It is of immense significance to note that the Apex Court in a split verdict in Aishat Shifa vs The State of Karnataka & Ors. in 2022 Live Law (SC) 842 have given different judgments with Hon’ble Mr Justice Hemant Gupta dismissing the 26 appeals that were filed against the judgment of the Karnataka High Court which held that hijab was not an essential practice of Islam and allowed the ban on wearing headscarf in educational institutions in the State. While expressing an entirely opposite view, Hon’ble Mr Justice Sudhanshu Dhulia set aside the Karnataka High Court judgment and held that the entire concept of essential religious practice was not essential to the dispute. He minced just no words to point out that, “The High Court took a wrong path. It is ultimately a matter of choice and Article 19(1)(a) and 25(1). It is a matter of choice, nothing more and nothing less.” As the judgments of both the Judges are in detail so here I will discuss only the judgment delivered by Hon’ble Mr Justice Sudhanshu Dhulia. It must be mentioned here that in view of the divergent views expressed by the Bench, the matter has been placed before the Chief Justice of India for constitution of an appropriate Bench.
At the very outset, the Bench of Hon’ble Mr Justice Sudhanshu Dhulia sets the ball rolling by putting forth in para 1 that, “In the long hearing of this case, which went on for several days, I had the privilege of listening to the erudite submissions of learned counsels from both sides. On behalf of the Petitioners we have heard, Mr. Kapil Sibal, Mr. Rajeev Dhawan, Mr. Dushyant Dave, Mr. Salman Khurshid, Mr. Colin Gonsalves, Mr. Yusuf Hatim Muchhala, Mr. Huzefa Ahmadi, Ms. Meenakshi Arora, Mr. Aditya Sondhi, Mr. Sanjay R. Hegde, Mr. Devadatt Kamat, Ms. Jayna Kothari, Mr. A.M. Dar learned Senior Advocates and Mr. Prashant Bhushan, Mr. Shoeb Alam, Mr. Nizam Pasha, Ms. Kirti Singh and Mr. Thulasi K. Raj learned Advocates. The arguments on behalf of the State were made by Mr. Tushar Mehta, Solicitor General of India, Mr. K.M. Nataraj, Additional Solicitor General of India and Mr. Prabhuling Navadgi, Advocate General for Karnataka learned Senior Advocates. Mr. R. Venkatramani, Ms. V. Mohana and Mr. Dama Seshadri Naidu, learned Senior Advocates have appeared on behalf of the teachers.”
Most graciously, the Bench then records in para 2 that, “I had the advantage of going through the Judgement of Justice Hemant Gupta. Justice Gupta has recorded each argument which was raised at the Bar before us in the long hearing of the case and he has given his findings on each of the issues. It is a very well composed Judgement. I am, however, unable to agree with the decision of Justice Gupta. I am therefore giving a separate opinion, on this important matter.”
Frankly speaking, the Bench then observes in para 3 that, “While I do so, I am conscious that as far as possible, a Constitutional Court must speak in one voice. Split verdicts and discordant notes do not resolve a dispute. Finality is not reached. But then to borrow the words of Lord Atkin (which he said though in an entirely different context), “…finality is a good thing, but Justice is better.” (Ras Behari Lal and Others vs. The King-Emperor in AIR 1933 PC 208).”
To put things in perspective, the Bench then briefly envisages in para 4 that, “The Judgement impugned before this Court was pronounced by the Karnataka High Court on March 15, 2022. This was challenged before this Court in several SLP’s. Apart from the SLP we also had before us two Writ Petitions filed under Article 32 of the Constitution of India. The Karnataka High Court was dealing with 7 Petitions where the lead matter was W.P. (C) No. 2347 of 2022. All the same while we deal with the facts of the present case, we would be referring to Aishat Shifa who was there in Special Leave Petition (Civil) 5236 of 2022, and was one of the two Petitioners before the Karnataka High Court, in Writ Petition (Civil) No. 2880 of 2022. We have heard this as the lead matter. On 22.09.2022 leave was granted by this Court, and Judgement was reserved.”
Delving into the roots of the case, the Bench then discloses in para 5 that, “In the district of Udupi in Karnataka there is a smalltown called Kundapura. Aishat Shifa and Tehrina Begum were the two second year students of Government Pre-University College in Kundapura. They both follow Islam religion and wear hijab. According to them, they have been wearing hijab, inside their classrooms, ever since they joined the college, more than a year back. They say that in the past they had never faced any objection from anyone, including the college administration and their wearing of hijab inside their classroom was never an issue.”
While continuing in the same vein, the Bench then states in para 6 that, “On February 3, 2022, these two girl students were stopped at the gate of their college. They were told that they will have to take off their hijab before entering the college. Since they refused to take off their hijab, they were denied entry in the college, by the college administration.”
Delving deeper, the Bench then reveals in para 7 that, “The next day that is February 4, 2022, both made are presentation before the Deputy Commissioner Udupi, praying that direction be given to the college authorities to let them enter their college and complete their studies. No effective orders were passed by the Deputy Commissioner, but instead the Government came up with an Order on February 5, 2022. This G.O has a Preamble, which refers to the Karnataka Education Act, 1983 and the Rules framed therein, from where it draws its powers and then cites three Judgments of different High Courts to conclude that prohibiting hijab does not amount to a violation of Article 25 of the Constitution. It then mandates that the Government schools must have a school uniform and the colleges which come under the jurisdiction of the Pre-University Education Department the uniform which is prescribed by the College Development Committees (in Government colleges), and Board of Management (in private schools), should be worn. There was, however, a caveat, which said that in the event the Board of Management did not mandate any uniform then students should wear clothes that are “in the interest of unity, equality and public order.””
It is worth noting that the Bench hastens to add in para 17 that, “In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against “public order, morality and health,” and of course, it is subject to other provisions of Part III of the Constitution.”
Be it also noted, the Bench then observes aptly in para 77 that, “Adverting to the Statutory Provisions applicable in this case, namely, the Karnataka Education Act, 1983 which is the source of the G.O. dated 05.02.2022 speaks inter-alia that the curriculum in schools and colleges must promote the rich and composite culture of our country. Section 7 of the above Act prescribes that one of the curriculum in the school can be “moral and ethical education” and the it further says that the school should also “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities to renounce practices derogatory to the dignity of women”.”
Most fundamentally and also most crucially, the Bench then minces no words to hold in para 80 that, “Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education.”
Most movingly, what has shaken me to the hilt is what is then expounded by the Bench in para 81 that, “The unfortunate fallout of the hijab restriction would be that we would have denied education to a girl child. A girl child for whom it is still not easy to reach her school gate. This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!”
Most remarkably, the Bench then underscores in para 82 that, “Our Constitution has visualised a just society and it is for this reason 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 of Justice’ writes: “… Justice is the first virtue of social institutions, as truth is of system of thoughts…” “…Therefore in a just society the liberties of equal citizenship are taken as settled, the rights secured by justice are not subject to political bargaining or to the calculus of social interest…” (Rawls, John (1921): A Theory of Social Justice, Rev. Ed.; The Belknap Press of the Harvard University Press, Cambridge, Massachusetts).”
Most strikingly and also most forthrightly, the Bench then minces no words to unequivocally hold in para 83 that, “By asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education. These are clearly violative of Article 19(1)(a), Article 21 and Article 25(1) of the Constitution of India.”
In addition, the Bench then finally holds in para 84 that, “Consequently, I allow all the appeals as well as the Writ Petitions, but only to the extent as ordered below:
a) The order of the Karnataka 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 in schools and colleges in Karnataka.
O R D E R
In view of the divergent views expressed by the Bench, the matter be placed before Hon’ble The Chief Justice of India for constitution of an appropriate Bench.”
In conclusion, I must concede most candidly that I am totally moved by the extreme concern that Hon’ble Mr Justice Sudhanshu Dhulia has shown so generously for the girls wearing hijab and has so very rightly pointed out that it is not just an invasion of privacy but also is an attack on their dignity and we all had seen that how so many boys were all hooting the girl even though she was not disturbing anyone making it difficult to even walk easily till the gate of her school and ultimately it is a denial to their secular education as parents would compel her then to go to such school where hijab is permitted! How can this be ever justified by anyone? It takes great guts, gall and gumption to reach to the brilliant conclusion which Hon’ble Mr Justice Sudhanshu Dhulia has reached at and he definitely deserves all the praise on earth for not hesitating in taking a very balanced, most matured, straightforward, courageous and commendable stand!
Sanjeev Sirohi