Aishat Shifa v. State of Karnataka

Case No.: 007095-2022

Court: Supreme Court of India

Date of Judgement: October 13, 2022

Nature of Bench: A division bench

Jurisdiction: Original / Appellate / Constitutional jurisdiction

Author of the Judgement :  

• Hon’ble Mr. Justice Hemant Gupta
• Hon’ble Mr. Justice Sudhanshu Dhulia

INTRODUCTION

This case has gained a lot of attention due to its broad implications for how religion, education, and constitutional rights interact in India. The dispute basically concerns the state’s authority to impose uniform norms and the right of Muslim female students to wear the headscarf at educational institutions. The ruling tackles fundamental issues about equality, personal freedom, and religious freedom within the parameters of Indian Constitution. In a multicultural nation like India, this case demonstrates the increasing conflict between individual liberties and communal secular values.

FACTS OF THE CASE :

– High Court Decision: The High Court of Karnataka dismissed an appeal against the government’s decision on February 5, 2022, which mandated that private schools follow the board-specified uniforms.

– Uniform Policy: The government decree required university development boards, faculty management, and state governments to enforce uniform policies, citing the importance of “equality and team spirit” in universities.

– Hijab Controversy: A Muslim student was expelled from her university in Udupi for wearing a headscarf, which was deemed a violation of school conduct. The institution rejected the students’ suggestion to cover their heads with a uniform dupatta.

– Karnataka Education Act: The Karnataka government passed the Karnataka Education Act in 1983, which emphasizes the importance of fraternity, social justice, and equality among students.

– Government Directive: The government directive issued on February 5, 2022, grants authority to educational institutions to enforce uniform policies, citing the need to maintain academic standards and promote equality.

– Development Committees: Every school and institution in the state has set up development committees to implement policies, upgrade basic facilities, and uphold academic standards.

ISSUES RAISED :

Whether Article 25 of the Constitution safeguard the wearing of a headscarf or hijab as a fundamental religious practice of Islam? 

• The constitutional rights of students, such as those guaranteed by Article 19(1)(a) and Article 21 are violated when they are required to wear mandated uniforms.
• Is the government order obviously arbitrary and, therefore, in violation of Articles 14 and 15 of the Constitution, in addition to being incompetent and issued without authority?

PETITIONER ARGUMENTS :

The petitioners first claimed that the defendant’s claim to forbid the hijab in the classroom violated Muslim schoolgirls’ rights under Article 25 of the Constitution and that donning the headscarf is a fundamental religious practice in Islam.  They went on to contend that both Article 19(1)(a) and Article 21 of the Constitution preserve the right to one’s own look and clothing choice. The “essential religious practices test” was fashioned by Supreme Court for the first time in case of The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[1]. In case of Mohd. Hanif Qureshi vs State of Bihar[2], Supreme court said that for the protection of Article 25 and 26 of constitution extends to the practices that are essential to a religion.

 Additionally, petitioners claim that the government decree in question was obviously arbitrary and allege violations of the “principle of proportionality.”  They said that neither dress code or uniform requirements were permitted by the Karnataka State Education Act of 1983 or any of its rules. 

In a similar vein, the University Improvement (Development) Commission, which was created by a government memorandum in 2014, is an extra-statutory entity that has no power to mandate uniforms or dress rules for students.  Since public policy is cited in the government order as a factor in clothing regulations and uniforms, if wearing the hijab is against the law, the state should take appropriate action against those who are disrupting the peace instead of outright prohibiting .

Additionally, they claimed that the hijab ban violates women’s autonomy and violates Article 14 of the Constitution by fostering gender-based discrimination, which is prohibited under Article 15. Lastly, they had claimed that the dress code violates the right to education of students wearing the hijab, whose admission to the institutions is forbidden. This is in violation of both the Education Department’s brochure, which forbids the prescribing of any uniform, and international conventions that provide for the protection of women’s rights.  According to some of the petitions, school teachers who require their children to take off their headscarves before they may enter should face disciplinary action.

RESPONDENT ARGUMENTS :

Since there are no such directives in the Quran, the respondents said that the hijab or head scarf is not a “essential religious practice” of the Islamic faith and therefore the rights granted by Article 25 are not absolute. The contested government directive merely permits the institutions to prescribe a dress code; it does not prescribe one on its own. They had maintained that the authority to mandate school uniforms is inherent in the idea of school education itself. In case of Church of God vs K.K.R Majestic Colony Welfare[3], court held that no religion prescribes or asks to offer prayers with help of loudspeakers and by disturbing the peace of public. These types of activity should not be performed in civilised societies in the name of religion.

They had argued that Articles 19(1)(a) and 25’s concurrent claims to the right to wear the hijab in class are not only incompatible, but also demeaning of one another.  Furthermore, laws may reasonably restrict or regulate the freedom of conscience, the right to exercise one’s religion, the right to express oneself, and the right to privacy. Lastly, they said that the hijab violates human dignity principles, takes away Muslim women’s freedom of choice, and goes against constitutional morals. In case of Ratilal Panachand Gandhi vs State of Bombay[4], court held that right to religion and freedom is subject to certain restrictions mentioned in Article 25 of the constitution.

JUDGEMENT :

On an appeal against a Karnataka High Court ruling that upheld a state order requiring a uniform for educational institutions and, as a result, outlawing the hijab, a two-judge Supreme Court bench issued a split conclusion.  Justice Dhulia ruled in favor of the appellants, while Justice Gupta, writing for the Court, upheld the High Court’s ruling. Now, a larger Supreme Court bench will hear the case.

CRITICAL ANALYSIS :

Justice Hemant Gupta’s Opinion

1. Definition of Secularism: Justice Gupta interprets secularism as treating every religion with equal regard, honouring all faiths, and safeguarding the practices of all faiths.
2. Secularism and State Activities: Justice Gupta asserts that religion must not be integrated with the secular functions of the state.
3. Uniform Policy: Justice Gupta contends that a uniform policy is essential for upholding discipline and unity among students.
4. Discipline: The notion of discipline is highlighted by Justice Gupta, who mentions it 22 times in his ruling.
5. Government Order: Justice Gupta asserts that the Government Order was designed to establish uniformity among students and foster a secular environment in the classroom.

Criticism of Justice Gupta’s Judgment

1. Lack of Proportionality: Justice Gupta’s ruling fails to address the concept of proportionality, which serves as a legal standard for determining if a state’s infringement of rights is warranted.
2. Flawed Logic: Gautam Bhatia, an expert in constitutional law, critiques Justice Gupta’s ruling, indicating that when uniformity is disregarded, the judgment lacks a solid foundation.

Justice Sudhanshu Dhulia’s Opinion

1. ERP Test: Justice Dhulia examines the Essential Religious Practice (ERP) test and its relevance to the case.
2. Individual Rights: Justice Dhulia stresses that the state faces a challenge regarding an individual’s right to wear the hijab, instead of a collective right.
3. Courts and Theological Issues: Justice Dhulia opines that courts are not suitable venues for resolving theological matters, as differing perspectives will always exist on any religious topic.
4. Freedom of Conscience: Justice Dhulia references the Bijoe Emmanuel case, which pertains to freedom of conscience and the entitlement to reasonable accommodation.
5. Reasonable Accommodation: Justice Dhulia posits that accommodating differences reasonably is integral to Indian constitutional principles.

Key Points from Justice Dhulia’s Judgment

1. Hijab and Education: Justice Dhulia asserts that denying a girl child education due to her wearing a hijab would not improve her life.
2. Public Order and Law and Order: Justice Dhulia challenges the rationale suggesting that a girl child in class wearing a headscarf constitutes a public order or law-and-order problem.
3. Constitutional Scheme: Justice Dhulia maintains that wearing a hijab ought to be a matter of personal choice within the Constitutional framework, and it pertains to conscience, belief, and expression.

 

 

REFERENCES

[1] The Commissioner Hindu Religious Endowment Madras VS Sri Lakshmindra Thirtha Swamiar Sri Shirur Mutt, 1954 INSC 26.

[2] Mohd. Hanif Qureshi vs State of Bihar, 1958 AIR 731 and 1959 SCR 629.

[3] Church of God vs K.K.R Majestic Colony Welfare, (2000) 10 SCC 479.

[4] Ratilal Panachand Gandhi VS State of Bombay, (1954) 1 S.C.R. 1055.