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Permitting One Religious Community To Wear Their Symbols Would Be Antithesis To Secularism: Justice Hemant Gupta In Hijab Ban Case

Ashok KM
13 Oct 2022 10:57 AM GMT
Permitting One Religious Community To Wear Their Symbols Would Be Antithesis To Secularism: Justice Hemant Gupta In Hijab Ban Case
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"Secularism is applicable to all citizens, therefore, permitting one religious community to wear their religious symbols would be antithesis to secularism", the Supreme Court judge Justice Hemant Gupta observed in his judgment in Hijab case.

The judge observed that the accommodation sought would result in different treatment of students in secular schools who may be following varied religions beliefs.

The court delivered a split verdict, as Justice Sudhanshu Dhulia disagreed with Justice Gupta's judgment and opined that the entire concept of essential religious practice was not essential to the dispute.

11 Questions framed

Justice Gupta framed the following 11 questions in this case and answered it against the appellants.

  1. Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?
  2. Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition 21 or otherwise on headscarves is ex facie violative of Section 143 of the Act?
  3. What is ambit and scope of the right to freedom of 'conscience' and 'religion' under Article 25?
  4. What is the ambit and scope of essential religious practices under Article 25 of the Constitution?
  5. 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?
  6. 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)?
  7. Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right?
  8. 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?
  9. Whether in the constitutional scheme, the State is obligated to ensure 'reasonable accommodation' to its citizens?
  10. 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?
  11. 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?

All Answered Against Appellants

  1. 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
  2. I do not find that the 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.
  3. The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1).
  4. The practice of wearing of hijab may be a 'religious practice' or an 'essential religious practice' or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an 88 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 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.
  5. The rights of citizens of this country cannot be 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 a whole.. 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 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.
  6. 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.
  7. The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the 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.
  8. 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 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.
  9. Though the principle of reasonable accommodation has been adopted by the Courts in our country, such contention does not 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.
  10. The Government Order cannot be said to be contrary to the State goal of promoting literacy and education as mandated under the Constitution. The Government Order only ensures that the uniform prescribed is adhered to by the students and it cannot be said that State is restricting the access to education to the girl students through such an Order.
  11. 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.

The following are some of the important observations made by the Judge:

Any encroachment of religion in the secular activities is not permissible.

Though the concept of secularism emerged in the west, 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. Secularism thus means treating all religions equally, respecting all religions and protecting the practices of all religions. The positive meaning of secularism would be nondiscrimination 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 wherein though the State believes and respects all religions, but does not favour any.

The religious belief cannot be carried to a secular school maintained out of State funds

The practice of wearing of hijab may be a 'religious practice' or an 'essential religious practice' or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual. The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to 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 fund

The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.

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 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 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 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.

When students are attending a classroom where religious identities should be left behind

Before a student goes for higher studies in colleges, she should not grow with a specific identity, but under the umbrella of 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

All students are bound to follow the uniform so prescribed

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 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.. The students are at liberty to carry their religious symbols outside the schools but in preuniversity college, the students should look 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.

A student cannot claim the right to wear a headscarf to a secular school as a matter of right

The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the 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.

On reliance placed on foreign judgments

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.

Defiance to rules of the school would in fact be antithesis of discipline

Schools are to prepare the students for their future endeavors in life. Discipline 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 uniform is an equalizer of inequalities.

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

School is the time to learn and lay foundation for the future pursuits in life

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 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 strong foundation so as to nurture the students as responsible citizens of the country.


Case details:

Aishat Shifa vs State of Karnataka | 2022 LiveLaw (SC) 842 | CA 7095 Of 2022 | 13 October 2022 | Justices Hemant Gupta and Sudhanshu Dhulia

Headnotes

Hijab Ban Case - Appeals against Karnataka High Court judgment which upheld Hijab Ban in some schools/pre-university colleges - In view of the divergent views expressed by the Bench, the matter placed before the Chief
Justice of India for constitution of an appropriate Bench.



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