Permitting One Religious Community To Wear Their Religious Symbol Would Be Antithesis To Secularism- Justice Hemant Gupta In Hijab Case

Justice Hemant Gupta while delivering the judgment first, dismissed all the appeals that were filed against the judgment of the Karnataka High Court which had held that Hijab is not an essential religious practice in the Islamic faith. The Court also held that the prescription of school uniform is a reasonable restriction, constitutionally permissible.

Justice Hemant Gupta observed that secularism is applicable to all citizens, therefore permitting one religious community to wear their religious symbols would be antithesis to secularism.

While Justice Sudhanshu Dhulia has set aside the judgment of the Karnataka High Court and quashed the Government Order.

Justice Dhulia said that girl children face many difficulties in rural areas, "are we making her life any better", that is also a question I have considered, the judge added.

• Justice Hemant Gupta's analysis

Justice Gupta began with his judgment with a preface on 'Secularism.'

The Judge noted that that the term 'secular' has a wide amplitude and has been understood differently in different parts of the world, thus it is important to comprehend the same in context of the Indian Constitution.

Further, it was also noted, "The word "secular" is now part of the Preamble of the Constitution. What is meant by "Secular" (पपंथननिरपपेक्ष in the Hindi version of the Constitution) needs to be discussed first. The word 'Secular' was inserted in the Preamble of the Constitution by the 42nd Amendment w.e.f. 3.1.1977. It is commonly understood in contradistinction to the term 'religious.'"

Referring to the philosophies of the West, Justice Gupta noted that the idea of secularism may have been borrowed in the Indian Constitution from the West; however, it has taken a different colour over the period of time. In a democratic country like India, consisting of multiple religions, regions, faith, languages, food and clothing, the concept of secularism is to be understood differently. Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State.

Referring to the factual background of the case, Justice Gupta framed as many as 11 questions for consideration.

1) Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re-9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution.

The Counsel for the Appellant had contended before the Court that the case ought to be referred to a larger bench in view of the order of this Court reported as Kantaru Rajeevaru (Sabarimala Temple Review-5J.) v. Indian Young Lawyers Association & Ors.

The Judge in this context held that review in the said case is to consider much wider questions thus, the argument of the Appellant does not warrant consideration.

"The questions referred to the larger Bench relate to power of judicial review in the matters of essential religious practices. But the said question need not be examined in the present matter as the issue herein is whether a religious practice, which may be an essential religious practice, can be regulated by the State in a secular institution. Therefore, I do not find it necessary to tag the present appeals along with Kantaru Rajeevaru," Justice Gupta held.

2) Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Act

The Judge noted that the Government Order relates to the powers conferred on the executive under Section 133 of the Karnataka Education Act and rule-making power of the State under Article 162 of the Constitution. The Government Order does not run contrary to any of the provisions of the Act and the rules framed thereunder. Therefore, the executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee.

"In view of the above, I find that the State Government has the power to constitute a College Development Committee by notification dated 31.1.2014 in terms of Section 143 of the Act. The State Government could confer its power to be exercised by such office/authority subordinate to the State Government. It is noted that the word 'authority' has not been defined under the Act. The authority contemplated by the Act could be a nonstatutory authority such as of a person or a group of persons who may be authorized to exercise powers under Section 143 of the Act," the Judge held.

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

Justice Gupta while referring to the rules, noted that the educational institutions have a right to prescribe a uniform to the students attending the said school.

The Judge further also noted that rights guaranteed under Article 25 of the Constitution is not absolute and subject to restrictions, and thus observed-

"The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1)."

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

Justice Gupta while referring to various precedents and several verses of the Holy Quran observed-

…in the present, the students want to subjugate their freedom of choice of dress to be regulated by religion than by the State while they are in fact students of a state school. The equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be breached by the State on the basis of religious faith."

The Judge further held, "The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds. Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order."

5) Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14.

The Judge in this context noted that Rule 11 of the Rules has mandated the recognized educational institutions including private institutions to prescribe uniforms.

"Since it is a regulatory provision for wearing of uniform, hence, the decision of the State Government mandating the College Development Committee to ensure the students wear the uniform as prescribed does not violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14," Justice Gupta held.

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

In this context, Justice Gupta noted, "The students have been given a uniform platform to grow and take quantum leap in their further pursuits. The homogeneity amongst the students in the matter of uniform would prepare them to grow without any distinction on the basis of religious symbols, if not worn during the classroom studies in a Pre University College."

"I do not find any merit in the argument raised that the use of the phrase "behave in a fraternal manner by transcending their group identity as the young students" in the impugned Order can be said to be violative of any law," observed Justice Gupta.

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

Justice Gupta in this context, held, "I do not find any merit in the said argument. The schools run by the State are open for admission irrespective of any religion, ace, caste, language or any of them. Even the Act mandates that the students would be admitted without any restriction on such grounds. However, the students are required to follow the discipline of the school in the matter of uniform. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules."

8) Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre-condition for accessing education in a State institution?

Justice Gupta held that the Government Order does not take away right of a student available to her under Article 21 of the Constitution, or that it contemplates any barter of fundamental rights. The right to education under Article 21 continues to be available but it is the choice of the student to avail such right or not. The student is not expected to put a condition, that unless she is permitted to come to a secular school wearing a headscarf, she would not attend the school. The decision is of the student and not of school when the student opts not to adhere to the uniform rules.

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

In this context, the Judge held, "The accommodation sought is contrary to spirit of Article 14 as it would result in different treatment of students in secular schools who may be following varied religions beliefs."

10) Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution.

Justice Gupta held that the Government Order cannot be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution. The Government Order only ensures that the uniform prescribed is adhered to by the students and it cannot be said that State is restricting the access to education to the girl students through such an Order.

11) Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act.

In this context, Justice Gupta held, "secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983."

In light of these observations, Justice Gupta dismissed the appeals.

Cause Title – Aishat Shifa v. The State of Karnataka & Ors.