Individual Rights Under Article 19 And 25 Being Violated By Hijab Ban: Supreme Court

CASE TITLE:
Aishat Shifa Vs. State Of Karnataka And Ors.

DATE OF ORDER:
13 October 2022

JUDGES:
Justice Hemant Gupta and Justice Sudhanshu Dhulia

PARTIES:
Appellant: Aishat Shifa
Respondent: State of Karnataka and Ors.

SUBJECT

The order issued by the Full Bench of the Karnataka High Court on 15.3.2022, which dismissed the appeal of the Government Order dated 5.2.2022, is the subject of the current appeals. The government order required private schools to require a uniform that was chosen by their Board of Management, while it also required government schools in Karnataka to adhere to the established uniform.

IMPORTANT PROVISIONS

Constitution of India

• Article 25 - (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
• (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law - (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
• Article 19(1) - All citizens shall have the right - (a) to freedom of speech and expression.
• Article 26 -Subject to public order, morality and health, every religious denomination or any section thereof shall have the right - (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion;(c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

BRIEF FACTS

• The Commissioner under the Madras Hindu Religious Endowments Act (Act 2 of 1927), who was in charge of the operations of Shirur Math, was being challenged by Mathadhipati of Shirur Math in Udupi. The Madras High Court granted the Writ Petition and issued a Writ of Prohibition in favour of the Mathadhipati. The Commissioner of Hindu Religious Endowments, Madras, appealed this order to the Supreme Court.
• The Supreme Court was consequently asked, among other things, whether the Act’s provisions infringed on the fundamental liberties granted to the Mathadhipati and the Temple Management under Articles 25 and 26 of the Constitution. This Court then went on to explain what religion is and how it should be regarded in relation to the Constitution.
• The Court concluded that the protection provided by the Constitution covers both the freedom of religious belief and the freedom to practise one's religion, as is made apparent by the term “practise of religion” in Article 25. This Court dismissed the Ld. Attorney General of India's arguments that the State should be permitted to control secular activities connected to a religion but which do not comprise its core components.

ISSUES RAISED

• What is ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ and essential religious practices under Article 25 of the Constitution?
• Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14?
• Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a pre- condition for accessing education in a State institution?

ARGUMENTS ADVANCED

• One of the arguments of the learned counsel on behalf of the appellants was that it must be chosen what is deemed to be fundamentally religious, necessary to religion, and an essential component of religion. The argument was that one might show their “faith” through “religion.”
• Additionally, it was asserted that in accordance with Article 145(3) of the Constitution, the current case includes a significant legal issue involving the interpretation of the Constitution and should be referred to a Constitution Bench.
• It was further submitted that Article 25 safeguards religious practises, therefore this Court erred in using the term “essential religious practice” in Shayara Bano v. Union of India &Ors. 27. It was argued that the phrase “important religious activity” was not used in the decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. Thus, although wearing a headscarf is not required, it is a religious practise and is therefore protected by Article 25.
• Further, based on rulings in National Legal Services Authority v. Union of India & Ors.29 and K.S. Puttaswamy, the students have access to the rights of privacy, freedom of speech, and the right to dress however they like. The wearing of the hijab is said to be a fundamental religious practise, and it is argued that the state's action is discriminatory on the grounds of both religion and sex.
• The learned State’s Solicitor General refuted the appellants’ allegations and explained the circumstances surrounding the issuing of the government order dated 5.2.2022, acting on behalf of the State. He said that the uniform for female students was mandated by the College Development Committee, Udupi, on March 29, 2013, and that they have been adhering to it ever since. The government released a circular on January 31, 2014, regarding the creation of a college development committee, which would include the local legislator, parents’ representatives, teachers’ representatives, students’ representatives, and the pre-university college principal.
• The College Development Committee at Udupi established a dress code for the students on 23.6.18. The College Development Committee of Kundapura Pre-University College in Udupi unanimously decided on December 31, 2019, that the students’ uniform for the upcoming academic year would be the same as that required in prior years.
• It was noted that the Popular Front of India activists had abruptly raised the hijab issue in social media in the middle of the academic term. The police documents in question were delivered to the court under a sealed cover. The chargesheet was allegedly submitted after that. Following that, some requests for the hijab to be worn in class were made by the students’ parents and/or other students.
• According to the argument, these directives were given to universities and institutions rather than specific students as required by the Act. In order to promote a scientific and secular outlook through education, the Preamble of the Act calls for the planned development of educational institutions, the instillation of sound educational practises, the maintenance and improvement of educational standards, and better organisation, discipline, and control over educational institutions. According to Section 133(2) of the Act, the State Government may order any educational institution that, in its judgement, is essential or advantageous for achieving the goals of the Act.As a result, the colleges were given the circular in order to ensure that the uniform requirement was followed without discrimination, regardless of the students’ religious affiliation.
• A conjunctive interpretation of Article 25 of the Constitution has been argued for. The word “conscience” in Article 25(1) needs to have both the broadest meaning and a related sense. It is said to be broad enough to cover the wearing of the hijab, which is an act of conscience. The words “conscience,” “profess,” and “practise,” as they appear in Article 25(1), are said to be separate but also linked. Conscience would inevitably be a part of practise, hence the two are mutually exclusive.
• Furthermore, it is claimed that under Article 21 of the Indian Constitution, the right to dignity is indivisible from the freedoms of speech and expression, identity, and dress. Even in the case of uniforms, clothing codes must make sense in relation to the goal being pursued. Dress has also been mentioned in relation to personal expression. Muslim women are said to identify as Muslim women by symbolically expressing this identity to the public by donning a headscarf. The wearing of a headscarf does not result in any problems with public commotion or unrest.
• Furthermore, it is explicitly illegal and in violation of Article 19 of the Constitution to impose arbitrary, unjustified, and unreasonable restrictions on Muslim women's appearance and self-presentation. It was argued that wearing a uniform is not meant to hide one’s distinctive characteristics. Diverse disparities amongst the kids would not disappear just because they followed the dress code. Students in multicultural communities should be taught to recognise, accept, and respect social differences. Furthermore, it is argued that the contested government order excludes and undermines diversity and tolerance in the classroom. While not homogenous, the classroom is meant to be uniform.
• The appellants have argued that the wearing of a headscarf is a fundamental religious practise that has been observed by Muslim women for all of recorded history. It is said that the same is addressed in their religious texts and is therefore fundamental to the faith.The claim is that the contested government order violates their right to wear a headscarf as a fundamental aspect of their religion and consequently infringes upon the freedom protected by Article 25 of the Constitution.

JUDGMENT ANALYSIS

• The Court observed that Religion holds ethical and moral principles, as well as a conscience. A guy is tied to his own conscience and whatever moral or ethical standards govern men's lives by his freedom of conscience. Religion and freedom of conscience are distinct concepts. Protection of Article 25 extends beyond religious convictions. All people are given the freedom to hold beliefs that are not necessarily religious but may arise from one’s conscience thanks to this provision. On the other side, the right to practise one’s religion allows one the freedom to adhere to a belief system whose established form establishes a set of moral standards for its adherents and establishes the rites, observances, ceremonies, and modes of worship.
• The goal of the government order was to guarantee consistent equity among all students. It was simply done to ensure uniformity and a secular learning atmosphere in the classrooms. This is in line with the constitutional right given by Article 14. As a result, limits on freedom of religion and conscience must be considered in conjunction with other Part III rules in accordance with Article 25’s limitations (1).
• A defence of state control of secular activities that may be connected to religion but do not actually make up a significant portion of it. The ability to enact laws governing all secular activities was rejected. The breadth of Article 26’s clause (b), which refers to the administration of one's own “affairs in questions of religion,” was under scrutiny. The language obviously implies that there might be other religious topics or problems involving a particular branch of a religious denomination to which the assurance provided by this clause would not apply. Where should the boundary be set between what constitutes a religious matter and what does not?It was decided that the best way to determine what constitutes an essential component of a religion is to look at its own principles.
• The rule of construction is widely established and states that where two provisions in a law cannot be reconciled, they should be interpreted in a way that, if possible, both can be given effect. The so-called rule of harmonic construction is this. The application of Article 25(2)(b) to denominational temples will become completely nugatory under this approach, despite the fact that, as was already mentioned, the language of that Article covers them. On the other hand, if the respondents' argument is accepted, then Article 26(b) can be fully applied to all aspects of religion, with the caveat that the rights outlined in Article 25(2)(b) will take precedence with regard to one component of them, access into a temple for worship. While Article 25(2)(b) will be completely rendered ineffective in the first scenario, Article 26 and that provision can both be given effect in the second scenario (b). As a result, we must say that Article 26(b) must be interpreted in accordance with Article 25(2) (b).

CONCLUSION

The Court finally observed that to ask the girls to remove their hijabs before they reach the school gates is to first invade their privacy, then to violate their dignity, and finally to deny them a secular education. These blatantly contravene Article 19(1)(a), Article 21, and Article 25(1) of the Indian Constitution. In light of this, all appeals and Writ Petitions were granted, but only to the extent specified in the following order:

• The order of the Karnataka High Court dated March 15, 2022, is hereby set aside;
• The G.O. dated February 5, 2022 is hereby quashed and,
• There shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka.

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