India
is a country of cultural and religious diversity, cognizant of this fact, the
Constitution Markers of the country assured that citizens enjoy an explicit
fundamental right under the Part III of the Indian Constitution i.e Freedom of
Religion. The said fundamental right ensures that all persons have freedom of
conscience and the right freely to profess, practice, and propagate religion.
But, it was also taken into consideration that absolute freedom of religion
shall harm the unity of the nation. Therefore, Article 25(1) is subject to
restrictions that are public order, morality, and health and to the other
provisions of this Part III.
To
further uphold the religious and cultural diversity in India, the Indian
Constitution was amended in the year 1976 to include the word “secular” in the
keystone of the Constitution i.e Preamble. Secularism means separation of state
from religion i.e a state without religion, respecting every religion in the
country.
The need for above introduction is important for our analysis of the recent case i.e Aishat Shifa v. State of Karnataka & Ors, also known as the Karnataka Hijab Case. Henceforth, in the article, the author shall bifurcate the ratio decidendi of the judgment.
JOURNEY FROM HIGH COURT TO SUPREME
COURT
In
the present case, the conundrum commences from the guidelines by the Government
Pre-University College in Udupi, Karnataka prescribing a uniform code.
Subsequent to the said guidelines, the students claimed that they were
restricted from entering the college, as they were wearing hijab. An outrageous
protest took place, and as a result, the matter reached the Karnataka High
Court. While the matter was pending in the court, the Karnataka Government issued
a government order dated 05.02.2022, allowing only prescribing uniforms in
Government Colleges. Therefore, the Karnataka High Court held that hijab is not
an essential religious practice of the Islamic faith and that the government
order 05.02.2022 was valid.
Aggrieved by the judgment of the Karnataka High Court, the students approached the Supreme Court. The two-judge bench of the Supreme Court comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia gave a split opinion in the case.
IMPORTANT ISSUES IN THE CASE
Justice Hemant Gupta has formulated eleven issues, but the author has narrowed it down to three, owing to the most relevant and important for the readers.
- Issue 1- Whether the matter has to be referred to a larger bench with the Sabarimala reference?
- Issue 2- Weather prohibition to wear hijab is violative of Article 25 of the Indian Constitution.
- Issue 3- Whether the right to wear hijab can be claimed as part of freedom of expression under Article 19(1)(a) (freedom of speech and expression) and part of the right to privacy and dignity under Article 21 of the Indian?
The reasoning of Justice Hemant Gupta
The nature of the issue defers in
the Sabarimala case and the present hijab case
It was observed that Sabrimala’s nine-bench reference case is concerned with judicial review in matters of essential religious practices. Whereas in the present case, the issue is that the religious practice (the wearing of hijab), may be an essential religious practice, but can it be regulated by the state in a secular institution? Hence, the case does not relate to essential religious practices. Rather, it questions the power of the state to regulate religious practice in state-owned institutions. Justice Hemant Gupta observed:
It is noted that the review in Kantaru Rajeevaru (Right to Religion, In Re-9J.) is to consider much wider questions. The argument that the matter should be referred to a larger Bench to be heard along with such referred cases 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 Hemant Gupta’s Opinion at para 26
Secular Character of the Nation
Justice
Hemant Gupta gave emphasis on the secular nature of the nation. He also
referred to various cases such as Kesavananda Bharati v. State of Kerala &
Anr, Smt. Indira Nehru Gandhi v. Shri Raj Narain, and observed that a religious
activity or a practice cannot be intertwined with secular activities. And, the
meaning of secularism itself means treating all religions equally, respecting
all religions, and protecting the practices of all religions. Therefore in a
secular state, the government can regulate religious activities.
Prohibition to wear Hijab is not
violative of Article 25(1), instead, it is in tune with Article 14 of the
Indian Constitution
It was observed that Article 25(1) of the Indian Constitution i.e freedom of religion is not an absolute right, rather it is subject to public order, morality, and health but also ‘other provisions of Part III’. Since, ‘other provisions of Part III’ includes Article 14 (equality before the law and equal protection of law), the freedom of religion is subject to the right to equality. Therefore, the prohibition to wear hijab i.e a religious practice is not violative of Article 25(1), rather it is in tune with Article 14. Further, the Supreme court delved into the object of the government order i.e ensuring parity among the students in terms of uniform, and promoting uniformity and secularism in the schools. In this regard, Justice Hemant Gupta opined:
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).
Justice Hemant Gupta’s Opinion at para 89
Wearing a Hijab is not violative of
Article 19(1)(a) rather enforces Article 14
Article 19(1)(a) of the Indian Constitution provides for freedom of speech and expression. The petitioner claimed that the prohibition to wear hijab is violative of Article 19(1)(a). On the said claim, Justice Hemant Gupta observed that though freedom of expression to dress as per one’s will is subject to reasonable restrictions under Article 19(2), the state simply has not put a restriction on the exercise of a right conferred under Article 19(1)(a) rather it has regulated in a manner that the student must wear the uniform prescribed during the school hours. Hence, such regulation by the state is in accordance with Article 14. The rationale behind it is that the state is open for admission irrespective of any religion, race, case, language, or any of them. Therefore, the school must ensure discipline and uniformity. The Judge observed:
The right under Article 19(1)(a) as a right of expression to dress as per one’s own will, however, is also subject to reasonable restrictions under subclause (2) of Article 19. The State has not put a restriction on the exercise of right conferred under Article 19(1)(a) but has regulated the same in a manner that during the school hours on working days and in the class, the students shall wear the uniform as prescribed. 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 Hemant Gupta’s Opinion at para 139
No right to carry their religious
beliefs and symbols to a secular state school
The Supreme Court observed the government order meant to regulate the secular activity associated with religious practice; which falls within the ambit of Article 25(2)(a) of the Indian Constitution. Therefore, the State is within its jurisdiction to prohibit the hijab (symbol of religious belief) to be carried to a school maintained by the State from State funds. Therefore, the Supreme Court opined as follows:
“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 ethics of secularism or to the objective of the Karnataka Education Act, 1983.”
Justice Hemant Gupta’s Opinion at para 197
The reasoning of Justice Sudhanshu
Dhulia
Essential
Religious Practice is not covered under Article 25(1) of the Indian
Constitution
On the issue of clubbing the hijab case with the reference case of Sabarimala, Justice Sudhanshu Dhulia agreed with Justice Hemant Gupta. He observed that essential religious practice deals with community rights and not individual rights. Hence, the present case is concerned with individual rights. Also, the Supreme Court observed that Article 25(1) deals with individual rights, and Article 25(2) and Article 26 deal with the rights of communities or religious denominations. Therefore, Justice Sudhanshu Dhulia considered Article 25(1) and Article 19(1)(a) as the main issue.
Therefore, what can be clearly distinguished hereis that while dealing with the concept of Essential Religious Practices or whether a particular practice can be termed as an ERP, this Court was dealing with questions related to both Article 25 as well as Article 26 of the Constitution. These were the cases which were either concerned with the management of an activity related to a religious shrine or Institution or where the State had met some kind of resistance or challenge by the citizens, who claimed rights both under Article 25 and 26 of the Constitution of India. These were also the cases where a community, sect or a religious denomination of a religion was against the State action. This, however, is not presently the case before this Court. We have before us a case of assertion of individual Right as different from what would be a community Right. We are concerned only with Article 25(1) and not with Article 25(2) or Article 26 of the Constitution of India. Whereas Clause 1 of Article 25 deals with individual rights, Article 25(2) and Article 26 of the Constitution of India, deal by and large with community-based rights. In that sense what has been decided by this Court earlier as ERP would not be of much help to us. For this reason, the entire exercise done by the Karnataka High Court, in evaluating the rights of the Petitioners only on the touchstone of ERP, was incorrect.
Justice Sudhanshu Dhulia’s Opinion at para 28
Courts must not venture into matters
of theology
The Supreme Court referred to the case of M. Siddiq (Dead) Through LR’s v.Mahant Suresh Das and Ors. popularly known as the Ram Janmabhoomi Case where the court has cautioned to not venture into areas of theology with which the Courts are not well equipped. Since there may be a diversity of views within a religion among different people, the distinction of what is correct or not is difficult.
In my humble opinion Courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other. The Courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed.
Justice Sudhanshu Dhulia’s Opinion at para 36
Justice Sudhanshu Dhulia heavily relied on the judgement of the above case and opined that the fact of the case is similar to the present hijab case. In the Bijoe Emmanuel case, three girls belonging to Jehovah’s faith were excluded from the school for not singing the national anthem. One of the conditions was that their faith does not allow singing. The Supreme Court that it is not disrespectful to the National Anthem if the girls respectfully stand when the National Anthem is sung, but may not have joined in the singing. Their expulsion from school was therefore held to be in violation of their Fundamental Right of Freedom of Speech and Expression given to them under Article 19(1)(a) of the Constitution of India. Similarly, in the present case, the hijab for Muslim students is an article of their faith and social practice. Therefore, wearing a hijab is not violative of Article 19(1)(a).
Prohibition to wear Hijab is
violative of the Fundamental Rights given under Article 19(1)(a) and 21 of the
Constitution of India
Justice Dhulia observed that discipline in school is necessary but not at the cost of freedom and asked a schoolgirl to take off her hijab at the school gates. The said act of the authorities is an invasion of privacy and dignity, clearly violating the fundamental Right under Article 19(1)(a) and 21 of the Constitution of India. Further, the Supreme Court referred to the case of Aruna Roy v. Union of India which elaborated on the constitutional values of religious tolerance and diversity of culture and its acceptance in the education system.
Restrictions on the wearing of hijab
also go against our constitutional values of fraternity and human dignity.
The
Supreme Court observed that the preamble to the Constitution secures to all its
citizens “LIBERTY of thought, expression, belief, faith, and worship.” It also
seeks to promote among them, “FRATERNITY assuring the dignity of the individual
and the unity and integrity” of the Nation. Therefore, a pre-university school
must imbibe the thoughts of liberty and fraternity among the students.
Wearing Hijab is a matter of Choice
The
Supreme Court emphasised the constitutional scheme and opined that hijab is a
matter of choice. It may or may not be an essential religious practice, but it
is surely a matter of conscience, belief, and expression.
Therefore,
the Supreme Court opined as follows:
“ By asking the girls to take off their hijab before they enter the school gates, is first an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are violative of Article 19(1)(a), Article 21, and Article 25(1) of the Constitution of India.”
Justice Sudhanshu Dhulia’s Opinion at para 52
CONCLUSION
From the above reading, it is clear that the relief sought by the petitioner and the formulated issues are not answered. On one hand, the secular character of the nation has been given importance, on the other hand, the individual choice, freedom of expression, and religion. Hence, the question poses in the mind what’s next. Presently, the matter has been referred to the Chief Justice of India UU Lalit to be referred.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
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India is a country of cultural and religious diversity, cognizant of this fact, the Constitution Markers of the country assured that citizens enjoy an explicit fundamental right under the Part III of the Indian Constitution i.e Freedom of Religion. The said fundamental right ensures that all persons have freedom of conscience and the right freely to profess, practice, and propagate religion. But, it was also taken into consideration that absolute freedom of religion shall harm the unity of the nation. Therefore, Article 25(1) is subject to restrictions that are public order, morality, and health and to the other provisions of this Part III.
To further uphold the religious and cultural diversity in India, the Indian Constitution was amended in the year 1976 to include the word “secular” in the keystone of the Constitution i.e Preamble. Secularism means separation of state from religion i.e a state without religion, respecting every religion in the country.
The need for above introduction is important for our analysis of the recent case i.e Aishat Shifa v. State of Karnataka & Ors, also known as the Karnataka Hijab Case. Henceforth, in the article, the author shall bifurcate the ratio decidendi of the judgment.
JOURNEY FROM HIGH COURT TO SUPREME COURT
In the present case, the conundrum commences from the guidelines by the Government Pre-University College in Udupi, Karnataka prescribing a uniform code. Subsequent to the said guidelines, the students claimed that they were restricted from entering the college, as they were wearing hijab. An outrageous protest took place, and as a result, the matter reached the Karnataka High Court. While the matter was pending in the court, the Karnataka Government issued a government order dated 05.02.2022, allowing only prescribing uniforms in Government Colleges. Therefore, the Karnataka High Court held that hijab is not an essential religious practice of the Islamic faith and that the government order 05.02.2022 was valid.
Aggrieved by the judgment of the Karnataka High Court, the students approached the Supreme Court. The two-judge bench of the Supreme Court comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia gave a split opinion in the case.
IMPORTANT ISSUES IN THE CASE
Justice Hemant Gupta has formulated eleven issues, but the author has narrowed it down to three, owing to the most relevant and important for the readers.
The reasoning of Justice Hemant Gupta
The nature of the issue defers in the Sabarimala case and the present hijab case
It was observed that Sabrimala’s nine-bench reference case is concerned with judicial review in matters of essential religious practices. Whereas in the present case, the issue is that the religious practice (the wearing of hijab), may be an essential religious practice, but can it be regulated by the state in a secular institution? Hence, the case does not relate to essential religious practices. Rather, it questions the power of the state to regulate religious practice in state-owned institutions. Justice Hemant Gupta observed:
Secular Character of the Nation
Justice Hemant Gupta gave emphasis on the secular nature of the nation. He also referred to various cases such as Kesavananda Bharati v. State of Kerala & Anr, Smt. Indira Nehru Gandhi v. Shri Raj Narain, and observed that a religious activity or a practice cannot be intertwined with secular activities. And, the meaning of secularism itself means treating all religions equally, respecting all religions, and protecting the practices of all religions. Therefore in a secular state, the government can regulate religious activities.
Prohibition to wear Hijab is not violative of Article 25(1), instead, it is in tune with Article 14 of the Indian Constitution
It was observed that Article 25(1) of the Indian Constitution i.e freedom of religion is not an absolute right, rather it is subject to public order, morality, and health but also ‘other provisions of Part III’. Since, ‘other provisions of Part III’ includes Article 14 (equality before the law and equal protection of law), the freedom of religion is subject to the right to equality. Therefore, the prohibition to wear hijab i.e a religious practice is not violative of Article 25(1), rather it is in tune with Article 14. Further, the Supreme court delved into the object of the government order i.e ensuring parity among the students in terms of uniform, and promoting uniformity and secularism in the schools. In this regard, Justice Hemant Gupta opined:
Wearing a Hijab is not violative of Article 19(1)(a) rather enforces Article 14
Article 19(1)(a) of the Indian Constitution provides for freedom of speech and expression. The petitioner claimed that the prohibition to wear hijab is violative of Article 19(1)(a). On the said claim, Justice Hemant Gupta observed that though freedom of expression to dress as per one’s will is subject to reasonable restrictions under Article 19(2), the state simply has not put a restriction on the exercise of a right conferred under Article 19(1)(a) rather it has regulated in a manner that the student must wear the uniform prescribed during the school hours. Hence, such regulation by the state is in accordance with Article 14. The rationale behind it is that the state is open for admission irrespective of any religion, race, case, language, or any of them. Therefore, the school must ensure discipline and uniformity. The Judge observed:
No right to carry their religious beliefs and symbols to a secular state school
The Supreme Court observed the government order meant to regulate the secular activity associated with religious practice; which falls within the ambit of Article 25(2)(a) of the Indian Constitution. Therefore, the State is within its jurisdiction to prohibit the hijab (symbol of religious belief) to be carried to a school maintained by the State from State funds. Therefore, the Supreme Court opined as follows:
The reasoning of Justice Sudhanshu Dhulia
Essential Religious Practice is not covered under Article 25(1) of the Indian Constitution
On the issue of clubbing the hijab case with the reference case of Sabarimala, Justice Sudhanshu Dhulia agreed with Justice Hemant Gupta. He observed that essential religious practice deals with community rights and not individual rights. Hence, the present case is concerned with individual rights. Also, the Supreme Court observed that Article 25(1) deals with individual rights, and Article 25(2) and Article 26 deal with the rights of communities or religious denominations. Therefore, Justice Sudhanshu Dhulia considered Article 25(1) and Article 19(1)(a) as the main issue.
Courts must not venture into matters of theology
The Supreme Court referred to the case of M. Siddiq (Dead) Through LR’s v.Mahant Suresh Das and Ors. popularly known as the Ram Janmabhoomi Case where the court has cautioned to not venture into areas of theology with which the Courts are not well equipped. Since there may be a diversity of views within a religion among different people, the distinction of what is correct or not is difficult.
Bijoe Emmanuel & Ors vs State Of Kerala & Ors as a Ratio Decidendi
Justice Sudhanshu Dhulia heavily relied on the judgement of the above case and opined that the fact of the case is similar to the present hijab case. In the Bijoe Emmanuel case, three girls belonging to Jehovah’s faith were excluded from the school for not singing the national anthem. One of the conditions was that their faith does not allow singing. The Supreme Court that it is not disrespectful to the National Anthem if the girls respectfully stand when the National Anthem is sung, but may not have joined in the singing. Their expulsion from school was therefore held to be in violation of their Fundamental Right of Freedom of Speech and Expression given to them under Article 19(1)(a) of the Constitution of India. Similarly, in the present case, the hijab for Muslim students is an article of their faith and social practice. Therefore, wearing a hijab is not violative of Article 19(1)(a).
Prohibition to wear Hijab is violative of the Fundamental Rights given under Article 19(1)(a) and 21 of the Constitution of India
Justice Dhulia observed that discipline in school is necessary but not at the cost of freedom and asked a schoolgirl to take off her hijab at the school gates. The said act of the authorities is an invasion of privacy and dignity, clearly violating the fundamental Right under Article 19(1)(a) and 21 of the Constitution of India. Further, the Supreme Court referred to the case of Aruna Roy v. Union of India which elaborated on the constitutional values of religious tolerance and diversity of culture and its acceptance in the education system.
Restrictions on the wearing of hijab also go against our constitutional values of fraternity and human dignity.
The Supreme Court observed that the preamble to the Constitution secures to all its citizens “LIBERTY of thought, expression, belief, faith, and worship.” It also seeks to promote among them, “FRATERNITY assuring the dignity of the individual and the unity and integrity” of the Nation. Therefore, a pre-university school must imbibe the thoughts of liberty and fraternity among the students.
Wearing Hijab is a matter of Choice
The Supreme Court emphasised the constitutional scheme and opined that hijab is a matter of choice. It may or may not be an essential religious practice, but it is surely a matter of conscience, belief, and expression.
Therefore, the Supreme Court opined as follows:
CONCLUSION
From the above reading, it is clear that the relief sought by the petitioner and the formulated issues are not answered. On one hand, the secular character of the nation has been given importance, on the other hand, the individual choice, freedom of expression, and religion. Hence, the question poses in the mind what’s next. Presently, the matter has been referred to the Chief Justice of India UU Lalit to be referred.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
For daily legal updates, you may follow us on Instagram and LinkedIn and join our Telegram channel.
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