AISHAT SHIFA versus THE STATE OF KARNATAKA & ORS

Citation: [2022] 5 S.C.R. 426 · Decided: 13-10-2022 · Supreme Court of India · Bench: HEMANT GUPTA

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
AISHAT SHIFA
v.
THE STATE OF KARNATAKA & ORS.
(Civil Appeal No. 7095 of 2022)
OCTOBER 13, 2022
[HEMANT GUPTA AND SUDHANSHU DHULIA, JJ.]
Constitution of India, 1950: Arts.14, 19 (1), 21 and 25 – Right
to wear Hijab in Educational Institution – Freedom of Religion –
Essential Religious Practice (ERP) – Right to Choice – On
03.02.2022, petitioners, students of Government Pre-University
College in Udupi were stopped at their college gate and told to
take off their Hijab before entering the college – As they refused to
take off Hijab, they were denied entry in college by the administration
– On 05.02.2022, Government Order (G.O.) was issued regarding
‘a dress code for student of all schools and colleges of the state’
under the Karnataka Education Act, 1983 – The order mandated
that the uniform prescribed by the College Development Committee
or the Board of Management should be worn – Since Hijab was not
made part of the ‘uniform’, the petitioners were denied entry in
their college – Petitioners challenged the G.O. before High Court –
High Court held that wearing of Hijab by Muslim women does not
form a part of ERP in Islamic faith and that prescription of School
uniform places only a reasonable restriction which is constitutionally
permissible and cannot be objected to by the students – Hence
instant appeal – Per Hemant Gupta, J.: The constitution of the College
Development Committee is not in conflict with any of the provisions
of the Act, 1983 – The said G. O. does not run contrary to any of
the provisions of the Act and the rules framed there under – The
executive was well within its jurisdiction to ensure that the students
come in the uniform prescribed by the College Development
Committee – The object of the G.O. was to ensure that there is
parity amongst the students in terms of uniform – the purpose was
only to promote uniformity and encourage a secular environment
in the schools, which is in tune with the right guaranteed under
Art.14 – Art.25(2)(a) gives primacy to laws made by competent
legislature for regulation of secular aspects and Art.25(2)(b) gives
primacy to “social welfare” and “reform’’ – If a particular practice/
[2022] 5 S.C.R. 426
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belief/part of any religion 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” – The religious belief
cannot be carried to a secular school maintained out of State funds
– It is open to the students to carry their faith in a school which
permits them to wear Hijab or any other mark – The right under
Art.19(1)(a) as a 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, curtailment
of the right is permissible by following due procedure which can
withstand the test of reasonableness – Students have no right to be
in the school in violation of the mandate of the uniform prescribed
under the Statute and the Rules – If students choose not to attend
classes due to the uniform that has been prescribed, it is a voluntary
act of such students and cannot be said to be in violation of Art.29
by the State – G.O. cannot be said to be against the ethic of
secularism or to the objective of the Karnataka Education Act, 1983
– Per Sudhanshu Dhulia, J. (Dissenting): The question of ERP was not
at all relevant in the determination of the dispute before the Court –
Instead of straightaway taking the ERP route, the High Court could
have first examined whether the restriction imposed by the school
or the G.O on wearing a Hijab, were valid restrictions or whether
these restrictions are hit by the Doctrine of Proportionality – The
entire exercise done by the High Court, in evaluating the rights of
the petitioners only on the touchstone of ERP, was incorrect – If the
belief is sincere, and it harms no one else, there can be no justifiable
reasons for banning Hijab in a classroom – Asking a pre university
schoolgirl to take off her Hijab at her school gate, is an invasion on
her privacy and dignity – G.O. and the restrictions on the wearing
of hijab, goes against our constitutional value of fraternity and
human dignity – Under our Constitutional scheme, wearing a Hijab
should be simply a matter of choice – It may or may not be a matter
of ERP, but it still is, a matter of conscience, belief, an

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