Aishat Shifa v. the State of Karnataka & Ors

426 [2022] 5
SUPREME COURT S.C.R. 426
REPORTS [2022] 5 S.C.R.

A AISHAT SHIFA
v.
THE STATE OF KARNATAKA & ORS.
(Civil Appeal No. 7095 of 2022)
B 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
C
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
D ‘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 –
E
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
F 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
G
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
H primacy to “social welfare” and “reform’’ – If a particular practice/
426
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 427

belief/part of any religion is in existence and is found to be subjected A
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
B
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 C
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
D
– 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 E
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
F
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 G
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
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428 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B 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
C 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
D 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
E 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]
F 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
G 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
H terms of uniform. It was only to promote uniformity and encourage
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 429

a secular environment in the schools. This is in tune with the A
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] B
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 C
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
D
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 E
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 F
“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 G
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

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430 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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

H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 431

expression under Article 19(1)(a) and of privacy under Article 21 A
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 B
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 C
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 D
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 E
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 F
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 G
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

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432 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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]
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
C 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
D 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,
E 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
F 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
G 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 -
H
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 433

Reference under Article 143(1) of the Constitution of A
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 B
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. C

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 D
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. E
(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 F
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 G
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 H
434 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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
C 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)
D
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
E 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
F
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
G 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
H
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 435

(Dead) through LRs. (Ram Janmabhumi Temple Case) A
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
B
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 C
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]
D
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 E
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 :
F
[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 G
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 H
436 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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.
C 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
D 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
E 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
F 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-
G 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
H point which was being made by the High Court was regarding
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 437

discipline in a school, then that must be accepted. It is necessary A
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
B
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 C
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 D
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 E
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] F
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 G
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,
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438 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B 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
C 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]
D 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
E 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
F [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 &
G 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.
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 439

and Ors. [R.P. (C) No. 3358 of 2018 in W.P. (C) No. A
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.
B
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
C
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
D
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 25 th November, 1949:
Constituent Assembly Debates, Volume XI; Rawls,
John (1921): A Theory of Social Justice, Rev. Ed.; E
The Belknap Press of the Harvard University Press,
Cambridge, Massachusetts – referred to.
Case Law Reference
In the judgment of HEMANT GUPTA, J. F
[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 G
[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
H
440 SUPREME COURT REPORTS [2022] 5 S.C.R.

A [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
B [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
C
[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
D
[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
E
[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

F [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
G [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
H [1959] SCR 629 referred to Para 102
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 441

[1994] 5 Suppl. SCR 1 followed Para 104 A
[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 B
[1964] 1 SCR 561 referred to Para 113
[1984] 1 SCR 447 referred to Para 114
[2018] 9 SCR 561 referred to Para 115
C
[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
D
[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
E
(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 F
[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 G
[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 H
442 SUPREME COURT REPORTS [2022] 5 S.C.R.

A [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
B [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
C [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
D [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
E [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.
F
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,
G 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
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 443

Venkatramani, Sanjay Hegde, Huzefa Ahmadi, Dr. Aditya Sondhi, Kapil A
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
B
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 C
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
D
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. E
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
F
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 G
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
H
444 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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
B
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
C 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
D
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
E 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
F
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’
G 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,
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 445

Ms. Sivani Kukumanu, Gursimar Singh, Siddhartha Sinha, Sandeep Singh, A
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
B
Ali Khan, Anas Tanwir, Prateek Yadav, Ranbir Singh Yadav, Mohd.
Shahruk, Puran Mal Saini, Ms. Anzu K. Varkey, Pati Raj Yadav, Ritesh
Patil, Yogesh Yadav, Mareesh Pravir Sahay, Ms. Aswathi M.K., Javedur
Rahman, Abhishek, Aman Varma, Shubhranshu Padhi, Charudatta
Vijayrao Mahindrakar, Ms. Misha Rohatgi, Ms. Mrinmoi Chatterjee, K.
V. Muthu Kumar, Bhaskar Gowtham, Sayooj Mohandas, Akshay Ravi, C
Govind Kumar, Shubhendu Anand, Aftab Ali Khan, Anas Tanwir, Ms.
Asifa Rashid Mir, Abdul Shukoor Mundambra, Shereef K.A., Anas
Tanwir, Rishad Ahmed Chowdhury, Ms. Anindita Pujari, Zulfiker Ali P.
S, Satya Mitra, Naresh Kumar, Mohd. Irshad Hanif, Abhay Anand Jena,
K. V. Muthu Kumar, Shoumendu Mukherji, Pulkit Srivastava, Mahesh D
Thakur, Sameer Shrivastava, Ms. Charu Mathur, Advs. for the appearing
parties.
The Judgments and Order of the Court were delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by E
the Full Bench of the Karnataka High Court on 15.3.2022, dismissing
the challenge to the Government Order dated 5.2.2022. Such Government
Order directed the Government Schools in Karnataka to abide by the
prescribed uniform, and the private schools were directed to mandate a
uniform as decided by their Board of Management. F
PREFACE
2. Before adverting to the submissions made by the counsels on
both sides, it is imperative to give a background of the ethos and principles
of secularism adopted in the Constitution of India. Though the term
‘secular’ has a wide amplitude and has been understood differently in G
different parts of the world, it is important to comprehend the same in
context of the Indian Constitution.
3. The word “secular” is now part of the Preamble of the
Constitution. What is meant by “Secular” (iaFkfujis{k in the Hindi version
H
446 SUPREME COURT REPORTS [2022] 5 S.C.R.

A of the Constitution) needs to be discussed first. The word ‘Secular’ was
inserted in the Preamble of the Constitution by the 42nd Amendment
w.e.f. 3.1.1977. It is commonly understood in contradistinction to the
term ‘religious’. The political philosophy of a secular government has
been developed in the West in the historical context of the pre-eminence
of the established Church and the exercise of power by it over the society
B and its institutions. The democratic State thereafter gradually replaced
and marginalized the influence of the Church. The idea of secularism
may have been borrowed in the Indian Constitution from the West;
however, it has adopted its own unique brand based on its particular
history and exigencies which are far distinct in many ways from secularism
C as defined and followed in European countries, the United States of
America and Australia.1
4. The use of word ‘panthnirpeksh’ in the Constitution brings
out the difference in the terms “Dharmanirpeksh” and “Panthnirpeksh”.
‘Panth’, or sect, symbolizes devotion towards any specific belief, way
of worship or form of God, but Dharma symbolizes absolute and eternal
D
values which can never change, like the laws of nature. Dharma is what
upholds, sustains and results in the well-being and upliftment of the Praja
(citizens) and the society as a whole.
5. This Court in a judgment reported as A.S. Narayana
Deekshitulu v. State of A.P. & Ors.2 quoted the concept of Dharma
E explained by Justice M. Rama Jois in his Legal and Constitutional
History of India as “it is most difficult to define Dharma. Dharma
has been explained to be that which helps the upliftment of living
beings. Therefore, that which ensures welfare (of living beings) is
surely Dharma. The learned rishis have declared that which sustains
F is Dharma”. This Court held that“when dharma is used in the context
of duties of the individuals and powers of the King (the State), it
means constitutional law (Rajadharma). Likewise, when it is said
that Dharmarajya is necessary for the peace and prosperity of the
people and for establishing an egalitarian society, the word dharma
in the context of the word Rajya only means law, and Dharmarajya
G means rule of law and not rule of religion or a theocratic State”.
Any action, big or small, that is free from selfishness, is part of dharma.
Thus, having love for all human beings is dharma. This Court held as
under:
1
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (11 Judges Bench)
2
H (1996) 9 SCC 548
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 447
[HEMANT GUPTA, J.]

“156. It is because of the above that if one were to ask “What are A
the signs and symptoms of dharma?”, the answer is: that which
has no room for narrow- mindedness, sectarianism, blind faith,
and dogma. The purity of dharma, therefore, cannot be
compromised with sectarianism. A sectarian religion is open to a
limited group of people whereas dharma embraces all and excludes
B
none. This is the core of our dharma, our psyche.
157. Nothing further is required to bring home the distinction
between religion and dharma; and so I say that the word ‘religion’
in Articles 25 and 26 has to be understood not in a narrow sectarian
sense but encompassing our ethos of “ losZ HkoUrq lqf[ku%”. Let us
strive to achieve this; let us spread the message of our dharma by C
availing and taking advantage of the freedom guaranteed by
Articles 25 and 26 of our Constitution.”
6. This Court in Kesavananda Bharati v. State of Kerala &
Anr.3, even prior to the addition of the word ‘Secular’ by the 42nd
Amendment, held that the fundamental features of the Constitution, D
namely, secularism, democracy and the freedom of individual would
always subsist in the welfare State. Hon’ble Justice H.R. Khanna in his
judgment referred to the statement of K. Santhanam, a prominent member
of the Constituent Assembly and Editor of a newspaper. It was observed
as under:
E
“1481. …K. Santhanam, a prominent southern member of the
Assembly and editor of a major newspaper, described the situation
in terms of three revolutions. The political revolution would end,
he wrote, with independence. The social revolution meant ‘to
get (India) out of the medievalism based on birth, religion,
custom, and community and reconstruct her social structure F
on modern foundations of law, individual merit, and secular
education’. The third revolution was an economic one: ‘The
transition from primitive rural economy to scientific and planned
agriculture and industry’. Radhakrishnan (now President of India)
believed India must have a ‘socio-economic revolution’ designed G
not only to bring about ‘the real satisfaction of the fundamental
needs of the common man’, but to go much deeper and bring
about ‘a fundamental change in the structure of Indian society’…”
(Emphasis Supplied)
3
(1973) 4 SCC 225 H
448 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 7. The secular character of the State was reiterated in a later
Constitution Bench judgment reported as Smt. Indira Nehru Gandhi
v. Shri Raj Narain4 wherein it was held as under:
“252. It has been stated by me on p. 685 (SCC p. 767) of the
judgment (already reproduced above) that the secular character
B of the State, according to which the State shall not discriminate
against any citizen on the ground of religion only cannot likewise
be done away with. The above observations show that the secular
character of the Constitution and the rights guaranteed by Article
15 pertain to the basic structure of the Constitution…”
C 8. The word ‘Secular’ after being added in the Preamble was
also considered by a three-Judge Bench judgment of this Court reported
as Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
& Ors.5. This Court was considering an appeal against the setting aside
of election of the appellant under the Representation of the People Act,
1951 to the Maharashtra State Assembly on the ground of speeches
D made by him in the course of election campaign. It was held that “the
Secular State, rising above all differences of religion, attempts to
secure the good of all its citizens irrespective of their religious beliefs
and practices…”
9. The term ‘Secular’ was also considered by a nine-Judges Bench
E of this Court reported as S.R. Bommai & Ors. v. Union of India &
Ors.6. It was held that our Constitution does not prohibit the practice of
any religion either privately or publicly. The relevant extract of the
judgment reads thus:
“146. These provisions by implication prohibit the establishment
F of a theocratic State and prevent the State either identifying itself
with or favouring any particular religion or religious sect or
denomination. The State is enjoined to accord equal treatment to
all religions and religious sects and denominations.
xx xx xx
G
148. One thing which prominently emerges from the above
discussion on secularism under our Constitution is that whatever

4
1975 (Supp.) SCC 1
5
(1976) 2 SCC 17
6
H (1994) 3 SCC 1
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 449
[HEMANT GUPTA, J.]

the attitude of the State towards the religions, religious sects and A
denominations, religion cannot be mixed with any secular activity
of the State. In fact, the encroachment of religion into secular
activities is strictly prohibited…
xx xx xx
304. Both the expressions — ‘socialist’ and ‘secular’ — by B
themselves are not capable of precise definition. We are, however,
not concerned with their general meaning or content. Our object
is to ascertain the meaning of the expression “secular” in the
context of our Constitution. As the discussion hereafter would
demonstrate, the 42nd Amendment merely made explicit what C
was implicit in it…..................... While the citizens of this country
are free to profess, practice and propagate such religion, faith or
belief as they choose, so far as the State is concerned, i.e., from
the point of view of the State, the religion, faith or belief of a
person is immaterial. To it, all are equal and all are entitled to be
treated equally. How is this equal treatment possible, if the State D
were to prefer or promote a particular religion, race or caste,
which necessarily means a less favourable treatment of all other
religions, races and castes. How are the constitutional promises
of social justice, liberty of belief, faith or worship and equality of
status and of opportunity to be attained unless the State eschews E
the religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights, his duties and his
entitlements? Secularism is thus more than a passive attitude
of religious tolerance. It is a positive concept of equal
treatment of all religions. This attitude is described by some as
one of neutrality towards religion or as one of benevolent F
neutrality.…”
10. In the same year, in a judgment reported as Santosh Kumar
& Ors. v. Secretary, Ministry of Human Resources Development &
Anr.7, a question arose as to whether the inclusion of Sanskrit in the
syllabus of Central Board of Secondary Education as an elective subject G
so far as teaching in secondary school is concerned is permissible. This
Court quoted that “It would be profitable to note that according to
Justice H.R. Khanna secularism is neither anti-God nor pro-God; it

7
(1994) 6 SCC 579 H
450 SUPREME COURT REPORTS [2022] 5 S.C.R.

A treats alike the devout, the agnostic and the atheist. According to
him, secularism is not antithesis of religious devoutness. He would
like to dispel the impression that if a person is devout Hindu or
devout Muslim, he ceases to be secular.”
11. The National Curriculum Framework for School Education
B published by National Council of Educational Research and Training
was challenged before this Court in a judgment reported as Ms. Aruna
Roy & Ors. v. Union of India & Ors.8. This Court relied upon S.B.
Chavan Committee Report, 1999 which strongly recommended education
about religions as an instrument of social cohesion and social and religious
harmony, when it said “a word of caution is required here. Education
C about religions must be handled with extreme care. All steps must be
taken in advance to ensure that no personal prejudice or narrow-
minded perceptions are allowed to distort the real purpose of this
venture and no rituals, dogmas and superstitions are propagated in
the name of education about religions. All religions therefore have
D to be treated with equal respect (sarva dharma sambhav) and that
there has to be no discrimination on the ground of any religion
(panthnirapekshata).” It was observed as under:
“29. At this stage, we would quote the relevant part of the S.B.
Chavan Committee’s Report as under:
E xx xx xx
12. In view of the diverse character of our country, it is
essential that certain national values are also imbibed by
our young students. They should be acquainted with the
history of India’s freedom struggle, cultural heritage,
F constitutional obligations and the features comprising
our national identity. The Committee feels that some of
these national values can be imparted indirectly at the
primary stage while at the middle and secondary levels,
these can be included in the curriculum.
G 13. Another aspect that must be given some thought is
religion, which is the most misused and misunderstood
concept. The process of making the students acquainted
with the basics of all religions, the values inherent therein

8
(2002) 7 SCC 368
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 451
[HEMANT GUPTA, J.]

and also a comparative study of the philosophy of all A
religions should begin at the middle stage in schools and
continue up to the university level. Students have to be made
aware that the basic concept behind every religion is
common, only the practices differ. Even if there are
differences of opinion in certain areas, people have to
B
learn to coexist and carry no hatred against any
religion.”
xxx xxx
37. Therefore, in our view, the word “religion” should not be
misunderstood nor contention could be raised that as it is used in C
the National Policy of Education, secularism would be at peril.
On the contrary, let us have a secularistic democracy where even
a very weak man hopes to prevail over a very strong man (having
post, power or property) on the strength of rule of law by proper
understanding of duties towards the society. Value-based education
is likely to help the nation to fight against all kinds of prevailing D
fanaticism, ill will, violence, dishonesty, corruption, exploitation and
drug abuse Let knowledge, like the sun, shine for all and that
there should not be any room for narrow-mindedness, blind
faith and dogma. For this purpose also, if the basic tenets of all
religions over the world are learnt, it cannot be said that secularism E
would not survive.”
12. In T.M.A. Pai Foundation, it was held that the State is not
prevented from making any law in relation to religious practice and the
same is permissible under Article 25(2)(a) of the Constitution of India.
The limited jurisdiction granted by Article 25(2) relates to the making of F
a law in relation to economic, financial, political or other secular activities
associated with the religious practice. The Court held as under:
“83. Article 25(2) gives specific power to the State to make any
law regulating or restricting any economic, financial, political or
other secular activity, which may be associated with religious
practice as provided by sub-clause (a) of Article 25(2). This is a G
further curtailment of the right to profess, practise and propagate
religion conferred on the persons under Article 25(1). Article
25(2)(a) covers only a limited area associated with religious
practice, in respect of which a law can be made. A careful reading
of Article 25(2)(a) indicates that it does not prevent the State H
452 SUPREME COURT REPORTS [2022] 5 S.C.R.

A from making any law in relation to the religious practice as such.
The limited jurisdiction granted by Article 25(2) relates to the
making of a law in relation to economic, financial, political or other
secular activities associated with the religious practice”.
13. Thus, though the concept of secularism emerged in the west,
B it has taken a different colour over the period of time. In a democratic
country like India, consisting of multiple religions, regions, faith, languages,
food and clothing, the concept of secularism is to be understood differently.
Secularism, as adopted under our Constitution, is that religion cannot be
intertwined with any of the secular activities of the State. Any
encroachment of religion in the secular activities is not permissible.
C Secularism thus means treating all religions equally, respecting all religions
and protecting the practices of all religions. The positive meaning of
secularism would be non- discrimination by the State on the basis of
religious faith and practices. Secularism can be practiced by adopting a
completely neutral approach towards religion or by a positive approach
D wherein though the State believes and respects all religions, but does not
favour any.
FACTUAL BACKGROUND
14. The challenge in the present appeals is to the Government
Order dated 5.2.2022, the translated copy of which reads as under:
E
“Proceedings of the Government of Karnataka
Subject – Regarding a dress code for students of all schools and
colleges of the state.
Refer – 1) Karnataka Education Act 1983
F
2) Government Circular:509 SHH 2013, Date:31- 01-2014
Preamble:-
As mentioned in the above at reference No.1, the Karnataka
Education Act 1983 passed by the Government of Karnataka (1-
G 1995) Section [7(2)(g)(v)]* stipulates that all the school students
studying in Karnataka should behave in a fraternal manner,
transcend their group identity and develop an orientation towards
social justice. Under the Section 133 of the above law, the
government has the authority to issue directions to schools and
colleges in this regard.
H
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 453
[HEMANT GUPTA, J.]

The above-mentioned circular at reference No.2 underlines A
how Pre-university education is an important phase in the lives of
students. All the schools and colleges in the state have set up
development committees in order to implement policies in line with
the policies of the government, utilize budgetary allocations,
improve basic amenities and maintain their academic standards.
B
It is recommended that the schools and colleges abide by the
directions of these development committees.
Any such supervisory committee in schools and colleges
(SDMC in Government Institutions and Parents- Teachers’
Associations and the management in private institutions) should
strive to provide a conducive academic environment and enforce C
a suitable code of conduct in accordance with government
regulations. Such a code of conduct would pertain to that particular
school or college.
Various initiatives have been undertaken to ensure that
students in schools and colleges have a standardized learning D
experience. However, it has been brought to the education
department’s notice that students in a few institutions have been
carrying out their religious observances, which has become an
obstacle to unity and uniformity in the schools and colleges.
The question relating to a uniform dress code over individual E
dressing choices has come up in several cases before the
Honourable Supreme Court and High Courts, which have ruled
as below.
1) In para 9 of the Hon’ble High Court of Kerala’s ruling
in W.P. (C) No.35293/2018, date : 04-12-2018, it cites F
a ruling by the Hon’ble Supreme Court:
“9. The Apex Court in Asha Renjan and others v/
s State of Bihar and others [(2017) 4 SCC 397]
accepted the balance test when competing rights
are involved and has taken a view that individual G
interest must yield to the larger public interest.
Thus, conflict to competing rights can be resolved
not by negating individual rights but by upholding
larger right to remain, to hold such relationship
between institution and students.”
H
454 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 2) In the case of Fatima Hussain Syed v/s Bharat
Education Society and Ors. (AIR 2003 Bom 75), in
a similar incident regarding the dress code, when a
controversy occurred at Kartik High School, Mumbai.
The Bombay High Court appraised the matter, and
ruled that it was not a violation of Article 25 of the
B
Constitution for the principal to prohibit the wearing
of head scarf or head covering in the school.
3) Subsequent to the Hon’ble Supreme Court’s
abovementioned ruling, the Hon’ble Madras High
Court, in V. Kamalamma v/s Dr. MGR Medical
C University, Tamil Nadu and Ors. upheld the modified
dress code mandated by the university. A similar issue
has been considered by the Madras High Court in
Shri. M Venkatasubbarao Matriculation Higher
Secondary School Staff Association v/s Shri M.
D Venkatasubbarao Matriculation Higher Secondary
School (2004) 2 MLJ 653 case.
As mentioned in the abovementioned rulings of the
Hon’ble Supreme Court and various High Courts, since the
prohibition of a headscarf or a garment covering the head
E is not a violation of Article 25 of the Constitution. Additionally,
in terms of the [Karnataka Education Act, 1983 Article 133
Sub Rule (2) and Article 7(1)(i), 7(2)(g)(v) and Karnataka
Education Act (Classification, Regulation, Curriculum
Scheduling, Others) of Rules 1995 as per Rule 11]**, the
government has decreed as below-
F
Government Order No: EP14 SHH 2022 Bengaluru
Dated: 05.02.2022
In the backdrop of the issues highlighted in the proposal, using the
powers granted by Karnataka Education Act, 1983 Sub-Rule 133
G (2) [Section 7(1)(i), 7(2)(g)(v) and Karnataka Education Act
(Classification, Regulation, Curriculum Scheduling, Others) of
Rules 1995 as per Rule 11**, all the government schools in the
state are mandated to abide by the official uniform. Private schools
should mandate a uniform decided upon by their board of
management.
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 455
[HEMANT GUPTA, J.]

In colleges that come under the pre-university education A
department’s jurisdiction, the uniforms mandated by the College
Development Committee, or the board of management, should be
worn. In the event that the management does mandate a uniform,
students should wear clothes that are in the interests of unity,
equality and public order.
B
By the Order of the Governor of Karnataka,
And in his name Padmini SN
Joint Secretary to the Government Education Department (Pre-
University)
*Substituted by the Corrigendum/Addendum dated 5.2.2022 C
**Inserted by the Corrigendum/Addendum dated 5.2.2022"
15. The Karnataka Education Act, 19839, under which the above
Government Order has been issued, was enacted with a view to foster
the harmonious development of the mental and physical faculties of
students and cultivate a scientific and secular outlook through education. D
The long title and some of the relevant provisions of the Act read thus:
“An Act to provide for better organisation, development, discipline
and control of the educational institutions in the State.
Whereas it is considered necessary to provide for the planned
development of educational institutions inculcation of healthy E
educational practice, maintenance and improvement in the
standards of education and better organisation, discipline and
control over educational institutions in the State with a view to
fostering the harmonious development of the mental and physical
faculties of students and cultivating a scientific and secular outlook F
through education;
Section-5. Promotion of education of the weaker sections and the
handicapped. – The State Government shall endeavour to promote
the education of the handicapped, backward classes and the weaker
sections of the society including the economically weaker section G
thereof and in particular of the Scheduled Castes, Scheduled Tribes
with special care by adopting towards that end such measure as
may be appropriate.
xx xx xx
9
For short, the ‘Act’ H
456 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Section-7. Government to prescribe curricula, etc. – (1) Subject
to such rules as may be prescribed, the State Government may, in
respect of educational institutions, by order specify,-
xx xx xx
(h) the facilities to be provided, such as buildings, sanitary
B arrangements, playground, furniture, equipment, library, teaching
aid, laboratory and workshops;
(i) such other matters as are considered necessary.
(2) The curricula under sub-section (1) may also include schemes
C in respect of,-
xx xx xx
(v) 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
D derogatory to the dignity of women;
(vi) to value and preserve the rich heritage of our composite
culture;
xx xx xx
E (viii) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
xx xx xx
(x) to strive towards excellence in all spheres of individual and
collective activity, so that the nation constantly rises to higher levels
F of endevaour and achievement.”
16. The Act also contemplates withdrawal of recognition if any
local authority or the Governing Council of any private educational
institution denies admission to any citizen on the ground of religion, race,
caste, language or any of them [Section 39 (1)(b)]; or directly or indirectly
G encourages in the educational institution any propaganda or practice
wounding the religious feelings of any class of citizens of India or insulting
religion or the religious belief of that class [Section 39 (1)(c)].
17. The impugned Government Order has been issued by
exercising the powers conferred under Section 133 of the Act, which
H reads as thus:
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 457
[HEMANT GUPTA, J.]

“133. Powers of Government to give directions.- (1) The State A
Government may, subject to other provisions of this Act, by order,
direct the Commissioner of Public Instruction or the Director or
any other officer not below the rank of the District Educational
Officer to make an enquiry or to take appropriate proceeding
under this Act in respect of any matter specified in the said order B
and the Director or the other officer, as the case may be, shall
report to the State Government in due course the result of the
enquiry made or the proceeding taken by him.
(2) The State Government may give such directions to any
educational institution or tutorial institution as in its opinion are C
necessary or expedient for carrying out the purposes of this Act
or to give effect to any of the provisions contained therein or of
any rules or orders made thereunder and the Governing Council
or the owner, as the case may be, of such institution shall comply
with every such direction.
D
(3) The State Government may also give such directions to the
officers or authorities under its control as in its opinion are necessary
or expedient for carrying out the purposes of this Act, and it shall
be the duty of such officer or authority to comply with such
directions.”
E
18. The State Government is also empowered to make rules to
carry out the purposes of this Act under Section 145 of the Act. Sub-
section (2) thereof provides that in particular and without prejudice to
the generality of the foregoing power, the Rules may provide for the
establishment or maintenance and administration of educational F
institutions [Section 145 (2)(xii)]; the purposes for which the premises
of the educational institutions may be used and the restrictions and
conditions subject to which such premises may be used for any other
purpose [Section 145 (2)(xxix)]; and all matters expressly required by
the Act to be prescribed or in respect of which the Act makes no provision
or makes insufficient provision and a provision is, in the opinion of the G
State Government, necessary for the proper implementation of the Act
[Section 145 (2)(xL)].
19. In pursuance of the above statutory provisions, the Karnataka
Educational Institutions (Classification, Regulation and Prescription of
H
458 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Curricula etc.) Rules, 199510 were framed. Rule 11 of the said Rules
provides for uniform, clothing, text books etc., which reads thus:
“11. Provision of Uniform, Clothing, Text Books etc., (1) Every
recognised educational institution may specify its own set of
Uniform. Such uniform once specified shall not be changed within
B the period of next five years.
(2) When an educational institution intends to change the uniform
as specified in sub-rule (1) above, it shall issue notice to parents in
this regard at least one year in advance.
(3) Purchase of uniform clothing and text books from the school
C or from a shop etc., suggested by school authorities and stitching
of uniform clothing with the tailors suggested by the school
authorities, shall be at the option of the student or his parent. The
school authorities shall make no compulsion in this regard.”
20. Rule 16 of the Rules provides for the constitution and functions
D of District Level Education Regulating Authority. An order was passed
by the State on 31.1.2014 constituting College Betterment Committee
for the purpose of proper utilization of the grants sanctioned to it and for
developing basic infrastructure and maintaining the quality of education.
Such Committee is chaired by Member of Legislative Assembly as well
E as representatives of parents, one of whom is a woman, one SC/ST,
another member with an interest in educational field, two student
representatives out of which one shall be girl, Vice Principal/Senior
Teacher of High School and Senior Lecturers of the college. The principal
of the respective college is the Member Secretary. Such College
Betterment Committee of the Government Pre-University College for
F Girls, Udupi, on 23.6.2018, passed the following resolution:
“RESOLUTION
xx xx xx
4. Further, it is resolved to maintain the same uniform in this year
G also as maintained in the last year like blue colored chudidar pant,
white colored with blue color checks top and blue pant colored
shawl on the shoulders, in all the six days of the week. Also, it is
decided to handover the responsibility of providing the uniform to
the poor girl students from the donors, to the Vice- President
10
H For short, the ‘Rules’
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 459
[HEMANT GUPTA, J.]

Yashpal Suvarna and powers were given to the Principal to take A
decision to after checking availability of the uniform in the shops.”
21. The challenge to the Circular dated 5.2.2022 before the High
Court remained unsuccessful on various grounds which are not necessary
to be extracted herein.
B
22. Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan,
Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr.
A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr.
Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, learned Senior
Advocates and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. Rishad
Ahmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms. C
Thulasi K. Raj, Mohd. Nizamuddin Pasha, learned counsels have assisted
the Court in this matter on behalf of the appellants; whereas, Mr. Tushar
Mehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General,
Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka,
Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu, learned Senior
D
Advocates, argued on behalf of the Respondents. The arguments covered
various issues which will be dealt with hereinafter at appropriate stages.
23. We have heard learned counsels for the parties at length. I
find that the following questions arise for consideration in the present
appeals:
E
“(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 F
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? G
(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?
H
460 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (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?
B (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
C 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 pre- condition for accessing education in a
D 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
E 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?”
Question (i)- Whether the appeals should be heard along with
F
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?
24. The preliminary submission of learned counsel for the appellants
is that the present case ought to be referred to a larger bench in view of
G the order of this Court reported as Kantaru Rajeevaru (Sabarimala
Temple Review-5J.) v. Indian Young Lawyers Association & Ors.11.
One of the arguments raised for such submission was that it has to be
decided as to what is considered to be essentially religious, essential to

11
H (2020) 2 SCC 1
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 461
[HEMANT GUPTA, J.]

religion and integral part of religion. The contention was that “religion” A
is a means to express one’s “faith”. The larger Bench of this Court
framed the questions of law in an order12. However, the reasons13
recorded for the reference state the ambit to be “the contours of judicial
review in matters pertaining to essential religious practices”. The
questions referred to in the said case relate to the extent to which the
B
Court can inquire into the issue as to whether a particular practice would
be qualified as an integral, essential part of religion.
25. It was also argued that the present case involves a substantial
question of law relating to interpretation of the Constitution, therefore,
ought to be referred to a Constitution Bench in terms of Article 145(3) C
of the Constitution.
26. It is noted that the review in Kantaru Rajeevaru (Right to
Religion, In Re-9J.) is to consider much wider questions. The argument
that the matter should be referred to a larger Bench to be heard along
with such referred cases does not warrant consideration. The questions D
referred to the larger Bench relate to power of judicial review in the
matters of essential religious practices. But the said question need not
be examined in the present matter as the issue herein is whether a religious
practice, which may be an essential religious practice, can be regulated
by the State in a secular institution. Therefore, I do not find it necessary
to tag the present appeals along with Kantaru Rajeevaru. E

27. The argument that the present appeals involve a substantial
question of law as to the interpretation of the Constitution, and thus
should be referred to the Bench of Five Judges in terms of Article 145(3)
of the Constitution is not tenable. Reliance is placed on a 9-Judges bench
F
judgment reported as K.S. Puttaswamy and Anr. v. Union of India &
Ors.14, wherein this Court held “When a substantial question as to
the interpretation of the Constitution arises, it is this Court and this
Court alone under Article 145(3) that is to decide what the
interpretation of the Constitution shall be, and for this purpose, the
Constitution entrusts this task to a minimum of 5 Judges of this G
Court”.

12
(2020) 3 SCC 52
13
(2020) 9 SCC 121
14
(2017) 10 SCC 1 H
462 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 28. There is no dispute about the proposition canvassed. The issue
in the present matter is however as to whether the students can enforce
their religious beliefs in a secular institution. Thus, the issues raised do
not become a substantial question of law as to the interpretation of the
Constitution only for the reason that the right claimed by the appellants
is provided under the Constitution. Hence, I do not find the need to refer
B
the matter to a larger bench or that the same should be heard along with
Kantaru Rajeevaru.
Question (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
C 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?
29. The argument raised is with reference to Section 143 of the
Act. It is contended that the State Government can delegate all or any
D of its powers exercisable by it, or to be exercised also by such office/
authority subordinate to the State Government, as may be specified in
the notification. It is the contention of the learned counsel for the appellants
that the notification dated 31.1.2014 is to delegate the essential State
functions in favour of a non-statutory authority. Therefore, such
E notification violates the mandate of Section 143 of the Act. Section 143
of the Act reads thus:
“143. Delegation. – The State Government may by notification in
the official gazette, delegate all or any powers exercisable by it
under this Act or rules made thereunder, in relation to such matter
F and subject to such conditions, if any as may be specified in the
direction, to be exercised also by such officer or authority
subordinate to the State Government as may be specified in the
notification.”
30. It is contended by the learned counsel for the appellants that
G the power to maintain public order is the responsibility of the State
Government and, therefore, the State Government could not delegate its
authority to College Development Committee which is not State within
the meaning of Article 12 as it is a mechanism created by the State. The
Circular issued by the Government of Karnataka dated 31.1.2014,
published in the official Gazette, reads thus:
H
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 463
[HEMANT GUPTA, J.]

“Government of Karnataka A
No. ED 580 SHH 2013 Department of Education
Multistore Building
Bangalore dated 31-01-2014
CIRCULAR
B
Education department is providing 1 st and 2nd PUC
education in the state. PUC education is the main stage in the
student’s life. In accordance with the government and department
direction and in order to utilise the grants as well as in maintaining
academic standards and development of infrastructure, we are
hereby directed to form a college development committee and to C
follow the guidelines as under:

D

E

F

G
SD/ 31-01-2014
(S.H. Curiyavar)
Under Secretary to the Govt
Dept of Education (P.U Education).” H
464 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 31. Furthermore, learned counsels for the appellants have also
vehemently argued that the Government Order dated 5.2.2022 refers to
some of the judgments which do not deal with the issue of wearing hijab,
but still it is concluded that use of headscarf or a garment covering the
head is not in violation of Article 25. It is averred that though the operative
part of the order seems to be facially religious-neutral, it targets a
B
particular community in effect. It is also contended that the High Court
has supplanted the reasons to uphold the said Government Order even
though the reasons recorded therein are not sufficient to prohibit the use
of headscarf. Hence, at the outset, the State ought to prove the jurisdiction
to issue such a circular.
C 32. The alternate argument is that the College Development
Committee, a non-statutory authority, cannot exercise power of the State
Government under Part III of the Constitution. It was contended that
the law which can restrict the right of an individual under Article 19(1)(a),
Article 25(2), or any other right falling within part III of the Constitution,
D can only be by way of a law made by the competent legislature. Mr.
Shoeb Alam referred to judgments of this Court reported as State of
Madhya Pradesh & Anr. v. Thakur Bharat Singh15, State of West
Bengal v. Anwar Ali Sarkar16, Bishambhar Dayal Chandra Mohan
& Ors. v. State of Uttar Pradesh & Ors.17 and a recent order passed
by this Court reported as Pharmacy Council of India v. Rajeev College
E of Pharmacy & Ors. 18 to support such contention. However, Mr.
Dushyant Dave argued that the rights in Part III of the Constitution can
be restricted or regulated by a statute made by competent legislature
and also includes any law as defined under Article 13(2) & (3) of the
Constitution. Articles 13(2) and (3) of the Constitution are relevant for
F the purposes of the present proposition, which reads thus:
“13. Laws inconsistent with or in derogation of the
fundamental rights.—
xx xx xx
(2) The State shall not make any law which takes away or abridges
G the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
15
AIR 1967 SC 1170
16
AIR 1952 SC 75
17
(1982) 1 SCC 39
18
H 2022 SCC OnLine SC 1224
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 465
[HEMANT GUPTA, J.]

(3) In this article, unless the context otherwise requires,— A
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;”
33. I do not find any merit in the said argument raised by the B
appellants. The College Development Committee is envisaged to be an
in-house mechanism to ensure better utilization of grants as well as
maintaining academic standards and development of infrastructure. Such
directions are relatable to sub-section (3) of Sections 133 and 145 of the
Act. In any case, the constitution of the College Development Committee
is not in conflict with any of the provisions of the Act. The said circular C
was published in the Karnataka Gazette, issued in exercise of the executive
powers of the State, supplementing the provisions of the Act and not
supplanting all or any of the provisions thereof.
34. The Government Order is in two parts. The first part is the
Preamble which gives the background leading to the order impugned D
before the High Court. The second part, i.e., the operative part of the
order alone bears the Government Order number and date. The order
mandates that the uniform prescribed by the College Development
Committee or the Board of Management should be worn. The appellants
have though understood the order to be interfering with their essential E
religious practices.
35. The executive power under Article 73 extends to all matters
in respect of which the Parliament has power to make laws or under
Article 162 in respect of the matters where legislature of the State has
power to make laws.19 The question is whether restrictions can be imposed F
by the executive in respect of the rights specified under Part III such as
Articles 19, 21, 25 and 31A.
36. There is no dispute about the proposition that in the absence
of any statute or the statutory rule, but in exercise of the executive
power, the State can issue an executive order. However, the argument G
raised is that restrictions under Part III of the Constitution can only be
imposed by way of a statutory law and not by way of an executive
power.

19
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 H
466 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 37. Now, coming to the judgments referred to by the learned
counsel for the appellant for the abovementioned contention; in Anwar
Ali Sarkar, this Court was considering the conviction of the respondent
by the Special Court established under Section 3 of the West Bengal
Special Courts Ordinance, 1949, which was replaced by the West Bengal
Special Courts Act, 1950. It was the provision of the Act which was set
B
aside being discriminatory. This Court, in fact, inter-alia held that “this
is further made clear by defining “law” in Article 13 (which renders
void any law which takes away or abridges the rights conferred by
part III) as including, among other things, any “order” or
“notification”, so that even executive orders or notifications must
C not infringe Article 14. The trilogy of articles thus ensures non-
discrimination in State action both in the legislative and the
administrative spheres in the democratic republic of India”. Thus,
the said judgment is thus not helpful to the argument raised.
38. In Thakur Bharat Singh, this Court dismissed an appeal filed
D by the State against the judgment of the High Court reported as Thakur
Bharat Singh v. State of M.P. & Anr.20. The High Court struck down
Section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 when
the writ petitioner before the High Court was prohibited to be in Raipur
District and was directed to remain within the municipal limits of Jhabua
District and was also ordered to report daily to the Police Station Officer,
E Jhabua. The High Court held as under:
“For the foregoing reasons, our conclusion is that clauses (a) and
(c) of section 3(1) of the Act are valid, but clause (b) being violative
of article 19(1)(d) of the Constitution is invalid. As clause (b) is
invalid, the direction made against the appellant Bharatsingh under
F that clause asking him to reside in Jhabua was clearly illegal and
was rightly quashed by the learned Single Judge. On quashing
that direction, the further direction that Bharatsingh should notify
his movements by reporting himself daily to the Police Station
Officer, Jhabua, cannot survive. The learned Single Judge,
G therefore, rightly quashed the order made against Bharatsingh
directing him to notify his movements and report himself daily to
the Police Station Officer, Jhabua, though he did so on the
erroneous view that clause (c) of section 3(1) was inextricably

20
H AIR 1964 MP 175
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 467
[HEMANT GUPTA, J.]

woven with clause (b) thereof and was invalid. The result is that A
both these appeals are dismissed. In the circumstances of the
case, we leave the parties to bear their own costs of the two
appeals.”
39. An appeal against the said judgment was dismissed by this
Court wherein this Court held as under: B
“7. We are therefore of the view that the order made by the State
in exercise of the authority conferred by Section 3(1)(b) of the
Madhya Pradesh Public Security Act 25 of 1959 was invalid and
for the acts done to the prejudice of the respondent after the
declaration of emergency under Article 352 no immunity from the C
process of the Court could be claimed under Article 358, of the
Constitution, since the order was not supported by any valid
legislation.”
40. The aforementioned judgment is in respect of the statute
enacted by a State Legislature, the provision of which was found to be D
invalid. The issue raised in the aforesaid case has no parity with the
facts of the present case.
41. In Bishambhar Dayal Chandra Mohan, the State Government
contended that the impugned teleprinter message dated March 31, 1981
was in the nature of an executive instruction issued by the State E
Government under its powers under Article 162 of the Constitution for
the due observance of the provisions of the U.P. Foodgrains Dealers
(Licensing and Restriction on Hoarding) Order, 1976 and the Uttar
Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978.
It was the stand of the State that no person can carry on business in
foodgrains as a dealer or as a commission agent, except under and in F
accordance with the terms and conditions of a valid licence issued in
that behalf under the two orders. In these circumstances, this Court held
as under:
“33. Under Article 19(1)(g) of the Constitution, a citizen has the
right to carry on any occupation, trade or business and the only G
restriction on this unfettered right is the authority of the State to
make a law imposing reasonable restrictions under clause
(6)............
41. There still remains the question whether the seizure of wheat
amounts to deprivation of property without the authority of law. H
468 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Article 300-A provides that no person shall be deprived of his
property save by authority of law. The State Government cannot
while taking recourse to the executive power of the State under
Article 162, deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere executive
fiat or order. Article 162, as is clear from the opening words, is
B
subject to other provisions of the Constitution. It is, therefore,
necessarily subject to Article 300-A. The word “law” in the
context of Article 300-A must mean an Act of Parliament or of a
State legislature, a rule, or a statutory order, having the force of
law, that is positive or State made law…”
C 42. The writ petitions filed by the dealers were dismissed. In the
aforesaid case, the restriction was put by an executive order, which was
found to be a reasonable restriction in terms of Article 19(6) of the
Constitution. Even the said judgment does not aid the appellants and has
no applicability to the facts of the present case.
D 43. Furthermore, reliance on a recent judgment of this Court
reported as Pharmacy Council of India is unfound as it has no parity
with the facts of the present case. The Pharmacy Council of India, an
authority created under the Pharmacy Act, 1948, resolved on 17.7.2019
to put a moratorium on the opening of new pharmacy colleges for running
E Diploma as well as Degree courses in pharmacy for a period of five
years. The argument raised by the appellant was that Sections 3, 10 and
12 of the Pharmacy Act confer the power to regulate, therefore, such
power would include the power to prohibit also. This Court negated
such an argument and held as under:
“55. Since we have held that the Resolutions/communications dated
F 17th July 2019 and 9th September 2019 of the Central Council of
the appellant-PCI, which are in the nature of executive instructions,
could not impose restrictions on the fundamental right to establish
educational institutions under Article 19(1)(g) of the Constitution
of India, we do not find it necessary to consider the submissions
G advanced on other issues. We find that the Resolutions/
communications dated 17th July 2019 and 9th September 2019 of
the Central Council of the appellant-PCI are liable to be struck
down on this short ground.”
44. A perusal of the above judgment shows that an authority under
H the Act had put a moratorium on the opening of new pharmacy colleges,
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 469
[HEMANT GUPTA, J.]

thus, prohibiting the right conferred on an individual under Article 19(1)(g) A
of the Constitution. The same however was by virtue of a resolution not
supported by any statute. Therefore, the said judgment of this Court has
no applicability to the facts of the present case.
45. Furthermore, this Court in a judgment reported as Shri Dwarka
Nath Tewari v. State of Bihar21 was considering Article 182 of the B
Bihar Education Code. The Court found that Article 182 of the Code is
not in exercise of any power granted under the statute and thus cannot
deprive the petitioners of their rights in the properties which were the
subject matter of the writ petition. This Court held as under:
“13. It is clear, therefore, from the portion of the preface extracted C
above, that Article 182 of the Code has no greater sanction than
an administrative order or rule, and is not based on any statutory
authority or other authority which could give it the force of law.
Naturally, therefore, the learned Solicitor-General, with his usual
fairness, conceded that the article relied upon by the respondents
as having the force of law, has no such force, and could not, D
therefore, deprive the petitioners of their rights in the properties
aforesaid.”
46. “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, E
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.
F
47. 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 G
by the College Development Committee.
48. The College Development Committee so constituted consists
of Member of the Legislative Assembly, representatives of the students,

21
AIR 1959 SC 249 H
470 SUPREME COURT REPORTS [2022] 5 S.C.R.

A faculty members etc. Therefore, such authority is a representative body
of the students and teachers including the Member of the Legislative
Assembly and Principal of the College as Member Secretary. Such
Committee cannot be said to be beyond the scope of Section 143 of the
Act. Such authority established in exercise of the powers vested with
the State Government is not in contravention of any of the provisions of
B
the statute. In terms of Article 162 of the Constitution, the State
Government in exercise of its executive power could create the College
Development Committee as such Committee does not contravene any
of the provisions of the statute or the rules framed thereunder.
49. In view of the above, I find that the State Government has the
C power to constitute a College Development Committee by notification
dated 31.1.2014 in terms of Section 143 of the Act. The State Government
could confer its power to be exercised by such office/authority subordinate
to the State Government. It is noted that the word ‘authority’ has not
been defined under the Act. The authority contemplated by the Act could
D be a non-statutory authority such as of a person or a group of persons
who may be authorized to exercise powers under Section 143 of the
Act.
50. Further, it is well settled that executive powers can be used to
supplement the statutory rules. This Court in a judgment reported as
E Sant Ram Sharma v. State of Rajasthan & Ors.22 held that it is true
that Government cannot amend or supersede statutory rules by
administrative instructions, but if the rules are silent on any particular
point, the Government can fill up the gaps and supplement the rules and
issue instructions not inconsistent with the rules already framed
thereunder. This Court in a judgment reported as Union of India &
F Anr. v. Ashok Kumar Aggarwal23 held as under:
“59. The law laid down above has consistently been followed and
it is a settled proposition of law that an authority cannot issue
orders/office memorandum/executive instructions in contravention
of the statutory rules. However, instructions can be issued only to
G supplement the statutory rules but not to supplant it. Such
instructions should be subservient to the statutory provisions. (Vide
Union of India v. Majji Jangamayya [(1977) 1 SCC 606 : 1977

22
AIR 1967 SC 1910
23
H (2013) 16 SCC 147
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 471
[HEMANT GUPTA, J.]

SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3 A
SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272], Paluru
Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989
SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166], C.
Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 :
1998 SCC (L&S) 1448]and Joint Action Committee of Air Line
B
Pilots’ Assn. of India v. DG of Civil Aviation [(2011) 5 SCC
435 : AIR 2011 SC 2220] .)”
51. The Preamble of the Act aims towards fostering harmonious
development of the mental and physical faculties of students and cultivating
a scientific and secular outlook through education.
C
52. The curricula under Section 7(2) of the Act is 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, to
value and preserve the rich heritage of our composite culture, to develop
scientific temper, humanism and the spirit of inquiry and reform and to D
strive towards excellence in all spheres of individual and collective activity,
so that the nation constantly rises to higher levels of endeavor and
achievement. The said provision is substantially pari materia with the
fundamental duties enumerated in Part IV-A of the Constitution inserted
by 42nd Amendment, required to be followed by the institutions covered E
under the Act.
53. The said provisions show that the mandate of the statute is to
renounce sectional diversities, to develop humanism and to cultivate
scientific and secular outlook. The sectarian approach that certain
students will carry their religious beliefs to secular schools run by the F
State would be antithesis of the mandate of the statute. All students
need to act and follow the discipline of the school. Out of the many steps
required to ensure uniformity while imparting education, one of them is
to wear the uniform dress without any addition or subtraction to the
same. Any modification to the uniform would cease to be the uniform,
defeating the very purpose of prescribing under Rule 11 and as mandated G
by the College Development Committee.
54. Mr. Dushyant Dave referred to an extract which appears to
be from a booklet published by the Department of Pre-University
Education containing guidelines for the year 2021-2022. It is contended
that such guidelines have contemplated that uniform is not mandatory H
472 SUPREME COURT REPORTS [2022] 5 S.C.R.

A and that some College Principals and Management Committee have
imposed uniforms as mandatory, which is illegal. The relevant clause
reads as under:
“Uniform is not mandatory for students studying in Pre University
college under Government / Pre University Education Department
B / Education Act. But some college principals and management
committee members have imposed uniforms as mandatory which
is illegal. Any violation of the foregoing instructions will be taken
seriously.”
55. In respect of the said contention, I find that the students were
C following uniform prescribed by the College Development Committee.
It is not the case of any of the students that they were not wearing
uniform for the academic session 2021-22. The only claim raised was in
relation to right to wear the headscarf during the academic year 2021-
22, the year in controversy, and to which the guidelines relate. The
recognized educational institution in terms of Section 2(30) of the Act
D means an educational institution recognized under the Act and includes
one deemed to be recognized thereunder. The recognition of educational
institutions is contemplated by Section 36 of the Act whereas the
educational institutions established and run by the State Government or
by the authority sponsored by the Central or the State Government or by
E a local authority and approved by the competent authority shall be deemed
to be the educational institution recognized under the Act. The students
are not disputing the mandate to wear uniform. It appears that the
guidelines have been made part of the brochure without taking into
consideration Rule 11 of the Rules which contemplates that every
recognised educational institution may specify its own set of uniform.
F Therefore, the guidelines run counter to the statutory Rule 11 framed in
exercise of the powers conferred under Section 145 of the Act. Thus,
the uniform, having been prescribed in terms of the Act and the rules
framed thereunder, the guidelines to the contrary are non-est and in
any case had not been followed during the academic year in question.
G 56. The Government Order dated 5.2.2022 contemplates that the
prescribed uniform should be followed. It necessarily excludes all religious
symbols visible to naked eye. The argument that the students wear
Rudraksha or a Cross is mentioned only to deal with an argument so
raised. Anything worn by the students under his/her shirt cannot be said
H to be objectionable in terms of the Government Order issued.
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 473
[HEMANT GUPTA, J.]

57. In view of the above enunciation of law, I do not find that the A
constitution of the College Development Committee 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.
Question (iii)- What is the ambit and scope of right to freedom of
‘conscience’ and ‘religion’ under Article 25? B
58. At the outset, it is pertinent to mention that the Constitution
does not define the term ‘Religion’, though it is used in Articles 15, 16,
25, 26, 27, 28 and 30. The Articles which are under consideration for the
purpose of present appeals read thus:
“14. Equality before law.—The State shall not deny to any person C
equality before the law or the equal protection of the laws within
the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste,
sex or place of brith.—(1) The State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of D
birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public E
entertainment; or
(b) xx xx xx
19. Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression; F

xx xx xx
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation
of any existing law, or prevent the State from making any law, in
so far as such law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of the G
sovereignty and integrity of India,] the security of the State, friendly
relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an
offence.
xx xx xx H
474 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 25. Freedom of conscience and free profession, practice and
propagation of religion.—(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.
B (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;
C (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.”
59. Mr. Huzefa Ahmadi and Mr. Dushyant Dave have quoted
from the proceedings of the Constituent Assembly Debates, to bring
D about the thought process which had gone into to present the Constitution
to the people of India. Mr. Ahmadi relies upon the speech of Dr.
Ambedkar to the Constituent Assembly on 25.11.1949 (Constituent
Assembly Debates, Volume XI, Page 979) to the following effect:
“The third thing we must do is not to be content with mere political
E democracy. We must make our political democracy a social
democracy as well. Political democracy cannot last unless there
lies at the base of it social democracy. What does social
democracy mean? It means a way of life which recognizes
liberty, equality and fraternity as the principles of life. These
F principles of liberty, equality and fraternity are not to be
treated as separate items in a trinity. They form a union of
trinity in the sense that to divorce one from the other is to defeat
the very purpose of democracy. Liberty cannot be divorced from
equality, equality cannot be divorced from liberty. Nor can
liberty and equality be divorced from fraternity. Without
G equality, liberty would produce the supremacy of the few over the
many. Equality without liberty would kill individual initiative.
Without fraternity, liberty would produce the supremacy of the
few over the many. Equality without liberty would kill individual
initiative. Without fraternity, liberty and equality could not
become a natural course of things.”
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 475
[HEMANT GUPTA, J.]

60. Mr. Dave referred to the report dated 25.5.1949 of the Advisory A
Committee on Minorities by the Constituent Assembly, presided by
Hon’ble Sardar Vallabhbhai J. Patel, wherein it was stated as under:
“It is not our intention to commit the minorities to a particular
position in a hurry. If they really have come honestly to the
conclusion that in the changed conditions of this country, it is in B
the interest of all to lay down real and genuine foundations of a
secular State, then nothing is better for the minorities than to trust
the good-sense and sense of fairness of the majority, and to place
confidence in them. So also it is for us who happen to be in a
majority to think about what the minorities feel, and how we in
their position.” C

61. In Constituent Assembly Debates, Volume V, dated 27.8.1947,
it was opined as under:
“The Draft Constitution is also criticised because of the safeguards
it provides for minorities. In this, the Drafting Committee has no D
responsibility. It follows the decisions of the Constituent Assembly.
Speaking for myself, I have no doubt that the Constituent Assembly
has done wisely in providing such safeguards for minorities as it
has done. In this country both the minorities and the majorities
have followed a wrong path. It is wrong for the majority to deny
the existence of minorities. It is equally wrong for the minorities E
to perpetuate themselves. A solution must be found which will
serve a double purpose. It must recognize the existence of the
minorities to start with. It must also be such that it will enable
majorities and minorities to merge someday into one. ..............”
62. In the Constituent Assembly Debate dated 6.12.1948, while F
considering the draft Article 19, which is now Article 25, Pandit Lakshmi
Kanta Maitra expressed his views as follows:
“By secular State, as I understand it, is meant that the State is not
going to make any discrimination whatsoever on the ground of
religion or community against any person professing any particular G
form of religious faith. This means in essence that no particular
religion in the State will receive any State patronage whatsoever.
The State is not going to establish, patronize or endow any
particular religion to the exclusion of or in preference to others
and that no citizen in the State will have any preferential treatment
H
476 SUPREME COURT REPORTS [2022] 5 S.C.R.

A or will be discriminated against simply on the ground that he
professed a particular form of religion. In other words in the affairs
of the State the professing of any particular religion will not be
taken into consideration at all. This I consider to be the essence
of a secular state.”
B 63. Mr. Kamat also referred to the proposed amendment moved
by Mr. Tajamul Husain on 3rd December, 1948 proposing an amendment
to the following effect:
“No person shall have any visible sign or mark or name, and no
person shall wear any dress whereby his religion may be
C recognised.”
64. The argument raised is that since the amendment was not
accepted, therefore, the citizens have a right to have visible sign mark or
name or dress so that their religion may be recognized. Though the
amendment was not moved, but the fact that such discussion had taken
D place in the Constituent Assembly shows that the Constituent Assembly
was aware of wearing of different clothing by the people of India which
the member was suggesting to be not carried out. Since the Constitution
is silent about the clothes to be worn by the citizens, therefore, the concern
shown by a member of the Constituent Assembly should not be put
E under the carpet. In fact, Mr. Tajamul Husain further raised an argument
as under:
“Mr. Tajamul Husain: I wish to point out that religion is a private
affair between man and his God. It has no concern with anyone
else in the world. What is the religion of others is also no concern
F of mine. Then why have visible signs by which one’s religion may
be recognised? You will find, Sir, that in all civilized countries—
and civilized countries now-a-days are the countries in Europe
and America—there is no visible sign or mark by which a man
can be recognised as to what religion he professes.

G xx xx xx
So I do not want these things. I know I am 100 years ahead of the
present times. But still, I shall have my say.
In civilized countries in England there was a time when there was
no uniformity of dress. In this country you find all sorts of dresses.
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 477
[HEMANT GUPTA, J.]

You find dhoties, you find pyjamas, you find kurtas, you find shirts, A
—and again, no shirts, no dhoties, nakedness, all sorts of things.
That was the same thing in England at one time.
xx xx xx
Mr. Tajamul Husain: I am sorry for the interruption of the
Maulana. My name I will change when the whole country adopts B
my resolution. Then, he will not be able to find out what I am and
who I am.
Now, Sir, I was talking about dress. There was a England when
there was no uniformity, but the Honourable the Law Minister
will agree with me that an Act was actually passed in Parliament C
by which there was uniformity of dress and now in England and
in the whole of Europe and in America there is uniformity of dress.
We are one nation. Let us all have one kind of dress; one kind of
name; and no visible signs. In conclusion, I say we are going to be
a secular State. We should not, being a secular State, be recognised D
by our dress. If you have a particular kind of dress, you know at
once that so and so is a Hindu or a Muslim. This thing should be
done away with. With these words, I move my amendment.
(Amendment 589 and 583 were not moved.)”
65. On the other hand, learned Solicitor General referred to the E
speech of Dr. B.R. Ambedkar in the Constituent Assembly Vol. VII, p.
781, which reads as under:
“The religious conceptions in this country are so vast that they cover
every aspect of life from birth to death. There is nothing
extraordinary in saying that we ought to strive hereafter to limit F
the definition of religion in such a manner that we shall not extend
it beyond beliefs and such rituals as may be connected with
ceremonials which are essentially religious.”
66. In respect of the Constituent Assembly Debates, this Court in
A.K. Gopalan v. State of Madras24 held that the Court could only search G
for the objective intent of the legislature primarily in the words used in
the enactment, aided by such historical material such as reports of statutory
committees. The Court did not put any importance on the speeches made

24
AIR 1950 SC 27 H
478 SUPREME COURT REPORTS [2022] 5 S.C.R.

A by some of the members of the Constituent Assembly in the course of
the debate on Article 15 (now Article 21). The result appears to be that
while it is not proper to take into consideration the individual opinions of
Members of Assembly to construe the meaning of a particular clause,
when a question is raised whether a certain phrase or expression was
up for consideration at all or not, a reference to the debates may be
B
permitted.
67. In State of Travancore-Cochin & Ors. v. Bombay Company
Ltd., Alleppey25, this Court held that the speeches made by the members
of the Constituent Assembly in the course of debates on the draft
Constitution is unwarranted. It was noted that this form of extrinsic aid
C to the interpretation of statutes is not admissible has been generally
accepted in England, and the same rule has been observed in the
construction of Indian statutes as well — see Administrator-General
of Bengal v. Prem Nath Mallick [22 IA 107, 118].
68. In a nine-Judges Bench judgment in Indra Sawhney & Ors.
D v. Union of India & Ors.26, this Court held that what is said during the
debates is not conclusive or binding upon the Court because several
members may have expressed several views, all of which may not be
reflected in the provision finally enacted. Therefore, views of the members
of the Constituent Assembly are not really to be relied upon after this
E Court in a number of judgments have expressed about the rights under
Article 25 of the Constitution.
69. Thus, the debates show the in-depth knowledge of the members
of the Constituent Assembly at that relevant point of time, but more than
70 years later, with the interpretation of various provisions by the
F Constitutional Courts, it is not advisable to rely solely upon views of the
individual members in such debates.
70. Further, the argument of Mr. Dave is that Article 25 protects
religious practices and that the expression ‘essential religious practice’
has been wrongly used by this Court in Shayara Bano v. Union of
G India & Ors.27. It was contended that the judgment in Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt28 has not used the expression ‘essential
25
AIR 1952 SC 366
26
1992 Supp (3) SCC 217
27
(2017) 9 SCC 1
H 28
AIR 1954 SC 282 (1954 SCR 1005)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 479
[HEMANT GUPTA, J.]

religious practice’. Therefore, wearing of a headscarf may not be A
essential, but is a religious practice, thus, protected by Article 25.
71. Dr. Dhawan, in support of his arguments, argued that the
rights available to the students are the right to dress, free speech and
expression not affecting public order or morality and the right of privacy,
relying upon judgments in National Legal Services Authority v. Union B
of India & Ors.29 and K.S. Puttaswamy. It is contended that wearing
of hijab is an essential religious practice, and that the action of the State
is discriminatory on the grounds of religion and sex.
72. Mr. Tushar Mehta, learned Solicitor General appearing for
the State rebutted the arguments raised on behalf of the appellants and C
gave the background of issuance of the Government Order dated
5.2.2022. He submitted that on 29.3.2013, the College Development
Committee, Udupi, prescribed the uniform for the girl students and since
then the same was being followed by them. On 31.1.2014, a circular
was issued by the Government regarding formation of a College
D
Development Committee comprising inter alia the local member of the
Legislative Assembly, representatives of parents, student representatives
and teachers and Principal of the Pre-University College.
73. It was on 23.6.2018, that the College Development Committee,
Udupi, prescribed a dress code for the students. On 31.12.2019, the
E
College Development Committee of another College i.e., Kundapura
Pre-University College, Udupi, unanimously resolved that the uniform
of the students for the academic year would continue to be same as one
prescribed in the previous years.
74. The students at the time of admission to the pre-university F
course undertook to comply with all the rules and regulations of the Pre-
University College. It was pointed out that suddenly in the middle of the
academic term, the issue of hijab was generated in the social media by
the activists of Popular Front of India. The police papers in this respect
were handed over to the High Court in a sealed cover as mentioned on
page 126 of the order of the High Court. It is stated that the chargesheet G
has since been filed. Thereafter, some representations were made by
the parents of the students and/or students requesting hijab to be worn in
classrooms.

29
(2014) 5 SCC 438 H
480 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 75. The College Development Committee directed to maintain
status quo. Five students thereafter filed Writ Petition No. 2146 of 2022
on 29.1.2022 seeking an interim prayer that they be allowed to continue
to attend school wearing headscarves. On 31.1.2022, the College
Development Committee, Udupi, decided that students must not wear
hijab in classrooms whereas the Kundapura Pre-University College
B
resolved it on 2.2.2022. There was a counter-reaction for the demands
raised. It is in these circumstances that the Government issued the
impugned order.
76. It is contended that such directions were issued to the colleges/
institutions and not to the individual students as per the mandate of the
C Act. The Preamble of the Act is to provide for the planned development
of educational institutions, inculcating healthy educational practice,
maintenance and improvement in the standards of education, better
organization, discipline and control over educational institutions so as to
cultivate a scientific and secular outlook through education. Section 133(2)
D of the Act empowers the State Government to give directions to any
educational institution as in its opinion are necessary or expedient for
carrying out the purposes of the Act. Therefore, the Government Order
was issued to direct the colleges/institutions to ensure that wherever
uniform is mandated by the College Development Committee or the
Board of Management, it should be worn. But if such uniform is not
E mandated, the students should wear clothes which are in the interest of
unity, equality and public order. Therefore, the circular was issued to the
colleges to ensure compliance of norm of uniform in a non-discriminatory
manner, irrespective of any religious faith of the students.
77. The legality of Rule 11 of the Rules is not under challenge. In
F terms of the said Rule, the educational institutions have a right to prescribe
a uniform to the students attending the said school. The scope of judicial
review of the decisions of the educational institutions vis-a-vis its pupil
is narrower than a purely administrative action. Reference was made to
T.M.A Pai Foundation wherein it was held as under:
G “64. An educational institution is established only for the purpose
of imparting education to the students. In such an institution, it is
necessary for all to maintain discipline and abide by the rules and
regulations that have been lawfully framed. The teachers are like
foster parents who are required to look after, cultivate and guide
H the students in their pursuit of education. The teachers and the
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 481
[HEMANT GUPTA, J.]

institution exist for the students and not vice versa. Once this A
principle is kept in mind, it must follow that it becomes imperative
for the teaching and other staff of an educational institution to
perform their duties properly, and for the benefit of the
students.........”
78. In the matters of campus discipline of the educational B
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. This Court in a judgment reported as Chairman, J &
K State Board of Education v. Feyaz Ahmed Malik30, held as under:
C
“20. .............. From the discussions in the impugned judgment, it
is clear that the High Court has taken upon itself the task of finding
out a scheme to tackle the problem of mass malpractice in
examination. In our considered view the approach of the High
Court in the matter is erroneous and this has vitiated the judgment.
D
In matters concerning campus discipline of educational institutions
and conduct of examinations the duty is primarily vested in the
authorities in charge of the institutions. In such matters the court
should not try to substitute its own views in place of the authorities
concerned nor thrust its views on them. That is not to say that the
court cannot at all interfere with the decisions of the authorities in E
such matters. The court has undoubtedly the power to intervene
to correct any error in complying with the provisions of the rules,
regulations or notifications and to remedy any manifest injustice
being perpetrated on the candidates. ..............”
79. In Ahmedabad St. Xavier’s College Society & Anr. v. State F
of Gujarat & Anr.31, it was held that the educational institutions are
temples of learning and thus discipline is required to be maintained
between the teacher and the taught.
“30. Educational institutions are temples of learning. The virtues
of human intelligence are mastered and harmonised by education. G
Where there is complete harmony between the teacher and the
taught, where the teacher imparts and the student receives, where
there is complete dedication of the teacher and the taught in
30
(2000) 3 SCC 59
31
(1974) 1 SCC 717 H
482 SUPREME COURT REPORTS [2022] 5 S.C.R.

A learning, where there is discipline between the teacher and the
taught, where both are worshippers of learning, no discord or
challenge will arise. An educational institution runs smoothly when
the teacher and the taught are engaged in the common ideal of
pursuit of knowledge. ........... The right to administer is to be
tempered with regulatory measures to facilitate smooth
B
administration. The best administration will reveal no trace or colour
of minority. A minority institution should shine in exemplary
eclectism in the administration of the institution. The best
compliment that can be paid to a minority institution is that it does
not rest on or proclaim its minority character.
C 31. Regulations which will serve the interests of the students,
regulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in the
interest of efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony among
D affiliated institutions.”
80. In respect of minority institutions, this Court in a judgment
reported as Bihar State Madarasa Education Board v. Madarasa
Hanfia Arabic College32 held that the State has power to regulate the
educational needs and discipline of a minority institution.
E “6. .......... This Court has all along held that though the minorities
have right to establish and administer educational institution of
their own choice but they have no right to maladminister and the
State has power to regulate management and administration of
such institutions in the interest of educational need and discipline
of the institution. Such regulation may have indirect effect on the
F absolute right of minorities but that would not violate Article 30(1)
of the Constitution as it is the duty of the State to ensure efficiency
in educational institutions. The State has, however, no power to
completely take over the management of a minority institution.
................. Minority institutions cannot be allowed to fall below
G the standard of excellence on the pretext of their exclusive right
of management but at the same time their constitutional right to
administer their institutions cannot be completely taken away by
superseding or dissolving Managing Committee or by appointing
ad hoc committees in place thereof. ..............”
32
H (1990) 1 SCC 428
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 483
[HEMANT GUPTA, J.]

81. In Modern Dental College & Research Centre v. State of A
Madhya Pradesh33, it was held that the right under Article 19(1)(g) is
not absolute but is subject to reasonable restrictions under clause (6) in
the larger interest and welfare of student community and to promote
merit, achieve excellence and curb malpractices, fee and admissions
could certainly be regulated. This Court held as under:
B
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions under
clause (6). Reasonableness has to be determined having regard
to the nature of right alleged to be infringed, purpose of the
restriction, extent of restriction and other relevant factors. In
applying these factors, one cannot lose sight of the directive C
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger interest of
the society. The Court interferes with a statute if it clearly violates
the fundamental rights. The Court proceeds on the footing that
the legislature understands the needs of the people. The D
Constitution is primarily for the common man. Larger interest and
welfare of student community to promote merit, achieve excellence
and curb malpractices, fee and admissions can certainly be
regulated.”
82. It has been argued that Article 25 of the Constitution must be E
given a conjunctive meaning. In Article 25(1), the term ‘conscience’
needs to be given not only the widest connotation but also an
interconnected meaning. It is contended to be wide enough to cover the
use of hijab, which reflects an expression of conscience. It is argued
that the terms ‘conscience’, ‘profess’ and ‘practice’, as occurring in
Article 25(1), are distinct and at the same time, interconnected. Practice F
would necessarily include conscience, and therefore both are inseparable.
83. It is further submitted that the right to dress inheres in the
right to freedom of speech and expression, right to identity, and the right
to dignity under Article 21 of the Constitution of India. Restriction on
dress, even in the context of uniform, must have a rational nexus with G
the object sought to be achieved. Dress has been referred also in the
context of expression of self. It is submitted that Muslim women wearing
hijab is a symbolic expression of their identity to the public as a woman

33
(2016) 7 SCC 353 H
484 SUPREME COURT REPORTS [2022] 5 S.C.R.

A who follows Islam. The wearing of hijab does not cause any issue of
public disorder or disturbance. Moreover, an arbitrary, unsubstantiated
and illogical constraint imposed on the appearance of Muslim women
and their choice of self-presentment is constitutionally impermissible and
an explicit violation of Article 19 guaranteed in the Constitution. It was
submitted that the purpose of uniform is not to erase the markers of
B
individuality. Simply by wearing the prescribed dress code, diverse
distinctions which exist amongst the students would not evaporate. In
multi-cultural societies, students should be taught to acknowledge, accept
and respect diversities in the society. It is further submitted that the
impugned Government Order is exclusionary and destructive of tolerance
C and diversity in the classroom. The classroom is expected to be uniform
but not homogenous.
84. This Court in S.P. Mittal v. Union of India34 held that, it is
“obvious that religion, undefined by the Constitution, is incapable
of precise judicial definition either. In the background of the
D provisions of the Constitution and the light shed by judicial
precedent, we may say religion is a matter of faith. It is a matter of
belief and doctrine. It concerns the conscience i.e. the spirit of man.
It must be capable of overt expression in word and deed, such as,
worship or ritual. So, religion is a matter of belief and doctrine,
concerning the human spirit, expressed overtly in the form of ritual
E and worship. Some religions are easily identifiable as religions;
some are easily identifiable as not religions. There are many in the
penumbral region which instinctively appear to some as religions
and to others as not religions”.
85. Further, in A.S. Narayana Deekshitulu, this Court held that
F “A religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be
conducive to their spiritual well-being. ...Every religion must believe
in a conscience and ethical and moral precepts. Therefore, whatever
binds a man to his own conscience and whatever moral or ethical
G principles regulate the lives of men believing in that theistic,
conscience or religious belief that alone can constitute religion as
understood in the Constitution which fosters feeling of brotherhood,
amity, fraternity and equality of all persons which find their foothold

34
H (1983) 1 SCC 51
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 485
[HEMANT GUPTA, J.]

in secular aspect of the Constitution. Secular activities and aspects A
do not constitute religion which brings under its own cloak every
human activity.
86. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi v. State of U.P.35, this Court held that the religious freedoms
guaranteed by Articles 25 and 26 is intended to be a guide to a community B
life and ordains every religion to act according to its cultural and social
demands to establish an egalitarian social order. Articles 25 and 26,
therefore, strike a balance between the rigidity of right of religious belief
and faith and their intrinsic restrictions in matters of religion, religious
beliefs and guaranteed freedom of conscience to commune with his
Cosmos/Creator and realize his spiritual self. C

87. Thus, religion believes in conscience and ethical and moral
precepts. The freedom of conscience is what binds a man to his own
conscience and whatever moral or ethical principles regulate the lives of
men. There is a fine distinction between freedom of conscience and
religion. The scope of protection under Article 25 goes beyond religious D
beliefs. This provision affords to all persons freedom to beliefs which
may not necessarily be religious but which may spring from one’s
conscience. Freedom of religion, on the other hand, grants one the right
to follow one’s faith, the established form of which gives a set of ethical
norms to its followers and defines the rituals, observances, ceremonies E
and modes of worship.
88. I 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 F
Article 14 which provides for equality before law. In T.M.A. Pai
Foundation, this Court reiterated that Article 25(1) is not only subject
to public order, morality and health, but also to other provisions of Part
III of the Constitution. It was observed as under:
“82. Article 25 gives to all persons the freedom of conscience and G
the right to freely profess, practise and propagate religion. This
right, however, is not absolute. The opening words of Article 25(1)
make this right subject to public order, morality and health, and
also to the other provisions of Part III of the Constitution. This
35
(1997) 4 SCC 606 H
486 SUPREME COURT REPORTS [2022] 5 S.C.R.

A would mean that the right given to a person under Article 25(1)
can be curtailed or regulated if the exercise of that right would
violate other provisions of Part III of the Constitution, or if the
exercise thereof is not in consonance with public order, morality
and health. The general law made by the Government contains
provisions relating to public order, morality and health; these would
B
have to be complied with, and cannot be violated by any person in
exercise of his freedom of conscience or his freedom to profess,
practise and propagate religion. For example, a person cannot
propagate his religion in such a manner as to denigrate another
religion or bring about dissatisfaction amongst people.”
C 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
D read conjointly along with other provisions of Part III as laid down under
the restrictions of Article 25(1).
Question (iv) - What is the ambit and scope of essential religious
practices under Article 25 of the Constitution?
90. The appellants have contended that wearing of a headscarf is
E an essential religious practice followed by the women following Islam
since time immemorial. It is averred that the same has been provided for
in their religious scriptures and thus is essential to the religion. The
argument is that the impugned Government Order impinges upon their
right of wearing headscarf as an essential religious practice, and is thus
F violative of the right guaranteed under Article 25 of the Constitution.
91. To rebut the said argument of essential religious practice, Mr.
Tushar Mehta relied upon a judgment of this Court reported as
Commissioner of Police & Ors. v. Acharya Jagadishwarananda
Avadhuta & Anr.36 wherein, this Court held that essential part of a
G religion means the core beliefs upon which a religion is founded. It is
upon the cornerstone of essential parts or practices that the superstructure
of a religion is built, without which a religion will be no religion. The test
to determine whether a part or practice is essential to a religion is to find
out whether the nature of the religion would be changed without that
36
H (2004) 12 SCC 770 (Acharya Jagadishwarananda Avadhuta-II)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 487
[HEMANT GUPTA, J.]

part or practice. If taking away of that part or practice results in a A
fundamental change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part of the religion.
92. The argument of the learned Solicitor General is that in the
Writ Petition filed titled Aishat Shifa v. State of Karnataka & Ors.,
there is a reference to Verse 31 Chapter 24 and Verse 31 Chapter 34 of B
the Holy Quran. In Shaheena & Anr. v. State of Karnataka & Ors.
(Writ Petition No. 3038 of 2022), the petitioners have quoted Verse 26
Chapter 7, Verse 31 Chapter 24 and Verse 59 Chapter 33 of the Holy
Quran indicating that wearing of headscarf is part of the religious identity
and essential in Islamic faith. The reliance was also placed upon the
judgment of the Kerala High Court reported as Amnah Bint Basheer C
& Anr. v. Central Board of Secondary Education (CBSE), New Delhi
& Anr.37
93. It is contended by the learned Solicitor General that wearing
of hijab may be a practice, it may be an ideal or a permissible practice,
but to raise it to the level of an essential religious practice, something D
more is required to be pleaded and proved and it has to be shown that if
the headscarf is not worn, the identity of the person as a believer in the
faith itself would be jeopardized as explained by this Court in A.S.
Narayana Deekshitulu and Acharya Jagadishwarananda Avadhuta-
II, referred to above.
E
94. Mr. Prabhuling K. Navadgi, learned Advocate General referred
to Verse 31 of Surah 24 of the Holy Quran to assert that wearing of a
headscarf is not an essential feature of the Islamic practice. It is argued
that wearing of a headscarf may be a religious practice but is not essential
to the religion as non-following of such practice would not lead a believer
to be non-Muslim. The essential religious practices are those practices, F
if not followed, would render the person religion less. Learned Advocate
General of the State of Karnataka argued that the protection under Article
25 is only to the essential religious practices and not to every religious
belief. What constitutes the essential part of religion is primarily to be
ascertained with reference to the doctrine of that religion itself. Article
25(2)(a) contemplates not the regulation by the State of all religious G
practices as such, but regulation of essential religious practices which
are economic, commercial or political, though they are associated with
religious practice.

37
AIR 2016 Ker 115 H
488 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 95. To appreciate the argument raised, I firstly need to examine
the tenets of Muslim Law. In the Mulla’s Mohammedan Law, 5th edition,
2019, it was stated that the Prophet Muhammad himself declared that
the Holy Quran was revealed to him by the angel “Gabriel” in various
portions and at different times. The texts are held by Mohammedans to
be decisive as being the words of God transmitted to man through the
B
Prophet. It is explained that there are four sources of Mohammedan
Law, namely, (1) the Quran; (2) Hadis, i.e., precepts, actions and sayings
of the Prophet Muhammad, not written down during his lifetime, but
preserved by tradition and handed down by authorized persons; (3) Ijmaa,
i.e., a concurrence of opinion of the companions of Muhammad and his
C disciples; and (4) Qiyas, being analogical deductions derived from a
comparison of the first three sources when they do not apply to the
particular case.
96. Still further, five duties38 have been laid down for the Muslims
by the Prophet, the same are reproduced as under:
D “(i) Kalma :- It is the duty of every Muslim to recite kalma.
Kalma implies certain Hymns proclaiming the unity of God
accepting Mohammed as the Prophet.
(ii) Namaz :- Every Muslim must say prayers (Namaz) five
times a day and on every Friday he must offer his afternoon
E prayer at the Mosque.
(iii) Zakat :- It is the duty of every Muslim to offer Zakat or
charity to the poor and needy.
(iv) Ramzan :- The most pious duty of every Muslim is to observe
fasts in the holy month of ‘Ramzan’.
F
(v) Haj :- Every Muslim, should go for Haj or pilgrimage to
Mecca at least once in his lifetime.”
97. In same Chapter 39, according to the ‘Shariat’, religious
commandment (Hukum) of Allah are of five types, which reads thus:
G “(i) Farz – Five daily prayers (namaz) – One must do strictly.
(ii) Haram – Drinking wine – One must forbade strictly.
(iii) Mandub/Additional Prayers on the id – One may do.

38
Page 14 Mulla’s Mohammedan Law, 5th edition, 2019
39
H Page 19 Mulla’s Mohammedan Law, 5th edition, 2019
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 489
[HEMANT GUPTA, J.]

(iv) Makrum – Eating certain kinds of fish prohibited – One A
may refrain from.
(v) Jaiz or Mubah – Thousands of Jaiz things, such as travelling
by air – Shariat is indifferent towards it.”
98. The Chapter 740 also gives the description of laws which have
modified the Mohammedan Law. Such statutes are as under: B
“(i) The Indian Contract Act, 1872.
(ii) The Usuary Law Repeal Act.
(iii) Usurious Loans Act.
(iv) The Religious Toleration Act. C
(v) The Freedom of Religion Act, 1850.
(vi) The Waqf Validating Act.
(vii) The Shariat Act, 1937.
(viii) The Dissolution of Muslim Marriage Act, 1939. D
(ix) The Special Marriages Act, 1954. (When a Muslim
solemnizes or registers his marriage under this Act, such
marriage and the liability for Mahr, the dissolution of such
marriage and succession to the property of such Muslim
and of the issue of such marriage is not governed by Muslim E
Law).
(x) Constitution of India : The Muslim Law of Pre- emption
stands subject to Act 19(1)(f) of the Constitution.
(xi) Muslim Law relating to crimes, procedure and slavery stand
abrogated by laws enacted in this regard by the Legislature.” F
99. There are various text books interpreting the verses of the
Holy Quran. However, reference is made to the interpretation given by
Abdullah Yusuf Ali, translation in English published alongside the original
Arabic text, completed in Lahore on 4.4.1937. The interpretation by
Yusuf Ali has been referred to by this Court in a number of judgments 41. G
Mr. Aditya Sondhi and Mohd. Nizamuddin Pasha have also referred to

40
Page 106 Mulla’s Mohammedan Law, 5th edition, 2019
41
Mohd. Ahmed Khan v. Shah Bano Begum & Ors., (1985) 2 SCC 556; Danial Latifi &
Anr. v. Union of India, (2001) 7 SCC 740; Iqbal Bano v. State of U.P. & Anr., (2007) 6
SCC 785; and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 H
490 SUPREME COURT REPORTS [2022] 5 S.C.R.

A the Holy Quran by Abdullah Yusuf Ali in their written submissions. The
English translation and meaning ascribed to such translation available
online “The Glorious Quran” read thus:
“Surah 24 Verse 31
31. And say to the believing women that they should lower
B their gaze and guard(2984) their modesty; that they should
not display their beauty and ornaments(2985) except what
(must ordinarily) appear thereof; that they should draw their
veils over their bosoms and not display their beauty except
to their husbands, their fathers, their husband’s fathers,
C their sons, their husbands’ sons, their brothers or their
brothers’ sons, or their sisters’ sons, or their women or
the slaves whom their right hands possess, or male servants
free of physical needs, or small children who have no sense
of the shame of sex; and that they should not strike their
feet in order to draw attention to their hidden
D
ornaments.(2986) And O ye Believers! turn ye all together
towards Allah, that ye may attain Bliss.(2987)
2984 The need for modesty is the same in both men and
women. But on account of the differentiation of the sexes in
nature, temperaments, and social life, a greater amount of
E privacy is required for women than for men, especially in the
matter of dress and the uncovering of the bosom.
2985 Zinah means both natural beauty and artificial ornaments.
I think both are implied here, but chiefly the former. The woman
is asked not to make a display of her figure or appear in undress
F except to the following classes of people: (1) her husband, (2)
her near relatives who would be living in the same house, and
with whom a certain amount of neglige is permissible; (3) her
women, i.e., her maid-servants, who would be constantly in
attendance on her: some Commentators include all believing
G women; it is not good form in a Muslim household for women
to meet other women, except when they are properly dressed;
(4) slaves, male and female, as they would be in constant
attendance (but with the abolition of slavery this no longer
applies); (5) old or infirm men-servants; and (6) infants or small
children before they get a sense of sex. Cf. also 33:59.
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 491
[HEMANT GUPTA, J.]

2986 It is one of the tricks of showy or unchaste women to A
tinkle their ankle ornaments, to draw attention to themselves.
2987 While all these details of the purity and good form of
domestic life are being brought to our attention, we are clearly
reminded that the chief object we should hold in view is our
spiritual welfare. All our brief life on this earth is a probation, B
and we must take our individual, domestic, and social life all
contribute to our holiness, so that we can get the real success
and bliss which is the aim of our spiritual endeavor.(R).”
Surah 33 Verse 36
36. It is not fitting for a Believer, man or woman, when a C
matter has been decided by Allah and His Messenger to
have any option about their decision:(3721) if any one
disobeys Allah and His Messenger, he is indeed on a clearly
wrong Path.
3721 We must not put our own wisdom in competition with D
Allah’s wisdom. Allah’s decree is often known to us by the
logic of facts. We must accept it loyally, and do the best we
can to help in our own way to carry it out. We must make our
will consonant to Allah’s Will. (R).”
100. The students in one of the writ petitions before the High E
Court referred to the following verses from the Holy Quran. Such verses
from the Book “The Glorious Quran” by Yusuf Ali read as under:
“Surah 34 Verse 31
31. The Unbelievers say: “We shall neither believe in this
F
scripture nor in (any) that (came) before it.” (3834) Couldst
thou but see when the wrong-doers will be made to stand
before their Lord, throwing back the word (of blame)(3835)
on one another! Those who had been despised will say to
the arrogant ones: (3836) “Had it not been for you, we
should certainly have been believers!” G
3834 To the Pagans all scriptures are taboo, whether it be the
Qur’an or any Revelation that came before it. The people of
the Book despised the Pagans, but in their arrogant assumption
of superiority, prevented them, by their example, from accepting
the latest and most universal Scripture when it came in the H
492 SUPREME COURT REPORTS [2022] 5 S.C.R.

A form of the Qur’an. This relative position of men who fancy
themselves on their knowledge, and men whom they despise
but exploit and mislead, always exists on this earth. I have
mentioned the people of the Book and the Pagan Arabs merely
by way of illustration.
B 3835 One disbelief is as bad as another. There is little to choose
between them. But when the final account will be taken, there
will be mutual recriminations between the one and the other.
3836 The Pagans will naturally say to the people of the Book;
‘You misled us; you had previous Revelations, and you should
C have known how Allah sent His Messengers; had it not been
for your bad example, we should have received Allah’s
Revelation and become Believers’. Or the humble followers
will say this to their leaders, or those less gifted will say to
those by whom they were misled and exploited. The dichotomy
is between such as pretentiously held their heads high in the
D world and such as they profited by but held in contempt.
Surah 33 Verse 59
59. O Prophet! Tell thy wives and daughters, and the
believing women, (3764) that they should cast their outer
garments over (3765) their persons (when abroad): that is
E most convenient, that they should be known (3766) (as such)
and not molested. And Allah is Oft-Forgiving, (3767) Most
Merciful.
3764 This is for all Muslim women, those of the Prophet’s
household, as well as the others. They were asked to cover
F themselves with outer garments when walking around. (R).
3765 J ilbab, plural Jalabib: an outer garment: a long gown
covering the whole body, or a cloak covering the neck and
bosom.
3766 The object was not to restrict the liberty of women but
G to protect them from harm and molestation. In the East and
the West a distinctive public dress of some sort or another has
always been a badge of honour or distinction, both among men
and women. This can be traced back to the earliest civilisations.
Assyrian Law in its palmiest days (say, 7th Century B.C.),
H enjoined the veiling of married women and forbade the veiling
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 493
[HEMANT GUPTA, J.]

of slaves and women of ill fame: see Cambridge Ancient A
History, III, 107.
3767 That is, if a Muslim woman sincerely tries to observe
this rule, but owing to human weakness falls short of the ideal,
then “Allah is Oft-Forgiving, Most Merciful” (Cf.24:30-31).
(R). B
Surah 7 Verse 26
26. O ye Children of Adam! We have bestowed raiment
(1008) upon you to cover your shame, as well as to be an
adornment to you. But the raiment of righteousness, - that
is the best. Such are among the Signs of Allah, that they C
may receive admonition!
1008 There is a double philosophy of clothes here, to correspond
with the double signification of verse 20 above, as explained in
n. 1006. Spiritually, Allah created man “bare and alone” (6:94):
the soul in its naked purity and beauty knew no shame because D
it knew no guilt: after it was touched by guilt and soiled by evil,
its thoughts and deeds became its clothing and adornments,
good or bad, honest or meretricious, according to the inner
motives which gave them colour. So in the case of the body: it
is pure and beautiful, as long as it is not defiled by misuse; its
clothing and ornaments may be good or meretricious, according E
to the motives in the mind and character; if good, they are the
symbols of purity and beauty; but the best clothing and ornament
we could have comes from righteousness, which covers the
nakedness of sin, and adorns us with virtues. (R).”
101. The Hedaya, commentary on Islamic Laws, 2nd edition was F
published in April, 1870. The same is available online. The reprint of
such publication, word-to-word, line-to-line and page- to-page was
published in the year 1979 by Kitab Bhavan, New Delhi. The interpretation
of the Holy Quran in the Hedaya had been quoted by this Court in a
number of judgments42. Volume I, Book VI of Vows is now regulated by
G

42
Mohd. Hanif Quareshi & Ors. v. State of Bihar, AIR 1958 SC 731;
Valia Peedikakkandi Katheessa Umma & Ors. v. Pathakkalan Narayanath Kunhamu &
Ors., AIR 1964 SC 275;
N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb & Ors., AIR 1966 SC 792;
and, Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1 H
494 SUPREME COURT REPORTS [2022] 5 S.C.R.

A the Penal Code (Note at the end of Volume I); Volume II Book VIII
relating to Larceny stands omitted as now regulated by Penal Code, Act
No. XLV of 1860; Book V and XII dealing Ittak, or the Manumission of
Slaves stands deleted in consequence of the abolition of slavery by Act
No. V of 1843.
B 102. It is noted that the issue of essential religious practices in the
context of Islamic law has been raised at earlier instances also before
this Court, though for other practices. In a judgment reported as Mohd.
Hanif Quareshi and others v. State of Bihar43, this Court found the
sacrifice of a cow to be not obligatory and essential to the religion of
Islam. The Court negated the argument of the appellants when it was
C held that there is “no material on the record before us which will
enable us to say, in the face of the foregoing facts, that the sacrifice
of a cow on that day in an obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the premises, it is not possible
for us to uphold this claim of the petitioners”. This Court held as
D under:
“13. Coming now to the arguments as to the violation of the
petitioners’ fundamental rights, it will be convenient to take up
first the complaint founded on Article 25(1)…
What then, we inquire, are the materials placed before us to
E substantiate the claim that the sacrifice of a cow is enjoined or
sanctioned by Islam? …
............ All that was placed before us during the argument were
Surah XXII, Verses 28 and 33, and Surah CVIII. What the Holy
book enjoins is that people should pray unto the Lord and make
F sacrifice. We have no affidavit before us by any Maulana explaining
the implications of those verses or throwing any light on this
problem. We, however, find it laid down in Hamilton’s translation
of Hedaya Book XLIII at p. 592 that it is the duty of every free
Mussulman, arrived at the age of maturity, to offer a sacrifice on
G the Yd Kirban, or festival of the sacrifice, provided he be then
possessed of Nisab and be not a traveller. The sacrifice established
for one person is a goat and that for seven a cow or a camel. It is
therefore, optional for a Muslim to sacrifice a goat for one person
or a cow or a camel for seven persons. It does not appear to be
43
H AIR 1958 SC 731
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 495
[HEMANT GUPTA, J.]

obligatory that a person must sacrifice a cow. The very fact of an A
option seems to run counter to the notion of an obligatory duty. It
is, however, pointed out that a person with six other members of
his family may afford to sacrifice a cow but may not be able to
afford to sacrifice seven goats…We have, however, no material
on the record before us which will enable us to say, in the face of
B
the foregoing facts, that the sacrifice of a cow on that day is an
obligatory overt act for a Mussalman to exhibit his religious belief
and idea. In the premises, it is not possible for us to uphold this
claim of the petitioners.”
103. In Mohd. Ahmed Khan v. Shah Bano Begum & Ors.44,
this Court held that the provisions of Muslim Personal Law do not C
countenance cases in which the wife is unable to maintain herself after
the divorce. Though the effect of the said judgment was nullified by a
Statute, but the fact remains that the personal law was not approved by
this Court. It was held as under:
“14. These statements in the text books are inadequate to establish D
the proposition that the Muslim husband is not under an obligation
to provide for the maintenance of his divorced wife, who is unable
to maintain herself. One must have regard to the entire
conspectus of the Muslim Personal Law in order to determine the
extent, both in quantum and in duration, of the husband’s liability E
to provide for the maintenance of an indigent wife who has been
divorced by him. Under that law, the husband is bound to pay
Mahr to the wife as a mark of respect to her. True, that he may
settle any amount he likes by way of dower upon his wife, which
cannot be less than 10 Dirhams, which is equivalent to three or
four rupees (Mulla’s Mahomedan Law, Eighteenth Edn., para F
286, p. 308). But, one must have regard to the realities of life.
Mahr is a mark of respect to the wife. The sum settled by way of
Mahr is generally expected to take care of the ordinary
requirements of the wife, during the marriage and after. But these
provisions of the Muslim Personal Law do not countenance cases G
in which the wife is unable to maintain herself after the divorce.
We consider it not only incorrect but unjust, to extend the scope
of the statements extracted above to cases in which a divorced
wife is unable to maintain herself. We are of the opinion that the
44
(1985) 2 SCC 556 H
496 SUPREME COURT REPORTS [2022] 5 S.C.R.

A application of those statements of law must be restricted to that
class of cases, in which there is no possibility of vagrancy or
destitution arising out of the indigence of the divorced wife…”
104. The Constitution Bench in a judgment reported as Dr. M.
Ismail Faruqui & Ors. v. Union of India & Ors.45 held that offering
B of prayer or worship is a religious practice, but its offering at every
location where such prayers can be offered would not be an essential or
integral part of such religious practice. It was held as under:
“77. It may be noticed that Article 25 does not contain any
reference to property unlike Article 26 of the Constitution. The
C right to practise, profess and propagate religion guaranteed under
Article 25 of the Constitution does not necessarily include the
right to acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and every place of
worship so that any hindrance to worship at a particular place per
D se may infringe the religious freedom guaranteed under Articles
25 and 26 of the Constitution. The protection under Articles 25
and 26 of the Constitution is to religious practice which forms an
essential and integral part of the religion. A practice may be a
religious practice but not an essential and integral part of practice
of that religion.
E
78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
F of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.
xx xx xx
G
82. … A mosque is not an essential part of the practice of the
religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open…”

45
H (1994) 6 SCC 360
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 497
[HEMANT GUPTA, J.]

105. Later, a three-Judges Bench judgment of this Court reported A
as Javed & Ors. v. State of Haryana & Ors.46 negated the argument
that no religious scripture or authority has been brought to the notice of
the Court which provides that marrying less than four women or abstaining
from procreating a child from each and every wife would be irreligious
or offensive to the dictates of the religion. It was held as under:
B
“44. The Muslim law permits marrying four women. The personal
law nowhere mandates or dictates it as a duty to perform four
marriages. No religious scripture or authority has been brought to
our notice which provides that marrying less than four women or
abstaining from procreating a child from each and every wife in
case of permitted bigamy or polygamy would be irreligious or C
offensive to the dictates of the religion. In our view, the question
of the impugned provision of the Haryana Act being violative of
Article 25 does not arise...”
106. In Shayara Bano, Justice Nariman, speaking for himself
and Justice Lalit, noted that “a practice does not acquire the sanction D
of religion simply because it is permitted” and applied the essential
religious practices test. It was held as under:
“54. … it is clear that triple talaq is only a form of talaq which is
permissible in law, but at the same time, stated to be sinful by the
very Hanafi school which tolerates it. According to Javed [Javed E
v. State of Haryana, (2003) 8 SCC 369 : 2004 SCC (L&S) 561],
therefore, this would not form part of any essential religious practice.
Applying the test stated in Acharya Jagadishwarananda [Commr.
of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12
SCC 770], it is equally clear that the fundamental nature of the F
Islamic religion, as seen through an Indian Sunni Muslim’s eyes,
will not change without this practice.
107. Justice Kurian Joseph, concurring with Justices Nariman and
Lalit, held that on an examination of the Holy Quran and Islamic legal
scholarship, the practice of triple talaq could not be considered an essential G
religious practice. He opined that “merely because a practice has
continued for long, that by itself cannot make it valid if it has been
expressly declared to be impermissible”.

46
(2003) 8 SCC 369 H
498 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 108. The judgments referred to above had the direct or indirect
effect on modifying the understanding of the verses of the Holy Quran,
apart from the statutes mentioned by Mulla in his book referred to above.
But I would examine the question that 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
B
symbols to a secular school.
109. A reading of the judgment in Sri Shirur Mutt shows an
argument that secular activities which may be associated with religion
but do not really constitute an essential part of it are amenable to State
regulation. The power to legislate in respect of all secular activities was
C not accepted. The question examined was the scope of clause (b) of
Article 26 which speaks of management of its own “affairs in matters of
religion.” The language undoubtedly suggests that there could be other
affairs of a religious denomination or a section thereof which are not
matters of religion and to which the guarantee given by this clause would
D not apply. The question is, where is the line to be drawn between what
are matters of religion and what are not. It was held that what
constitutes an essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. This Court held as
under:
E “17. … A religion undoubtedly has its basis in a system of beliefs
or doctrines which are regarded by those who profess that religion
as conducive to their spiritual well-being, but it would not be correct
to say that religion is nothing else but a doctrine or belief… The
guarantee under our Constitution not only protects the
freedom of religious opinion but it protects also acts done in
F pursuance of a religion and this is made clear by the use of
the expression “practice of religion” in Article 25.”
xxx xxx xxx
19. … What constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of
G
that religion itself. If the tenets of any religious sect of the Hindus
prescribe that offerings of food should be given to the idol at
particular hours of the day … all these would be regarded as
parts of religion and the mere fact that they involve expenditure
of money or employment of priests and servants or the use of
H marketable commodities would not make them secular activities
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 499
[HEMANT GUPTA, J.]

partaking of a commercial or economic character; all of them are A
religious practices and should be regarded as matters of religion
within the meaning of Article 26(b).”
110. In Ratilal Panachand Gandhi v. State of Bombay47, it has
been held that “religious practices or performances of acts in
pursuance of religious belief are as much a part of religion as faith B
or belief in particular doctrines and the distinction between matters
of religion and those of secular administration of religious
properties may, at times, appear to be a thin one. But in cases of
doubt, the court should take a common sense view and be actuated
by considerations of practical necessity.”
C
111. In a judgment reported as Durgah Committee, Ajmer v.
Syed Hussain Ali48, the challenge was to the Durgah Khwaja Saheb
Act 36 of 1955. The challenge was in respect of freedom guaranteed
under Article 26I and (d) of the Constitution. The property in respect of
which claim had been made consisted of offerings made either in or
outside the shrine. This Court quoted from Sri Shirur Mutt to say that D
the word “religion” has not been defined in the Constitution and is a term
which is hardly susceptible of any rigid definition. It was held that the
practices, though religious, may have sprung from merely superstitious
beliefs and may in that sense be extraneous and unessential accretions
to religion itself, cannot be accepted unless such practices are found to E
constitute an essential and integral part of a religion and their claim for
the protection under Article 26 may have to be carefully scrutinized. It
was held that protection must be confined to such religious practices as
are an essential and an integral part of it and no other. This Court held
that Articles 25 and 26 together safeguard the citizen’s right to freedom
of religion. It was observed as under: F
“33. … …Whilst we are dealing with this point it may not be out
of place incidentally to strike a note of caution and observe that in
order that the practices in question should be treated as a part of
religion they must be regarded by the said religion as its essential
and integral part; otherwise even purely secular practices which G
are not an essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26.
47
AIR 1954 SC 388
48
AIR 1961 SC 1402 H
500 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Similarly, even practices though religious may have sprung from
merely superstitious beliefs and may in that sense be extraneous
and unessential accretions to religion itself. Unless such practices
are found to constitute an essential and integral part of a
religion their claim for the protection under Article 26 may
have to be carefully scrutinised; in other words, the protection
B
must be confined to such religious practices as are an essential
and an integral part of it and no other.” (Emphasis Supplied)
112. In Sri Venkataramana Devaru & Ors. v. State of Mysore
& Ors.49, the question examined was whether the right of a religious
denomination to manage its own affairs in matters of religion guaranteed
C under Article 26(b) is subject to, and can be controlled by, a law protected
by Article 25(2)(b). This Court held that Article 25 deals with the rights
of individuals and Article 26 protects the rights of denominations. It was
observed as follows:
“29. The result then is that there are two provisions of equal
D authority, neither of them being subject to the other. The question
is how the apparent conflict between them is to be resolved. The
rule of construction is well settled that when there are in an
enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that, if possible, effect could
E be given to both. This is what is known as the rule of harmonious
construction. Applying this rule, if the contention of the appellants
is to be accepted, then Article 25(2)(b) will become wholly nugatory
in its application to denominational temples, though, as stated above,
the language of that Article includes them. On the other hand, if
the contention of the respondents is accepted, then full effect can
F be given to Article 26(b) in all matters of religion, subject only to
this that as regards one aspect of them, entry into a temple for
worship, the rights declared under Article 25(2)(b) will prevail.
While, in the former case, Article 25(2)(b) will be put wholly out
of operation, in the latter, effect can be given to both that provision
and Article 26(b). We must accordingly hold that Article 26(b)
G
must be read subject to Article 25(2)(b).”
113. In a later judgment reported as Tilkayat Shri Govindlalji
Maharaj Etc. v. State of Rajasthan & Ors.50, the validity of Nathdwara
49
AIR 1958 SC 255
H 50
AIR 1963 SC 1638
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 501
[HEMANT GUPTA, J.]

Temple Act, 1959 was the subject matter of consideration. It was held A
that the protection under Article 25 is not absolute and the Court may
have to enquire whether the practice in question is religious in character
and if it is, whether it can be regarded as an integral or essential part of
the religion. It was held as under:
“55. Articles 25 and 26 constitute the fundamental rights to freedom B
of religion guaranteed to the citizens of this country. Article 25(1)
protects the citizen’s fundamental right to freedom of conscience
and his right freely to profess, practice and propagate religion.
The protection given to this right is, however, not absolute. It
is subject to public order, morality and health as Article 25(1) itself C
denotes. It is also subject to the laws, existing or future, which are
specified in Article 25(2)….
xxx xxx xxx
57. In deciding the question as to whether a given religious D
practice is an integral part of the religion or not, the test
always would be whether it is regarded as such by the
community following the religion or not. This formula may in
some cases present difficulties in its operation. Take the case of a
practice in relation to food or dress.….. This question will always
have to be decided by the Court and in doing so, the Court may E
have to enquire whether the practice in question is religious in
character and if it is, whether it can be regarded as an integral
or essential part of the religion, and the finding of the Court
on such an issue will always depend upon the evidence
adduced before it as to the conscience of the community and F
the tenets of its religion. It is in the light of this possible
complication which may arise in some cases that this Court struck
a note of caution in the case of Durgah Committee Ajmer v.
Syed Hussain Ali [(1962) 1 SCR 383 at p. 411] and observed
that in order that the practices in question should be treated as a
part of religion they must be regarded by the said religion as its G
essential and integral part; otherwise even purely secular practices
which are not an essential or an integral part of religion are apt to
be clothed with a religious form and may make a claim for being
treated as religious practices within the meaning of Article 26.”
H
502 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 114. In Acharya Jagdishwaranand Avadhuta & Ors. v.
Commissioner of Police, Calcutta & Anr.51, the question was whether
performance of Tandava dance is a religious rite or practice essential to
the tenets of the religious faith of the followers of Ananda Marga. Such
argument was not accepted, when this Court held that “even conceding
that Tandava dance has been prescribed as a religious rite for every
B follower of the Ananda Marga it does not follow as a necessary
corollary that Tandava dance to be performed in the public is a
matter of religious rite”. Later, in a judgment reported as Acharya
Jagadishwarananda Avadhuta-II, it was held that the protection
guaranteed under Articles 25 and 26 of the Constitution is not confined
C to matters of doctrine or belief but extends to acts done in pursuance of
religion and, therefore, contains a guarantee for rituals, observances,
ceremonies and modes of worship which are essential or integral part of
religion. What constitutes an integral or essential part of religion has to
be determined with reference to its doctrines, practices, tenets, historical
background of the given religion. This Court held as under:
D “9. … What is meant by “an essential part or practices of a religion”
is now the matter for elucidation. Essential part of a religion means
the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious
belief. It is upon the cornerstone of essential parts or practices
E that the superstructure of a religion is built, without which a religion
will be no religion. Test to determine whether a part or practice is
essential to a religion is to find out whether the nature of the
religion will be changed without that part or practice. If the taking
away of that part or practice could result in a fundamental change
in the character of that religion or in its belief, then such part
F could be treated as an essential or integral part. There cannot be
additions or subtractions to such part because it is the very essence
of that religion and alterations will change its fundamental
character. It is such permanent essential parts which are protected
by the Constitution. Nobody can say that an essential part or
G practice of one’s religion has changed from a particular date or
by an event. Such alterable parts or practices are definitely not
the “core” of religion whereupon the belief is based and religion is
founded upon. They could only be treated as mere embellishments
to the non-essential (sic essential) part or practices.”
51
H (1983) 4 SCC 522
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 503
[HEMANT GUPTA, J.]

115. In the Constitution Bench judgment reported as Young A
Lawyers Association & Ors. (Sabarimala Temple, In Re) v. State of
Kerala & Ors.52, it was held as under:
“208. In clause (1), Article 25 protects the equal entitlement
of all persons to a freedom of conscience and to freely profess,
protect and propagate religion. By conferring this right on B
all persons, the Constitution emphasises the universal nature
of the right. By all persons, the Constitution means exactly
what it says : every individual in society without distinction
of any kind whatsoever is entitled to the right. By speaking
of an equal entitlement, the Constitution places every
individual on an even platform. Having guaranteed equality C
before the law and the equal protection of laws in Article 14, the
draftspersons specifically continued the theme of an equal
entitlement as an intrinsic element of the freedom of conscience
and of the right to profess, practise and propagate religion. There
are three defining features of clause (1) of Article 25 : first, the D
entitlement of all persons without exception, second, the
recognition of an equal entitlement; and third, the recognition
both of the freedom of conscience and the right freely to profess,
practise and propagate religion. The right under Article 25(1) is
evidently an individual right for, it is in the individual that a
conscience inheres. Moreover, it is the individual who professes, E
practises and propagates religion. Freedom of religion in Article
25(1) is a right which the Constitution recognises as dwelling in
each individual or natural person.
209. Yet, the right to the freedom of religion is not absolute. For
the Constitution has expressly made it subject to public order, F
morality and health on one hand and to the other provisions of
Part III, on the other. The subjection of the individual right to the
freedom of religion to the other provisions of the Part is a nuanced
departure from the position occupied by the other rights to freedom
recognised in Articles 14, 15, 19 and 21. While guaranteeing G
equality and the equal protection of laws in Article 14 and its
emanation, in Article 15, which prohibits discrimination on grounds
of religion, race, caste, sex or place of birth, the Constitution does
not condition these basic norms of equality to the other provisions
52
(2019) 11 SCC 1 H
504 SUPREME COURT REPORTS [2022] 5 S.C.R.

A of Part III. Similar is the case with the freedoms guaranteed by
Article 19(1) or the right to life under Article 21. The subjection
of the individual right to the freedom of religion under Article 25(1)
to the other provisions of Part III was not a matter without
substantive content. Evidently, in the constitutional order of
priorities, the individual right to the freedom of religion was not
B
intended to prevail over but was subject to the overriding
constitutional postulates of equality, liberty and personal freedoms
recognised in the other provisions of Part III.
210. Clause (2) of Article 25 protects laws which existed at the
adoption of the Constitution and the power of the State to enact
C laws in future, dealing with two categories. The first of those
categories consists of laws regulating or restricting economic,
financial, political or other secular activities which may be
associated with religious practices. Thus, in sub-clause (a) of
Article 25(2), the Constitution has segregated matters of religious
D practice from secular activities, including those of an economic,
financial or political nature. The expression “other secular activity”
which follows upon the expression “economic, financial, political”
indicates that matters of a secular nature may be regulated or
restricted by law. The fact that these secular activities are
associated with or, in other words, carried out in conjunction with
E religious practice, would not put them beyond the pale of legislative
regulation. The second category consists of laws providing for (i)
social welfare and reform; or (ii) throwing open of Hindu religious
institutions of a public character to all classes and sections of
Hindus. The expression “social welfare and reform” is not
F confined to matters only of the Hindu religion. ..............”
116. In Bijoe Emmanuel v. State of Kerala53, it was held that
“Article 25 is an article of faith in the Constitution, incorporated in
recognition of the principle that the real test of a true democracy is
the ability of even an insignificant minority to find its identity under
G the country’s Constitution. This has to be borne in mind in
interpreting Article 25". This Court upheld the right of the students
belonging to Jehovah’s Witnesses not to sing National Anthem in the
school prayer though the students stood at the time of singing of the
National Anthem. In the said case, the circular of the State Government
53
H (1986) 3 SCC 615
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 505
[HEMANT GUPTA, J.]

dated 18.2.1970 was in question mandating that all schools in the State A
shall have morning assembly and that the whole school shall sing National
Anthem in the assembly. The circular was not restricted to secular schools
only but to all schools. The said judgment is of no help to the arguments
raised as it does not deal with secular schools only.
117. Thus, to sum up, the essential religious practice doctrine was B
developed when the State interfered with certain practices qua religious
places or religious festivities or performance of religious rituals in public
or where such practices curtailed fundamental rights such as:
(i) In Sri Shirur Mutt, the statute interfered with the
management of the Mutt.
C
(ii) In Ratilal Panachand Gandhi, a notification issued under
the Bombay Public Trusts Act was under challenged which
covered the temples and Mutt entitling the Government to
control them through the Charity Commissioner.
(iii) In Durgah Committee, the challenge was to the
constitutional validity of the Dargah Khwaja Saheb Act, D
1955 on the ground that it interferes with the right of
management of the Durgah.
(iv) In Tilkayat Shri Govindlalji Maharaj, the validity of
Nathdwara Temple Act, 1959 was challenged on the ground
that all the properties of the Nathdwara Temple are the E
private properties of the appellant and that the State
legislature was not competent to enact the Act. It was the
argument that even if Nathdwara Temple was held to be a
public temple, the appellant as a Mahant or a Shebiat had a
beneficial interest in the office of the high priest as well as
F
the properties of the temple as the rights of the appellant
under Articles 14, 19(1)(f) and 31(2) of the Constitution of
India have been contravened.
(v) In Dawoodi Bohra, the religious faith and tenets of
Dawoodi Bohra community conferring power of
excommunication from the community on its religious head G
as part of the management of the religious affairs under
Article 26(b) of the Constitution was upheld.
(vi) The Shayara Bano case relating to triple talaq was in
respect of gender equality granted under Articles 14 and
15 of the Constitution of India. H
506 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 118. The essential religious practice in the abovementioned cases
related to (i) right of management of places of worship, (ii) right of
individual qua places of worship and (iii) curtailment of fundamental
rights of individuals through religious practices. 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
B
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
C basis of religious faith.
119. 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
D 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”.
E 120. It is reiterated that Article 25(2) being negatively couched is
clearly an enabling provision which provides the power to the State in
the matters mentioned therein. The said provision does not curtail or
restrict the otherwise positive right under Article 25(1) in the absence of
any intervention by the State in the nature of legislative or executive
power.
F
121. Justice H.R. Khanna had quoted the statement of K.
Santhanam in Kesavananda Bharati in respect of social revolution to
get India out of the medievalism based on factors like birth, religion,
custom, and community and reconstruct her social structure on modern
foundations of law, individual merit, and secular education. I find that
G religion is not to be understood in a narrow sectarian sense but by
encompassing our ethos that all should be treated alike. Secular State
means rising above all differences of religions, and attempting to secure
the good of all its citizens irrespective of their religious beliefs and
practices. The faith or belief of a person is immaterial from the point of
H view of the State. For the State, all are equal and all are entitled to be
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 507
[HEMANT GUPTA, J.]

treated equally. The Constitutional promises of social justice, liberty of A
belief, faith or worship and equality of status and of opportunity cannot
be attained unless the State eschews the religion, faith or belief of a
person from its consideration altogether while dealing with him.
Secularism is thus more than a passive attitude of religious tolerance. It
is a positive concept of equal treatment of all religions. Therefore, the
B
object of the State is to bridge the gap between different sections of the
society and to harmonize the relationship between the citizens to ensure
growth of community in all spheres i.e., social, economic and political.
122. The appellants have also made a comparison with the rights
of the followers of the Sikh faith by arguing that since Kirpan is allowed
in terms of Explanation I to Article 25, therefore, the students who want C
to wear headscarf should be equally protected as in the case of the
followers of the Sikh students. The Full Bench of the Punjab & Haryana
High Court in Gurleen Kaur & Ors. v. State of Punjab & Ors.54 held
that the essential religious practice of the followers of Sikh faith includes
retaining hair unshorn, which is one of the most important and fundamental D
tenets of the Sikh religion. The Full Bench of the High Court held as
under:
“128 A perusal of explanation I under Article 25 of the Constitution
of India reveals, that wearing and carrying a “kirpan” by Sikhs is
deemed to be included in the profession of the Sikh religion. During E
the course of examining historical facts, legislation on the ‘Sikh
religion’, the “Sikh rehatmaryada”. the “Sikh ardas” and the views
of authors and scholars of the Sikh religion, we arrived at the
conclusion that wearing and carrying of “kirpans” though an
important and significant aspect of the Sikh religion, is nowhere
close to the importance and significance of maintaining hair F
unshorn. If the Constitution of India itself recognizes wearing and
carrying of “kirpans” as a part of the profession of the Sikh religion,
we have no hesitation, whatsoever, to conclude that wearing hair
unshorn must essentially be accepted as a fundamental
requirement in the profession of the Sikh religion. For the present G
controversy, we hereby, accordingly, hold that retaining hair unshorn
is one of the most important and fundamental tenets of the Sikh
religion. In fact, it is undoubtedly a part of the religious
consciousness of the Sikh faith.”
54
2009 SCC OnLine P& H 6132 H
508 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 123. It appears that no appeal has been filed against the judgment
of the Full Bench. Thus, the said judgment is final as on today. The issue
in the present appeals is not the essential religious practices of the people
following Sikh faith. It would not be proper to discuss the essential
religious practices of the followers of the said faith without hearing them.
The practices of each of the faith have to be examined on the basis of
B
the tenets of that religion alone. The essential religious practices of the
followers of Sikh faith cannot be made basis of wearing of hijab/headscarf
by the believers of Islamic faith.
124. Mr. Mohd. Nizamuddin Pasha relied upon a Constitution Bench
judgment of this Court reported as M. Siddiq (Dead) through LRs.
C (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.55
wherein this Court held that Courts should not enter into an area of
theology and attempt to interpret religious scriptures. This Court held as
under:
“90. During the course of the submissions, it has emerged that the
D extreme and even absolute view of Islam sought to be portrayed
by Mr P.N. Mishra does not emerge as the only available
interpretation of Islamic law on a matter of theology. Hence, in
the given set of facts and circumstances, it is inappropriate for
this Court to enter upon an area of theology and to assume the
E role of an interpreter of the Hadees. The true test is whether
those who believe and worship have faith in the religious efficacy
of the place where they pray. The belief and faith of the worshipper
in offering namaz at a place which is for the worshipper a mosque
cannot be challenged. It would be preposterous for this Court to
question it on the ground that a true Muslim would not offer prayer
F in a place which does not meet an extreme interpretation of doctrine
selectively advanced by Mr Mishra. This Court, as a secular
institution, set up under a constitutional regime must steer clear
from choosing one among many possible interpretations of
theological doctrine and must defer to the safer course of accepting
G the faith and belief of the worshipper.
91. Above all, the practise of religion, Islam being no exception,
varies according to the culture and social context. That indeed is
the strength of our plural society. Cultural assimilation is a

55
H (2020) 1 SCC 1
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 509
[HEMANT GUPTA, J.]

significant factor which shapes the manner in which religion is A
practised. In the plural diversity of religious beliefs as they are
practised in India, cultural assimilation cannot be construed as a
feature destructive of religious doctrine. On the contrary, this
process strengthens and reinforces the true character of a country
which has been able to preserve its unity by accommodating,
B
tolerating and respecting a diversity of religious faiths and ideas.
There can be no hesitation in rejecting the submission made by
Mr Mishra. Our Court is founded on and owes its existence to a
constitutional order. We must firmly reject any attempt to lead the
Court to interpret religious doctrine in an absolute and extreme
form and question the faith of worshippers. Nothing would be as C
destructive of the values underlying Article 25 of the Constitution.”
125. There is no dispute about the proposition canvassed. 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 D
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 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 E
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.
Question (v)- Whether fundamental rights of freedom of expression
under Article 19(1)(a) and right of privacy under Article 21 mutually F
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?
126. It is argued that a citizen is entitled to express oneself by not
just wearing a dress of her choice, but also in the context of her cultural G
traditions, and that such dress which allows others to identify that she
belongs to a particular community, embraces a particular culture, and
represents the values of that culture.
127. It is submitted that there cannot be any law which prohibits
such expression as long as it does not disturb the public order or violates H
510 SUPREME COURT REPORTS [2022] 5 S.C.R.

A the accepted norms of decency and morality as prescribed by law. It is
contended that it is the responsibility of the State to protect the composite
culture of India, but the same has been intervened through the
Government Order, contrary to the rights enshrined in the Constitution.
The argument is also as to whether, this right to express herself by wearing
a hijab, stops at the school gate and that beyond the school gate, she has
B
no right to express herself to convey to others that she embraces a
certain culture and she wishes to identify herself with that culture. Such
expression, at the time when the notification was issued, neither had the
tendency to, nor was there any evidence to show that it, in any way,
disturbed public order, or was violative of decency or morality. The rights
C and duties conferred under the aforementioned provisions transcends
the boundaries of the school gate. A citizen or student does not forego
her fundamental rights and protections guaranteed under the Constitution,
which includes the freedom to express her culture, the moment she steps
into the school premises. It is also submitted that wearing an article of
clothing, reflecting the distinct culture of a citizen, is consistent with the
D
fundamental right of a citizen to conserve her culture under Article 29(1)
and it is the fundamental duty of citizens to preserve and protect that
culture which is part of the rich heritage of India.
128. The argument of the appellants is based upon the Preamble
of the Government Order dated 5.2.2022 wherein it was recited that
E prohibition of a headscarf or a garment covering the head is not violative
of Article 25 of the Constitution, apart from the fact that it is in terms of
the Act and the rules framed thereunder. It is also argued that the State
Government has not mentioned the role of Popular Front of India in the
order passed, therefore, the State Government is not justified to refer to
F Popular Front of India during the course of arguments. In other words,
the State cannot supplement the reasons than what is mentioned in the
order.
129. It is averred that the Preamble refers to the three judgments
of the High Courts as discussed above and a judgment of this Court
G reported as Asha Ranjan v. State of Bihar & Ors.56. The contention is
that the judgment in Fathima Thasneem (Minor) & Anr. v. The State
of Kerala & Ors.57 of the Kerala High Court does not support the stand
of the State Government, whereas, the judgment in Asha Ranjan is not
56
(2017) 4 SCC 397
57
H 2018 SCC OnLine Ker 5267
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 511
[HEMANT GUPTA, J.]

in respect of wearing of a headscarf, therefore, to rely upon the said A
judgment to convey that wearing of headscarf is not in violation of Article
25 shows complete non-application of mind. The State cannot thus
supplement the reasons in support of the prohibition to use headscarf
before the High Court or before this Court.
130. Reliance has been placed upon Mohinder Singh Gill & B
Anr. v. Chief Election Commissioner, New Delhi & Ors.58, wherein it
was held that when a statutory functionary makes an order based on
certain grounds, its validity must be judged by the reasons so mentioned
and it cannot be supplemented by fresh reasons in the shape of affidavit
or otherwise. Otherwise, an order bad in the beginning, may, by the time
it comes to Court on account of a challenge, get validated by additional C
grounds later brought out.
131. In Maneka Gandhi v. Union of India & Anr.59, this Court
held that even if a right is not specifically named in Article 19(1), it may
still be a fundamental right covered by some clause of that article, if it is
an integral part of a named fundamental right. It was observed that D
“….be that as it may, the law is now settled, as I apprehend it, that
no article in Part III is an island but part of a continent, and the
conspectus of the whole part gives the direction and correction
needed for interpretation of these basic provisions. Man is not
dissectible into separate limbs and, likewise, cardinal rights in an E
organic constitution, which make man human have a synthesis. The
proposition is indubitable that Article 21 does not, in a given
situation, exclude Article 19 if both rights are breached.”
132. In National Legal Services Authority, this Court held that
Article 19(1)(a) of the Constitution states that all citizens shall have the F
right to freedom of speech and expression, which includes one’s right to
expression of his self-identified gender. It was held as under:
“69. Article 19(1) of the Constitution guarantees certain
fundamental rights, subject to the power of the State to impose
restrictions from (sic on) exercise of those rights. The rights G
conferred by Article 19 are not available to any person who is not
a citizen of India. Article 19(1) guarantees those great basic rights
which are recognised and guaranteed as the natural rights inherent

58
(1978) 1 SCC 405
59
(1978) 1 SCC 248 H
512 SUPREME COURT REPORTS [2022] 5 S.C.R.

A in the status of the citizen of a free country. Article 19(1)(a) of
the Constitution states that all citizens shall have the right to
freedom of speech and expression, which includes one’s right to
expression of his self-identified gender. The self-identified gender
can be expressed through dress, words, action or behaviour or
any other form. No restriction can be placed on one’s personal
B
appearance or choice of dressing, subject to the restrictions
contained in Article 19(2) of the Constitution.”
133. In Devidas Ramachandra Tuljapurkar v. State of
Maharashtra & Ors.60, this Court held as under:
C “93. Having stated about the test that is applicable to determine
obscenity we are required to dwell upon the right to freedom of
speech and expression. The words, “freedom of speech and
expression” find place in the association words “liberty of thought,
expression, belief, faith and worship”, which form a part of the
Preamble of the Constitution. The Preamble has its own sanctity
D
and the said concepts have been enshrined in the Preamble.
xxx xxx
99. Interpreting Article 19(1)(a) of the Constitution, the test is
always to see the said article in aid of the Preambular objectives
E which form a part of the basic structure of the Constitution. Article
19(1)(a) is intrinsically linked with the Preambular objectives and
it is the duty of the Court to progressively realise the values of the
Constitution. In Maneka Gandhi v. Union of India [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248] , it has been held
: (SCC p. 280, para 5)
F
“5. … It is indeed difficult to see on what principle we can
refuse to give its plain natural meaning to the expression
‘personal liberty’ as used in Article 21 and read it in a narrow
and restricted sense so as to exclude those attributes of personal
liberty which are specifically dealt with in Article 19. We do
G not think that this would be a correct way of interpreting the
provisions of the Constitution conferring fundamental rights.
The attempt of the Court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their

60
H (2015) 6 SCC 1
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 513
[HEMANT GUPTA, J.]

meaning and content by a process of judicial construction. The A
wavelength for comprehending the scope and ambit of the
fundamental rights has been set by this Court in R.C. Cooper
case [Rustom Cawasjee Cooper v. Union of India, (1970) 2
SCC 298] and ....that each freedom has different dimensions
and there may be overlapping between different fundamental
B
rights and therefore it is not a valid argument to say that the
expression ‘personal liberty’ in Article 21 must be so interpreted
as to avoid overlapping between that article and Article 19(1).
The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have….” C
134. In St. Stephen’s College v. University of Delhi61, this Court
held that it is essential that there should be proper mix of students of
different communities in all educational institutions. It has been held as
under:
D
“81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a relatively
homogeneous society. It may lead to religious bigotry which is the
bane of mankind. In the nation building with secular character
sectarian schools or colleges, segregated faculties or universities
for imparting general secular education are undesirable and they E
may undermine secular democracy. They would be inconsistent
with the central concept of secularism and equality embedded in
the Constitution. Every educational institution irrespective of
community to which it belongs is a ‘melting pot’ in our national
life. The students and teachers are the critical ingredients. It is
F
there they develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there should be
proper mix of students of different communities in all educational
institutions.”
135. In Navtej Singh Johar & Ors. v. Union of India62, the
G
freedom of expression was referred to observe that the transgender
persons have a right to express their self-identified gender by way of
speech, mannerism, behavior, presentation and clothing, etc. The said

61
(1992) 1 SCC 558
62
(2018) 10 SCC 1 H
514 SUPREME COURT REPORTS [2022] 5 S.C.R.

A judgment was relied upon to submit that the right to wear a particular
clothing emerges from the right of dignity enshrined under Article 21 of
the Constitution. It was held as under:
“641.2. In National Legal Services Authority v. Union of India
[National Legal Services Authority v. Union of India, (2014) 5
B SCC 438], this Court noted that gender identity is an important
aspect of personal identity and is inherent to a person. It was held
that transgender persons have the right to express their self-
identified gender by way of speech, mannerism, behaviour,
presentation and clothing, etc. [Ibid, paras 69-72.] The Court also
noted that like gender identity, sexual orientation is integral to one’s
C personality, and is a basic aspect of self- determination, dignity
and freedom. [Ibid, para 22.] The proposition that sexual orientation
is integral to one’s personality and identity was affirmed by the
Constitution Bench in K.S. Puttaswamy v. Union of India [K.S.
Puttaswamy v. Union of India, (2017) 10 SCC 1, paras 144, 145
D and 647.].”
136. The object of the Act is to maintain discipline and control
over the educational institutions in the State with a view to foster the
harmonious development of the mental and physical faculties of the
students. Therefore, discipline and control are with regard to educational
E institutions, and not with regard to students. In terms of Section 5 of the
Act, the State Government’s endeavor is to promote the education of
the handicap, backward classes and the weaker sections of the society
including the economically weaker sections, whereas curricula under
Section 7 includes promotion of national integration and inculcation of
the sense of the duties of the citizens, enshrined under Article 51 of the
F Constitution. It is also pointed out that the State provides uniform to all
the students from Class I to Class X as a part of its social obligations and
to maintain parity with all students studying in the Government Schools
without any distinction of caste, creed, sex or religion.
137. Sections 15(b) and 39 (b) & (c) of the Act delineate the
G circumstances for the reasonable excuse for non-attendance of the child
at an approved school. One of the accepted excuses is when religious
instructions not approved by his parents are made compulsory. Sections
39 (1)(b) and (c) deals with withdrawal of recognition to such schools
which deny admission to any citizen on grounds of religion, race, caste,
H language or where there is direct or indirect encouragement in the
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 515
[HEMANT GUPTA, J.]

educational institution of any propaganda or practice wounding the A
religious feelings of any class of citizens of India.
138. Rule 11 of the Rules has mandated the recognized educational
institutions including private institutions to prescribe uniforms. Once the
uniform is fixed, it is provided that it shall not be changed for the period
of next five years and when it is intended to be changed, notice for the B
same shall be given to the parents at least one year in advance. It is thus
argued that specifications regarding disallowance of hijab was applied
abruptly at the end of the academic section and also applied
retrospectively when the girls had been stopped from entering school on
or about 31.12.2021, though the Government Order was notified on
5.2.2022. C

139. I do not find any merit in the above arguments raised by the
appellants. 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 D
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 E
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 F
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.
140. The test of invasion of Article 19(1)(a) is required to be G
examined by the test of doctrine of Pith and Substance in view of the
judgment of this Court reported as Bachan Singh v. State of Punjab63
wherein this Court held as under:

63
(1980) 2 SCC 684 H
516 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “60. From a survey of the cases noticed above, a comprehensive
test which can be formulated, may be restated as under:
“Does the impugned law, in its pith and substance, whatever may
be its form and object, deal with any of the fundamental rights
conferred by Article 19(1)? If it does, does it abridge or abrogate
B any of those rights? And even if it does not, in its pith and substance,
deal with any of the fundamental rights conferred by Article 19(1),
is the direct and inevitable effect of the impugned law such as to
abridge or abrogate any of those rights?”
The mere fact that the impugned law incidentally, remotely or
C collaterally has the effect of abridging or abrogating those rights,
will not satisfy the test. If the answer to the above queries be in
the affirmative, the impugned law in order to be valid, must pass
the test of reasonableness under Article 19. But if the impact of
the law on any of the rights under clause (1) of Article 19 is
merely incidental, indirect, remote or collateral and is dependent
D upon factors which may or may not come into play, the anvil of
Article 19 will not be available for judging its validity.”
(Emphasis Supplied)
141. It is to be observed that the Act, Rules and the orders issued
E under the said Act were enacted to provide for better organization,
development, discipline and control of the educational institutions in the
State. The primary object was encouraging holistic development through
education and its various facets. The prescribing of uniform is only an
incidental action in furtherance of the core object of the Act. Therefore,
keeping in view Bachan Singh, some incidental effect on the right under
F Article 19(1)(a) cannot be said to be an unreasonable restriction, also
being mindful of the fact that it is not an absolute right.
142. The freedom of expression under Article 19(1)(a) of the
Constitution means right to express one’s opinions by word of mouth,
printing, picture, or in any other manner. It includes the freedom of
G communication and the right to propagate or publish one’s opinion. The
communication of ideas could be made through any medium, newspaper,
magazine or movie. Such right is though subject to reasonable restrictions
on grounds set out under Article 19(2) of the Constitution64.

64
H S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 547
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 517
[HEMANT GUPTA, J.]

143. Further, the right to privacy as crystallized in the Constitution A
Bench judgment of K.S. Puttaswamy has to be read in the context of
other provisions of the Constitution in the present appeals. This Court
laid down as under:
“298. ……………The freedoms under Article 19 can be fulfilled
where the individual is entitled to decide upon his or her B
preferences. Read in conjunction with Article 21, liberty enables
the individual to have a choice of preferences on various facets
of life including what and how one will eat, the way one will dress,
the faith one will espouse and a myriad other matter on which
autonomy and self-determination require a choice to be made within
the privacy of the mind. The constitutional right to the freedom of C
religion under Article 25 has implicit within it the ability to choose
a faith and the freedom to express or not express those choices to
the world. These are some illustrations of the manner in which
privacy facilitates freedom and is intrinsic to the exercise of liberty.
The Constitution does not contain a separate article telling us that D
privacy has been declared to be a fundamental right. Nor have
we tagged the provisions of Part III with an alpha-suffixed right
to privacy: this is not an act of judicial redrafting. Dignity cannot
exist without privacy. Both reside within the inalienable values of
life, liberty and freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of the individual. E
It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice
and self-determination.
xxx xxx xxx
F
377. It goes without saying that no legal right can be absolute.
Every right has limitations. This aspect of the matter is conceded
at the Bar. Therefore, even a fundamental right to privacy has
limitations. The limitations are to be identified on case-to-case
basis depending upon the nature of the privacy interest claimed.
There are different standards of review to test infractions of G
fundamental rights. While the concept of reasonableness
overarches Part III, it operates differently across Articles (even
if only slightly differently across some of them). Having
emphatically interpreted the Constitution’s liberty guarantee to
contain a fundamental right to privacy, it is necessary for me to H
518 SUPREME COURT REPORTS [2022] 5 S.C.R.

A outline the manner in which such a right to privacy can be limited.
I only do this to indicate the direction of the debate as the nature
of limitation is not at issue here.
xxx xxx xxx
526. But this is not to say that such a right is absolute. This right is
B subject to reasonable regulations made by the State to protect
legitimate State interests or public interest. However, when it comes
to restrictions on this right, the drill of various articles to which the
right relates must be scrupulously followed. For example, if the
restraint on privacy is over fundamental personal choices that an
C individual is to make, State action can be restrained under Article
21 read with Article 14 if it is arbitrary and unreasonable; and
under Article 21 read with Article 19(1)(a) only if it relates to the
subjects mentioned in Article 19(2) and the tests laid down by this
Court for such legislation or subordinate legislation to pass muster
under the said article. Each of the tests evolved by this Court, qua
D legislation or executive action, under Article 21 read with Article
14; or Article 21 read with Article 19(1)(a) in the aforesaid
examples must be met in order that State action pass muster. In
the ultimate analysis, the balancing act that is to be carried out
between individual, societal and State interests must be left to the
E training and expertise of the judicial mind.
xxx xxx xxx
639. The right to privacy as already observed is not absolute. The
right to privacy as falling in Part III of the Constitution may,
depending on its variable facts, vest in one part or the other, and
F would thus be subject to the restrictions of exercise of that particular
fundamental right. National security would thus be an obvious
restriction, so would the provisos to different fundamental rights,
dependent on where the right to privacy would arise. The public
interest element would be another aspect.”

G 144. In a Constitution Bench judgment reported as I.R. Coelho v.
State of Tamil Nadu65, this Court held that it can no longer be stated
that protection provided by fundamental rights comes in isolated pools.
On the contrary, these rights together provide a comprehensive guarantee
against excesses by State authorities. This Court held as under:
65
H (1999) 7 SCC 580
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 519
[HEMANT GUPTA, J.]

“60. It is evident that it can no longer be contended that protection A
provided by fundamental rights comes in isolated pools. On the
contrary, these rights together provide a comprehensive guarantee
against excesses by state authorities. Thus post-Maneka Gandhi’s
case it is clear that the development of fundamental rights has
been such that it no longer involves the interpretation of rights as
B
isolated protections which directly arise but they collectively form
a comprehensive test against the arbitrary exercise of state power
in any area that occurs as an inevitable consequence. The
protection of fundamental rights has, therefore, been considerably
widened.”
145. Thus, the rights of citizens of this country cannot be C
compartmentalized into one right or the other. The rights of citizens have
to be read together so as to provide a purposeful meaning to Part III of
the Constitution. Thus, all the Fundamental Rights under Part III of the
Constitution are to be read in aid of each other. They constitute a bouquet
of rights which can’t be read in isolation and have to be read together as D
a whole.
146. However, it is to be noted that 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 E
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 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. F

Question (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)?
G
147. Mr. Ahmadi has argued that the impugned Government Order
dated 5.2.2002 impinges upon the constitutional promise of “Fraternity”
as mentioned in the Preamble as well as in the fundamental duties
enumerated in Article 51A (e) and (f). It is argued that the liberty, equality
and fraternity is the trinity of the constitutional values to invoke horizontal
and social sensitivity towards inequalities. It is contended that liberty is H
520 SUPREME COURT REPORTS [2022] 5 S.C.R.

A of thought, expression, belief, faith and worship; equality is of status and
opportunity; and fraternity assures dignity of the individual.
148. In Indra Sawhney, Hon. Justice P.B. Sawant in his order
said that “inequality ill-favours fraternity, and unity remains a dream
without fraternity. The goal enumerated in the Preamble of the
B Constitution, of fraternity assuring the dignity of the individual and
the unity and integrity of the nation must, therefore, remain
unattainable so long as the equality of opportunity is not ensured
to all.” (para 412).
149. This Court in a judgment reported as Subramanian Swamy
C v. Union of India, Ministry of Law & Ors.66 had the occasion to interpret
the term “fraternity” (ca/kqrk) as the constitutional value which is to be
cultivated by the people themselves as part of their social behavior. It is
to be understood in the breed of homogeneity in a positive sense and not
to trample dissent and diversity. This Court observed as under:
D “153. The term “fraternity” has a significant place in the history
of constitutional law. It has, in fact, come into prominence after
the French Revolution. The motto of Republican France
echoes:”Liberté, égalité, fraternité”, or “Liberty, equality,
fraternity”. The term “fraternity” has an animating effect in the
constitutional spectrum. The Preamble states that it is a
E
constitutional duty to promote fraternity assuring the dignity of
the individual. Be it stated that fraternity is a Preambulatory
promise….
xx xx xx
156. Fraternity as a concept is characteristically different from
F
the other constitutional goals. It, as a constitutional concept, has a
keen bond of sorority with other concepts. And hence, it must be
understood in the breed of homogeneity in a positive sense and
not to trample dissent and diversity. It is neither isolated nor lonely.
The idea of fraternity is recognised as a constitutional norm and a
G precept. It is a constitutional virtue that is required to be sustained
and nourished.
157. It is a constitutional value which is to be cultivated by the
people themselves as a part of their social behaviour. There are

66
H (2016) 7 SCC 221
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 521
[HEMANT GUPTA, J.]

two Schools of Thought; one canvassing individual liberalisation A
and the other advocating for protection of an individual as a member
of the collective. The individual should have all the rights under
the Constitution but simultaneously he has the responsibility to
live up to the constitutional values like essential brotherhood—the
fraternity—that strengthens the societal interest. Fraternity means
B
brotherhood and common interest. Right to censure and criticise
does not conflict with the constitutional objective to promote
fraternity. Brotherliness does not abrogate and rescind
the concept of criticism. In fact, brothers can and should be critical.
Fault-finding and disagreement is required even when it leads to
an individual disquiet or group disquietude. Enemies Enigmas C
Oneginese on the part of some does not create a dent in the idea
of fraternity but, a significant one, liberty to have a discordant
note does not confer a right to defame the others. The dignity of
an individual is extremely important.
xx xx xx D
161. The concept of fraternity under the Constitution expects every
citizen to respect the dignity of the other. Mutual respect is the
fulcrum of fraternity that assures dignity. It does not mean that
there cannot be dissent or difference or discordance or a different
voice. It does not convey that all should join the chorus or sing the E
same song. Indubitably not. One has a right to freedom of speech
and expression. One is also required to maintain the constitutional
value which is embedded in the idea of fraternity that assures the
dignity of the individual. One is obliged under the Constitution to
promote the idea of fraternity. It is a constitutional obligation.”
F
150. Reference is also made to another three-Judges Bench
judgment of this Court in Prathvi Raj Chauhan v. Union of India &
Ors.67 wherein it is observed that there is a preambular assurance that
the republic would be one which guarantees to its people liberty, dignity,
equality of status and opportunity and fraternity. It is fraternity, poignantly
embedded through the provisions of Part III, which assures true equality, G
where the State treats all alike, assures the benefits of growth and
prosperity to all, with equal liberties to all, and what is more, which
guarantees that every citizen treats every other citizen alike. This Court
held as under:
67
(2020) 4 SCC 727 H
522 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “15. ................ That is why the preambular assurance that the
republic would be one which guarantees to its people liberties,
dignity, equality of status and opportunity and fraternity.
xx xx xx

B 17. The making of this provision—and others, in my view, is
impelled by the trinity of the preambular vision that the Constitution
Makers gave to this country. .................. In my opinion, all the
three—Liberty, Equality and Fraternity, are intimately linked. The
right to equality, sans liberty or fraternity, would be chimerical—
as the concept presently known would be reduced to equality
C among equals, in every manner—a mere husk of the grand vision
of the Constitution. Likewise, liberty without equality or fraternity,
can well result in the perpetuation of existing inequalities and worse,
result in licence to indulge in society’s basest practices. It is
fraternity, poignantly embedded through the provisions of Part III,
D which assures true equality, where the State treats all alike, assures
the benefits of growth and prosperity to all, with equal liberties to
all, and what is more, which guarantees that every citizen treats
every other citizen alike.
xx xx xx
E
34. ................... It is to address problems of a segmented society,
that express provisions of the Constitution which give effect to
the idea of fraternity, or bandhutva (ca /kqRo) referred to in the
Preamble, and statutes like the Act, have been framed. These
underline the social — rather collective resolve — of ensuring
F that all humans are treated as humans, that their innate genius is
allowed outlets through equal opportunities and each of them is
fearless in the pursuit of her or his dreams. The question which
each of us has to address, in everyday life, is can the prevailing
situation of exclusion based on caste identity be allowed to persist
G in a democracy which is committed to equality and the rule of
law? If so, till when? And, most importantly, what each one of us
can do to foster this feeling of fraternity amongst all sections of
the community without reducing the concept (of fraternity) to a
ritualistic formality, a tacit acknowledgment, of the “otherness”
of each one’s identity.”
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 523
[HEMANT GUPTA, J.]

151. The impugned Government Order was said to be an anti- A
thesis of diversity, though based upon misunderstood fraternal behavior
when it is asserted that all the school students studying in the State of
Karnataka should behave in a fraternal manner, transcend their group
identity and develop an orientation towards social justice. It is argued
that the Government Order suggests that the ethic of fraternity is best B
served by complete erasure of all differences. It does not mean ‘flattening
out of differences’, or forced assimilation. Reference was made to a
judgment of this Court reported as Tehseen S. Poonawalla v. Union of
India & Ors.,68 wherein it was held that the aim of our Constitution is
unity in diversity and to impede any fissiparous tendencies for enriching
the unity amongst Indians by assimilating the diversities. It was also C
argued that the Government Order uses the words ‘unity’ and ‘uniformity’
interchangeably and that uniformity is not a constitutional or statutory
mandate, and has no nexus with unity. It is argued that plurality of voices
celebrates the constitutionalist idea of a liberal democracy and the same
ought not to be suppressed. This Court held as under: D
“21. Freedom of speech and expression in different forms is the
élan vital of sustenance of all other rights and is the very seed for
germinating the growth of democratic views. Plurality of voices
celebrates the constitutionalist idea of a liberal democracy and
ought not to be suppressed. That is the idea and essence of our E
nation which cannot be, to borrow a line from Rabindranath Tagore,
“broken up into fragments by narrow domestic walls” of caste,
creed, race, class or religion. Pluralism and tolerance are essential
virtues and constitute the building blocks of a truly free and
democratic society. It must be emphatically stated that a dynamic
F
contemporary constitutional democracy imbibes the essential
feature of accommodating pluralism in thought and approach so
as to preserve cohesiveness and unity. Intolerance arising out of
a dogmatic mindset sows the seeds of upheaval and has a chilling
effect on freedom of thought and expression. Hence, tolerance
has to be fostered and practised and not allowed to be diluted in G
any manner.
xx xx xx

68
(2018) 9 SCC 501 H
524 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 26. In the obtaining situation, the need to preserve and maintain
unity amongst the fellow citizens of our country, who represent
different castes, creed and races, follow different religions and
use multiple languages, ought to be discussed and accentuated. It
is requisite to state that our country must sustain, exalt and
celebrate the feeling of solidarity and harmony so that the spirit of
B
oneness is entrenched in the collective character. Sans such
harmony and understanding, we may unwittingly pave the path of
disaster.
xx xx xx
C 28. “Unity” in the context of a nation means unity amongst the
fellow citizens. It implies integration of the citizens whereby the
citizens embrace a feeling of “We” with a sense of bonding with
fellow citizens which would definitely go a long way in holding the
Indian society together. Emile Durkheim, French sociologist, has
said that when unity is based on heterogeneity and diversity, it can
D
very well be described as organic solidarity. Durkheim’s view
would be acceptable in the context of the Indian society as it
exhibits a completely organic social solidarity.
xx xx xx
E 31. Unity in Diversity must be recognized as the most potent
weapon in India’s armoury which binds different and varied kinds
of people in the solemn thread of humanity. This diversity is the
strength of our nation and for realising this strength, it is sine qua
non that we sustain it and shun schismatic tendencies. It has to be
F remembered that the unique feature of “Unity in Diversity”
inculcates in the citizens the virtue of respecting the opinions and
choices of others. Such respect imbibes the feeling of acceptance
of plurality and elevates the idea of tolerance by promoting social
cohesion and infusing a sense of fraternity and comity.”
152. Reliance is also placed upon the judgments of this Court
G
reported as St. Stephen’s College, Sri Adi Visheshwara of Kashi
Vishwanath Temple, and State of Karnataka & Anr. v. Dr. Praveen
Bhai Thogadia69 wherein the concept of unity in diversity was held to
be the Constitutional aim. It was submitted that unity in diversity is the

69
H (2004) 4 SCC 684
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 525
[HEMANT GUPTA, J.]

most potent weapon in India’s armoury which binds different and varied A
kinds of people in the solemn thread of humanity. Unity in diversity
inculcates in the citizens the virtue of respecting the opinions and choices
of others. Such respect imbibes the feeling of acceptance of plurality
and elevates the idea of tolerance by promoting social cohesion and
infusing a sense of fraternity and comity.
B
153. Referring to National Education Policy, 2020, it is argued
that the schools are spaces of diversity and critical thinking. It is fraternal
free thinking public places as the needs and expectations are different.
The policy does not mention ‘uniform’ or ‘discipline’. The fundamental
principles which will guide the Indian Education System as well as
C
individual institutions are as under:
“2. full equity and inclusion as the cornerstone of all educational
decisions to ensure that all students are able to thrive in the
education system;
Ethics and human & Constitutional values like empathy, respect D
for others, cleanliness, courtesy, democratic, spirit, spirit of service,
respect for public property, scientific temper, liberty, responsibility,
pluralism, equality, and justice;
6.12. Students will be sensitized through this new school culture,
brought in by teachers, trained social workers and counsellors as E
well as through corresponding changes to bring in an inclusive
school curriculum. The school curriculum will include, early on,
material on human values such as respect for all persons, empathy,
tolerance, human rights, gender, equality, non-violence, global
citizenship, inclusion, and equity. It would also include more detailed F
knowledge of various cultures, religions, languages, gender
identities, etc. to sensitize and develop respect for diversity. Any
biases and stereotypes in school curriculum will be removed and
more material will be included that is relevant and relatable to all
communities.
G
3.4. Once infrastructure and participation are in place, ensuring
quality will be the key in retention of students, so that they
(particularly, girls and students from other socio-economically
disadvantaged groups) do not lose interest in attending school.
This will require a system of incentives for deploying teachers
with knowledge of the local language to areas with high dropout H
526 SUPREME COURT REPORTS [2022] 5 S.C.R.

A rates, as well as overhauling the curriculum to make it more
engaging and useful.”
154. In K.S. Puttaswamy, the distinction between private and
public spaces was drawn and it was stated that both must be free to the
extent that there should be freedom to think, without any direct or indirect
B pressures on thought and belief. Thus, the schools must give students
the privacy and the freedom to think about their choices. Therefore, the
Government Order creates an arbitrary barrier to education and to
fraternal spaces.
155. Not disputing with the above observations, it is important to
C interpret the expressions ‘fraternity’ and ‘dignity’ in view of the objective
behind the Government Order. The concept of fraternity and dignity do
not stand alone but have to be inferred from the context, circumstances
and the purpose sought to be achieved. There is no dispute, as asserted
in the written submissions, that the purpose of introducing fraternity as a
constitutional value is to invoke horizontal or social sensitivity towards
D
inequalities, in addition to the vertical, or top-down political prescriptions
towards inequalities. Fraternity is in fact social sensitivity. The students
herein are in the age group of 15 to 18 years. The seed of education
should germinate equally amongst all students. Therefore, the Preambular
goal of justice, liberty, equality or fraternity would be better served by
E removing any religious differences, inequalities and treating students alike
before they attain the age of adulthood.
156. The students have been given a uniform platform to grow
and take quantum leap in their further pursuits. The homogeneity amongst
the students in the matter of uniform would prepare them to grow without
F any distinction on the basis of religious symbols, if not worn during the
classroom studies in a Pre- University College.
157. Still further, the Hindi word of fraternity is ^^ca/kqRo** that is
brotherhood. Brotherhood is amongst all the citizens of the Country and
not of a particular community. Fraternity is the antithesis of a segmented
G society wherein all humans are treated equally and their innate genius is
allowed an outlet by exposing them to equal opportunities.
158. The argument is that the appellants seek equal access to
public education where they would have the opportunity to fraternize
across religious, class and gender boundaries, an opportunity which would
H not be available to them if they were to transfer to religious schools.
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 527
[HEMANT GUPTA, J.]

Hence, the Government Order has created an arbitrary barrier to A
education and to fraternal spaces.
159. I do not find any merit in the argument raised. 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 abstract idea of fraternity, as discussed in the judgments B
referred to by learned counsel for the appellants, has to be applied to the
ground realities wherein some students wearing headscarf in a secular
school run by the State Government would stand out and overtly appear
differently. The concept of fraternity will stand fragmented as the
apparent distinction of some of the students wearing headscarf would C
not form a homogenous group of students in a school where education is
to be imparted homogeneously and equally, irrespective of any religious
identification mark. 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 D
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. E
160. I do not find any merit in the argument raised that the use of
the phrase “behave in a fraternal manner by transcending their group
identity as the young students” in the impugned Order can be said to be
violative of any law. Before a student goes for higher studies in colleges,
she should not grow with a specific identity, but under the umbrella of F
equality guaranteed under Article 14 transcending the group identity.
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. G
161. Accordingly, I do not find that the Government Order impinges
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.
H
528 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 162. Though, it is argued that wearing of a piece of cloth on the
head does not violate or contravene the uniform prescribed. The dictionary
meaning of word ‘Uniform’ is as under:
Blacks Law Dictionary (Uniform, Adjective)

B Conforming to one rule, mode, or unvarying standard; not
different at different times or places; application to all places
or divisions of a country.
Cambridge English Dictionary (Uniform, noun)

C A particular set of clothes that has to be worn by the
members of the same organization or group of people. A
type of clothes that is connected with a particular group of
people.
Merriam Webster Dictionary
D
(Uniform, noun) Dress of a distinctive design or fashion
worn by members of a particular group and serving as a
means of identification.
(Adjective) Having always the same form, manner or
E degree: not varying or variable. Of the same form with
others- conforming to one rule or more. Presenting an
unvaried appearance of surface, pattern or color. (eg.-
uniform procedures, uniform red brick houses)
163. The issue as to whether a person professing Islam can support
F a beard as a member of the Indian Air Force came up for consideration
before the Single Bench of the Punjab and Haryana High Court in No.
786505-N Leading Aircraftsman Ansari Aaftab Ahmed v. Union
of India & Ors.70. The Single Bench referred to the principles of
Islam by Maulana Wahiduddin Khan from his book “Islam the Voice of
Human Nature” and the rules applicable to the airmen to hold that growing
G of beard violates the norms of uniform. Accordingly, the writ petitions
were dismissed. An intra-court appeal was also dismissed71. The matter
came up for hearing before this Court in a judgment reported as

70
2008 L.I.C. 4004 (CWP No. 14927 of 2005 decided on 14.7.2008)
71
H LPA No. 196 of 2008 decided on 31.7.2008
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 529
[HEMANT GUPTA, J.]

Mohammed Zubair Corporal No. 781467-G v. Union of India & A
Ors.72. This Court dismissed the appeal finding no reason to take a view
of the matter at variance with the view taken by the High Court. It was
noticed that there are varying interpretations, one of which is that it is
desirable to maintain a beard. Therefore, in respect of an airman employed
by the Indian Air Force, beard was not found permissible in terms of the
B
Rules framed.
164. The uniform prescribed would lose its meaning if the student
is permitted to add or subtract any part of uniform. The schools are
nurseries for training the citizen for future endeavours. If, the norms of
the uniform in the school are permitted to be breached, then what kind
of discipline is sought to imparted to the students. The freedom of C
expression guaranteed under Article 19(1)(a) does not extend to the
wearing of headscarf. Once the uniform is prescribed, all students are
bound to follow the uniform so prescribed. The uniform is to assimilate
the students without any distinction of rich or poor, irrespective of caste,
creed or faith and for the harmonious development of the mental and D
physical faculties of the students and to cultivate a secular outlook. The
wearing of hijab is not permitted only during the school time, therefore,
the students can wear it everywhere else except in schools. The wearing
of anything other than the uniform is not expected in schools run by the
State as a secular institution. In a secular school maintained at the cost
of the State, the State is competent to not permit anything other than the E
uniform.
165. The argument that the wearing of a headscarf provides dignity
to the girl students is also not tenable. The students are attending an all-
girls’ college. The students are at liberty to carry their religious symbols
outside the schools but in pre-university college, the students should look F
alike, feel alike, think alike and study together in a cohesive cordial
atmosphere. That is the objective behind a uniform, so as to bring about
uniformity in appearances.
Question (vii)- Whether, if the wearing of hijab is considered as an
essential religious practice, the student can seek right to wear G
headscarf to a secular school as a matter of right?
166. The argument is that hijab is an additional cloth worn on the
head, and that it does not cause any harm to any other person. The

72
(2017) 2 SCC 115 H
530 SUPREME COURT REPORTS [2022] 5 S.C.R.

A argument is based upon Conscience & Religion (Article 25), Culture
(Articles 29 and 51-A(f)), Identity (Articles 19 and 21 - Autonomy,
Dignity, Choice) and Secularism (Articles 19 and 21 - Autonomy, Dignity,
Choice), therefore, the students have been wrongly denied admission to
an educational institution on the basis of religion. The contention of the
students is that by denying the right to wear headscarf, they have also
B
been denied to attend the classes which stand foul with the mandate of
clause (2) of Article 29.
167. I do not find any merit in the said argument. 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
C 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.
168. In M. Ajmal Khan v. The Election Commission of India,
D rep. by its Chief Election Commissioner, New Delhi-I & Ors.73, the
challenge was to the Elector Roll with photographs particularly of Muslim
Gosha Women in the eligible voters’ list. The argument was that wearing
of purdah by Muslim women is one of the principles laid down in Holy
Quran and it has to be strictly followed by Muslim women. Therefore,
any interference with such religious practice would amount to interfering
E
with the fundamental right of the Muslim women, which is guaranteed
under Article 25 of the Constitution of India. The Madras High Court
dismissed such writ petition holding that such direction of the Election
Commission is not violative of Article 25 of the Constitution. It was held
that “the decision of the Election Commission of putting the photographs
F in the electoral roll was taken with a view to improving the fidelity of the
electoral rolls and to check impersonation and eradicate bogus voting.
Hence, the argument of the learned counsel that the decision violates
the right to privacy is required to be rejected”. The said judgment though
is in the context of elections but the ratio thereof is applicable to the
present matters, the education to a school by the State is constitutional
G
mandate to be carried out in a non- discriminatory manner irrespective
of caste, sex and religion.
169. The State has not denied admission to the students from
attending classes. If they choose not to attend classes due to the uniform
73
H 2006 SCC OnLine Mad 794 : (2006) 5 CTC 121
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 531
[HEMANT GUPTA, J.]

that has been prescribed, it is a voluntary act of such students and cannot A
be said to be in violation of Article 29 by the 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.
B
Question (viii)- 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?
170. Mr. Shoeb Alam argued that in the Constitutional scheme, C
there cannot be any barter of fundamental rights for the enjoyment of a
privilege or a right. It is argued that the State cannot attach a condition
of barter for the grant of access to school/education available to a student
under Article 21 and, in return, ask for a girl child to cede her right to
wear the hijab inside the school, which is her fundamental right to privacy,
dignity and autonomy. Reliance was placed upon a judgment of this Court D
reported as Re the Kerala Education Bill, 1957 - Reference under
Article 143(1) of the Constitution of India74 dealing with the issue of
Kerala Education Bill. The provision authorized the State to take over
the management of the educational institution as a pre-condition for
recognition and aid to the educational institution. This Court said to the E
following effect:
“31. … Therefore, the conditions imposed by the said Bill on aided
institutions established and administered by minority communities,
like the Christians, including the Anglo-Indian community, will lead
to the closing down of all these aided schools unless they are F
agreeable to surrender their fundamental right of management.
No educational institution can in actual practice be carried on
without aid from the State and if they will not get it unless they
surrender their rights they will, by compulsion of financial
necessities, be compelled to give up their rights under Article 30(1).
The legislative powers conferred on the legislature of the States G
by Articles 245 and 246 are subject to the other provisions of the
Constitution and certainly to the provisions of Part III which
confers fundamental rights which are, therefore, binding on the

74
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532 SUPREME COURT REPORTS [2022] 5 S.C.R.

A State Legislature. The State Legislature cannot, it is clear, disregard
or override those provisions merely by employing indirect methods
of achieving exactly the same result. Even the legislature cannot
do indirectly what it certainly cannot do directly…”
171. In Nar Singh Pal v. Union of India & Ors.75, it was held
B that the casual labor does not mean that he had surrendered all his
constitutional rights in favour of the respondents. It was thus submitted
that fundamental rights under the Constitution cannot be bartered. They
cannot be compromised, nor can there be any estoppel against the exercise
of Fundamental Rights available under the Constitution.
C 172. Reliance was also placed upon nine-Judges Bench judgment
in Ahmedabad St. Xavier’s College Society wherein the said Act was
declared as unconstitutional which warranted educational institutions to
surrender their management to the State in order to get affiliation. This
Court held that in this situation, the condition which involves surrender is
as effective a deterrent to the exercise of the right under Article 30(1)
D as a direct prohibition would be. Thus considered, it is apparent that the
religious minority does not voluntarily waive its right — it has been coerced
because of the basic importance of the privilege involved, namely,
affiliation. This Court held as under:
“161. It is doubtful whether the fundamental right under Article
E 30(1) can be bartered away or surrendered by any voluntary act
or that it can be waived. The reason is that the fundamental right
is vested in a plurality of persons as a unit or if we may say so, in
a community of persons necessarily fluctuating. Can the present
members of a minority community barter away or surrender the
F right under the article so as to bind its future members as a unit?
The fundamental right is for the living generation. By a voluntary
act of affiliation of an educational institution established and
administered by a religious minority the past members of the
community cannot surrender the right of the future members of
that community. The future members of the community do not
G derive the right under Article 30(1) by succession or inheritance.”
173. The view of Hon’ble Justice D.Y. Chandrachud in K.S.
Puttaswamy was referred where ‘decisional autonomy’ has been
discussed to comprehend intimate personal choices such as those
75
H (2000) 3 SCC 588
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 533
[HEMANT GUPTA, J.]

governing reproduction as well as choices expressed in public such as A
faith or modes of dress. It was held as under:
“248. Privacy has distinct connotations including (i) spatial control;
(ii) decisional autonomy; and (iii) informational control. [Bhairav
Acharya, “The Four Parts of Privacy in India”, Economic &
Political Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial control B
denotes the creation of private spaces. Decisional autonomy
comprehends intimate personal choices such as those governing
reproduction as well as choices expressed in public such as faith
or modes of dress…
xxx xxx xxx C
297. …Privacy enables each individual to take crucial decisions
which find expression in the human personality. It enables
individuals to preserve their beliefs, thoughts, expressions, ideas,
ideologies, preferences and choices against societal demands of
homogeneity. Privacy is an intrinsic recognition of heterogeneity, D
of the right of the individual to be different and to stand against
the tide of conformity in creating a zone of solitude. Privacy
protects the individual from the searching glare of publicity in
matters which are personal to his or her life. Privacy attaches to
the person and not to the place where it is associated. Privacy
constitutes the foundation of all liberty because it is in privacy that E
the individual can decide how liberty is best exercised. Individual
dignity and privacy are inextricably linked in a pattern woven out
of a thread of diversity into the fabric of a plural culture.”
174. Furthermore, Hon’ble Justice Chelameswar in K.S.
Puttaswamy held as under: F
“372. … Insofar as religious beliefs are concerned, a good deal of
the misery our species suffer owes its existence to and centres
around competing claims of the right to propagate religion.
Constitution of India protects the liberty of all subjects guaranteeing
the freedom of conscience and right to freely profess, practise G
and propagate religion. While the right to freely “profess, practise
and propagate religion” may be a facet of free speech guaranteed
under Article 19(1)(a), the freedom of the belief or faith in any
religion is a matter of conscience falling within the zone of purely
private thought process and is an aspect of liberty…
H
534 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 373. … The choice of appearance and apparel are also aspects
of the right to privacy. The freedom of certain groups of subjects
to determine their appearance and apparel (such as keeping long
hair and wearing a turban) are protected not as a part of the right
to privacy but as a part of their religious belief. Such a freedom
need not necessarily be based on religious beliefs falling under
B
Article 25…”
175. I do not find that the Government Order takes away any
right of a student available to her under Article 21 of the Constitution, or
that it contemplates any barter of fundamental rights. The right to
C education under Article 21 continues to be available but it is the choice
of the student to avail such right or not. The student is not expected to
put a condition, that unless she is permitted to come to a secular school
wearing a headscarf, she would not attend the school. The decision is of
the student and not of school when the student opts not to adhere to the
uniform rules.
D
Question (ix)- Whether in the constitutional scheme, the State is
obligated to ensure ‘reasonable accommodation’ to its citizens?
176. The argument is that the school should reasonably
accommodate the students for wearing headscarf as it does not interfere
E with any of the rights of the fellow students.
177. Learned counsel for the appellants have referred to the
judgments of this Court reported as Jeeja Ghosh & Anr. v. Union of
India & Ors.76, Vikash Kumar v. Union Public Service Commission
& Ors.77 and Ravinder Kumar Dhariwal & Anr. v. Union of India &
F Ors. 78.
178. This Court in Ravinder Kumar Dhariwal held that the
reasonable accommodation principle is a component of the right of
equality and the right against discrimination. The concept of reasonable
accommodation arose in the context of accommodating a differently
G abled candidate, a member of the Central Railway Police Force to provide
him an alternative suitable post.

76
(2016) 7 SCC 761
77
(2021) 5 SCC 370
78
H 2021 SCC OnLine SC 1293
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 535
[HEMANT GUPTA, J.]

179. In Jeeja Ghosh, this Court was considering the rights of a A
differently-abled person in using the facility of a flight. This Court found
that Civil Aviation Requirements issued by Directorate General of Civil
Aviation that no airline shall refuse to carry persons with disability or
persons with reduced mobility and their assistive aids/devices, escorts
and guide dogs including their presence in the cabin should be made
B
available to the passengers at the time of check-in. There was a violation
of such directive by the airline when this Court held that equality not
only implies preventing discrimination, but goes beyond in remedying
discrimination in the society. In concrete terms, it means embracing the
notion of positive rights, affirmative action and reasonable accommodation.
This Court held as under: C

“40. … In concrete terms, it means embracing the notion of positive
rights, affirmative action and reasonable accommodation...”
180. In Vikash Kumar, this Court held as under:
“62. … if disability as a social construct has to be remedied, D
conditions have to be affirmatively created for facilitating the
development of the disabled. Reasonable accommodation is
founded in the norm of inclusion. Exclusion results in the negation
of individual dignity and worth or they can choose the route of
reasonable accommodation, where each individuals’ dignity and E
worth is respected…”
181. The argument of the appellants is however that they are
seeking reasonable accommodation by the school authorities to permit
them to attend school wearing matching headscarf/hijab in addition to
the prescribed uniform which would be in conformity with the fundamental
F
rights guaranteed under Article 25 and 21 of the Constitution.
182. The concept of reasonable accommodation came to be
introduced in respect of a special child or person. In Bijoe Emmanuel,
it has been held that the real test of a true democracy is the ability of
even an insignificant minority to find its identity under the Constitution.
G
In the aforesaid case, students, believer of Jehovah, expressed their
inability to sing National Anthem though they were extending all respect
when the National Anthem was to be played. In the case of the appellants,
democracy is not in test but the question is whether the school, having
prescribed the uniform, has a right to insist that all students wear the
same uniform so as not to have inequality or disparity in the matter of H
536 SUPREME COURT REPORTS [2022] 5 S.C.R.

A wearing of uniform. Rule 11 in fact shows that any change in uniform
can be affected only after serving notice to the parents and once uniform
is prescribed, it cannot be changed in five years, meaning thereby that
there is a continuity of the uniform and the period for which uniform is
prescribed is to be followed.
B 183. The argument that the Kendriya Vidyalaya across the country
permit wearing of headscarf/hijab for Muslim girls, therefore, the same
should be followed in the State as well. Kendriya Vidyalaya is an
autonomous body under the Ministry of Education, Government of India.
The purpose of the same is to meet the educational needs of children of
transferable Central Government employees, including Defence and
C Para-military personnel by providing a common programme of education.
The two institutions, one under the State and other under the Central
Government have independent organisations and scope of work. It may
be that some State may permit headscarf and others do not. It is a decision
taken by the State which cannot be said to be arbitrary on that ground
D alone.
184. The parties have referred to some foreign judgments in support
of their respective arguments including judgments on the question of
reasonable accommodation. Ours is a unique country having people from
different faiths and religions professing different practices. Therefore,
E the judgments of other countries having different social structure and
polity would not provide a reasonable basis to determine the question of
religious practices in such a wide and varied country like ours.
185. Thus, though the principle of reasonable accommodation has
been adopted by the Courts in our country, such contention does not
F arise in the present case. Constitutional goals such as secularism,
fraternity, dignity mean equality for all, preference to none. The
accommodation sought is contrary to spirit of Article 14 as it would
result in different treatment of students in secular schools who may be
following varied religions beliefs.

G Question (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?
186. It has been argued that the Government Order is contrary to
the legitimate State interest of promoting literacy and education as
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 537
[HEMANT GUPTA, J.]

mandated under Articles 21 and 21A as well as the directive principles A
contained in Articles 39(f), 41, 46 and fundamental duties as mentioned
in Article 51A. It was said to have the effect of restricting education for
women.
187. It is also submitted that the Government Order is not in the
‘best interest of the child’, especially the child’s identity, social well- B
being and physical, emotional and intellectual development in terms of
Section 2(9) of the Juvenile Justice (Care and Protection of Children)
Act, 2015.
188. Reference is also made to the Commission of Protection of
Child Rights Act, 2005 enacted in view of the international treaty, C
Convention on the Rights of the Child, acceded by India on 11.12.1992.
The Act was enacted to give effect to the policies adopted by the
Government in this regard and the standards prescribed in the Convention.
As per Article 1 of the Convention, child means every human being
below the age of 18 years unless under the law applicable to the child,
majority is attained earlier. Article 14 of the Convention states that the D
State Parties shall respect the right of children to freedom of thought,
conscience and religion and that freedom to manifest one’s religion or
beliefs may be subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health or morals, or the
fundamental rights and freedoms of others. It is thus contended that in E
terms of the Convention to which India is a signatory, the child has a
freedom of thought, conscience and religion and to manifest one’s religion
or belief, subject only to the limitations prescribed thereunder. Therefore,
the restriction to use headscarf violates not only the fundamental rights
guaranteed under the Constitution but also the International Convention.
F
189. The Commission of Protection of Child Rights Act, 2005,
enacted in pursuance of Convention on the Rights of Child, has been
referred to contemplate that the right of freedom of thought, conscience
and religion are to be subservient to the rights provided under the
Constitution of India. However, such rights cannot be larger than the
rights available to the citizens under the Constitution. Therefore, freedom G
of religion in the Convention or the Act are not independent rights but
have to be read along with the Constitutional provisions.
190. The pre-university college is open to all students of all castes
and religions. The doors of such institutions are not closed to any student
of any community. The object of the State is to provide an opportunity H
538 SUPREME COURT REPORTS [2022] 5 S.C.R.

A for the students to study in the secular schools. It is for the students to
avail such a facility. 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
B as a part of mandate of Article 14, which is central to the theme of Part
III of the Constitution. The headscarf is not permitted in the school for
the students who are studying in Class 10+1 or 10+2. The students have
many years ahead of them where they can carry on their religious faith
but the Government Order mandating wearing of uniform cannot be
faulted with since the object is in tune with the principles of the
C Constitution.
191. The judgment of this Court reported as Society for Unaided
Private Schools of Rajasthan v. Union of India & Anr.79 held that the
right of education has been read into right to life in Article 21. The
argument is that a child who is denied right to access education is not
D only deprived of his right to live with dignity, he is also deprived of his
right to freedom of speech and expression enshrined in Article 19(1)(a)
of the Constitution. The right to education is thus a part of Article 21.
The State has not put any restriction to avail such right of education.
The right of education is available to every student. The State has only
E regulated the right in a manner that students come to the school to attend
classes only in the prescribed uniform, and the same has been done to
achieve the statutory and constitutional goals. The students cannot assert
that they have a right to education but they would avail such right as per
their own wish and in the manner which they consider appropriate. Schools
are to prepare the students for their future endeavors in life. Discipline
F is one of the attributes which the students learn in schools. Defiance to
rules of the school would in fact be antithesis of discipline which cannot
be accepted from the students who are yet to attain adulthood. Therefore,
they should grow in an atmosphere of brotherhood and fraternity and
not in the environment of rebel or defiance. The argument that the school
G is insisting on surrendering or curtailing the right to wear a headscarf as
a pre- condition to access the education is not tenable as the right to
education is available but only condition is that the students should attend
the classes in prescribed uniform.

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 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 539
[HEMANT GUPTA, J.]

192. The Government Order cannot be said to be contrary to the A
legitimate State goal of promoting literacy and education. Article 21A is
not applicable as all the students are over 14 years of age. The students
have a right to education under Article 21, but not of insisting on wearing
something additional to the uniform, in a secular school, as a part of their
religion.
B
193. In fact, the Act itself contemplates providing of opportunities
and facilities in a healthy manner and maintaining the dignity of childhood
and youth so that there is no moral or material abandonment. The uniform
for the students has been prescribed so that there is no distinction between
the students coming from diverse background and that each student
grows in an environment of equality, fairness and equal opportunities. C
The uniform is an equalizer of inequalities. Therefore, prescribing uniform
for children at an impressionable age is not only important but has a
salutary effect on the mental development of the child to grow in the
environment of oneness. The said object is in tune with Article 39(f) of
the Constitution of India which reads as thus: D
“39(f) that children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and
against moral and material abandonment.”
194. Hence, the Government Order cannot be said to be contrary E
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. F
Question (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?
195. The argument is that the State is under a positive obligation
to create an environment conducive for the exercise of fundamental G
rights. Conversely, it means that the subjects have no responsibility to
create a conducive environment in a non- discriminatory manner. If the
students of one faith insist on a particular dress, there is no stopping for
the others to carry their faiths and beliefs to the schools. It would not be
conducive to the pious atmosphere of the school where the students
H
540 SUPREME COURT REPORTS [2022] 5 S.C.R.

A seek admission for education. In fact, uniform fosters a sense of ‘equality’
amongst students- instills a sense of oneness, diminishes individual
differences, helps focus on learning as students would not be bothered
about their social status, improves discipline, fewer conflicts in school,
promotes school spirit- generates a sense of belonging, pride, loyalty
towards the school, relieves economic pressure on the parents, ensures
B
equality before the educational institution, serves the need of a diverse
community and promotes a positive sense of communal identity and does
not lead to the growth of disparities of wealth and style. School is the
time to learn and lay foundation for the future pursuits in life. The students
are expected to maintain discipline and the school is responsible to lay a
C strong foundation so as to nurture the students as responsible citizens of
the country.
196. In Indibly Creative Private Ltd. & Ors. v. Government of
West Bengal & Ors.80, the release of a movie in the State of West
Bengal was not permitted on account of threatened breach of peace. It
D was in these circumstances, this Court held that the State is duty-bound
to ensure the prevalence of conditions in which the constitutional freedoms
can be exercised. This Court held as under:
“50. The freedoms which are guaranteed by Article 19 are
universal. Article 19(1) stipulates that all citizens shall have the
E freedoms which it recognises. Political freedoms impose a
restraining influence on the State by carving out an area in which
the State shall not interfere. Hence, these freedoms are perceived
to impose obligations of restraint on the State. But, apart from
imposing “negative” restraints on the State these freedoms impose
a positive mandate as well. In its capacity as a public authority
F
enforcing the rule of law, the State must ensure that conditions in
which these freedoms flourish are maintained. In the space
reserved for the free exercise of speech and expression, the State
cannot look askance when organised interests threaten the
existence of freedom. The State is duty-bound to ensure the
G prevalence of conditions in which of those freedoms can be
exercised. The instruments of the State must be utilised to
effectuate the exercise of freedom. When organised interests
threaten the properties of theatre owners or the viewing audience

80
H (2020) 12 SCC 436
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 541
[HEMANT GUPTA, J.]

with reprisals, it is the plain duty of the State to ensure that speech A
is not silenced by the fear of the mob. Unless we were to read a
positive obligation on the State to create and maintain conditions
in which the freedoms guaranteed by the Constitution can be
exercised, there is a real danger that art and literature would
become victims of intolerance. In the present case, we are of the
B
view that there has been an unconstitutional attempt to invade the
fundamental rights of the producers, the actors and the audience.
Worse still, by making an example out of them, there has been an
attempt to silence criticism and critique. Others who embark upon
a similar venture would be subject to the chilling effect of “similar
misadventures”. This cannot be countenanced in a free society. C
Freedom is not a supplicant to power.”
197. As discussed above, 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 D
the Karnataka Education Act, 1983.
In view of the discussions above, I dismiss all appeals and the
writ petitions, though on different grounds than what prevailed before
the High Court. No Costs.
E
SUDHANSHU DHULIA, J.
1. 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 F
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
G
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. H
542 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 2. 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.
B
3. 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
C context), “…finality is a good thing, but Justice is better.”1
4. 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
D 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.
E On 22.09.2022 leave was granted by this Court, and Judgement was
reserved.
5. In the district of Udupi in Karnataka there is a small town
called Kundapura. Aishat Shifa and Tehrina Begum were the two second
year students of Government Pre-University College in Kundapura.
F 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
G never an issue.
6. 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

1
H Ras Behari Lal and Others vs. The King-Emperor in AIR 1933 PC 208
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 543
[SUDHANSHU DHULIA, J.]

their hijab, they were denied entry in the college, by the college A
administration.
7. The next day that is February 4, 2022, both made a representation
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 B
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 C
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 D
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.”
8. Since the entire G.O. has been reproduced by Justice Hemant
E
Gupta in his Judgement I need not reproduce the entire G.O., but the
relevant portion of the G.O are as under:
“In the backdrop of the issues highlighted in the proposal, using
the powers granted by the Karnataka Education Act Section 133
(2), all the government schools in the state are mandated to abide F
by the official uniform. Private schools should mandate a uniform
decided upon by their board of management.
In colleges that come under the pre-university education
department’s jurisdiction the uniforms mandated by the College
Development Committee, or the board of management, should be G
worn. In the event that the management does [sic does not]
mandate a uniform, students should wear clothes that are in the
interests of unity, equality and public order.
By the Orders of the Governor of Karnataka”
H
544 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 9. Since hijab was not made a part of the ‘uniform,’ and wearing
it was not ‘in the interest of unity, equality and public order,’ as the G.O.
mandated, the Petitioners were denied entry in their school. This Court
has been informed at the Bar, that similar restriction was imposed on
other school going girls in different parts in Karnataka.
B 10. The two girls, who were the students were then constrained
to file Writ Petitions before the Karnataka High Court. Initially the case
went before a learned Single Judge of the High Court, who in turn,
considering the importance of the matter, referred it to the Chief Justice
for constituting a larger bench. A three-judge bench was constituted by
C the Chief justice, which has heard the matter at length and then passed
its orders on March 15, 2022, dismissing the Writ Petitions, an order
which is presently impugned before this Court.
11. Before the Karnataka High Court as well as before this Court
the main argument of the Petitioners was that the G.O. dated February
D 5, 2022, and the restrictions imposed by the school authorities in not
permitting the Petitioners to wear hijab inside their classrooms amounts
to a violation of their Fundamental Rights given to them under Article
19(1)(a) and Article 25(1) of the Constitution of India as well as under
Articles 14 and 21 of the Constitution. Some of the Petitioners also raised
a claim that wearing of hijab is a part of their Essential Religious Practice.
E The argument of the State on the other hand would be that the G.O only
directs the school authorities of respective schools to prescribe a school
uniform. It is an innocuous order, which is religion neutral. As to the
argument on Fundamental Rights, the reply was that Fundamental Rights
are not absolute and they are always subject to reasonable restrictions.
F Prohibiting hijab inside a classroom is a reasonable restriction. Wearing
of hijab was also said to be not an Essential Religious Practice.
12. The Karnataka High Court had formulated four questions for
its consideration. These questions are as follows:

G a) Whether wearing hijab/headscarf is a part of Essential
Religious practice in Islamic Faith protected under Article
25 of the Constitution.
b) Whether prescription of school uniform is not legally
permissible, as being violative of petitioners’ Fundamental
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 545
[SUDHANSHU DHULIA, J.]

Rights inter-alia guaranteed under Article 19(1)(a), (i.e., A
freedom of expression) and 21 (i.e., privacy) of the
Constitution.
c) Whether the Government Order dated 05.02.2022 apart
from being incompetent is issued without application of mind
and further is manifestly arbitrary and therefore violates B
Article 14 and 15 of the Constitution?
d) Whether any case is made out in Writ Petition Number
2146 of 2022 for issuance of a direction for initiating
disciplinary enquiry against Respondent No. 6 to 14 and for
issuance of a Writ of Quo Warranto against Respondent C
No. 15 and 16?
13. As far as the first question is concerned the High Court has
given a finding that wearing of hijab by Muslim women does not form a
part of Essential Religious Practice in Islamic faith. On the second
D
question it was held that prescription of school uniform places only a
reasonable restriction which is Constitutionally permissible and cannot
be objected by the students. As regards the third, i.e., the G.O of 5
February 2022 it was again held that the Government has powers to
issue such an order and no case is made out for its invalidation. The
fourth point was also given in the negative. E

14. One of the grounds raised by the Petitioners in their challenge
to the validity of the G.O. dated February 5, 2022 is that it is merely an
Executive Order. But it has far reaching consequences as far as
curtailment of Fundamental Rights of the Petitioner are concerned given
to her under Article 19(1)(a) and 25(1) of the Constitution. It was submitted F
that the settled position of law is that restrictions on Fundamental Rights
can only be imposed by a statutory law and not by executive order. The
decision of this Court in Kharak Singh v. State of Uttar Pradesh2 was
relied upon. This submission, however, is not correct and therefore
declined. The reasons being, that under Section 1333 of the Karnataka G

2
(1964) 1 SCR 332
3
‘133. Powers of Government to give directions-(1) The State Government may, subject
to the other provisions of this Act, by order, direct the Commissioner of Public Instruction
or the Director or any other officer not below the rank of the District Educational
Officer to make an enquiry or to take appropriate proceedings under this Act in respect
H
546 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Education Act, 1983 the Government has powers to give directions. Section
145 of the 1983 Act gives the State Government powers to make Rules,
which have been made and are called the Karnataka Educational
Institutions (Classification, Regulation and Prescription of Curricula Etc.,)
Rules, 1995. Rule 11(1),4 of the above Rules’ states that the recognized
educational institutions can prescribe uniform. Therefore, the State
B
Government in any case has powers to prescribe a uniform/dress code.
Therefore, the submissions that the G.O is not a valid law is not correct.
The G.O draws its source from the statue and the statutory rules.
Therefore, it has the force of law. Nevertheless, the fact remains that it
still has to pass muster the provisions of Articles 19 and 25 of the
C Constitution.
15. Out of the four questions formulated by the Karnataka High
Court the first question is in fact the crucial one. Everything depended
on the determination on this question. But then the Court had set a very
tall order for the Petitioners to prove their case. The Petitioners had to
D prove that wearing of hijab forms a core belief in the religion of Islam.
ERP also meant that such a practice should be fundamental to follow as
a religious belief or practice as ERP was held to be the foundation, on
which the superstructure of the religion was erected. Essential Religious
Practice would mean a practice without which religion would not remain
E the same religion. Also, the Petitioners had to prove that the practice of
wearing hijab is a practice which is being followed since the very
beginning of their religion. This was the task set up for the Petitioners to
prove their case. But this was not enough, this was only the threshold

of any matter specified in the said order and the Director or the other officer, as the case
F may be, shall report to the State Government in due course the result of the enquiry
made or the proceedings taken by him.
(2) The State Government may give such directions to any educational institution or
tutorial institution as in its opinion are necessary or expedient for carrying out the
purposes of this Act or to give effect to any of the provisions contained therein or of any
rules or orders made thereunder and the Governing Council or the owner, as the case
may be, of such institution shall comply with every such direction.
G
(3) The State Government may also give such directions to the officers or authorities
under its control as in its opinion are necessary or expedient for carrying out the
purposes of this Act, and it shall be the duty of such officer or authority to comply with
such direction”
4
‘11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised education
institution may specify its own set of Uniform. Such uniform once specified shall not be
H changed within the period of next five years.
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 547
[SUDHANSHU DHULIA, J.]

requirement. The Petitioners also had to prove that the ERP does not A
militate against any of the Constitutional values. This perhaps was right,
because an ERP which is an invasion on the Fundamental Rights of
others will not be given the protection. The Court held as follows5:
“…There is absolutely no material placed on record to prima facie
show that wearing of hijab is a part of an essential religious practise B
in Islam and that the Petitioners have been wearing hijab from the
beginning. This apart, it can hardly be argued that hijab being a
matter of attire, can be justifiably treated as fundamental to Islamic
faith. It is not that if the alleged practise of wearing hijab is not
adhered to, those not wearing hijab become the sinners, Islam
loses its glory and it ceases to be a religion. Petitioners have C
miserably failed to meet the threshold requirement of pleadings
and proof as to wearing hijab is an inviolable religious practice in
Islam and much less a part of ‘essential religious practice’…”
As the Petitioners did not meet the threshold requirement, the
High Court did not feel it necessary to touch on the aspect of Constitutional D
Values. Therefore, they stated that :-
“It hardly needs to be stated that if Essential Religious Practice
as a threshold requirement is not satisfied then the case would by
extension not travel to the merits surrounding the domain of those
Constitutional Values.” E

16. The Judgement then upholds the validity of the G.O dated
February 5, 2022 and holds that the authorities have power to prescribe
uniform in schools.
17. In my opinion, the question of Essential Religious Practices, F
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, G
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.

5
Para XII at Page 87 of the Judgement H
548 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 18. Partly, the Petitioners had to be blamed for the course taken
by the Court as it was indeed the Petitioners or some of the Petitioners
who had claimed that wearing of hijab is an essential practice in Islam.
Before us, however, when arguments were raised at the Bar, some of
the Counsels did admit that ERP was not the core issue in the matter, but
the Petitioners before the Karnataka High Court had no choice as they
B
were, inter alia, attacking the Government Order dated 5 February 2022,
which clearly stated that prohibiting hijab in schools will not be violative
of Article 25 of the Constitution of India. Be that as it may, the fact
remains that the point was raised. It was made the core issue by the
Court, and it went against the Petitioners.
C
19. The approach of the High Court could have been different.
Instead of straightaway taking the ERP route, as a threshold requirement,
the 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. In
D Bijoe Emmanuel and Ors. vs State of Kerala and Ors. 6 this is what
the Court had to say:
“…Therefore, whenever the Fundamental Right to freedom of
conscience and to profess, practice and propagate religion is
invoked, the act complained of as offending the Fundamental Right
E must be examined to discover whether such act is to protect public
order, morality and health, whether it is to give effect to the other
provisions of Part III of the Constitution or whether it is authorized
by a law made to regulate or restrict any economic, financial,
political or secular activity which may be associated with religious
F practice or to provide for social welfare and reform. It is the duty
and function of the court so to do.”
20. Be that as it may, let us examine as to how and what the
entire concept of Essential Religious Practice has been defined by this
Court.
G
21. The test of ERP has been laid down by this Court in the past
to resolve disputes of a particular nature, which we shall discuss in a
while. By and large these were the cases where a challenge was made
to State interference on what was claimed to be an “essential religious

H 6
1986 3 SCC 615; Para 19
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 549
[SUDHANSHU DHULIA, J.]

practice.” What was raised was the protection of Article 25 as well as A
Article 26 of the Constitution of India. In other words, these were the
cases where both Article 25 (1) and (2) and Article 26 were in play.
Essentially, these were the cases where the rituals and practices of a
denomination or a sect of a particular religion sought protection against
State intervention. Even when Rights of an individual were raised, as
B
we may say in the case of Shayara Bano v. Union of India and Ors.7
which is the Triple Talaq case or the case of Indian Young Lawyers
Association and Ors, (Sabarimala Temple, In Re.) v. State of Kerala
and Ors.8 which is commonly known as the Sabarimala case, these
were cases where an individual right was asserted against a religious
practice or where there was an assertion, primarily on a religious identity. C
In the case at hand, the question is not merely of religious practice or
identity but also of ‘freedom of expression,’ given to a citizen under
Article 19(1)(a) of the Constitution of India, and this makes this case
different.
22. The expression ‘essential religious practices’ it seems was D
taken from the Constituent Assembly Debates. In response to a query,
Dr. Ambedkar categorically said that what is protected under Article 25
of the Constitution is not every religious practice but only such practices
which are essentially religious. The relevant passage of the Constituent
Assembly Debates VII: 781 is reproduced hereunder: E
“…there is nothing extraordinary in saying that we ought to strive
hereafter to limit the definition of religion in such a manner that
we shall not extend it beyond beliefs and such rituals as may be
connected with ceremonials which are essentially religious…”
23. The first case, all the same, in this regard which came up for F
consideration before the Supreme Court was Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt9 which is famously known as the Shirur
Mutt case. The facts of this case were that the Mathadhipati of Shirur
Math at Udupi had preferred a challenge to the powers of the G
Commissioner under the Madras Hindu Religious Endowments Act (Act
2 of 1927) who was exercising control over the affairs of Shirur Math.
7
(2017) 9 SCC 1
8
(2019) 11 SCC 1
9
(1954) SCR 1005 H
550 SUPREME COURT REPORTS [2022] 5 S.C.R.

A The Writ Petition was allowed by the Madras High Court and a Writ of
Prohibition was granted in favour of the Mathadhipati. This order was
challenged before the Supreme Court by the Commissioner, Hindu
Religious Endowments, Madras. Inter-alia, therefore before the
Supreme Court was the question of whether the provisions of the Act
were an invasion on the exercise of Fundamental Rights of the
B
Mathadhipati and the Management of the Temple, given to them under
Article 25 and 26 of the Constitution. This Court then proceeded to
elaborate on the meaning of religion and how it has to be understood in
the context of the Constitution. While delivering the concurring opinion
on behalf of the Seven Judge Constitutional Bench, Justice B.K.
C Mukherjea held as follows:
“…Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do not believe
in God or in any Intelligent First Cause. A religion undoubtedly
D has its basis in a system of beliefs or doctrines which are regarded
by those who profess that religion as conducive to their spiritual
well being, but it would not be correct to say that religion is
nothing else but a doctrine of belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and models of
E
worship which are regarded as integral parts of religion, and
these forms and observances might extend even to matters of
food and dress.10”
24. The Court held that the guarantee under her Constitution not
only protects the freedom of religious opinion but it protects also, acts
F
done in pursuance of a religion and this is made clear using the expression
‘practice of religion,’ in Article 25. This Court rejected the submissions
of the Ld. Attorney General of India, as he then was, that the State must
be allowed to regulate the secular activities which are associated with a
religion which do not constitute the essential part of it. The observations
G falling from the court in the Shirur Mutt Case (supra), in this regard
were as follows:
“19. …The learned Attorney-General lays stress upon clause 2(a)
of the article and his contention is that all secular activities, which

10
H Para 17 of Shirur Mutt Cae (supra)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 551
[SUDHANSHU DHULIA, J.]

may be associated with religion but do not really constitute an A
essential part of it, are amenable to State regulation.
20. … The contention formulated in such broad terms cannot, we
think, be supported. In the first place, what constitutes the
essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. If the B
tenets of any religious sect of the Hindus prescribe that offerings
of food should be given to the idol at particular hours of the day,
that periodical ceremonies should be performed in a certain way
at certain periods of the year or that there should be daily recital
of sacred texts or oblations to the sacred fire, all these would be C
regarded as parts of religion and mere fact that they involve
expenditure of money or employment of priests and servants or
the use of marketable commodities would not make them secular
activities partaking of a commercial or economic character; all of
them are religious practices and should be regarded as matters of
religion within the meaning of Article 26(b)11.’ D

(emphasis supplied)
Thereafter though the concept like ERP had come, but what
constitutes Essential Religious Practices was left to the doctrine of that
religion itself. E
25. The next case which came up for consideration of this Court
was in Ratilal Panachand Gandhi v. State of Bombay and Ors.12
wherein the Petitioners had challenged the Constitutional validity of the
Act known as the Bombay Public Trusts Act, 1950 inter-alia, on grounds
that the provisions in the Act were an invasion of their Fundamental F
Rights, given to them under Article 25 as well as Article 26 of the
Constitution. Basically, it followed the same line of thought as laid down
in the Shirur Mutt (supra) case. The observations of the court are:
“10. …The free exercise of religion by which is meant the
performance of outward acts in pursuance of religious belief, is, G
as stated above, subject to State regulation imposed to secure
order, public health and morals of the people. What sub-clause

11
Para 19 & 20
12
1954 SCR 1055; Para H
552 SUPREME COURT REPORTS [2022] 5 S.C.R.

A (a) of clause 2 of Article 25 contemplates is not State regulation
of the religious practices as such which are protected unless they
run counter to public health or morality but of activities which are
really of an economic, commercial or political character though
they are associated with religious practices.”
B 26. We now come to the decision of the Supreme Court in Durgah
Committee, Ajmer, and Anr. v. Syed Hussain Ali and Ors.13 In this
case the ‘khadims’ of the Hazrat Haji Moinuddin Chishti had
challenged the Constitutional Validity of the Dargah Hazrat Khwaja Saheb
Act, 1955 before the Rajasthan High Court. The ‘khadims’ of the Durgah
C of Khwaja Moin-ud-din Chishti (also known as the Durgah Khwaja
Saheb, Ajmer), claimed to be the followers of a Sufi sect or Silsila
called Chishti and they claimed they were doing service in the Dargah
of Sufi Saint Hazrat Haji Moinuddin Chishti. Their case was that the
interference of the Dargah Committee amounts to an invasion of the
Fundamental Rights, inter alia, guaranteed to them under Article 25(1)
D of the Constitution of India. The Rajasthan High Court had substantially
allowed their claim and against the said order the Dargah Committee
was before the Supreme Court. The questions which fell for consideration
before this Court was whether any person as a Sunni Muslim could
manage the affairs of the Durgah or whether this could only be done by
E the followers of Chishti Silsila. There were some other questions as
well, which would not be relevant for discussion in the context of this
decision. The Supreme Court had allowed the appeal of the Durgah
Committee by setting aside the order of the Rajasthan High Court, holding,
inter alia that khadims could not claim the right under Article 25(1) of
the Constitution of India. The Supreme Court in this case, went on to
F determine as to what would be an ERP and how the Court would
determine the same. All the same this was done again as there was an
interplay of Article 25 and Article 26 of the Constitution, and what was
being asserted were the Rights of a Sect or a denomination against
State intervention.
G 27. The Judgements of this Court in Acharya J. Avadhuta & Ors.
v. Commissioner of Police, Calcutta & Anr.14 and Commissioner of
Police & Ors. v. Acharya J. Avadduta15 both relate to the performance
13
(1962) 1 SCR 383
14
(1983) 4 SCC 522
H 15
(2004) 12 SCC 770
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 553
[SUDHANSHU DHULIA, J.]

of tandav dance in a public place by the followers of the faith of ‘Anand A
Margis.’ The Kolkata Police had banned such performance of tandav
dance in public places under Section 144 of the Code of Criminal
Procedure, 1973. The matter ultimately came up before this Court in
1983 and it was held that performing tandav dance in public places is
not an essential part of the ‘Anand Margi’ faith. The matter again reached
B
before this Court in 2004 and a 3-Judge bench of this Court reached the
same conclusion by relying upon the earlier Judgement of 1983.
28. Therefore, what can be clearly distinguished here is that while
dealing with the concept of Essential Religious Practices or whether a
particular practice can be termed as an ERP, this Court was dealing C
with questions related to both Article 25 as well as Article 26 of the
Constitution. These were the cases which were either concerned with
the management of an activity related to a religious shrine or Institution
or where the State had met some kind of resistance or challenge by the
citizens, who claimed rights both under Article 25 and 26 of the
Constitution of India. These were also the cases where a community, D
sect or a religious denomination of a religion was against the State action.
This, however, is not presently the case before this Court. We have
before us a case of assertion of individual Right as different from what
would be a community Right. We are concerned only with Article 25(1)
and not with Article 25(2) or Article 26 of the Constitution of India. E
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. In that sense what has been decided by this
Court earlier as ERP would not be of much help to us. For this reason,
the entire exercise done by the Karnataka High Court, in evaluating the
rights of the Petitioners only on the touchstone of ERP, was incorrect. F

29. In the more recent case of Shayara Bano (supra) the majority
opinion of 3:2 held that Triple Talaq constitutes an irregular and not an
essential practice amongst Sunni Muslims. It was stated as follows:
“54. …Applying the aforesaid tests, it is clear that Triple Talaq is G
only a form of talaq which is permissible in law, but at the same
time, stated to be sinful by the very Hanafi School which tolerates
it. According to Javed16, therefore, this would not form part of
any essential religious practice. Applying the test stated in Acharya
16
Javed v State of Haryana, (2003) 8 SCC 369 [cited in Shayara Bano (supra)] H
554 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Jagadishwarananda it is equally clear that the fundamental nature
of the Islamic religion, as seen through an Indian Sunni Muslim’s
eyes, will not change without this practice…”
30. In the Sabarimala Temple (supra) case the question before
the Constitutional Bench was whether women devotees between the
B ages of 10-50 years had the Right to enter the temple of Lord Ayyappa
located in Sabarimala, Kerala. Subsequently, this Right was denied to
them by the Temple Authorities, on the basis of customary practice and
tradition. Allowing the Writ Petition by 4:1 majority, the bench held in
favour of women devotees and struck down the restrictions placed upon
C them to be violative of their Fundamental Rights under the Constitution
of India.
31. In both the cases cited above again the essential determination
before the Court was of religion and religious practice. Freedom of
expression given to a citizen under Article 19(1)(a) was not an issue,
and if at all it was it was on the periphery. In other words, not the central
D
issue.
32. We are presently concerned with an entirely different set of
facts. We must deal with only Article 25(1), and not with Article 25(2),
or even with Article 26 of the Constitution of India. Article 25(1) deals
with the Rights of an individual, whereas Article 25 (2), and Article 26
E
deal with the Rights of communities or religious denominations, as referred
above. Additionally, we must deal with the Fundamental Rights given to
an individual under Article 19(1)(a) and its interplay with Article 25(1) of
the Constitution.
33. Article 25 gives a citizen the “freedom of conscience and free
F
profession, practice and propagation of religion.” It does not speak of
Essential Religious Practice. This concept comes in only when we are
dealing with Article 25(2) or Article 26, and where there is an inter-play
of these two Articles.
34. We have before us two children, two girl students, asserting
G
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.
H
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 555
[SUDHANSHU DHULIA, J.]

35. The Karnataka High Court, however, has made a detailed A
study as to what is ERP and whether wearing a hijab constitutes a part
of ERP in Islam. Suras and verses from the Holy Quran have been
referred and explained, and then taking assistance of a commentary on
the Holy Book, the High Court concludes that wearing of hijab is not an
essential religious practice in Islam and at best it is directory in nature,
B
not mandatory. The decisions of the Supreme Court which we have
referred above, and some other decisions as well have been considered
while dealing as to what constitutes an ERP, and then a determination
has been made that what is being claimed as a right is not an essential
religious practice at all!
C
36. Apart from the fact that ERP was not essential to the
determination of the dispute, which we have already said above, there is
another aspect which is even more important, which would explain as to
why the Courts should be slow in the matters of determining as to what
is an ERP. In my humble opinion Courts are not the forums to solve
theological questions. Courts are not well equipped to do that for various D
reasons, but most importantly because there will always be more than
one viewpoint on a particular religious matter, and therefore nothing gives
the authority to the Court to pick one over the other. The Courts, however,
must interfere when the boundaries set by the Constitution are broken,
or where unjustified restrictions are imposed. E
37. In the case of M. Siddiq (Dead) Through LR’s v. Mahant
Suresh Das and Ors.17 popularly known as the Ram Janmabhoomi
Case this Court had cautioned not to venture into areas of theology with
which the Courts are not well equipped. There may be diversity of views
within a religion and to choose one over others, may not be correct. F
Courts should steer clear from interpreting religious scriptures. It was
observed by the Court as follows:
“90. During the course of the submissions, it has emerged that the
extreme and even absolute view of Islam sought to be portrayed
by Mr. P.N. Mishra does not emerge as the only available G
interpretation of Islamic law on a matter of theology. Hence, in
the given set of facts and circumstances, it is inappropriate for
this Court to enter upon an area of theology and to assume the

17
(2020) 1 SCC 1; Para 90 & 91 H
556 SUPREME COURT REPORTS [2022] 5 S.C.R.

A role of an interpreter of the Hadees. The true test is whether
those who believe and worship have faith in the religious efficacy
of the place where they pray. The belief and faith of the worshipper
in offering namaz at a place which is for the worshipper a mosque
cannot be challenged. It would be preposterous for this Court to
question it on the ground that a true Muslim would not offer prayer
B
in a place which does not meet an extreme interpretation of doctrine
selectively advanced by Mr. Mishra. This Court, as a secular
institution, set up under a constitutional regime must steer
clear from choosing one among many possible
interpretations of theological doctrine and must defer to
C the safer course of accepting the faith and belief of the
worshipper.’
91. Above all, the practice of religion, Islam being no exception,
varies according to the culture and social context. That indeed is
the strength of our plural society. Cultural assimilation is a
D significant factor which shapes the manner in which religion is
practiced. In the plural diversity of religious beliefs as they are
practiced in India, cultural assimilation cannot be construed as a
feature destructive of religious doctrine. On the contrary, this
process strengthens and reinforces the true character of a country
E which has been able to preserve its unity by accommodating,
tolerating, and respecting a diversity of religious faiths and ideas.
There can be no hesitation in rejecting any attempt to lead
the Court to interpret religious doctrine in an absolute and
extreme form and question the faith of worshippers. Nothing
would be as destructive of the values underlying Article 25
F of the Constitution.18’
(emphasis supplied)
38. In any case as to what constitutes an Essential Religious
Practice, in all its complexities, is a matter which is pending consideration
G before a Nine Judge Constitutional bench of this Court19 and therefore
in any case it may not be proper for me to go any further into this
aspect.
18
Paras 90 & 91
19
Kantaru Rajeevaru vs Indian Young Lawyers Assn. and Ors. [R.P. (C) No. 3358 of
H 2018 in W.P. (C) No. 373 of 2006]
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 557
[SUDHANSHU DHULIA, J.]

39. The decision which is of essential importance in this case for A
our purposes is the decision given by this Court in the case of Bijoe
Emmanuel (supra). It is necessary to refer to this case in some detail,
as in my opinion this case is the guiding star which will show us the path
laid down by the well established principles of our Constitutional values,
the path of understanding and tolerance, which we may also call as
B
“reasonable accommodation,” as explained by some of the lawyers before
this Court. Karnataka High Court, all the same, chose not to rely on this
seminal Judgement for reasons that “Bijoe Emmanuel is not the best
vehicle for drawing a proposition essentially founded on the freedom
of conscience20.” But this is not correct. This decision of the Supreme
Court is most relevant in the present case, both on the facts as well as C
on law.
40. Let us now look into the facts of that case:
Three girl children in Kerala who belonged to a faith called
Jehovah’s Witnesses, were attending a government school. Every
morning when the National Anthem was sung in the school these three D
students used to respectfully stand up for the National Anthem, like other
children in the school; but they did not sing the National Anthem. They
did so as their faith forbid them to sing for anyone else but Jehovah.
Initially this was not noticed but then someone complained before the
highest authority in the State, which led to the expulsion of these three E
children from their school, by orders passed by the Deputy Inspector of
schools and then the Headmistress of the school. The children filed their
Writ Petition before the Kerala High Court which was dismissed by the
learned Single Judge as also their appeal by a division bench of Kerala
High Court. They finally approached the Supreme Court of India and
F
filed their Special Leave Petition before this Court. Their case was simple:
they do not show disrespect to the National Flag or the National Anthem.
They stand respectfully when the National Anthem is sung, they only do
not participate in singing as they sincerely believe their faith forbids them
to sing for anyone but Jehovah.
G
41. The Petition of these three girl children was dismissed by the
Kerala High Court as the Kerala High Court did not find any word or
thought in the Indian National Anthem which could offend anyone’s
religious susceptibilities. Hence the Kerala High Court concluded that
20
Para X1(iii) at Page 85 of the Impugned Judgement H
558 SUPREME COURT REPORTS [2022] 5 S.C.R.

A there was absolutely no reason for the children not to sing the national
anthem! While examining their case Justice O. Chinnappa Reddy, who
wrote this Judgement for the Court rejected the approach of the High
Court and said that the High Court had actually misdirected itself in
doing so and it went off at a tangent. The objection of the Petitioners
B was not to the language of the National Anthem, but they simply refused
to sing any National Anthem, irrespective of any country as they sincerely
believe that this is what their religion prescribes them to do.
42. The Supreme Court then cites two judgements of the United
States Supreme Court, which we must refer here as well, since they
C relate to schools and the ‘discipline’ imposed by the schools. The first is
the case of Minersville School District v. Gobitis21 and the second
is West Virginia State Board of Education v. Barnette22. While
referring to the two judgement(s) my source shall remain the Judgement
of Bijoe Emmanuel (supra).
D 43. In Minersville (supra) the question was whether compulsory
saluting of the National Flag infringed upon the liberties guaranteed by
the Fourteenth Amendment of the Constitution of the United States of
America. The majority opinion delivered by Justice Frankfurter upheld
the requirement on grounds that such decisions are to be left to the
school boards. Justice Stone gave his dissent and said,
E
“History teaches us that there have been but few infringements
of personal liberty by the State which have not been justified, as
they are here, in the name of righteousness and the public good,
and few which have not been dictated, as they are now, at
politically helpless minorities23.”
F
In short, the US Supreme Court did not interfere in the compulsory
saluting of the National Flag in a Public School. The reference of this
case, is however, important here as very soon this decision was overruled
by the Supreme Court in the case of Barnetta (supra) which is the
second case.
G
44. The second case is the one which only a few years later,
overruled Gobitis (supra). Justice Jackson, the author of the Judgement
21
310 US 586 (1940)
22
319 US 624 (1943)
23
H Para 21 of Bijoe Emmanuel (supra)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 559
[SUDHANSHU DHULIA, J.]

in Barnett referred to the famous dilemma of Abraham Lincoln which A
was “Must a government of necessity be too strong for the liberties
of its people, or too weak to maintain its own existence?” Justice
Jackson then said:
“It may be doubted whether Mr. Lincoln would have thought that
the strength of government to maintain itself would be impressively B
vindicated by our confirming power of the state to expel a handful
of children from school…”
45. While going into the logic of Justice Frankfurter of non-
interference with the School Authorities, as that would make the Court a
C
School Board, Justice Jackson went onto say:
“There are village tyrants as well as village Hampdens, but none
who acts under colour of law is beyond the reach of the
Constitution….. We cannot, because of modest estimates of our
competence in such specialities as public education, withhold the D
judgement that history authenticates as the function of this Court
when liberty is infringed.” Justice Jackson then concludes: 24,
“If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of E
opinion or force citizens to confess by word or act their faith
therein. If there are any circumstances which permit an
exception, they do not now occur to us.
We think the action of the local authorities in compelling the
flag salute and pledge transcends constitutional limitations on F
their power and invades the sphere of intellect and spirit which
it is the purpose of the First Amendment to our Constitution to
reserve from all official control.”
46. Justice O. Chinnappa Reddy in his Judgement has traced
the struggles and the difficulties faced by the faithful of Jehovah in G
different countries where they had met similar restrictions. The Court
then invokes Article 19(1)(a) and Article 25(1), in favor of the
petitioners. It says:

24
Para 22 of Bijoe Emmanuel (supra) H
560 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “Article 19(1)(a) of the Constitution guarantees to all citizens
freedom of speech and expression, but Article 19(2) provides that
nothing in Article 19(1)(a) shall prevent a State from making any
law, insofar as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India, the security of the State,
B
friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or
incitement to an offence. Article 25(1) guarantees to all persons
freedom of conscience and the right freely to profess, practise
and propagate religion, subject to order, morality and health and to
C the other provisions of Part III of the Constitution.”
47. It was then held that it is not disrespectful to the National
Anthem if the girls respectfully stand when the National Anthem was
sung, but may not have joined in the singing. Their expulsion from school
was therefore held to be in violation of their Fundamental Right of
D Freedom of Speech and Expression given to them under Article 19(1)(a)
of the Constitution of India. The Government Circular which directed
that the entire school should sing National Anthem was not ‘law’ as
given in Clause 2 of Article 19of the Constitution. The law i.e., the
statutory law was ‘The Prevention of Insults to National Honour Act,
E 1971’. A person who respectfully stands when the National Anthem is
sung but does not participate in the singing does not commit an offence
under the Act. Offence is only committed when a person prevents another
from singing National Anthem. The Court thus impliedly also meant that
the freedom to sing would also mean freedom to remain silent.

F 48. Article 25 of the Constitution, was described as an article of
faith and it was observed as follows:
“18. …Article 25 is an article of faith in the Constitution,
incorporated in recognition of the principle that the real test of a
true democracy is the ability of even an insignificant minority to
G find its identity under the country’s Constitution. This has to be
borne in mind in interpreting Article 25.”
49. The girls before us today face the same predicament as the
Jehovah’s Witnesses in the above case. The present Petitioners too wear
hijab as an article of their faith. They too believe that it is a part of their
H religion and social practice. In my considered opinion therefore, this case
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 561
[SUDHANSHU DHULIA, J.]

is squarely covered by the case of Bijoe Emmanuel (supra) and the A
ratio laid down therein.
50. Coming back to the order of Karnataka High Court there is
another finding which is difficult to accept. This is where the High Court
determines that the Petitioners cannot assert their Fundamental Rights
inside a classroom which the Court terms as “qualified public places” B
and the rights inside a school are only “derivative right.” The court states
as under:
“It hardly needs to be stated that schools are qualified public places
that are structured predominantly for imparting educational
instructions to the students. Such qualified Spaces by their very C
nature repeal the assertion of individual rights to the detriment of
the general discipline and decorum. Even the substantive rights
themselves metamorphise into a kind of derivatives rights in such
places.”25
The Hight Court rejects the case of the Petitioners on ‘reasonable D
accommodation,’ and also the argument that schools are a showroom
for diversity of culture, for reason that the schools being ‘qualified public
places’ schoolgirls have to follow the dress code, which does not prescribe
hijab. It says:
E
“It hardly needs to be stated the content and scope of a right, in
terms of its exercise are circumstantially dependent. Ordinarily,
liberties of persons stand curtailed inter-alia by his position,
placement and the like. The extent of autonomy is enormous at
home, since ordinarily resident of a person is treated as his
inviolable castle. However, in qualified public places like schools, F
courts, war rooms, defense camp, etc., the freedom of individuals
as of necessity, is curtailed consistent with the discipline and
decorum and function and purpose26.”
51. Comparison of a school with a war room or defense camp,
seems odd, to say the least. Schools are not required to have the discipline G
and regimentation of a military camp. Nevertheless, in my understanding,
what the High Court wanted to convey was that all public places have a

25
Para XIV (iv) at Page 100 of the Impugned Judgement
26
Para XIV (vii) at Page 104 of the Impugned Judgement H
562 SUPREME COURT REPORTS [2022] 5 S.C.R.

A certain degree of discipline and limitations and the degree of enjoyment
of a Right by an individual inside his house or anywhere outside a
public space is different to what he or she would enjoy once they are
inside a public space. As a general principle, one can have no quarrel
with this proposition. But then let us come to the facts of the case.
B Laying down a principle is one thing, justifying that to the facts of a
case is quite another. We must be a judge of fact as well as a judge of
law. Do the facts of the case justify the restrictions inside a classroom,
which is admittedly a public place? In my opinion there is no justification
for this.

C 52. 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 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
D 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 dignity27 and her privacy28 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
E has been described by the High Court.
53. In the Puttaswamy judgement (supra), Justice D.Y.
Chandrachud in Paragraph 298 of his Judgement says as under:
‘298. Privacy of the individual is an essential aspect of dignity.
F Dignity has both an intrinsic and instrumental value. As an intrinsic
value, human dignity is an entitlement or a constitutionally protected
interest in itself. In its instrumental facet, dignity and freedom are
inseparably intertwined, each being a facilitative tool to achieve
the other. The ability of the individual to protect a zone of privacy
enables the realisation of the full value of life and liberty. Liberty
G has a broader meaning of which privacy is a subset. All liberties
may not be exercised in privacy. Yet others can be fulfilled only
within a private space. Privacy enables the individual to retain the

27
Maneka Gandhi vs Union of India and Anr. [(1978) 1 SCC 248]; Para 85
H 28
K.S. Puttaswamy and Anr. vs Union of India and Ors. [(2017) 10 SCC 1]
AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 563
[SUDHANSHU DHULIA, J.]

autonomy of the body and mind. The autonomy of the individual is A
the ability to make decisions on vital matters of concern to life.
Privacy has not been couched as an independent fundamental
right. But that does not detract from the constitutional protection
afforded to it, once the true nature of privacy and its relationship
with those fundamental rights which are expressly protected is
B
understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee against arbitrary
State action. It prevents the State from discriminating between
individuals. The destruction by the State of a sanctified personal
space whether of the body or of the mind is violative of the
guarantee against arbitrary State action. Privacy of the body C
entitles an individual to the integrity of the physical aspects of
personhood. The intersection between one’s mental integrity and
privacy entitles the individual to freedom of thought, the freedom
to believe in what is right, and the freedom of self-determination.
When these guarantees intersect with gender, they create a private
D
space which protects all those elements which are crucial to gender
identity. The family, marriage, procreation and sexual orientation
are all integral to the dignity of the individual. Above all, the privacy
of the individual recognises an inviolable right to determine how
freedom shall be exercised. An individual may perceive that the
best form of expression is to remain silent. Silence postulates a E
realm of privacy. An artist finds reflection of the soul in a creative
endeavour. A writer expresses the outcome of a process of
thought. A musician contemplates upon notes which musically lead
to silence. The silence, which lies within, reflects on the ability to
choose how to convey thoughts and ideas or interact with others.
F
These are crucial aspects of personhood. The freedoms under
Article 19 can be fulfilled where the individual is entitled to decide
upon his or her preferences. Read in conjunction with Article 21,
liberty enables the individual to have a choice of preferences on
various facets of life including what and how one will eat, the
way one will dress, the faith one will espouse and a myriad other G
matters on which autonomy and self-determination require a choice
to be made within the privacy of the mind. The constitutional right
to the freedom of religion under Article 25 has implicit within it
the ability to choose a faith and the freedom to express or not
express those choices to the world. These are some illustrations
H
564 SUPREME COURT REPORTS [2022] 5 S.C.R.

A of the manner in which privacy facilitates freedom and is intrinsic
to the exercise of liberty. The Constitution does not contain a
separate article telling us that privacy has been declared to be a
fundamental right. Nor have we tagged the provisions of Part III
with an alpha-suffixed right to privacy: this is not an act of judicial
redrafting. Dignity cannot exist without privacy. Both reside within
B
the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate expression of
the sanctity of the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights and protects
for the individual a zone of choice and self-determination.’
C
54. The counsels representing the State before this Court had
underlined the importance of G.O dated 05.02.2022 which was to enforce
discipline in schools, including in Pre-University classes, and apply a
dress code. The object of the act therefore was the betterment of
education and to inculcate a sense of discipline among school going
D children. The learned Advocate General of Karnataka submitted that
the law in the present case which is the G.O dated 5th February, 2022, is
primarily for the enforcement of dress code in schools including Pre-
University classes. It may only incidentally be giving an impact on the
rights which the Petitioners claim under Article 19 and 25 of the Constitution
E of India. What has to be seen is the pith and substance of the law which is
the enforcement of uniforms in schools, which in turn is to maintain discipline
in schools. For this submission the learned Advocate General has relied
upon Bachan Singh v. State of Punjab29 which says:
“60. From a survey of the cases noticed above, a comprehensive
F test which can be formulated, may be restated as under:
“Does the impugned law, in its pith and substance, whatever
may be its form and object, deal with any of the fundamental
rights conferred by Article 19(1)? If it does, does it abridge or
abrogate any of those rights? And even if it does not, in its pith
G and substance, deal with any of the fundamental rights conferred
by Article 19(1), is the direct and inevitable effect of the
impugned law such as to abridge or abrogate any of those
rights?”

29
H (1980) 2 SCC 684
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 565
[SUDHANSHU DHULIA, J.]

The mere fact that the impugned law incidentally, remotely or A
collaterally has the effect of abridging or abrogating those rights,
will not satisfy the test. If the answer to the above queries be
in the affirmative, the impugned law in order to be valid, must
pass the test of reasonableness under Article 19. But if the
impact of the law on any of the rights under clause (1) of
B
Article 19 is merely incidental, indirect, remote or collateral
and is dependent upon factors which may or may not come
into play, the anvil of Article 19 will not be available for judging
its validity.”
All the same, I do not see the applicability of the above submission
in the facts of the controversy before this Court. The G.O specifically C
seeks to address the question of hijab, which is evident from the preamble
of the G.O. Moreover, the above submission of the learned Advocate
General is not correct in view of the Puttaswamy judgement (supra)
which says:
“24. The decisions in M.P. Sharma [M.P. Sharma v. Satish D
Chandra, AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077]
and Kharak Singh [Kharak Singh v. State of U.P., AIR 1963 SC
1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] adopted a doctrinal
position on the relationship between Articles 19 and 21, based on
the view of the majority in Gopalan [A.K. Gopalan v. State of E
Madras, AIR 1950 SC 27 : 1950 SCR 88] . This view stands
abrogated particularly by the judgment in Cooper [Rustom
Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and the
subsequent statement of doctrine in Maneka [Maneka
Gandhi v. Union of India, (1978) 1 SCC 248]. The decision
in Maneka [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], F
in fact, expressly recognised that it is the dissenting judgment of
Subba Rao, J. in Kharak Singh [Kharak Singh v. State of U.P.,
AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332]
which represents the exposition of the correct constitutional
principle. The jurisprudential foundation which held the field sixty- G
three years ago in M.P. Sharma [M.P. Sharma v. Satish Chandra,
AIR 1954 SC 300: 1954 Cri LJ 865 : 1954 SCR 1077] and fifty-
five years ago in Kharak Singh [Kharak Singh v. State of U.P.,
AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332] has
given way to what is now a settled position in constitutional law.
H
566 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Firstly, the fundamental rights emanate from basic notions of liberty
and dignity and the enumeration of some facets of liberty as
distinctly protected rights under Article 19 does not denude Article
21 of its expansive ambit. Secondly, the validity of a law which
infringes the fundamental rights has to be tested not with reference
to the object of State action but on the basis of its effect on the
B guarantees of freedom. Thirdly, the requirement of Article 14 that
State action must not be arbitrary and must fulfil the requirement
of reasonableness, imparts meaning to the constitutional guarantees
in Part III.”
55. We would now be examining some decisions of foreign Courts
C as in order to appreciate the assertion of religious and cultural rights in
our school premises, it would be worthwhile to refer to some of the
similar controversies which had come up before the Courts of other
Countries which have a Constitutional Democracy. There are two cases
which I would like to refer here. The first case is the ‘nose-stud’ case
D of the Constitutional Court of South Africa and the second one is a
decision of the House of Lords in England.
56. The South African case though has to be seen in the background
of the Constitutional Law of South Africa where dignity is a right given
to its citizens under its Constitution. Equality Courts have also been
established in South Africa to hear the disputes relating to cases of
E
discrimination. But nevertheless, the basic principle and the law remains
the same.
57. Sunali was a student of Class 10 in Durban Girls High School
(DGHS). The Code of Conduct of the school prohibited wearing jewellery
in school. When Sunali was in class 10, her mother gave her a nose stud
F to wear, which was not a fashion statement, but a part of Sunali’s Hindu-
Tamil culture. The school objected to the nose-stud and Sunali was asked
to remove it. When Sunali refused to remove the nose stud her mother
was called. Her mother reasoned with the authorities that this is a part
of her Hindu-Tamil culture and it cannot be removed. Ultimately, Sunali
G through her mother had to file a Petition before the Equality Court, where
such matters of discrimination are heard since Sunali had alleged
discrimination by her school. The Equality Court held that though a prima
facie case for discrimination had been made out, it could not be termed
as ‘unfair’30, thus dismissing her case. Thereafter, the matter was taken
30
H Para 14 at Page 14 of the Judgement
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 567
[SUDHANSHU DHULIA, J.]

in appeal before the High Court which allowed her appeal and held that A
asking Sunali to remove her nose stud amounts to discrimination which
is wrong. Both the school and the administration went to the Constitutional
Court which heard the matter and again decided in favour of Sunali.
58. As to the argument of the school that nose stud was not central
to Sunali’s religion or culture and it is only an optional practice, this is B
what was said by the Constitutional Court, the Highest Court of South
Africa:
“86. The School further argued that the nose stud is not central to
Sunali’s religion or culture, but it is only an optional practice. I
agree that the centrality of a practice or a belief must play a role C
in determining how far another party must go to accommodate
that belief. The essence of reasonable accommodation is an
exercise of proportionality. Persons who merely appear to adhere
to a religious and/or cultural practice, but who are willing to forego
it if necessary, can hardly demand the same adjustment from others D
as those whose identity will be seriously undermined if they do
not follow their belief. The difficult question is how to determine
centrality. Should we enquire into centrality of the practice or
belief to the community, or to the individual?
87. While it is tempting to consider the objective importance or E
centrality of a belief to a particular religion or culture in determining
whether the discrimination is fair, that approach raises many
difficulties. In my view, courts should not involve themselves in
determining the objective centrality of practices, as this would
require them to substitute their judgement of the meaning of a
practice for that of the person before them and often to take sides F
in bitter internal disputes. This is true both for religious and cultural
practices. If Sunali states that the nose stud is central to her as a
South Indian Tamil Hindu, it is not for the Court to tell her that she
is wrong because others do not relate to that religion or culture in
the same way.” G
59. What was also pleaded on behalf of the School was that the
nose stud after all is a cultural and not a religious issue and therefore the
infringement of any right, if at all, is much less. This issue was dealt with
as follows:
H
568 SUPREME COURT REPORTS [2022] 5 S.C.R.

A “91. The next string of the School’s centrality bow was that the
infringement of Sunali’s right to equality is less severe because
the nose stud is cultural rather than a religious adornment. This
was also the basis originally relied upon by the School for refusing
the exemption and why it could recognise the stud’s cultural
significance without granting Sunali an exemption. To my mind
B
the argument is flawed. As stated above, religious and cultural
practices can be equally important to a persons’ identity. What is
relevant is not whether a practice is characterised as religious or
cultural but its meaning to the person involved.
92. The School also argued that if Sunali did not like the Code, she
C could simply go to another school that would allow her to wear
the nose stud. I cannot agree. In my view the effect of this would
be to marginalise religions and cultures, something that is
completely inconsistent with the values of our Constitution. As
already noted, out Constitution does not tolerate diversity as a
D necessary evil, but affirms it as one of the primary treasures of
our nation. There may, however, be occasions where the specific
factual circumstances make the availability of another school a
relevant consideration in searching for a reasonable
accommodation. However, there are no such circumstances in
this case and the availability of another school is therefore not a
E relevant consideration.”
60. Ultimately what was held is given below as follows:
“112. The discrimination has had a serious impact on Sunali and,
although the evidence shows that uniforms serve an important
F purpose, it does not show that the purpose is significantly furthered
by refusing Sunali her exemption. Allowing the stud would not
have imposed an undue burden on the School A reasonable
accommodation would have been achieved by allowing Sunali to
wear the nose stud. I would therefore confirm the High Court’s
finding of unfair discrimination.”
G
61. The other case, which was also relied by the Karnataka High
Court is Regina (SB) v. Governors of Denbigh High School31.
Primarily the controversy was that the school, allowed wearing of hijab,
but what was further insisted was wearing of jilbab (which is more or
31
H [2007] 1 AC 100
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 569
[SUDHANSHU DHULIA, J.]

less a burqa). Jilbab was denied and this led to the litigation where the A
restriction of the school on jilbab was upheld. In this background we
must appreciate the observations of the Court, it was said:
“But schools are different. Their task is to educate the young
from all the many and diverse families and communities in this
country in accordance with the national curriculum. Their task is B
to help all of their pupils achieve their full potential. This includes
growing up to play whatever part they choose in the society in
which they are living. The school’s task is also to promote the
ability of people of diverse races, religions and cultures to live
together in harmony. Fostering a sense of community and cohesion
within the school is an important part of that. A uniform dress C
code can play its role in smoothing over ethnic, religious and social
divisions. But it does more than that. Like it or not, this is a society
committed, in principle and in law, to equal freedom for men and
women to choose how they will lead their lives within the law.
Young girls from ethnic, cultural or religious minorities growing up D
here face particularly difficult choices: how far to adopt or to
distance themselves from the dominant culture. A good school
will enable and support them. This particular school is a good
school: that, it appears, is one reason why Shabina Begum wanted
to stay there. It is also a mixed school. That was what led to the
difficulty. It would not have arisen in a girls’ school with an all E
female staff.”
62. When a decision has to be made between school discipline
and cultural and religious rights of minorities a balance has to be
maintained. That is what was held. Baroness Hale of Richmond while
elaborating on this issue referred to “Culture, Religion and Gender” F
(2003) by Professor Frances Raday the exact Paragraph at 98 which
reads like this:
“genuine individual consent to a discriminatory practice or dissent
from it may not be feasible where these girls are not yet adult.
The question is whether patriarchal family control should be G
allowed to result in girls being socialised according to the
implications of veiling while still attending public educational
institutions . . . A mandatory policy that rejects veiling in state
educational institutions may provide a crucial opportunity for girls
to choose the feminist freedom of state education over the H
570 SUPREME COURT REPORTS [2022] 5 S.C.R.

A patriarchal dominance of their families. Also for the families, such
a policy may send a clear message that the benefits of state
education are tied to the obligation to respect women’s and girl’s
right to equality and freedom . . . On the other hand, a
prohibition of veiling risks violating the liberal principle of
respect for individual autonomy and cultural diversity for
B
parents as well as students. It may also result in
traditionalist families not sending their children to the state
educational institutions. In this educational context,
implementation of the right to equality is a complex matter,
and the determination of the way it should be achieved
C depends upon the balance between these two conflicting
policy priorities in a specific social environment”
(emphasis supplied)
63. The Karnataka High Court has placed reliance upon two US
Judgements passed by the District Courts there, that is Miller v. Gills32
D and Christmas v. El Reno Board of Education33. All the same the
facts of these cases are different and in none of the two cases the
action of the school authorities debarred students from attending their
classes. There is another judgement relied upon by Karnataka High Court
which is Employment Division v. Smith34. This is a US Supreme Court
E Judgement.
64. The facts of the case were quite different. The issue being
examined was whether the State of Oregon was justified in denying
unemployment benefits to persons who had been dismissed from their
jobs owing to their consumption of “peyote,” which had been classified
F as a ‘controlled substance’ (under the Controlled Substances Act, 1970),
when it was being consumed as a part of religious beliefs. The
consumption of peyote was admittedly a criminal offence. It was
contended by the respondents that as it was only being consumed in
pursuance of their religious belief and they would not be liable to be
subjected to the applicable criminal law. This argument was rejected
G and it was held that if certain conduct (such as consumption of peyote),
which is prohibited by law, then there would be no federal right to engage

32
315 F. Supp. 94 (N.D. Ill. 1969)
33
313 F. Supp. 618 (W.D. Okla. 1970)
34
H 494 US 872 (1990)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 571
[SUDHANSHU DHULIA, J.]

in such conduct. It was in this particular context of the applicability of A
the criminal law on an individual for a conduct already prohibited that
such law was said to be ‘facially neutral.’ On this note, the following
was stated:
“13. …We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting B
conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence
contradicts that proposition. As described succinctly by Justice
Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310
U.S. 586, 594-595, 60 S. Ct. 1010, 1012-1013, 84 L.Ed. 1375
(1940): “Conscientious scruples have not, in the course of the C
long struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction
of religious beliefs. The mere possession of religious convictions
which contradict the relevant concerns of a political society does
not relieve the citizen from the discharge of political D
responsibilities.”
65. 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! We
have been informed at the Bar by many of the Senior counsels appearing E
for the Petitioners, that the unfortunate fallout of the enforcement of
hijab ban in schools in Karnataka has been that some of the girl students
have not been able to appear in their Board examinations, and many
others were forced to seek transfer to other schools, most likely madrasas,
where they may not get the same standard of education. This is for a girl
child, for whom it was never easy, in the first place, to reach her school F
gate.
66. One of the best sights in India today, is of a girl child leaving
for her school in the morning, with her school bag on her back. She is
our hope, our future. But it is also a fact, that it is much more difficult for
a girl child to get education, as compared to her brother. In villages and G
semi urban areas in India, it is commonplace for a girl child to help her
mother in her daily chores of cleaning and washing, before she can grab
her school bag. The hurdles and hardships a girl child undergoes in gaining
education are many times more than a male child. This case therefore
has also to be seen in the perspective of the challenges already faced by
H
572 SUPREME COURT REPORTS [2022] 5 S.C.R.

A a girl child in reaching her school. 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!
67. 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?
B 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
my logic or reason as to how a girl child who is wearing a hijab in a
C
classroom is a public order problem or even a law-and-order problem.
To the contrary reasonable accommodation in this case would be a sign
of a mature society which has learnt to live and adjust with its differences.
In his famous dissent delivered in United States v. Schwimmer35 Justice
Oliver Wendell Holmes Jr., said as under:
D
“22. …if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle
of free thought-not free thought for those who agree with us but
freedom for the thought that we hate…”
68. A girl child has the right to wear hijab in her house or outside
E 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.
F 69. We live in a Democracy and under the Rule of Law, and the
Laws which govern us must pass muster the Constitution of India.
Amongst many facets of our Constitution, one is Trust. Our Constitution
is also a document of Trust. It is the trust the minorities have reposed
upon the majority. Commenting on the report of the Advisory committee
G on minorities, Sardar Vallabh Bhai Patel made a statement before the
Constitute Assembly on 24 May 1949, which should be referred here.
He said, “…. it is not our intention to commit the minorities to a
particular position in a hurry. If they really have to come honestly
to the conclusion that in the changed conditions of this country, it

H 35
279 US 644 (1929); Para 22
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 573
[SUDHANSHU DHULIA, J.]

is in the interest of all to lay down real and genuine foundations of A
a secular State, then nothing is better for the minorities than to trust
the good- sense and sense of fairness of the majority, and to place
confidence in them. So also, it is for us who happened to be in a
majority to think about what the minorities feel, and how we in
their position would feel if we were treated in the manner in which
B
they are treated.36”
70. The question of diversity, raised by the Petitioners before the
Karnataka High Court, was not considered by the Court since it was
thought to be a ‘hollow rhetoric,’ and the submissions made by the lawyers
on ‘unity and diversity,’ were dismissed as an “oft quoted platitude.”
This is what was said, “Petitioners’ contention that a class room should C
be a place for recognition and reflection of diversity of society, a
mirror image of the society (socially and ethically) in its deeper
analysis is only a hollow rhetoric, ‘unity in diversity’ being the oft
quoted platitude….37"
71. The question of diversity and our rich plural culture is, however, D
important in the context of our present case. Our schools, in particular
our Pre-University colleges are the perfect institutions where our children,
who are now at an impressionable age, and are just waking up to the
rich diversity of this nation, need to be counselled and guided, so that
they imbibe our constitutional values of tolerance and accommodation, E
towards those who may speak a different language, eat different food,
or even wear different clothes or apparels! This is the time to foster in
them sensitivity, empathy and understanding towards different religions,
languages and cultures. This is the time when they should learn not to be
alarmed by our diversity but to rejoice and celebrate this diversity. This
is the time when they must realise that in diversity is our strength. F

72. The National Education Policy 2020, of the Government of
India underlines the need for inculcating the values of tolerance and
understanding in education and making the children aware of the rich
diversity of this country. The Principles of the Policy state that ‘It aims
at producing engaged, productive, and contributing citizens for G
building an equitable, inclusive, and pural society as envisaged by
our Constitution.’

36
25th May, 1949: Constituent Assembly Debates, Volume VIII
37
Para XIV(v) at Page 101 of Impugned Judgement H
574 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 73. In the case of Aruna Roy v. Union of India38 this Court had
elaborated on the Constitutional Values of religious tolerance and diversity
of culture and its need in our education system. It was observed as
follows by Justice Dharmadhikari in the concurring opinion authored by
him:
B “25. …These need to be inculcated at appropriate stages in
education right from the primary years. Students have to be given
the awareness that the essence of every religion is common, only
the practices differ…”
At another place in their judgement the court has said as under:
C “86. …The complete neutrality towards religion and apathy for
all kinds of religious teachings in institutions of the State have not
helped in removing mutual misunderstandings and intolerance inter
se between sections of the people of different religions, faiths and
belief. ‘Secularism’, therefore, is susceptible to a positive meaning
D that is developing and understanding and respect towards different
religion.”
74. A Constitutional Bench of this Court in Navtej Singh Johar
and Ors. v. Union of India, Ministry of Law and Justice39 while
speaking on diversity, dissent, liberty and accommodation spoke the
E following while delivering concurring opinions:-
“375. The Constitution brought about a transfer of political power.
But it reflects above all, a vision of a society governed by justice.
Individual liberty is its soul. The constitutional vision of justice
accommodates differences of culture, ideology and orientation.
F The stability of its foundation lies in its effort to protect diversity
in all its facets; in the beliefs, ideas and ways of living of her
citizens. Democratic as it is, out Constitution does not demand
conformity. Nor does it contemplate the mainstreaming of culture.
It nurtures dissent as the safety valve for societal conflict. Our
ability to recognise others who are different is a sign of our own
G evolution. We miss the symbols of a compassionate and humane
society only at our peril40.”

38
(2002) 7 SCC 368
39
(2018) 10 SCC 1
40
H Para 375, Concurring Opinion by Dr. Justice D.Y. Chandrachud, (supra)
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 575
[SUDHANSHU DHULIA, J.]

75. In the case of St. Stephen’s College v. University of Delhi41 A
while delivering the majority opinion on behalf of the bench, Justice K
Jagannatha Shetty held as follows:
“81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a relatively
homogeneous society. It may lead to religious bigotry which is the B
bane of mankind. In the nation building with secular character
sectarian schools or colleges segregated faculties or universities
for imparting general secular education are undesirable and they
may undermine secular democracy. They would be inconsistent
with the central concept of secularism and equality embedded in C
the Constitution. Every educational institution irrespective of
community to which it belongs is a ‘melting pot’ in our national
life. The students and teachers are the critical ingredients. It is
there they develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there should be
proper mix of students of different communities in all educational D
institutions42.”
76. It is the Fundamental Duty of every citizen, under Part IV A
of the Constitution of India to ‘value and preserve the rich heritage of
our composite culture.’43
E
77. 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 F
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”
78. The preamble to the Constitution secures to all its citizens G
“LIBERTY of thought, expression, belief, faith and worship.” It is the

41
(1992) 1 SCC 558
42
Para 81 (supra)
43
Article 51A(f) of the Constitution of India H
576 SUPREME COURT REPORTS [2022] 5 S.C.R.

A Preamble again which seeks to promote among them all, “FRATERNITY
assuring the dignity of the individual and the unity and integrity of the
Nation.”
The Government Order dated 5 February, 2022, and the restrictions
on the wearing of hijab, also goes against our constitutional value of
B fraternity and human dignity. Liberty, equality, fraternity, the triptych of
the French Revolution is also a part of our Preamble. It is true that
whereas liberty and equality are well established, properly understood,
and recognized concepts in politics and law, fraternity for some reasons
has largely remained incognito. The framers of our Constitution though
C had a different vision. Fraternity had a different, and in many ways a
much larger meaning with the main architect of our Constitution, Dr
Ambedkar. In his own words: “my social philosophy may be said to
be enshrined in these words: liberty, equality and fraternity. Let no
one, however, say that I have borrowed my philosophy from the
French Revolution. I have not. My philosophy has roots in religion
D and not in political science. I have derived them from my Master,
the Buddha44.” Dr Ambedkar gave the highest place to fraternity as it
was the only real safeguard against the denial of liberty or equality.
“These principles of liberty, equality and fraternity are not to be
treated as separate items in trinity. They form a union of trinity in
E the sense that to diverse one from the other is to defeat the very
purpose of democracy. Liberty cannot be divorced from equality;
equality cannot be divorced from liberty. Nor can liberty and equality
be divorced from fraternity. Without equality, liberty would produce
a supremacy of the few over the many. Equality without liberty would
kill individual initiative. Without fraternity liberty and equality could
F not become a natural course of things.45”
79. Fraternity, which is our Constitutional value, would therefore
require us to be tolerant, and as some of the learned Counsels would
argue to be, reasonably accommodating, towards the belief and religious
practices of others. We should remember the appeal made by Justice O.
G Chinnappa Reddy in Bijoe Emmanuel (supra) “Our tradition teaches

44
Ministry of Social Justice and Empowerment, Government of India, Dr. Babasaheb
Ambedkar: Writings and Speeches, 2020 (Vol XVII, Part III); Preface Accessed at
https://www.mea.gov.in/Images/CPV/Volume17_Part_III.pdf
45
Speech of Dr. Ambedkar on 25 th November, 1949: Constituent Assembly Debates,
H Volume XI
 AISHAT SHIFA v. THE STATE OF KARNATAKA & ORS. 577
[SUDHANSHU DHULIA, J.]

tolerance; our philosophy preaches tolerance; our Constitution A
practices tolerance; let us not dilute it.”
80. 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 B
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.
81. 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 C
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! D
82. 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 E
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…” 46
83. 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 F
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.
84. Consequently, I allow all the appeals as well as the Writ
Petitions, but only to the extent as ordered below: G
a) The order of the Karnataka High Court dated March 15,
2022, is hereby set aside;

46
Rawls, John (1921): A Theory of Social Justice, Rev. Ed.; The Belknap Press of the
Harvard University Press, Cambridge, Massachusetts H
578 SUPREME COURT REPORTS [2022] 5 S.C.R.

A 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.

B ORDER*
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.

C Devika Gujral Matter placed before CJI.
(Assisted by : Shubhanshu Das, LCRA)

D

E

F

G

H * Ed. Note: Order passed by the Court.