AISHAT SHIFA versus THE STATE OF KARNATAKA & ORS

[2022] 5 S.C.R.

AISHAT SHIFA

THE STATE OF KARNATAKA & ORS.

(Civil Appeal No. 7095 of 2022)

BOCTOBER 13, 2022

[HEMANT GUPTA AND SUDHANSHU DHULIA, JJ.]

Constitution of India, 1950: Arts.14, 19 (1), 21 and 25 – Rightto wear Hijab in Educational Institution – Freedom of Religion –Essential Religious Practice (ERP) – Right to Choice – OnC03.02.2022, petitioners, students of Government Pre-UniversityCollege in Udupi were stopped at their college gate and told totake off their Hijab before entering the college – As they refused totake off Hijab, they were denied entry in college by the administration– On 05.02.2022, Government Order (G.O.) was issued regardingD‘a dress code for student of all schools and colleges of the state’under the Karnataka Education Act, 1983 – The order mandatedthat the uniform prescribed by the College Development Committeeor the Board of Management should be worn – Since Hijab was notmade part of the ‘uniform’, the petitioners were denied entry intheir college – Petitioners challenged the G.O. before High Court –EHigh Court held that wearing of Hijab by Muslim women does notform part of ERP in Islamic faith and that prescription of Schooluniform places only reasonable restriction which is constitutionallypermissible and cannot be objected to by the students – Henceinstant appeal – Per Hemant Gupta, J.: The constitution of the CollegeFDevelopment Committee is not in conflict with any of the provisionsof the Act, 1983 – The said G. O. does not run contrary to any ofthe provisions of the Act and the rules framed there under – Theexecutive was well within its jurisdiction to ensure that the studentscome in the uniform prescribed by the College DevelopmentCommittee – The object of the G.O. was to ensure that there isGparity amongst the students in terms of uniform – the purpose wasonly to promote uniformity and encourage secular environmentin the schools, which is in tune with the right guaranteed underArt.14 – Art.25(2)(a) gives primacy to laws made by competentlegislature for regulation of secular aspects and Art.25(2)(b) givesHprimacy to “social welfare” and “reform’’ – If particular practice/belief/part of any religion is in existence and is found to be subjectedto either “social welfare” and “reform”, such right will have togive way to “social welfare” and “reform” – The religious beliefcannot be carried to secular school maintained out of State funds– It is open to the students to carry their faith in school whichpermits them to wear Hijab or any other mark – The right underArt.19(1)(a) as right of expression to dress as per one’s own will,however, is also subject to reasonable restrictions under sub-clause(2) of Art.19 – None of the fundamental rights is absolute, curtailmentof the right is permissible by following due procedure which canwithstand the test of reasonableness – Students have no right to bein the school in violation of the mandate of the uniform prescribedunder the Statute and the Rules – If students choose not to attendclasses due to the uniform that has been prescribed, it is voluntaryact of such students and cannot be said to be in violation of Art.29by the State – G.O. cannot be said to be against the ethic ofsecularism or to the objective of the Karnataka Education Act, 1983– Per Sudhanshu Dhulia, J. (Dissenting): The question of ERP was notat all relevant in the determination of the dispute before the Court –Instead of straightaway taking the ERP route, the High Court couldhave first examined whether the restriction imposed by the schoolor the G.O on wearing Hijab, were valid restrictions or whetherthese restrictions are hit by the Doctrine of Proportionality – Theentire exercise done by the High Court, in evaluating the rights ofthe petitioners only on the touchstone of ERP, was incorrect – If thebelief is sincere, and it harms no one else, there can be no justifiablereasons for banning Hijab in classroom – Asking pre universityschoolgirl to take off her Hijab at her school gate, is an invasion onher privacy and dignity – G.O. and the restrictions on the wearingof hijab, goes against our constitutional value of fraternity andhuman dignity – Under our Constitutional scheme, wearing Hijabshould be simply matter of choice – It may or may not be matterof ERP, but it still is, matter of conscience, belief, and expression– Asking the girls to take off their Hijab before entering the schoolgates is clearly violative of Arts.19(1)(a), 21 and 25(1) of theConstitution – There shall be no restriction on the wearing of Hijabanywhere in schools and colleges in Karnataka – Held: In view ofthe divergent views expressed by the Bench, the matter to be placedbefore the Chief Justice of India for constitution of an appropriate

DEF

ABench – Karnataka Education Act, 1983 – ss.133, 145 – KarnatakaEducational Institutions (Classification, Regulation and Prescriptionof Curricula etc.) Rules, 1995 – rr.11, 16.

Placing the matter before Hon’ble the Chief Justice of India,the Court

Per HEMANT GUPTA, J.

HELD: 1. “Law”, as contemplated under Articles 19(2) and25(2), falls within Part III of the Constitution. Therefore, law, asdefined under Article 13(3), would include any ordinance, order,bye-law, rule, regulation, notification, custom or usage in theCterritory of India to have the force of law. The order issued bythe State Government would thus be law within the meaning ofArticle 13(2) read with Article 13(3)(a), which is valid exerciseof power under Article 19(1)(a) read with Article 19(2), and Article25(1) read with Article 25(2) of the Constitution. The GovernmentDOrder relates to the powers conferred on the executive underSection 133 of the Act and rule-making power of the State underArticle 162 of the Constitution. The said Government Order doesnot run contrary to any of the provisions of the Act and the rulesframed thereunder. Therefore, the executive was well within itsjurisdiction to ensure that the students come in the uniformEprescribed by the College Development Committee. Theconstitution of the College Development Committee does notcontravenes any of the provisions of the Act or the Rules madethereunder or that the regulation of uniform by such Committeeis beyond its scope [Paras 46, 47 and 57][469-E-G; 473-A]

2. In the matters of campus discipline of the educationalinstitutions, the Court does not substitute its own views in placeof the school authority except in case of manifest injustice or tointerfere with decision which does not pass the test ofWednesbury reasonableness. One need to examine the right toGfreedom of conscience and religion in light of the restrictionsprovided under Article 25(1) of the Constitution. Such right isnot just subject to public order, morality and health but also ‘otherprovisions of Part III’. This would also include Article 14 whichprovides for equality before law. The object of the GovernmentOrder was to ensure that there is parity amongst the students inHterms of uniform. It was only to promote uniformity and encourage

secular environment in the schools. This is in tune with theright guaranteed under Article 14 of the Constitution. Hence,restrictions on freedom of religion and conscience have to beread conjointly along with other provisions of Part III as laid downunder the restrictions of Article 25(1). [Paras 78, 88 and 89][481-B-C; 485-F; 486-C-D]

3. If the believers of the faith hold an opinion that wearingof hijab is an essential religious practice, the question is whetherthe students can seek to carry their religious beliefs and symbolsto secular school. [Para 108][498-A-B]

4.1 The claim of the appellants is not to perform religiousactivity in religious institution but to wear headscarf in publicplace as matter of social conduct expected from the believersof the faith. But in the present, the students want to subjugatetheir freedom of choice of dress to be regulated by religion thanby the State while they are in fact students of state school. Theequality before law is to treat all citizens equally, irrespective ofcaste, creed, sex or place of birth. Such equality cannot bebreached by the State on the basis of religious faith. TheConstitution has negatively worded Article 25(2). Article 25(2)(a)gives primacy to laws made by competent legislature for regulationof secular aspects and Article 25(2)(b) gives primacy to “socialwelfare” and “reform”. In other words, if the State seeks toregulate the economic, political, financial or other secular aspectsconnected with religion, the State law is to have primacy over theproposed right. Similarly, if particular practice/belief/part of anyreligion is in existence and is found to be subjected to either“social welfare” and “reform”, such right will have to give way to“social welfare” and “reform”. [Paras 118 and 119][506-B-E]

4.2 The practice of wearing of hijab may be ‘religiouspractice’ or an ‘essential religious practice’ or it may be socialconduct for the women of Islamic faith. The interpretations bythe believers of the faith about wearing of headscarf is the beliefor faith of an individual. The religious belief cannot be carried toa secular school maintained out of State funds. It is open to thestudents to carry their faith in school which permits them to

Awear Hijab or any other mark, may be tilak, which can be identifiedto person holding particular religious belief but the State iswithin its jurisdiction to direct that the apparent symbols ofreligious beliefs cannot be carried to school maintained by theState from the State funds. Thus, the practice of wearing hijabcould be restricted by the State in terms of the Government Order.B[Para 125][509-D-E]

5. The Government order is in exercise of the executivepowers of the State. The reasons for an enactment of Statute,Rules and statutory order are not required to be part of it. It isonly when the issue of constitutionality is raised, the executiveCis required to satisfy the Court about the legality of action taken.The right under Article 19(1)(a) as right of expression to dressas per one’s own will, however, is also subject to reasonablerestrictions under sub-clause (2) of Article 19. The State has notput restriction on the exercise of right conferred under ArticleD19(1)(a) but has regulated the same in manner that during theschool hours on working days and in the class, the students shallwear the uniform as prescribed. Since it is regulatory provisionfor wearing of uniform, hence, the decision of the StateGovernment mandating the College Development Committee toEensure the students wear the uniform as prescribed does notviolate the freedom guaranteed under Article 19(1)(a), ratherreinforces the right to equality under Article 14. The CollegeDevelopment Committee is constituted in terms of the statutoryprovisions and, therefore, the direction of the State that theCollege Development Committee shall ensure that the studentsFwear the dress as prescribed cannot be said to be violative ofPart III of the Constitution. [Para 139][515-D-G]6. None of the fundamental rights is absolute. Thecurtailment of the right is permissible by following due procedurewhich can withstand the test of reasonableness. The intent andGobject of the Government Order is only to maintain uniformityamongst the students by adherence to the prescribed uniform. Itis reasonable as the same has the effect of regulation of the rightguaranteed under Article 19(1)(a). Thus, the right of freedom of

expression under Article 19(1)(a) and of privacy under Article 21are complementary to each other and not mutually exclusive anddoes meet the injunction of reasonableness for the purposes ofArticle 21 and Article 14. [Para 146][519-E-F]

7. Fraternity is noble goal but cannot be seen from theprism of one community alone. It is goal for all citizens of thecountry irrespective of caste, creed, sex and religion. TheConstitutional goal of fraternity would be defeated if the studentsare permitted to carry their apparent religious symbols with themto the classroom. None of the judgments referred to by thelearned counsel for the appellants deal with an issue of fraternityin respect of section of the citizens who wish to carry theirreligious symbols to classroom. The Constitutional goal asemanating from the Preamble would not be achieved if fraternityis given narrow meaning in respect of the students identifyingthemselves with the religious symbols in the classroom. Religion,which is private affair, has no meaning in secular school runby the State. The students are free to profess their religion andcarry out their religious activities other than when they areattending classroom where religious identities should be leftbehind. Accordingly, the Government Order does not impingeon the Constitutional promise of fraternity and dignity. Instead,it promotes an equal environment where such fraternal valuescan be imbibed and nurtured without any hindrance of any kind.[Paras 159, 160 and 161][527-B-H]

8. The schools run by the State are open for admissionirrespective of any religion, race, caste, language or any of them.Even the Act mandates that the students would be admittedwithout any restriction on such grounds. However, the studentsare required to follow the discipline of the school in the matter ofuniform. They have no right to be in the school in violation of themandate of the uniform prescribed under the Statute and theRules. The State has not denied admission to the students fromattending classes. If they choose not to attend classes due to theuniform that has been prescribed, it is voluntary act of suchstudents and cannot be said to be in violation of Article 29 by the

AState. It is not denial of rights by the State but instead voluntaryact of the students. It would thus not amount to denial of right toeducation if student, by choice, does not attend the school. Astudent, thus, cannot claim the right to wear headscarf to asecular school as matter of right. [Paras 167 and 169][530-C;530-H; 531-A-B]B

9. If particular student feels that she cannot compromisewith the wearing of headscarf or of any other student to wear anyoutwardly religious symbol, the school would be justified not toallow such student, in the larger interest of treating all thestudents alike as part of mandate of Article 14, which is centralCto the theme of Part III of the Constitution. The GovernmentOrder cannot be said to be contrary to the State goal of promotingliteracy and education as mandated under the Constitution. TheGovernment Order only ensures that the uniform prescribed isadhered to by the students and it cannot be said that State isDrestricting the access to education to the girl students throughsuch an Order. Secularism is applicable to all citizens, therefore,permitting one religious community to wear their religioussymbols would be antithesis to secularism. Thus, the GovernmentOrder cannot be said to be against the ethic of secularism or tothe objective of the Karnataka Education Act, 1983. [Paras 190,E194 and 197][538-A-B; 539-E-F; 541-C-D]T.M.A. Pai Foundation v. State of Karnataka, (2002) 8SCC 481 : [2002] 3 Suppl. SCR 587; K.S. Puttaswamyand Anr. v. Union of India & Ors. (2017) 10 SCC 1 :[2017] 10 SCR 569; Ram Jawaya Kapur v. State ofFPunjab, AIR 1955 SC 549; Sri Adi Visheshwara ofKashi Vishwanath Temple, Varanasi v. State of U.P.(1997) 4 SCC 606 : [1997] 2 SCR 1086; Dr. M. IsmailFaruqui & Ors. v. Union of India & Ors. (1994) 6 SCC360 : [1994] 5 Suppl. SCR 1; Javed & Ors. v. State ofGHaryana & Ors. (2003) 8 SCC 369 : [2003] 1 Suppl.SCR 947; Maneka Gandhi v. Union of India & Anr.(1978) 1 SCC 248 : [1978] 2 SCR 621; Bachan Singhv. State of Punjab (1980) 2 SCC 684; I.R. Coelho v.State of Tamil Nadu (1999) 7 SCC 580 : [1999] 2 Suppl.SCR 394; Re the Kerala Education Bill, 1957 -

Reference under Article 143(1) of the Constitution ofIndia AIR 1958 SC 956 : [1959] SCR 995 – followed.

A.K. Gopalan v. State of Madras AIR 1950 SC 27 :[1950] SCR 88; State of Travancore-Cochin & Ors. v.Bombay Company Ltd., Alleppey AIR1952 SC 366 :[1952] SCR 1112; Indra Sawhney & Ors. v. Union ofIndia & Ors. 1992 Supp (3) SCC 217 : [1992] 2 Suppl.SCR 454; Bihar State Madarasa Education Board v.Madarasa Hanfia Arabic College (1990) 1 SCC 428 :[1989] 2 Suppl. SCR 399; Modern Dental College &Research Centre v. State of Madhya Pradesh (2016) 7SCC 353 : [2016] 3 SCR 579- relied on.

Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 :[1986] 3 SCR 518 – held inapplicable.

A.S. Narayana Deekshitulu v. State of A.P. & Ors. (1996)9 SCC 548 : [1996] 3 SCR 543; Kesavananda Bharativ. State of Kerala & Anr. (1973) 4 SCC 225 : [1973]Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri RajNarain 1975 (Supp.) SCC 1 : [1976] 2 SCR 347;Ziyauddin Burhanuddin Bukhari v. Brijmohan RamdassMehra & Ors. (1976) 2 SCC 17 : [1975] Suppl.SCR 281; S.R. Bommai & Ors. v. Union of India & Ors.(1994) 3 SCC 1 : [1994] 2 SCR 644; Santosh Kumar& Ors. v. Secretary, Ministry of Human ResourcesDevelopment & Anr. (1994) 6 SCC 579 : [1994] 4 Suppl.SCR 139; Ms. Aruna Roy & Ors. v. Union of India &Ors. (2002) 7 SCC 368 : [2002] 2 Suppl. SCR266; Kantaru Rajeevaru (Sabarimala Temple Review-5J.) v. Indian Young Lawyers Association & Ors. (2020)2 SCC 1 : [2019] 17 SCR 599; State of Madhya Pradesh& Anr. v. Thakur Bharat Singh AIR 1967 SC 1170 :[1967] 2 SCR 454; State of West Bengal v. Anwar AliSarkar AIR 1952 SC 75 : [1952] SCR 284; BishambharDayal Chandra Mohan & Ors. v. State of Uttar Pradesh& Ors. (1982) 1 SCC 39 : [1982] 1 SCR 1137;Pharmacy Council of India v. Rajeev College ofPharmacy & Ors. 2022 SCC OnLine SC 1224; ShriDwarka Nath Tewari v. State of Bihar AIR 1959 SC

249; Sant Ram Sharma v. State of Rajasthan & Ors.AIR 1967 SC 1910 : [1968] 1 SCR 111; Union of India& Anr. v. Ashok Kumar Aggarwal (2013) 16 SCC 147 :[2013] 12 SCR 629; Shayara Bano v. Union of India& Ors. (2017) 9 SCC 1 : [2017] 9 SCR 797;Commissioner, Hindu Religious Endowments, Madrasv. Sri Lakshmindra Thirtha Swamiar of Sri Shirur MuttAIR 1954 SC 282 : [1954] SCR 1005; National LegalServices Authority v. Union of India & Ors. (2014) 5SCC 438 : [2014] 5 SCR 119; K.S. Puttaswamy.Chairman, J & K State Board of Education v. FeyazAhmed Malik (2000) 3 SCC 59 : [2000] 1 SCR 402;Ahmedabad St. Xavier’s College Society & Anr. v. Stateof Gujarat & Anr. (1974) 1 SCC 717 : [1975] 1 SCR173; S.P. Mittal v. Union of India (1983) 1 SCC 51 :[1983] 1 SCR 729; Commissioner of Police & Ors. v.Acharya Jagadishwarananda Avadhuta & Anr. (2004)12 SCC 770; Mohd. Ahmed Khan v. Shah Bano Begum& Ors. (1985) 2 SCC 556 : [1985] 3 SCR 844; DanialLatifi & Anr. v. Union of India (2001) 7 SCC 740 :[2001] 3 Suppl. SCR 419; Iqbal Bano v. State of U.P.& Anr. (2007) 6 SCC 785 : [2007] 7 SCR 949; ShayaraBano v. Union of India & Ors. (2017) 9 SCC 1 : [2017]9 SCR 797; Mohd. Hanif Quareshi and others v. Stateof Bihar AIR 1958 SC 731 : [1959] SCR 629; N.K.Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb &Ors., AIR 1966 SC 792 : [1966] 1 SCR 937; RatilalPanachand Gandhi v. State of Bombay AIR 1954 SC388 : [1954] SCR 1055; Durgah Committee, Ajmer v.Syed Hussain Ali AIR 1961 SC 1402 : [1962] 1 SCR383; Sri Venkataramana Devaru & Ors. v. State ofMysore & Ors. AIR 1958 SC 255 : [1958] SCR 895;Tilkayat Shri Govindlalji Maharaj Etc. v. State ofRajasthan & Ors. AIR 1963 SC 1638 : [1964] 1 SCR561; Acharya Jagdishwaranand Avadhuta & Ors. v.Commissioner of Police, Calcutta & Anr. (1983) 4 SCC522 : [1984] 1 SCR 447; Young Lawyers Association& Ors. (Sabarimala Temple, In Re) v. State of Kerala &Ors. (2019) 11 SCC 1 : [2018] 9 SCR 561; M. Siddiq

(Dead) through LRs. (Ram Janmabhumi Temple Case)v. Mahant Suresh Das & Ors. (2020) 1 SCC 1 : [2019]18 SCR 1; Asha Ranjan v. State of Bihar & Ors. (2017)4 SCC 397 : [2017] 1 SCR 945; Mohinder Singh Gill& Anr. v. Chief Election Commissioner, New Delhi &Ors. (1978) 1 SCC 405 : [1978] 2 SCR 272; DevidasRamachandra Tuljapurkar v. State of Maharashtra &Ors. (2015) 6 SCC 1 : [2015] 7 SCR 853; St. Stephen’sCollege v. University of Delhi (1992) 1 SCC 558 : [1991]3 Suppl. SCR 121; Navtej Singh Johar & Ors. v. Unionof India (2018) 10 SCC 1 : [2018] 7 SCR 379; S.Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC547; Subramanian Swamy v. Union of India, Ministryof Law & Ors. (2016) 7 SCC 221 : [2016] 3 SCR 865;Prathvi Raj Chauhan v. Union of India & Ors. (2020)4 SCC 727 : [2020] 2 SCR 727; Tehseen S. Poonawallav. Union of India & Ors. (2018) 9 SCC 501 : [2018]9 SCR 291; St. Stephen’s College, Sri Adi Visheshwaraof Kashi Vishwanath Temple, State of Karnataka & Anr.v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 :[2004] 3 SCR 652; No. 786505-N Leading AircraftsmanAnsari Aaftab Ahmed v. Union of India & Ors. 2008L.I.C. 4004 (CWP No. 14927 of 2005 decided on14.7.2008); Mohammed Zubair Corporal No. 781467-G v. Union of India & Ors. (2017) 2 SCC 115 : [2016]9 SCR 111; Nar Singh Pal v. Union of India & Ors.(2000) 3 SCC 588 : [2000] 2 SCR 752; Jeeja Ghosh& Anr. v. Union of India & Ors. (2016) 7 SCC 761 :[2016] 4 SCR 638; Vikash Kumar v. Union PublicService Commission & Ors. (2021) 5 SCC 370;Ravinder Kumar Dhariwal & Anr. v. Union of India &Ors. 2021 SCC OnLine SC 1293; Society for UnaidedPrivate Schools of Rajasthan v. Union of India & Anr.(2012) 6 SCC 1 : [2012] 2 SCR 715; Indibly CreativePrivate Ltd. & Ors. v. Government of West Bengal &Ors. (2020) 12 SCC 436 : [2019] 5 SCR 679 – referredto.

Thakur Bharat Singh v. State of M.P. & Anr. AIR 1964MP 175; Amnah Bint Basheer & Anr. v. Central Board

Aof Secondary Education (CBSE), New Delhi & Anr. AIR2016 Ker 115; Gurleen Kaur & Ors. v. State of Punjab& Ors. 2009 SCC OnLine P& 6132; FathimaThasneem (Minor) & Anr. v. The State of Kerala & Ors.2018 SCC OnLine Ker 5267; M. Ajmal Khan v. TheElection Commission of India, rep. by its Chief ElectionBCommissioner, New Delhi-I & Ors. 2006 SCC OnLineMad 794 : (2006) 5 CTC 121 – referred to.

Mulla’s Mohammedan Law, 5th edition, 2019– referred to.

CPer SUDHANSHU DHULIA, J. (Dissenting)

HELD: 1. The instant case is of assertion of individual Rightas different from what would be community Right. WhereasClause 1 of Article 25 deals with individual rights, Article 25(2)and Article 26 of the Constitution of India, deal by and large withDcommunity-based rights. The entire exercise done by theKarnataka High Court, in evaluating the rights of the Petitionersonly on the touchstone of ERP, was incorrect. [Para 28][553-E-

2. Two children, two girl students, are asserting theirEidentity by wearing hijab, and claim protection under Article 19and Article 25 of the Constitution of India. Whether wearing hijabis an ERP in Islam or not is not essential for the determination ofthis dispute. If the belief is sincere, and it harms no one else,there can be no justifiable reasons for banning hijab in aclassroom. The petitioners today face the same predicament asFthe Jehovah’s Witnesses in the Bijoe Emmanuel. The presentPetitioners too wear hijab as an article of their faith. They toobelieve that it is part of their religion and social practice. Thiscase is squarely covered by the case of Bijoe Emmanuel and theratio laid down therein [Paras 34 and 49][554-G-H; 560-H; 561-

GA]Bijoe Emmanuel and Ors. v. State of Kerala and Ors.1986 3 SCC 615 : [1986] 3 SCR 518 – relied on.

3. School is public place, yet drawing parallel between aschool and jail or military camp, is not correct. Again, if theHpoint which was being made by the High Court was regarding

discipline in school, then that must be accepted. It is necessaryto have discipline in schools. But discipline not at the cost offreedom, not at the cost of dignity. Asking pre universityschoolgirl to take off her hijab at her school gate, is an invasionon her privacy and dignity. It is clearly violative of the FundamentalRight given to her under Article 19(1)(a) and 21 of the Constitutionof India. This right to her dignity and her privacy she carries inher person, even inside her school gate or when she is in herclassroom. It is still her Fundamental Right, not “derivativeright” as has been described by the High Court. [Para 52][562-C-E]

4. Another question which the School Administration andthe State must answer in the present case is as to what is moreimportant to them: Education of girl child or Enforcement of aDress Code! The question this Court would therefore put beforeitself is also whether we are making the life of girl child anybetter by denying her education, merely because she wears ahijab . All the Petitioners want is to wear hijab! Is it too much toask in democracy? How is it against public order, morality orhealth? or even decency or against any other provision of PartIII of the Constitution. These questions have not been sufficientlyanswered in the Karnataka High Court Judgement. The Statehas not given any plausible reasons either in the GovernmentOrder dated 5 February 2022, or in the counter affidavitbefore the High Court. It does not appeal to logic or reason as tohow girl child who is wearing hijab in classroom is apublic order problem or even law-and order problem.[Paras 65-67][571-D-E; 572-A-C]5. girl child has the right to wear hijab in her house oroutside her house, and that right does not stop at her schoolgate. The child carries her dignity and her privacy even whenshe is inside the school gates, in her classroom. She retains herfundamental rights. To say that these rights become derivativerights inside classroom, is wholly incorrect. Under ourConstitutional scheme, wearing hijab should be simply matterof Choice. It may or may not be matter of essential religiouspractice, but it still is, matter of conscience, belief, andexpression. If she wants to wear hijab, even inside her class room,

Ashe cannot be stopped, if it is worn as matter of her choice, as itmay be the only way her conservative family will permit her to goto school, and in those cases, her hijab is her ticket to education.[Paras 68 and 80][572-E-F; 577-B]

6. By asking the girls to take off their hijab before theyBenter the school gates, is first an invasion on their privacy, thenit is an attack on their dignity, and then ultimately it is denial tothem of secular education. These are clearly violative of Article19(1)(a), Article 21 and Article 25(1) of the Constitution of India.Consequently, all the appeals as well as the Writ Petitions areallowed, but only to the extent as ordered b: a) The order of theCKarnataka High Court dated March 15, 2022, is hereby set aside;b) The G.O. dated February 5, 2022 is hereby quashed and, c)There shall be no restriction on the wearing of hijab anywhere inschools and colleges in Karnataka. [Paras 83 and 84][577-F-G;578-A]

DK.S. Puttaswamy and Anr. v Union of India and Ors.(2017) 10 SCC 1 : [2017] 10 SCR 569; ManekaGandhi v Union of India and Anr. (1978) 1 SCC248; [1978] 2 SCR 621; Aruna Roy v. Union of India(2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266; NavtejESingh Johar and Ors. v. Union of India, Ministry ofLaw and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379- followed.

Commissioner, Hindu Religious Endowments, Madrasv. Sri Lakshmindra Thirtha Swamiar of Sri Shirur MuttF[1954] SCR 1005 23; Ratilal Panachand Gandhi v. Stateof Bombay and Ors. [1954] SCR 1055; DurgahCommittee, Ajmer, and Anr. v. Syed Hussain Ali and Ors.[1962] 1 SCR 383; Acharya J. Avadhuta & Ors. v.Commissioner of Police, Calcutta & Anr. (1983) 4 SCC522 : [1984] 1 SCR 447; Commissioner of Police &GOrs. v. Acharya J. Avadduta (2004) 12 SCC 770 :[2004] 2 SCR 1019; Bachan Singh v. State of Punjab(1980) 2 SCC 684 - held inapplicable.

Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR332; Kantaru Rajeevaru vs Indian Young Lawyers Assn.

and Ors. [R.P. (C) No. 3358 of 2018 in W.P. (C) No.373 of 2006]; Shayara Bano v. Union of India and Ors.(2017) 9 SCC 1 : [2017] 9 SCR 797; Indian YoungLawyers Association and Ors, (Sabarimala Temple, InRe.) v. State of Kerala and Ors. (2019) 11 SCC 1 :[2018] 9 SCR 561; M. Siddiq (Dead) Through LR’s v.Mahant Suresh Das and Ors. (2020) 1 SCC 1 : [2019]18 SCR 1; St. Stephen’s College v. University of Delhi(1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121 – referredto.

Ras Behari Lal and Others v. The King-Emperor AIR1933 PC 208- referred to.

West Virginia State Board of Education v. Barnette 319US 624 (1943); Regina (SB) v. Governors of DenbighHigh School [2007] 1 AC 100; Miller v. Gills 315 F.Supp. 94 (N.D. Ill. 1969); Christmas v. El Reno Boardof Education 313 F. Supp. 618 (W.D. Okla. 1970);Employment Division v. Smith 494 US 872 (1990); UnitedStates v. Schwimmer 279 US 644 (1929) – referred to.

Speech of Dr. Ambedkar on 25[th] November, 1949:Constituent Assembly Debates, Volume XI; Rawls,John (1921): Theory of Social Justice, Rev. Ed.;The Belknap Press of the Harvard University Press,Cambridge, Massachusetts – referred to.

Case Law Reference

In the judgment of HEMANT GUPTA, J.

440SUPREME COURT REPORTS

[2022] 5 S.C.R.

[1994] 5 Suppl. SCR 1followedPara 104A[2003] 1 Suppl. SCR 947followedPara 105[1954] SCR 1055referred toPara 110[1962] 1 SCR 383referred toPara 111[1958] SCR 895referred toPara 112B[1964] 1 SCR 561referred toPara 113[1984] 1 SCR 447referred toPara 114[2018] 9 SCR 561referred toPara 115C[1986] 3 SCR 518held inapplicablePara 116[2019] 18 SCR 1referred toPara 124[2017] 1 SCR 945referred toPara 129[1978] 2 SCR 272referred toPara 130D[1978] 2 SCR 621followedPara 131[2015] 7 SCR 853referred toPara 133[1991] 3 Suppl. SCR 121referred toPara 134[2018] 7 SCR 379referred toPara 133E(1980) 2 SCC 684followedPara 140(1989) 2 SCC 547referred toPara 142[1999] 2 Suppl. SCR 394followedPara 144[2016] 3 SCR 865referred toPara 149F[2020] 2 SCR 727referred toPara 150[2018] 9 SCR 291referred toPara 151[2004] 3 SCR 652referred toPara 152[2016] 9 SCR 111referred toPara 163G[1959] SCR 995followedPara 170[2000] 2 SCR 752referred toPara 171[2016] 4 SCR 638referred toPara 177(2021) 5 SCC 370referred toPara 177H

[2022] 5 S.C.R.

From the Judgment and Order dated 15.03.2022 of the High Court

of Karnataka at Bengaluru in W.P. No.2880 of 2022.F

With

Writ Petition (C) No. 120 of 2022, Civil Appeal Nos.7075, 6957,7078-7083, 7077, 7074, 7076, 7072, 6934, 7084, 7085, 7092, 7088 of 2022,writ petition (c) no. 95 of 2022, Civil Appeal Nos. 7087, 7090, 7096,G7091, 7089, 7086, 7069, 7098, 7093, 7099, 7070 of 2022

Tushar Mehta, Solicitor General, K.M. Natraj, ASG, Nikhil Goel,Prasanna Deshpande, Aruna Shyam, YH Vijay Kumar, AAGs, PrabhulingNavadgi, Adv. General, Gaurav Bhatia, Siddharta Dave, Sanjay R. Hegde,Salman Khurshid, Ms. Jayna Kothari, Dushyant Dave, Devadatt Kamat,Guru Krishna Kumar, Pran Krishna Jana, Yusuf Hatim Muchhala, R

Venkatramani, Sanjay Hegde, Huzefa Ahmadi, Dr. Aditya Sondhi, KapilSibal, A. M. Dar, Ms. V. Mohana, Ms. Meenakshi Arora, Colin Gonsalves,Dama Seshadri Naidu, Sr. Advs., Shubhranshu Padhi, Kanu Agarwal,Aneesh Shahade, Vishal Banshal, Ms. Rajeshwari Shankar, NiroopSukirthy, Mohd. Ovais, Sushal Tiwari, Adithya Koshi Roy, ChitranshSharma, Nakul Chengappa KK, Aditya Vaibhav Singh, Abhikalp PratapSingh, Kartik Kaushal, Shailesh Madiyal, Vinayaka S. Pandit, SudhanshuPrakash, H. Vinayaka S. Pandit, Rajan Parmar, Vaibhav Sabharwal,Ms. Vidhi T., Mehmood Umar Faruqui, Ms. Koshy John, Ms. AsifaRashid Mir, Shereef K.A., Mohd. Tahir, Muhammed Azaruddin, AnasTanwir, Ms. Masoom Raj Singh, Ms. Ritika Singh, Abdul Qadir, RaghavGupta, Shahrukh Ali, Farhan, Aftab Ali Khan, M. Z. Chaudhary, Ali SafeerFarooqi, Syed Imtiaz Ali, Shahbaz, Mujeeb Rehman, Mumtaz AlamSiddiqui, Ms. Tehsheena Z. Hussain, Ms. Lubna Naaz, Dr. LokendraMalik, Rahat Ali Chaudhary, Nitin Kashyap, Ramesh Sachdeva, Ms.Mariya Mansuri, Ms. Azra Rehman, Anshu Kapoor, Arvind KumarKanva, Bilal A. Khan, Ms. Mitali Chauhan, Danish Zubair Khan, MareeshPravir Sahay, Chandra Sekhar Padhi, Roopesh Singh Bhadauria, ArpitSingh, Umesh Pratap Singh, Gaurav Jain, Ms. Eccha Shukla, Ms.Awanitika, Sachin Kharb, Shahab Ahmad, Ms. Tanya Sharma, M. P.Sahay, Ms. Saba Khan, Ms. Vidhi Thaker, Ms. Farheen Fatima, AftabAli Khan, Mumtaz Alam Siddiqui, Dr. Anindita Pujari, Azad Bansaria,Prannv Dhavan, Ms. Saaneya Hidayath, Ms. Prakriti Rastogi, M. R.Shamshad, Arijit Sarkar, Shashank Singh, Ms. Nabeela Jamil, Ms. NiazA. Faruqui, Ms. Neha Sangwan, Ms. Ashi Shereen Ahmad, ShadulHameed Reheman, Nishanth Patil, Rajesh Inamdar, Harsh Pandey,Sabyasachi Banerjee, Shoumendu Mukherji, Praneet Pranav, MerusagarSamantray, Ms. Archana Pathak Dave, Bhakti Vardhan Singh, AmitSharma, Arindam, Ms. Megha Sharma, Shoeb Alam, Ms. Fauzia Shakil,Ujjwal Singh, Agastya Sen, Javedur Rahman, Nizam Pasha, ShahulHameed, Yojit Singh, Mohd. Niyas S., Harsh Pandey, Revanta Solanki,Nishant Patil, Mudassir, Aditya Samaddar, Mohd. Niyas, Shoeb Khan,Kaleeswaram Raj, Nishe Rajen Shonker, Ms. Thulasi K. Raj, Ms. AnuK. Joy, Alim Anvar, Pran Krisana Jana, Ms. Nazish Fatima, ArvindGupta, Md. Tahir M. Hakim, Ejaz Maqbool, Sagheer A. Khan, Ms.Rashda S. Ainapore, Mohamed Nawaz Haindaday, Ms. Akriti Chaubey,Saif Zia, Nachiketa Joshi, VVV Pattabhiram, Santosh Kumar, Ms. AnkitaChoudhary, Rahul Tanwani, Chitwan Singhal, Sushal Tiwari, Baij NathPatel, Rahamathulla Kothwal, Ms. Siddika Aisha, Kumail Abbas, Mohd

AShahrukh Ali, Raghav Gupta, Pallabh, Nikhil, Adeel Ahmed, SachinPahwa, Zulfiker Ali P. S, Thoyyib Hudawai, Ms. Lakshmi Sree, TalhaAbdul Rahman, Harsh Vardhan Kediya, Mohd. Shaz Khan, Ms. DishaWadekar, Bilal A. Khan, Mohd. Afeef, Rishabh Devan Parikh, Ms. RupaliSamuel, Ms. Aparajita Jamwal, Koshy John, Dileep Poolakkot,Muhammed Siddick, Aljo K. Josesh, Haris Beeran, Mushtaq Salim, AzharBAssees, Usman Ghani Khan, Ms. Pallavi Pratap, Ameen Hassan K.,Danissh M. Dar, B. Shafi, Dr. Charu Mathur, Ms. Tanvi Dubey, RahulUnnikrishnan, Anukrit Gupta, Sanjay Kumar Dubey, Mahesh Thakur,Siddharth Thakur, Ms. Vipasha Singh, Ajay Kanojiya, Ms. Shivani, Ms.Neha Singh, Ms. Shailja Das, Md. Irshad Hanif, Javed R. Shaikh, AarifCAli, Rizwan Ahmad, Mohd. Aslam, Mujahid Ahmad, Ms. Rubina Jawed,Tausif Ahmed Dar, Ahmed Parvez, Amar Kumar Raizada, Pankaj Tiwari,Mohd. Faseeh Khan, Amir Kaleem, Mohit Kumar, Shishir Raj, Mohd.Wasiq Khan, Sahid Uddin Ahmed, Pulkit Srivastava, Subodh Patil, AayushAnand, Pravartak Pathak, Gautam Singh, Ms. Kriti Ranjan, Bharat Singh,Joyadeep Roy, Pulkit Srivastava, Subodh Patil, Aayush Anand, GautamDSingh, Ms. Kriti Ranjal, Pravar Pathak, Barun Kumar Sinha, Mrs. PratibhaSinha, Mudit Kaul, Ms. Bebi Devi Boniya, Ms. Sudha Pal, Abhishek,Siddharth Sinha, Ayush Anand, Abhishek Singh, Prashant Rawat, TathagatSharma, Ved Prakash, Ms. Priya Mishra, Shivam Singhania, Ms. FauziaShakil, Ms. Shivam, Archit Krishna, Shivam, Ms. Sonal Chopra, RishabEAhmad Chowdhury, Ms. Muskan Nagpal, Ms. Kirti Singh, Archit Sharma,Aditya Chatterjee, Ms. Sonal Chopra, Raghu Vamsy Dasika, Anis Gupta,Rashmi Singhania, Puspinder Singh, Karthik Sundar, CharudattaMahindrakar, Mandeep Singh, Vikram Hegde, Abhinav Hansaraman,Chitwan Sharma, Nakul Mohta, Ms. Misha Rohatgi Mohta, BharatMonga, Ms. Richa, Prakash Shetty, Shadan Farasat, ChandratanayFChaube, Bharat Gupta, Tushar Arora, Shourya Dasgupta, Aman Naqvi,Ms. Hrishika Jain, Dhruv Bhatnagar, Nitesh, Ms. Mugdha, Satya Mitra,Ankur Mittal, Jai Anant Dehadrai, Neeleshwar Pavani, Sidharth Arora,Ms. Tejaswini Verma, Jaskaran Singh Chawla, Udito Koushik Sarmah,Smaeer Srivastava, Prashant Bhushan, Ms. Rashmi Singh, Cheryl D’GSooja, Jaimon Andrews, Ms. Piyo Harold Jaimon, Firdouse C. P., SandeepThakur, Naresh Kumar, Abdulla Naseeh V.T., Aswathi M.K., Ms. SnehaS. Deshmukh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. SusmitaKale, Ms. Deepti S. Rane, Ms. Kavya Lokande, Ms. Sanyali S. Pawar,Amit K. Singh, Rahul G. Tanwani, Ms. Shivali Chaudhary, Siddharth S.Chapalgaonkar, Hitesh Singh, Poornachandian, Ananvay Anandvardhan,H

Ms. Sivani Kukumanu, Gursimar Singh, Siddhartha Sinha, Sandeep Singh,Ms. Bharti Tyagi, Ms. Alapana Sharma, Abhishek Mahajan, NrigChamwibo Zeliang, Mehmood Umar Faruqui, Ms. Anindita Pujari, Ms.Mugdha, Satya Mitra, Aljo K. Joseph, M. R. Shamshad, Naresh Kumar,Shadan Farasat, Tanveer Ahmed Mir, Arjun Singh Bhati, Kartik Venu,Mohd. Tahir, Ms. Urja Pandey, Ms. Pallavi Pratap, Adeel Ahmed, AftabAli Khan, Anas Tanwir, Prateek Yadav, Ranbir Singh Yadav, Mohd.Shahruk, Puran Mal Saini, Ms. Anzu K. Varkey, Pati Raj Yadav, RiteshPatil, Yogesh Yadav, Mareesh Pravir Sahay, Ms. Aswathi M.K., JavedurRahman, Abhishek, Aman Varma, Shubhranshu Padhi, CharudattaVijayrao Mahindrakar, Ms. Misha Rohatgi, Ms. Mrinmoi Chatterjee, K.V. Muthu Kumar, Bhaskar Gowtham, Sayooj Mohandas, Akshay Ravi,Govind Kumar, Shubhendu Anand, Aftab Ali Khan, Anas Tanwir, Ms.Asifa Rashid Mir, Abdul Shukoor Mundambra, Shereef K.A., AnasTanwir, Rishad Ahmed Chowdhury, Ms. Anindita Pujari, Zulfiker Ali P.S, Satya Mitra, Naresh Kumar, Mohd. Irshad Hanif, Abhay Anand Jena,K. V. Muthu Kumar, Shoumendu Mukherji, Pulkit Srivastava, MaheshThakur, Sameer Shrivastava, Ms. Charu Mathur, Advs. for the appearingparties.

The Judgments and Order of the Court were delivered by

HEMANT GUPTA, J.

1. The challenge in the present appeals is to an order passed bythe Full Bench of the Karnataka High Court on 15.3.2022, dismissingthe challenge to the Government Order dated 5.2.2022. Such GovernmentOrder directed the Government Schools in Karnataka to abide by theprescribed uniform, and the private schools were directed to mandate auniform as decided by their Board of Management.

PREFACE

2. Before adverting to the submissions made by the counsels onboth sides, it is imperative to give background of the ethos and principlesof secularism adopted in the Constitution of India. Though the term‘secular’ has wide amplitude and has been understood differently indifferent parts of the world, it is important to comprehend the same incontext of the Indian Constitution.

3. The word “secular” is now part of the Preamble of theConstitution. What is meant by “Secular” (iaFkfujis{k in the Hindi version

Aof the Constitution) needs to be discussed first. The word ‘Secular’ wasinserted in the Preamble of the Constitution by the 42[nd ]Amendmentw.e.f. 3.1.1977. It is commonly understood in contradistinction to theterm ‘religious’. The political philosophy of secular government hasbeen developed in the West in the historical context of the pre-eminenceof the established Church and the exercise of power by it over the societyBand its institutions. The democratic State thereafter gradually replacedand marginalized the influence of the Church. The idea of secularismmay have been borrowed in the Indian Constitution from the West;however, it has adopted its own unique brand based on its particularhistory and exigencies which are far distinct in many ways from secularismCas defined and followed in European countries, the United States ofAmerica and Australia.[1]

4. The use of word ‘panthnirpeksh’ in the Constitution bringsout the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”.‘Panth’, or sect, symbolizes devotion towards any specific belief, wayof worship or form of God, but Dharma symbolizes absolute and eternalDvalues which can never change, like the laws of nature. Dharma is whatupholds, sustains and results in the well-being and upliftment of the Praja(citizens) and the society as whole.

5. This Court in judgment reported as A.S. NarayanaDeekshitulu v. State of A.P. & Ors.[2]quoted the concept of DharmaEexplained by Justice M. Rama Jois in his Legal and ConstitutionalHistory of India as “it is most difficult to define Dharma. Dharmahas been explained to be that which helps the upliftment of livingbeings. Therefore, that which ensures welfare (of living beings) issurely Dharma. The learned rishis have declared that which sustainsis Dharma”. This Court held that“when dharma is used in the contextFof duties of the individuals and powers of the King (the State), itmeans constitutional law (Rajadharma). Likewise, when it is saidthat Dharmarajya is necessary for the peace and prosperity of thepeople and for establishing an egalitarian society, the word dharmain the context of the word Rajya only means law, and DharmarajyaGmeans rule of law and not rule of religion or theocratic State”.Any action, big or small, that is free from selfishness, is part of dharma.Thus, having love for all human beings is dharma. This Court held asunder:

1 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (11 Judges Bench)H2 (1996) 9 SCC 548

“156. It is because of the above that if one were to ask “What arethe signs and symptoms of dharma?”, the answer is: that whichhas no room for narrow- mindedness, sectarianism, blind faith,and dogma. The purity of dharma, therefore, cannot becompromised with sectarianism. sectarian religion is open to alimited group of people whereas dharma embraces all and excludesnone. This is the core of our dharma, our psyche.

157. Nothing further is required to bring home the distinctionbetween religion and dharma; and so I say that the word ‘religion’in Articles 25 and 26 has to be understood not in narrow sectariansense but encompassing our ethos of “losZ HkoUrq lqf[ku%”. Let usstrive to achieve this; let us spread the message of our dharma byavailing and taking advantage of the freedom guaranteed byArticles 25 and 26 of our Constitution.”

6. This Court in Kesavananda Bharati v. State of Kerala &Anr.[3], even prior to the addition of the word ‘Secular’ by the 42[nd]Amendment, held that the fundamental features of the Constitution,namely, secularism, democracy and the freedom of individual wouldalways subsist in the welfare State. Hon’ble Justice H.R. Khanna in hisjudgment referred to the statement of K. Santhanam, prominent memberof the Constituent Assembly and Editor of newspaper. It was observedas under:

“1481. …K. Santhanam, prominent southern member of theAssembly and editor of major newspaper, described the situationin terms of three revolutions. The political revolution would end,he wrote, with independence. The social revolution meant ‘toget (India) out of the medievalism based on birth, religion,custom, and community and reconstruct her social structureon modern foundations of law, individual merit, and seculareducation’. The third revolution was an economic one: ‘Thetransition from primitive rural economy to scientific and plannedagriculture and industry’. Radhakrishnan (now President of India)believed India must have ‘socio-economic revolution’ designednot only to bring about ‘the real satisfaction of the fundamentalneeds of the common man’, but to go much deeper and bringabout ‘a fundamental change in the structure of Indian society’…”(Emphasis Supplied)

A7. The secular character of the State was reiterated in laterConstitution Bench judgment reported as Smt. Indira Nehru Gandhiv. Shri Raj Narain[4]wherein it was held as under:

“252. It has been stated by me on p. 685 (SCC p. 767) of thejudgment (already reproduced above) that the secular characterBof the State, according to which the State shall not discriminateagainst any citizen on the ground of religion only cannot likewisebe done away with. The above observations show that the secularcharacter of the Constitution and the rights guaranteed by Article15 pertain to the basic structure of the Constitution…”

C8. The word ‘Secular’ after being added in the Preamble wasalso considered by three-Judge Bench judgment of this Court reportedas Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra& Ors.[5]. This Court was considering an appeal against the setting asideof election of the appellant under the Representation of the People Act,1951 to the Maharashtra State Assembly on the ground of speechesDmade by him in the course of election campaign. It was held that “theSecular State, rising above all differences of religion, attempts tosecure the good of all its citizens irrespective of their religious beliefsand practices…”

9. The term ‘Secular’ was also considered by nine-Judges BenchEof this Court reported as S.R. Bommai & Ors. v. Union of India &Ors.[6]. It was held that our Constitution does not prohibit the practice ofany religion either privately or publicly. The relevant extract of thejudgment reads thus:

“146. These provisions by implication prohibit the establishmentFof theocratic State and prevent the State either identifying itselfwith or favouring any particular religion or religious sect ordenomination. The State is enjoined to accord equal treatment toall religions and religious sects and denominations.

xxxx

G148. One thing which prominently emerges from the abovediscussion on secularism under our Constitution is that whatever

4 1975 (Supp.) SCC 15 (1976) 2 SCC 17H6 (1994) 3 SCC 1

the attitude of the State towards the religions, religious sects anddenominations, religion cannot be mixed with any secular activityof the State. In fact, the encroachment of religion into secularactivities is strictly prohibited…

304. Both the expressions — ‘socialist’ and ‘secular’ — bythemselves are not capable of precise definition. We are, however,not concerned with their general meaning or content. Our objectis to ascertain the meaning of the expression “secular” in thecontext of our Constitution. As the discussion hereafter woulddemonstrate, the 42nd Amendment merely made explicit whatwas implicit in it…..................... While the citizens of this countryare free to profess, practice and propagate such religion, faith orbelief as they choose, so far as the State is concerned, i.e., fromthe point of view of the State, the religion, faith or belief of aperson is immaterial. To it, all are equal and all are entitled to betreated equally. How is this equal treatment possible, if the Statewere to prefer or promote particular religion, race or caste,which necessarily means less favourable treatment of all otherreligions, races and castes. How are the constitutional promisesof social justice, liberty of belief, faith or worship and equality ofstatus and of opportunity to be attained unless the State eschewsthe religion, faith or belief of person from its considerationaltogether while dealing with him, his rights, his duties and hisentitlements? Secularism is thus more than passive attitudeof religious tolerance. It is positive concept of equaltreatment of all religions. This attitude is described by some asone of neutrality towards religion or as one of benevolentneutrality.…”

10. In the same year, in judgment reported as Santosh Kumar& Ors. v. Secretary, Ministry of Human Resources Development &Anr.[7], question arose as to whether the inclusion of Sanskrit in thesyllabus of Central Board of Secondary Education as an elective subjectso far as teaching in secondary school is concerned is permissible. ThisCourt quoted that “It would be profitable to note that according toJustice H.R. Khanna secularism is neither anti-God nor pro-God; it

DEF

Atreats alike the devout, the agnostic and the atheist. According tohim, secularism is not antithesis of religious devoutness. He wouldlike to dispel the impression that if person is devout Hindu ordevout Muslim, he ceases to be secular.”

11. The National Curriculum Framework for School EducationBpublished by National Council of Educational Research and Trainingwas challenged before this Court in judgment reported as Ms. ArunaRoy & Ors. v. Union of India & Ors.[8]. This Court relied upon S.B.Chavan Committee Report, 1999 which strongly recommended educationabout religions as an instrument of social cohesion and social and religiousharmony, when it said “a word of caution is required here. EducationCabout religions must be handled with extreme care. All steps must betaken in advance to ensure that no personal prejudice or narrow-minded perceptions are allowed to distort the real purpose of thisventure and no rituals, dogmas and superstitions are propagated inthe name of education about religions. All religions therefore haveDto be treated with equal respect (sarva dharma sambhav) and thatthere has to be no discrimination on the ground of any religion(panthnirapekshata).” It was observed as under:

“29. At this stage, we would quote the relevant part of the S.B.Chavan Committee’s Report as under:

Exxxxxx

12. In view of the diverse character of our country, it isessential that certain national values are also imbibed byour young students. They should be acquainted with thehistory of India’s freedom struggle, cultural heritage,Fconstitutional obligations and the features comprisingour national identity. The Committee feels that some ofthese national values can be imparted indirectly at theprimary stage while at the middle and secondary levels,these can be included in the curriculum.

13. Another aspect that must be given some thought isreligion, which is the most misused and misunderstoodconcept. The process of making the students acquaintedwith the basics of all religions, the values inherent therein

and also comparative study of the philosophy of allreligions should begin at the middle stage in schools andcontinue up to the university level. Students have to be madeaware that the basic concept behind every religion iscommon, only the practices differ. Even if there aredifferences of opinion in certain areas, people have tolearn to coexist and carry no hatred against anyreligion.”

xxx

37. Therefore, in our view, the word “religion” should not bemisunderstood nor contention could be raised that as it is used inthe National Policy of Education, secularism would be at peril.On the contrary, let us have secularistic democracy where evena very weak man hopes to prevail over very strong man (havingpost, power or property) on the strength of rule of law by properunderstanding of duties towards the society. Value-based educationis likely to help the nation to fight against all kinds of prevailingfanaticism, ill will, violence, dishonesty, corruption, exploitation anddrug abuse Let knowledge, like the sun, shine for all and thatthere should not be any room for narrow-mindedness, blindfaith and dogma. For this purpose also, if the basic tenets of allreligions over the world are learnt, it cannot be said that secularismwould not survive.”

12. In T.M.A. Pai Foundation, it was held that the State is notprevented from making any law in relation to religious practice and thesame is permissible under Article 25(2)(a) of the Constitution of India.The limited jurisdiction granted by Article 25(2) relates to the making ofa law in relation to economic, financial, political or other secular activitiesassociated with the religious practice. The Court held as under:

“83. Article 25(2) gives specific power to the State to make anylaw regulating or restricting any economic, financial, political orother secular activity, which may be associated with religiouspractice as provided by sub-clause (a) of Article 25(2). This is afurther curtailment of the right to profess, practise and propagatereligion conferred on the persons under Article 25(1). Article25(2)(a) covers only limited area associated with religiouspractice, in respect of which law can be made. careful readingof Article 25(2)(a) indicates that it does not prevent the State

452SUPREME COURT REPORTS

Afrom making any law in relation to the religious practice as such.The limited jurisdiction granted by Article 25(2) relates to themaking of law in relation to economic, financial, political or othersecular activities associated with the religious practice”.

13. Thus, though the concept of secularism emerged in the west,Bit has taken different colour over the period of time. In democraticcountry 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 beintertwined with any of the secular activities of the State. Anyencroachment of religion in the secular activities is not permissible.CSecularism thus means treating all religions equally, respecting all religionsand protecting the practices of all religions. The positive meaning ofsecularism would be non- discrimination by the State on the basis ofreligious faith and practices. Secularism can be practiced by adopting acompletely neutral approach towards religion or by positive approachDwherein though the State believes and respects all religions, but does notfavour any.

FACTUAL BACKGROUND

14. The challenge in the present appeals is to the GovernmentOrder dated 5.2.2022, the translated copy of which reads as under:

“Proceedings of the Government of Karnataka

Subject – Regarding dress code for students of all schools andcolleges of the state.

Refer – 1) Karnataka Education Act 1983F

2) Government Circular:509 SHH 2013, Date:31- 01-2014

Preamble:-

As mentioned in the above at reference No.1, the KarnatakaEducation Act 1983 passed by the Government of Karnataka (1-G1995) Section [7(2)(g)(v)]* stipulates that all the school studentsstudying in Karnataka should behave in fraternal manner,transcend their group identity and develop an orientation towardssocial justice. Under the Section 133 of the above law, thegovernment has the authority to issue directions to schools andcolleges in this regard.H

The above-mentioned circular at reference No.2 underlineshow Pre-university education is an important phase in the lives ofstudents. All the schools and colleges in the state have set updevelopment committees in order to implement policies in line withthe policies of the government, utilize budgetary allocations,improve basic amenities and maintain their academic standards.It is recommended that the schools and colleges abide by thedirections of these development committees.

Any such supervisory committee in schools and colleges(SDMC in Government Institutions and Parents- Teachers’Associations and the management in private institutions) shouldstrive to provide conducive academic environment and enforcea suitable code of conduct in accordance with governmentregulations. Such code of conduct would pertain to that particularschool or college.

Various initiatives have been undertaken to ensure thatstudents in schools and colleges have standardized learningexperience. However, it has been brought to the educationdepartment’s notice that students in few institutions have beencarrying out their religious observances, which has become anobstacle to unity and uniformity in the schools and colleges.

The question relating to uniform dress code over individualdressing choices has come up in several cases before theHonourable Supreme Court and High Courts, which have ruledas below.

1)In para 9 of the Hon’ble High Court of Kerala’s rulingin W.P. (C) No.35293/2018, date : 04-12-2018, it citesa ruling by the Hon’ble Supreme Court:

“9. The Apex Court in Asha Renjan and others v/s State of Bihar and others [(2017) 4 SCC 397]accepted the balance test when competing rightsare involved and has taken view that individualinterest must yield to the larger public interest.Thus, conflict to competing rights can be resolvednot by negating individual rights but by upholdinglarger right to remain, to hold such relationshipbetween institution and students.”

A2)In the case of Fatima Hussain Syed v/s BharatEducation Society and Ors. (AIR 2003 Bom 75), ina similar incident regarding the dress code, when acontroversy occurred at Kartik High School, Mumbai.The Bombay High Court appraised the matter, andruled that it was not violation of Article 25 of theBConstitution for the principal to prohibit the wearingof head scarf or head covering in the school.

3)Subsequent to the Hon’ble Supreme Court’sabovementioned ruling, the Hon’ble Madras HighCourt, in V. Kamalamma v/s Dr. MGR MedicalUniversity, Tamil Nadu and Ors. upheld the modifieddress code mandated by the university. similar issuehas been considered by the Madras High Court inShri. M Venkatasubbarao Matriculation HigherSecondary School Staff Association v/s Shri M.Venkatasubbarao Matriculation Higher SecondarySchool (2004) 2 MLJ 653 case.

As mentioned in the abovementioned rulings of theHon’ble Supreme Court and various High Courts, since theprohibition of headscarf or garment covering the headis not violation of Article 25 of the Constitution. Additionally,in terms of the [Karnataka Education Act, 1983 Article 133Sub Rule (2) and Article 7(1)(i), 7(2)(g)(v) and KarnatakaEducation Act (Classification, Regulation, CurriculumScheduling, Others) of Rules 1995 as per Rule 11]**, thegovernment has decreed as below-

Government Order No: EP14 SHH 2022 BengaluruDated: 05.02.2022

In the backdrop of the issues highlighted in the proposal, using thepowers granted by Karnataka Education Act, 1983 Sub-Rule 133(2) [Section 7(1)(i), 7(2)(g)(v) and Karnataka Education Act(Classification, Regulation, Curriculum Scheduling, Others) ofRules 1995 as per Rule 11**, all the government schools in thestate are mandated to abide by the official uniform. Private schoolsshould mandate uniform decided upon by their board ofmanagement.

In colleges that come under the pre-university educationdepartment’s jurisdiction, the uniforms mandated by the CollegeDevelopment Committee, or the board of management, should beworn. In the event that the management does mandate uniform,students should wear clothes that are in the interests of unity,equality and public order.

By the Order of the Governor of Karnataka,

And in his name Padmini SN

Joint Secretary to the Government Education Department (Pre-

University)

*Substituted by the Corrigendum/Addendum dated 5.2.2022**Inserted by the Corrigendum/Addendum dated 5.2.2022"

15. The Karnataka Education Act, 1983[9], under which the aboveGovernment Order has been issued, was enacted with view to fosterthe harmonious development of the mental and physical faculties ofstudents and cultivate scientific and secular outlook through education.The long title and some of the relevant provisions of the Act read thus:

“An Act to provide for better organisation, development, disciplineand control of the educational institutions in the State.

Whereas it is considered necessary to provide for the planneddevelopment of educational institutions inculcation of healthyeducational practice, maintenance and improvement in thestandards of education and better organisation, discipline andcontrol over educational institutions in the State with view tofostering the harmonious development of the mental and physicalfaculties of students and cultivating scientific and secular outlookthrough education;

Section-5. Promotion of education of the weaker sections and thehandicapped. – The State Government shall endeavour to promotethe education of the handicapped, backward classes and the weakersections of the society including the economically weaker sectionthereof and in particular of the Scheduled Castes, Scheduled Tribeswith special care by adopting towards that end such measure asmay be appropriate.

9 For short, the ‘Act’

ASection-7. Government to prescribe curricula, etc. – (1) Subjectto such rules as may be prescribed, the State Government may, inrespect of educational institutions, by order specify,-

xxxxxx

(h) the facilities to be provided, such as buildings, sanitaryBarrangements, playground, furniture, equipment, library, teachingaid, laboratory and workshops;

(i) such other matters as are considered necessary.

(2) The curricula under sub-section (1) may also include schemesCin respect of,-

xxxxxx

(v) to promote harmony and the spirit of common brotherhoodamongst all the people of India transcending religious, linguisticand regional or sectional diversities to renounce practicesDderogatory to the dignity of women;

(vi) to value and preserve the rich heritage of our compositeculture;

xxxxxx

E(viii) to develop the scientific temper, humanism and the spirit ofinquiry and reform;

xxxxxx

(x) to strive towards excellence in all spheres of individual andcollective activity, so that the nation constantly rises to higher levelsFof endevaour and achievement.”

16. The Act also contemplates withdrawal of recognition if anylocal authority or the Governing Council of any private educationalinstitution denies admission to any citizen on the ground of religion, race,caste, language or any of them [Section 39 (1)(b)]; or directly or indirectlyGencourages in the educational institution any propaganda or practicewounding the religious feelings of any class of citizens of India or insultingreligion or the religious belief of that class [Section 39 (1)(c)].

17. The impugned Government Order has been issued byexercising the powers conferred under Section 133 of the Act, whichHreads as thus:

“133. Powers of Government to give directions.- (1) The StateGovernment may, subject to other provisions of this Act, by order,direct the Commissioner of Public Instruction or the Director orany other officer not below the rank of the District EducationalOfficer to make an enquiry or to take appropriate proceedingunder this Act in respect of any matter specified in the said orderand the Director or the other officer, as the case may be, shallreport to the State Government in due course the result of theenquiry made or the proceeding taken by him.

(2) The State Government may give such directions to anyeducational institution or tutorial institution as in its opinion arenecessary or expedient for carrying out the purposes of this Actor to give effect to any of the provisions contained therein or ofany rules or orders made thereunder and the Governing Councilor the owner, as the case may be, of such institution shall complywith every such direction.

(3) The State Government may also give such directions to theofficers or authorities under its control as in its opinion are necessaryor expedient for carrying out the purposes of this Act, and it shallbe the duty of such officer or authority to comply with suchdirections.”

18. The State Government is also empowered to make rules tocarry out the purposes of this Act under Section 145 of the Act. Sub-section (2) thereof provides that in particular and without prejudice tothe generality of the foregoing power, the Rules may provide for theestablishment or maintenance and administration of educationalinstitutions [Section 145 (2)(xii)]; the purposes for which the premisesof the educational institutions may be used and the restrictions andconditions subject to which such premises may be used for any otherpurpose [Section 145 (2)(xxix)]; and all matters expressly required bythe Act to be prescribed or in respect of which the Act makes no provisionor makes insufficient provision and provision is, in the opinion of theState Government, necessary for the proper implementation of the Act[Section 145 (2)(xL)].

19. In pursuance of the above statutory provisions, the KarnatakaEducational Institutions (Classification, Regulation and Prescription of

[2022] 5 S.C.R.

ACurricula etc.) Rules, 1995[10]were framed. Rule 11 of the said Rulesprovides for uniform, clothing, text books etc., which reads thus:

“11. Provision of Uniform, Clothing, Text Books etc., (1) Everyrecognised educational institution may specify its own set ofUniform. Such uniform once specified shall not be changed withinBthe period of next five years.(2) When an educational institution intends to change the uniformas specified in sub-rule (1) above, it shall issue notice to parents inthis regard at least one year in advance.

(3) Purchase of uniform clothing and text books from the schoolCor from shop etc., suggested by school authorities and stitchingof uniform clothing with the tailors suggested by the schoolauthorities, shall be at the option of the student or his parent. Theschool authorities shall make no compulsion in this regard.”

20. Rule 16 of the Rules provides for the constitution and functionsDof District Level Education Regulating Authority. An order was passedby the State on 31.1.2014 constituting College Betterment Committeefor the purpose of proper utilization of the grants sanctioned to it and fordeveloping basic infrastructure and maintaining the quality of education.Such Committee is chaired by Member of Legislative Assembly as well

Eas representatives of parents, one of whom is woman, one SC/ST,another member with an interest in educational field, two studentrepresentatives out of which one shall be girl, Vice Principal/SeniorTeacher of High School and Senior Lecturers of the college. The principalof the respective college is the Member Secretary. Such CollegeBetterment Committee of the Government Pre-University College forFGirls, Udupi, on 23.6.2018, passed the following resolution:

“RESOLUTION

xxxxxx

4. Further, it is resolved to maintain the same uniform in this yearGalso as maintained in the last year like blue colored chudidar pant,white colored with blue color checks top and blue pant coloredshawl on the shoulders, in all the six days of the week. Also, it isdecided to handover the responsibility of providing the uniform tothe poor girl students from the donors, to the Vice- President

H10 For short, the ‘Rules’

Yashpal Suvarna and powers were given to the Principal to takedecision to after checking availability of the uniform in the shops.”

21. The challenge to the Circular dated 5.2.2022 before the HighCourt remained unsuccessful on various grounds which are not necessaryto be extracted herein.

22. Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan,Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr.A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr.Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, learned SeniorAdvocates and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. RishadAhmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms.Thulasi K. Raj, Mohd. Nizamuddin Pasha, learned counsels have assistedthe Court in this matter on behalf of the appellants; whereas, Mr. TusharMehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General,Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka,Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu, learned SeniorAdvocates, argued on behalf of the Respondents. The arguments coveredvarious issues which will be dealt with hereinafter at appropriate stages.

23. We have heard learned counsels for the parties at length. Ifind that the following questions arise for consideration in the presentappeals:

“(i) Whether the appeals should be heard along with KantaruRajeevaru (Right to Religion, In Re-9J) and/or should thepresent appeals be referred to the Constitution Bench in terms ofArticle 145(3) of the Constitution?

(ii) Whether the State Government could delegate its decision toimplement the wearing of uniform by the College DevelopmentCommittee or the Board of Management and whether theGovernment Order insofar as it empowers College DevelopmentCommittee to decide on the restriction/prohibition or otherwise onheadscarves is ex facie violative of Section 143 of the Act?

(iii) What is ambit and scope of the right to freedom of ‘conscience’and ‘religion’ under Article 25?

(iv) What is the ambit and scope of essential religious practicesunder Article 25 of the Constitution?

A(v) Whether fundamental rights of freedom of expression underArticle 19(1)(a) and right of privacy under Article 21 mutuallyexclusive or are they complementary to each other; and whetherthe Government Order does not meet the injunction ofreasonableness for the purposes of Article 21 and Article 14?

B(vi) Whether the Government Order impinges upon Constitutionalpromise of fraternity and dignity under the Preamble as well asfundamental duties enumerated under Article 51-A sub-clauses(e) and (f)?

(vii) Whether, if the wearing of hijab is considered as an essentialCreligious practice, the student can seek right to wear headscarf toa secular school as matter of right?

(viii) Whether student-citizen in the constitutional scheme isexpected to surrender her fundamental rights under Articles19, 21 and 25 as pre- condition for accessing education in aState institution?D(ix) Whether in the constitutional scheme, the State is obligated toensure ‘reasonable accommodation’ to its citizens?

(x) Whether the Government Order is contrary to the legitimateState interest of promoting literacy and education as mandatedEunder Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution?

(xi) Whether the Government Order neither achieves any equitableaccess to education, nor serves the ethic of secularism, nor is trueto the objective of the Karnataka Education Act?”

Question (i)- Whether the appeals should be heard along withFKantaru Rajeevaru (Right to Religion, In Re-9J) and/or should thepresent appeals be referred to the Constitution Bench in terms ofArticle 145(3) of the Constitution?

24. The preliminary submission of learned counsel for the appellantsis that the present case ought to be referred to larger bench in view ofGthe order of this Court reported as Kantaru Rajeevaru (SabarimalaTemple Review-5J.) v. Indian Young Lawyers Association & Ors.[11].One of the arguments raised for such submission was that it has to bedecided as to what is considered to be essentially religious, essential to

H11 (2020) 2 SCC 1

religion and integral part of religion. The contention was that “religion”is means to express one’s “faith”. The larger Bench of this Courtframed the questions of law in an order[12]. However, the reasons[13]recorded for the reference state the ambit to be “the contours of judicialreview in matters pertaining to essential religious practices”. Thequestions referred to in the said case relate to the extent to which theCourt can inquire into the issue as to whether particular practice wouldbe qualified as an integral, essential part of religion.

25. It was also argued that the present case involves substantialquestion of law relating to interpretation of the Constitution, therefore,ought to be referred to Constitution Bench in terms of Article 145(3)of the Constitution.

26. It is noted that the review in Kantaru Rajeevaru (Right toReligion, In Re-9J.) is to consider much wider questions. The argumentthat the matter should be referred to larger Bench to be heard alongwith such referred cases does not warrant consideration. The questionsreferred to the larger Bench relate to power of judicial review in thematters of essential religious practices. But the said question need notbe examined in the present matter as the issue herein is whether religiouspractice, which may be an essential religious practice, can be regulatedby the State in secular institution. Therefore, I do not find it necessaryto tag the present appeals along with Kantaru Rajeevaru.

27. The argument that the present appeals involve substantialquestion of law as to the interpretation of the Constitution, and thusshould be referred to the Bench of Five Judges in terms of Article 145(3)of the Constitution is not tenable. Reliance is placed on 9-Judges benchjudgment reported as K.S. Puttaswamy and Anr. v. Union of India &Ors.[14], wherein this Court held “When substantial question as tothe interpretation of the Constitution arises, it is this Court and thisCourt alone under Article 145(3) that is to decide what theinterpretation of the Constitution shall be, and for this purpose, theConstitution entrusts this task to minimum of 5 Judges of thisCourt”.

12 (2020) 3 SCC 52

13 (2020) 9 SCC 121

14 (2017) 10 SCC 1

A28. There is no dispute about the proposition canvassed. The issuein the present matter is however as to whether the students can enforcetheir religious beliefs in secular institution. Thus, the issues raised donot become substantial question of law as to the interpretation of theConstitution only for the reason that the right claimed by the appellantsis provided under the Constitution. Hence, I do not find the need to referBthe matter to larger bench or that the same should be heard along withKantaru Rajeevaru.

Question (ii)- Whether the State Government could delegate itsdecision to implement the wearing of uniform by the CollegeDevelopment Committee or the Board of Management and whetherCthe Government Order insofar as it empowers College DevelopmentCommittee to decide on the restriction/prohibition or otherwise onheadscarves is ex facie violative of Section 143 of the Act?

29. The argument raised is with reference to Section 143 of theAct. It is contended that the State Government can delegate all or anyDof its powers exercisable by it, or to be exercised also by such office/authority subordinate to the State Government, as may be specified inthe notification. It is the contention of the learned counsel for the appellantsthat the notification dated 31.1.2014 is to delegate the essential Statefunctions in favour of non-statutory authority. Therefore, suchEnotification violates the mandate of Section 143 of the Act. Section 143of the Act reads thus:

“143. Delegation. – The State Government may by notification inthe official gazette, delegate all or any powers exercisable by itunder this Act or rules made thereunder, in relation to such matterFand subject to such conditions, if any as may be specified in thedirection, to be exercised also by such officer or authoritysubordinate to the State Government as may be specified in thenotification.”

30. It is contended by the learned counsel for the appellants that

Gthe power to maintain public order is the responsibility of the StateGovernment and, therefore, the State Government could not delegate itsauthority to College Development Committee which is not State withinthe meaning of Article 12 as it is mechanism created by the State. TheCircular issued by the Government of Karnataka dated 31.1.2014,published in the official Gazette, reads thus:H

“Government of Karnataka

No. ED 580 SHH 2013Department of EducationMultistore Building

Bangalore dated 31-01-2014

CIRCULAR

Education department is providing 1[st ]and 2[nd ]PUCeducation in the state. PUC education is the main stage in thestudent’s life. In accordance with the government and departmentdirection and in order to utilise the grants as well as in maintainingacademic standards and development of infrastructure, we arehereby directed to form college development committee and tofollow the guidelines as under:

SD/ 31-01-2014(S.H. Curiyavar)Under Secretary to the GovtDept of Education (P.U Education).”

A31. Furthermore, learned counsels for the appellants have alsovehemently argued that the Government Order dated 5.2.2022 refers tosome of the judgments which do not deal with the issue of wearing hijab,but still it is concluded that use of headscarf or garment covering thehead is not in violation of Article 25. It is averred that though the operativepart of the order seems to be facially religious-neutral, it targets aBparticular community in effect. It is also contended that the High Courthas supplanted the reasons to uphold the said Government Order eventhough the reasons recorded therein are not sufficient to prohibit the useof headscarf. Hence, at the outset, the State ought to prove the jurisdictionto issue such circular.C32. The alternate argument is that the College DevelopmentCommittee, non-statutory authority, cannot exercise power of the StateGovernment under Part III of the Constitution. It was contended thatthe law which can restrict the right of an individual under Article 19(1)(a),Article 25(2), or any other right falling within part III of the Constitution,Dcan only be by way of law made by the competent legislature. Mr.Shoeb Alam referred to judgments of this Court reported as State ofMadhya Pradesh & Anr. v. Thakur Bharat Singh[15], State of WestBengal v. Anwar Ali Sarkar[16], Bishambhar Dayal Chandra Mohan& Ors. v. State of Uttar Pradesh & Ors.[17]and recent order passedby this Court reported as Pharmacy Council of India v. Rajeev CollegeEof Pharmacy & Ors.[18]to support such contention. However, Mr.Dushyant Dave argued that the rights in Part III of the Constitution canbe restricted or regulated by statute made by competent legislatureand also includes any law as defined under Article 13(2) & (3) of theConstitution. Articles 13(2) and (3) of the Constitution are relevant forFthe purposes of the present proposition, which reads thus:

“13. Laws inconsistent with or in derogation of thefundamental rights.—

xxxx

(2) The State shall not make any law which takes away or abridgesGthe rights conferred by this Part and any law made in contraventionof this clause shall, to the extent of the contravention, be void.

15 AIR 1967 SC 117016 AIR 1952 SC 7517 (1982) 1 SCC 39H18 2022 SCC OnLine SC 1224

(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation,notification, custom or usage having in the territory of India theforce of law;”

33. I do not find any merit in the said argument raised by theappellants. The College Development Committee is envisaged to be anin-house mechanism to ensure better utilization of grants as well asmaintaining academic standards and development of infrastructure. Suchdirections are relatable to sub-section (3) of Sections 133 and 145 of theAct. In any case, the constitution of the College Development Committeeis not in conflict with any of the provisions of the Act. The said circularwas published in the Karnataka Gazette, issued in exercise of the executivepowers of the State, supplementing the provisions of the Act and notsupplanting all or any of the provisions thereof.

34. The Government Order is in two parts. The first part is thePreamble which gives the background leading to the order impugnedbefore the High Court. The second part, i.e., the operative part of theorder alone bears the Government Order number and date. The ordermandates that the uniform prescribed by the College DevelopmentCommittee or the Board of Management should be worn. The appellantshave though understood the order to be interfering with their essentialreligious practices.

35. The executive power under Article 73 extends to all mattersin respect of which the Parliament has power to make laws or underArticle 162 in respect of the matters where legislature of the State haspower to make laws.[19]The question is whether restrictions can be imposedby the executive in respect of the rights specified under Part III such asArticles 19, 21, 25 and 31A.

36. There is no dispute about the proposition that in the absenceof any statute or the statutory rule, but in exercise of the executivepower, the State can issue an executive order. However, the argumentraised is that restrictions under Part III of the Constitution can only beimposed by way of statutory law and not by way of an executivepower.

19 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549

A37. Now, coming to the judgments referred to by the learnedcounsel for the appellant for the abovementioned contention; in AnwarAli Sarkar, this Court was considering the conviction of the respondentby the Special Court established under Section 3 of the West BengalSpecial Courts Ordinance, 1949, which was replaced by the West BengalSpecial Courts Act, 1950. It was the provision of the Act which was setBaside being discriminatory. This Court, in fact, inter-alia held that “thisis further made clear by defining “law” in Article 13 (which rendersvoid any law which takes away or abridges the rights conferred bypart III) as including, among other things, any “order” or“notification”, so that even executive orders or notifications mustCnot infringe Article 14. The trilogy of articles thus ensures non-discrimination in State action both in the legislative and theadministrative spheres in the democratic republic of India”. Thus,the said judgment is thus not helpful to the argument raised.

38. In Thakur Bharat Singh, this Court dismissed an appeal filedDby the State against the judgment of the High Court reported as ThakurBharat Singh v. State of M.P. & Anr.[20]. The High Court struck downSection 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 whenthe writ petitioner before the High Court was prohibited to be in RaipurDistrict and was directed to remain within the municipal limits of JhabuaDistrict and was also ordered to report daily to the Police Station Officer,EJhabua. The High Court held as under:

“For the foregoing reasons, our conclusion is that clauses (a) and(c) of section 3(1) of the Act are valid, but clause (b) being violativeof article 19(1)(d) of the Constitution is invalid. As clause (b) isinvalid, the direction made against the appellant Bharatsingh underFthat clause asking him to reside in Jhabua was clearly illegal andwas rightly quashed by the learned Single Judge. On quashingthat direction, the further direction that Bharatsingh should notifyhis movements by reporting himself daily to the Police StationOfficer, Jhabua, cannot survive. The learned Single Judge,Gtherefore, rightly quashed the order made against Bharatsinghdirecting him to notify his movements and report himself daily tothe Police Station Officer, Jhabua, though he did so on theerroneous view that clause (c) of section 3(1) was inextricably

woven with clause (b) thereof and was invalid. The result is thatboth these appeals are dismissed. In the circumstances of thecase, we leave the parties to bear their own costs of the twoappeals.”

39. An appeal against the said judgment was dismissed by thisCourt wherein this Court held as under:

“7. We are therefore of the view that the order made by the Statein exercise of the authority conferred by Section 3(1)(b) of theMadhya Pradesh Public Security Act 25 of 1959 was invalid andfor the acts done to the prejudice of the respondent after thedeclaration of emergency under Article 352 no immunity from theprocess of the Court could be claimed under Article 358, of theConstitution, since the order was not supported by any validlegislation.”

40. The aforementioned judgment is in respect of the statuteenacted by State Legislature, the provision of which was found to beinvalid. The issue raised in the aforesaid case has no parity with thefacts of the present case.

41. In Bishambhar Dayal Chandra Mohan, the State Governmentcontended that the impugned teleprinter message dated March 31, 1981was in the nature of an executive instruction issued by the StateGovernment under its powers under Article 162 of the Constitution forthe due observance of the provisions of the U.P. Foodgrains Dealers(Licensing and Restriction on Hoarding) Order, 1976 and the UttarPradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978.It was the stand of the State that no person can carry on business infoodgrains as dealer or as commission agent, except under and inaccordance with the terms and conditions of valid licence issued inthat behalf under the two orders. In these circumstances, this Court heldas under:

“33. Under Article 19(1)(g) of the Constitution, citizen has theright to carry on any occupation, trade or business and the onlyrestriction on this unfettered right is the authority of the State tomake law imposing reasonable restrictions under clause(6)............

41. There still remains the question whether the seizure of wheatamounts to deprivation of property without the authority of law.

AArticle 300-A provides that no person shall be deprived of hisproperty save by authority of law. The State Government cannotwhile taking recourse to the executive power of the State underArticle 162, deprive person of his property. Such power can beexercised only by authority of law and not by mere executivefiat or order. Article 162, as is clear from the opening words, isBsubject to other provisions of the Constitution. It is, therefore,necessarily subject to Article 300-A. The word “law” in thecontext of Article 300-A must mean an Act of Parliament or of aState legislature, rule, or statutory order, having the force oflaw, that is positive or State made law…”C42. The writ petitions filed by the dealers were dismissed. In theaforesaid case, the restriction was put by an executive order, which wasfound to be reasonable restriction in terms of Article 19(6) of theConstitution. Even the said judgment does not aid the appellants and hasno applicability to the facts of the present case.D43. Furthermore, reliance on recent judgment of this Courtreported as Pharmacy Council of India is unfound as it has no paritywith the facts of the present case. The Pharmacy Council of India, anauthority created under the Pharmacy Act, 1948, resolved on 17.7.2019to put moratorium on the opening of new pharmacy colleges for runningEDiploma as well as Degree courses in pharmacy for period of fiveyears. The argument raised by the appellant was that Sections 3, 10 and12 of the Pharmacy Act confer the power to regulate, therefore, suchpower would include the power to prohibit also. This Court negatedsuch an argument and held as under:

“55. Since we have held that the Resolutions/communications datedF17[th ]July 2019 and 9[th ]September 2019 of the Central Council ofthe appellant-PCI, which are in the nature of executive instructions,could not impose restrictions on the fundamental right to establisheducational institutions under Article 19(1)(g) of the Constitutionof India, we do not find it necessary to consider the submissionsGadvanced on other issues. We find that the Resolutions/communications dated 17[th ]July 2019 and 9[th ]September 2019 ofthe Central Council of the appellant-PCI are liable to be struckdown on this short ground.”

44. perusal of the above judgment shows that an authority underHthe Act had put moratorium on the opening of new pharmacy colleges,

thus, prohibiting the right conferred on an individual under Article 19(1)(g)of the Constitution. The same however was by virtue of resolution notsupported by any statute. Therefore, the said judgment of this Court hasno applicability to the facts of the present case.

45. Furthermore, this Court in judgment reported as Shri DwarkaNath Tewari v. State of Bihar[21]was considering Article 182 of theBihar Education Code. The Court found that Article 182 of the Code isnot in exercise of any power granted under the statute and thus cannotdeprive the petitioners of their rights in the properties which were thesubject matter of the writ petition. This Court held as under:

“13. It is clear, therefore, from the portion of the preface extractedabove, that Article 182 of the Code has no greater sanction thanan administrative order or rule, and is not based on any statutoryauthority or other authority which could give it the force of law.Naturally, therefore, the learned Solicitor-General, with his usualfairness, conceded that the article relied upon by the respondentsas having the force of law, has no such force, and could not,therefore, deprive the petitioners of their rights in the propertiesaforesaid.”

46. “Law”, as contemplated under Articles 19(2) and 25(2), fallswithin Part III of the Constitution. Therefore, law, as defined under Article13(3), would include any ordinance, order, bye-law, rule, regulation,notification, custom or usage in the territory of India to have the force oflaw. The order issued by the State Government would thus be lawwithin the meaning of Article 13(2) read with Article 13(3)(a), which isa valid exercise of power under Article 19(1)(a) read with Article 19(2),and Article 25(1) read with Article 25(2) of the Constitution.

47. The Government Order relates to the powers conferred onthe executive under Section 133 of the Act and rule-making power ofthe State under Article 162 of the Constitution. The said GovernmentOrder does not run contrary to any of the provisions of the Act and therules framed thereunder. Therefore, the executive was well within itsjurisdiction to ensure that the students come in the uniform prescribedby the College Development Committee.

48. The College Development Committee so constituted consistsof Member of the Legislative Assembly, representatives of the students,

21 AIR 1959 SC 249

Afaculty members etc. Therefore, such authority is representative bodyof the students and teachers including the Member of the LegislativeAssembly and Principal of the College as Member Secretary. SuchCommittee cannot be said to be beyond the scope of Section 143 of theAct. Such authority established in exercise of the powers vested withthe State Government is not in contravention of any of the provisions ofBthe statute. In terms of Article 162 of the Constitution, the StateGovernment in exercise of its executive power could create the CollegeDevelopment Committee as such Committee does not contravene anyof the provisions of the statute or the rules framed thereunder.

49. In view of the above, I find that the State Government has theCpower to constitute College Development Committee by notificationdated 31.1.2014 in terms of Section 143 of the Act. The State Governmentcould confer its power to be exercised by such office/authority subordinateto the State Government. It is noted that the word ‘authority’ has notbeen defined under the Act. The authority contemplated by the Act couldDbe non-statutory authority such as of person or group of personswho may be authorized to exercise powers under Section 143 of theAct.50. Further, it is well settled that executive powers can be used tosupplement the statutory rules. This Court in judgment reported asESant Ram Sharma v. State of Rajasthan & Ors.[22]held that it is truethat Government cannot amend or supersede statutory rules byadministrative instructions, but if the rules are silent on any particularpoint, the Government can fill up the gaps and supplement the rules andissue instructions not inconsistent with the rules already framedthereunder. This Court in judgment reported as Union of India &FAnr. v. Ashok Kumar Aggarwal[23]held as under:

“59. The law laid down above has consistently been followed andit is settled proposition of law that an authority cannot issueorders/office memorandum/executive instructions in contraventionof the statutory rules. However, instructions can be issued only toGsupplement the statutory rules but not to supplant it. Suchinstructions should be subservient to the statutory provisions. (VideUnion of India v. Majji Jangamayya [(1977) 1 SCC 606 : 1977

22 AIR 1967 SC 1910H23 (2013) 16 SCC 147

SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272], PaluruRamkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166], C.Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 :1998 SCC (L&S) 1448]and Joint Action Committee of Air LinePilots’ Assn. of India v. DG of Civil Aviation [(2011) 5 SCC435 : AIR 2011 SC 2220] .)”

51. The Preamble of the Act aims towards fostering harmoniousdevelopment of the mental and physical faculties of students and cultivatinga scientific and secular outlook through education.

52. The curricula under Section 7(2) of the Act is to promoteharmony and the spirit of common brotherhood amongst all the peopleof India transcending religious, linguistic and regional or sectionaldiversities, to renounce practices derogatory to the dignity of women, tovalue and preserve the rich heritage of our composite culture, to developscientific temper, humanism and the spirit of inquiry and reform and tostrive towards excellence in all spheres of individual and collective activity,so that the nation constantly rises to higher levels of endeavor andachievement. The said provision is substantially pari materia with thefundamental duties enumerated in Part IV-A of the Constitution insertedby 42[nd ]Amendment, required to be followed by the institutions coveredunder the Act.

53. The said provisions show that the mandate of the statute is torenounce sectional diversities, to develop humanism and to cultivatescientific and secular outlook. The sectarian approach that certainstudents will carry their religious beliefs to secular schools run by theState would be antithesis of the mandate of the statute. All studentsneed to act and follow the discipline of the school. Out of the many stepsrequired to ensure uniformity while imparting education, one of them isto wear the uniform dress without any addition or subtraction to thesame. Any modification to the uniform would cease to be the uniform,defeating the very purpose of prescribing under Rule 11 and as mandatedby the College Development Committee.

54. Mr. Dushyant Dave referred to an extract which appears tobe from booklet published by the Department of Pre-UniversityEducation containing guidelines for the year 2021-2022. It is contendedthat such guidelines have contemplated that uniform is not mandatory

Aand that some College Principals and Management Committee haveimposed uniforms as mandatory, which is illegal. The relevant clausereads as under:

“Uniform is not mandatory for students studying in Pre Universitycollege under Government / Pre University Education DepartmentB/ Education Act. But some college principals and managementcommittee members have imposed uniforms as mandatory whichis illegal. Any violation of the foregoing instructions will be takenseriously.”

55. In respect of the said contention, I find that the students wereCfollowing uniform prescribed by the College Development Committee.It is not the case of any of the students that they were not wearinguniform for the academic session 2021-22. The only claim raised was inrelation to right to wear the headscarf during the academic year 2021-22, the year in controversy, and to which the guidelines relate. Therecognized educational institution in terms of Section 2(30) of the ActDmeans an educational institution recognized under the Act and includesone deemed to be recognized thereunder. The recognition of educationalinstitutions is contemplated by Section 36 of the Act whereas theeducational institutions established and run by the State Government orby the authority sponsored by the Central or the State Government or byEa local authority and approved by the competent authority shall be deemedto be the educational institution recognized under the Act. The studentsare not disputing the mandate to wear uniform. It appears that theguidelines have been made part of the brochure without taking intoconsideration Rule 11 of the Rules which contemplates that everyrecognised educational institution may specify its own set of uniform.FTherefore, the guidelines run counter to the statutory Rule 11 framed inexercise of the powers conferred under Section 145 of the Act. Thus,the uniform, having been prescribed in terms of the Act and the rulesframed thereunder, the guidelines to the contrary are non-est and inany case had not been followed during the academic year in question.G56. The Government Order dated 5.2.2022 contemplates that theprescribed uniform should be followed. It necessarily excludes all religioussymbols visible to naked eye. The argument that the students wearRudraksha or Cross is mentioned only to deal with an argument soraised. Anything worn by the students under his/her shirt cannot be saidHto be objectionable in terms of the Government Order issued.

57. In view of the above enunciation of law, I do not find that theconstitution of the College Development Committee contravenes any ofthe provisions of the Act or the Rules made thereunder or that theregulation of uniform by such Committee is beyond its scope.

Question (iii)- What is the ambit and scope of right to freedom of‘conscience’ and ‘religion’ under Article 25?

58. At the outset, it is pertinent to mention that the Constitutiondoes not define the term ‘Religion’, though it is used in Articles 15, 16,25, 26, 27, 28 and 30. The Articles which are under consideration for thepurpose of present appeals read thus:

“14. Equality before law.—The State shall not deny to any personequality before the law or the equal protection of the laws withinthe territory of India.

15. Prohibition of discrimination on grounds of religion, race, caste,sex or place of brith.—(1) The State shall not discriminate againstany citizen on grounds only of religion, race, caste, sex, place ofbirth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex,place of birth or any of them, be subject to any disability, liability,restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of publicentertainment; or

xxxx

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

(a) to freedom of speech and expression;

xxxx

(2) Nothing in sub-clause (a) of clause (1) shall affect the operationof any existing law, or prevent the State from making any law, inso far as such law imposes reasonable restrictions on the exerciseof the right conferred by the said sub-clause in the interests of thesovereignty and integrity of India,] the security of the State, friendlyrelations with foreign States, public order, decency or morality orin relation to contempt of court, defamation or incitement to anoffence.

xxxx

A25. Freedom of conscience and free profession, practice andpropagation of religion.—(1) Subject to public order, morality andhealth and to the other provisions of this Part, all persons areequally entitled to freedom of conscience and the right freely toprofess, practise and propagate religion.

B(2) Nothing in this article shall affect the operation of any existinglaw or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political orother secular activity which may be associated with religiouspractice;

C(b) providing for social welfare and reform or the throwing openof Hindu religious institutions of public character to all classesand sections of Hindus.”

59. Mr. Huzefa Ahmadi and Mr. Dushyant Dave have quotedfrom the proceedings of the Constituent Assembly Debates, to bringDabout the thought process which had gone into to present the Constitutionto the people of India. Mr. Ahmadi relies upon the speech of Dr.Ambedkar to the Constituent Assembly on 25.11.1949 (ConstituentAssembly Debates, Volume XI, Page 979) to the following effect:

“The third thing we must do is not to be content with mere politicalEdemocracy. We must make our political democracy socialdemocracy as well. Political democracy cannot last unless therelies at the base of it social democracy. What does socialdemocracy mean? It means way of life which recognizesliberty, equality and fraternity as the principles of life. TheseFprinciples of liberty, equality and fraternity are not to betreated as separate items in trinity.They form union oftrinity in the sense that to divorce one from the other is to defeatthe very purpose of democracy.Liberty cannot be divorced fromequality, equality cannot be divorced from liberty. Nor canliberty and equality be divorced from fraternity.WithoutGequality, liberty would produce the supremacy of the few over themany. Equality without liberty would kill individual initiative.Without fraternity, liberty would produce the supremacy of thefew over the many. Equality without liberty would kill individualinitiative. Without fraternity, liberty and equality could notbecome natural course of things.”H

60. Mr. Dave referred to the report dated 25.5.1949 of the AdvisoryCommittee on Minorities by the Constituent Assembly, presided byHon’ble Sardar Vallabhbhai J. Patel, wherein it was stated as under:

“It is not our intention to commit the minorities to particularposition in hurry. If they really have come honestly to theconclusion that in the changed conditions of this country, it is inthe interest of all to lay down real and genuine foundations of asecular State, then nothing is better for the minorities than to trustthe good-sense and sense of fairness of the majority, and to placeconfidence in them. So also it is for us who happen to be in amajority to think about what the minorities feel, and how we intheir position.”

61. In Constituent Assembly Debates, Volume V, dated 27.8.1947,it was opined as under:

“The Draft Constitution is also criticised because of the safeguardsit provides for minorities. In this, the Drafting Committee has noresponsibility. It follows the decisions of the Constituent Assembly.Speaking for myself, I have no doubt that the Constituent Assemblyhas done wisely in providing such safeguards for minorities as ithas done. In this country both the minorities and the majoritieshave followed wrong path. It is wrong for the majority to denythe existence of minorities. It is equally wrong for the minoritiesto perpetuate themselves. solution must be found which willserve double purpose. It must recognize the existence of theminorities to start with. It must also be such that it will enablemajorities and minorities to merge someday into one. ..............”

62. In the Constituent Assembly Debate dated 6.12.1948, whileconsidering the draft Article 19, which is now Article 25, Pandit LakshmiKanta Maitra expressed his views as follows:

“By secular State, as I understand it, is meant that the State is notgoing to make any discrimination whatsoever on the ground ofreligion or community against any person professing any particularform of religious faith. This means in essence that no particularreligion in the State will receive any State patronage whatsoever.The State is not going to establish, patronize or endow anyparticular religion to the exclusion of or in preference to othersand that no citizen in the State will have any preferential treatment

or will be discriminated against simply on the ground that heprofessed particular form of religion. In other words in the affairsof the State the professing of any particular religion will not betaken into consideration at all. This I consider to be the essenceof secular state.”

B63. Mr. Kamat also referred to the proposed amendment movedby Mr. Tajamul Husain on 3[rd ]December, 1948 proposing an amendmentto the following effect:

“No person shall have any visible sign or mark or name, and noperson shall wear any dress whereby his religion may beCrecognised.”

64. The argument raised is that since the amendment was notaccepted, therefore, the citizens have right to have visible sign mark orname or dress so that their religion may be recognized. Though theamendment was not moved, but the fact that such discussion had takenDplace in the Constituent Assembly shows that the Constituent Assemblywas aware of wearing of different clothing by the people of India whichthe member was suggesting to be not carried out. Since the Constitutionis silent about the clothes to be worn by the citizens, therefore, the concernshown by member of the Constituent Assembly should not be putEunder the carpet. In fact, Mr. Tajamul Husain further raised an argumentas under:

“Mr. Tajamul Husain: I wish to point out that religion is privateaffair between man and his God. It has no concern with anyoneelse in the world. What is the religion of others is also no concernFof mine. Then why have visible signs by which one’s religion maybe recognised? You will find, Sir, that in all civilized countries—and civilized countries now-a-days are the countries in Europeand America—there is no visible sign or mark by which mancan be recognised as to what religion he professes.

So I do not want these things. I know I am 100 years ahead of thepresent times. But still, I shall have my say.

In civilized countries in England there was time when there wasno uniformity of dress. In this country you find all sorts of dresses.

You find dhoties, you find pyjamas, you find kurtas, you find shirts,—and again, no shirts, no dhoties, nakedness, all sorts of things.That was the same thing in England at one time.

Mr. Tajamul Husain: I am sorry for the interruption of theBMaulana. My name I will change when the whole country adoptsmy resolution. Then, he will not be able to find out what I am andwho I am.

Now, Sir, I was talking about dress. There was England whenthere was no uniformity, but the Honourable the Law Ministerwill agree with me that an Act was actually passed in Parliamentby which there was uniformity of dress and now in England andin the whole of Europe and in America there is uniformity of dress.We are one nation. Let us all have one kind of dress; one kind ofname; and no visible signs. In conclusion, I say we are going to bea secular State. We should not, being secular State, be recognisedby our dress. If you have particular kind of dress, you know atonce that so and so is Hindu or Muslim. This thing should bedone away with. With these words, I move my amendment.

(Amendment 589 and 583 were not moved.)”

65. On the other hand, learned Solicitor General referred to thespeech of Dr. B.R. Ambedkar in the Constituent Assembly Vol. VII, p.781, which reads as under:

“The religious conceptions in this country are so vast that they coverevery aspect of life from birth to death. There is nothingextraordinary in saying that we ought to strive hereafter to limitthe definition of religion in such manner that we shall not extendit beyond beliefs and such rituals as may be connected withceremonials which are essentially religious.”

66. In respect of the Constituent Assembly Debates, this Court inA.K. Gopalan v. State of Madras[24]held that the Court could only searchfor the objective intent of the legislature primarily in the words used inthe enactment, aided by such historical material such as reports of statutorycommittees. The Court did not put any importance on the speeches made

Aby some of the members of the Constituent Assembly in the course ofthe debate on Article 15 (now Article 21). The result appears to be thatwhile it is not proper to take into consideration the individual opinions ofMembers of Assembly to construe the meaning of particular clause,when question is raised whether certain phrase or expression wasup for consideration at all or not, reference to the debates may beBpermitted.

67. In State of Travancore-Cochin & Ors. v. Bombay CompanyLtd., Alleppey[25], this Court held that the speeches made by the membersof the Constituent Assembly in the course of debates on the draftConstitution is unwarranted. It was noted that this form of extrinsic aidCto the interpretation of statutes is not admissible has been generallyaccepted in England, and the same rule has been observed in theconstruction of Indian statutes as well — see Administrator-Generalof Bengal v. Prem Nath Mallick [22 IA 107, 118].

68. In nine-Judges Bench judgment in Indra Sawhney & Ors.Dv. Union of India & Ors.[26], this Court held that what is said during thedebates is not conclusive or binding upon the Court because severalmembers may have expressed several views, all of which may not bereflected in the provision finally enacted. Therefore, views of the membersof the Constituent Assembly are not really to be relied upon after thisECourt in number of judgments have expressed about the rights underArticle 25 of the Constitution.

69. Thus, the debates show the in-depth knowledge of the membersof the Constituent Assembly at that relevant point of time, but more than70 years later, with the interpretation of various provisions by theFConstitutional Courts, it is not advisable to rely solely upon views of theindividual members in such debates.

70. Further, the argument of Mr. Dave is that Article 25 protectsreligious practices and that the expression ‘essential religious practice’has been wrongly used by this Court in Shayara Bano v. Union ofGIndia & Ors.[27]. It was contended that the judgment in Commissioner,Hindu Religious Endowments, Madras v. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt[28]has not used the expression ‘essential

25 AIR 1952 SC 36626 1992 Supp (3) SCC 21727 (2017) 9 SCC 1H28 AIR 1954 SC 282 (1954 SCR 1005)

religious practice’. Therefore, wearing of headscarf may not beessential, but is religious practice, thus, protected by Article 25.

71. Dr. Dhawan, in support of his arguments, argued that therights available to the students are the right to dress, free speech andexpression not affecting public order or morality and the right of privacy,relying upon judgments in National Legal Services Authority v. Unionof India & Ors.[29]and K.S. Puttaswamy. It is contended that wearingof hijab is an essential religious practice, and that the action of the Stateis discriminatory on the grounds of religion and sex.

72. Mr. Tushar Mehta, learned Solicitor General appearing forthe State rebutted the arguments raised on behalf of the appellants andgave the background of issuance of the Government Order dated5.2.2022. He submitted that on 29.3.2013, the College DevelopmentCommittee, Udupi, prescribed the uniform for the girl students and sincethen the same was being followed by them. On 31.1.2014, circularwas issued by the Government regarding formation of CollegeDevelopment Committee comprising inter alia the local member of theLegislative Assembly, representatives of parents, student representativesand teachers and Principal of the Pre-University College.

73. It was on 23.6.2018, that the College Development Committee,Udupi, prescribed dress code for the students. On 31.12.2019, theCollege Development Committee of another College i.e., KundapuraPre-University College, Udupi, unanimously resolved that the uniformof the students for the academic year would continue to be same as oneprescribed in the previous years.

74. The students at the time of admission to the pre-universitycourse undertook to comply with all the rules and regulations of the Pre-University College. It was pointed out that suddenly in the middle of theacademic term, the issue of hijab was generated in the social media bythe activists of Popular Front of India. The police papers in this respectwere handed over to the High Court in sealed cover as mentioned onpage 126 of the order of the High Court. It is stated that the chargesheethas since been filed. Thereafter, some representations were made bythe parents of the students and/or students requesting hijab to be worn inclassrooms.

29 (2014) 5 SCC 438

A75. The College Development Committee directed to maintainstatus quo. Five students thereafter filed Writ Petition No. 2146 of 2022on 29.1.2022 seeking an interim prayer that they be allowed to continueto attend school wearing headscarves. On 31.1.2022, the CollegeDevelopment Committee, Udupi, decided that students must not wearhijab in classrooms whereas the Kundapura Pre-University CollegeBresolved it on 2.2.2022. There was counter-reaction for the demandsraised. It is in these circumstances that the Government issued theimpugned order.76. It is contended that such directions were issued to the colleges/institutions and not to the individual students as per the mandate of theCAct. The Preamble of the Act is to provide for the planned developmentof educational institutions, inculcating healthy educational practice,maintenance and improvement in the standards of education, betterorganization, discipline and control over educational institutions so as tocultivate scientific and secular outlook through education. Section 133(2)Dof the Act empowers the State Government to give directions to anyeducational institution as in its opinion are necessary or expedient forcarrying out the purposes of the Act. Therefore, the Government Orderwas issued to direct the colleges/institutions to ensure that whereveruniform is mandated by the College Development Committee or theBoard of Management, it should be worn. But if such uniform is notEmandated, the students should wear clothes which are in the interest ofunity, equality and public order. Therefore, the circular was issued to thecolleges to ensure compliance of norm of uniform in non-discriminatorymanner, irrespective of any religious faith of the students.

77. The legality of Rule 11 of the Rules is not under challenge. InFterms of the said Rule, the educational institutions have right to prescribea uniform to the students attending the said school. The scope of judicialreview of the decisions of the educational institutions vis-a-vis its pupilis narrower than purely administrative action. Reference was made toT.M.A Pai Foundation wherein it was held as under:G“64. An educational institution is established only for the purposeof imparting education to the students. In such an institution, it isnecessary for all to maintain discipline and abide by the rules andregulations that have been lawfully framed. The teachers are likefoster parents who are required to look after, cultivate and guideHthe students in their pursuit of education. The teachers and the

institution exist for the students and not vice versa. Once thisprinciple is kept in mind, it must follow that it becomes imperativefor the teaching and other staff of an educational institution toperform their duties properly, and for the benefit of thestudents.........”

78. In the matters of campus discipline of the educationalinstitutions, the Court does not substitute its own views in place of theschool authority except in case of manifest injustice or to interferewith decision which does not pass the test of Wednesburyreasonableness. This Court in judgment reported as Chairman, J &K State Board of Education v. Feyaz Ahmed Malik[30], held as under:

“20. .............. From the discussions in the impugned judgment, itis clear that the High Court has taken upon itself the task of findingout scheme to tackle the problem of mass malpractice inexamination. In our considered view the approach of the HighCourt in the matter is erroneous and this has vitiated the judgment.In matters concerning campus discipline of educational institutionsand conduct of examinations the duty is primarily vested in theauthorities in charge of the institutions. In such matters the courtshould not try to substitute its own views in place of the authoritiesconcerned nor thrust its views on them. That is not to say that thecourt cannot at all interfere with the decisions of the authorities insuch matters. The court has undoubtedly the power to interveneto correct any error in complying with the provisions of the rules,regulations or notifications and to remedy any manifest injusticebeing perpetrated on the candidates. ..............”

79. In Ahmedabad St. Xavier’s College Society & Anr. v. Stateof Gujarat & Anr.[31], it was held that the educational institutions aretemples of learning and thus discipline is required to be maintainedbetween the teacher and the taught.

“30. Educational institutions are temples of learning. The virtuesof human intelligence are mastered and harmonised by education.Where there is complete harmony between the teacher and thetaught, where the teacher imparts and the student receives, wherethere is complete dedication of the teacher and the taught in

30 (2000) 3 SCC 59

31 (1974) 1 SCC 717

Alearning, where there is discipline between the teacher and thetaught, where both are worshippers of learning, no discord orchallenge will arise. An educational institution runs smoothly whenthe teacher and the taught are engaged in the common ideal ofpursuit of knowledge. ........... The right to administer is to betempered with regulatory measures to facilitate smoothBadministration. The best administration will reveal no trace or colourof minority. minority institution should shine in exemplaryeclectism in the administration of the institution. The bestcompliment that can be paid to minority institution is that it doesnot rest on or proclaim its minority character.

31. Regulations which will serve the interests of the students,regulations which will serve the interests of the teachers are ofparamount importance in good administration. Regulations in theinterest of efficiency of teachers, discipline and fairness inadministration are necessary for preserving harmony amongDaffiliated institutions.”

80. In respect of minority institutions, this Court in judgmentreported as Bihar State Madarasa Education Board v. MadarasaHanfia Arabic College[32]held that the State has power to regulate theeducational needs and discipline of minority institution.

E“6. .......... This Court has all along held that though the minoritieshave right to establish and administer educational institution oftheir own choice but they have no right to maladminister and theState has power to regulate management and administration ofsuch institutions in the interest of educational need and disciplineof the institution. Such regulation may have indirect effect on theFabsolute right of minorities but that would not violate Article 30(1)of the Constitution as it is the duty of the State to ensure efficiencyin educational institutions. The State has, however, no power tocompletely take over the management of minority institution.

................. Minority institutions cannot be allowed to fall belowGthe standard of excellence on the pretext of their exclusive rightof management but at the same time their constitutional right toadminister their institutions cannot be completely taken away bysuperseding or dissolving Managing Committee or by appointingad hoc committees in place thereof. ..............”

H32 (1990) 1 SCC 428

81. In Modern Dental College & Research Centre v. State ofMadhya Pradesh[33], it was held that the right under Article 19(1)(g) isnot absolute but is subject to reasonable restrictions under clause (6) inthe larger interest and welfare of student community and to promotemerit, achieve excellence and curb malpractices, fee and admissionscould certainly be regulated. This Court held as under:

“57. It is well settled that the right under Article 19(1)(g) is notabsolute in terms but is subject to reasonable restrictions underclause (6). Reasonableness has to be determined having regardto the nature of right alleged to be infringed, purpose of therestriction, extent of restriction and other relevant factors. Inapplying these factors, one cannot lose sight of the directiveprinciples of State policy. The Court has to try to strike justbalance between the fundamental rights and the larger interest ofthe society. The Court interferes with statute if it clearly violatesthe fundamental rights. The Court proceeds on the footing thatthe legislature understands the needs of the people. TheConstitution is primarily for the common man. Larger interest andwelfare of student community to promote merit, achieve excellenceand curb malpractices, fee and admissions can certainly beregulated.”

82. It has been argued that Article 25 of the Constitution must begiven conjunctive meaning. In Article 25(1), the term ‘conscience’needs to be given not only the widest connotation but also aninterconnected meaning. It is contended to be wide enough to cover theuse of hijab, which reflects an expression of conscience. It is arguedthat the terms ‘conscience’, ‘profess’ and ‘practice’, as occurring inArticle 25(1), are distinct and at the same time, interconnected. Practicewould necessarily include conscience, and therefore both are inseparable.

83. It is further submitted that the right to dress inheres in theright to freedom of speech and expression, right to identity, and the rightto dignity under Article 21 of the Constitution of India. Restriction ondress, even in the context of uniform, must have rational nexus withthe object sought to be achieved. Dress has been referred also in thecontext of expression of self. It is submitted that Muslim women wearinghijab is symbolic expression of their identity to the public as woman

Awho follows Islam. The wearing of hijab does not cause any issue ofpublic disorder or disturbance. Moreover, an arbitrary, unsubstantiatedand illogical constraint imposed on the appearance of Muslim womenand their choice of self-presentment is constitutionally impermissible andan explicit violation of Article 19 guaranteed in the Constitution. It wassubmitted that the purpose of uniform is not to erase the markers ofBindividuality. Simply by wearing the prescribed dress code, diversedistinctions which exist amongst the students would not evaporate. Inmulti-cultural societies, students should be taught to acknowledge, acceptand respect diversities in the society. It is further submitted that theimpugned Government Order is exclusionary and destructive of toleranceCand diversity in the classroom. The classroom is expected to be uniformbut not homogenous.

84. This Court in S.P. Mittal v. Union of India[34]held that, it is“obvious that religion, undefined by the Constitution, is incapableof precise judicial definition either. In the background of theDprovisions of the Constitution and the light shed by judicialprecedent, we may say religion is matter of faith. It is matter ofbelief and doctrine. It concerns the conscience i.e. the spirit of man.It must be capable of overt expression in word and deed, such as,worship or ritual. So, religion is matter of belief and doctrine,concerning the human spirit, expressed overtly in the form of ritualEand worship. Some religions are easily identifiable as religions;some are easily identifiable as not religions. There are many in thepenumbral region which instinctively appear to some as religionsand to others as not religions”.85. Further, in A.S. Narayana Deekshitulu, this Court held thatF“A religion undoubtedly has its basis in system of beliefs anddoctrine which are regarded by those who profess religion to beconducive to their spiritual well-being. ...Every religion must believein conscience and ethical and moral precepts. Therefore, whateverbinds man to his own conscience and whatever moral or ethicalGprinciples regulate the lives of men believing in that theistic,conscience or religious belief that alone can constitute religion asunderstood in the Constitution which fosters feeling of brotherhood,amity, fraternity and equality of all persons which find their foothold

in secular aspect of the Constitution. Secular activities and aspectsdo not constitute religion which brings under its own cloak everyhuman activity.

86. In Sri Adi Visheshwara of Kashi Vishwanath Temple,Varanasi v. State of U.P.[35], this Court held that the religious freedomsguaranteed by Articles 25 and 26 is intended to be guide to communitylife and ordains every religion to act according to its cultural and socialdemands to establish an egalitarian social order. Articles 25 and 26,therefore, strike balance between the rigidity of right of religious beliefand faith and their intrinsic restrictions in matters of religion, religiousbeliefs and guaranteed freedom of conscience to commune with hisCosmos/Creator and realize his spiritual self.

87. Thus, religion believes in conscience and ethical and moralprecepts. The freedom of conscience is what binds man to his ownconscience and whatever moral or ethical principles regulate the lives ofmen. There is fine distinction between freedom of conscience andreligion. The scope of protection under Article 25 goes beyond religiousbeliefs. This provision affords to all persons freedom to beliefs whichmay not necessarily be religious but which may spring from one’sconscience. Freedom of religion, on the other hand, grants one the rightto follow one’s faith, the established form of which gives set of ethicalnorms to its followers and defines the rituals, observances, ceremoniesand modes of worship.

88. I need to examine the right to freedom of conscience andreligion in light of the restrictions provided under Article 25(1) of theConstitution. Such right is not just subject to public order, morality andhealth but also ‘other provisions of Part III’. This would also includeArticle 14 which provides for equality before law. In T.M.A. PaiFoundation, this Court reiterated that Article 25(1) is not only subjectto public order, morality and health, but also to other provisions of PartIII of the Constitution. It was observed as under:

“82. Article 25 gives to all persons the freedom of conscience andthe right to freely profess, practise and propagate religion. Thisright, however, is not absolute. The opening words of Article 25(1)make this right subject to public order, morality and health, andalso to the other provisions of Part III of the Constitution. This

Awould mean that the right given to person under Article 25(1)can be curtailed or regulated if the exercise of that right wouldviolate other provisions of Part III of the Constitution, or if theexercise thereof is not in consonance with public order, moralityand health. The general law made by the Government containsprovisions relating to public order, morality and health; these wouldBhave to be complied with, and cannot be violated by any person inexercise of his freedom of conscience or his freedom to profess,practise and propagate religion. For example, person cannotpropagate his religion in such manner as to denigrate anotherreligion or bring about dissatisfaction amongst people.”C89. The object of the Government Order was to ensure that thereis parity amongst the students in terms of uniform. It was only to promoteuniformity and encourage secular environment in the schools. This isin tune with the right guaranteed under Article 14 of the Constitution.Hence, restrictions on freedom of religion and conscience have to beDread conjointly along with other provisions of Part III as laid down underthe restrictions of Article 25(1).

Question (iv) - What is the ambit and scope of essential religiouspractices under Article 25 of the Constitution?

90. The appellants have contended that wearing of headscarf isEan essential religious practice followed by the women following Islamsince time immemorial. It is averred that the same has been provided forin their religious scriptures and thus is essential to the religion. Theargument is that the impugned Government Order impinges upon theirright of wearing headscarf as an essential religious practice, and is thusFviolative of the right guaranteed under Article 25 of the Constitution.

91. To rebut the said argument of essential religious practice, Mr.Tushar Mehta relied upon judgment of this Court reported asCommissioner of Police & Ors. v. Acharya JagadishwaranandaAvadhuta & Anr.[36]wherein, this Court held that essential part of aGreligion means the core beliefs upon which religion is founded. It isupon the cornerstone of essential parts or practices that the superstructureof religion is built, without which religion will be no religion. The testto determine whether part or practice is essential to religion is to findout whether the nature of the religion would be changed without that

part or practice. If taking away of that part or practice results in afundamental change in the character of that religion or in its belief, thensuch part could be treated as an essential or integral part of the religion.

92. The argument of the learned Solicitor General is that in theWrit Petition filed titled Aishat Shifa v. State of Karnataka & Ors.,there is reference to Verse 31 Chapter 24 and Verse 31 Chapter 34 ofthe Holy Quran. In Shaheena & Anr. v. State of Karnataka & Ors.(Writ Petition No. 3038 of 2022), the petitioners have quoted Verse 26Chapter 7, Verse 31 Chapter 24 and Verse 59 Chapter 33 of the HolyQuran indicating that wearing of headscarf is part of the religious identityand essential in Islamic faith. The reliance was also placed upon thejudgment of the Kerala High Court reported as Amnah Bint Basheer& Anr. v. Central Board of Secondary Education (CBSE), New Delhi& Anr.[37]93. It is contended by the learned Solicitor General that wearingof hijab may be practice, it may be an ideal or permissible practice,but to raise it to the level of an essential religious practice, somethingmore is required to be pleaded and proved and it has to be shown that ifthe headscarf is not worn, the identity of the person as believer in thefaith itself would be jeopardized as explained by this Court in A.S.Narayana Deekshitulu and Acharya Jagadishwarananda Avadhuta-II, referred to above.

94. Mr. Prabhuling K. Navadgi, learned Advocate General referredto Verse 31 of Surah 24 of the Holy Quran to assert that wearing of aheadscarf is not an essential feature of the Islamic practice. It is arguedthat wearing of headscarf may be religious practice but is not essentialto the religion as non-following of such practice would not lead believerto be non-Muslim. The essential religious practices are those practices,if not followed, would render the person religion less. Learned AdvocateGeneral of the State of Karnataka argued that the protection under Article25 is only to the essential religious practices and not to every religiousbelief. What constitutes the essential part of religion is primarily to beascertained with reference to the doctrine of that religion itself. Article25(2)(a) contemplates not the regulation by the State of all religiouspractices as such, but regulation of essential religious practices whichare economic, commercial or political, though they are associated withreligious practice.

37 AIR 2016 Ker 115

A95. To appreciate the argument raised, I firstly need to examinethe tenets of Muslim Law. In the Mulla’s Mohammedan Law, 5[th ]edition,2019, it was stated that the Prophet Muhammad himself declared thatthe Holy Quran was revealed to him by the angel “Gabriel” in variousportions and at different times. The texts are held by Mohammedans tobe decisive as being the words of God transmitted to man through theBProphet. It is explained that there are four sources of MohammedanLaw, namely, (1) the Quran; (2) Hadis, i.e., precepts, actions and sayingsof the Prophet Muhammad, not written down during his lifetime, butpreserved by tradition and handed down by authorized persons; (3) Ijmaa,i.e., concurrence of opinion of the companions of Muhammad and hisCdisciples; and (4) Qiyas, being analogical deductions derived from acomparison of the first three sources when they do not apply to theparticular case.96. Still further, five duties[38]have been laid down for the Muslimsby the Prophet, the same are reproduced as under:D“(i)Kalma :- It is the duty of every Muslim to recite kalma.Kalma implies certain Hymns proclaiming the unity of Godaccepting Mohammed as the Prophet.

(ii)Namaz :- Every Muslim must say prayers (Namaz) fivetimes day and on every Friday he must offer his afternoonEprayer at the Mosque.

(iii)Zakat :- It is the duty of every Muslim to offer Zakat orcharity to the poor and needy.

(iv)Ramzan :- The most pious duty of every Muslim is to observefasts in the holy month of ‘Ramzan’.F

(v)Haj :- Every Muslim, should go for Haj or pilgrimage toMecca at least once in his lifetime.”97. In same Chapter[39], according to the ‘Shariat’, religiouscommandment (Hukum) of Allah are of five types, which reads thus:

G“(i)Farz – Five daily prayers (namaz) – One must do strictly.

(ii)Haram – Drinking wine – One must forbade strictly.(iii)Mandub/Additional Prayers on the id – One may do.

38 Page 14 Mulla’s Mohammedan Law, 5th edition, 2019H39 Page 19 Mulla’s Mohammedan Law, 5th edition, 2019

(iv)Makrum – Eating certain kinds of fish prohibited – Onemay refrain from.

(v)Jaiz or Mubah – Thousands of Jaiz things, such as travellingby air – Shariat is indifferent towards it.”

98. The Chapter 7[40]also gives the description of laws which havemodified the Mohammedan Law. Such statutes are as under:B

“(i)The Indian Contract Act, 1872.

(ii)The Usuary Law Repeal Act.

(iii)Usurious Loans Act.

(iv)The Religious Toleration Act.

(v)The Freedom of Religion Act, 1850.

(vi)The Waqf Validating Act.

(vii)The Shariat Act, 1937.

(viii) The Dissolution of Muslim Marriage Act, 1939.

(ix)The Special Marriages Act, 1954. (When Muslimsolemnizes or registers his marriage under this Act, suchmarriage and the liability for Mahr, the dissolution of suchmarriage and succession to the property of such Muslimand of the issue of such marriage is not governed by MuslimLaw).

(x)Constitution of India : The Muslim Law of Pre- emptionstands subject to Act 19(1)(f) of the Constitution.

(xi)Muslim Law relating to crimes, procedure and slavery standabrogated by laws enacted in this regard by the Legislature.”

99. There are various text books interpreting the verses of theHoly Quran. However, reference is made to the interpretation given byAbdullah Yusuf Ali, translation in English published alongside the originalArabic text, completed in Lahore on 4.4.1937. The interpretation byYusuf Ali has been referred to by this Court in number of judgments[41].Mr. Aditya Sondhi and Mohd. Nizamuddin Pasha have also referred to

40 Page 106 Mulla’s Mohammedan Law, 5th edition, 2019

41 Mohd. Ahmed Khan v. Shah Bano Begum & Ors., (1985) 2 SCC 556; Danial Latifi &Anr. v. Union of India, (2001) 7 SCC 740; Iqbal Bano v. State of U.P. & Anr., (2007) 6SCC 785; and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1

Athe Holy Quran by Abdullah Yusuf Ali in their written submissions. TheEnglish translation and meaning ascribed to such translation availableonline “The Glorious Quran” read thus:

“Surah 24 Verse 31

31. And say to the believing women that they should lowertheir gaze and guard(2984) their modesty; that they shouldnot display their beauty and ornaments(2985) except what(must ordinarily) appear thereof; that they should draw theirveils over their bosoms and not display their beauty exceptto their husbands, their fathers, their husband’s fathers,their sons, their husbands’ sons, their brothers or theirbrothers’ sons, or their sisters’ sons, or their women orthe slaves whom their right hands possess, or male servantsfree of physical needs, or small children who have no senseof the shame of sex; and that they should not strike theirfeet in order to draw attention to their hiddenornaments.(2986) And O ye Believers! turn ye all togethertowards Allah, that ye may attain Bliss.(2987)

2984The need for modesty is the same in both men andwomen. But on account of the differentiation of the sexes innature, temperaments, and social life, greater amount ofprivacy is required for women than for men, especially in thematter of dress and the uncovering of the bosom.

2985Zinah means both natural beauty and artificial ornaments.I think both are implied here, but chiefly the former. The womanis asked not to make display of her figure or appear in undressexcept to the following classes of people: (1) her husband, (2)her near relatives who would be living in the same house, andwith whom certain amount of neglige is permissible; (3) herwomen, i.e., her maid-servants, who would be constantly inattendance on her: some Commentators include all believingwomen; it is not good form in Muslim household for womento meet other women, except when they are properly dressed;(4) slaves, male and female, as they would be in constantattendance (but with the abolition of slavery this no longerapplies); (5) old or infirm men-servants; and (6) infants or smallchildren before they get sense of sex. Cf. also 33:59.

2986It is one of the tricks of showy or unchaste women totinkle their ankle ornaments, to draw attention to themselves.

2987While all these details of the purity and good form ofdomestic life are being brought to our attention, we are clearlyreminded that the chief object we should hold in view is ourspiritual welfare. All our brief life on this earth is probation,and we must take our individual, domestic, and social life all

contribute to our holiness, so that we can get the real successand bliss which is the aim of our spiritual endeavor.(R).”

Surah 33 Verse 36

36. It is not fitting for Believer, man or woman, when amatter has been decided by Allah and His Messenger tohave any option about their decision:(3721) if any onedisobeys Allah and His Messenger, he is indeed on clearlywrong Path.

3721We must not put our own wisdom in competition withAllah’s wisdom. Allah’s decree is often known to us by thelogic of facts. We must accept it loyally, and do the best wecan to help in our own way to carry it out. We must make ourwill consonant to Allah’s Will. (R).”

100. The students in one of the writ petitions before the HighCourt referred to the following verses from the Holy Quran. Such versesfrom the Book “The Glorious Quran” by Yusuf Ali read as under:

“Surah 34 Verse 31

31. The Unbelievers say: “We shall neither believe in thisscripture nor in (any) that (came) before it.” (3834) Couldstthou but see when the wrong-doers will be made to standbefore their Lord, throwing back the word (of blame)(3835)on one another! Those who had been despised will say tothe arrogant ones: (3836) “Had it not been for you, weshould certainly have been believers!”

3834To the Pagans all scriptures are taboo, whether it be theQur’an or any Revelation that came before it. The people ofthe Book despised the Pagans, but in their arrogant assumptionof superiority, prevented them, by their example, from acceptingthe latest and most universal Scripture when it came in the

form of the Qur’an. This relative position of men who fancythemselves on their knowledge, and men whom they despisebut exploit and mislead, always exists on this earth. I havementioned the people of the Book and the Pagan Arabs merelyby way of illustration.

3835One disbelief is as bad as another. There is little to choosebetween them. But when the final account will be taken, therewill be mutual recriminations between the one and the other.

3836The Pagans will naturally say to the people of the Book;‘You misled us; you had previous Revelations, and you shouldhave known how Allah sent His Messengers; had it not beenfor your bad example, we should have received Allah’sRevelation and become Believers’. Or the humble followerswill say this to their leaders, or those less gifted will say tothose by whom they were misled and exploited. The dichotomyis between such as pretentiously held their heads high in theworld and such as they profited by but held in contempt.

Surah 33 Verse 59

59. O Prophet! Tell thy wives and daughters, and thebelieving women, (3764) that they should cast their outergarments over (3765) their persons (when abroad): that ismost convenient, that they should be known (3766) (as such)and not molested. And Allah is Oft-Forgiving, (3767) MostMerciful.

3764This is for all Muslim women, those of the Prophet’shousehold, as well as the others. They were asked to coverthemselves with outer garments when walking around. (R).

3765J ilbab, plural Jalabib: an outer garment: long gowncovering the whole body, or cloak covering the neck andbosom.

3766The object was not to restrict the liberty of women butto protect them from harm and molestation. In the East andthe West distinctive public dress of some sort or another hasalways been badge of honour or distinction, both among menand women. This can be traced back to the earliest civilisations.Assyrian Law in its palmiest days (say, 7[th ]Century B.C.),enjoined the veiling of married women and forbade the veiling

of slaves and women of ill fame: see Cambridge AncientHistory, III, 107.

3767That is, if Muslim woman sincerely tries to observethis rule, but owing to human weakness falls short of the ideal,then “Allah is Oft-Forgiving, Most Merciful” (Cf.24:30-31).(R).

Surah 7 Verse 26

26. O ye Children of Adam! We have bestowed raiment(1008) upon you to cover your shame, as well as to be anadornment to you. But the raiment of righteousness, - thatis the best. Such are among the Signs of Allah, that theymay receive admonition!

1008There is double philosophy of clothes here, to correspondwith the double signification of verse 20 above, as explained inn. 1006. Spiritually, Allah created man “bare and alone” (6:94):the soul in its naked purity and beauty knew no shame becauseit knew no guilt: after it was touched by guilt and soiled by evil,its thoughts and deeds became its clothing and adornments,good or bad, honest or meretricious, according to the innermotives which gave them colour. So in the case of the body: itis pure and beautiful, as long as it is not defiled by misuse; itsclothing and ornaments may be good or meretricious, accordingto the motives in the mind and character; if good, they are thesymbols of purity and beauty; but the best clothing and ornamentwe could have comes from righteousness, which covers thenakedness of sin, and adorns us with virtues. (R).”

101. The Hedaya, commentary on Islamic Laws, 2[nd ]edition waspublished in April, 1870. The same is available online. The reprint ofsuch publication, word-to-word, line-to-line and page- to-page waspublished in the year 1979 by Kitab Bhavan, New Delhi. The interpretationof the Holy Quran in the Hedaya had been quoted by this Court in anumber of judgments[42]. Volume I, Book VI of Vows is now regulated by

42 Mohd. Hanif Quareshi & Ors. v. State of Bihar, AIR 1958 SC 731;

Valia Peedikakkandi Katheessa Umma & Ors. v. Pathakkalan Narayanath Kunhamu &Ors., AIR 1964 SC 275;

N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 SC 792;and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1

Athe Penal Code (Note at the end of Volume I); Volume II Book VIIIrelating to Larceny stands omitted as now regulated by Penal Code, ActNo. XLV of 1860; Book V and XII dealing Ittak, or the Manumission ofSlaves stands deleted in consequence of the abolition of slavery by ActNo. V of 1843.B102. It is noted that the issue of essential religious practices in thecontext of Islamic law has been raised at earlier instances also beforethis Court, though for other practices. In judgment reported as Mohd.Hanif Quareshi and others v. State of Bihar[43], this Court found thesacrifice of cow to be not obligatory and essential to the religion ofIslam. The Court negated the argument of the appellants when it wasCheld that there is “no material on the record before us which willenable us to say, in the face of the foregoing facts, that the sacrificeof cow on that day in an obligatory overt act for Mussalman toexhibit his religious belief and idea. In the premises, it is not possiblefor us to uphold this claim of the petitioners”. This Court held asDunder:“13. Coming now to the arguments as to the violation of thepetitioners’ fundamental rights, it will be convenient to take upfirst the complaint founded on Article 25(1)…

What then, we inquire, are the materials placed before us toEsubstantiate the claim that the sacrifice of cow is enjoined orsanctioned by Islam? …

............ All that was placed before us during the argument wereSurah XXII, Verses 28 and 33, and Surah CVIII. What the Holybook enjoins is that people should pray unto the Lord and makeFsacrifice. We have no affidavit before us by any Maulana explainingthe implications of those verses or throwing any light on thisproblem. We, however, find it laid down in Hamilton’s translationof Hedaya Book XLIII at p. 592 that it is the duty of every freeMussulman, arrived at the age of maturity, to offer sacrifice onGthe Yd Kirban, or festival of the sacrifice, provided he be thenpossessed of Nisab and be not traveller. The sacrifice establishedfor one person is goat and that for seven cow or camel. It istherefore, optional for Muslim to sacrifice goat for one personor cow or camel for seven persons. It does not appear to be

obligatory that person must sacrifice cow. The very fact of anoption seems to run counter to the notion of an obligatory duty. Itis, however, pointed out that person with six other members ofhis family may afford to sacrifice cow but may not be able toafford to sacrifice seven goats…We have, however, no materialon the record before us which will enable us to say, in the face ofthe foregoing facts, that the sacrifice of cow on that day is anobligatory overt act for Mussalman to exhibit his religious beliefand idea. In the premises, it is not possible for us to uphold thisclaim of the petitioners.”

103. In Mohd. Ahmed Khan v. Shah Bano Begum & Ors.[44],this Court held that the provisions of Muslim Personal Law do notcountenance cases in which the wife is unable to maintain herself afterthe divorce. Though the effect of the said judgment was nullified by aStatute, but the fact remains that the personal law was not approved bythis Court. It was held as under:

“14. These statements in the text books are inadequate to establishthe proposition that the Muslim husband is not under an obligationto provide for the maintenance of his divorced wife, who is unableto maintain herself. One must have regard to the entireconspectus of the Muslim Personal Law in order to determine theextent, both in quantum and in duration, of the husband’s liabilityto provide for the maintenance of an indigent wife who has beendivorced by him. Under that law, the husband is bound to payMahr to the wife as mark of respect to her. True, that he maysettle any amount he likes by way of dower upon his wife, whichcannot be less than 10 Dirhams, which is equivalent to three orfour rupees (Mulla’s Mahomedan Law, Eighteenth Edn., para286, p. 308). But, one must have regard to the realities of life.Mahr is mark of respect to the wife. The sum settled by way ofMahr is generally expected to take care of the ordinaryrequirements of the wife, during the marriage and after. But theseprovisions of the Muslim Personal Law do not countenance casesin which the wife is unable to maintain herself after the divorce.We consider it not only incorrect but unjust, to extend the scopeof the statements extracted above to cases in which divorcedwife is unable to maintain herself. We are of the opinion that the

Aapplication of those statements of law must be restricted to thatclass of cases, in which there is no possibility of vagrancy ordestitution arising out of the indigence of the divorced wife…”

104. The Constitution Bench in judgment reported as Dr. M.Ismail Faruqui & Ors. v. Union of India & Ors.[45]held that offeringBof prayer or worship is religious practice, but its offering at everylocation where such prayers can be offered would not be an essential orintegral part of such religious practice. It was held as under:

“77. It may be noticed that Article 25 does not contain anyreference to property unlike Article 26 of the Constitution. TheCright to practise, profess and propagate religion guaranteed underArticle 25 of the Constitution does not necessarily include theright to acquire or own or possess property. Similarly this rightdoes not extend to the right of worship at any and every place ofworship so that any hindrance to worship at particular place perDse may infringe the religious freedom guaranteed under Articles25 and 26 of the Constitution. The protection under Articles 25and 26 of the Constitution is to religious practice which forms anessential and integral part of the religion. practice may be areligious practice but not an essential and integral part of practiceof that religion.

78. While offer of prayer or worship is religious practice, itsoffering at every location where such prayers can be offeredwould not be an essential or integral part of such religious practiceunless the place has particular significance for that religion soas to form an essential or integral part thereof. Places of worshipFof any religion having particular significance for that religion, tomake it an essential or integral part of the religion, stand on adifferent footing and have to be treated differently and morereverentially.

xxxx

82. … mosque is not an essential part of the practice of thereligion of Islam and namaz (prayer) by Muslims can be offeredanywhere, even in open…”

H45 (1994) 6 SCC 360

105. Later, three-Judges Bench judgment of this Court reportedas Javed & Ors. v. State of Haryana & Ors.[46]negated the argumentthat no religious scripture or authority has been brought to the notice ofthe Court which provides that marrying less than four women or abstainingfrom procreating child from each and every wife would be irreligiousor offensive to the dictates of the religion. It was held as under:

“44. The Muslim law permits marrying four women. The personallaw nowhere mandates or dictates it as duty to perform fourmarriages. No religious scripture or authority has been brought toour notice which provides that marrying less than four women orabstaining from procreating child from each and every wife incase of permitted bigamy or polygamy would be irreligious oroffensive to the dictates of the religion. In our view, the questionof the impugned provision of the Haryana Act being violative ofArticle 25 does not arise...”

106. In Shayara Bano, Justice Nariman, speaking for himselfand Justice Lalit, noted that “a practice does not acquire the sanctionof religion simply because it is permitted” and applied the essentialreligious practices test. It was held as under:

“54. … it is clear that triple talaq is only form of talaq which ispermissible in law, but at the same time, stated to be sinful by thevery Hanafi school which tolerates it. According to Javed [Javedv. State of Haryana, (2003) 8 SCC 369 : 2004 SCC (L&S) 561],therefore, this would not form part of any essential religious practice.Applying the test stated in Acharya Jagadishwarananda [Commr.of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12SCC 770], it is equally clear that the fundamental nature of theIslamic religion, as seen through an Indian Sunni Muslim’s eyes,will not change without this practice.107. Justice Kurian Joseph, concurring with Justices Nariman andLalit, held that on an examination of the Holy Quran and Islamic legalscholarship, the practice of triple talaq could not be considered an essentialreligious practice. He opined that “merely because practice hascontinued for long, that by itself cannot make it valid if it has beenexpressly declared to be impermissible”.

A108. The judgments referred to above had the direct or indirecteffect on modifying the understanding of the verses of the Holy Quran,apart from the statutes mentioned by Mulla in his book referred to above.But I would examine the question that if the believers of the faith hold anopinion that wearing of hijab is an essential religious practice, the questionis whether the students can seek to carry their religious beliefs andBsymbols to secular school.

109. reading of the judgment in Sri Shirur Mutt shows anargument that secular activities which may be associated with religionbut do not really constitute an essential part of it are amenable to Stateregulation. The power to legislate in respect of all secular activities wasCnot accepted. The question examined was the scope of clause (b) ofArticle 26 which speaks of management of its own “affairs in matters ofreligion.” The language undoubtedly suggests that there could be otheraffairs of religious denomination or section thereof which are notmatters of religion and to which the guarantee given by this clause wouldDnot apply. The question is,where is the line to be drawn between whatare matters of religion and what are not. It was held that whatconstitutes an essential part of religion is primarily to be ascertainedwith reference to the doctrines of that religion itself. This Court held asunder:

E“17. … religion undoubtedly has its basis in system of beliefsor doctrines which are regarded by those who profess that religionas conducive to their spiritual well-being, but it would not be correctto say that religion is nothing else but doctrine or belief… Theguarantee under our Constitution not only protects thefreedom of religious opinion but it protects also acts done inFpursuance of religion and this is made clear by the use ofthe expression “practice of religion” in Article 25.”

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xxx

19. … What constitutes the essential part of religion isprimarily to be ascertained with reference to the doctrines ofGthat religion itself. If the tenets of any religious sect of the Hindusprescribe that offerings of food should be given to the idol atparticular hours of the day … all these would be regarded asparts of religion and the mere fact that they involve expenditureof money or employment of priests and servants or the use ofHmarketable commodities would not make them secular activities

partaking of commercial or economic character; all of them arereligious practices and should be regarded as matters of religionwithin the meaning of Article 26(b).”

110. In Ratilal Panachand Gandhi v. State of Bombay[47], it hasbeen held that “religious practices or performances of acts inpursuance of religious belief are as much part of religion as faithor belief in particular doctrines and the distinction between mattersof religion and those of secular administration of religiousproperties may, at times, appear to be thin one. But in cases ofdoubt, the court should take common sense view and be actuatedby considerations of practical necessity.”

111. In judgment reported as Durgah Committee, Ajmer v.Syed Hussain Ali[48], the challenge was to the Durgah Khwaja SahebAct 36 of 1955. The challenge was in respect of freedom guaranteedunder Article 26I and (d) of the Constitution. The property in respect ofwhich claim had been made consisted of offerings made either in oroutside the shrine. This Court quoted from Sri Shirur Mutt to say thatthe word “religion” has not been defined in the Constitution and is termwhich is hardly susceptible of any rigid definition. It was held that thepractices, though religious, may have sprung from merely superstitiousbeliefs and may in that sense be extraneous and unessential accretionsto religion itself, cannot be accepted unless such practices are found toconstitute an essential and integral part of religion and their claim forthe protection under Article 26 may have to be carefully scrutinized. Itwas held that protection must be confined to such religious practices asare an essential and an integral part of it and no other. This Court heldthat Articles 25 and 26 together safeguard the citizen’s right to freedomof religion. It was observed as under:

“33. … …Whilst we are dealing with this point it may not be outof place incidentally to strike note of caution and observe that inorder that the practices in question should be treated as part ofreligion they must be regarded by the said religion as its essentialand integral part; otherwise even purely secular practices whichare not an essential or an integral part of religion are apt to beclothed with religious form and may make claim for beingtreated as religious practices within the meaning of Article 26.

47 AIR 1954 SC 388

48 AIR 1961 SC 1402

ASimilarly, even practices though religious may have sprung frommerely superstitious beliefs and may in that sense be extraneousand unessential accretions to religion itself. Unless such practicesare found to constitute an essential and integral part of areligion their claim for the protection under Article 26 mayhave to be carefully scrutinised; in other words, the protectionBmust be confined to such religious practices as are an essentialand an integral part of it and no other.” (Emphasis Supplied)

112. In Sri Venkataramana Devaru & Ors. v. State of Mysore& Ors.[49], the question examined was whether the right of religiousdenomination to manage its own affairs in matters of religion guaranteedCunder Article 26(b) is subject to, and can be controlled by, law protectedby Article 25(2)(b). This Court held that Article 25 deals with the rightsof individuals and Article 26 protects the rights of denominations. It wasobserved as follows:

“29. The result then is that there are two provisions of equalDauthority, neither of them being subject to the other. The questionis how the apparent conflict between them is to be resolved. Therule of construction is well settled that when there are in anenactment two provisions which cannot be reconciled with eachother, they should be so interpreted that, if possible, effect couldEbe given to both. This is what is known as the rule of harmoniousconstruction. Applying this rule, if the contention of the appellantsis to be accepted, then Article 25(2)(b) will become wholly nugatoryin its application to denominational temples, though, as stated above,the language of that Article includes them. On the other hand, ifthe contention of the respondents is accepted, then full effect canFbe given to Article 26(b) in all matters of religion, subject only tothis that as regards one aspect of them, entry into temple forworship, the rights declared under Article 25(2)(b) will prevail.While, in the former case, Article 25(2)(b) will be put wholly outof operation, in the latter, effect can be given to both that provisionand Article 26(b). We must accordingly hold that Article 26(b)Gmust be read subject to Article 25(2)(b).”113. In later judgment reported as Tilkayat Shri GovindlaljiMaharaj Etc. v. State of Rajasthan & Ors.[50], the validity of Nathdwara

49 AIR 1958 SC 255H50 AIR 1963 SC 1638

Temple Act, 1959 was the subject matter of consideration. It was heldthat the protection under Article 25 is not absolute and the Court mayhave to enquire whether the practice in question is religious in characterand if it is, whether it can be regarded as an integral or essential part ofthe religion. It was held as under:

“55. Articles 25 and 26 constitute the fundamental rights to freedomof religion guaranteed to the citizens of this country. Article 25(1)protects the citizen’s fundamental right to freedom of conscienceand his right freely to profess, practice and propagate religion.The protection given to this right is, however, not absolute. Itis subject to public order, morality and health as Article 25(1) itselfdenotes. It is also subject to the laws, existing or future, which arespecified in Article 25(2)….

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57. In deciding the question as to whether given religiouspractice is an integral part of the religion or not, the testalways would be whether it is regarded as such by thecommunity following the religion or not. This formula may insome cases present difficulties in its operation. Take the case of apractice in relation to food or dress.….. This question will alwayshave to be decided by the Court and in doing so, the Court mayhave to enquire whether the practice in question is religious incharacter and if it is, whether it can be regarded as an integralor essential part of the religion, and the finding of the Courton such an issue will always depend upon the evidenceadduced before it as to the conscience of the community andthe tenets of its religion. It is in the light of this possiblecomplication which may arise in some cases that this Court strucka note of caution in the case of Durgah Committee Ajmer v.Syed Hussain Ali [(1962) 1 SCR 383 at p. 411] and observedthat in order that the practices in question should be treated as apart of religion they must be regarded by the said religion as itsessential and integral part; otherwise even purely secular practiceswhich are not an essential or an integral part of religion are apt tobe clothed with religious form and may make claim for beingtreated as religious practices within the meaning of Article 26.”

DEF

A114. In Acharya Jagdishwaranand Avadhuta & Ors. v.Commissioner of Police, Calcutta & Anr.[51], the question was whetherperformance of Tandava dance is religious rite or practice essential tothe tenets of the religious faith of the followers of Ananda Marga. Suchargument was not accepted, when this Court held that “even concedingthat Tandava dance has been prescribed as religious rite for everyBfollower of the Ananda Marga it does not follow as necessarycorollary that Tandava dance to be performed in the public is amatter of religious rite”. Later, in judgment reported as AcharyaJagadishwarananda Avadhuta-II, it was held that the protectionguaranteed under Articles 25 and 26 of the Constitution is not confinedCto matters of doctrine or belief but extends to acts done in pursuance ofreligion and, therefore, contains guarantee for rituals, observances,ceremonies and modes of worship which are essential or integral part ofreligion. What constitutes an integral or essential part of religion has tobe determined with reference to its doctrines, practices, tenets, historicalbackground of the given religion. This Court held as under:D

“9. … What is meant by “an essential part or practices of religion”is now the matter for elucidation. Essential part of religion meansthe core beliefs upon which religion is founded. Essential practicemeans those practices that are fundamental to follow religiousbelief. It is upon the cornerstone of essential parts or practicesEthat the superstructure of religion is built, without which religionwill be no religion. Test to determine whether part or practice isessential to religion is to find out whether the nature of thereligion will be changed without that part or practice. If the takingaway of that part or practice could result in fundamental changein the character of that religion or in its belief, then such partFcould be treated as an essential or integral part. There cannot beadditions or subtractions to such part because it is the very essenceof that religion and alterations will change its fundamentalcharacter. It is such permanent essential parts which are protectedby the Constitution. Nobody can say that an essential part orGpractice of one’s religion has changed from particular date orby an event. Such alterable parts or practices are definitely notthe “core” of religion whereupon the belief is based and religion isfounded upon. They could only be treated as mere embellishmentsto the non-essential (sic essential) part or practices.”

115. In the Constitution Bench judgment reported as YoungLawyers Association & Ors. (Sabarimala Temple, In Re) v. State ofKerala & Ors.[52], it was held as under:

“208. In clause (1), Article 25 protects the equal entitlementof all persons to freedom of conscience and to freely profess,protect and propagate religion. By conferring this right onall persons, the Constitution emphasises the universal natureof the right. By all persons, the Constitution means exactlywhat it says : every individual in society without distinctionof any kind whatsoever is entitled to the right. By speakingof an equal entitlement, the Constitution places everyindividual on an even platform. Having guaranteed equalitybefore the law and the equal protection of laws in Article 14, thedraftspersons specifically continued the theme of an equalentitlement as an intrinsic element of the freedom of conscienceand of the right to profess, practise and propagate religion. Thereare three defining features of clause (1) of Article 25 : first, theentitlement of all persons without exception, second, therecognition of an equal entitlement; and third, the recognitionboth of the freedom of conscience and the right freely to profess,practise and propagate religion. The right under Article 25(1) isevidently an individual right for, it is in the individual that aconscience inheres. Moreover, it is the individual who professes,practises and propagates religion. Freedom of religion in Article25(1) is right which the Constitution recognises as dwelling ineach individual or natural person.

209. Yet, the right to the freedom of religion is not absolute. Forthe Constitution has expressly made it subject to public order,morality and health on one hand and to the other provisions ofPart III, on the other. The subjection of the individual right to thefreedom of religion to the other provisions of the Part is nuanceddeparture from the position occupied by the other rights to freedomrecognised in Articles 14, 15, 19 and 21. While guaranteeingequality and the equal protection of laws in Article 14 and itsemanation, in Article 15, which prohibits discrimination on groundsof religion, race, caste, sex or place of birth, the Constitution doesnot condition these basic norms of equality to the other provisions

Aof Part III. Similar is the case with the freedoms guaranteed byArticle 19(1) or the right to life under Article 21. The subjectionof the individual right to the freedom of religion under Article 25(1)to the other provisions of Part III was not matter withoutsubstantive content. Evidently, in the constitutional order ofpriorities, the individual right to the freedom of religion was notBintended to prevail over but was subject to the overridingconstitutional postulates of equality, liberty and personal freedomsrecognised in the other provisions of Part III.210. Clause (2) of Article 25 protects laws which existed at theadoption of the Constitution and the power of the State to enactClaws in future, dealing with two categories. The first of thosecategories consists of laws regulating or restricting economic,financial, political or other secular activities which may beassociated with religious practices. Thus, in sub-clause (a) ofArticle 25(2), the Constitution has segregated matters of religiousDpractice 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 secular nature may be regulated orrestricted by law. The fact that these secular activities areassociated with or, in other words, carried out in conjunction withEreligious practice, would not put them beyond the pale of legislativeregulation. The second category consists of laws providing for (i)social welfare and reform; or (ii) throwing open of Hindu religiousinstitutions of public character to all classes and sections ofHindus. The expression “social welfare and reform” is notFconfined to matters only of the Hindu religion. ..............”

116. In Bijoe Emmanuel v. State of Kerala[53], it was held that“Article 25 is an article of faith in the Constitution, incorporated inrecognition of the principle that the real test of true democracy isthe ability of even an insignificant minority to find its identity underGthe country’s Constitution. This has to be borne in mind ininterpreting Article 25". This Court upheld the right of the studentsbelonging to Jehovah’s Witnesses not to sing National Anthem in theschool prayer though the students stood at the time of singing of theNational Anthem. In the said case, the circular of the State Government

dated 18.2.1970 was in question mandating that all schools in the Stateshall have morning assembly and that the whole school shall sing NationalAnthem in the assembly. The circular was not restricted to secular schoolsonly but to all schools. The said judgment is of no help to the argumentsraised as it does not deal with secular schools only.

117. Thus, to sum up, the essential religious practice doctrine wasdeveloped when the State interfered with certain practices qua religiousplaces or religious festivities or performance of religious rituals in publicor where such practices curtailed fundamental rights such as:

(i)In Sri Shirur Mutt, the statute interfered with themanagement of the Mutt.

(ii)In Ratilal Panachand Gandhi, notification issued underthe Bombay Public Trusts Act was under challenged whichcovered the temples and Mutt entitling the Government tocontrol them through the Charity Commissioner.

(iii)In Durgah Committee, the challenge was to theDconstitutional validity of the Dargah Khwaja Saheb Act,1955 on the ground that it interferes with the right ofmanagement of the Durgah.

(iv)In Tilkayat Shri Govindlalji Maharaj, the validity ofNathdwara Temple Act, 1959 was challenged on the groundthat all the properties of the Nathdwara Temple are theprivate properties of the appellant and that the Statelegislature was not competent to enact the Act. It was theargument that even if Nathdwara Temple was held to be apublic temple, the appellant as Mahant or Shebiat had abeneficial interest in the office of the high priest as well asthe properties of the temple as the rights of the appellantunder Articles 14, 19(1)(f) and 31(2) of the Constitution ofIndia have been contravened.

(v)In Dawoodi Bohra, the religious faith and tenets ofDawoodi Bohra community conferring power ofexcommunication from the community on its religious headas part of the management of the religious affairs underArticle 26(b) of the Constitution was upheld.

(vi)The Shayara Bano case relating to triple talaq was inrespect of gender equality granted under Articles 14 and15 of the Constitution of India.

A118. The essential religious practice in the abovementioned casesrelated to (i) right of management of places of worship, (ii) right ofindividual qua places of worship and (iii) curtailment of fundamentalrights of individuals through religious practices. The claim of the appellantsis not to perform religious activity in religious institution but to wearheadscarf in public place as matter of social conduct expected fromBthe believers of the faith. But in the present, the students want to subjugatetheir freedom of choice of dress to be regulated by religion than by theState while they are in fact students of state school. The equalitybefore law is to treat all citizens equally, irrespective of caste, creed, sexor place of birth. Such equality cannot be breached by the State on theCbasis of religious faith.

119. The Constitution has negatively worded Article 25(2). Article25(2)(a) gives primacy to laws made by competent legislature forregulation of secular aspects and Article 25(2)(b) gives primacy to “socialwelfare” and “reform”. In other words, if the State seeks to regulate theDeconomic, political, financial or other secular aspects connected withreligion, the State law is to have primacy over the proposed right. Similarly,if particular practice/belief/part of any religion is in existence and isfound to be subjected to either “social welfare” and “reform”, such rightwill have to give way to “social welfare” and “reform”.E120. It is reiterated that Article 25(2) being negatively couched isclearly an enabling provision which provides the power to the State inthe matters mentioned therein. The said provision does not curtail orrestrict the otherwise positive right under Article 25(1) in the absence ofany intervention by the State in the nature of legislative or executivepower.F

121. Justice H.R. Khanna had quoted the statement of K.Santhanam in Kesavananda Bharati in respect of social revolution toget India out of the medievalism based on factors like birth, religion,custom, and community and reconstruct her social structure on modernfoundations of law, individual merit, and secular education. I find thatGreligion is not to be understood in narrow sectarian sense but byencompassing our ethos that all should be treated alike. Secular Statemeans rising above all differences of religions, and attempting to securethe good of all its citizens irrespective of their religious beliefs andpractices. The faith or belief of person is immaterial from the point ofHview of the State. For the State, all are equal and all are entitled to be

treated equally. The Constitutional promises of social justice, liberty ofbelief, faith or worship and equality of status and of opportunity cannotbe attained unless the State eschews the religion, faith or belief of aperson from its consideration altogether while dealing with him.Secularism is thus more than passive attitude of religious tolerance. Itis positive concept of equal treatment of all religions. Therefore, theobject of the State is to bridge the gap between different sections of thesociety and to harmonize the relationship between the citizens to ensuregrowth of community in all spheres i.e., social, economic and political.122. The appellants have also made comparison with the rightsof the followers of the Sikh faith by arguing that since Kirpan is allowedin terms of Explanation I to Article 25, therefore, the students who wantto wear headscarf should be equally protected as in the case of thefollowers of the Sikh students. The Full Bench of the Punjab & HaryanaHigh Court in Gurleen Kaur & Ors. v. State of Punjab & Ors.[54]heldthat the essential religious practice of the followers of Sikh faith includesretaining hair unshorn, which is one of the most important and fundamentaltenets of the Sikh religion. The Full Bench of the High Court held asunder:

“128 perusal of explanation I under Article 25 of the Constitutionof India reveals, that wearing and carrying “kirpan” by Sikhs isdeemed to be included in the profession of the Sikh religion. Duringthe course of examining historical facts, legislation on the ‘Sikhreligion’, the “Sikh rehatmaryada”. the “Sikh ardas” and the viewsof authors and scholars of the Sikh religion, we arrived at theconclusion that wearing and carrying of “kirpans” though animportant and significant aspect of the Sikh religion, is nowhereclose to the importance and significance of maintaining hairunshorn. If the Constitution of India itself recognizes wearing andcarrying of “kirpans” as part of the profession of the Sikh religion,we have no hesitation, whatsoever, to conclude that wearing hairunshorn must essentially be accepted as fundamentalrequirement in the profession of the Sikh religion. For the presentcontroversy, we hereby, accordingly, hold that retaining hair unshornis one of the most important and fundamental tenets of the Sikhreligion. In fact, it is undoubtedly part of the religiousconsciousness of the Sikh faith.”

A123. It appears that no appeal has been filed against the judgmentof the Full Bench. Thus, the said judgment is final as on today. The issuein the present appeals is not the essential religious practices of the peoplefollowing Sikh faith. It would not be proper to discuss the essentialreligious practices of the followers of the said faith without hearing them.The practices of each of the faith have to be examined on the basis ofBthe tenets of that religion alone. The essential religious practices of thefollowers of Sikh faith cannot be made basis of wearing of hijab/headscarfby the believers of Islamic faith.

124. Mr. Mohd. Nizamuddin Pasha relied upon Constitution Benchjudgment of this Court reported as M. Siddiq (Dead) through LRs.C(Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.[55]wherein this Court held that Courts should not enter into an area oftheology and attempt to interpret religious scriptures. This Court held asunder:

“90. During the course of the submissions, it has emerged that theDextreme and even absolute view of Islam sought to be portrayedby Mr P.N. Mishra does not emerge as the only availableinterpretation of Islamic law on matter of theology. Hence, inthe given set of facts and circumstances, it is inappropriate forthis Court to enter upon an area of theology and to assume theErole of an interpreter of the Hadees. The true test is whetherthose who believe and worship have faith in the religious efficacyof the place where they pray. The belief and faith of the worshipperin offering namaz at place which is for the worshipper mosquecannot be challenged. It would be preposterous for this Court toquestion it on the ground that true Muslim would not offer prayerFin place which does not meet an extreme interpretation of doctrineselectively advanced by Mr Mishra. This Court, as secularinstitution, set up under constitutional regime must steer clearfrom choosing one among many possible interpretations oftheological doctrine and must defer to the safer course of acceptingGthe faith and belief of the worshipper.91. Above all, the practise of religion, Islam being no exception,varies according to the culture and social context. That indeed isthe strength of our plural society. Cultural assimilation is

H55 (2020) 1 SCC 1

significant factor which shapes the manner in which religion ispractised. In the plural diversity of religious beliefs as they arepractised in India, cultural assimilation cannot be construed as afeature destructive of religious doctrine. On the contrary, thisprocess strengthens and reinforces the true character of countrywhich has been able to preserve its unity by accommodating,tolerating and respecting diversity of religious faiths and ideas.There can be no hesitation in rejecting the submission made byMr Mishra. Our Court is founded on and owes its existence to aconstitutional order. We must firmly reject any attempt to lead theCourt to interpret religious doctrine in an absolute and extremeform and question the faith of worshippers. Nothing would be asdestructive of the values underlying Article 25 of the Constitution.”

125. There is no dispute about the proposition canvassed. Thepractice of wearing of hijab may be ‘religious practice’ or an ‘essentialreligious practice’ or it may be social conduct for the women of Islamicfaith. The interpretations by the believers of the faith about wearing ofheadscarf is the belief or faith of an individual. The religious belief cannotbe carried to secular school maintained out of State funds. It is open tothe students to carry their faith in school which permits them to wearHijab or any other mark, may be tilak, which can be identified to personholding particular religious belief but the State is within its jurisdictionto direct that the apparent symbols of religious beliefs cannot be carriedto school maintained by the State from the State funds. Thus, the practiceof wearing hijab could be restricted by the State in terms of theGovernment Order.

Question (v)- Whether fundamental rights of freedom of expressionunder Article 19(1)(a) and right of privacy under Article 21 mutuallyexclusive or are they complementary to each other; and whetherthe Government Order does not meet the injunction ofreasonableness for the purposes of Article 21 and Article 14?

126. It is argued that citizen is entitled to express oneself by notjust wearing dress of her choice, but also in the context of her culturaltraditions, and that such dress which allows others to identify that shebelongs to particular community, embraces particular culture, andrepresents the values of that culture.

127. It is submitted that there cannot be any law which prohibitssuch expression as long as it does not disturb the public order or violates

ABC

Athe accepted norms of decency and morality as prescribed by law. It iscontended that it is the responsibility of the State to protect the compositeculture of India, but the same has been intervened through theGovernment Order, contrary to the rights enshrined in the Constitution.The argument is also as to whether, this right to express herself by wearinga hijab, stops at the school gate and that beyond the school gate, she hasBno right to express herself to convey to others that she embraces acertain culture and she wishes to identify herself with that culture. Suchexpression, at the time when the notification was issued, neither had thetendency to, nor was there any evidence to show that it, in any way,disturbed public order, or was violative of decency or morality. The rightsCand duties conferred under the aforementioned provisions transcendsthe boundaries of the school gate. citizen or student does not foregoher fundamental rights and protections guaranteed under the Constitution,which includes the freedom to express her culture, the moment she stepsinto the school premises. It is also submitted that wearing an article ofclothing, reflecting the distinct culture of citizen, is consistent with theDfundamental right of citizen to conserve her culture under Article 29(1)and it is the fundamental duty of citizens to preserve and protect thatculture which is part of the rich heritage of India.128. The argument of the appellants is based upon the Preambleof the Government Order dated 5.2.2022 wherein it was recited thatEprohibition of headscarf or garment covering the head is not violativeof Article 25 of the Constitution, apart from the fact that it is in terms ofthe Act and the rules framed thereunder. It is also argued that the StateGovernment has not mentioned the role of Popular Front of India in theorder passed, therefore, the State Government is not justified to refer toFPopular Front of India during the course of arguments. In other words,the State cannot supplement the reasons than what is mentioned in theorder.

129. It is averred that the Preamble refers to the three judgmentsof the High Courts as discussed above and judgment of this CourtGreported as Asha Ranjan v. State of Bihar & Ors.[56]. The contention isthat the judgment in Fathima Thasneem (Minor) & Anr. v. The Stateof Kerala & Ors.[57]of the Kerala High Court does not support the standof the State Government, whereas, the judgment in Asha Ranjan is not

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in respect of wearing of headscarf, therefore, to rely upon the saidjudgment to convey that wearing of headscarf is not in violation of Article25 shows complete non-application of mind. The State cannot thussupplement the reasons in support of the prohibition to use headscarfbefore the High Court or before this Court.

130. Reliance has been placed upon Mohinder Singh Gill &Anr. v. Chief Election Commissioner, New Delhi & Ors.[58], wherein itwas held that when statutory functionary makes an order based oncertain grounds, its validity must be judged by the reasons so mentionedand it cannot be supplemented by fresh reasons in the shape of affidavitor otherwise. Otherwise, an order bad in the beginning, may, by the timeit comes to Court on account of challenge, get validated by additionalgrounds later brought out.

131. In Maneka Gandhi v. Union of India & Anr.[59], this Courtheld that even if right is not specifically named in Article 19(1), it maystill be fundamental right covered by some clause of that article, if it isan integral part of named fundamental right. It was observed that“….be that as it may, the law is now settled, as I apprehend it, thatno article in Part III is an island but part of continent, and theconspectus of the whole part gives the direction and correctionneeded for interpretation of these basic provisions. Man is notdissectible into separate limbs and, likewise, cardinal rights in anorganic constitution, which make man human have synthesis. Theproposition is indubitable that Article 21 does not, in givensituation, exclude Article 19 if both rights are breached.”

132. In National Legal Services Authority, this Court held thatArticle 19(1)(a) of the Constitution states that all citizens shall have theright to freedom of speech and expression, which includes one’s right toexpression of his self-identified gender. It was held as under:

“69. Article 19(1) of the Constitution guarantees certainfundamental rights, subject to the power of the State to imposerestrictions from (sic on) exercise of those rights. The rightsconferred by Article 19 are not available to any person who is nota citizen of India. Article 19(1) guarantees those great basic rightswhich are recognised and guaranteed as the natural rights inherent

58 (1978) 1 SCC 405

59 (1978) 1 SCC 248

512SUPREME COURT REPORTS

Ain the status of the citizen of free country. Article 19(1)(a) ofthe Constitution states that all citizens shall have the right tofreedom of speech and expression, which includes one’s right toexpression of his self-identified gender. The self-identified gendercan be expressed through dress, words, action or behaviour orany other form. No restriction can be placed on one’s personalBappearance or choice of dressing, subject to the restrictionscontained in Article 19(2) of the Constitution.”

133. In Devidas Ramachandra Tuljapurkar v. State ofMaharashtra & Ors.[60], this Court held as under:

C“93. Having stated about the test that is applicable to determineobscenity we are required to dwell upon the right to freedom ofspeech and expression. The words, “freedom of speech andexpression” find place in the association words “liberty of thought,expression, belief, faith and worship”, which form part of thePreamble of the Constitution. The Preamble has its own sanctityDand the said concepts have been enshrined in the Preamble.

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99. Interpreting Article 19(1)(a) of the Constitution, the test isalways to see the said article in aid of the Preambular objectivesEwhich form part of the basic structure of the Constitution. Article19(1)(a) is intrinsically linked with the Preambular objectives andit is the duty of the Court to progressively realise the values of theConstitution. In Maneka Gandhi v. Union of India [ManekaGandhi v. Union of India, (1978) 1 SCC 248] , it has been held: (SCC p. 280, para 5)F

“5. … It is indeed difficult to see on what principle we canrefuse to give its plain natural meaning to the expression‘personal liberty’ as used in Article 21 and read it in narrowand restricted sense so as to exclude those attributes of personalliberty which are specifically dealt with in Article 19. We doGnot think that this would be correct way of interpreting theprovisions of the Constitution conferring fundamental rights.The attempt of the Court should be to expand the reach andambit of the fundamental rights rather than attenuate their

H60 (2015) 6 SCC 1

meaning and content by process of judicial construction. Thewavelength for comprehending the scope and ambit of thefundamental rights has been set by this Court in R.C. Coopercase [Rustom Cawasjee Cooper v. Union of India, (1970) 2SCC 298] and ....that each freedom has different dimensionsand there may be overlapping between different fundamentalrights and therefore it is not valid argument to say that theexpression ‘personal liberty’ in Article 21 must be so interpretedas to avoid overlapping between that article and Article 19(1).The expression ‘personal liberty’ in Article 21 is of the widestamplitude and it covers variety of rights which go to constitutethe personal liberty of man and some of them have….”

134. In St. Stephen’s College v. University of Delhi[61], this Courtheld that it is essential that there should be proper mix of students ofdifferent communities in all educational institutions. It has been held asunder:

“81. Even in practice, such claims are likely to be met withconsiderable hostility. It may not be conducive to have relativelyhomogeneous society. It may lead to religious bigotry which is thebane of mankind. In the nation building with secular charactersectarian schools or colleges, segregated faculties or universitiesfor imparting general secular education are undesirable and theymay undermine secular democracy. They would be inconsistentwith the central concept of secularism and equality embedded inthe Constitution. Every educational institution irrespective ofcommunity to which it belongs is ‘melting pot’ in our nationallife. The students and teachers are the critical ingredients. It isthere they develop respect for, and tolerance of, the cultures andbeliefs of others. It is essential therefore, that there should beproper mix of students of different communities in all educationalinstitutions.”135. In Navtej Singh Johar & Ors. v. Union of India[62], thefreedom of expression was referred to observe that the transgenderpersons have right to express their self-identified gender by way ofspeech, mannerism, behavior, presentation and clothing, etc. The said

61 (1992) 1 SCC 55862 (2018) 10 SCC 1

Ajudgment was relied upon to submit that the right to wear particularclothing emerges from the right of dignity enshrined under Article 21 ofthe Constitution. It was held as under:

“641.2. In National Legal Services Authority v. Union of India[National Legal Services Authority v. Union of India, (2014) 5BSCC 438], this Court noted that gender identity is an importantaspect of personal identity and is inherent to person. It was heldthat transgender persons have the right to express their self-identified gender by way of speech, mannerism, behaviour,presentation and clothing, etc. [Ibid, paras 69-72.] The Court alsonoted that like gender identity, sexual orientation is integral to one’sCpersonality, and is basic aspect of self- determination, dignityand freedom. [Ibid, para 22.] The proposition that sexual orientationis integral to one’s personality and identity was affirmed by theConstitution Bench in K.S. Puttaswamy v. Union of India [K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1, paras 144, 145Dand 647.].”

136. The object of the Act is to maintain discipline and controlover the educational institutions in the State with view to foster theharmonious development of the mental and physical faculties of thestudents. Therefore, discipline and control are with regard to educationalEinstitutions, and not with regard to students. In terms of Section 5 of theAct, the State Government’s endeavor is to promote the education ofthe handicap, backward classes and the weaker sections of the societyincluding the economically weaker sections, whereas curricula underSection 7 includes promotion of national integration and inculcation ofthe sense of the duties of the citizens, enshrined under Article 51 of theFConstitution. It is also pointed out that the State provides uniform to allthe students from Class I to Class X as part of its social obligations andto maintain parity with all students studying in the Government Schoolswithout any distinction of caste, creed, sex or religion.

137. Sections 15(b) and 39 (b) & (c) of the Act delineate theGcircumstances for the reasonable excuse for non-attendance of the childat an approved school. One of the accepted excuses is when religiousinstructions not approved by his parents are made compulsory. Sections39 (1)(b) and (c) deals with withdrawal of recognition to such schoolswhich deny admission to any citizen on grounds of religion, race, caste,Hlanguage or where there is direct or indirect encouragement in the

educational institution of any propaganda or practice wounding thereligious feelings of any class of citizens of India.

138. Rule 11 of the Rules has mandated the recognized educationalinstitutions including private institutions to prescribe uniforms. Once theuniform is fixed, it is provided that it shall not be changed for the periodof next five years and when it is intended to be changed, notice for thesame shall be given to the parents at least one year in advance. It is thusargued that specifications regarding disallowance of hijab was appliedabruptly at the end of the academic section and also appliedretrospectively when the girls had been stopped from entering school onor about 31.12.2021, though the Government Order was notified on5.2.2022.139. I do not find any merit in the above arguments raised by theappellants. The Government order is in exercise of the executive powersof the State. The reasons for an enactment of Statute, Rules andstatutory order are not required to be part of it. It is only when the issueof constitutionality is raised, the executive is required to satisfy the Courtabout the legality of action taken. The right under Article 19(1)(a) as aright of expression to dress as per one’s own will, however, is also subjectto reasonable restrictions under sub-clause (2) of Article 19. The Statehas not put restriction on the exercise of right conferred under Article19(1)(a) but has regulated the same in manner that during the schoolhours on working days and in the class, the students shall wear theuniform as prescribed. Since it is regulatory provision for wearing ofuniform, hence, the decision of the State Government mandating theCollege Development Committee to ensure the students wear the uniformas prescribed does not violate the freedom guaranteed under Article19(1)(a), rather reinforces the right to equality under Article 14. TheCollege Development Committee is constituted in terms of the statutoryprovisions and, therefore, the direction of the State that the CollegeDevelopment Committee shall ensure that the students wear the dressas prescribed cannot be said to be violative of Part III of the Constitution.

140. The test of invasion of Article 19(1)(a) is required to beexamined by the test of doctrine of Pith and Substance in view of thejudgment of this Court reported as Bachan Singh v. State of Punjab[63]wherein this Court held as under:

A“60. From survey of the cases noticed above, comprehensivetest which can be formulated, may be restated as under:

“Does the impugned law, in its pith and substance, whatever maybe its form and object, deal with any of the fundamental rightsconferred by Article 19(1)? If it does, does it abridge or abrogateBany of those rights? And even if it does not, in its pith and substance,deal with any of the fundamental rights conferred by Article 19(1),is the direct and inevitable effect of the impugned law such as toabridge or abrogate any of those rights?”

The mere fact that the impugned law incidentally, remotely orCcollaterally has the effect of abridging or abrogating those rights,will not satisfy the test. If the answer to the above queries be inthe affirmative, the impugned law in order to be valid, must passthe test of reasonableness under Article 19. But if the impact ofthe law on any of the rights under clause (1) of Article 19 ismerely incidental, indirect, remote or collateral and is dependentDupon factors which may or may not come into play, the anvil ofArticle 19 will not be available for judging its validity.”

(Emphasis Supplied)

141. It is to be observed that the Act, Rules and the orders issuedEunder the said Act were enacted to provide for better organization,development, discipline and control of the educational institutions in theState. The primary object was encouraging holistic development througheducation and its various facets. The prescribing of uniform is only anincidental action in furtherance of the core object of the Act. Therefore,keeping in view Bachan Singh, some incidental effect on the right underFArticle 19(1)(a) cannot be said to be an unreasonable restriction, alsobeing mindful of the fact that it is not an absolute right.

142. The freedom of expression under Article 19(1)(a) of theConstitution means right to express one’s opinions by word of mouth,printing, picture, or in any other manner. It includes the freedom ofGcommunication and the right to propagate or publish one’s opinion. Thecommunication of ideas could be made through any medium, newspaper,magazine or movie. Such right is though subject to reasonable restrictionson grounds set out under Article 19(2) of the Constitution[64].

H64 S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 547

143. Further, the right to privacy as crystallized in the ConstitutionBench judgment of K.S. Puttaswamy has to be read in the context ofother provisions of the Constitution in the present appeals. This Courtlaid down as under:

“298. ……………The freedoms under Article 19 can be fulfilledwhere the individual is entitled to decide upon his or herpreferences. Read in conjunction with Article 21, liberty enablesthe individual to have choice of preferences on various facetsof life including what and how one will eat, the way one will dress,the faith one will espouse and myriad other matter on whichautonomy and self-determination require choice to be made withinthe privacy of the mind. The constitutional right to the freedom ofreligion under Article 25 has implicit within it the ability to choosea faith and the freedom to express or not express those choices tothe world. These are some illustrations of the manner in whichprivacy facilitates freedom and is intrinsic to the exercise of liberty.The Constitution does not contain separate article telling us thatprivacy has been declared to be fundamental right. Nor havewe tagged the provisions of Part III with an alpha-suffixed rightto privacy: this is not an act of judicial redrafting. Dignity cannotexist without privacy. Both reside within the inalienable values oflife, liberty and freedom which the Constitution has recognised.Privacy is the ultimate expression of the sanctity of the individual.It is constitutional value which straddles across the spectrum offundamental rights and protects for the individual zone of choiceand self-determination.

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377. It goes without saying that no legal right can be absolute.Every right has limitations. This aspect of the matter is concededat the Bar. Therefore, even fundamental right to privacy haslimitations. The limitations are to be identified on case-to-casebasis depending upon the nature of the privacy interest claimed.There are different standards of review to test infractions offundamental rights. While the concept of reasonablenessoverarches Part III, it operates differently across Articles (evenif only slightly differently across some of them). Havingemphatically interpreted the Constitution’s liberty guarantee tocontain fundamental right to privacy, it is necessary for me to

outline the manner in which such right to privacy can be limited.I only do this to indicate the direction of the debate as the natureof limitation is not at issue here.

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526. But this is not to say that such right is absolute. This right isBsubject to reasonable regulations made by the State to protectlegitimate State interests or public interest. However, when it comesto restrictions on this right, the drill of various articles to which theright relates must be scrupulously followed. For example, if therestraint on privacy is over fundamental personal choices that anindividual is to make, State action can be restrained under ArticleC21 read with Article 14 if it is arbitrary and unreasonable; andunder Article 21 read with Article 19(1)(a) only if it relates to thesubjects mentioned in Article 19(2) and the tests laid down by thisCourt for such legislation or subordinate legislation to pass musterunder the said article. Each of the tests evolved by this Court, quaDlegislation or executive action, under Article 21 read with Article14; or Article 21 read with Article 19(1)(a) in the aforesaidexamples must be met in order that State action pass muster. Inthe ultimate analysis, the balancing act that is to be carried outbetween individual, societal and State interests must be left to theEtraining and expertise of the judicial mind.

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639. The right to privacy as already observed is not absolute. Theright to privacy as falling in Part III of the Constitution may,depending on its variable facts, vest in one part or the other, andFwould thus be subject to the restrictions of exercise of that particularfundamental right. National security would thus be an obviousrestriction, so would the provisos to different fundamental rights,dependent on where the right to privacy would arise. The publicinterest element would be another aspect.”

G144. In Constitution Bench judgment reported as I.R. Coelho v.State of Tamil Nadu[65], this Court held that it can no longer be statedthat protection provided by fundamental rights comes in isolated pools.On the contrary, these rights together provide comprehensive guaranteeagainst excesses by State authorities. This Court held as under:

H65 (1999) 7 SCC 580

“60. It is evident that it can no longer be contended that protectionprovided by fundamental rights comes in isolated pools. On thecontrary, these rights together provide comprehensive guaranteeagainst excesses by state authorities. Thus post-Maneka Gandhi’scase it is clear that the development of fundamental rights hasbeen such that it no longer involves the interpretation of rights asisolated protections which directly arise but they collectively forma comprehensive test against the arbitrary exercise of state powerin any area that occurs as an inevitable consequence. Theprotection of fundamental rights has, therefore, been considerablywidened.”

145. Thus, the rights of citizens of this country cannot becompartmentalized into one right or the other. The rights of citizens haveto be read together so as to provide purposeful meaning to Part III ofthe Constitution. Thus, all the Fundamental Rights under Part III of theConstitution are to be read in aid of each other. They constitute bouquetof rights which can’t be read in isolation and have to be read together asa whole.

146. However, it is to be noted that none of the fundamental rightsis absolute. The curtailment of the right is permissible by following dueprocedure which can withstand the test of reasonableness. The intentand object of the Government Order is only to maintain uniformity amongstthe students by adherence to the prescribed uniform. It is reasonable asthe same has the effect of regulation of the right guaranteed under Article19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a)and of privacy under Article 21 are complementary to each other andnot mutually exclusive and does meet the injunction of reasonablenessfor the purposes of Article 21 and Article 14.

Question (vi)- Whether the Government Order impinges uponConstitutional promise of fraternity and dignity under the Preambleas well as fundamental duties enumerated under Article 51-A sub-clauses (e) and (f)?

147. Mr. Ahmadi has argued that the impugned Government Orderdated 5.2.2002 impinges upon the constitutional promise of “Fraternity”as mentioned in the Preamble as well as in the fundamental dutiesenumerated in Article 51A (e) and (f). It is argued that the liberty, equalityand fraternity is the trinity of the constitutional values to invoke horizontaland social sensitivity towards inequalities. It is contended that liberty is

Aof thought, expression, belief, faith and worship; equality is of status andopportunity; and fraternity assures dignity of the individual.

148. In Indra Sawhney, Hon. Justice P.B. Sawant in his ordersaid that “inequality ill-favours fraternity, and unity remains dreamwithout fraternity. The goal enumerated in the Preamble of theBConstitution, of fraternity assuring the dignity of the individual andthe unity and integrity of the nation must, therefore, remainunattainable so long as the equality of opportunity is not ensuredto all.” (para 412).

149. This Court in judgment reported as Subramanian SwamyCv. Union of India, Ministry of Law & Ors.[66]had the occasion to interpretthe term “fraternity” (ca/kqrk) as the constitutional value which is to becultivated by the people themselves as part of their social behavior. It isto be understood in the breed of homogeneity in positive sense and notto trample dissent and diversity. This Court observed as under:

D“153. The term “fraternity” has significant place in the historyof constitutional law. It has, in fact, come into prominence afterthe French Revolution. The motto of Republican Franceechoes:”Liberté, égalité, fraternité”, or “Liberty, equality,fraternity”. The term “fraternity” has an animating effect in theconstitutional spectrum. The Preamble states that it is aEconstitutional duty to promote fraternity assuring the dignity ofthe individual. Be it stated that fraternity is Preambulatorypromise….

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156. Fraternity as concept is characteristically different fromFthe other constitutional goals. It, as constitutional concept, has akeen bond of sorority with other concepts. And hence, it must beunderstood in the breed of homogeneity in positive sense andnot to trample dissent and diversity. It is neither isolated nor lonely.The idea of fraternity is recognised as constitutional norm and aGprecept. It is constitutional virtue that is required to be sustainedand nourished.

157. It is constitutional value which is to be cultivated by thepeople themselves as part of their social behaviour. There are

two Schools of Thought; one canvassing individual liberalisationand the other advocating for protection of an individual as memberof the collective. The individual should have all the rights underthe Constitution but simultaneously he has the responsibility tolive up to the constitutional values like essential brotherhood—thefraternity—that strengthens the societal interest. Fraternity meansbrotherhood and common interest. Right to censure and criticisedoes not conflict with the constitutional objective to promotefraternity. Brotherliness does not abrogate and rescind

the concept of criticism. In fact, brothers can and should be critical.Fault-finding and disagreement is required even when it leads toan individual disquiet or group disquietude. Enemies EnigmasOneginese on the part of some does not create dent in the ideaof fraternity but, significant one, liberty to have discordantnote does not confer right to defame the others. The dignity ofan individual is extremely important.

161. The concept of fraternity under the Constitution expects everycitizen to respect the dignity of the other. Mutual respect is thefulcrum of fraternity that assures dignity. It does not mean thatthere cannot be dissent or difference or discordance or differentvoice. It does not convey that all should join the chorus or sing thesame song. Indubitably not. One has right to freedom of speechand expression. One is also required to maintain the constitutionalvalue which is embedded in the idea of fraternity that assures thedignity of the individual. One is obliged under the Constitution topromote the idea of fraternity. It is constitutional obligation.”150. Reference is also made to another three-Judges Benchjudgment of this Court in Prathvi Raj Chauhan v. Union of India &Ors.[67]wherein it is observed that there is preambular assurance thatthe republic would be one which guarantees to its people liberty, dignity,equality of status and opportunity and fraternity. It is fraternity, poignantlyembedded through the provisions of Part III, which assures true equality,where the State treats all alike, assures the benefits of growth andprosperity to all, with equal liberties to all, and what is more, whichguarantees that every citizen treats every other citizen alike. This Courtheld as under:

“15. ................ That is why the preambular assurance that therepublic would be one which guarantees to its people liberties,dignity, equality of status and opportunity and fraternity.

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B17. The making of this provision—and others, in my view, isimpelled by the trinity of the preambular vision that the ConstitutionMakers gave to this country. .................. In my opinion, all thethree—Liberty, Equality and Fraternity, are intimately linked. Theright to equality, sans liberty or fraternity, would be chimerical—as the concept presently known would be reduced to equalityCamong equals, in every manner—a mere husk of the grand visionof the Constitution. Likewise, liberty without equality or fraternity,can well result in the perpetuation of existing inequalities and worse,result in licence to indulge in society’s basest practices. It isfraternity, poignantly embedded through the provisions of Part III,Dwhich assures true equality, where the State treats all alike, assuresthe benefits of growth and prosperity to all, with equal liberties toall, and what is more, which guarantees that every citizen treatsevery other citizen alike.

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34. ................... It is to address problems of segmented society,that express provisions of the Constitution which give effect tothe idea of fraternity, or bandhutva (ca/kqRo) referred to in thePreamble, and statutes like the Act, have been framed. Theseunderline the social — rather collective resolve — of ensuringFthat all humans are treated as humans, that their innate genius isallowed outlets through equal opportunities and each of them isfearless in the pursuit of her or his dreams. The question whicheach of us has to address, in everyday life, is can the prevailingsituation of exclusion based on caste identity be allowed to persistGin democracy which is committed to equality and the rule oflaw? If so, till when? And, most importantly, what each one of uscan do to foster this feeling of fraternity amongst all sections ofthe community without reducing the concept (of fraternity) to aritualistic formality, tacit acknowledgment, of the “otherness”of each one’s identity.”

151. The impugned Government Order was said to be an anti-thesis of diversity, though based upon misunderstood fraternal behaviorwhen it is asserted that all the school students studying in the State ofKarnataka should behave in fraternal manner, transcend their groupidentity and develop an orientation towards social justice. It is arguedthat the Government Order suggests that the ethic of fraternity is bestserved by complete erasure of all differences. It does not mean ‘flatteningout of differences’, or forced assimilation. Reference was made to ajudgment of this Court reported as Tehseen S. Poonawalla v. Union ofIndia & Ors.,[68]wherein it was held that the aim of our Constitution isunity in diversity and to impede any fissiparous tendencies for enrichingthe unity amongst Indians by assimilating the diversities. It was alsoargued that the Government Order uses the words ‘unity’ and ‘uniformity’interchangeably and that uniformity is not constitutional or statutorymandate, and has no nexus with unity. It is argued that plurality of voicescelebrates the constitutionalist idea of liberal democracy and the sameought not to be suppressed. This Court held as under:

“21. Freedom of speech and expression in different forms is theélan vital of sustenance of all other rights and is the very seed forgerminating the growth of democratic views. Plurality of voicescelebrates the constitutionalist idea of liberal democracy andought not to be suppressed. That is the idea and essence of ournation which cannot be, to borrow line from Rabindranath Tagore,“broken up into fragments by narrow domestic walls” of caste,creed, race, class or religion. Pluralism and tolerance are essentialvirtues and constitute the building blocks of truly free anddemocratic society. It must be emphatically stated that dynamiccontemporary constitutional democracy imbibes the essentialfeature of accommodating pluralism in thought and approach soas to preserve cohesiveness and unity. Intolerance arising out ofa dogmatic mindset sows the seeds of upheaval and has chillingeffect on freedom of thought and expression. Hence, tolerancehas to be fostered and practised and not allowed to be diluted inany manner.

524SUPREME COURT REPORTS

A26. In the obtaining situation, the need to preserve and maintainunity amongst the fellow citizens of our country, who representdifferent castes, creed and races, follow different religions anduse multiple languages, ought to be discussed and accentuated. Itis requisite to state that our country must sustain, exalt andcelebrate the feeling of solidarity and harmony so that the spirit ofBoneness is entrenched in the collective character. Sans suchharmony and understanding, we may unwittingly pave the path ofdisaster.

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C28. “Unity” in the context of nation means unity amongst thefellow citizens. It implies integration of the citizens whereby thecitizens embrace feeling of “We” with sense of bonding withfellow citizens which would definitely go long way in holding theIndian society together. Emile Durkheim, French sociologist, hassaid that when unity is based on heterogeneity and diversity, it canDvery well be described as organic solidarity. Durkheim’s viewwould be acceptable in the context of the Indian society as itexhibits completely organic social solidarity.

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E31. Unity in Diversity must be recognized as the most potentweapon in India’s armoury which binds different and varied kindsof people in the solemn thread of humanity. This diversity is thestrength of our nation and for realising this strength, it is sine quanon that we sustain it and shun schismatic tendencies. It has to beFremembered that the unique feature of “Unity in Diversity”inculcates in the citizens the virtue of respecting the opinions andchoices of others. Such respect imbibes the feeling of acceptanceof plurality and elevates the idea of tolerance by promoting socialcohesion and infusing sense of fraternity and comity.”

152. Reliance is also placed upon the judgments of this CourtGreported as St. Stephen’s College, Sri Adi Visheshwara of KashiVishwanath Temple, and State of Karnataka & Anr. v. Dr. PraveenBhai Thogadia[69]wherein the concept of unity in diversity was held tobe the Constitutional aim. It was submitted that unity in diversity is the

H69 (2004) 4 SCC 684

most potent weapon in India’s armoury which binds different and variedkinds of people in the solemn thread of humanity. Unity in diversityinculcates in the citizens the virtue of respecting the opinions and choicesof others. Such respect imbibes the feeling of acceptance of pluralityand elevates the idea of tolerance by promoting social cohesion andinfusing sense of fraternity and comity.

153. Referring to National Education Policy, 2020, it is arguedthat the schools are spaces of diversity and critical thinking. It is fraternalfree thinking public places as the needs and expectations are different.The policy does not mention ‘uniform’ or ‘discipline’. The fundamentalprinciples which will guide the Indian Education System as well asindividual institutions are as under:

“2. full equity and inclusion as the cornerstone of all educationaldecisions to ensure that all students are able to thrive in theeducation system;

Ethics and human & Constitutional values like empathy, respectfor others, cleanliness, courtesy, democratic, spirit, spirit of service,respect for public property, scientific temper, liberty, responsibility,pluralism, equality, and justice;

6.12. Students will be sensitized through this new school culture,brought in by teachers, trained social workers and counsellors aswell as through corresponding changes to bring in an inclusiveschool curriculum. The school curriculum will include, early on,material on human values such as respect for all persons, empathy,tolerance, human rights, gender, equality, non-violence, globalcitizenship, inclusion, and equity. It would also include more detailedknowledge of various cultures, religions, languages, genderidentities, etc. to sensitize and develop respect for diversity. Anybiases and stereotypes in school curriculum will be removed andmore material will be included that is relevant and relatable to allcommunities.

3.4. Once infrastructure and participation are in place, ensuringquality will be the key in retention of students, so that they(particularly, girls and students from other socio-economicallydisadvantaged groups) do not lose interest in attending school.This will require system of incentives for deploying teacherswith knowledge of the local language to areas with high dropout

[2022] 5 S.C.R.

Arates, as well as overhauling the curriculum to make it moreengaging and useful.”

154. In K.S. Puttaswamy, the distinction between private andpublic spaces was drawn and it was stated that both must be free to theextent that there should be freedom to think, without any direct or indirectBpressures on thought and belief. Thus, the schools must give studentsthe privacy and the freedom to think about their choices. Therefore, theGovernment Order creates an arbitrary barrier to education and tofraternal spaces.

155. Not disputing with the above observations, it is important toCinterpret the expressions ‘fraternity’ and ‘dignity’ in view of the objectivebehind the Government Order. The concept of fraternity and dignity donot stand alone but have to be inferred from the context, circumstancesand the purpose sought to be achieved. There is no dispute, as assertedin the written submissions, that the purpose of introducing fraternity as aconstitutional value is to invoke horizontal or social sensitivity towardsDinequalities, in addition to the vertical, or top-down political prescriptionstowards inequalities. Fraternity is in fact social sensitivity. The studentsherein are in the age group of 15 to 18 years. The seed of educationshould germinate equally amongst all students. Therefore, the Preambulargoal of justice, liberty, equality or fraternity would be better served byEremoving any religious differences, inequalities and treating students alikebefore they attain the age of adulthood.

156. The students have been given uniform platform to growand take quantum leap in their further pursuits. The homogeneity amongstthe students in the matter of uniform would prepare them to grow withoutFany distinction on the basis of religious symbols, if not worn during theclassroom studies in Pre- University College.

157. Still further, the Hindi word of fraternity is ^^ca/kqRo** that isbrotherhood. Brotherhood is amongst all the citizens of the Country andnot of particular community. Fraternity is the antithesis of segmentedGsociety wherein all humans are treated equally and their innate genius isallowed an outlet by exposing them to equal opportunities.

158. The argument is that the appellants seek equal access topublic education where they would have the opportunity to fraternizeacross religious, class and gender boundaries, an opportunity which wouldHnot be available to them if they were to transfer to religious schools.

Hence, the Government Order has created an arbitrary barrier toeducation and to fraternal spaces.

159. I do not find any merit in the argument raised. Fraternity is anoble goal but cannot be seen from the prism of one community alone. Itis goal for all citizens of the country irrespective of caste, creed, sexand religion. The abstract idea of fraternity, as discussed in the judgmentsreferred to by learned counsel for the appellants, has to be applied to theground realities wherein some students wearing headscarf in secularschool run by the State Government would stand out and overtly appeardifferently. The concept of fraternity will stand fragmented as theapparent distinction of some of the students wearing headscarf wouldnot form homogenous group of students in school where education isto be imparted homogeneously and equally, irrespective of any religiousidentification mark. The Constitutional goal of fraternity would bedefeated if the students are permitted to carry their apparent religioussymbols with them to the classroom. None of the judgments referred toby the learned counsel for the appellants deal with an issue of fraternityin respect of section of the citizens who wish to carry their religioussymbols to classroom. The Constitutional goal as emanating from thePreamble would not be achieved if fraternity is given narrow meaningin respect of the students identifying themselves with the religious symbolsin the classroom.160. I do not find any merit in the argument raised that the use ofthe phrase “behave in fraternal manner by transcending their groupidentity as the young students” in the impugned Order can be said to beviolative of any law. Before student goes for higher studies in colleges,she should not grow with specific identity, but under the umbrella ofequality guaranteed under Article 14 transcending the group identity.Religion, which is private affair, has no meaning in secular school runby the State. The students are free to profess their religion and carry outtheir religious activities other than when they are attending classroomwhere religious identities should be left behind.

161. Accordingly, I do not find that the Government Order impingeson the Constitutional promise of fraternity and dignity. Instead, it promotesan equal environment where such fraternal values can be imbibed andnurtured without any hindrance of any kind.

A162. Though, it is argued that wearing of piece of cloth on thehead does not violate or contravene the uniform prescribed. The dictionarymeaning of word ‘Uniform’ is as under:

�Blacks Law Dictionary (Uniform, Adjective)

Conforming to one rule, mode, or unvarying standard; notdifferent at different times or places; application to all placesor divisions of country.

�Cambridge English Dictionary (Uniform, noun)

particular set of clothes that has to be worn by themembers of the same organization or group of people. Atype of clothes that is connected with particular group ofpeople.

�Merriam Webster Dictionary

(Uniform, noun) Dress of distinctive design or fashionworn by members of particular group and serving as ameans of identification.

(Adjective) Having always the same form, manner ordegree: not varying or variable. Of the same form withothers- conforming to one rule or more. Presenting anunvaried appearance of surface, pattern or color. (eg.-uniform procedures, uniform red brick houses)

163. The issue as to whether person professing Islam can supportFa beard as member of the Indian Air Force came up for considerationbefore the Single Bench of the Punjab and Haryana High Court in No.786505-N Leading Aircraftsman Ansari Aaftab Ahmed v. Unionof India & Ors.[70]. The Single Bench referred to the principles ofIslam by Maulana Wahiduddin Khan from his book “Islam the Voice ofHuman Nature” and the rules applicable to the airmen to hold that growingGof beard violates the norms of uniform. Accordingly, the writ petitionswere dismissed. An intra-court appeal was also dismissed[71]. The mattercame up for hearing before this Court in judgment reported as

70 2008 L.I.C. 4004 (CWP No. 14927 of 2005 decided on 14.7.2008)H71 LPA No. 196 of 2008 decided on 31.7.2008

Mohammed Zubair Corporal No. 781467-G v. Union of India &Ors.[72]. This Court dismissed the appeal finding no reason to take viewof the matter at variance with the view taken by the High Court. It wasnoticed that there are varying interpretations, one of which is that it isdesirable to maintain beard. Therefore, in respect of an airman employedby the Indian Air Force, beard was not found permissible in terms of theRules framed.

164. The uniform prescribed would lose its meaning if the studentis permitted to add or subtract any part of uniform. The schools arenurseries for training the citizen for future endeavours. If, the norms ofthe uniform in the school are permitted to be breached, then what kindof discipline is sought to imparted to the students. The freedom ofexpression guaranteed under Article 19(1)(a) does not extend to thewearing of headscarf. Once the uniform is prescribed, all students arebound to follow the uniform so prescribed. The uniform is to assimilatethe students without any distinction of rich or poor, irrespective of caste,creed or faith and for the harmonious development of the mental andphysical faculties of the students and to cultivate secular outlook. Thewearing of hijab is not permitted only during the school time, therefore,the students can wear it everywhere else except in schools. The wearingof anything other than the uniform is not expected in schools run by theState as secular institution. In secular school maintained at the costof the State, the State is competent to not permit anything other than theuniform.

165. The argument that the wearing of headscarf provides dignityto the girl students is also not tenable. The students are attending an all-girls’ college. The students are at liberty to carry their religious symbolsoutside the schools but in pre-university college, the students should lookalike, feel alike, think alike and study together in cohesive cordialatmosphere. That is the objective behind uniform, so as to bring aboutuniformity in appearances.

Question (vii)- Whether, if the wearing of hijab is considered as anessential religious practice, the student can seek right to wearheadscarf to secular school as matter of right?

166. The argument is that hijab is an additional cloth worn on thehead, and that it does not cause any harm to any other person. The

Aargument is based upon Conscience & Religion (Article 25), Culture(Articles 29 and 51-A(f)), Identity (Articles 19 and 21 - Autonomy,Dignity, Choice) and Secularism (Articles 19 and 21 - Autonomy, Dignity,Choice), therefore, the students have been wrongly denied admission toan educational institution on the basis of religion. The contention of thestudents is that by denying the right to wear headscarf, they have alsoBbeen denied to attend the classes which stand foul with the mandate ofclause (2) of Article 29.

167. I do not find any merit in the said argument. The schools runby the State are open for admission irrespective of any religion, race,caste, language or any of them. Even the Act mandates that the studentsCwould be admitted without any restriction on such grounds. However,the students are required to follow the discipline of the school in thematter of uniform. They have no right to be in the school in violation ofthe mandate of the uniform prescribed under the Statute and the Rules.

168. In M. Ajmal Khan v. The Election Commission of India,Drep. by its Chief Election Commissioner, New Delhi-I & Ors.[73], thechallenge was to the Elector Roll with photographs particularly of MuslimGosha Women in the eligible voters’ list. The argument was that wearingof purdah by Muslim women is one of the principles laid down in HolyQuran and it has to be strictly followed by Muslim women. Therefore,any interference with such religious practice would amount to interferingEwith the fundamental right of the Muslim women, which is guaranteedunder Article 25 of the Constitution of India. The Madras High Courtdismissed such writ petition holding that such direction of the ElectionCommission is not violative of Article 25 of the Constitution. It was heldthat “the decision of the Election Commission of putting the photographsFin the electoral roll was taken with view to improving the fidelity of theelectoral rolls and to check impersonation and eradicate bogus voting.Hence, the argument of the learned counsel that the decision violatesthe right to privacy is required to be rejected”. The said judgment thoughis in the context of elections but the ratio thereof is applicable to thepresent matters, the education to school by the State is constitutionalGmandate to be carried out in non- discriminatory manner irrespectiveof caste, sex and religion.

169. The State has not denied admission to the students fromattending classes. If they choose not to attend classes due to the uniformH73 2006 SCC OnLine Mad 794 : (2006) 5 CTC 121

that has been prescribed, it is voluntary act of such students and cannotbe said to be in violation of Article 29 by the State. It is not denial ofrights by the State but instead voluntary act of the students. It wouldthus not amount to denial of right to education if student, by choice,does not attend the school. student, thus, cannot claim the right towear headscarf to secular school as matter of right.

Question (viii)- Whether student-citizen in the constitutional schemeis expected to surrender her fundamental rights under Articles 19,21 and 25 as pre-condition for accessing education in Stateinstitution?

170. Mr. Shoeb Alam argued that in the Constitutional scheme,there cannot be any barter of fundamental rights for the enjoyment of aprivilege or right. It is argued that the State cannot attach conditionof barter for the grant of access to school/education available to studentunder Article 21 and, in return, ask for girl child to cede her right towear the hijab inside the school, which is her fundamental right to privacy,dignity and autonomy. Reliance was placed upon judgment of this Courtreported as Re the Kerala Education Bill, 1957 - Reference underArticle 143(1) of the Constitution of India[74]dealing with the issue ofKerala Education Bill. The provision authorized the State to take overthe management of the educational institution as pre-condition forrecognition and aid to the educational institution. This Court said to thefollowing effect:“31. … Therefore, the conditions imposed by the said Bill on aidedinstitutions established and administered by minority communities,like the Christians, including the Anglo-Indian community, will leadto the closing down of all these aided schools unless they areagreeable to surrender their fundamental right of management.No educational institution can in actual practice be carried onwithout aid from the State and if they will not get it unless theysurrender their rights they will, by compulsion of financialnecessities, be compelled to give up their rights under Article 30(1).The legislative powers conferred on the legislature of the Statesby Articles 245 and 246 are subject to the other provisions of theConstitution and certainly to the provisions of Part III whichconfers fundamental rights which are, therefore, binding on the

532SUPREME COURT REPORTS

AState Legislature. The State Legislature cannot, it is clear, disregardor override those provisions merely by employing indirect methodsof achieving exactly the same result. Even the legislature cannotdo indirectly what it certainly cannot do directly…”

171. In Nar Singh Pal v. Union of India & Ors.[75], it was heldBthat the casual labor does not mean that he had surrendered all hisconstitutional rights in favour of the respondents. It was thus submittedthat fundamental rights under the Constitution cannot be bartered. Theycannot be compromised, nor can there be any estoppel against the exerciseof Fundamental Rights available under the Constitution.

C172. Reliance was also placed upon nine-Judges Bench judgmentin Ahmedabad St. Xavier’s College Society wherein the said Act wasdeclared as unconstitutional which warranted educational institutions tosurrender their management to the State in order to get affiliation. ThisCourt held that in this situation, the condition which involves surrender isas effective deterrent to the exercise of the right under Article 30(1)Das direct prohibition would be. Thus considered, it is apparent that thereligious minority does not voluntarily waive its right — it has been coercedbecause of the basic importance of the privilege involved, namely,affiliation. This Court held as under:

“161. It is doubtful whether the fundamental right under ArticleE30(1) can be bartered away or surrendered by any voluntary actor that it can be waived. The reason is that the fundamental rightis vested in plurality of persons as unit or if we may say so, ina community of persons necessarily fluctuating. Can the presentmembers of minority community barter away or surrender theFright under the article so as to bind its future members as unit?The fundamental right is for the living generation. By voluntaryact of affiliation of an educational institution established andadministered by religious minority the past members of thecommunity cannot surrender the right of the future members ofthat community. The future members of the community do notGderive the right under Article 30(1) by succession or inheritance.”173. The view of Hon’ble Justice D.Y. Chandrachud in K.S.Puttaswamy was referred where ‘decisional autonomy’ has beendiscussed to comprehend intimate personal choices such as those

governing reproduction as well as choices expressed in public such asfaith or modes of dress. It was held as under:

“248. Privacy has distinct connotations including (i) spatial control;(ii) decisional autonomy; and (iii) informational control. [BhairavAcharya, “The Four Parts of Privacy in India”, Economic &Political Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial controldenotes the creation of private spaces. Decisional autonomycomprehends intimate personal choices such as those governingreproduction as well as choices expressed in public such as faithor modes of dress…

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297. …Privacy enables each individual to take crucial decisionswhich find expression in the human personality. It enablesindividuals to preserve their beliefs, thoughts, expressions, ideas,ideologies, preferences and choices against societal demands ofhomogeneity. Privacy is an intrinsic recognition of heterogeneity,of the right of the individual to be different and to stand againstthe tide of conformity in creating zone of solitude. Privacyprotects the individual from the searching glare of publicity inmatters which are personal to his or her life. Privacy attaches tothe person and not to the place where it is associated. Privacyconstitutes the foundation of all liberty because it is in privacy thatthe individual can decide how liberty is best exercised. Individualdignity and privacy are inextricably linked in pattern woven outof thread of diversity into the fabric of plural culture.”

174. Furthermore, Hon’ble Justice Chelameswar in K.S.Puttaswamy held as under:

“372. … Insofar as religious beliefs are concerned, good deal ofthe misery our species suffer owes its existence to and centresaround competing claims of the right to propagate religion.Constitution of India protects the liberty of all subjects guaranteeingthe freedom of conscience and right to freely profess, practiseand propagate religion. While the right to freely “profess, practiseand propagate religion” may be facet of free speech guaranteedunder Article 19(1)(a), the freedom of the belief or faith in anyreligion is matter of conscience falling within the zone of purelyprivate thought process and is an aspect of liberty…

A373. … The choice of appearance and apparel are also aspectsof the right to privacy. The freedom of certain groups of subjectsto determine their appearance and apparel (such as keeping longhair and wearing turban) are protected not as part of the rightto privacy but as part of their religious belief. Such freedomneed not necessarily be based on religious beliefs falling underBArticle 25…”

175. I do not find that the Government Order takes away anyright of student available to her under Article 21 of the Constitution, orthat it contemplates any barter of fundamental rights. The right toeducation under Article 21 continues to be available but it is the choiceCof the student to avail such right or not. The student is not expected toput condition, that unless she is permitted to come to secular schoolwearing headscarf, she would not attend the school. The decision is ofthe student and not of school when the student opts not to adhere to theuniform rules.DQuestion (ix)- Whether in the constitutional scheme, the State isobligated to ensure ‘reasonable accommodation’ to its citizens?

176. The argument is that the school should reasonablyaccommodate the students for wearing headscarf as it does not interfereEwith any of the rights of the fellow students.

177. Learned counsel for the appellants have referred to thejudgments of this Court reported as Jeeja Ghosh & Anr. v. Union ofIndia & Ors.[76], Vikash Kumar v. Union Public Service Commission& Ors.[77]and Ravinder Kumar Dhariwal & Anr. v. Union of India &FOrs.[78].

178. This Court in Ravinder Kumar Dhariwal held that thereasonable accommodation principle is component of the right ofequality and the right against discrimination. The concept of reasonableaccommodation arose in the context of accommodating differentlyGabled candidate, member of the Central Railway Police Force to providehim an alternative suitable post.

76 (2016) 7 SCC 76177 (2021) 5 SCC 370H78 2021 SCC OnLine SC 1293

179. In Jeeja Ghosh, this Court was considering the rights of adifferently-abled person in using the facility of flight. This Court foundthat Civil Aviation Requirements issued by Directorate General of CivilAviation that no airline shall refuse to carry persons with disability orpersons with reduced mobility and their assistive aids/devices, escortsand guide dogs including their presence in the cabin should be madeavailable to the passengers at the time of check-in. There was violationof such directive by the airline when this Court held that equality notonly implies preventing discrimination, but goes beyond in remedyingdiscrimination in the society. In concrete terms, it means embracing thenotion of positive rights, affirmative action and reasonable accommodation.This Court held as under:

“40. … In concrete terms, it means embracing the notion of positiverights, affirmative action and reasonable accommodation...”

180. In Vikash Kumar, this Court held as under:

“62. … if disability as social construct has to be remedied,conditions have to be affirmatively created for facilitating thedevelopment of the disabled. Reasonable accommodation isfounded in the norm of inclusion. Exclusion results in the negationof individual dignity and worth or they can choose the route ofreasonable accommodation, where each individuals’ dignity andworth is respected…”

181. The argument of the appellants is however that they areseeking reasonable accommodation by the school authorities to permitthem to attend school wearing matching headscarf/hijab in addition tothe prescribed uniform which would be in conformity with the fundamentalrights guaranteed under Article 25 and 21 of the Constitution.

182. The concept of reasonable accommodation came to beintroduced in respect of special child or person. In Bijoe Emmanuel,it has been held that the real test of true democracy is the ability ofeven an insignificant minority to find its identity under the Constitution.In the aforesaid case, students, believer of Jehovah, expressed theirinability to sing National Anthem though they were extending all respectwhen the National Anthem was to be played. In the case of the appellants,democracy is not in test but the question is whether the school, havingprescribed the uniform, has right to insist that all students wear thesame uniform so as not to have inequality or disparity in the matter of

Awearing of uniform. Rule 11 in fact shows that any change in uniformcan be affected only after serving notice to the parents and once uniformis prescribed, it cannot be changed in five years, meaning thereby thatthere is continuity of the uniform and the period for which uniform isprescribed is to be followed.

B183. The argument that the Kendriya Vidyalaya across the countrypermit wearing of headscarf/hijab for Muslim girls, therefore, the sameshould be followed in the State as well. Kendriya Vidyalaya is anautonomous body under the Ministry of Education, Government of India.The purpose of the same is to meet the educational needs of children oftransferable Central Government employees, including Defence andCPara-military personnel by providing common programme of education.The two institutions, one under the State and other under the CentralGovernment have independent organisations and scope of work. It maybe that some State may permit headscarf and others do not. It is decisiontaken by the State which cannot be said to be arbitrary on that groundDalone.184. The parties have referred to some foreign judgments in supportof their respective arguments including judgments on the question ofreasonable accommodation. Ours is unique country having people fromdifferent faiths and religions professing different practices. Therefore,Ethe judgments of other countries having different social structure andpolity would not provide reasonable basis to determine the question ofreligious practices in such wide and varied country like ours.

185. Thus, though the principle of reasonable accommodation hasbeen adopted by the Courts in our country, such contention does notFarise in the present case. Constitutional goals such as secularism,fraternity, dignity mean equality for all, preference to none. Theaccommodation sought is contrary to spirit of Article 14 as it wouldresult in different treatment of students in secular schools who may befollowing varied religions beliefs.

GQuestion (x)- Whether the Government Order is contrary to thelegitimate State interest of promoting literacy and education asmandated under Articles 21, 21A, 39(f), 41, 46 and 51A of theConstitution?

186. It has been argued that the Government Order is contrary tothe legitimate State interest of promoting literacy and education asH

mandated under Articles 21 and 21A as well as the directive principlescontained in Articles 39(f), 41, 46 and fundamental duties as mentionedin Article 51A. It was said to have the effect of restricting education forwomen.

187. It is also submitted that the Government Order is not in the‘best interest of the child’, especially the child’s identity, social well-being and physical, emotional and intellectual development in terms ofSection 2(9) of the Juvenile Justice (Care and Protection of Children)Act, 2015.

188. Reference is also made to the Commission of Protection ofChild Rights Act, 2005 enacted in view of the international treaty,Convention on the Rights of the Child, acceded by India on 11.12.1992.The Act was enacted to give effect to the policies adopted by theGovernment in this regard and the standards prescribed in the Convention.As per Article 1 of the Convention, child means every human beingbelow the age of 18 years unless under the law applicable to the child,majority is attained earlier. Article 14 of the Convention states that theState Parties shall respect the right of children to freedom of thought,conscience and religion and that freedom to manifest one’s religion orbeliefs may be subject only to such limitations as are prescribed by lawand are necessary to protect public safety, order, health or morals, or thefundamental rights and freedoms of others. It is thus contended that interms of the Convention to which India is signatory, the child has afreedom of thought, conscience and religion and to manifest one’s religionor belief, subject only to the limitations prescribed thereunder. Therefore,the restriction to use headscarf violates not only the fundamental rightsguaranteed under the Constitution but also the International Convention.

189. The Commission of Protection of Child Rights Act, 2005,enacted in pursuance of Convention on the Rights of Child, has beenreferred to contemplate that the right of freedom of thought, conscienceand religion are to be subservient to the rights provided under theConstitution of India. However, such rights cannot be larger than therights available to the citizens under the Constitution. Therefore, freedomof religion in the Convention or the Act are not independent rights buthave to be read along with the Constitutional provisions.

190. The pre-university college is open to all students of all castesand religions. The doors of such institutions are not closed to any studentof any community. The object of the State is to provide an opportunity

Afor the students to study in the secular schools. It is for the students toavail such facility. If particular student feels that she cannotcompromise with the wearing of headscarf or of any other student towear any outwardly religious symbol, the school would be justified not toallow such student, in the larger interest of treating all the students alikeas part of mandate of Article 14, which is central to the theme of PartBIII of the Constitution. The headscarf is not permitted in the school forthe students who are studying in Class 10+1 or 10+2. The students havemany years ahead of them where they can carry on their religious faithbut the Government Order mandating wearing of uniform cannot befaulted with since the object is in tune with the principles of theCConstitution.

191. The judgment of this Court reported as Society for UnaidedPrivate Schools of Rajasthan v. Union of India & Anr.[79]held that theright of education has been read into right to life in Article 21. Theargument is that child who is denied right to access education is notDonly deprived of his right to live with dignity, he is also deprived of hisright to freedom of speech and expression enshrined in Article 19(1)(a)of the Constitution. The right to education is thus part of Article 21.The State has not put any restriction to avail such right of education.The right of education is available to every student. The State has onlyEregulated the right in manner that students come to the school to attendclasses only in the prescribed uniform, and the same has been done toachieve the statutory and constitutional goals. The students cannot assertthat they have right to education but they would avail such right as pertheir own wish and in the manner which they consider appropriate. Schoolsare to prepare the students for their future endeavors in life. DisciplineFis one of the attributes which the students learn in schools. Defiance torules of the school would in fact be antithesis of discipline which cannotbe accepted from the students who are yet to attain adulthood. Therefore,they should grow in an atmosphere of brotherhood and fraternity andnot in the environment of rebel or defiance. The argument that the schoolGis insisting on surrendering or curtailing the right to wear headscarf asa pre- condition to access the education is not tenable as the right toeducation is available but only condition is that the students should attendthe classes in prescribed uniform.

192. The Government Order cannot be said to be contrary to thelegitimate State goal of promoting literacy and education. Article 21A isnot applicable as all the students are over 14 years of age. The studentshave right to education under Article 21, but not of insisting on wearingsomething additional to the uniform, in secular school, as part of theirreligion.

193. In fact, the Act itself contemplates providing of opportunitiesand facilities in healthy manner and maintaining the dignity of childhoodand youth so that there is no moral or material abandonment. The uniformfor the students has been prescribed so that there is no distinction betweenthe students coming from diverse background and that each studentgrows in an environment of equality, fairness and equal opportunities.The uniform is an equalizer of inequalities. Therefore, prescribing uniformfor children at an impressionable age is not only important but has asalutary effect on the mental development of the child to grow in theenvironment of oneness. The said object is in tune with Article 39(f) ofthe Constitution of India which reads as thus:“39(f) that children are given opportunities and facilities to developin healthy manner and in conditions of freedom and dignity andthat childhood and youth are protected against exploitation andagainst moral and material abandonment.”

194. Hence, the Government Order cannot be said to be contraryto the State goal of promoting literacy and education as mandated underthe Constitution. The Government Order only ensures that the uniformprescribed is adhered to by the students and it cannot be said that Stateis restricting the access to education to the girl students through such anOrder.

Question (xi)- Whether the Government Order neither achieves anyequitable access to education, nor serves the ethic of secularism,nor is true to the objective of the Karnataka Education Act?

195. The argument is that the State is under positive obligationto create an environment conducive for the exercise of fundamentalrights. Conversely, it means that the subjects have no responsibility tocreate conducive environment in non- discriminatory manner. If thestudents of one faith insist on particular dress, there is no stopping forthe others to carry their faiths and beliefs to the schools. It would not beconducive to the pious atmosphere of the school where the students

Aseek admission for education. In fact, uniform fosters sense of ‘equality’amongst students- instills sense of oneness, diminishes individualdifferences, helps focus on learning as students would not be botheredabout their social status, improves discipline, fewer conflicts in school,promotes school spirit- generates sense of belonging, pride, loyaltytowards the school, relieves economic pressure on the parents, ensuresBequality before the educational institution, serves the need of diversecommunity and promotes positive sense of communal identity and doesnot lead to the growth of disparities of wealth and style. School is thetime to learn and lay foundation for the future pursuits in life. The studentsare expected to maintain discipline and the school is responsible to lay aCstrong foundation so as to nurture the students as responsible citizens ofthe country.

196. In Indibly Creative Private Ltd. & Ors. v. Government ofWest Bengal & Ors.[80], the release of movie in the State of WestBengal was not permitted on account of threatened breach of peace. ItDwas in these circumstances, this Court held that the State is duty-boundto ensure the prevalence of conditions in which the constitutional freedomscan be exercised. This Court held as under:

“50. The freedoms which are guaranteed by Article 19 areuniversal. Article 19(1) stipulates that all citizens shall have theEfreedoms which it recognises. Political freedoms impose arestraining influence on the State by carving out an area in whichthe State shall not interfere. Hence, these freedoms are perceivedto impose obligations of restraint on the State. But, apart fromimposing “negative” restraints on the State these freedoms imposea positive mandate as well. In its capacity as public authorityFenforcing the rule of law, the State must ensure that conditions inwhich these freedoms flourish are maintained. In the spacereserved for the free exercise of speech and expression, the Statecannot look askance when organised interests threaten theexistence of freedom. The State is duty-bound to ensure theGprevalence of conditions in which of those freedoms can beexercised. The instruments of the State must be utilised toeffectuate the exercise of freedom. When organised intereststhreaten the properties of theatre owners or the viewing audiencewith reprisals, it is the plain duty of the State to ensure that speechis not silenced by the fear of the mob. Unless we were to read apositive obligation on the State to create and maintain conditionsin which the freedoms guaranteed by the Constitution can beexercised, there is real danger that art and literature wouldbecome victims of intolerance. In the present case, we are of theview that there has been an unconstitutional attempt to invade thefundamental rights of the producers, the actors and the audience.Worse still, by making an example out of them, there has been anattempt to silence criticism and critique. Others who embark upona similar venture would be subject to the chilling effect of “similarmisadventures”. This cannot be countenanced in free society.Freedom is not supplicant to power.”

197. As discussed above, secularism is applicable to all citizens,therefore, permitting one religious community to wear their religioussymbols would be antithesis to secularism. Thus, the Government Ordercannot be said to be against the ethic of secularism or to the objective ofthe Karnataka Education Act, 1983.

In view of the discussions above, I dismiss all appeals and thewrit petitions, though on different grounds than what prevailed beforethe High Court. No Costs.

SUDHANSHU DHULIA, J.

1. In the long hearing of this case, which went on for severaldays, I had the privilege of listening to the erudite submissions of learnedcounsels from both sides. On behalf of the Petitioners we have heard,Mr. Kapil Sibal, Mr. Rajeev Dhawan, Mr. Dushyant Dave, Mr. SalmanKhurshid, Mr. Colin Gonsalves, Mr. Yusuf Hatim Muchhala, Mr. HuzefaAhmadi, Ms. Meenakshi Arora, Mr. Aditya Sondhi, Mr. Sanjay R. Hegde,Mr. Devadatt Kamat, Ms. Jayna Kothari, Mr. A.M. Dar learned SeniorAdvocates and Mr. Prashant Bhushan, Mr. Shoeb Alam, Mr. NizamPasha, Ms. Kirti Singh and Mr. Thulasi K. Raj learned Advocates. Thearguments on behalf of the State were made by Mr. Tushar Mehta,Solicitor General of India, Mr. K.M. Nataraj, Additional Solicitor Generalof India and Mr. Prabhuling Navadgi, Advocate General for Karnatakalearned Senior Advocates. Mr. R. Venkatramani, Ms. V. Mohana andMr. Dama Seshadri Naidu, learned Senior Advocates have appeared onbehalf of the teachers.

A2. I had the advantage of going through the Judgement of JusticeHemant Gupta. Justice Gupta has recorded each argument which wasraised at the Bar before us in the long hearing of the case and he hasgiven his findings on each of the issues. It is very well composedJudgement. I am, however, unable to agree with the decision of JusticeGupta. I am therefore giving separate opinion, on this important matter.B

3. While I do so, I am conscious that as far as possible, aConstitutional Court must speak in one voice. Split verdicts and discordantnotes do not resolve dispute. Finality is not reached. But then to borrowthe words of Lord Atkin (which he said though in an entirely differentCcontext), “…finality is good thing, but Justice is better.”[1]

4. The Judgement impugned before this Court was pronouncedby the Karnataka High Court on March 15, 2022. This was challengedbefore this Court in several SLP’s. Apart from the SLP we also hadbefore us two Writ Petitions filed under Article 32 of the Constitution ofDIndia. The Karnataka High Court was dealing with 7 Petitions wherethe lead matter was W.P. (C) No. 2347 of 2022. All the same while wedeal with the facts of the present case, we would be referring to AishatShifa who was there in Special Leave Petition (Civil) 5236 of 2022, andwas one of the two Petitioners before the Karnataka High Court, in WritPetition (Civil) No. 2880 of 2022. We have heard this as the lead matter.EOn 22.09.2022 leave was granted by this Court, and Judgement wasreserved.5. In the district of Udupi in Karnataka there is small towncalled Kundapura. Aishat Shifa and Tehrina Begum were the two secondyear students of Government Pre-University College in Kundapura.FThey both follow Islam religion and wear hijab. According to themthey have been wearing hijab, inside their classrooms, ever since theyjoined the college, more than year back. They say that in the pastthey had never faced any objection from anyone, including the collegeadministration and their wearing of hijab inside their classroom wasGnever an issue.

6. On February 3, 2022, these two girl students were stopped atthe gate of their college. They were told that they will have to take offtheir hijab before entering the college. Since they refused to take off

H1 Ras Behari Lal and Others vs. The King-Emperor in AIR 1933 PC 208

their hijab, they were denied entry in the college, by the collegeadministration.

7. The next day that is February 4, 2022, both made representationbefore the Deputy Commissioner Udupi, praying that direction be givento the college authorities to let them enter their college and completetheir studies. No effective orders were passed by the DeputyCommissioner, but instead the Government came up with an Order onFebruary 5, 2022. This G.O has Preamble, which refers to theKarnataka Education Act, 1983 and the Rules framed therein, from whereit draws its powers and then cites three Judgments of different HighCourts to conclude that prohibiting hijab does not amount to violationof Article 25 of the Constitution. It then mandates that the Governmentschools must have school uniform and the colleges which come underthe jurisdiction of the Pre-University Education Department the uniformwhich is prescribed by the College Development Committees (inGovernment colleges), and Board of Management (in private schools),should be worn. There was, however, caveat, which said that in theevent the Board of Management did not mandate any uniform thenstudents should wear clothes that are “in the interest of unity, equalityand public order.”

8. Since the entire G.O. has been reproduced by Justice HemantGupta in his Judgement I need not reproduce the entire G.O., but therelevant portion of the G.O are as under:

“In the backdrop of the issues highlighted in the proposal, usingthe powers granted by the Karnataka Education Act Section 133(2), all the government schools in the state are mandated to abideby the official uniform. Private schools should mandate uniformdecided upon by their board of management.

In colleges that come under the pre-university educationdepartment’s jurisdiction the uniforms mandated by the CollegeDevelopment Committee, or the board of management, should beworn. In the event that the management does [sic does not]mandate uniform, students should wear clothes that are in theinterests of unity, equality and public order.

By the Orders of the Governor of Karnataka”

A9. Since hijab was not made part of the ‘uniform,’ and wearingit was not ‘in the interest of unity, equality and public order,’ as the G.O.mandated, the Petitioners were denied entry in their school. This Courthas been informed at the Bar, that similar restriction was imposed onother school going girls in different parts in Karnataka.B

10. The two girls, who were the students were then constrainedto file Writ Petitions before the Karnataka High Court. Initially the casewent before learned Single Judge of the High Court, who in turn,considering the importance of the matter, referred it to the Chief Justicefor constituting larger bench. three-judge bench was constituted byCthe Chief justice, which has heard the matter at length and then passedits orders on March 15, 2022, dismissing the Writ Petitions, an orderwhich is presently impugned before this Court.11. Before the Karnataka High Court as well as before this Courtthe main argument of the Petitioners was that the G.O. dated FebruaryD5, 2022, and the restrictions imposed by the school authorities in notpermitting the Petitioners to wear hijab inside their classrooms amountsto violation of their Fundamental Rights given to them under Article19(1)(a) and Article 25(1) of the Constitution of India as well as underArticles 14 and 21 of the Constitution. Some of the Petitioners also raised

claim that wearing of hijab is part of their Essential Religious Practice.EThe argument of the State on the other hand would be that the G.O onlydirects the school authorities of respective schools to prescribe schooluniform. It is an innocuous order, which is religion neutral. As to theargument on Fundamental Rights, the reply was that Fundamental Rightsare not absolute and they are always subject to reasonable restrictions.FProhibiting hijab inside classroom is reasonable restriction. Wearingof hijab was also said to be not an Essential Religious Practice.12. The Karnataka High Court had formulated four questions forits consideration. These questions are as follows:

Ga)Whether wearing hijab/headscarf is part of EssentialReligious practice in Islamic Faith protected under Article25 of the Constitution.

b)Whether prescription of school uniform is not legallypermissible, as being violative of petitioners’ Fundamental

Rights inter-alia guaranteed under Article 19(1)(a), (i.e.,freedom of expression) and 21 (i.e., privacy) of theConstitution.

c)Whether the Government Order dated 05.02.2022 apartfrom being incompetent is issued without application of mindand further is manifestly arbitrary and therefore violatesBArticle 14 and 15 of the Constitution?

d)Whether any case is made out in Writ Petition Number2146 of 2022 for issuance of direction for initiatingdisciplinary enquiry against Respondent No. 6 to 14 and forCissuance of Writ of Quo Warranto against RespondentNo. 15 and 16?

13. As far as the first question is concerned the High Court hasgiven finding that wearing of hijab by Muslim women does not form apart of Essential Religious Practice in Islamic faith. On the secondquestion it was held that prescription of school uniform places only areasonable restriction which is Constitutionally permissible and cannotbe objected by the students. As regards the third, i.e., the G.O of 5February 2022 it was again held that the Government has powers toissue such an order and no case is made out for its invalidation. Thefourth point was also given in the negative.

14. One of the grounds raised by the Petitioners in their challengeto the validity of the G.O. dated February 5, 2022 is that it is merely anExecutive Order. But it has far reaching consequences as far ascurtailment of Fundamental Rights of the Petitioner are concerned givento her under Article 19(1)(a) and 25(1) of the Constitution. It was submittedthat the settled position of law is that restrictions on Fundamental Rightscan only be imposed by statutory law and not by executive order. Thedecision of this Court in Kharak Singh v. State of Uttar Pradesh[2 ]wasrelied upon. This submission, however, is not correct and thereforedeclined. The reasons being, that under Section 133[3] of the Karnataka

2 (1964) 1 SCR 332

3 ‘133. Powers of Government to give directions-(1) The State Government may, subjectto the other provisions of this Act, by order, direct the Commissioner of Public Instructionor the Director or any other officer not below the rank of the District EducationalOfficer to make an enquiry or to take appropriate proceedings under this Act in respect

AEducation Act, 1983 the Government has powers to give directions. Section145 of the 1983 Act gives the State Government powers to make Rules,which have been made and are called the Karnataka EducationalInstitutions (Classification, Regulation and Prescription of Curricula Etc.,)Rules, 1995. Rule 11(1),[4] of the above Rules’ states that the recognizededucational institutions can prescribe uniform. Therefore, the StateBGovernment in any case has powers to prescribe uniform/dress code.Therefore, the submissions that the G.O is not valid law is not correct.The G.O draws its source from the statue and the statutory rules.Therefore, it has the force of law. Nevertheless, the fact remains that itstill has to pass muster the provisions of Articles 19 and 25 of theCConstitution.

15. Out of the four questions formulated by the Karnataka HighCourt the first question is in fact the crucial one. Everything dependedon the determination on this question. But then the Court had set verytall order for the Petitioners to prove their case. The Petitioners had toDprove that wearing of hijab forms core belief in the religion of Islam.ERP also meant that such practice should be fundamental to follow asa religious belief or practice as ERP was held to be the foundation, onwhich the superstructure of the religion was erected. Essential ReligiousPractice would mean practice without which religion would not remainthe same religion. Also, the Petitioners had to prove that the practice ofEwearing hijab is practice which is being followed since the verybeginning of their religion. This was the task set up for the Petitioners toprove their case. But this was not enough, this was only the threshold

of any matter specified in the said order and the Director or the other officer, as the caseFmay be, shall report to the State Government in due course the result of the enquirymade or the proceedings taken by him.

(2) The State Government may give such directions to any educational institution ortutorial institution as in its opinion are necessary or expedient for carrying out thepurposes of this Act or to give effect to any of the provisions contained therein or of any

rules or orders made thereunder and the Governing Council or the owner, as the casemay be, of such institution shall comply with every such direction.G(3) The State Government may also give such directions to the officers or authoritiesunder its control as in its opinion are necessary or expedient for carrying out thepurposes of this Act, and it shall be the duty of such officer or authority to comply withsuch direction”

4 ‘11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised educationinstitution may specify its own set of Uniform. Such uniform once specified shall not beHchanged within the period of next five years.

requirement. The Petitioners also had to prove that the ERP does notmilitate against any of the Constitutional values. This perhaps was right,because an ERP which is an invasion on the Fundamental Rights ofothers will not be given the protection. The Court held as follows[5]:

“…There is absolutely no material placed on record to prima facieshow that wearing of hijab is part of an essential religious practisein Islam and that the Petitioners have been wearing hijab from thebeginning. This apart, it can hardly be argued that hijab being amatter of attire, can be justifiably treated as fundamental to Islamicfaith. It is not that if the alleged practise of wearing hijab is notadhered to, those not wearing hijab become the sinners, Islamloses its glory and it ceases to be religion. Petitioners havemiserably failed to meet the threshold requirement of pleadingsand proof as to wearing hijab is an inviolable religious practice inIslam and much less part of ‘essential religious practice’…”

As the Petitioners did not meet the threshold requirement, theHigh Court did not feel it necessary to touch on the aspect of ConstitutionalValues. Therefore, they stated that :-

“It hardly needs to be stated that if Essential Religious Practiceas threshold requirement is not satisfied then the case would byextension not travel to the merits surrounding the domain of thoseConstitutional Values.”

16. The Judgement then upholds the validity of the G.O datedFebruary 5, 2022 and holds that the authorities have power to prescribeuniform in schools.

17. In my opinion, the question of Essential Religious Practices,which we have also referred in this judgement as ERP, was not at allrelevant in the determination of the dispute before the Court. I say thisbecause when protection is sought under Article 25(1) of the Constitutionof India, as is being done in the present case, it is not required for anindividual to establish that what he or she asserts is an ERP. It maysimply be any religious practice, matter of faith or conscience! Yes,what is asserted as Right should not go against “public order, moralityand health,” and of course, it is subject to other provisions of Part III ofthe Constitution.

5 Para XII at Page 87 of the Judgement

A18. Partly, the Petitioners had to be blamed for the course takenby the Court as it was indeed the Petitioners or some of the Petitionerswho had claimed that wearing of hijab is an essential practice in Islam.Before us, however, when arguments were raised at the Bar, some ofthe Counsels did admit that ERP was not the core issue in the matter, butthe Petitioners before the Karnataka High Court had no choice as theyBwere, inter alia, attacking the Government Order dated 5 February 2022,which clearly stated that prohibiting hijab in schools will not be violativeof Article 25 of the Constitution of India. Be that as it may, the factremains that the point was raised. It was made the core issue by theCourt, and it went against the Petitioners.C

19. The approach of the High Court could have been different.Instead of straightaway taking the ERP route, as threshold requirement,the Court could have first examined whether the restriction imposed bythe school or the G.O on wearing hijab, were valid restrictions? Orwhether these restrictions are hit by the Doctrine of Proportionality. InDBijoe Emmanuel and Ors. vs State of Kerala and Ors.[6]this is whatthe Court had to say:

“…Therefore, whenever the Fundamental Right to freedom ofconscience and to profess, practice and propagate religion isinvoked, the act complained of as offending the Fundamental RightEmust be examined to discover whether such act is to protect publicorder, morality and health, whether it is to give effect to the otherprovisions of Part III of the Constitution or whether it is authorizedby law made to regulate or restrict any economic, financial,political or secular activity which may be associated with religiousFpractice or to provide for social welfare and reform. It is the dutyand function of the court so to do.”

20. Be that as it may, let us examine as to how and what theentire concept of Essential Religious Practice has been defined by thisCourt.G

21. The test of ERP has been laid down by this Court in the pastto resolve disputes of particular nature, which we shall discuss in awhile. By and large these were the cases where challenge was madeto State interference on what was claimed to be an “essential religious

practice.” What was raised was the protection of Article 25 as well asArticle 26 of the Constitution of India. In other words, these were thecases where both Article 25 (1) and (2) and Article 26 were in play.Essentially, these were the cases where the rituals and practices of adenomination or sect of particular religion sought protection againstState intervention. Even when Rights of an individual were raised, aswe may say in the case of Shayara Bano v. Union of India and Ors.[7]which is the Triple Talaq case or the case of Indian Young LawyersAssociation and Ors, (Sabarimala Temple, In Re.) v. State of Keralaand Ors.[8]which is commonly known as the Sabarimala case, thesewere cases where an individual right was asserted against religiouspractice or where there was an assertion, primarily on religious identity.In the case at hand, the question is not merely of religious practice oridentity but also of ‘freedom of expression,’ given to citizen underArticle 19(1)(a) of the Constitution of India, and this makes this casedifferent.

22. The expression ‘essential religious practices’ it seems wastaken from the Constituent Assembly Debates. In response to query,Dr. Ambedkar categorically said that what is protected under Article 25of the Constitution is not every religious practice but only such practiceswhich are essentially religious. The relevant passage of the ConstituentAssembly Debates VII: 781 is reproduced hereunder:

“…there is nothing extraordinary in saying that we ought to strivehereafter to limit the definition of religion in such manner thatwe shall not extend it beyond beliefs and such rituals as may beconnected with ceremonials which are essentially religious…”

23. The first case, all the same, in this regard which came up forconsideration before the Supreme Court was Commissioner, HinduReligious Endowments, Madras v. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt[9]which is famously known as the ShirurMutt case. The facts of this case were that the Mathadhipati of ShirurMath at Udupi had preferred challenge to the powers of theCommissioner under the Madras Hindu Religious Endowments Act (Act2 of 1927) who was exercising control over the affairs of Shirur Math.

7 (2017) 9 SCC 18 (2019) 11 SCC 19 (1954) SCR 1005

AThe Writ Petition was allowed by the Madras High Court and Writ ofProhibition was granted in favour of the Mathadhipati. This order waschallenged before the Supreme Court by the Commissioner, HinduReligious Endowments, Madras. Inter-alia, therefore before theSupreme Court was the question of whether the provisions of the Actwere an invasion on the exercise of Fundamental Rights of theBMathadhipati and the Management of the Temple, given to them underArticle 25 and 26 of the Constitution. This Court then proceeded toelaborate on the meaning of religion and how it has to be understood inthe context of the Constitution. While delivering the concurring opinionon behalf of the Seven Judge Constitutional Bench, Justice B.K.CMukherjea held as follows:

“…Religion is certainly matter of faith with individuals orcommunities and it is not necessarily theistic. There are well knownreligions in India like Buddhism and Jainism which do not believein God or in any Intelligent First Cause. religion undoubtedlyDhas its basis in system of beliefs or doctrines which are regardedby those who profess that religion as conducive to their spiritualwell being, but it would not be correct to say that religion isnothing else but doctrine of belief. religion may not only laydown code of ethical rules for its followers to accept, it mightprescribe rituals and observances, ceremonies and models ofEworship which are regarded as integral parts of religion, andthese forms and observances might extend even to matters offood and dress.[10]”

24. The Court held that the guarantee under her Constitution notonly protects the freedom of religious opinion but it protects also, actsFdone in pursuance of religion and this is made clear using the expression‘practice of religion,’ in Article 25. This Court rejected the submissionsof the Ld. Attorney General of India, as he then was, that the State mustbe allowed to regulate the secular activities which are associated with areligion which do not constitute the essential part of it. The observationsGfalling from the court in the Shirur Mutt Case (supra), in this regardwere as follows:

“19. …The learned Attorney-General lays stress upon clause 2(a)of the article and his contention is that all secular activities, which

H10 Para 17 of Shirur Mutt Cae (supra)

may be associated with religion but do not really constitute anessential part of it, are amenable to State regulation.

20. … The contention formulated in such broad terms cannot, wethink, be supported. In the first place, what constitutes theessential part of religion is primarily to be ascertainedwith reference to the doctrines of that religion itself. If thetenets of any religious sect of the Hindus prescribe that offeringsof food should be given to the idol at particular hours of the day,that periodical ceremonies should be performed in certain wayat certain periods of the year or that there should be daily recitalof sacred texts or oblations to the sacred fire, all these would beregarded as parts of religion and mere fact that they involveexpenditure of money or employment of priests and servants orthe use of marketable commodities would not make them secularactivities partaking of commercial or economic character; all ofthem are religious practices and should be regarded as matters ofreligion within the meaning of Article 26(b)[11].’

(emphasis supplied)

Thereafter though the concept like ERP had come, but whatconstitutes Essential Religious Practices was left to the doctrine of thatreligion itself.

25. The next case which came up for consideration of this Courtwas in Ratilal Panachand Gandhi v. State of Bombay and Ors.[12]wherein the Petitioners had challenged the Constitutional validity of theAct known as the Bombay Public Trusts Act, 1950 inter-alia, on groundsthat the provisions in the Act were an invasion of their FundamentalRights, given to them under Article 25 as well as Article 26 of theConstitution. Basically, it followed the same line of thought as laid downin the Shirur Mutt (supra) case. The observations of the court are:

“10. …The free exercise of religion by which is meant theperformance of outward acts in pursuance of religious belief, is,as stated above, subject to State regulation imposed to secureorder, public health and morals of the people. What sub-clause

11 Para 19 & 20

12 1954 SCR 1055; Para

552SUPREME COURT REPORTS

A(a) of clause 2 of Article 25 contemplates is not State regulationof the religious practices as such which are protected unless theyrun counter to public health or morality but of activities which arereally of an economic, commercial or political character thoughthey are associated with religious practices.”

B26. We now come to the decision of the Supreme Court in DurgahCommittee, Ajmer, and Anr. v. Syed Hussain Ali and Ors.[13 ]In thiscase the ‘khadims’ of the Hazrat Haji Moinuddin Chishti hadchallenged the Constitutional Validity of the Dargah Hazrat Khwaja SahebAct, 1955 before the Rajasthan High Court. The ‘khadims’ of the DurgahCof Khwaja Moin-ud-din Chishti (also known as the Durgah KhwajaSaheb, Ajmer), claimed to be the followers of Sufi sect or Silsilacalled Chishti and they claimed they were doing service in the Dargahof Sufi Saint Hazrat Haji Moinuddin Chishti. Their case was that theinterference of the Dargah Committee amounts to an invasion of theFundamental Rights, inter alia, guaranteed to them under Article 25(1)Dof the Constitution of India. The Rajasthan High Court had substantiallyallowed their claim and against the said order the Dargah Committeewas before the Supreme Court. The questions which fell for considerationbefore this Court was whether any person as Sunni Muslim couldmanage the affairs of the Durgah or whether this could only be done byEthe followers of Chishti Silsila. There were some other questions aswell, which would not be relevant for discussion in the context of thisdecision. The Supreme Court had allowed the appeal of the DurgahCommittee by setting aside the order of the Rajasthan High Court, holding,inter alia that khadims could not claim the right under Article 25(1) ofthe Constitution of India. The Supreme Court in this case, went on toFdetermine as to what would be an ERP and how the Court woulddetermine the same. All the same this was done again as there was aninterplay of Article 25 and Article 26 of the Constitution, and what wasbeing asserted were the Rights of Sect or denomination againstState intervention.

G27. The Judgements of this Court in Acharya J. Avadhuta & Ors.v. Commissioner of Police, Calcutta & Anr.[14] and Commissioner ofPolice & Ors. v. Acharya J. Avadduta[15]both relate to the performance

13 (1962) 1 SCR 38314 (1983) 4 SCC 522H15 (2004) 12 SCC 770

of tandav dance in public place by the followers of the faith of ‘AnandMargis.’ The Kolkata Police had banned such performance of tandavdance in public places under Section 144 of the Code of CriminalProcedure, 1973. The matter ultimately came up before this Court in1983 and it was held that performing tandav dance in public places isnot an essential part of the ‘Anand Margi’ faith. The matter again reachedbefore this Court in 2004 and 3-Judge bench of this Court reached thesame conclusion by relying upon the earlier Judgement of 1983.28. Therefore, what can be clearly distinguished here is that whiledealing with the concept of Essential Religious Practices or whether aparticular practice can be termed as an ERP, this Court was dealingwith questions related to both Article 25 as well as Article 26 of theConstitution. These were the cases which were either concerned withthe management of an activity related to religious shrine or Institutionor where the State had met some kind of resistance or challenge by thecitizens, who claimed rights both under Article 25 and 26 of theConstitution of India. These were also the cases where community,sect or religious denomination of religion was against the State action.This, however, is not presently the case before this Court. We havebefore us case of assertion of individual Right as different from whatwould be 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 withcommunity-based rights. In that sense what has been decided by thisCourt 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 therights of the Petitioners only on the touchstone of ERP, was incorrect.

29. In the more recent case of Shayara Bano (supra) the majorityopinion of 3:2 held that Triple Talaq constitutes an irregular and not anessential practice amongst Sunni Muslims. It was stated as follows:

“54. …Applying the aforesaid tests, it is clear that Triple Talaq isonly form of talaq which is permissible in law, but at the sametime, stated to be sinful by the very Hanafi School which toleratesit. According to Javed[16], therefore, this would not form part ofany essential religious practice. Applying the test stated in Acharya

16 Javed v State of Haryana, (2003) 8 SCC 369 [cited in Shayara Bano (supra)]

AJagadishwarananda it is equally clear that the fundamental natureof the Islamic religion, as seen through an Indian Sunni Muslim’seyes, will not change without this practice…”

30. In the Sabarimala Temple (supra) case the question beforethe Constitutional Bench was whether women devotees between theBages of 10-50 years had the Right to enter the temple of Lord Ayyappalocated in Sabarimala, Kerala. Subsequently, this Right was denied tothem by the Temple Authorities, on the basis of customary practice andtradition. Allowing the Writ Petition by 4:1 majority, the bench held infavour of women devotees and struck down the restrictions placed uponthem to be violative of their Fundamental Rights under the ConstitutionCof India.

31. In both the cases cited above again the essential determinationbefore the Court was of religion and religious practice. Freedom ofexpression given to citizen under Article 19(1)(a) was not an issue,and if at all it was it was on the periphery. In other words, not the centralDissue.

32. We are presently concerned with an entirely different set offacts. We must deal with only Article 25(1), and not with Article 25(2),or even with Article 26 of the Constitution of India. Article 25(1) dealswith the Rights of an individual, whereas Article 25 (2), and Article 26Edeal with the Rights of communities or religious denominations, as referredabove. Additionally, we must deal with the Fundamental Rights given toan individual under Article 19(1)(a) and its interplay with Article 25(1) ofthe Constitution.

33. Article 25 gives citizen the “freedom of conscience and freeFprofession, practice and propagation of religion.” It does not speak ofEssential Religious Practice. This concept comes in only when we aredealing with Article 25(2) or Article 26, and where there is an inter-playof these two Articles.

34. We have before us two children, two girl students, assertingGtheir identity by wearing hijab, and claim protection under Article 19and Article 25 of the Constitution of India. Whether wearing hijab is anERP in Islam or not is not essential for the determination of this dispute.If the belief is sincere, and it harms no one else, there can be no justifiablereasons for banning hijab in classroom.H

35. The Karnataka High Court, however, has made detailedstudy as to what is ERP and whether wearing hijab constitutes partof ERP in Islam. Suras and verses from the Holy Quran have beenreferred and explained, and then taking assistance of commentary onthe Holy Book, the High Court concludes that wearing of hijab is not anessential religious practice in Islam and at best it is directory in nature,not mandatory. The decisions of the Supreme Court which we havereferred above, and some other decisions as well have been consideredwhile dealing as to what constitutes an ERP, and then determinationhas been made that what is being claimed as right is not an essentialreligious practice at all!

36. Apart from the fact that ERP was not essential to thedetermination of the dispute, which we have already said above, there isanother aspect which is even more important, which would explain as towhy the Courts should be slow in the matters of determining as to whatis an ERP. In my humble opinion Courts are not the forums to solvetheological questions. Courts are not well equipped to do that for variousreasons, but most importantly because there will always be more thanone viewpoint on particular religious matter, and therefore nothing givesthe 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.

37. In the case of M. Siddiq (Dead) Through LR’s v. MahantSuresh Das and Ors.[17]popularly known as the Ram JanmabhoomiCase this Court had cautioned not to venture into areas of theology withwhich the Courts are not well equipped. There may be diversity of viewswithin religion and to choose one over others, may not be correct.Courts should steer clear from interpreting religious scriptures. It wasobserved by the Court as follows:

“90. During the course of the submissions, it has emerged that theextreme and even absolute view of Islam sought to be portrayedby Mr. P.N. Mishra does not emerge as the only availableinterpretation of Islamic law on matter of theology. Hence, inthe given set of facts and circumstances, it is inappropriate forthis Court to enter upon an area of theology and to assume the

Arole of an interpreter of the Hadees. The true test is whetherthose who believe and worship have faith in the religious efficacyof the place where they pray. The belief and faith of the worshipperin offering namaz at place which is for the worshipper mosquecannot be challenged. It would be preposterous for this Court toquestion it on the ground that true Muslim would not offer prayerBin place which does not meet an extreme interpretation of doctrineselectively advanced by Mr. Mishra. This Court, as secularinstitution, set up under constitutional regime must steerclear from choosing one among many possibleinterpretations of theological doctrine and must defer toCthe safer course of accepting the faith and belief of theworshipper.’91. Above all, the practice of religion, Islam being no exception,varies according to the culture and social context. That indeed isthe strength of our plural society. Cultural assimilation is aDsignificant factor which shapes the manner in which religion ispracticed. In the plural diversity of religious beliefs as they arepracticed in India, cultural assimilation cannot be construed as afeature destructive of religious doctrine. On the contrary, thisprocess strengthens and reinforces the true character of countryEwhich has been able to preserve its unity by accommodating,tolerating, and respecting diversity of religious faiths and ideas.There can be no hesitation in rejecting any attempt to leadthe Court to interpret religious doctrine in an absolute andextreme form and question the faith of worshippers. Nothingwould be as destructive of the values underlying Article 25Fof the Constitution.18’

(emphasis supplied)

38. In any case as to what constitutes an Essential ReligiousPractice, in all its complexities, is matter which is pending considerationGbefore Nine Judge Constitutional bench of this Court[19] and thereforein any case it may not be proper for me to go any further into thisaspect.

18 Paras 90 & 91

19 Kantaru Rajeevaru vs Indian Young Lawyers Assn. and Ors. [R.P. (C) No. 3358 ofH2018 in W.P. (C) No. 373 of 2006]

39. The decision which is of essential importance in this case forour purposes is the decision given by this Court in the case of BijoeEmmanuel (supra). It is necessary to refer to this case in some detail,as in my opinion this case is the guiding star which will show us the pathlaid down by the well established principles of our Constitutional values,the path of understanding and tolerance, which we may also call as“reasonable accommodation,” as explained by some of the lawyers beforethis Court. Karnataka High Court, all the same, chose not to rely on thisseminal Judgement for reasons that “Bijoe Emmanuel is not the bestvehicle for drawing proposition essentially founded on the freedomof conscience[20].” But this is not correct. This decision of the SupremeCourt is most relevant in the present case, both on the facts as well ason law.

40. Let us now look into the facts of that case:

Three girl children in Kerala who belonged to faith calledJehovah’s Witnesses, were attending government school. Everymorning when the National Anthem was sung in the school these threestudents used to respectfully stand up for the National Anthem, like otherchildren in the school; but they did not sing the National Anthem. Theydid so as their faith forbid them to sing for anyone else but Jehovah.Initially this was not noticed but then someone complained before thehighest authority in the State, which led to the expulsion of these threechildren from their school, by orders passed by the Deputy Inspector ofschools and then the Headmistress of the school. The children filed theirWrit Petition before the Kerala High Court which was dismissed by thelearned Single Judge as also their appeal by division bench of KeralaHigh Court. They finally approached the Supreme Court of India andfiled their Special Leave Petition before this Court. Their case was simple:they do not show disrespect to the National Flag or the National Anthem.They stand respectfully when the National Anthem is sung, they only donot participate in singing as they sincerely believe their faith forbids themto sing for anyone but Jehovah.

41. The Petition of these three girl children was dismissed by theKerala High Court as the Kerala High Court did not find any word orthought in the Indian National Anthem which could offend anyone’sreligious susceptibilities. Hence the Kerala High Court concluded that

20 Para X1(iii) at Page 85 of the Impugned Judgement

Athere was absolutely no reason for the children not to sing the nationalanthem! While examining their case Justice O. Chinnappa Reddy, whowrote this Judgement for the Court rejected the approach of the HighCourt and said that the High Court had actually misdirected itself indoing so and it went off at tangent. The objection of the Petitionerswas not to the language of the National Anthem, but they simply refusedBto sing any National Anthem, irrespective of any country as they sincerelybelieve that this is what their religion prescribes them to do.

42. The Supreme Court then cites two judgements of the UnitedStates Supreme Court, which we must refer here as well, since theyCrelate to schools and the ‘discipline’ imposed by the schools. The first isthe case of Minersville School District v. Gobitis[21]and the secondis West Virginia State Board of Education v. Barnette[22]. Whilereferring to the two judgement(s) my source shall remain the Judgementof Bijoe Emmanuel (supra).

D43. In Minersville (supra) the question was whether compulsorysaluting of the National Flag infringed upon the liberties guaranteed bythe Fourteenth Amendment of the Constitution of the United States ofAmerica. The majority opinion delivered by Justice Frankfurter upheldthe requirement on grounds that such decisions are to be left to theschool boards. Justice Stone gave his dissent and said,E

“History teaches us that there have been but few infringementsof personal liberty by the State which have not been justified, asthey are here, in the name of righteousness and the public good,and few which have not been dictated, as they are now, atpolitically helpless minorities[23].”F

In short, the US Supreme Court did not interfere in the compulsorysaluting of the National Flag in Public School. The reference of thiscase, is however, important here as very soon this decision was overruledby the Supreme Court in the case of Barnetta (supra) which is thesecond case.G

44. The second case is the one which only few years later,overruled Gobitis (supra). Justice Jackson, the author of the Judgement

21 310 US 586 (1940)22 319 US 624 (1943)H23 Para 21 of Bijoe Emmanuel (supra)

in Barnett referred to the famous dilemma of Abraham Lincoln whichwas “Must government of necessity be too strong for the libertiesof its people, or too weak to maintain its own existence?” JusticeJackson then said:

“It may be doubted whether Mr. Lincoln would have thought thatthe strength of government to maintain itself would be impressivelyvindicated by our confirming power of the state to expel handfulof children from school…”

45. While going into the logic of Justice Frankfurter of non-interference with the School Authorities, as that would make the Court aSchool Board, Justice Jackson went onto say:

“There are village tyrants as well as village Hampdens, but nonewho acts under colour of law is beyond the reach of theConstitution….. We cannot, because of modest estimates of ourcompetence in such specialities as public education, withhold thejudgement that history authenticates as the function of this Courtwhen liberty is infringed.” Justice Jackson then concludes:[24],

“If there is any fixed star in our constitutional constellation, it isthat no official, high or petty, can prescribe what shall beorthodox in politics, nationalism, religion, or other matters ofopinion or force citizens to confess by word or act their faiththerein. If there are any circumstances which permit anexception, they do not now occur to us.

We think the action of the local authorities in compelling theflag salute and pledge transcends constitutional limitations ontheir power and invades the sphere of intellect and spirit whichit is the purpose of the First Amendment to our Constitution toreserve from all official control.”

46. Justice O. Chinnappa Reddy in his Judgement has tracedthe struggles and the difficulties faced by the faithful of Jehovah indifferent countries where they had met similar restrictions. The Courtthen invokes Article 19(1)(a) and Article 25(1), in favor of thepetitioners. It says:

24 Para 22 of Bijoe Emmanuel (supra)

560SUPREME COURT REPORTS

A“Article 19(1)(a) of the Constitution guarantees to all citizensfreedom of speech and expression, but Article 19(2) provides thatnothing in Article 19(1)(a) shall prevent State from making anylaw, insofar as such law imposes reasonable restrictions on theexercise of the right conferred by the said sub-clause in the interestsof the sovereignty and integrity of India, the security of the State,Bfriendly relations with foreign States, public order, decency ormorality, or in relation to contempt of court, defamation orincitement to an offence. Article 25(1) guarantees to all personsfreedom of conscience and the right freely to profess, practiseand propagate religion, subject to order, morality and health and toCthe other provisions of Part III of the Constitution.”

47. It was then held that it is not disrespectful to the NationalAnthem if the girls respectfully stand when the National Anthem wassung, but may not have joined in the singing. Their expulsion from schoolwas therefore held to be in violation of their Fundamental Right ofDFreedom of Speech and Expression given to them under Article 19(1)(a)of the Constitution of India. The Government Circular which directedthat the entire school should sing National Anthem was not ‘law’ asgiven in Clause 2 of Article 19of the Constitution. The law i.e., thestatutory law was ‘The Prevention of Insults to National Honour Act,E1971’. person who respectfully stands when the National Anthem issung but does not participate in the singing does not commit an offenceunder the Act. Offence is only committed when person prevents anotherfrom singing National Anthem. The Court thus impliedly also meant thatthe freedom to sing would also mean freedom to remain silent.

F48. Article 25 of the Constitution, was described as an article offaith and it was observed as follows:

“18. …Article 25 is an article of faith in the Constitution,incorporated in recognition of the principle that the real test of atrue democracy is the ability of even an insignificant minority toGfind its identity under the country’s Constitution. This has to beborne in mind in interpreting Article 25.”

49. The girls before us today face the same predicament as theJehovah’s Witnesses in the above case. The present Petitioners too wearhijab as an article of their faith. They too believe that it is part of theirHreligion and social practice. In my considered opinion therefore, this case

is squarely covered by the case of Bijoe Emmanuel (supra) and theratio laid down therein.

50. Coming back to the order of Karnataka High Court there isanother finding which is difficult to accept. This is where the High Courtdetermines that the Petitioners cannot assert their Fundamental Rightsinside classroom which the Court terms as “qualified public places”and the rights inside school are only “derivative right.” The court statesas under:

“It hardly needs to be stated that schools are qualified public placesthat are structured predominantly for imparting educationalinstructions to the students. Such qualified Spaces by their verynature repeal the assertion of individual rights to the detriment ofthe general discipline and decorum. Even the substantive rightsthemselves metamorphise into kind of derivatives rights in suchplaces.”[25]

The Hight Court rejects the case of the Petitioners on ‘reasonableaccommodation,’ and also the argument that schools are showroomfor diversity of culture, for reason that the schools being ‘qualified publicplaces’ schoolgirls have to follow the dress code, which does not prescribehijab. It says:

“It hardly needs to be stated the content and scope of right, interms of its exercise are circumstantially dependent. Ordinarily,liberties of persons stand curtailed inter-alia by his position,placement and the like. The extent of autonomy is enormous athome, since ordinarily resident of person is treated as hisinviolable castle. However, in qualified public places like schools,courts, war rooms, defense camp, etc., the freedom of individualsas of necessity, is curtailed consistent with the discipline anddecorum and function and purpose[26].”

51. Comparison of school with war room or defense camp,seems odd, to say the least. Schools are not required to have the disciplineand regimentation of military camp. Nevertheless, in my understanding,what the High Court wanted to convey was that all public places have

25 Para XIV (iv) at Page 100 of the Impugned Judgement

26 Para XIV (vii) at Page 104 of the Impugned Judgement

Acertain degree of discipline and limitations and the degree of enjoymentof Right by an individual inside his house or anywhere outside apublic space is different to what he or she would enjoy once they areinside public space. As general principle, one can have no quarrelwith this proposition. But then let us come to the facts of the case.Laying down principle is one thing, justifying that to the facts of aBcase is quite another. We must be judge of fact as well as judge oflaw. Do the facts of the case justify the restrictions inside classroom,which is admittedly public place? In my opinion there is no justificationfor this.

C52. School is public place, yet drawing parallel between aschool and jail or military camp, is not correct. Again, if the pointwhich was being made by the High Court was regarding discipline in aschool, then that must be accepted. It is necessary to have discipline inschools. But discipline not at the cost of freedom, not at the cost ofdignity. Asking pre university schoolgirl to take off her hijab at herDschool gate, is an invasion on her privacy and dignity. It is clearly violativeof the Fundamental Right given to her under Article 19(1)(a) and 21 ofthe Constitution of India. This right to her dignity[27] and her privacy[28] shecarries in her person, even inside her school gate or when she is in herclassroom. It is still her Fundamental Right, not “derivative right” asEhas been described by the High Court.

53. In the Puttaswamy judgement (supra), Justice D.Y.Chandrachud in Paragraph 298 of his Judgement says as under:

‘298. Privacy of the individual is an essential aspect of dignity.FDignity has both an intrinsic and instrumental value. As an intrinsicvalue, human dignity is an entitlement or constitutionally protectedinterest in itself. In its instrumental facet, dignity and freedom areinseparably intertwined, each being facilitative tool to achievethe other. The ability of the individual to protect zone of privacyenables the realisation of the full value of life and liberty. LibertyGhas broader meaning of which privacy is subset. All libertiesmay not be exercised in privacy. Yet others can be fulfilled onlywithin private space. Privacy enables the individual to retain the

27 Maneka Gandhi vs Union of India and Anr. [(1978) 1 SCC 248]; Para 85H28 K.S. Puttaswamy and Anr. vs Union of India and Ors. [(2017) 10 SCC 1]

autonomy of the body and mind. The autonomy of the individual isthe ability to make decisions on vital matters of concern to life.Privacy has not been couched as an independent fundamentalright. But that does not detract from the constitutional protectionafforded to it, once the true nature of privacy and its relationshipwith those fundamental rights which are expressly protected isunderstood. Privacy lies across the spectrum of protectedfreedoms. The guarantee of equality is guarantee against arbitraryState action. It prevents the State from discriminating betweenindividuals. The destruction by the State of sanctified personalspace whether of the body or of the mind is violative of theguarantee against arbitrary State action. Privacy of the bodyentitles an individual to the integrity of the physical aspects ofpersonhood. The intersection between one’s mental integrity andprivacy entitles the individual to freedom of thought, the freedomto believe in what is right, and the freedom of self-determination.When these guarantees intersect with gender, they create privatespace which protects all those elements which are crucial to genderidentity. The family, marriage, procreation and sexual orientationare all integral to the dignity of the individual. Above all, the privacyof the individual recognises an inviolable right to determine howfreedom shall be exercised. An individual may perceive that thebest form of expression is to remain silent. Silence postulates arealm of privacy. An artist finds reflection of the soul in creativeendeavour. writer expresses the outcome of process ofthought. musician contemplates upon notes which musically leadto silence. The silence, which lies within, reflects on the ability tochoose how to convey thoughts and ideas or interact with others.These are crucial aspects of personhood. The freedoms underArticle 19 can be fulfilled where the individual is entitled to decideupon his or her preferences. Read in conjunction with Article 21,liberty enables the individual to have choice of preferences onvarious facets of life including what and how one will eat, theway one will dress, the faith one will espouse and myriad othermatters on which autonomy and self-determination require choiceto be made within the privacy of the mind. The constitutional rightto the freedom of religion under Article 25 has implicit within itthe ability to choose faith and the freedom to express or notexpress those choices to the world. These are some illustrations

Aof the manner in which privacy facilitates freedom and is intrinsicto the exercise of liberty. The Constitution does not contain aseparate article telling us that privacy has been declared to be afundamental right. Nor have we tagged the provisions of Part IIIwith an alpha-suffixed right to privacy: this is not an act of judicialredrafting. Dignity cannot exist without privacy. Both reside withinBthe inalienable values of life, liberty and freedom which theConstitution has recognised. Privacy is the ultimate expression ofthe sanctity of the individual. It is constitutional value whichstraddles across the spectrum of fundamental rights and protectsfor the individual zone of choice and self-determination.’

54. The counsels representing the State before this Court hadunderlined the importance of G.O dated 05.02.2022 which was to enforcediscipline in schools, including in Pre-University classes, and apply adress code. The object of the act therefore was the betterment ofeducation and to inculcate sense of discipline among school goingDchildren. The learned Advocate General of Karnataka submitted thatthe law in the present case which is the G.O dated 5[th] February, 2022, isprimarily for the enforcement of dress code in schools including Pre-University classes. It may only incidentally be giving an impact on therights which the Petitioners claim under Article 19 and 25 of the ConstitutionEof India. What has to be seen is the pith and substance of the law which isthe enforcement of uniforms in schools, which in turn is to maintain disciplinein schools. For this submission the learned Advocate General has reliedupon Bachan Singh v. State of Punjab[29] which says:

“60. From survey of the cases noticed above, comprehensiveFtest which can be formulated, may be restated as under:

“Does the impugned law, in its pith and substance, whatevermay be its form and object, deal with any of the fundamentalrights conferred by Article 19(1)? If it does, does it abridge orabrogate any of those rights? And even if it does not, in its pithGand substance, deal with any of the fundamental rights conferredby Article 19(1), is the direct and inevitable effect of theimpugned law such as to abridge or abrogate any of thoserights?”

The mere fact that the impugned law incidentally, remotely orcollaterally has the effect of abridging or abrogating those rights,will not satisfy the test. If the answer to the above queries bein the affirmative, the impugned law in order to be valid, mustpass the test of reasonableness under Article 19. But if theimpact of the law on any of the rights under clause (1) ofArticle 19 is merely incidental, indirect, remote or collateraland is dependent upon factors which may or may not comeinto play, the anvil of Article 19 will not be available for judgingits validity.”

All the same, I do not see the applicability of the above submissionin the facts of the controversy before this Court. The G.O specificallyseeks to address the question of hijab, which is evident from the preambleof the G.O. Moreover, the above submission of the learned AdvocateGeneral is not correct in view of the Puttaswamy judgement (supra)which says:

“24. The decisions in M.P. Sharma [M.P. Sharma v. SatishChandra, AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077]and Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] adopted doctrinalposition on the relationship between Articles 19 and 21, based onthe view of the majority in Gopalan [A.K. Gopalan v. State ofMadras, AIR 1950 SC 27 : 1950 SCR 88] . This view standsabrogated particularly by the judgment in Cooper [RustomCavasjee Cooper v. Union of India, (1970) 1 SCC 248] and thesubsequent statement of doctrine in Maneka [ManekaGandhi v. Union of India, (1978) 1 SCC 248]. The decisionin Maneka [Maneka Gandhi v. Union of India, (1978) 1 SCC 248],in fact, expressly recognised that it is the dissenting judgment ofSubba Rao, J. in Kharak Singh [Kharak Singh v. State of U.P.,AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332]which represents the exposition of the correct constitutionalprinciple. The jurisprudential foundation which held the field sixty-three years ago in M.P. Sharma [M.P. Sharma v. Satish Chandra,AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077] and fifty-five years ago in Kharak Singh [Kharak Singh v. State of U.P.,AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] hasgiven way to what is now settled position in constitutional law.

AFirstly, the fundamental rights emanate from basic notions of libertyand dignity and the enumeration of some facets of liberty asdistinctly protected rights under Article 19 does not denude Article21 of its expansive ambit. Secondly, the validity of law whichinfringes the fundamental rights has to be tested not with referenceto the object of State action but on the basis of its effect on theBguarantees of freedom. Thirdly, the requirement of Article 14 thatState action must not be arbitrary and must fulfil the requirementof reasonableness, imparts meaning to the constitutional guaranteesin Part III.”

55. We would now be examining some decisions of foreign CourtsCas in order to appreciate the assertion of religious and cultural rights inour school premises, it would be worthwhile to refer to some of thesimilar controversies which had come up before the Courts of otherCountries which have Constitutional Democracy. There are two caseswhich I would like to refer here. The first case is the ‘nose-stud’ caseof the Constitutional Court of South Africa and the second one is aDdecision of the House of Lords in England.

56. The South African case though has to be seen in the backgroundof the Constitutional Law of South Africa where dignity is right givento its citizens under its Constitution. Equality Courts have also beenestablished in South Africa to hear the disputes relating to cases ofEdiscrimination. But nevertheless, the basic principle and the law remainsthe same.

57. Sunali was student of Class 10 in Durban Girls High School(DGHS). The Code of Conduct of the school prohibited wearing jewelleryin school. When Sunali was in class 10, her mother gave her nose studFto wear, which was not fashion statement, but part of Sunali’s Hindu-Tamil culture. The school objected to the nose-stud and Sunali was askedto remove it. When Sunali refused to remove the nose stud her motherwas called. Her mother reasoned with the authorities that this is partof her Hindu-Tamil culture and it cannot be removed. Ultimately, SunaliGthrough her mother had to file Petition before the Equality Court, wheresuch matters of discrimination are heard since Sunali had allegeddiscrimination by her school. The Equality Court held that though primafacie case for discrimination had been made out, it could not be termedas ‘unfair’[30], thus dismissing her case. Thereafter, the matter was taken

H30 Para 14 at Page 14 of the Judgement

in appeal before the High Court which allowed her appeal and held thatasking Sunali to remove her nose stud amounts to discrimination whichis wrong. Both the school and the administration went to the ConstitutionalCourt which heard the matter and again decided in favour of Sunali.

58. As to the argument of the school that nose stud was not centralto Sunali’s religion or culture and it is only an optional practice, this iswhat was said by the Constitutional Court, the Highest Court of SouthAfrica:

“86. The School further argued that the nose stud is not central toSunali’s religion or culture, but it is only an optional practice. Iagree that the centrality of practice or belief must play rolein determining how far another party must go to accommodatethat belief. The essence of reasonable accommodation is anexercise of proportionality. Persons who merely appear to adhereto religious and/or cultural practice, but who are willing to foregoit if necessary, can hardly demand the same adjustment from othersas those whose identity will be seriously undermined if they donot follow their belief. The difficult question is how to determinecentrality. Should we enquire into centrality of the practice orbelief to the community, or to the individual?

87. While it is tempting to consider the objective importance orcentrality of belief to particular religion or culture in determiningwhether the discrimination is fair, that approach raises manydifficulties. In my view, courts should not involve themselves indetermining the objective centrality of practices, as this wouldrequire them to substitute their judgement of the meaning of apractice for that of the person before them and often to take sidesin bitter internal disputes. This is true both for religious and culturalpractices. If Sunali states that the nose stud is central to her as aSouth Indian Tamil Hindu, it is not for the Court to tell her that sheis wrong because others do not relate to that religion or culture inthe same way.”

59. What was also pleaded on behalf of the School was that thenose stud after all is cultural and not religious issue and therefore theinfringement of any right, if at all, is much less. This issue was dealt withas follows:

A“91. The next string of the School’s centrality bow was that theinfringement of Sunali’s right to equality is less severe becausethe nose stud is cultural rather than religious adornment. Thiswas also the basis originally relied upon by the School for refusingthe exemption and why it could recognise the stud’s culturalsignificance without granting Sunali an exemption. To my mindBthe argument is flawed. As stated above, religious and culturalpractices can be equally important to persons’ identity. What isrelevant is not whether practice is characterised as religious orcultural but its meaning to the person involved.

92. The School also argued that if Sunali did not like the Code, sheCcould simply go to another school that would allow her to wearthe nose stud. I cannot agree. In my view the effect of this wouldbe to marginalise religions and cultures, something that iscompletely inconsistent with the values of our Constitution. Asalready noted, out Constitution does not tolerate diversity as aDnecessary evil, but affirms it as one of the primary treasures ofour nation. There may, however, be occasions where the specificfactual circumstances make the availability of another school arelevant consideration in searching for reasonableaccommodation. However, there are no such circumstances inthis case and the availability of another school is therefore not aErelevant consideration.”

60. Ultimately what was held is given below as follows:

“112. The discrimination has had serious impact on Sunali and,although the evidence shows that uniforms serve an importantFpurpose, it does not show that the purpose is significantly furtheredby refusing Sunali her exemption. Allowing the stud would nothave imposed an undue burden on the School reasonableaccommodation would have been achieved by allowing Sunali towear the nose stud. I would therefore confirm the High Court’sfinding of unfair discrimination.”G

61. The other case, which was also relied by the Karnataka HighCourt is Regina (SB) v. Governors of Denbigh High School[31].Primarily the controversy was that the school, allowed wearing of hijab,but what was further insisted was wearing of jilbab (which is more or

H31 [2007] 1 AC 100

less burqa). Jilbab was denied and this led to the litigation where therestriction of the school on jilbab was upheld. In this background wemust appreciate the observations of the Court, it was said:

“But schools are different. Their task is to educate the youngfrom all the many and diverse families and communities in thiscountry in accordance with the national curriculum. Their task isto help all of their pupils achieve their full potential. This includesgrowing up to play whatever part they choose in the society inwhich they are living. The school’s task is also to promote theability of people of diverse races, religions and cultures to livetogether in harmony. Fostering sense of community and cohesionwithin the school is an important part of that. uniform dresscode can play its role in smoothing over ethnic, religious and socialdivisions. But it does more than that. Like it or not, this is societycommitted, in principle and in law, to equal freedom for men andwomen to choose how they will lead their lives within the law.Young girls from ethnic, cultural or religious minorities growing uphere face particularly difficult choices: how far to adopt or todistance themselves from the dominant culture. good schoolwill enable and support them. This particular school is goodschool: that, it appears, is one reason why Shabina Begum wantedto stay there. It is also mixed school. That was what led to thedifficulty. It would not have arisen in girls’ school with an allfemale staff.”62. When decision has to be made between school disciplineand cultural and religious rights of minorities balance has to bemaintained. That is what was held. Baroness Hale of Richmond whileelaborating on this issue referred to “Culture, Religion and Gender”(2003) by Professor Frances Raday the exact Paragraph at 98 whichreads like this:

“genuine individual consent to discriminatory practice or dissentfrom it may not be feasible where these girls are not yet adult.The question is whether patriarchal family control should beallowed to result in girls being socialised according to theimplications of veiling while still attending public educationalinstitutions . . . mandatory policy that rejects veiling in stateeducational institutions may provide crucial opportunity for girlsto choose the feminist freedom of state education over the

Apatriarchal dominance of their families. Also for the families, sucha policy may send clear message that the benefits of stateeducation are tied to the obligation to respect women’s and girl’sright to equality and freedom . . . On the other hand, aprohibition of veiling risks violating the liberal principle ofrespect for individual autonomy and cultural diversity forBparents as well as students. It may also result intraditionalist families not sending their children to the stateeducational institutions. In this educational context,implementation of the right to equality is complex matter,and the determination of the way it should be achievedCdepends upon the balance between these two conflictingpolicy priorities in specific social environment”

(emphasis supplied)

63. The Karnataka High Court has placed reliance upon two USJudgements passed by the District Courts there, that is Miller v. Gills[32]Dand Christmas v. El Reno Board of Education[33]. All the same thefacts of these cases are different and in none of the two cases theaction of the school authorities debarred students from attending theirclasses. There is another judgement relied upon by Karnataka High Courtwhich is Employment Division v. Smith[34]. This is US Supreme CourtEJudgement.

64. The facts of the case were quite different. The issue beingexamined was whether the State of Oregon was justified in denyingunemployment benefits to persons who had been dismissed from theirjobs owing to their consumption of “peyote,” which had been classifiedFas ‘controlled substance’ (under the Controlled Substances Act, 1970),when it was being consumed as part of religious beliefs. Theconsumption of peyote was admittedly criminal offence. It wascontended by the respondents that as it was only being consumed inpursuance of their religious belief and they would not be liable to besubjected to the applicable criminal law. This argument was rejectedGand it was held that if certain conduct (such as consumption of peyote),which is prohibited by law, then there would be no federal right to engage

32 315 F. Supp. 94 (N.D. Ill. 1969)33 313 F. Supp. 618 (W.D. Okla. 1970)H34 494 US 872 (1990)

in such conduct. It was in this particular context of the applicability ofthe criminal law on an individual for conduct already prohibited thatsuch law was said to be ‘facially neutral.’ On this note, the followingwas stated:

“13. …We have never held that an individual’s religious beliefsexcuse him from compliance with an otherwise valid law prohibitingconduct that the State is free to regulate. On the contrary, therecord of more than century of our free exercise jurisprudencecontradicts that proposition. As described succinctly by JusticeFrankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310U.S. 586, 594-595, 60 S. Ct. 1010, 1012-1013, 84 L.Ed. 1375(1940): “Conscientious scruples have not, in the course of thelong struggle for religious toleration, relieved the individual fromobedience to general law not aimed at the promotion or restrictionof religious beliefs. The mere possession of religious convictionswhich contradict the relevant concerns of political society doesnot relieve the citizen from the discharge of politicalresponsibilities.”

65. Another question which the School Administration and theState must answer in the present case is as to what is more important tothem: Education of girl child or Enforcement of Dress Code! Wehave been informed at the Bar by many of the Senior counsels appearingfor the Petitioners, that the unfortunate fallout of the enforcement ofhijab ban in schools in Karnataka has been that some of the girl studentshave not been able to appear in their Board examinations, and manyothers were forced to seek transfer to other schools, most likely madrasas,where they may not get the same standard of education. This is for girlchild, for whom it was never easy, in the first place, to reach her schoolgate.

66. One of the best sights in India today, is of girl child leavingfor her school in the morning, with her school bag on her back. She isour hope, our future. But it is also fact, that it is much more difficult fora girl child to get education, as compared to her brother. In villages andsemi urban areas in India, it is commonplace for girl child to help hermother in her daily chores of cleaning and washing, before she can grabher school bag. The hurdles and hardships girl child undergoes in gainingeducation are many times more than male child. This case thereforehas also to be seen in the perspective of the challenges already faced by

Aa girl child in reaching her school. The question this Court would thereforeput before itself is also whether we are making the life of girl child anybetter by denying her education, merely because she wears hijab!

67. All the Petitioners want is to wear hijab! Is it too much toask in democracy? How is it against public order, morality or health?Bor even decency or against any other provision of Part III of theConstitution. These questions have not been sufficiently answered inthe Karnataka High Court Judgement. The State has not given anyplausible reasons either in the Government Order dated 5 February 2022,or in the counter affidavit before the High Court. It does not appeal tomy logic or reason as to how girl child who is wearing hijab in aCclassroom is public order problem or even law-and-order problem.To the contrary reasonable accommodation in this case would be signof mature society which has learnt to live and adjust with its differences.In his famous dissent delivered in United States v. Schwimmer[35]JusticeOliver Wendell Holmes Jr., said as under:D“22. …if there is any principle of the Constitution that moreimperatively calls for attachment than any other it is the principleof free thought-not free thought for those who agree with us butfreedom for the thought that we hate…”68. girl child has the right to wear hijab in her house or outsideEher house, and that right does not stop at her school gate. The childcarries her dignity and her privacy even when she is inside the schoolgates, in her classroom. She retains her fundamental rights. To say thatthese rights become derivative rights inside classroom, is whollyincorrect.F

69. We live in Democracy and under the Rule of Law, and theLaws which govern us must pass muster the Constitution of India.Amongst many facets of our Constitution, one is Trust. Our Constitutionis also document of Trust. It is the trust the minorities have reposedupon the majority. Commenting on the report of the Advisory committeeGon minorities, Sardar Vallabh Bhai Patel made statement before theConstitute Assembly on 24 May 1949, which should be referred here.He said, “…. it is not our intention to commit the minorities to aparticular position in hurry. If they really have to come honestlyto the conclusion that in the changed conditions of this country, it

is in the interest of all to lay down real and genuine foundations ofa secular State, then nothing is better for the minorities than to trustthe good- sense and sense of fairness of the majority, and to placeconfidence in them. So also, it is for us who happened to be in amajority to think about what the minorities feel, and how we intheir position would feel if we were treated in the manner in which”they are treated.[36]

70. The question of diversity, raised by the Petitioners before theKarnataka High Court, was not considered by the Court since it wasthought to be ‘hollow rhetoric,’ and the submissions made by the lawyerson ‘unity and diversity,’ were dismissed as an “oft quoted platitude.”This is what was said, “Petitioners’ contention that class room shouldbe place for recognition and reflection of diversity of society, amirror image of the society (socially and ethically) in its deeperanalysis is only hollow rhetoric, ‘unity in diversity’ being the oftquoted platitude….[37]"

71. The question of diversity and our rich plural culture is, however,important in the context of our present case. Our schools, in particularour Pre-University colleges are the perfect institutions where our children,who are now at an impressionable age, and are just waking up to therich diversity of this nation, need to be counselled and guided, so thatthey imbibe our constitutional values of tolerance and accommodation,towards those who may speak different language, eat different food,or even wear different clothes or apparels! This is the time to foster inthem sensitivity, empathy and understanding towards different religions,languages and cultures. This is the time when they should learn not to bealarmed by our diversity but to rejoice and celebrate this diversity. Thisis the time when they must realise that in diversity is our strength.

72. The National Education Policy 2020, of the Government ofIndia underlines the need for inculcating the values of tolerance andunderstanding in education and making the children aware of the richdiversity of this country. The Principles of the Policy state that ‘It aimsat producing engaged, productive, and contributing citizens forbuilding an equitable, inclusive, and pural society as envisaged byour Constitution.’

36 25th May, 1949: Constituent Assembly Debates, Volume VIII

37 Para XIV(v) at Page 101 of Impugned Judgement

A73. In the case of Aruna Roy v. Union of India[38 ]this Court hadelaborated on the Constitutional Values of religious tolerance and diversityof culture and its need in our education system. It was observed asfollows by Justice Dharmadhikari in the concurring opinion authored byhim:B“25. …These need to be inculcated at appropriate stages ineducation right from the primary years. Students have to be giventhe awareness that the essence of every religion is common, onlythe practices differ…”

At another place in their judgement the court has said as under:C“86. …The complete neutrality towards religion and apathy forall kinds of religious teachings in institutions of the State have nothelped in removing mutual misunderstandings and intolerance interse between sections of the people of different religions, faiths andbelief. ‘Secularism’, therefore, is susceptible to positive meaningDthat is developing and understanding and respect towards differentreligion.”

74. Constitutional Bench of this Court in Navtej Singh Joharand Ors. v. Union of India, Ministry of Law and Justice[39 ]whilespeaking on diversity, dissent, liberty and accommodation spoke theEfollowing while delivering concurring opinions:-

“375. The Constitution brought about transfer of political power.But it reflects above all, vision of society governed by justice.Individual liberty is its soul. The constitutional vision of justiceaccommodates differences of culture, ideology and orientation.FThe stability of its foundation lies in its effort to protect diversityin all its facets; in the beliefs, ideas and ways of living of hercitizens. Democratic as it is, out Constitution does not demandconformity. Nor does it contemplate the mainstreaming of culture.It nurtures dissent as the safety valve for societal conflict. Ourability to recognise others who are different is sign of our ownGevolution. We miss the symbols of compassionate and humanesociety only at our peril[40].”

38 (2002) 7 SCC 36839 (2018) 10 SCC 1H40 Para 375, Concurring Opinion by Dr. Justice D.Y. Chandrachud, (supra)

75. In the case of St. Stephen’s College v. University of Delhi[41]while delivering the majority opinion on behalf of the bench, Justice KJagannatha Shetty held as follows:

“81. Even in practice, such claims are likely to be met withconsiderable hostility. It may not be conducive to have relativelyhomogeneous society. It may lead to religious bigotry which is thebane of mankind. In the nation building with secular charactersectarian schools or colleges segregated faculties or universitiesfor imparting general secular education are undesirable and theymay undermine secular democracy. They would be inconsistentwith the central concept of secularism and equality embedded inthe Constitution. Every educational institution irrespective ofcommunity to which it belongs is ‘melting pot’ in our nationallife. The students and teachers are the critical ingredients. It isthere they develop respect for, and tolerance of, the cultures andbeliefs of others. It is essential therefore, that there should beproper mix of students of different communities in all educationalinstitutions[42].”

76. It is the Fundamental Duty of every citizen, under Part IV Aof the Constitution of India to ‘value and preserve the rich heritage ofour composite culture.’[43]

77. Adverting to the Statutory Provisions applicable in this case,namely, the Karnataka Education Act, 1983 which is the source of theG.O. dated 05.02.2022 speaks inter-alia that the curriculum in schoolsand colleges must promote the rich and composite culture of our country.Section 7 of the above Act prescribes that one of the curriculum in theschool can be “moral and ethical education” and the it further saysthat the school should also “to promote harmony and the spirit ofcommon brotherhood amongst all the people of India transcendingreligious, linguistic, and regional or sectional diversities to renouncepractices derogatory to the dignity of women”78. The preamble to the Constitution secures to all its citizens“LIBERTY of thought, expression, belief, faith and worship.” It is the

41 (1992) 1 SCC 55842 Para 81 (supra)43 Article 51A(f) of the Constitution of India

APreamble again which seeks to promote among them all, “FRATERNITYassuring the dignity of the individual and the unity and integrity of theNation.”

The Government Order dated 5 February, 2022, and the restrictionson the wearing of hijab, also goes against our constitutional value ofBfraternity and human dignity. Liberty, equality, fraternity, the triptych ofthe French Revolution is also part of our Preamble. It is true thatwhereas liberty and equality are well established, properly understood,and recognized concepts in politics and law, fraternity for some reasonshas largely remained incognito. The framers of our Constitution thoughhad different vision. Fraternity had different, and in many ways aCmuch larger meaning with the main architect of our Constitution, DrAmbedkar. In his own words: “my social philosophy may be said tobe enshrined in these words: liberty, equality and fraternity. Let noone, however, say that I have borrowed my philosophy from theFrench Revolution. I have not. My philosophy has roots in religionDand not in political science. I have derived them from my Master,the Buddha[44].” Dr Ambedkar gave the highest place to fraternity as itwas the only real safeguard against the denial of liberty or equality.“These principles of liberty, equality and fraternity are not to betreated as separate items in trinity. They form union of trinity inEthe sense that to diverse one from the other is to defeat the verypurpose of democracy. Liberty cannot be divorced from equality;equality cannot be divorced from liberty. Nor can liberty and equalitybe divorced from fraternity. Without equality, liberty would producea supremacy of the few over the many. Equality without liberty wouldkill individual initiative. Without fraternity liberty and equality couldFnot become natural course of things.[45]”

79. Fraternity, which is our Constitutional value, would thereforerequire us to be tolerant, and as some of the learned Counsels wouldargue to be, reasonably accommodating, towards the belief and religiouspractices of others. We should remember the appeal made by Justice O.GChinnappa Reddy in Bijoe Emmanuel (supra) “Our tradition teaches

44 Ministry of Social Justice and Empowerment, Government of India, Dr. BabasahebAmbedkar: Writings and Speeches, 2020 (Vol XVII, Part III); Preface Accessed athttps://www.mea.gov.in/Images/CPV/Volume17_Part_III.pdf

45 Speech of Dr. Ambedkar on 25th November, 1949: Constituent Assembly Debates,HVolume XI

tolerance; our philosophy preaches tolerance; our Constitutionpractices tolerance; let us not dilute it.”

80. Under our Constitutional scheme, wearing hijab should besimply matter of Choice. It may or may not be matter of essentialreligious practice, but it still is, matter of conscience, belief, andexpression. If she wants to wear hijab, even inside her class room, shecannot be stopped, if it is worn as matter of her choice, as it may bethe only way her conservative family will permit her to go to school, andin those cases, her hijab is her ticket to education.

81. The unfortunate fallout of the hijab restriction would be thatwe would have denied education to girl child. girl child for whom it isstill not easy to reach her school gate. This case here, therefore, hasalso to be seen in the perspective of the challenges already faced by agirl child in reaching her school. The question this Court would put beforeitself is also whether we are making the life of girl child any better bydenying her education merely because she wears hijab!

82. Our Constitution has visualised just society and it is for thisreason that the first virtue that is secures for the citizens is ‘Justice’which is the first of our Preambular promises. Rawls in his ‘A Theory ofJustice’ writes: “…Justice is the first virtue of social institutions, astruth is of system of thoughts…” “…Therefore in just society theliberties of equal citizenship are taken as settled, the rights securedby justice are not subject to political bargaining or to the calculusof social interest…” [46]

83. By asking the girls to take off their hijab before they enterthe school gates, is first an invasion on their privacy, then it is an attackon their dignity, and then ultimately it is denial to them of seculareducation. These are clearly violative of Article 19(1)(a), Article 21 andArticle 25(1) of the Constitution of India.

84. Consequently, I allow all the appeals as well as the WritPetitions, but only to the extent as ordered below:

a)The order of the Karnataka High Court dated March 15,2022, is hereby set aside;

46 Rawls, John (1921): Theory of Social Justice, Rev. Ed.; The Belknap Press of theHarvard University Press, Cambridge, Massachusetts

578SUPREME COURT REPORTS

Ab)The G.O. dated February 5, 2022 is hereby quashed and,

c)There shall be no restriction on the wearing of hijabanywhere in schools and colleges in Karnataka.

ORDER*

In view of the divergent views expressed by the Bench, the matterbe placed before Hon’ble The Chief Justice of India for constitution ofan appropriate Bench.

CDevika Gujral(Assisted by : Shubhanshu Das, LCRA)

Matter placed before CJI.

* Ed. Note: Order passed by the Court.