AISHAT SHIFA versus THE STATE OF KARNATAKA & ORS

A B C D E F G H 426 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. 426 426 A B C D E F G H 427 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, and expression – Asking the girls to take off their Hijab before entering the school gates is clearly violative of Arts.19(1)(a), 21 and 25(1) of the Constitution – There shall be no restriction on the wearing of Hijab anywhere in schools and colleges in Karnataka – Held: In view of the divergent views expressed by the Bench, the matter to be placed before the Chief Justice of India for constitution of an appropriate AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 428 SUPREME COURT REPORTS [2022] 5 S.C.R. Bench – Karnataka Education Act, 1983 – ss.133, 145 – Karnataka Educational Institutions (Classification, Regulation and Prescription of 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) and 25(2), falls within Part III of the Constitution. Therefore, law, as defined under Article 13(3), would include any ordinance, order, bye-law, rule, regulation, notification, custom or usage in the territory of India to have the force of law. The order issued by the State Government would thus be a law within the meaning of Article 13(2) read with Article 13(3)(a), which is a 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. The Government Order relates to the powers conferred on the executive under Section 133 of the Act and rule-making power of the State under Article 162 of the Constitution. The said Government Order does not run contrary to any of the provisions of the Act and the rules framed thereunder. Therefore, the executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee. The constitution of the College Development Committee does not contravenes any of the provisions of the Act or the Rules made thereunder or that the regulation of uniform by such Committee is beyond its scope [Paras 46, 47 and 57][469-E-G; 473-A] 2. In the matters of campus discipline of the educational institutions, the Court does not substitute its own views in place of the school authority except in a case of manifest injustice or to interfere with a decision which does not pass the test of Wednesbury reasonableness. One need to examine the right to freedom of conscience and religion in light of the restrictions provided under Article 25(1) of the Constitution. Such right is not just subject to public order, morality and health but also ‘other provisions of Part III’. This would also include Article 14 which provides for equality before law. 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 B C D E F G H 429 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). [Paras 78, 88 and 89] [481-B-C; 485-F; 486-C-D] 3. If the believers of the faith hold an opinion that wearing of hijab is an essential religious practice, the question is whether the students can seek to carry their religious beliefs and symbols to a secular school. [Para 108][498-A-B] 4.1 The claim of the appellants is not to perform a religious activity in a religious institution but to wear headscarf in public place as a matter of social conduct expected from the believers of the faith. But in the present, the students want to subjugate their freedom of choice of dress to be regulated by religion than by the State while they are in fact students of a state school. The equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be breached by the State on the basis of religious faith. The Constitution has negatively worded Article 25(2). Article 25(2)(a) gives primacy to laws made by competent legislature for regulation of secular aspects and Article 25(2)(b) gives primacy to “social welfare” and “reform”. In other words, if the State seeks to regulate the economic, political, financial or other secular aspects connected with religion, the State law is to have primacy over the proposed right. Similarly, if a particular practice/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”. [Paras 118 and 119][506-B-E] 4.2 The practice of wearing of hijab may be a ‘religious practice’ or an ‘essential religious practice’ or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual. 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 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 430 SUPREME COURT REPORTS [2022] 5 S.C.R. wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds. Thus, the practice of wearing hijab could be restricted by the State in terms of the Government Order. [Para 125][509-D-E] 5. The Government order is in exercise of the executive powers of the State. The reasons for an enactment of a Statute, Rules and statutory order are not required to be part of it. It is only when the issue of constitutionality is raised, the executive is required to satisfy the Court about the legality of action taken. The right under Article 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 Article 19. The State has not put a restriction on the exercise of right conferred under Article 19(1)(a) but has regulated the same in a manner that during the school hours on working days and in the class, the students shall wear the uniform as prescribed. Since it is a regulatory provision for wearing of uniform, hence, the decision of the State Government mandating the College Development Committee to ensure the students wear the uniform as prescribed does not violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14. The College Development Committee is constituted in terms of the statutory provisions and, therefore, the direction of the State that the College Development Committee shall ensure that the students wear the dress as prescribed cannot be said to be violative of Part III of the Constitution. [Para 139][515-D-G] 6. None of the fundamental rights is absolute. The curtailment of the right is permissible by following due procedure which can withstand the test of reasonableness. The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of A B C D E F G H 431 expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14. [Para 146][519-E-F] 7. Fraternity is a noble goal but cannot be seen from the prism of one community alone. It is a goal for all citizens of the country irrespective of caste, creed, sex and religion. The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom. None of the judgments referred to by the learned counsel for the appellants deal with an issue of fraternity in respect of a section of the citizens who wish to carry their religious symbols to a classroom. The Constitutional goal as emanating from the Preamble would not be achieved if fraternity is given a narrow meaning in respect of the students identifying themselves with the religious symbols in the classroom. Religion, which is a private affair, has no meaning in a secular school run by the State. The students are free to profess their religion and carry out their religious activities other than when they are attending a classroom where religious identities should be left behind. Accordingly, the Government Order does not impinge on the Constitutional promise of fraternity and dignity. Instead, it promotes an equal environment where such fraternal values can 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 admission irrespective of any religion, race, caste, language or any of them. Even the Act mandates that the students would be admitted without any restriction on such grounds. However, the students are required to follow the discipline of the school in the matter of uniform. They have no right to be in the school in violation of the mandate of the uniform prescribed under the Statute and the Rules. The State has not denied admission to the students from attending classes. If they 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 Article 29 by the AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 432 SUPREME COURT REPORTS [2022] 5 S.C.R. State. It is not a denial of rights by the State but instead a voluntary act of the students. It would thus not amount to denial of right to education if a student, by choice, does not attend the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right. [Paras 167 and 169][530-C; 530-H; 531-A-B] 9. If a particular student feels that she cannot compromise with the wearing of headscarf or of any other student to wear any outwardly religious symbol, the school would be justified not to allow such student, in the larger interest of treating all the students alike as a part of mandate of Article 14, which is central to the theme of Part III of the Constitution. The Government Order cannot be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution. The Government Order only ensures that the uniform prescribed is adhered to by the students and it cannot be said that State is restricting the access to education to the girl students through such an Order. Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism. Thus, the Government Order cannot be said to be against the ethic of secularism or to the objective of the Karnataka Education Act, 1983. [Paras 190, 194 and 197][538-A-B; 539-E-F; 541-C-D] T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587; K.S. Puttaswamy and Anr. v. Union of India & Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569; Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P. (1997) 4 SCC 606 : [1997] 2 SCR 1086; Dr. M. Ismail Faruqui & Ors. v. Union of India & Ors. (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; Javed & Ors. v. State of Haryana & 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 Singh v. 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 - A B C D E F G H 433 Reference under Article 143(1) of the Constitution of India 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 of India & 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) 7 SCC 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 Bharati v. State of Kerala & Anr. (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975 (Supp.) SCC 1 : [1976] 2 SCR 347; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & 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 Resources Development & 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. SCR 266; 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 Ali Sarkar AIR 1952 SC 75 : [1952] SCR 284; Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar Pradesh & Ors. (1982) 1 SCC 39 : [1982] 1 SCR 1137; Pharmacy Council of India v. Rajeev College of Pharmacy & Ors. 2022 SCC OnLine SC 1224; Shri Dwarka Nath Tewari v. State of Bihar AIR 1959 SC AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 434 SUPREME COURT REPORTS [2022] 5 S.C.R. 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, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 : [1954] SCR 1005; National Legal Services Authority v. Union of India & Ors. (2014) 5 SCC 438 : [2014] 5 SCR 119; K.S. Puttaswamy. Chairman, J & K State Board of Education v. Feyaz Ahmed Malik (2000) 3 SCC 59 : [2000] 1 SCR 402; Ahmedabad St. Xavier’s College Society & Anr. v. State of Gujarat & Anr. (1974) 1 SCC 717 : [1975] 1 SCR 173; 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; Danial Latifi & 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; Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1 : [2017] 9 SCR 797; Mohd. Hanif Quareshi and others v. State of 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; Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388 : [1954] SCR 1055; Durgah Committee, Ajmer v. Syed Hussain Ali AIR 1961 SC 1402 : [1962] 1 SCR 383; Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. AIR 1958 SC 255 : [1958] SCR 895; Tilkayat Shri Govindlalji Maharaj Etc. v. State of Rajasthan & Ors. AIR 1963 SC 1638 : [1964] 1 SCR 561; Acharya Jagdishwaranand Avadhuta & Ors. v. Commissioner of Police, Calcutta & Anr. (1983) 4 SCC 522 : [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 A B C D E F G H 435 (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; Devidas Ramachandra Tuljapurkar v. State of Maharashtra & Ors. (2015) 6 SCC 1 : [2015] 7 SCR 853; St. Stephen’s College v. University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121; Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC 1 : [2018] 7 SCR 379; S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 547; Subramanian Swamy v. Union of India, Ministry of 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. Poonawalla v. Union of India & Ors. (2018) 9 SCC 501 : [2018] 9 SCR 291; St. Stephen’s College, Sri Adi Visheshwara of Kashi Vishwanath Temple, State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 : [2004] 3 SCR 652; No. 786505-N Leading Aircraftsman Ansari Aaftab Ahmed v. Union of India & Ors. 2008 L.I.C. 4004 (CWP No. 14927 of 2005 decided on 14.7.2008); 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 Public Service Commission & Ors. (2021) 5 SCC 370; Ravinder Kumar Dhariwal & Anr. v. Union of India & Ors. 2021 SCC OnLine SC 1293; Society for Unaided Private Schools of Rajasthan v. Union of India & Anr. (2012) 6 SCC 1 : [2012] 2 SCR 715; Indibly Creative Private Ltd. & Ors. v. Government of West Bengal & Ors. (2020) 12 SCC 436 : [2019] 5 SCR 679 – referred to. Thakur Bharat Singh v. State of M.P. & Anr. AIR 1964 MP 175; Amnah Bint Basheer & Anr. v. Central Board AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 436 SUPREME COURT REPORTS [2022] 5 S.C.R. of Secondary Education (CBSE), New Delhi & Anr. AIR 2016 Ker 115; Gurleen Kaur & Ors. v. State of Punjab & Ors. 2009 SCC OnLine P& H 6132; Fathima Thasneem (Minor) & Anr. v. The State of Kerala & Ors. 2018 SCC OnLine Ker 5267; M. Ajmal Khan v. The Election Commission of India, rep. by its Chief Election Commissioner, New Delhi-I & Ors. 2006 SCC OnLine Mad 794 : (2006) 5 CTC 121 – referred to. Mulla’s Mohammedan Law, 5th edition, 2019 – referred to. Per SUDHANSHU DHULIA, J. (Dissenting) HELD: 1. The instant case is of assertion of individual Right as different from what would be a community Right. 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 with community-based rights. The entire exercise done by the Karnataka High Court, in evaluating the rights of the Petitioners only on the touchstone of ERP, was incorrect. [Para 28][553-E- F] 2. Two children, two girl students, are asserting their identity by wearing hijab, and claim protection under Article 19 and Article 25 of the Constitution of India. Whether wearing hijab is an ERP 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 justifiable reasons for banning hijab in a classroom. The petitioners today face the same predicament as the Jehovah’s Witnesses in the Bijoe Emmanuel. The present Petitioners too wear hijab as an article of their faith. They too believe that it is a part of their religion and social practice. This case is squarely covered by the case of Bijoe Emmanuel and the ratio laid down therein [Paras 34 and 49][554-G-H; 560-H; 561- A] Bijoe Emmanuel and Ors. v. State of Kerala and Ors. 1986 3 SCC 615 : [1986] 3 SCR 518 – relied on. 3. School is a public place, yet drawing a parallel between a school and a jail or a military camp, is not correct. Again, if the point which was being made by the High Court was regarding A B C D E F G H 437 discipline in a school, then that must be accepted. It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity. Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom. It is still her Fundamental Right, not a “derivative right” as has been described by the High Court. [Para 52] [562-C-E] 4. Another question which the School Administration and the State must answer in the present case is as to what is more important to them: Education of a girl child or Enforcement of a Dress Code! The question this Court would therefore 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 . All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement. The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and order problem. [Paras 65-67][571-D-E; 572-A-C] 5. A girl child has the right to wear hijab in her house or outside her house, and that right does not stop at her school gate. The child carries her dignity and her privacy even when she is inside the school gates, in her classroom. She retains her fundamental rights. To say that these rights become derivative rights inside a classroom, is wholly incorrect. 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, AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 438 SUPREME COURT REPORTS [2022] 5 S.C.R. 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. [Paras 68 and 80][572-E-F; 577-B] 6. 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. Consequently, all the appeals as well as the Writ Petitions are allowed, but only to the extent as ordered b: 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. [Paras 83 and 84][577-F-G; 578-A] K.S. Puttaswamy and Anr. v Union of India and Ors. (2017) 10 SCC 1 : [2017] 10 SCR 569; Maneka Gandhi v Union of India and Anr. (1978) 1 SCC 248; [1978] 2 SCR 621; Aruna Roy v. Union of India (2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266; Navtej Singh Johar and Ors. v. Union of India, Ministry of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379 - followed. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] SCR 1005 23; Ratilal Panachand Gandhi v. State of Bombay and Ors. [1954] SCR 1055; Durgah Committee, 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 SCC 522 : [1984] 1 SCR 447; Commissioner of Police & Ors. 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 SCR 332; Kantaru Rajeevaru vs Indian Young Lawyers Assn. A B C D E F G H 439 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 Young Lawyers Association and Ors, (Sabarimala Temple, In Re.) 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 – referred to. Ras Behari Lal and Others v. The King-Emperor AIR 1933 PC 208- referred to. West Virginia State Board of Education v. Barnette 319 US 624 (1943); Regina (SB) v. Governors of Denbigh High School [2007] 1 AC 100; Miller v. Gills 315 F. Supp. 94 (N.D. Ill. 1969); Christmas v. El Reno Board of Education 313 F. Supp. 618 (W.D. Okla. 1970); Employment Division v. Smith 494 US 872 (1990); United States v. Schwimmer 279 US 644 (1929) – referred to. Speech of Dr. Ambedkar on 25th November, 1949: Constituent Assembly Debates, Volume XI; Rawls, John (1921): A 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. [2002] 3 Suppl. SCR 587 followed Para 3 [1996] 3 SCR 543 referred to Para 5 [1973] Suppl. SCR 1 referred to Para 6 [1976] 2 SCR 347 referred to Para 7 [1975] Suppl. SCR 281 referred to Para 8 [1994] 2 SCR 644 referred to Para 9 [1994] 4 Suppl. SCR 139 referred to Para 10 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 440 SUPREME COURT REPORTS [2022] 5 S.C.R. [2002] 2 Suppl. SCR 266 referred to Para 11 [2019] 17 SCR 599 referred to Para 24 [2017] 10 SCR 569 followed Para 27 [1967] 2 SCR 454 referred to Para 32 [1952] SCR 284 referred to Para 32 [1982] 1 SCR 1137 referred to Para 32 AIR 1955 SC 549 followed Para 35 AIR 1959 SC 249 referred to Para 45 [1968] 1 SCR 111 referred to Para 50 [2013] 12 SCR 629 referred to Para50 [1950] SCR 88 relied on Para 66 [1952] SCR 1112 relied on Para 67 [1992] 2 Suppl. SCR 454 relied on Para 70 [2017] 9 SCR 797 referred to Para 70 [1954] SCR 1005 referred to Para 70 [2014] 5 SCR 119 referred to Para 71 [2000] 1 SCR 402 referred to Para 78 [1975] 1 SCR 173 referred to Para 79 [1989] 2 Suppl. SCR 399 relied on Para 80 [2016] 3 SCR 579 relied on Para 81 [1983] 1 SCR 729 referred to Para 84 [1997] 2 SCR 1086 followed Para 86 (2004) 12 SCC 770 referred to Para 91 [1985] 3 SCR 844 referred to Para 99 [2001] 3 Suppl. SCR 419 referred to Para 99 [2007] 7 SCR 949 referred to Para 99 [2017] 9 SCR 797 referred to Para 99 [1959] SCR 629 referred to Para 102 A B C D E F G H 441 [1994] 5 Suppl. SCR 1 followed Para 104 [2003] 1 Suppl. SCR 947 followed Para 105 [1954] SCR 1055 referred to Para 110 [1962] 1 SCR 383 referred to Para 111 [1958] SCR 895 referred to Para 112 [1964] 1 SCR 561 referred to Para 113 [1984] 1 SCR 447 referred to Para 114 [2018] 9 SCR 561 referred to Para 115 [1986] 3 SCR 518 held inapplicable Para 116 [2019] 18 SCR 1 referred to Para 124 [2017] 1 SCR 945 referred to Para 129 [1978] 2 SCR 272 referred to Para 130 [1978] 2 SCR 621 followed Para 131 [2015] 7 SCR 853 referred to Para 133 [1991] 3 Suppl. SCR 121 referred to Para 134 [2018] 7 SCR 379 referred to Para 133 (1980) 2 SCC 684 followed Para 140 (1989) 2 SCC 547 referred to Para 142 [1999] 2 Suppl. SCR 394 followed Para 144 [2016] 3 SCR 865 referred to Para 149 [2020] 2 SCR 727 referred to Para 150 [2018] 9 SCR 291 referred to Para 151 [2004] 3 SCR 652 referred to Para 152 [2016] 9 SCR 111 referred to Para 163 [1959] SCR 995 followed Para 170 [2000] 2 SCR 752 referred to Para 171 [2016] 4 SCR 638 referred to Para 177 (2021) 5 SCC 370 referred to Para 177 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 442 SUPREME COURT REPORTS [2022] 5 S.C.R. [2012] 2 SCR 715 referred to Para 191 [2019] 5 SCR 679 referred to Para 194 In the judgment of SUDHANSHU DHULIA, J. [1964] 1 SCR 332 referred to Para 14 [1986] 3 SCR 518 relied on Para 19 [1954] SCR 1005 held inapplicable Para 23 [1954] SCR 1055 held inapplicable Para 25 [1962] 1 SCR 383 held inapplicable Para 26 [1984] 1 SCR 447 held inapplicable Para 27 [2004] 2 SCR 1019 held inapplicable Para 27 [2019] 18 SCR 1 held inapplicable Para 37 [2017] 10 SCR 569 followed Para 52 [1978] 2 SCR 621 followed Para 52 (1980) 2 SCC 684 held inapplicable Para 54 [2002] 2 Suppl. SCR 266 followed Para 73 [2018] 7 SCR 379 followed Para 74 [1991] 3 Suppl. SCR 121 referred to Para 75 CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No. 7095 of 2022. From the Judgment and Order dated 15.03.2022 of the High Court of Karnataka at Bengaluru in W.P. No.2880 of 2022. 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, 7091, 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, Prabhuling Navadgi, 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 A B C D E F G H 443 Venkatramani, Sanjay Hegde, Huzefa Ahmadi, Dr. Aditya Sondhi, Kapil Sibal, 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, Niroop Sukirthy, Mohd. Ovais, Sushal Tiwari, Adithya Koshi Roy, Chitransh Sharma, Nakul Chengappa KK, Aditya Vaibhav Singh, Abhikalp Pratap Singh, Kartik Kaushal, Shailesh Madiyal, Vinayaka S. Pandit, Sudhanshu Prakash, H. Vinayaka S. Pandit, Rajan Parmar, Vaibhav Sabharwal, Ms. Vidhi T., Mehmood Umar Faruqui, Ms. Koshy John, Ms. Asifa Rashid Mir, Shereef K.A., Mohd. Tahir, Muhammed Azaruddin, Anas Tanwir, Ms. Masoom Raj Singh, Ms. Ritika Singh, Abdul Qadir, Raghav Gupta, Shahrukh Ali, Farhan, Aftab Ali Khan, M. Z. Chaudhary, Ali Safeer Farooqi, Syed Imtiaz Ali, Shahbaz, Mujeeb Rehman, Mumtaz Alam Siddiqui, Ms. Tehsheena Z. Hussain, Ms. Lubna Naaz, Dr. Lokendra Malik, Rahat Ali Chaudhary, Nitin Kashyap, Ramesh Sachdeva, Ms. Mariya Mansuri, Ms. Azra Rehman, Anshu Kapoor, Arvind Kumar Kanva, Bilal A. Khan, Ms. Mitali Chauhan, Danish Zubair Khan, Mareesh Pravir Sahay, Chandra Sekhar Padhi, Roopesh Singh Bhadauria, Arpit Singh, 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, Aftab Ali 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. Niaz A. Faruqui, Ms. Neha Sangwan, Ms. Ashi Shereen Ahmad, Shadul Hameed Reheman, Nishanth Patil, Rajesh Inamdar, Harsh Pandey, Sabyasachi Banerjee, Shoumendu Mukherji, Praneet Pranav, Merusagar Samantray, Ms. Archana Pathak Dave, Bhakti Vardhan Singh, Amit Sharma, Arindam, Ms. Megha Sharma, Shoeb Alam, Ms. Fauzia Shakil, Ujjwal Singh, Agastya Sen, Javedur Rahman, Nizam Pasha, Shahul Hameed, 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. Anu K. Joy, Alim Anvar, Pran Krisana Jana, Ms. Nazish Fatima, Arvind Gupta, 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. Ankita Choudhary, Rahul Tanwani, Chitwan Singhal, Sushal Tiwari, Baij Nath Patel, Rahamathulla Kothwal, Ms. Siddika Aisha, Kumail Abbas, Mohd AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. A B C D E F G H 444 SUPREME COURT REPORTS [2022] 5 S.C.R. Shahrukh Ali, Raghav Gupta, Pallabh, Nikhil, Adeel Ahmed, Sachin Pahwa, Zulfiker Ali P. S, Thoyyib Hudawai, Ms. Lakshmi Sree, Talha Abdul Rahman, Harsh Vardhan Kediya, Mohd. Shaz Khan, Ms. Disha Wadekar, Bilal A. Khan, Mohd. Afeef, Rishabh Devan Parikh, Ms. Rupali Samuel, Ms. Aparajita Jamwal, Koshy John, Dileep Poolakkot, Muhammed Siddick, Aljo K. Josesh, Haris Beeran, Mushtaq Salim, Azhar Assees, Usman Ghani Khan, Ms. Pallavi Pratap, Ameen Hassan K., Danissh M. Dar, B. Shafi, Dr. Charu Mathur, Ms. Tanvi Dubey, Rahul Unnikrishnan, 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, Aarif Ali, 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, Aayush Anand, Pravartak Pathak, Gautam Singh, Ms. Kriti Ranjan, Bharat Singh, Joyadeep Roy, Pulkit Srivastava, Subodh Patil, Aayush Anand, Gautam Singh, Ms. Kriti Ranjal, Pravar Pathak, Barun Kumar Sinha, Mrs. Pratibha Sinha, Mudit Kaul, Ms. Bebi Devi Boniya, Ms. Sudha Pal, Abhishek, Siddharth Sinha, Ayush Anand, Abhishek Singh, Prashant Rawat, Tathagat Sharma, Ved Prakash, Ms. Priya Mishra, Shivam Singhania, Ms. Fauzia Shakil, Ms. Shivam, Archit Krishna, Shivam, Ms. Sonal Chopra, Rishab Ahmad 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, Charudatta Mahindrakar, Mandeep Singh, Vikram Hegde, Abhinav Hansaraman, Chitwan Sharma, Nakul Mohta, Ms. Misha Rohatgi Mohta, Bharat Monga, Ms. Richa, Prakash Shetty, Shadan Farasat, Chandratanay Chaube, 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’ Sooja, Jaimon Andrews, Ms. Piyo Harold Jaimon, Firdouse C. P., Sandeep Thakur, Naresh Kumar, Abdulla Naseeh V.T., Aswathi M.K., Ms. Sneha S. Deshmukh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Susmita Kale, 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, A B C D E F G H 445 Ms. Sivani Kukumanu, Gursimar Singh, Siddhartha Sinha, Sandeep Singh, Ms. Bharti Tyagi, Ms. Alapana Sharma, Abhishek Mahajan, Nrig Chamwibo 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, Aftab Ali Khan, Anas Tanwir, Prateek Yad