Hijab may be a ‘religious practice’ or an ‘essential religious practice’. But the religious belief cannot be carried to a secular school maintained out of State funds. Justice Hemant Gupta.

  

Aishat Shifa vs The State of Karnataka and others.
Civil Appeal 7095 of 2022 decided on 13 October 2022
Justice Hemant Gupta and Justice Sudhanshu Dhulia

23. We have heard learned counsels for the parties at length. I find that the following questions arise for consideration in the present appeals: 

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

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

(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 practices under Article 25 of the Constitution? 

(v) 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? 

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

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

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

(ix) Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens? 

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

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

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