolic expression. Pleadings at
least for urging the ground of conscience are perfunctory, to
say the least.
(2) BIJOE EMMANUEL CASE: ITS FACT MATRIX AND
RATIO DECIDENDI:
(i) Since the petitioners heavily banked upon BIJOE
EMMANUEL, in support of their contention as to freedom of
conscience, we need to examine what were the material facts
of the case and the propositions of law emanating therefrom.
This exercise we have undertaken in the light of what Rupert
Cross and J.W.Harris in their 'PRECEDENT IN ENGLISH LAW',
4th Edition - CLARENDON, at page 39 have said: "the ratio
decidendi is best approached by a consideration of the
structure of a typical judgment...A Judge generally summarizes
the evidence, announcing his findings of fact and reviews the
arguments that have been addressed to him by counsel for
each of the parties. If a point of law has been raised, he often
discusses a number of previous decisions...It is not everything
said by a Judge when giving judgment that constitutes a
precedent...This status is reserved for his pronouncements on
the law...The dispute is solely concerned with the facts...It is
not always easy to distinguish law from fact and the reasons
which led a Judge to come to a factual conclusion..." What
LORD HALSBURY said more than a century ago in the
celebrated case of QUINN vs. LEATHEM73' is worth noting. He
had craftily articulated that a decision is an authority for the
proposition that is laid down in a given fact matrix, and not
for all that which logically follows from what has been so laid
down.
(ii) With the above in mind, let us examine the
material facts of BIJOE EMMANUEL: Three 'law abiding
children' being the faithful of Jehovah witnesses, did
73 (1901) A.C. 495
respectfully stand up but refused to sing the National Anthem
in the school prayer. This refusal was founded on the dicta of
their religion. They were expelled under the instructions of
Deputy Inspector of School. These instructions were proven to
have no force of law. They did not prevent the singing of
National Anthem nor did they cause any disturbance while
others were singing. Only these facts tailored the skirt, rest
being the frills. The decision turned out to be more on the
right to religion than freedom of conscience, although there is
some reference to the conscience. The court recognized the
negative of a fundamental right i.e., the freedom of speech &
expression guaranteed under Article 19 as including right to
remain silent. What weighed with the court was the fact 'the
children were well behaved, they respectfully stood up when
the National Anthem was sung and would continue to do so
respectfully in the future' (paragraph 23). Besides, Court found
that their refusal to sing was not confined to Indian National
Anthem but extended to the Songs of every other country.
(iii) True it is that the BIJOE EMMANUEL reproduces
the following observation of Davar J. made in JAMSHEDJI
CURSETJEE TARACHAND vs. SOONABAI74:
"...If this is the belief of the community--and it is proved
undoubtedly to be the belief of the Zoroastrian
community--a secular judge is bound to accept that belief-
-it is not for him to sit in judgment on that belief--he has
no right to interfere with the conscience of a donor who
makes a gift in favour of what he believes to be in
advancement of his religion and for the welfare of his
community or of mankind..."
These observations essentially relate to 'the belief of the
Zoroastrian community'. It very little related to the 'freedom of
conscience' as envisaged under Article 25 of the Constitution
enacted about four decades thereafter. The expression
'conscience of a donor' is in the light of religious belief much
away from 'freedom of conscience'. After all the meaning of a
word takes its colour with the companion words i.e., noscitur
a sociis. After all, a word in a judgment cannot be construed
as a word employed in a Statute. In the absence of
demonstrable conformity to the essentials of a decision, the
denomination emerging as a ratio would not be an
operationable entity in every case comprising neighbourly fact
matrix. What is noticeable is that BIJOE EMMANUEL did not
demarcate the boundaries between 'freedom of conscience'
74 (1909) 33 BOM. 122
and 'right to practise religion' presumably because the overt
act of the students in respectfully standing up while National
Anthem was being sung transcended the realm of their
conscience and took their case to the domain of religious
belief. Thus, BIJOE EMMANUEL is not the best vehicle for
drawing a proposition essentially founded on freedom of
conscience.
XII. PLEADINGS AND PROOF AS TO ESSENTIAL
RELIGIOUS PRACTICE:
(i) In order to establish their case, claimants have to
plead and prove that wearing of hijab is a religious
requirement and it is a part of 'essential religious practice' in
Islam in the light of a catena of decision of the Apex Court
that ultimately ended with INDIAN YOUNG LAWYERS
ASSOCIATION. The same has already been summarized by us
above. All these belong to the domain of facts. In NARAYANA
DEEKSHITHULU, it is said: "...What are essential parts of
religion or religious belief or matters of religion and religious
practice is essentially a question of fact to be considered in the
context in which the question has arisen and the evidence-
factual or legislative or historic-presented in that context is
required to be considered and a decision reached..." The
claimants have to plead these facts and produce requisite
material to prove the same. The respondents are more than
justified in contending that the Writ Petitions lack the
essential averments and that the petitioners have not loaded
to the record the evidentiary material to prove their case. The
material before us is extremely meager and it is surprising
that on a matter of this significance, petition averments
should be as vague as can be. We have no affidavit before us
sworn to by any Maulana explaining the implications of the
suras quoted by the petitioners' side. Pleadings of the
petitioners are not much different from those in MOHD. HANIF
QUARESHI, supra which the Apex Court had critized. Since
how long all the petitioners have been wearing hijab is not
specifically pleaded. The plea with regard to wearing of hijab
before they joined this institution is militantly absent. No
explanation is offered for giving an undertaking at the time of
admission to the course that they would abide by school
discipline. The Apex Court in INDIAN YOUNG LAWYERS
ASSOCIATION, supra, has stated that matters that are
essential to religious faith or belief; have to be adjudged on
the evidence borne out by record. There is absolutely no
material placed on record to prima facie show that wearing of
hijab is a part of an essential religious practice in Islam and
that the petitioners have been wearing hijab from the
beginning. This apart, it can hardly be argued that hijab being
a matter of attire, can be justifiably treated as fundamental to
Islamic faith. It is not that if the alleged practice of wearing
hijab is not adhered to, those not wearing hijab become the
sinners, Islam loses its glory and it ceases to be a religion.
Petitioners have miserably failed to meet the threshold
requirement of pleadings and proof as to wearing hijab is an
inviolable religious practice in Islam and much less a part of
'essential religious practice'.
In view of the above discussion, we are of the
considered opinion that wearing of hijab by
Muslim women does not form a part of essential
religious practice in Islamic faith.
XIII. AS TO SCHOOL DISCIPLINE & UNIFORM AND
POWER TO PRESCRIBE THE SAME:
(i) We are confronted with the question whether there
is power to prescribe dress code in educational institutions.
This is because of passionate submissions of the petitioners
that there is absolutely no such power in the scheme of 1983
Act or the Rules promulgated thereunder. The idea of
schooling is incomplete without teachers, taught and the
dress code. Collectively they make a singularity. No
reasonable mind can imagine a school without uniform. After
all, the concept of school uniform is not of a nascent origin. It
is not that, Moghuls or Britishers brought it here for the first
time. It has been there since the ancient gurukul days. Several
Indian scriptures mention samavastr/shubhravesh in
Samskrit, their English near equivalent being uniform.
'HISTORY OF DHARMASĀSTRA' by P.V. Kane, Volume II, page
278 makes copious reference to student uniforms. (This work
is treated by the Apex Court as authoritative vide DEOKI
NANDAN vs. MURLIDHAR75). In England, the first recorded
use of standardized uniform/dress code in institutions dates
to back to 1222 i.e., Magna Carta days. 'LAW, RELIGIOUS
FREEDOMS AND EDUCATION IN EUROPE' is edited by Myrian
Hunter-Henin; Mark Hill, a contributor to the book, at
Chapter 15 titles his paper 'BRACELETS, RINGS AND VEILS:
THE ACCOMMODATION OF RELIGIOUS SYMBOLS IN THE
UNIFORM POLICIES OF ENGLISH SCHOOLS'. At page 308,
what he pens is pertinent:
75 AIR 1957 SC 133
'...The wearing of a prescribed uniform for school children
of all ages is a near-universal feature of its educational
system, whether in state schools or in private (fee-paying)
schools. This is not a matter of primary or secondary
legislation or of local governmental regulation but rather
reflects a widespread and long-standing social practice. It
is exceptional for a school not to have a policy on uniform
for its pupils. The uniform (traditionally black or grey
trousers, jumpers and jackets in the coloured livery of the
school and ties for boys serves to identify individuals as
members of a specific institution and to encourage and
promote the corporate, collective ethos of the school. More
subtly, by insisting upon identical clothing (often from a
designated manufacturer) it ensures that all school
children dress the same and appear equal: thus,
differences of social and economic background that would
be evident from the nature and extent of personal
wardrobes are eliminated. It is an effective leveling
feature-particularly in comprehensive secondary schools
whose catchment areas may include a range of school
children drawn from differing parental income brackets
and social classes...'
'AMERICAN JURISPRUDENCE', 2nd Edition. (1973), Volume
68, edited by The Lawyers Cooperative Publishing Company
states:
"§249. In accord with the general principle that school
authorities may make reasonable rules and regulations
governing the conduct of pupils under their control, it may
be stated generally that school authorities may prescribe
the kind of dress to be worn by students or make
reasonable regulations as to their personal
appearance...It has been held that so long as students
are under the control of school authorities, they may be
required to wear a designated uniform, or may be
forbidden to use face powder or cosmetics, or to wear
transparent hosiery low-necked dresses, or any style of
clothing tending toward immodesty in dress...
§251. Several cases have held that school regulations
proscribing certain hairstyles were valid, usually on the
basis that a legitimate school interest was served by such
a regulation. Thus, it has been held that a public high
school regulation which bars a student from attending
classes because of the length or appearance of his hair is
not invalid as being unreasonable, and arbitrary as
having no reasonable connection with the successful
operation of the school, since a student's unusual
hairstyle could result in the distraction of other pupils,
and could disrupt and impede the maintenance of a
proper classroom atmosphere or decorum..."
(ii) The argument of petitioners that prescribing
school uniforms pertains to the domain of 'police power' and
therefore, unless the law in so many words confers such
power, there cannot be any prescription, is too farfetched. In
civilized societies, preachers of the education are treated next
to the parents. Pupils are under the supervisory control of the
teachers. The parents whilst admitting their wards to the
schools, in some measure share their authority with the
teachers. Thus, the authority which the teachers exercise over
the students is a shared 'parental power'. The following
observations In T.M.A.PAI FOUNDATION, at paragraph 64,
lend credence to this view:
"An educational institution is established only for the
purpose of imparting education to the students. In such
an institution, it is necessary for all to maintain discipline
and abide by the rules and regulations that have been
lawfully framed. The teachers are like foster- parents
who are required to look after, cultivate and guide the
students in their pursuit of education..."
It is relevant to state that not even a single ruling of a court
nor a sporadic opinion of a jurist nor of an educationist was
cited in support of petitioners argument that prescribing
school uniform partakes the character of 'police power'.
Respondents are justified in tracing this power to the text &
context of sections 7(2) & 133 of the 1983 Act read with Rule
11 of 1995 Curricula Rules. We do not propose to reproduce
these provisions that are as clear as gangetic waters. This
apart, the Preamble to the 1983 Act mentions inter alia of
"fostering the harmonious development of the mental and
physical faculties of students and cultivating a scientific and
secular outlook through education." Section 7(2)(g)(v) provides
for promoting "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." The Apex Court in
MODERN DENTAL COLLEGE, supra, construed the term
'education' to include 'curricula' vide paragraph 123. The
word 'curricula' employed in section 7(2) of the Act needs to
be broadly construed to include the power to prescribe
uniform. Under the scheme of 1983 Act coupled with
international conventions to which India is a party, there is a
duty cast on the State to provide education at least up to
particular level and this duty coupled with power includes the
power to prescribe school uniform.
(iii) In the LAW OF TORTS, 26th Edition by RATANLAL
AND DHIRAJLAL at page 98, parental and quasi parental
authority is discussed: "The old view was that the authority of
a schoolmaster, while it existed, was the same as that of a
parent. A parent, when he places his child with a schoolmaster,
delegates to him all his own authority, so far as it is necessary
for the welfare of the child. The modern view is that the
schoolmaster has his own independent authority to act for the
welfare of the child. This authority is not limited to offences
committed by the pupil upon the premises of the school, but
may extend to acts done by such pupil while on the way to and
from the school..." It is relevant to mention an old English case
in REX vs. NEWPORT (SALOP)76 which these authors have
summarized as under:
"At a school for boys there was a rule prohibiting smoking
by pupils whether in the school or in public. A pupil after
returning home smoked a cigarette in a public street and
next day the schoolmaster administered to him five
strokes with a cane. It was held that the father of the boy
by sending him to the school authorized the schoolmaster
to administer reasonable punishment to the boy for
76 (1929) 2 KB 416
breach of a school rule, and that the punishment
administered was reasonable."
Even in the absence of enabling provisions, we are of the view
that the power to prescribe uniform as of necessity inheres in
every school subject to all just exceptions.
(iv) The incidental question as to who should prescribe
the school uniform also figures for our consideration in the
light of petitioners' contention that government has no power
in the scheme of 1983 Act. In T.M.A.PAI FOUNDATION, the
Apex Court observed at paragraph 55 as under:
"...There can be no doubt that in seeking affiliation or
recognition, the Board or the university or the affiliating or
recognizing authority can lay down conditions consistent
with the requirement to ensure the excellence of
education. It can, for instance, indicate the quality of the
teachers by prescribing the minimum qualifications that
they must possess, and the courses of study and
curricula. It can, for the same reasons, also stipulate the
existence of infrastructure sufficient for its growth, as a
pre-requisite. But the essence of a private educational
institution is the autonomy that the institution must have
in its management and administration. There,
necessarily, has to be a difference in the administration
of private unaided institutions and the government-aided
institutions. Whereas in the latter case, the Government
will have greater say in the administration, including
admissions and fixing of fees, in the case of private
unaided institutions, maximum autonomy in the day-to-
day administration has to be with the private unaided
institutions. Bureaucratic or governmental interference in
the administration of such an institution will undermine
its independence..."
Section 133(2) of the 1983 Act vests power in the government
to give direction to any educational institution for carrying out
the purposes of the Act or to give effect to any of the
provisions of the Act or the Rules, and that the institution be
it governmental, State aided or privately managed, is bound
to obey the same. This section coupled with section 7(2)
clothes the government with power inter alia to prescribe or
caused to be prescribed school uniform. The government vide
Circular dated 31.1.2014 accordingly has issued a direction.
Significantly, this is not put in challenge and we are not called
upon to adjudge its validity, although some submissions were
made de hors the pleadings that to the extent the Circular
includes the local Member of the Legislative Assembly and his
nominee respectively as the President and Vice President of
the College Betterment (Development) Committee, it is
vulnerable for challenge. In furtherance thereof, it has also
issued a Government Order dated 5.2.2022. We shall be
discussing more about the said Circular and the Order, a bit
later. Suffice it to say now that the contention as to absence
of power to prescribe dress code in schools is liable to be
rejected.
XIV. AS TO PRESCRIPTION OF SCHOOL UNIFORM TO
THE EXCLUSION OF HIJAB IF VIOLATES ARTICLES, 14,
15, 19(1)(a) & 21:
(i) There has been a overwhelming juridical opinion
in all advanced countries that in accord with the general
principle, the school authorities may make reasonable
regulations governing the conduct of pupils under their
control and that they may prescribe the kind of dress to be
worn by students or make reasonable regulations as to their
personal appearance, as well. In MILLER vs. GILLS77, a rule
that the students of an agricultural high school should wear a
khaki uniform when in attendance at the class and whilst
visiting public places within 5 miles of the school is not ultra
vires, unreasonable, and void. Similarly, in CHRISTMAS vs. EL
RENO BOARD OF EDUCATION78, a regulation prohibiting male
students who wore hair over their eyes, ears or collars from
participating in a graduation diploma ceremony, which had
no effect on the student's actual graduation from high school,
so that no educational rights were denied, has been held
valid. It is also true that our Constitution protects the rights
of school children too against unreasonable regulations.
However, the prescription of dress code for the students that
77 (D.C. III) 315 F SUP. 94
78 (D.C. Okla.) 313 F SUPP. 618
too within the four walls of the class room as distinguished
from rest of the school premises does not offend
constitutionally protected category of rights, when they are
'religion-neutral' and 'universally applicable' to all the
students. This view gains support from Justice Scalia's
decision in EMPLOYMENT DIVISION vs. SMITH79. School
uniforms promote harmony & spirit of common brotherhood
transcending religious or sectional diversities. This apart, it is
impossible to instill the scientific temperament which our
Constitution prescribes as a fundamental duty vide Article
51A(h) into the young minds so long as any propositions such
as wearing of hijab or bhagwa are regarded as religiously
sacrosanct and therefore, not open to question. They
inculcate secular values amongst the students in their
impressionable & formative years.
(ii) The school regulations prescribing dress code for
all the students as one homogenous class, serve
constitutional secularism. It is relevant to quote the
observations of Chief Justice Venkatachalaiah, in ISMAIL
FARUQUI, supra:
79 494 U.S. 872 (1990)
"The concept of secularism is one facet of the right to
equality woven as the central golden thread in the fabric
depicting the pattern of the scheme in our Constitution...
In a pluralist, secular polity law is perhaps the greatest
integrating force. Secularism is more than a passive...It is
a positive concept of equal treatment of all religions. What
is material is that it is a constitutional goal and a Basic
Feature of the Constitution."
It is pertinent to mention that the preamble to the 1983 Act
appreciably states the statutory object being "fostering the
harmonious development of the mental and physical faculties
of students and cultivating a scientific and secular outlook
through education." This also accords with the Fundamental
Duty constitutionally prescribed under Article 51A(e) in the
same language, as already mentioned above. Petitioners'
argument that 'the goal of education is to promote plurality, not
promote uniformity or homogeneity, but heterogeneity' and
therefore, prescription of student uniform offends the
constitutional spirit and ideal, is thoroughly misconceived.
(iii) Petitioners argued that regardless of their freedom
of conscience and right to religion, wearing of hijab does
possess cognitive elements of 'expression' protected under
Article 19(1)(a) vide NATIONAL LEGAL SERVICES AUTHORITY,
supra and it has also the substance of privacy/autonomy that
are guarded under Article 21 vide K.S.PUTTASWAMY, supra.
Learned advocates appearing for them vociferously submit
that the Muslim students would adhere to the dress code with
hijab of a matching colour as may be prescribed and this
should be permitted by the school by virtue of 'reasonable
accommodation'. If this proposal is not conceded to, then
prescription of any uniform would be violative of their rights
availing under these Articles, as not passing the 'least
restrictive test' and 'proportionality test', contended they. In
support, they press into service CHINTAMAN RAO and MD.
FARUK, supra. Let us examine this contention. The Apex
Court succinctly considered these tests in INTERNET &
MOBILE ASSN. OF INDIA vs. RESERVE BANK OF INDIA80, with
the following observations:
"...While testing the validity of a law imposing a
restriction on the carrying on of a business or a
profession, the Court must, as formulated in Md.
Faruk, attempt an evaluation of (i) its direct and
immediate impact upon of the fundamental rights of
the citizens affected thereby (ii) the larger public
interest sought to be ensured in the light of the object
sought to be achieved (iii) the necessity to restrict the
citizens' freedom (iv) the inherent pernicious nature of
the act prohibited or its capacity or tendency to be
harmful to the general public and (v) the possibility of
achieving the same object by imposing a less drastic
restraint... On the question of proportionality, the
learned Counsel for the petitioners relies upon the
four-pronged test summed up in the opinion of the
majority in Modern Dental College and Research
80 (2020) 10 SCC 274
Centre v. State of Madhya Pradesh. These four tests
are (i) that the measure is designated for a proper
purpose (ii) that the measures are rationally
connected to the fulfilment of the purpose (iii) that
there are no alternative less invasive measures and
(iv) that there is a proper relation between the
importance of achieving the aim and the importance
of limiting the right...But even by our own standards,
we are obliged to see if there were less intrusive
measures available and whether RBI has at least
considered these alternatives..."
(iv) All rights have to be viewed in the contextual
conditions which were framed under the Constitution and the
way in which they have evolved in due course. As already
mentioned above, the Fundamental Rights have relative
content and their efficacy levels depend upon the
circumstances in which they are sought to be exercised. To
evaluate the content and effect of restrictions and to adjudge
their reasonableness, the aforesaid tests become handy.
However, the petitions we are treating do not involve the right
to freedom of speech & expression or right to privacy, to such
an extent as to warrant the employment of these tests for
evaluation of argued restrictions, in the form of school dress
code. The complaint of the petitioners is against the violation
of essentially 'derivative rights' of the kind. Their grievances
do not go to the core of substantive rights as such but lie in
the penumbra thereof. So, by a sheer constitutional logic, the
protection that otherwise avails to the substantive rights as
such cannot be stretched too far even to cover the derivative
rights of this nature, regardless of the 'qualified public places'
in which they are sought to be exercised. It hardly needs to be
stated that schools are 'qualified public places' that are
structured predominantly for imparting educational
instructions to the students. Such 'qualified spaces' by their
very nature repel the assertion of individual rights to the
detriment of their general discipline & decorum. Even the
substantive rights themselves metamorphise into a kind of
derivative rights in such places. These illustrate this: the
rights of an under - trial detenue qualitatively and
quantitatively are inferior to those of a free citizen. Similarly,
the rights of a serving convict are inferior to those of an under
- trial detenue. By no stretch of imagination, it can be
gainfully argued that prescription of dress code offends
students' fundamental right to expression or their autonomy.
In matters like this, there is absolutely no scope for complaint
of manifest arbitrariness or discrimination inter alia under
Articles 14 & 15, when the dress code is equally applicable to
all the students, regardless of religion, language, gender or
the like. It is nobody's case that the dress code is sectarian.
(v) Petitioners' contention that 'a class room should be
a place for recognition and reflection of diversity of society, a
mirror image of the society (socially & ethically)' in its deeper
analysis is only a hollow rhetoric, 'unity in diversity' being the
oft quoted platitude since the days of IN RE KERALA
EDUCATION BILL, supra , wherein paragraph 51 reads: '...the
genius of India has been able to find unity in diversity by
assimilating the best of all creeds and cultures.' The counsel
appearing for Respondent Nos.15 & 16 in W.P.No.2146/2022,
is justified in pressing into service a House of Lords decision
in REGINA vs. GOVERNORS OF DENBIGH HIGH SCHOOL,
supra wherein at paragraph 97, it is observed as under:
"But schools are different. Their task is to educate the
young from all the many and diverse families and
communities in this country in accordance with the
national curriculum. Their task is to help all of their pupils
achieve their full potential. This includes growing up to
play whatever part they choose in the society in which
they are living. The school's task is also to promote the
ability of people of diverse races, religions and cultures to
live together in harmony. Fostering a sense of community
and cohesion within the school is an important part of
that. A uniform dress code can play its role in smoothing
over ethnic, religious and social divisions..."
(vi) It hardly needs to be stated that our Constitution
is founded on the principle of 'limited government'. "What is
the most important gift to the common person given by this
Constitution is 'fundamental rights', which may be called
'human rights' as well." It is also equally true that in this
country, the freedom of citizens has been broadening
precedent by precedent and the most remarkable feature of
this relentless expansion is by the magical wand of judicial
activism. Many new rights with which the Makers of our
Constitution were not familiar, have been shaped by the
constitutional courts. Though the basic human rights are
universal, their regulation as of necessity is also a
constitutional reality. The restriction and regulation of rights
be they fundamental or otherwise are a small price which
persons pay for being the members of a civilized community.
There has to be a sort of balancing of competing interests i.e.,
the collective rights of the community at large and the
individual rights of its members. True it is that the Apex
Court in NATIONAL LEGAL SERVICES AUTHORITY supra, said
that dressing too is an 'expression' protected under Article
19(1)(a) and therefore, ordinarily, no restriction can be placed
on one's personal appearance or choice of apparel. However, it
also specifically mentioned at paragraph 69 that this right is
"subject to the restrictions contained in Article 19(2) of the
Constitution." The said decision was structured keeping the
'gender identity' at its focal point, attire being associated with
such identity. Autonomy and privacy rights have also
blossomed vide K.S.PUTTASWAMY, supra. We have no quarrel
with the petitioners' essential proposition that what one
desires to wear is a facet of one's autonomy and that one's
attire is one's expression. But all that is subject to reasonable
regulation.
(vii) Nobody disputes that persons have a host of rights
that are constitutionally guaranteed in varying degrees and
they are subject to reasonable restrictions. What is reasonable
is dictated by a host of qualitative & quantitative factors.
Ordinarily, a positive of the right includes its negative. Thus,
right to speech includes right to be silent vide BIJOE
EMMANUEL. However, the negative of a right is not invariably
coextensive with its positive aspect. Precedentially speaking,
the right to close down an industry is not coextensive with its
positive facet i.e., the right to establish industry under Article
19(1)(g) vide EXCEL WEAR vs. UNION OF INDIA81. Similarly,
the right to life does not include the right to die under Article
21 vide COMMON CAUSE vs. UNION OF INDIA82, attempt to
81 AIR 1979 SC 25
82 (2018) 5 SCC 1
commit suicide being an offence under Section 309 of Indian
Penal Code. It hardly needs to be stated the content & scope
of a right, in terms of its exercise are circumstantially
dependent. Ordinarily, liberties of a person stand curtailed
inter alia by his position, placement and the like. The extent of
autonomy is enormous at home, since ordinarily residence of
a person is treated as his inviolable castle. However, in
'qualified public places' like schools, courts, war rooms,
defence camps, etc., the freedom of individuals as of
necessity, is curtailed consistent with their discipline &
decorum and function & purpose. Since wearing hijab as a
facet of expression protected under Article 19(1)(a) is being
debated, we may profitably advert to the 'free speech
jurisprudence' in other jurisdictions. The Apex Court in
INDIAN EXPRESS NEWSPAPERS vs. UNION OF INDIA83
observed:
"While examining the constitutionality of a law
which is alleged to contravene Article 19(1)(a) of the
Constitution, we cannot, no doubt, be solely guided
by the decisions of the Supreme Court of the United
States of America. But in order to understand the
basic principles of freedom of speech and expression
and the need for that freedom in a democratic
country, we may take them into consideration...".
83 (1985) 1 SCC 641
(viii) In US, the Fourteenth Amendment is held to
protect the First Amendment rights of school children against
unreasonable rules or regulations vide BURNSIDE vs.
BYARS84. Therefore, a prohibition by the school officials, of a
particular expression of opinion is held unsustainable where
there is no showing that the exercise of the forbidden right
would materially interfere with the requirements of a school'
positive discipline. However, conduct by a student, in class or
out of it, which for any reason-whether it stems from time,
place, or type of behavior-materially disrupts class work or
involves substantial disorder or invasion of the rights of
others, is not immunized by the constitutional guaranty of
freedom of speech vide JOHN F. TINKER vs. DES MOINES
INDEPENDENT COMMUNITY SCHOOL, supra In a country
wherein right to speech & expression is held to heart, if school
restrictions are sustainable on the ground of positive
discipline & decorum, there is no reason as to why it should
be otherwise in our land. An extreme argument that the
students should be free to choose their attire in the school
individually, if countenanced, would only breed indiscipline
that may eventually degenerate into chaos in the campus and
84 363 F 2d 744 (5th Cir. 1966)
later, in the society at large. This is not desirable to say the
least. It is too farfetched to argue that the school dress code
militates against the fundamental freedoms guaranteed under
Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore,
the same should be outlawed by the stroke of a pen.
(ix) CONCEDING HIJAB ON THE PRINCIPLE OF
REASONABLE ACCOMMODATION:
The counsel for the petitioners passionately submitted
that the students should be permitted to wear hijab of
structure & colour that suit to the prescribed dress code. In
support of this, they bank upon the 'principle of reasonable
accommodation'. They drew our attention to the prevalent
practice of dress codes/uniforms in Kendriya Vidyalayas. We
are not impressed by this argument. Reasons are not far to
seek: firstly, such a proposal if accepted, the school uniform
ceases to be uniform. There shall be two categories of girl
students viz., those who wear the uniform with hijab and
those who do it without. That would establish a sense of
'social-separateness', which is not desirable. It also offends
the feel of uniformity which the dress-code is designed to
bring about amongst all the students regardless of their
religion & faiths. As already mentioned above, the statutory
scheme militates against sectarianism of every kind.
Therefore, the accommodation which the petitioners seek
cannot be said to be reasonable. The object of prescribing
uniform will be defeated if there is non-uniformity in the
matter of uniforms. Youth is an impressionable period when
identity and opinion begin to crystallize. Young students are
able to readily grasp from their immediate environment,
differentiating lines of race, region, religion, language, caste,
place of birth, etc. The aim of the regulation is to create a
'safe space' where such divisive lines should have no place
and the ideals of egalitarianism should be readily apparent to
all students alike. Adherence to dress code is a mandatory for
students. Recently, a Division Bench of this Court disposed
off on 28.08.2019, Writ Petition No.13751 OF 2019 (EDN-
RES-PIL) between MASTER MANJUNATH vs. UNION OF INDIA
on this premise. What the Kendriya Vidyalayas prescribe as
uniform/dress code is left to the policy of the Central
Government. Ours being a kind of Federal Structure
(Professor K.C. Wheare), the Federal Units, namely the States
need not toe the line of Center.
(x) Petitioners' heavy reliance on the South African
court decision in MEC FOR EDUCATION: KWAZULU-NATAL,
supra, does not much come to their aid. Constitutional
schemes and socio-political ideologies vary from one country
to another, regardless of textual similarities. A Constitution of
a country being the Fundamental Law, is shaped by several
streams of forces such as history, religion, culture, way of life,
values and a host of such other factors. In a given fact matrix,
how a foreign jurisdiction treats the case cannot be the sole
model readily availing for adoption in our system which
ordinarily treats foreign law & foreign judgments as matters of
facts. Secondly, the said case involved a nose stud, which is
ocularly insignificantly, apparently being as small as can be.
By no stretch of imagination, that would not in any way affect
the uniformity which the dress code intends to bring in the
class room. That was an inarticulate factor of the said
judgment. By and large, the first reason supra answers the
Malaysian court decision too85. Malaysia being a theistic
Nation has Islam as the State religion and the court in its
wisdom treated wearing hijab as being a part of religious
practice. We have a wealth of material with which a view in
respectful variance is formed. Those foreign decisions cited by
85 HJH HALIMATUSSAADIAH BTE HJ KAMARUDDIN V. PUBLIC
SERVICES COMMISSION, MALAYSIA (CIVIL APPEAL NO. 01-05-92)
DECIDED ON 5-8-1994 [1994] 3 MLJ
the other side of spectrum in opposing hijab argument, for the
same reasons do not come to much assistance. In several
countries, wearing of burqa or hijab is prohibited, is of no
assistance to us. Noble thoughts coming from whichever
direction are most welcome. Foreign decisions also throw light
on the issues debated, cannot be disputed. However, courts
have to adjudge the causes brought before them essentially in
accordance with native law.
In view of the above, we are of the considered opinion
that the prescription of school uniform is only a
reasonable restriction constitutionally permissible which
the students cannot object to.
XV. AS TO VALIDITY OF GOVERNMENT CIRCULAR
DATED 31.1.2014 CONCERNING THE FORMATION OF
SCHOOL BETTERMENT (DEVELOPMENT) COMMITTEES:
(i) The government vide Circular dated 31.1.2014
directed constitution of School Betterment Committee inter
alia with the object of securing State Aid & its appropriation
and enhancing the basic facilities & their optimum utilization.
This Committee in every Pre-University College shall be
headed by the local Member of Legislative Assembly (MLA) as
its President and his nominee as the Vice President. The
Principal of the College shall be the Member Secretary. Its
membership comprises of student representatives, parents,
one educationist, a Vice Principal/Senior Professor & a Senior
Lecturer. The requirement of reservation of SC/ST/Women is
horizontally prescribed. It is submitted at the Bar that these
Committees have been functioning since about eight years or
so with no complaints whatsoever. Petitioners argued for
Committee's invalidation on the ground that the presence of
local Member of Legislative Assembly and his nominee would
only infuse politics in the campus and therefore, not
desirable. He also submits that even otherwise, the College
Development Committee being extra-legal authority has no
power to prescribe uniform.
(ii) We are not much inclined to undertake a deeper
discussion on the validity of constitution & functioning of
School Betterment (Development) Committees since none of
the Writ Petitions seeks to lay challenge to Government
Circular of January 2014. Merely because these Committees
are headed by the local Member of Legislative Assembly, we
cannot hastily jump to the conclusion that their formation is
bad. It is also relevant to mention what the Apex Court said in
STATE OF PUNJAB VS. GURDEV SINGH86, after referring to
Professor Wade's Administrative Law:
"...Apropos to this principle, Prof. Wade states: "the
principle must be equally true even where the 'brand' of
invalidity' is plainly visible; for their also the order can
effectively be resisted in law only by obtaining the
decision of the Court (See: Administrative Law 6th Ed. p.
352). Prof. Wade sums up these principles: The truth of
the matter is that the court will invalidate an order only if
'the right remedy is sought by the right person in the right
proceedings and circumstances. The order may be
hypothetically a nullity, but the Court may refuse to
quash it because of the plain- tiff's lack of standing,
because he does not deserve a discretionary remedy,
because he has waived his rights, or for some other legal
reason. In any such case the 'void' order remains effective
and is, in reality, valid. It follows that an order may be
void for one purpose and valid for another, and that it
may be void against one person but valid against
another." (Ibid p. 352) It will be clear from these
principles, the party aggrieved by the invalidity of the
order has to approach the Court for relief of declaration
that the order against him is inoperative and not binding
upon him. He must approach the Court within the
prescribed period of limitation. If the statutory time limit
expires the Court cannot give the declaration sought
for..."
It is nobody's case that the Government Circular is void ab
initio and consequently, the School Betterment (Development)
Committees are non est. They have been functioning since last
eight years and no complaint is raised about their
performance, nor is any material placed on record that
warrants consideration of the question of their validity despite
86 AIR 1992 SC 111
absence of pleadings & prayers. It hardly needs to be stated
that schools & hospitals amongst other, are the electoral
considerations and therefore, peoples' representatives do
show concern for the same, as a measure of their
performances. That being the position, induction of local
Members of Legislative Assembly in the Committees per se is
not a ground for voiding the subject Circular.
(iii) We have already held that the schools &
institutions have power to prescribe student uniform. There is
no legal bar for the School Betterment (Development)
Committees to associate with the process of such
prescription. However, there may be some scope for the view
that it is not desirable to have elected representatives of the
people in the school committees of the kind, one of the
obvious reasons being the possible infusion of 'party-politics'
into the campus. This is not to cast aspersion on anyone. We
are not unaware of the advantages of the schools associating
with the elected representatives. They may fetch funds and
such other things helping development of institutions. This
apart, no law or ruling is brought to our notice that interdicts
their induction as the constituent members of such
committees.
XVI. AS TO VALIDITY OF GOVERNMENT ORDER DATED
5.2.2022 PROVIDING FOR PRESCRIPTION OF DRESS
CODES IN EDUCATIONAL INSTITUTIONS:
(i) The validity of Government Order dated
05.02.2022 had been hotly debated in these petitions.
Petitioners argue that this order could not have been issued
in purported exercise of power under sections 133 and 7(2) of
the 1983 Act read with Rule 11 of the 1995 Curricula Rules.
The State and other contesting respondents contend to the
contrary, inter alia by invoking sections 142 & 143 of the
1983 Act, as well. This Order per se does not prescribe any
dress code and it only provides for prescription of uniform in
four different types of educational institutions. The near
English version of the above as submitted by both the sides is
already stated in the beginning part of the judgment.
However, the same is reiterated for the ease of reference:
Students should compulsorily adhere to the dress code/uniform
as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre-University colleges that come within the
jurisdiction of the Department of the Pre-University
Education, as prescribed by the College Development
Committee or College Supervision Committee; and
d. wherever no dress code is prescribed, such attire that
would accord with 'equality & integrity' and would not
disrupt the 'public order'.
(ii) Petitioners firstly argued that this Order suffers
from material irregularity apparent on its face inasmuch as
the rulings cited therein do not lay down the ratio which the
government wrongly states that they do. This Order refers to
two decisions of the Kerala High Court and one decision of
Bombay and Madras High Courts each. We have already
discussed all these decisions supra at paragraph (X) and
therefore, much need not be discussed here. Regardless of the
ratio of these decisions, if the Government Order is otherwise
sustainable in law, which we believe it does, the challenge
thereto has to fail for more than one reason: The subject
matter of the Government Order is the prescription of school
uniform. Power to prescribe, we have already held, avails in
the scheme of 1983 Act and the Rules promulgated
thereunder. Section 133(2) of the Act which is broadly worded
empowers the government to issue any directions to give effect
to the purposes of the Act or to any provision of the Act or to
any Rule made thereunder. This is a wide conferment of
power which obviously includes the authority to prescribe
school dress code. It is more so because Rule 11 of 1995
Curricula Rules itself provides for the prescription of school
uniform and its modalities. The Government Order can be
construed as the one issued to give effect to this rule itself.
Such an order needs to be construed in the light of the said
rule and the 2014 Circular, since there exists a kinship inter
se. Therefore, the question as to competence of the
government to issue order of the kind is answered in the
affirmative.
(iii) Petitioners' second contention relates to exercise of
statutory power by the government that culminated into
issuance of the impugned order. There is difference between
existence of power and the exercise of power; existence of
power per se does not justify its exercise. The public power
that is coupled with duty needs to be wielded for effectuating
the purpose of its conferment. Learned counsel appearing for
the students argued that the Government Order has to be
voided since the reasons on which it is structured are ex facie
bad and that new grounds cannot be imported to the body of
the Order for infusing validity thereto vide COMMISSIONER OF
POLICE vs. GORDHANDAS BHANJE87. This decision
articulated the Administrative Law principle that the validity
of a statutory order has to be adjudged only on the reasons
stated in the order itself. We have no quarrel with this
principle which has been reiterated in MOHINDER SINGH
GILL, supra. However, we are not sure of its invocation in a
case wherein validity of the impugned order can otherwise be
sustained on the basis of other intrinsic material. As we have
already mentioned, the Government Order is issued to give
effect to the purposes of the 1983 Act and to Rule 11 of the
1995 Curricula Rules. That being the position the question of
un-sustainability of some of the reasons on which the said
Order is constructed, pales into insignificance.
(iv) Petitioners next argued that the Government Order
cites 'sārvajanika suvyavasthe' i.e., 'public order' as one of the
reasons for prescribing uniform to the exclusion of hijab;
disruption of public order is not by those who wear this
apparel but by those who oppose it; most of these opposers
wear bhagwa or such other cloth symbolic of religious
overtones. The government should take action against the
hooligans disrupting peace, instead of asking the Muslim girl
87 AIR 1952 SC 16
students to remove their hijab. In support of this contention,
they drew attention of the court to the concept of 'hecklers
veto' as discussed in K.M.SHANKARAPPA, supra. They further
argued that ours being a 'positive secularism', the State
should endeavor to create congenial atmosphere for the
exercise of citizens rights, by taking stern action against those
who obstruct vide PRAVEEN BHAI THOGADIA, supra. Again
we do not have any quarrel with the proposition of law.
However, we are not convinced that the same is invocable for
invalidating the Government Order, which per se does not
prescribe any uniform but only provides for prescription in a
structured way, which we have already upheld in the light of
our specific finding that wearing hijab is not an essential
religious practice and school uniform to its exclusion can be
prescribed. It hardly needs to be stated that the uniform can
exclude any other apparel like bhagwa or blue shawl that may
have the visible religious overtones. The object of prescribing
uniform cannot be better stated than by quoting from
'MANUAL ON SCHOOL UNIFORMS' published by U.S.
Department of Education:
'A safe and disciplined learning environment is the first
requirement of a good school. Young people who are safe
and secure, who learn basic American values and the
essentials of good citizenship, are better students. In
response to growing levels of violence in our schools,
many parents, teachers, and school officials have come to
see school uniforms as one positive and creative way to
reduce discipline problems and increase school safety.'
(v) We hasten to add that certain terms used in a
Government Order such as 'public order', etc., cannot be
construed as the ones employed in the Constitution or
Statutes. There is a sea of difference in the textual structuring
of legislation and in promulgating a statutory order as the one
at hands. The draftsmen of the former are ascribed of due
diligence & seriousness in the employment of terminology
which the government officers at times lack whilst textually
framing the statutory policies. Nowadays, courts do often
come across several Government Orders and Circulars which
have lavish terminologies, at times lending weight to the
challenge. The words used in Government Orders have to be
construed in the generality of their text and with common
sense and with a measure of grace to their linguistic pitfalls.
The text & context of the Act under which such orders are
issued also figure in the mind. The impugned order could
have been well drafted, is true. 'There is scope for improvement
even in heaven' said Oscar Wilde. We cannot resist ourselves
from quoting what Justice Holmes had said in TOWNE vs.
EISNER88, "a word is not a crystal, transparent and
unchanged; it is the skin of a living thought and may vary
greatly in color and content according to the circumstances and
the time in which it is used." Thus, there is no much scope for
invoking the concept of 'law and order' as discussed in ANITA
and GULAB ABBAS, supra, although the Government Order
gives a loose impression that there is some nexus between
wearing of hijab and the 'law & order' situation.
(vi) Petitioners had also produced some 'loose papers'
without head and tail, which purported to be of a brochure
issued by the Education Department to the effect that there
was no requirement of any school uniform and that the
prescription of one by any institution shall be illegal. There is
nothing on record for authenticating this version. Those
producing the same have not stated as to who their author is
and what legal authority he possessed to issue the same.
Even otherwise, this purported brochure cannot stand in the
face of Government Order dated 05.02.2022 whose validity we
have already considered. Similarly, petitioners had banked
upon the so called research papers allegedly published by
'Pew Research Centre' about religious clothing and personal
88 245 U.S.418 (1918)
appearance. They contend that this paper is generated from
the research that studied various religious groups &
communities and that a finding has been recorded: 'Most
Hindu, Muslim and Sikh women cover their heads outside the
home' and therefore, the Government Order which militates
against this social reality, is arbitrary. We are not inclined to
subscribe to this view. No credentials of the researchers are
stated nor the representative character of the statistics
mentioned in the papers are demonstrated. The authenticity
of the contents is apparently lacking.
(vii) Petitioners contended that the said Government
Order has been hastily issued even when the contemplated
High Powered Committee was yet to look into the issue as to
the desirability of prescription and modules of dress codes in
the educational institutions. The contents of Government
Order give this impression, is true. However, that is too feeble
a ground for faltering a policy decision like this. At times,
regard being had to special conditions like social unrest and
public agitations, governments do take certain urgent
decisions which may appear to be knee-jerk reactions.
However, these are matters of perceptions. May be, such
decisions are at times in variance with their earlier stand.
Even that cannot be faltered when they are dictated by
circumstances. After all, in matters of this kind, the doctrine
of 'estoppel' does not readily apply. Whether a particular
decision should be taken at a particular time, is a matter left
to the executive wisdom, and courts cannot run a race of
opinions with the Executive, more particularly when policy
content & considerations that shaped the decision are not
judicially assessable. The doctrine of 'separation of powers'
which figures in our constitution as a 'basic feature' expects
the organs of the State to show due deference to each other's
opinions. The last contention that the Government Order is a
product of 'acting under dictation' and therefore, is bad in law
is bit difficult to countenance. Who acted under whose
dictation cannot be adjudged merely on the basis of some
concessional arguments submitted on behalf of the State
Government. Such a proposition cannot be readily invoked
inasmuch as invocation would affect the institutional dignity
& efficacy of the government. A strong case has to be made to
invoke such a ground, in terms of pleadings & proof.
In view of the above, we are of the considered opinion
that the government has power to issue the impugned
Order dated 05.2.2022 and that no case is made out for
its invalidation.
XVII. INTERNATIONAL CONVENTIONS AND
EMANCIPATION OF WOMEN:
(i) There have been several International Conventions
& Conferences in which India is a participant if not a
signatory. UNIVERSAL DECLARATION OF HUMAN RIGHTS
(1948), CONVENTION OF ELIMINATION ON ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (1981), INTERNATIONAL
COVENANTS ON CIVIL AND POLITICAL RIGHTS (1966),
UNITED NATIONS CONVENTION ON RIGHTS OF CHILD (1989),
are only a few to name. Under our Constitutional
Jurisprudence, owing to Article 51 which provides for
promotion of international peace & security, the International
Conventions of the kind assume a significant role in
construing the welfare legislations and the statutes which
have kinship to the subject matter of such Conventions. In a
sense, these instruments of International Law permeate into
our domestic law. Throughout, there has been both legislative
& judicial process to emancipate women from pernicious
discrimination in all its forms and means. Women regardless
of religion being equal, if not superior to men, are also joining
defence services on permanent commission basis vide Apex
Court decision in C.A.No.9367-9369/2011 between THE
SECRETARY, MINISTRY OF DEFENCE vs. BABITA PUNIYA,
decided on 17.2.2020. Be it business, industry, profession,
public & private employments, sports, arts and such other
walks of life, women are breaking the glass ceiling and faring
better than their counterparts.
(ii) It is relevant to quote what Dr. B.R.Ambedkar in
his book 'PAKISTAN OR THE PARTITION OF INDIA' (1945) at
Chapter X, Part 1 titled 'Social Stagnation' wrote:
"...A woman (Muslim) is allowed to see only her
son, brothers, father, uncles, and husband, or any other
near relation who may be admitted to a position of trust.
She cannot even go to the Mosque to pray, and must wear
burka (veil) whenever she has to go out. These burka
woman walking in the streets is one of the most hideous
sights one can witness in India...The Muslims have all
the social evils of the Hindus and something more. That
something more is the compulsory system of purdah for
Muslim women... Such seclusion cannot have its
deteriorating effect upon the physical constitution of
Muslim women... Being completely secluded from the
outer world, they engage their minds in petty family
quarrels with the result that they become narrow and
restrictive in their outlook... They cannot take part in any
outdoor activity and are weighed down by a slavish
mentality and an inferiority complex...Purdah women in
particular become helpless, timid...Considering the large
number of purdah women amongst Muslims in India, one
can easily understand the vastness and seriousness of
the problem of purdah...As a consequence of the purdah
system, a segregation of Muslim women is brought about
..."
What the Chief Architect of our Constitution observed more
than half a century ago about the purdah practice equally
applies to wearing of hijab there is a lot of scope for the
argument that insistence on wearing of purdah, veil, or
headgear in any community may hinder the process of
emancipation of woman in general and Muslim woman in
particular. That militates against our constitutional spirit of
'equal opportunity' of 'public participation' and 'positive
secularism'. Prescription of school dress code to the exclusion
of hijab, bhagwa, or any other apparel symbolic of religion can
be a step forward in the direction of emancipation and more
particularly, to the access to education. It hardly needs to be
stated that this does not rob off the autonomy of women or
their right to education inasmuch as they can wear any
apparel of their choice outside the classroom.
XVIII. AS TO PRAYER FOR A WRIT OF QUO WARRANTO
IN SOME WRIT PETITIONS:
The petitioners in W.P. No.2146/2022, have sought for a
Writ of Mandamus for initiating a disciplinary enquiry on the
ground that the respondent Nos.6 to 14 i.e., Principal &
teachers of the respondent-college are violating the
departmental guidelines which prohibit prescription of any
uniform and for their hostile approach. Strangely, petitioners
have also sought for a Writ of Quo Warranto against
respondent Nos. 15 & 16 for their alleged interference in the
administration of 5th respondent school and for promoting
political agenda. The petition is apparently ill-drafted and
pleadings lack cogency and coherence that are required for
considering the serious prayers of this kind. We have already
commented upon the Departmental Guidelines as having no
force of law. Therefore, the question of the said respondents
violating the same even remotely does not arise. We have also
recorded a finding that the college can prescribe uniform to
the exclusion of hijab or bhagwa or such other religious
symbols, and therefore, the alleged act of the respondents in
seeking adherence to the school discipline & dress code
cannot be faltered. Absolutely no case is made out for
granting the prayers or any other reliefs on the basis of these
pleadings. The law of Quo Warranto is no longer in a fluid
state in our country; the principles governing issuance of this
writ having been well defined vide UNIVERSITY OF MYSORE
vs. C.D. GOVINDA RAO89 . For seeking a Writ of this nature,
one has to demonstrate that the post or office which the
89 AIR 1965 SC 491
person concerned holds is a public post or a public office. In
our considered view, the respondent Nos.15 & 16 do not hold
any such position in the respondent-school. Their placement
in the College Betterment (Development) Committee does not
fill the public character required as a pre-condition for the
issuance of Writ of Quo Warranto.
In view of the above, we are of the considered opinion
that no case is made out in W.P. No.2146/2022 for
issuance of a direction for initiating disciplinary
enquiry against respondent Nos. 6 to 14. The prayer for
issuance of Writ of Quo Warranto against respondent
Nos. 15 and 16 is rejected being not maintainable.
From the submissions made on behalf of the
Respondent - Pre - University College at Udupi and the
material placed on record, we notice that all was well with the
dress code since 2004. We are also impressed that even
Muslims participate in the festivals that are celebrated in the
'ashta mutt sampradāya', (Udupi being the place where eight
Mutts are situated). We are dismayed as to how all of a
sudden that too in the middle of the academic term the issue
of hijab is generated and blown out of proportion by the
powers that be. The way, hijab imbroglio unfolded gives scope
for the argument that some 'unseen hands' are at work to
engineer social unrest and disharmony. Much is not
necessary to specify. We are not commenting on the ongoing
police investigation lest it should be affected. We have perused
and returned copies of the police papers that were furnished
to us in a sealed cover. We expect a speedy & effective
investigation into the matter and culprits being brought to
book, brooking no delay.
XIX. THE PUBLIC INTEREST LITIGATIONS:
(i) One Dr. Vinod Kulkarni has filed PIL in
W.P.No.3424/2022 seeking a Writ of Mandamus to the
Central Government and State Government inter alia 'to
permit Female Muslim students to sport Hijab provided they
wear the stipulated school uniform also' (sic). The petition
mentions about BIJOE EMMANUEL, INDIAN YOUNG LAWYERS
ASSOCIATION, JAGADISHWARANANDA AVADHUTA,
CHANDANMAL vs. STATE OF WEST BENGAL90 and such other
cases. Petition is unsatisfactorily structured on the basis of
some print & electronic media reports that are not made part
of the paper book. There is another PIL in GHANSHYAM
UPADHYAY VS. UNION OF INDIA in W.P.No.4338/2022 (GM-
90 AIR 1986 CAL. 104
RES-PIL) inter alia seeking a Writ of Mandamus for
undertaking an investigation by the Central Bureau of
Investigation (CBI), National Investigating Agency (NIA) as to
the involvement of radical Islamic organizations such as
Popular Front of India, Students Islamic Organization of
India, Campus Front of India and Jamaat-e-Islami and their
funding by some foreign universities to Islamize India. There
are other incoherent prayers. This petitioner opposes the case
of students who desire to wear hijab. Most of the contentions
taken up in these petitions are broadly treated in the
companion Writ Petitions. We are not inclined to entertain
these two Writ Petitions filed in PIL jurisdiction, both on the
ground of their maintainability & merits. The second petition,
it needs to be stated, seeks to expand the parameters of the
essential lis involved in all these cases much beyond the
warranted frame of consideration. In W.P.No.3942/2022 (GM-
RES-PIL) between ABDUL MANSOOR MURTUZA SAYED AND
STATE OF KARNATAKA decided on 25.02.2022, we have
already held that when the aggrieved parties are effectively
prosecuting their personal causes, others cannot interfere by
invoking PIL jurisdiction. A battery of eminent lawyers are
representing the parties on both the sides. Even otherwise, no
exceptional case is made out for our indulgence.
In view of the above, we are of the considered opinion
that both the above Writ Petitions filed as Public
Interest Litigations are liable to be rejected, absolutely
no case having been made out for indulgence.
In the above circumstances, all these petitions being
devoid of merits, are liable to be and accordingly are
dismissed. In view of dismissal of these Writ Petitions, all
pending applications pale into insignificance and are
accordingly, disposed off.
Costs made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Sd/-
JUDGE
SJ/CBC
