Resham Vs State of Karnataka and Ors

MANU/KA/0912/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition Nos. 2347/2022, 2146/2022, 2880/2022, 3038/2022 (GM-RES),
3424/2022 (GM-RES-PIL), 4309/2022 (GM-RES) and 4338/2022 (GM-RES-PIL)
Decided On: 15.03.2022
Appellants: Resham
Vs.
Respondent: State of Karnataka and Ors.
and
Appellants: Ayesha Hajeera Almas and Ors.
Vs.
Respondent: Chief Secretary, Primary and Higher Education Education
Department and Ors.
and
Appellants: Aishat Shifa and Ors.
Vs.
Respondent: The State of Karnataka and Ors.
and
Appellants: Shaheena and Ors.
Vs.
and
Appellants: Vinod G. Kulkarni
Vs.
Respondent: The Union of India and Ors.
and
Appellants: Asleena Haniya and Ors.
Vs.
and
Appellants: Ghanshyam Upadhyay
Vs.
Respondent: Union of India and Ors.
Hon'ble Judges/Coram:
Ritu Raj Awasthi, C.J., Dixit Krishna Shripad and J.M. Khazi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ravivarma Kumar, Senior Advocate for Abhishek
Janardhan, Arnav A. Bagalwadi, Shathabish Shivanna, Advocates, Sanjay Hegde, Senior
19-07-2022 (Page 1 of 49) www.manupatra.com Cochin University Of Science & Technolog

Advocate for Mohammed Tahir, Tanveer Ahmed Mir, Advocates, Devadutt Kamat, Senior
Advocate for Mohammad Niyaz, Advocate, Yusuf Muchchala, Senior Advocate for Naveed
Ahmed, Advocate, Party-in-Person, A.M. Dar, Senior Advocate for Muneer Ahmed,
Advocate, Subhash Jha and Amruthesh N.P., Advocates
For Respondents/Defendant: Prabhuling K. Navadgi, Advocate General, Aruna Shyam,
Additional Advocate General, Vinod Kumar, Additional Government Advocate, Sushal
Tiwari, Suryanshu Priyadarshi, Ananya Rai, Deepak Narajji, Kaleeswaram Raj, Rajitha
T.O., Thulasi K. Raj, Basavaprasad Kunale, Mohammed Afeef, Akash V.T., R. Kiran,
Amruthesh N.P., Mohammad Shakeeb, Maitreyi Krishnan, Advocates, Adish C. Aggarwal,
Senior Advocate, Girish Kumar R., Advocate, Party-in-Person, Rohan Kothari, Advocate,
S.S. Naganand, Senior Advocate for Rakesh S.N., S. Vivekananda, Raghavendra
Srivatsa, Advocates, Guru Krishna Kumar, Senior Advocate for K. Mohan Kumar,
Advocate, Venkataramani, Senior Advocate for Kashyap N. Naik, Vikram Phadke, Nishan
G.K., Advocates, Sajan Poovayya, Senior Advocate for Manu Kulkarni, Vishwas N., Mrinal
Shankar, N.S. Sriraj Gowda, Shiraj Quaraishi, Rudrappa P., Aiyappa K.G., Shivani Shetty
and Shashank Shekar Jha, Advocates
ORDER
Ritu Raj Awasthi, C.J.
1 . This judgment, we desire to begin with what Sara Slininger from Centralia, Illinois
concluded her well researched article "VEILED WOMEN: HIJAB, RELIGION, AND
CULTURAL PRACTICE-2013":
"The hijab's history...is a complex one, influenced by the intersection of
religion and culture over time. While some women no doubt veil themselves
because of pressure put on them by society, others do so by choice for many
reasons. The veil appears on the surface to be a simple thing. That simplicity is
deceiving, as the hijab represents the beliefs and practices of those who wear it
or choose not to, and the understandings and misunderstandings of those who
observe it being worn. Its complexity lies behind the veil."
Three of these cases namely W.P. No. 2347/2022, W.P. No. 2146/2022 & W.P. No.
2880/2022, were referred by one of us (Krishna S Dixit J.) vide order dated 09.02.2022
to consider if a larger Bench could be constituted to hear them. The Reference Order
inter alia observed:
"All these matters essentially relate to proscription of hijab (headscarf) while
prescribing the uniform for students who profess Islamic faith...The recent
Government Order dated 05.02.2022 which arguably facilitates enforcement of
this rule is also put in challenge. Whether wearing of hijab is a part of essential
religious practice in Islam, is the jugular vein of all these matters...The said
question along with other needs to be answered in the light of constitutional
guarantees availing to the religious minorities. This Court after hearing the
matter for some time is of a considered opinion that regard being had to
enormous public importance of the questions involved, the batch of these cases
may be heard by a Larger Bench, if Hon'ble the Chief Justice so decides in
discretion...In the above circumstances, the Registry is directed to place the
papers immediately at the hands of Hon'ble the Chief Justice for
consideration..."
Accordingly, this Special Bench came to be constituted the very same day vide

Notification dated 09.02.2022 to hear these petitions, to which other companion cases
too joined.
I. PETITIONERS' GRIEVANCES & PRAYERS BRIEFLY STATED:
(i) In Writ Petition No. 2347/2022, filed by a petitioner-girl student on
31.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government
& its officials, and the 2nd respondent happens to be the Government Pre-
University College for Girls, Udupi. The prayer is for a direction to the
respondents to permit the petitioner to wear hijab (head-scarf) in the class
room, since wearing it is a part of 'essential religious practice' of Islam.
(ii) In Writ Petition No. 2146/2022 filed by a petitioner-girl student on
29.01.2022, the 1st, 3rd & 4th respondents happen to be the State Government
& its officials and the 2nd respondent happens to be the Government Pre-
University College for Girls, Udupi. The prayer column has the following script:
"1. Issue the WRIT OF MANDAMUS and order to respondent no 1 and 2
to initiate enquiry against the Respondent 5 college and Respondent no
6 i.e. Principal for violating instruction enumerated under Chapter 6
heading of "Important information" of Guidelines of PU Department for
academic year of 2021-22 same at ANNEXURE J for maintaining
uniform in the PU college.,
2 . Issue WRIT OF MANDAMUS to Respondent no 3 conduct enquiry
against the Respondent no 6 to 14 for their Hostile approach towards
the petitioners students.,
3. Issue WRIT OF QUO WARRANTO against the Respondent no 15 and
16 under which authority and law they interfering in the administration
of Respondent no 5 school and promoting their political agenda. And,
4. DECLARE that the status quo referred in the letter dated 25/01/2022
at ANNEXURE H is with the consonance to the Department guidelines
for the academic year 2021-22 same at ANNEXURE J..."
(iii) In Writ Petition Nos. 2880/2022, 3038/2022 & 4309/2022, petitioner-girl
students seek to lay a challenge to the Government Order dated 05.02.2022.
This order purportedly issued under section 133 read with sections 7(2) & (5)
of the Karnataka Education Act, 1983 (hereafter '1983 Act') provides that, the
students should compulsorily adhere to the dress code/uniform as follows:
a. in government schools, as prescribed by the government;
b. in private schools, as prescribed by the school management;
c. in Pre-University colleges that come within the jurisdiction of the
Department of the Pre-University Education, as prescribed by the
College Development Committee or College Supervision Committee;
and
d. wherever no dress code is prescribed, such attire that would accord
with 'equality & integrity' and would not disrupt the 'public order'.
(iv) In Writ Petition No. 3424/2022 (GM-RES-PIL), filed on 14.02.2022 (when

hearing of other cases was half way through), petitioner-Dr. Vinod Kulkarni
happens to be a consulting neuro-psychiatrist, advocate & social activist. The
1st and 2nd respondents happen to be the Central Government and the 3rd
respondent happens to be the State Government. The first prayer is for a
direction to the respondents "to declare that all the students of various schools
and colleges in Karnataka and in the country shall attend their institutions by
sporting the stipulated uniform" (sic). Second prayer reads "To permit Female
Muslim students to sport Hijab provided they wear the stipulated school
uniform also" (sic).
(v) In Writ Petition No. 4338/2022 (GM-RES-PIL), filed on 25.02.2022 (when
hearing of other cases was half way through), one Mr. Ghanasham Upadhyay is
the petitioner. The 1st respondent is the Central Government, 2nd & 3rd
respondents happen to be the State Government & its Principal Secretary,
Department of Primary & Secondary Education; the 4th & 5th respondents
happen to be the Central Bureau of Investigation and National Investigation
Agency. The gist of the lengthy and inarticulate prayers are that the Central
Bureau of Investigation/National Investigation Agency or such other
investigating agency should make a thorough investigation in the nationwide
agitation after the issuance of the Government Order dated 05.02.2022 to
ascertain the involvement of radical organizations such as Popular Front of
India, Students Islamic Organization of India, Campus Front of India and
Jamaat-e-Islami; to hold and declare that wearing of hijab, burqa or such
"other costumes by male or female Muslims and that sporting beard is not an
integral part of essential religious practice of Islam" and therefore, prescription
of dress code is permissible. There are other incoherent and inapplicable
prayers that do not merit mentioning here.
(vi) The State and its officials are represented by the learned Advocate General.
The respondent-Colleges and other respondents are represented by their
respective advocates. The State has filed the Statement of Objections (this is
adopted in all other matters) on 10.02.2022; other respondents have filed their
Statements of Objections, as well. Some petitioners have filed their Rejoinder
to the Statement of Objections. The respondents resist the Writ Petitions
making submission in justification of the impugned order.
II. BROAD CONTENTIONS OF PETITIONERS:
(i) Petitioner-students profess and practice Islamic faith. Wearing of hijab
(head-scarf) is an 'essential religious practice' in Islam, the same being a
Quranic injunction vide AMNAH BINT BASHEER vs. CENTRAL BOARD OF
SECONDARY EDUCATIONand AJMAL KHAN vs. ELECTION COMMISSION OF
I ND I A Neither the State Government nor the Schools can prescribe a dress
code/uniform that does not permit the students to wear hijab. The action of the
respondent-schools in insisting upon the removal of hijab in the educational
institutions is impermissible, as being violative of the fundamental right
guaranteed under Article 25 of the Constitution vide SRI VENKATARAMANA
DEVARU vs. STATE OF MYSORE MANU/SC/0026/1957 : 1958 SCR 895 and
INDIAN YOUNG LAWYERS ASSOCIATION vs. STATE OF KERALA
MANU/SC/1094/2018 : (2019) 11 SCC 1
(ii) The impugned Government Order dated 05.02.2022 is structured with a
wrong narrative that wearing of hijab is not a part of 'essential religious

practice' of Islam and therefore, prescribing or authorizing the prescription of
dress code/uniform to the students consistent with the said narrative, is
violative of their fundamental right to freedom of conscience and the right to
practice their religious faith constitutionally guaranteed under Article 25 vide
BIJOE EMMANUEL vs. STATE OF KERALA MANU/SC/0061/1986 : (1986) 3 SCC
615.
(iii) One's personal appearance or choice of dressing is a protected zone within
the 'freedom of expression' vide NATIONAL LEGAL SERVICES AUTHORITY vs.
UNION OF INDIA MANU/SC/0309/2014 : (2014) 5 SCC 438; What one wears
and how one dresses is a matter of individual choice protected under 'privacy
jurisprudence' vide K.S. PUTTASWAMY vs. UNION OF INDIA
MANU/SC/1044/2017 : (2017) 10 SCC 1. The Government Order and the action
of the schools to the extent that they do not permit the students to wear hijab
in the institutions are repugnant to these fundamental rights constitutionally
availing under Articles 19(1)(a) & 21.
(iv) The action of the State and the schools suffers from the violation of
'doctrine of proportionality' inasmuch as in taking the extreme step of banning
the hijab within the campus, the possible alternatives that pass the 'least
restrictive test' have not been explored vide MODERN DENTAL COLLEGE vs.
STATE OF MADHYA PRADESH MANU/SC/0495/2016 : (2016) 7 SCC 353 and
MOHD. FARUK V. STATE OF MADHYA PRADESH MANU/SC/0046/1969 : (1969)
1 SCC 853.
(v) The impugned Government Order suffers from 'manifest arbitrariness' in
terms of SHAYARA BANO VS. UNION OF INDIA MANU/SC/1031/2017 : (2017) 9
SCC 1. The impugned Government Order suffers from a gross non-application
of mind and a misdirection in law since it is founded on a wrong legal premise
that the Apex Court in AHSA RENJAN vs. STATE OF BIHAR MANU/SC/0159/2017
: (2017) 4 SCC 397, the High Courts in Writ Petition(C) No. 35293/2018,
FATHIMA HUSSAIN vs. BHARATH EDUCATION SOCIETY MANU/MH/0350/2002 :
AIR 2003 Bom 75, V. KAMALAMMA vs. DR. M.G.R. MEDICAL UNIVERSITY and
SIR M. VENKATA SUBBARAO MATRICULATION HIGHER SECONDARY SCHOOL
STAFF ASSOCIATION vs. SIR M. VENKATA SUBBARAO MATRICULATION HIGHER
SECONDARY SCHOOL MANU/TN/0106/2004 : (2004) 2 ML J 653 have held that
the wearing of hijab is not a part of essential religious practice of Islam when
contrary is their demonstrable ratio.
(vi) The impugned Government Order is the result of acting under dictation and
therefore, is vitiated on this ground of Administrative Law, going by the
admission of learned Advocate General that the draftsmen of this order has
gone too far and the draftsman exceeded the brief vide ORIENT PAPER MILLS
LTD. vs. UNION OF INDIA MANU/SC/0340/1970 : (1970) 3 SCC 76 and
MANOHAR LAL vs. UGRASEN MANU/SC/0415/2010 : (2010) 11 SCC 557. Even
otherwise, the grounds on which the said government order is structured being
unsustainable, it has to go and that supportive grounds cannot be supplied de
hors the order vide MOHINDER SINGH GILL vs. CHIEF ELECTION
COMMISSIONER. MANU/SC/0209/1977 : AIR 1978 SC 851
(vii) The Government is yet to take a final decision with regard to prescription
of uniform in the Pre-University Colleges and a High Level Committee has to be
constituted for that purpose. The Kendriya Vidyalayas under the control of the

Central Government too permit the wearing of hijab (headscarf). There is no
reason why similar practise should not be permitted in other institutions.
(viii) The Karnataka Education Act, 1983 or the Rules promulgated thereunder
do not authorize prescription of any dress code/uniform at all. Prescribing dress
code in a school is a matter of 'police power' which does not avail either to the
government or to the schools in the absence of statutory enablement. Rule 11
of Karnataka Educational Institutions (Classification, Regulation and
Prescription of Curricula, etc) Rules, 1995 (hereafter '1995 Curricula Rules') to
the extent it provides for prescription of uniform is incompetent and therefore,
nothing can be tapped from it.
(ix) The College Betterment (Development) Committee constituted under
Government Circular dated 31.1.2014 is only an extra-legal authority and
therefore, its prescription of dress code/uniform for the students is without
jurisdiction. The prospectus issued by the Education Department prohibits
prescription of any uniform. The composition & complexion of College
Betterment (Development) Committee under the Government Circular dated
31.1.2014 inter alia compromising of local Member of Legislative Assembly as
its President and his nominee as the Vice-President would unjustifiably
politicize the educational environment and thereby, pollute the tender minds.
The Pre-University institutions are expected to be independent and safe spaces.
(x) The College Betterment (Development) Committee which inter alia
comprises of the local Member of Legislative Assembly vide the Government
Circular dated 31.1.2014, apart from being unauthorized, is violative of
'doctrine of separation of powers' which is a basic feature of our Constitution
vide KESAVANANDA BHARATI vs. STATE OF KERALA MANU/SC/0445/1973 : AIR
1973 SC 1461 read with RAI SAHIB RAM JAWAYA KAPUR vs. STATE OF PUNJAB
MANU/SC/0011/1955 : AIR 1955 SC 549, and STATE OF WEST BENGAL vs.
COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS MANU/SC/0121/2010 :
(2010) 3 SCC 571 also infringes upon of the principle of accountability vide
BHIM SINGH vs. UNION OF INDIA MANU/SC/0327/2010 : (2010) 5 SCC 538.
This committee has no power to prescribe school uniforms.
(xi) The ground of 'public order' (sarvajanika suvyavasthe) on which the
impugned Government Order is founded is un-understandable; this expression
is construed with reference to 'public disorder' and therefore, the State action is
bad vide COMMISSIONER OF POLICE vs. C. ANITA MANU/SC/0661/2004 :
(2004) 7 SCC 467. If wearing of hijab disrupts the public order, the State
should take action against those responsible for such disruption and not ban
the wearing of hijab. Such a duty is cast on the State in view of a positive duty
vide GULAM ABBAS vs. STATE OF UTTAR PRADESH MANU/SC/0059/1981 :
(1982) 1 SCC 71, INDIBILY CREATIVE PVT. LTD. vs. STATE OF WEST BENGAL
MANU/SC/0518/2019 : (2020) 12 SCC 436. In addition such a right cannot be
curtailed based on the actions of the disrupters, i.e., the 'hecklers don't get the
veto' vide TERMINIELLO vs. CHICAGO MANU/USSC/0173/1949 : 337 U.S. 1
(1949), BROWN vs. LOUISIANA MANU/USSC/0246/1966 : 383 U.S. 131 (1966),
TINKER vs. DES MOINES MANU/USSC/0151/1969 : 393 U.S. 503 (1969), which
view is affirmed by the Apex Court in UNION OF INDIA vs. K.M. SHANKARAPPA
MANU/SC/0726/2000 : (2001) 1 SCC 582. This duty is made more onerous
because of positive secularism contemplated by the Constitution vide STATE OF
KARNATAKA vs. PRAVEEN BHAI THOGADIA (DR.) MANU/SC/0291/2004 :

(2004) 4 SCC 684, ARUNA ROY vs. UNION OF INDIA MANU/SC/1519/2002 :
(2002) 7 SCC 368.
(xii) Proscribing hijab in the educational institutions apart from offending
women's autonomy is violative of Article 14 inasmuch as the same amounts to
'gender-based' discrimination which Article 15 does not permit. It also violates
right to education since entry of students with hijab to the institution is
interdicted. The government and the schools should promote plurality, not
uniformity or homogeneity but heterogeneity in all aspects of lives as opposed
to conformity and homogeneity consistent with the constitutional spirit of
diversity and inclusiveness vide VALSAMMA PAUL (MRS) vs. COCHIN
UNIVERSITY MANU/SC/0275/1996 : (1996) 3 SCC 545, SOCIETY FOR UNAIDED
PRIVATE SCHOOLS OF RAJASTHAN vs. UNION OF INDIA MANU/SC/0311/2012 :
(2012) 6 SCC 1 and NAVTEJ SINGH JOHAR vs. UNION OF INDIA
MANU/SC/0947/2018 : AIR 2018 SC 4321.
(xiii) The action of the State and the school authorities is in derogation of
International Conventions that provide for protective discrimination of women's
rights vide UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948),
CONVENTION OFELIMINATION ON ALL FORMS OF DISCRIMINATION AGAINST
WOMEN (1981), INTERNATIONAL COVENANTS ON CIVIL AND POLITICAL
RIGHTS (1966), UNITED NATIONS CONVENTION ON RIGHTS OF CHILD (1989).
To provide for a holistic and comparative view of the 'principle of reasonable
accommodation' as facets of 'substantive-equality' under Article 14 & 15 vide
LT. COL. NITISHA vs. UNION OF INDIApetitioners referred to the following
decisions of foreign jurisdictions in addition to native ones: MEC FOR
EDUCATION: KWAZULU-NATAL vs. NAVANEETHUM PILLAY [CCT51/06
MANU/SACC/0014/2007 : [2007] ZACC 21], CHRISTIAN EDUCATION SOUTH
AFRICA vs. MINISTER OF EDUCATION MANU/SACC/0007/2000 : [2000] ZACC
2, R. vs. VIDEOFLEX1948 2D 395, BALVIR SINGH MULTANI vs. COMMISSION
SCOLAIRE MARGUERITE-BOURGEOYS ANTONIE vs. GOVERNING BODY,
SETTLERS HIGH SCHOOL2002 (4) SA 738 (T) and MOHAMMAD FUGICHA vs.
METHODIST CHURCH IN KENYA
(xiv) In W.P. No. 2146/2022, the school teachers have been acting in
derogation of the Brochure of the Education Department which prohibits
prescribing any kind of uniform inasmuch as they are forcing the students to
remove hijab and therefore, disciplinary action should be taken against them.
The respondents-15 & 16 have no legal authority to be on the College
Betterment (Development) Committee and therefore, they are liable to be
removed by issuing a Writ of Quo Warranto.
III. CONTENTIONS OF RESPONDENT-STATE & COLLEGE AUTHORITIES:
Respondents i.e., State, institutions and teachers per contra contend that:
(i) The fact matrix emerging from the petition averments lacks the
material particulars as to the wearing of hijab being in practice at any
point of time; no evidentiary material worth mentioning is loaded to
the record of the case, even in respect of the scanty averments in the
petition. Since how long, the students have been wearing hijab
invariably has not been pleaded. At no point of time these students did
wear any head scarf not only in the class room but also in the

institution. Even otherwise, whatever rights petitioners claim under
Article 25 of the Constitution, are not absolute. They are susceptible to
reasonable restriction and regulation by law. In any circumstance, the
wearing hijab arguably as being part of 'essential religious practice' in
Islam cannot be claimed by the students as a matter of right in all-girl-
institutions like the respondent PU College, Udupi.
(ii) Wearing hijab or head scarf is not a part of 'essential religious
practice' of Islamic faith; the Holy Quran does not contain any such
injunctions; the Apex Court has laid down the principles for
determining what is an 'essential religious practice' vide
COMMISSIONER HINDU RELIGIOUS ENDOWMENTS MADRAS vs. SRI
LAKSHMINDRA THIRTHA SWAMIAR OF SRI SHIRUR MUTT
MANU/SC/0136/1954 : AIR 1954 SC 282, DURGAH COMMITTEE, AJMER
vs. SYED HUSSAIN ALI MANU/SC/0063/1961 : AIR 1961 SC 1402, M.
ISMAIL FARUQUI vs. UNION OF INDIA MANU/SC/0860/1994 : (1994) 4
SCC 360, A.S. NARAYANA DEEKSHITULU vs. STATE OF ANDHRA
PRADESH MANU/SC/0455/1996 : (1996) 9 SCC 611, JAVED vs. STATE
OF HARYANA MANU/SC/0523/2003 : (2003) 8 SCC 369,
COMMISSIONER OF POLICE vs. ACHARYA JAGADISHWARANANDA
AVADHUTA MANU/SC/0218/2004 : (2004) 12 SCC 770, AJMAL KHAN
vs. THE ELECTION COMMISSION SHARAYA BANO, INDIAN YOUNG
LAWYERS ASSOCIATION. Wearing hijab at the most may be a'cultural'
practice which has nothing to do with religion. Culture and religion are
different from each other.
(iii) The educational institutions of the kind being 'qualified public
places', the students have to adhere to the campus discipline and dress
code as lawfully prescribed since years i.e., as early as 2004. The
parents have in the admission forms of their wards (minor students)
have signified their consent to such adherence. All the students had
been accordingly adhering to the same all through. It is only in the
recent past; quite a few students have raked up this issue after being
brainwashed by some fundamentalist Muslim organizations like Popular
Front of India, Campus Front of India, Jamaat-e-Islami, and Students
Islamic Organization of India. An FIR is also registered. Police papers
are furnished to the court in a sealed cover since investigation is half
way through. Otherwise, the students and parents of the Muslim
community do not have any issue at all. Therefore, they cannot now
turn around and contend or act to the contrary.
(iv) The power to prescribe school uniform is inherent in the concept of
school education itself. There is sufficient indication of the same in the
1983 Act and the 1995 Curricula Rules. It is wrong to argue that
prescription of uniform is a 'police power' and that unless the Statute
gives the same; there cannot be any prescription of dress code for the
students. The so called 'prospectus' allegedly issued by the Education
Department prohibiting prescription of uniform/dress code in the
schools does not have any authenticity nor legal efficacy.
(v) The Government Order dated 05.02.2022 is compliant with the
scheme of the 1983 Act, which provides for 'cultivating a scientific and
secular outlook through education' and this G.O. has been issued under

Section 133 read with Sections 7(1)(i), 7(2)(g)(v) of the Act and Rule
11 of the 1995 Curricula Rules; this order only authorizes the
prescription of dress code by the institutions on their own and it as
such, does not prescribe any. These Sections and the Rule intend to
give effect to constitutional secularism and to the ideals that animate
Articles 39(f) & 51(A). The children have to develop in a healthy
manner and in conditions of 'freedom and dignity'; the school has to
promote the spirit of harmony and common brotherhood transcending
religious, linguistic, regional or sectional diversities. The practices that
are derogatory to the dignity of women have to be renounced. All this
would help nation building. This view is reflected in the decision of
Apex Court in MOHD. AHMED KHAN vs. SHAH BANO BEGUM
MANU/SC/0194/1985 : (1985) 2 SCC 556.
(vi) The Government Order dated 5.02.2022 came to be issued in the
backdrop of social unrest and agitations within the educational
institutions and without engineered by Popular Front of India, Students
Islamic Organization of India, Campus Front of India & Jamaat-e-
Islami. The action of the institutions in insisting adherence to uniforms
is in the interest of maintaining 'peace & tranquility'. The term 'public
order' (sarvajanika suvyavasthe) employed in the Government Order
has contextual meaning that keeps away from the same expression
employed in Article 19(2) of the Constitution.
(vii) The 'College Betterment (Development) Committees' have been
established vide Government Circular dated 31.01.2014 consistent with
the object of 1983 Act and 1995 Curricula Rules. For about eight years
or so, it has been in place with not even a little finger being raised by
anyone nor is there any complaint against the composition or
functioning of these Committees. This Circular is not put in challenge in
any of the Writ Petitions. These autonomous Committees have been
given power to prescribe uniforms/dress code vide SIR M. VENKATA
SUBBARAO & ASHA RENJAN supra, FATHIMA THASNEEM vs. STATE OF
KERALA and JANE SATHYA vs. MEENAKSHI SUNDARAM ENGINEERING
COLLEGE The Constitution does not prohibit elected representatives of
the people being made a part of such committees.
(viii) The right to wear hijab if claimed under Article 19(1)(a), the
provisions of Article 25 are not invocable inasmuch as the simultaneous
claims made under these two provisions are not only mutually
exclusive but denuding of each other. In addition, be it the freedom of
conscience, be it the right to practise religion, be it the right to
expression or be it the right to privacy, all they are not absolute rights
and therefore, are susceptible to reasonable restriction or regulation by
law, of course subject to the riders prescribed vide CHINTAMAN RAO
vs. STATE OF MADHYA PRADESH MANU/SC/0008/1950 : AIR 1951 SC
118 and MOHD. FARUK V. STATE OF MADHYA PRADESH, supra.
(ix) Permitting the petitioner-students to wear hijab (head-scarf) would
offend the tenets of human dignity inasmuch as, the practice robs away
the individual choice of Muslim women; the so called religious practice
if claimed as a matter of right, the claimant has to prima facie satisfy
its constitutional morality vide K.S. PUTTASWAMY supra, INDIAN

YOUNG LAWYERS ASSOCIATION supra. There is a big shift in the
judicial approach to the very idea of essential religious practice in
Islamic faith since the decision in SHAYARA BANO, supra, which the
case of the petitioners overlooks. To be an essential religious practice
that merits protection under Article 25, it has to be shown to be
essential to the religion concerned, in the sense that if the practice is
renounced, the religion in question ceases to be the religion.
(x) Children studying in schools are placed under the care and
supervision of the authorities and teachers of the institution; therefore,
they have 'parental and quasi-parental' authority over the school
children. This apart, schools are 'qualified public places' and therefore
exclusion of religious symbols is justified in light of 1995 Curricula
Regulation that are premised on the objective of secular education,
uniformity and standardization vide ADI SAIVA SIVACHARIYARGAL
N A L A SANGAM vs. STATE OF TAMIL NADU MANU/SC/1454/2015 :
(2016) 2 SCC 725, S.R. BOMMAI vs. UNION OF INDIA
MANU/SC/0444/1994 : (1994) 3 SCC 1, S.K. MOHD. RAFIQUE vs.
CONTAI RAHAMANIA HIGH MADRASAH MANU/SC/0004/2020 : (2020) 6
SCC 689 and CHURCH OF GOD (FULL GOSPEL) IN INDIA vs. K.K.R
MAJECTIC COLONY WELFARE ASSOCIATION MANU/SC/0537/2000 :
(2000) 7 SCC 282. What is prescribed in Kendriya Vidyalayas as school
uniform is not relevant for the State to decide on the question of school
uniform/dress code in other institutions. This apart there is absolutely
no violation of right to education in any sense.
(xi) Petitioner-students in Writ Petition No. 2146/2022 are absolutely
not justified in seeking a disciplinary enquiry against some teachers of
the respondent college and removal of some others from their position
by issuing a Writ of Quo Warranto. As already mentioned above, the so
called prospectus/instructions allegedly issued by the Education
Department prohibiting the dress code in the colleges cannot be the
basis for the issuance of coercive direction for refraining the
enforcement of dress code. The authenticity and efficacy of the
prospectus/instructions are not established.
In support of their contention and to provide for a holistic and
comparative view, the respondents have referred to the following
decisions of foreign jurisdictions, in addition to native ones: LEYLA
SAHIN vs. TURKEY1, WABE and MH MULLER HANDEL 2 , REGINA vs.
GOVERNORS OF DENBIGH HIGH SCHOOL MANU/UKHL/0050/2006 :
[2006] 2 WLR 719 and UNITED STATES vs. O'BRIEN
MANU/USSC/0098/1968 : 391 US 367 (1968) and KOSE vs. TURKEY3.
IV. All these cases broadly involving common questions of law & facts are heard
together on day to day basis with the concurrence of the Bar. There were a few Public
Interest Litigations espousing or opposing the causes involved in these cases. However,
we decline to grant indulgence in them by separate orders. Similarly, we decline to
entertain applications for impleadment and intervention in these cases, although we
have adverted to the written submissions/supplements filed by the respective
applicants.
Having heard the learned counsel appearing for the parties and having perused the

papers on record, we have broadly framed the following questions for consideration:
SL. QUESTIONS FOR CONSIDERATION
NO.
1. Whether wearing hijab/head-scarf is a part of
'essential religious practice' in Islamic Faith
protected under Article 25 of the Constitution?
2. Whether prescription of school uniform is not
legally permissible, as being violative of
petitioners Fundamental Rights inter alia
guaranteed under Articles, 19(1)(a), (i.e.,
freedom of expression) and 21, (i.e., privacy)
of the Constitution?
3. 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
Articles 14 & 15 of the Constitution?
4. Whether any case is made out in W.P. No.
2146/2022 for issuance of a direction for
initiating disciplinary enquiry against
respondent Nos. 6 to 14 and for issuance of a
Writ of Quo Warranto against respondent Nos.
15 & 16?
V. SECULARISM AND FREEDOM OF CONSCIENCE & RELIGION UNDER OUR
CONSTITUTION:
Since both the sides in their submissions emphasized on Secularism and
freedom of conscience & right to religion, we need to concisely treat them in a
structured way. Such a need is amplified even for adjudging the validity of the
Government Order dated 05.02.2022, which according to the State gives effect
to and operationalizes constitutional Secularism.
SECULARISM AS A BASIC FEATURE OF OUR CONSTITUTION:
(i) 'India, that is Bharat' (Article 1), since centuries, has been the sanctuary for
several religions, faiths & cultures that have prosperously co-existed, regardless
of the ebb & flow of political regimes. Chief Justice S.R. Das in IN RE: KERALA
EDUCATION BILL MANU/SC/0029/1958 : (1959) 1 SCR 996 made the following
observation lauding the greatness of our heritage:
"...Throughout the ages endless inundations of men of diverse creeds,
cultures and races-Aryans and non-Aryans, Dravidians and Chinese,
Scythians, Huns, Pathans and Mughals-have come to this ancient land
from distant regions and climes. India has welcomed them all. They
have met and gathered, given and taken and got mingled, merged and
lost in one body. India's tradition has thus been epitomised in the
following noble lines:
"None shall be turned away From the shore of this vast sea of
humanity that is India" (Poems by Rabindranath Tagore)..."

In S.R. BOMMAI, supra at paragraph 25, the Hon'ble Supreme Court of
India observed: "India can rightly be described as the world's most
heterogeneous society. It is a country with a rich heritage. Several
races have converged in this sub-continent. They brought with them
their own cultures, languages, religions and customs. These diversities
threw up their own problems but the early leadership showed wisdom
and sagacity in tackling them by preaching the philosophy of
accommodation and tolerance..."
(ii) The 42nd Amendment (1976) introduced the word 'secular' to the Preamble
when our Constitution already had such an animating character ab inceptio.
Whatever be the variants of its meaning, secularism has been a Basic Feature of
our polity vide KESAVANANDA, supra even before this Amendment. The ethos
of Indian secularism may not be approximated to the idea of separation
between Church and State as envisaged under American Constitution post First
Amendment (1791). Our Constitution does not enact Karl Marx's structural-
functionalist view 'Religion is the opium of masses' (1844). H.M. SEERVAI, an
acclaimed jurist of yester decades in his magnum opus 'Constitutional Law of
India, Fourth Edition, Tripathi at page 1259, writes: 'India is a secular but not
an anti-religious State, for our Constitution guarantees the freedom of
conscience and religion. Articles 27 and 28 emphasize the secular nature of the
State...' Indian secularism oscillates between sarva dharma samabhaava and
dharma nirapekshata. The Apex Court in INDIRA NEHRUGANDHI vs. RAJ
NARAIN MANU/SC/0304/1975 : (1975) Supp. SCC 1 explained the basic feature
of secularism to mean that the State shall have no religion of its own and all
persons shall be equally entitled to the freedom of conscience and the right
freely to profess, practice and propagate religion. Since ages, India is a secular
country. For India, there is no official religion, inasmuch as it is not a theocratic
State. The State does not extend patronage to any particular religion and thus,
it maintains neutrality in the sense that it does not discriminate anyone on the
basis of religious identities per se. Ours being a 'positive secularism' vide
PRAVEEN BHAI THOGADIA supra, is not antithesis of religious devoutness but
comprises in religious tolerance. It is pertinent to mention here that Article
51A(e) of our Constitution imposes a Fundamental Duty on every citizen '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'. It is relevant to
mention here itself that this constitutional duty to transcend the sectional
diversities of religion finds its utterance in section 7(2)(v) & (vi) of the 1983
Act which empowers the State Government to prescribe the curricula that would
amongst other inculcate the sense of this duty.
VI. CONSTITUTIONAL RIGHT TO RELIGION AND RESTRICTIONS THEREON:
(i) Whichever be the society, 'you can never separate social life from religious
life' said Alladi Krishnaswami Aiyar during debates on Fundamental Rights in
the Advisory Committee (April 1947). The judicial pronouncements in America
and Australia coupled with freedom of religion guaranteed in the Constitutions
of several other countries have substantially shaped the making of inter alia
Articles 25 & 26 of our Constitution. Article 25(1) & (2) read as under:
"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
(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;
(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.
Explanation I-The wearing and carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion.
Explanation II-In sub clause (b) of clause reference to Hindus
shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the
reference to Hindu religious institutions shall be construed
accordingly."
This Article guarantees that every person in India shall have the
freedom of conscience and also the right to profess practise and
propagate religion. It is relevant to mention that unlike Article 29, this
article does not mention 'culture' as such, which arguably may share a
common border with religion. We shall be touching the cultural aspect
of hijab, later. We do not propose to discuss about this as such. The
introduction of word 'conscience' was at the instance of Dr. B.R.
Ambedkar, who in his wisdom could visualize persons who do not
profess any religion or faith, like Chaarvaakas, atheists & agnostics.
Professor UPENDRA BAXI in 'THE FUTURE OF HUMAN RIGHTS' (Oxford),
3rd Edition, 2008, at page 149 says:
"...Under assemblage of human rights, individual human
beings may choose atheism or agnosticism, or they may make
choices to belong to fundamental faith communities.
Conscientious practices of freedom of conscience enable exit
through conversion from traditions of religion acquired initially
by the accident of birth or by the revision of choice of faith,
which may thus never be made irrevocably once for all..."
BIJOE EMMANUEL, supra operationalized the freedom of conscience
intricately mixed with a great measure of right to religion. An acclaimed
jurist DR. DURGA DAS BASU in his 'Commentary on the Constitution of
India', 8th Edition at page 3459 writes: "It is next to be noted that the
expression 'freedom of conscience' stands in juxtaposition to the words
"right freely to profess, practise and propagate religion". If these two
parts of Art. 25(1) are read together, it would appear, by the
expression 'freedom of conscience' reference is made to the mental
process of belief or non-belief, while profession, practice and

propagation refer to external action in pursuance of the mental idea or
concept of the person...It is also to be noted that the freedom of
conscience or belief is, by its nature, absolute, it would become subject
to State regulation, in India as in the U.S.A. as soon as it is
externalized i.e., when such belief is reflected into action which must
necessarily affect other people..."
(ii) There is no definition of religion or conscience in our constitution. What the
American Supreme Court in DAVIS V. BEASON MANU/USSC/0156/1890 :
(1889) 133 US 333 observed assumes relevance: "...the term religion has
reference to one's views of his relation to his Creator and to the obligation they
impose of reverence for His Being and character and of obedience to His will. It
is often confounded with cultus of form or worship of a particular sect, but is
distinguishable from the latter". WILL DURANT, a great American historian
(1885-1981) in his Magnum Opus 'THE STORY OF CIVILIZATION', Volume 1
entitled 'OUR ORIENTAL HERITAGE' at pages 68 & 69 writes:
'The priest did not create religion, he merely used it, as a statesman
uses the impulses and customs of mankind; religion arises not out of
sacerdotal invention or chicanery, but out of the persistent wonder,
fear, insecurity, hopefulness and loneliness of men..." The priest did
harm by tolerating superstition and monopolizing certain forms of
knowledge...Religion supports morality by two means chiefly: myth and
taboo. Myth creates the supernatural creed through which celestial
sanctions may be given to forms of conduct socially (or sacerdotally)
desirable; heavenly hopes and terrors inspire the individual to put up
with restraints placed upon him by his masters and his group. Man is
not naturally obedient, gentle, or chaste; and next to that ancient
compulsion which finally generates conscience, nothing so quietly and
continuously conduces to these uncongenial virtues as the fear of the
gods...'.
In NARAYANAN NAMBUDRIPAD vs. MADRAS MANU/TN/0241/1954 : AIR 1954
MAD 385, Venkatarama Aiyar J. quoted the following observations of Leathem
C.J. in ADELAIDE CO. OF JEHOVAH'S WITNESSES INC. V. COMMONWEALTH
(1943) 67 C.L.R. 116, 123:
"It would be difficult, if not impossible, to devise a definition of
religion which would satisfy the adherents of all the many and various
religions which exist, or have existed, in the world. There are those
who regard religion as consisting principally in a system of beliefs or
statement of doctrine. So viewed religion may be either true or false.
Others are more inclined to regard religion as prescribing a code of
conduct. So viewed a religion may be good or bad. There are others
who pay greater attention to religion as involving some prescribed form
of ritual or religious observance. Many religious conflicts have been
concerned with matters of ritual and observance..."
In SHIRUR MUTT supra, 'religion' has been given the widest possible meaning.
The English word 'religion' has different shades and colours. It does not fully
convey the Indian concept of religion i.e., 'dharma' which has a very wide
meaning, one being 'moral values or ethics' on which the life is naturally
regulated. The Apex Court referring to the aforesaid foreign decision observed:

"...We do not think that the above definition can be regarded as either
precise or adequate. Articles 25 and 26 of our Constitution are based
for the most part upon article 44(2) of the Constitution of Eire and we
have great doubt whether a definition of "religion" as given above
could have been in the minds of our Constitution-makers when they
framed the Constitution. 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
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 modes of worship which are regarded as
integral parts of religion, and these forms and observances might
extend even to matters of food and dress..."
(iii) It is relevant to quote what BERTRAND RUSSELL in his 'EDUCATION AND
SOCIAL ORDER' (1932) at page 69 wrote: 'Religion is a complex phenomenon,
having both an individual and a social aspect ...throughout history, increase of
civilization has been correlated with decrease of religiosity.' The free exercise of
religion under Article 25 is subject to restrictions imposed by the State on the
grounds of public order, morality and health. Further it is made subordinate to
other provisions of Part III. Article 25(2)(a) reserves the power of State to
regulate or restrict any economic, financial, political and other secular activities
which may be associated with religious practice. Article 25(2)(b) empowers the
State to legislate for social welfare and reform even though by so doing, it
might interfere with religious practice. H.M. SEERVAI4 at paragraph 11.35, page
1274, states: "It has been rightly held by Justice Venkatarama Aiyar for a very
strong Constitution Bench that Article 25(2) which provides for social and
economic reform is, on a plain reading, not limited to individual rights. So, by
an express provision, the freedom of religion does not exclude social and
economic reform although the scope of social reform, would require to be
defined." This apart, Article 25(1) deals with rights of individuals whereas
Article 25(2) is much wider in its content and has reference to communities.
This Article, it is significant to note, begins with the expression 'Subject to...'.
Limitations imposed on religious practices on the ground of public order,
morality and health having already been saved by the opening words of Article
25(1), the saving would cover beliefs and practices even though considered
essential or vital by those professing the religion. The text & context of this
Article juxtaposed with other unmistakably show that the freedom guaranteed
by this provision in terms of sanctity, are placed on comparatively a lower
pedestal by the Makers of our Constitution qua other Fundamental Rights
conferred in Part III. This broad view draws support from a catena of decisions
of the Apex Court beginning with VENKATARAMANA DEVARU, supra.
(iv) RELIGIOUS FREEDOM UNDER OUR CONSTITUTION VIS-Ã€-VIS AMERICAN
CONSTITUTION:
The First Amendment to the US Constitution confers freedoms in
absolute terms and the freedoms granted are the rule and restrictions
on those freedoms are the exceptions evolved by their courts. However,

the Makers of our Constitution in their wisdom markedly differed from
this view. Article 25 of our Constitution begins with the restriction and
further incorporates a specific provision i.e., clause (2) that in so many
words saves the power of State to regulate or restrict these freedoms.
Mr. Justice Douglas of the US Supreme Court in KINGSLEY BOOKS INC.
vs. BROWN MANU/USSC/0128/1957 : 354 US 436 (1957), in a sense
lamented about the absence of a corresponding provision in their
Constitution, saying "If we had a provision in our Constitution for
'reasonable' regulation of the press such as India has included in hers,
there would be room for argument that censorship in the interest of
morality would be permissible". In a similar context, what Chief Justice
Hidayatullah, observed in K.A. ABBAS vs. UNION OF INDIA
MANU/SC/0053/1970 : 1971 SCR (2) 446 makes it even more evoking:
"...The American Constitution stated the guarantee in absolute
terms without any qualification. The Judges try to give full
effect to the guarantee by every argument they can validly use.
But the strongest proponent of the freedom (Justice Douglas)
himself recognised in the Kingsley case that there must be a
vital difference in approach... In spite of the absence of such a
provision Judges in America have tried to read the words
'reasonable restrictions' into the First Amendment and thus to
make the rights it grants subject to reasonable regulation ..."
Succinctly put, in the United States and Australia, the freedom of
religion was declared in absolute terms and courts had to evolve
exceptions to that freedom, whereas in India, Articles 25 & 26 of the
Constitution appreciably embody the limits of that freedom.
(v) What is observed in INDIAN YOUNG LAWYERS ASSOCIATION, supra at
paragraphs 209 & 210 about the scope and content of freedom of religion is
illuminating:
"...Yet, the right to the freedom of religion is not absolute. For the
Constitution has expressly made it subject to public order, 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 recognized in Articles 14, 15,
19 and 21. While guaranteeing 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 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
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.

Clause (2) of Article 25 protects laws which existed at the adoption of
the Constitution and the power of the state to enact 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 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 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
confined to matters only of the Hindu religion. However, in matters of
temple entry, the Constitution recognised the disabilities which Hindu
religion had imposed over the centuries which restricted the rights of
access to dalits and to various groups within Hindu society. The effect
of clause (2) of Article 25 is to protect the ability of the state to enact
laws, and to save existing laws on matters governed by sub-clauses (a)
and (b). Clause (2) of Article 25 is clarificatory of the regulatory power
of the state over matters of public order, morality and health which
already stand recognised in clause (1). Clause 1 makes the right
conferred subject to public order, morality and health. Clause 2 does
not circumscribe the ambit of the 'subject to public order, morality or
health' stipulation in clause 1. What clause 2 indicates is that the
authority of the state to enact laws on the categories is not trammelled
by Article 25..."
VII. AS TO PROTECTION OF ESSENTIAL RELIGIOUS PRACTICE AND THE TEST FOR ITS
ASCERTAINMENT:
(i) Since the question of hijab being a part of essential religious practice is the
bone of contention, it becomes necessary to briefly state as to what is an
essential religious practice in Indian context and how it is to be ascertained.
This doctrine can plausibly be traced to the Chief Architect of our Constitution,
Dr. B.R. Ambedkar and to his famous statement in the Constituent Assembly
during debates on the Codification of Hindu Law: "the religious conception 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 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..." [Constituent Assembly Debates VII: 781]. In
ACHARYA JAGADISHWARANANDA AVADHUTA, supra, it has been observed at
paragraph 9 as under:
"The protection guaranteed under Articles 25 and 26 of the Constitution
is not confined 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, etc. of the given religion...
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 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 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
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."
(ii) INDIAN YOUNG LAWYERS ASSOCIATION surveyed the development of law
relating to essential religious practice and the extent of its constitutional
patronage consistent with the long standing view. Ordinarily, a religious
practice in order to be called an 'essential religious practice' should have the
following indicia: (i) Not every activity associated with the religion is essential
to such religion. Practice should be fundamental to religion and it should be
from the time immemorial. (ii) Foundation of the practice must precede the
religion itself or should be co-founded at the origin of the religion. (iii) Such
practice must form the cornerstone of religion itself. If that practice is not
observed or followed, it would result in the change of religion itself and, (iv)
Such practice must be binding nature of the religion itself and it must be
compelling. That a practice claimed to be essential to the religion has been
carried on since time immemorial or is grounded in religious texts per se does
not lend to it the constitutional protection unless it passes the test of
essentiality as is adjudged by the Courts in their role as the guardians of the
Constitution.
ESSENTIAL RELIGIOUS PRACTICE SHOULD ASSOCIATE WITH CONSTITUTIONAL
VALUES:
(i) March of law regarding essential religious practice: Law is an organic social
institution and not just a black letter section. In order to be 'living law of the
people', it marches with the ebb and flow of the times, either through
legislative action or judicial process. Constitution being the Fundamental Law of
the Land has to be purposively construed to meet and cover changing
conditions of social & economic life that would have been unfamiliar to its
Framers. Since SHAYARA BANO, there has been a paradigm shift in the
approach to the concept of essential religious practice, as rightly pointed by the
learned Advocate General. In INDIAN YOUNG LAWYERS ASSOCIATION, this

branch of law marched further when the Apex Court added another dimension
to the concept of essential religious practice, by observing at paragraphs 289 &
291 as under:
"For decades, this Court has witnessed claims resting on the
essentiality of a practice that militate against the constitutional
protection of dignity and individual freedom under the Constitution. It
is the duty of the courts to ensure that what is protected is in
conformity with fundamental constitutional values and guarantees and
accords with constitutional morality. While the Constitution is solicitous
in its protection of religious freedom as well as denominational rights,
it must be understood that dignity, liberty and equality constitute the
trinity which defines the faith of the Constitution. Together, these three
values combine to define a constitutional order of priorities. Practices
or beliefs which detract from these foundational values cannot claim
legitimacy...
Our Constitution places the individual at the heart of the discourse on
rights. In a constitutional order characterized by the Rule of Law, the
constitutional commitment to egalitarianism and the dignity of every
individual enjoins upon the Court a duty to resolve the inherent
tensions between the constitutional guarantee of religious freedom
afforded to religious denominations and constitutional guarantees of
dignity and equality afforded to individuals. There are a multiplicity of
intersecting constitutional values and interests involved in determining
the essentiality of religious practices. In order to achieve a balance
between competing rights and interests, the test of essentiality is
infused with these necessary limitations."
Thus, a person who seeks refuge under the umbrella of Article 25 of the
Constitution has to demonstrate not only essential religious practice but also its
engagement with the constitutional values that are illustratively mentioned at
paragraph 291 of the said decision. It's a matter of concurrent requirement. It
hardly needs to be stated, if essential religious practice as a threshold
requirement is not satisfied, the case does not travel to the domain of those
constitutional values.
VIII. SOURCES OF ISLAMIC LAW, HOLY QURAN BEING ITS PRINCIPAL SOURCE:
1 . The above having been said, now we need to concisely discuss about the
authentic sources of Islamic law inasmuch as Quran and Ahadith are cited by
both the sides in support of their argument & counter argument relating to
wearing of hijab. At this juncture, we cannot resist our feel to reproduce Aiyat
242 of the Quran which says: "It is expected that you will use your
commonsense". (Quoted by the Apex Court in SHAH BANO, supra.
5 , at sections 33, 34 &
(i) SIR DINSHAH FARDUNJI MULLA'S TREATISE
35 lucidly states:
"33. Sources of Mahomedan Law: There are four sources of
Mahomedan law, namely, (1) the Koran; (2) Hadis, that is,
precepts, actions and sayings of the Prophet Mahomed, not
written down during his lifetime, but preserved by tradition and

handed down by authorized persons; (3) Ijmaa, that is, a
concurrence of opinion of the companions of Mahomed and his
disciples; and (4) Qiyas, being analogical deductions derived
from a comparison of the first three sources when they did not
apply to the particular case."
"34. Interpretation of the Koran: The Courts, in administering
Mahomedan law, should not, as a rule, attempt to put their
own construction on the Koran in opposition to the express
ruling of Mahomedan commentators of great antiquity and high
authority."
"35. Precepts of the Prophet: Neither the ancient texts nor the
precepts of the Prophet Mahomed should be taken literally so
as to deduce from them new rules of law, especially when such
proposed rules do not conduce to substantial justice..."
(ii) FYZEE'S TREATISE: Referring to another Islamic jurist of great
repute Asaf A.A. Fyzee6, what the Apex Court at paragraphs 7 & 54 in
SHAYARA BANO, supra, observed evokes interest:
"7. There are four sources for Islamic law-(i) Quran (ii) Hadith
(iii) Ijma (iv) Qiyas. The learned author has rightly said that
the Holy Quran is the "first source of law". According to the
learned author, pre-eminence is to be given to the Quran. That
means, sources other than the Holy Quran are only to
supplement what is given in it and to supply what is not
provided for. In other words, there cannot be any Hadith, Ijma
or Qiyas against what is expressly stated in the Quran. Islam
cannot be anti-Quran...
54. ...Indeed, Islam divides all human action into five kinds,
as has been stated by Hidayatullah, J. in his Introduction to
Mulla (supra). There it is stated:
"E. Degrees of obedience: Islam divides all actions into five
kinds which figure differently in the sight of God and in respect
of which His Commands are different. This plays an important
part in the lives of Muslims.
(i) First degree: Fard. Whatever is commanded in the Koran,
Hadis or ijmaa must be obeyed. Wajib. Perhaps a little less
compulsory than Fard but only slightly less so.(ii) Second
degree: Masnun, Mandub and Mustahab: These are
recommended actions.(iii) Third degree: Jaiz or Mubah: These
are permissible actions as to which religion is indifferent (iv)
Fourth degree: Makruh: That which is reprobated as unworthy
(v) Fifth degree: Haram: That which is forbidden."
The Apex Court at paragraph 55 of SHAYARA BANO has treated the
structural hierarchy of binding nature of Islamic norms starting from
Quran and ending with Haram, while proscribing the obnoxious practice
of triple talaq. The argument of hijab being mandatory under Ahadith,
if not under Quran, shall be treated hereinafter, in the light of such a

structure.
2 . AS TO WHICH AUTHORITATIVE COMMENTARY ON HOLY QURAN, WE ARE
PRINCIPALLY RELYING UPON AND REASONS FOR THAT:
(i) At the outset we make it clear that, in these cases, our inquiry
concerns the nature and practice of wearing of hijab amongst Muslim
women and therefore, references to the Holy Quran and other sources
of Islamic law shall be confined to the same. During the course of
hearing, the versions of different authors on this scripture were cited,
viz., Abdullah Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab, Dr.
Mustafa Khattab, Muhammad Taqi-ud-Din al-Hilali, Muhammad Muhsin
Khan, Dr. Ghali. However, this Court prefers to bank upon the 'The
Holy Quran: Text, Translation and Commentary' by Abdullah Yusuf Ali,
(published by Goodword Books; 2019 reprint), there being a broad
unanimity at the Bar as to its authenticity & reliability. The speculative
and generalizing mind of this author views the verses of the scriptures
in their proper perspective. He provides the unifying principles that
underlie. His monumental work has a systematic completeness and
perfection of form. It is pertinent to reproduce Abdullah Yusuf Ali's
'Preface to First Edition' of his book, which is as under:
"...In translating the Text I have aired no views of my own, but
followed the received commentators. Where they differed
among themselves, I have had to choose what appeared to me
to be the most reasonable opinion from all points of view.
Where it is a question merely of words, I have not considered
the question important enough to discuss in the Notes, but
where it is a question of substance, I hope adequate
explanations will be found in the notes. Where I have departed
from the literal translation in order to express the spirit of the
original better in English, I have explained the literal meaning
in the Notes... Let me explain the scope of the Notes. I have
made them as short as possible consistently with the object I
have in view, viz., to give to the English reader, scholar as well
as general reader, a fairly complete but concise view of what I
understand to be the meaning of the Text..."
(ii) There is yet another reason as to why we place our reliance on the
commentary of Mr. Abdullah Yusuf Ali. The Apex court itself in a catena
of cases has treated the same as the authoritative work. In SHAYARA
BANO, we find the following observations at paragraphs 17 & 18:
"17. Muslims believe that the Quran was revealed by God to
the Prophet Muhammad over a period of about 23 years,
beginning from 22.12.609(sic), when Muhammad was 40 years
old. The revelation continued upto the year 632-the year of his
death. Shortly after Muhammad's death, the Quran was
completed by his companions, who had either written it down,
or had memorized parts of it. These compilations had
differences of perception. Therefore, Caliph Usman - the third,
in the line of caliphs recorded a standard version of the Quran,
now known as Usman's codex. This codex is generally treated,

as the original rendering of the Quran.
18. During the course of hearing, references to the Quran were
made from 'The Holy Quran: Text Translation and Commentary'
by Abdullah Yusuf Ali, (published by Kitab Bhawan, New Delhi,
14th edition, 2016). Learned counsel representing the rival
parties commended, that the text and translation in this book,
being the most reliable, could safely be relied upon. The text
and the inferences are therefore drawn from the above
publication...The Quran is divided into 'suras' (chapters). Each
'sura' contains 'verses', which are arranged in sections...."
The above apart, none at the Bar has disputed the profound scholarship of this
writer or the authenticity of his commentary. We too find construction of and
comments on suras and verses of the scripture illuminative and immensely
appealing to reason & justice.
IX. AS TO HIJAB BEING A QURANIC INJUNCTION:
(i) Learned advocates appearing for the petitioners vehemently argued that the
Quran injuncts Muslim women to wear hijab whilst in public gaze. In support,
they heavily banked upon certain suras from Abdullah Yusuf Ali's book. Before
we reproduce the relevant suras and verses, we feel it appropriate to quote
what Prophet had appreciably said at sura (ii) verse 256 in Holy Quran: 'Let
there be no compulsion in religion...' What Mr. Abdullah Yusuf Ali in footnote
300 to this verse, appreciably reasons out, is again worth quoting: 'Compulsion
is incompatible with religion because religion depends upon faith and will, and
these would be meaningless if induced by force...' With this at heart, we are
reproducing the following verses from the scripture, which were pressed into
service at the Bar.
Sura xxiv (Nur):
The environmental and social influences which most frequently wreck
our spiritual ideals have to do with sex, and especially with its misuse,
whether in the form of unregulated behavior, of false charges or
scandals, or breach of the refined conventions of personal or domestic
privacy. Our complete conquest of all pitfalls in such matters enables
us to rise to the higher regions of Light and of God-created Nature,
about which a mystic doctrine is suggested. This subject is continued in
the next Sura.
Privacy should be respected, and the utmost decorum should be
observed in dress and manners
(xxiv. 27 - 34, and C. 158)
Domestic manners and manners in public or collective life all contribute
to the highest virtues, and are part of our spiritual duties leading upto
God"
(xxiv. 58 - 64, and C. 160).
"And say to the believing women
That they should lower

Their gaze and guard*.
Their modesty; that they
Should not display their
Beauty and ornaments* except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty except
To their husband, their fathers,
Their husbands' father, 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 from physical needs,
Or small children who
Have no sense of the shame
Of sex; that they
Should strike their feet
In order to draw attention
To their hidden ornaments.
And O ye Believers!
Turn ye all together
Towards God, that ye
May attain Bliss.*"
(xxiv. 31, C. - 158)
Sura xxxiii (Ahzab)
"Prophet! Tell
Thy wives and daughters,
And the believing women*,
That they should case
Their outer garments over*
Their persons (when abroad):
That is most convenient,
That they should be known*
(As such) and not molested.
And God is Oft - Forgiving, *
Most Merciful."
(xxxiii. 59, C. - 189)
Is hijab Islam-specific?
(ii) Hijab is a veil ordinarily worn by Muslim women, is true. Its origin in the
Arabic verb hajaba, has etymological similarities with the verb "to hide". Hijab
nearly translates to partition, screen or curtain. There are numerous dimensions
of understanding the usage of the hijab: visual, spatial, ethical and moral. This

way, the hijab hides, marks the difference, protects, and arguably affirms the
religious identity of the Muslim women. This word as such is not employed in
Quran, cannot be disputed, although commentators may have employed it.
Indian jurist Abdullah Yusuf Ali referring to sura (xxxiii), verse 59, at footnote
3765 in his book states: "Jilbab, plural Jalabib: an outer garment; a long gown
covering the whole body, or a cloak covering the neck as bosom.". In the
footnote 3760 to Verse 53, he states: "...In the wording, note that for Muslim
women generally, no screen or hijab (Purdah) is mentioned, but only a veil to
cover the bosom, and modesty in dress. The screen was a special feature of
honor for the Prophet's household, introduced about five or six years before his
death..." Added, in footnote 3767 to verse 59 of the same sura, he opines:
"This rule was not absolute: if for any reason it could not be observed, 'God is
Oft. Returning, Most Merciful.'..." Thus, there is sufficient intrinsic material
within the scripture itself to support the view that wearing hijab has been only
recommendatory, if at all it is.
(iii) The Holy Quran does not mandate wearing of hijab or headgear for Muslim
women. Whatever is stated in the above suras, we say, is only directory,
because of absence of prescription of penalty or penance for not wearing hijab,
the linguistic structure of verses supports this view. This apparel at the most is
a means to gain access to public places and not a religious end in itself. It was
a measure of women enablement and not a figurative constraint. There is a
laudable purpose which can be churned out from Yusuf Ali's footnotes 2984,
2985 & 2987 to verses in Sura xxiv (Nur) and footnotes 3764 & 3765 to verses
in Sura xxxiii (Ahzab). They are reproduced below:
Sura xxiv (Nur)
"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 privacy is required for women than
for men, especially in the matter of dress and uncovering of the
bosom."
"2985. Zinat 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 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 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 this item would now be blank, with the
abolition of slavery; (5) old or infirm men-servants; and (6) infants or
small children before they get a sense of sex.
"2987. While all these details of the purity and the 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, and we must
make 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. Mystics understand the rules of decorum
themselves to typify spiritual truths. Our soul, like a modest maiden,
allows not her eyes to stray from the One True God. And her beauty is
not for vulgar show but for God."
Sura xxxiii (Ahzab)
"3764. This is for all Muslim women, those of the Prophet's household,
as well as the others. The times were those of insecurity (see next
verse) and they were asked to cover themselves with outer garments
when walking abroad. It was never contemplated that they should be
confined to their houses like prisoners."
"3765. Jilbab, plural Jalabib: an outer garment; a long gown covering
the whole body, or a cloak covering the neck as bosom."
(iv) The essential part of a religion is primarily to be ascertained with reference
to the doctrine of that religion itself gains support from the following
observations in INDIAN YOUNG LAWYERS ASSOCIATION:
"286. In determining the essentiality of a practice, it is crucial to
consider whether the practice is prescribed to be of an obligatory
nature within that religion. If a practice is optional, it has been held
that it cannot be said to be 'essential' to a religion. A practice claimed
to be essential must be such that the nature of the religion would be
altered in the absence of that practice. If there is a fundamental change
in the character of the religion, only then can such a practice be
claimed to be an 'essential' part of that religion."
It is very pertinent to reproduce what the Islamic jurist Asaf A.A. Fyzee, supra
at pages 9-11 of his book states:
"...We have the Qur'an which is the very word of God. Supplementary
to it we have Hadith which are the Traditions of the Prophet- the
records of his actions and his sayings- from which we must derive help
and inspiration in arriving at legal decisions. If there is nothing either
in the Qur'an or in the Hadith to answer the particular question which is
before us, we have to follow the dictates of secular reason in
accordance with certain definite principles. These principles constitute
the basis of sacred law or Shariat as the Muslim doctors understand it.
And it is these fundamental juristic notions which we must try to study
and analyse before we approach the study of the Islamic civil law as a
whole, or even that small part of it which in India is known as Muslim
law..."
(v) Petitioners pressed into service sura (xxxiii), verse 59, in support of their
contention that wearing hijab is an indispensable requirement of Islamic faith.
This contention is bit difficult to countenance. It is relevant to refer to the
historical aspects of this particular verse as vividly explained by Abdullah Yusuf
Ali himself at footnote 3766:
"The object was not to restrict the liberty of women, but to protect
them from harm and molestation under the conditions then existing in

Medina. In the East and in 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
civilizations. Assyrian Law in its palmist days (say, 7th century B.C.),
enjoined the veiling of married women and forbade the veiling of
slaves and women of ill fame: see Cambridge Ancient History, III. 107"
It needs to be stated that wearing hijab is not religion-specific, as explained by
Sara Slininger from Centralia, Illinois in her research paper "VEILED WOMEN:
HIJAB, RELIGION, AND CULTURAL PRACTICE". What she writes throws some
light on the socio-cultural practices of wearing hijab in the region, during the
relevant times:
"Islam was not the first culture to practice veiling their women. Veiling
practices started long before the Islamic prophet Muhammad was born.
Societies like the Byzantines, Sassanids, and other cultures in Near and
Middle East practiced veiling. There is even some evidence that
indicates that two clans in southwestern Arabia practiced veiling in pre-
Islamic times, the Banu Ismail and Banu Qahtan. Veiling was a sign of
a women's social status within those societies. In Mesopotamia, the veil
was a sign of a woman's high status and respectability. Women wore
the veil to distinguish Slininger themselves from slaves and unchaste
women. In some ancient legal traditions, such as in Assyrian law,
unchaste or unclean women, such as harlots and slaves, were
prohibited from veiling themselves. If they were caught illegally
veiling, they were liable to severe penalties. The practice of veiling
spread throughout the ancient world the same way that many other
ideas traveled from place to place during this time: invasion."
(vi) Regard being had to the kind of life conditions then obtaining in the region
concerned, wearing hijab was recommended as a measure of social security for
women and to facilitate their safe access to public domain. At the most the
practice of wearing this apparel may have something to do with culture but
certainly not with religion. This gains credence from Yusuf Ali's Note 3764 to
verse 59 which runs as under:
"...The times were those of insecurity (see next verse) and they were
asked to cover themselves with outer garments when walking abroad.
It was never contemplated that they should be confined to their houses
like prisoners."
History of mankind is replete with instances of abuse and oppression of women.
The region and the times from which Islam originated were not an exception.
The era before the introduction of Islam is known as Jahiliya-a time of
barbarism and ignorance. The Quran shows concern for the cases of
'molestation of innocent women' and therefore, it recommended wearing of this
and other apparel as a measure of social security. May be in the course of time,
some elements of religion permeated into this practice as ordinarily happens in
any religion. However, that per se does not render the practice predominantly
religious and much less essential to the Islamic faith. This becomes evident
from Ali's footnote 3768 to verse 60 which concludes with the following
profound line "Alas! We must ask ourselves the question: 'Are these conditions
present among us today?'" Thus, it can be reasonably assumed that the practice

of wearing hijab had a thick nexus to the socio-cultural conditions then
prevalent in the region. The veil was a safe means for the women to leave the
confines of their homes. Ali's short but leading question is premised on this
analysis. What is not religiously made obligatory therefore cannot be made a
quintessential aspect of the religion through public agitations or by the
passionate arguments in courts.
(vii) Petitioners also relied upon verses 4758 & 4759 (Chapter 12) from Dr.
Muhammad Muhsin Khan's 'The Translation of the Meanings of Sahih Al-
Bukhari, Arabic-English', Volume 6, Darussalam publication, Riyadh, Saudi
Arabia. This verse reads:
"4758. Narrated 'Aishah': May Allah bestow His Mercy on the early
emigrant women. When Allah revealed:
"...and to draw their veils all over their Juyubihinna (i.e., their
bodies, faces, necks and bosoms)..." (V. 24:31) they tore their
Murut (woolen dresses or waist-binding clothes or aprons etc.)
and covered their heads and faces with those torn Muruts.
4 7 5 9 . Narrated Safiyya bint Shaiba: Aishah used to say:
"When (the Verse): '... and to draw their veils all over their
Juhubihinna (i.e., their bodies, faces, necks and bosoms,
etc.)...' (V. 24:31) was revealed, (the ladies) cult their waist-
sheets from their margins and covered their heads and faces
with those cut pieces of cloth."
Firstly, no material is placed by the petitioners to show the credentials of the
translator namely Dr. Muhammad Muhsin Khan. The first page of volume 6
describes him as: "Formerly Director, University Hospital, Islamic University,
Al-Madina, Al-Munawwara (Kingdom of Saudi Arabia). By this, credentials
required for a commentator cannot be assumed. He has held a prominent
position in the field of medicine, is beside the point. We found reference to this
author in a decision of Jammu & Kashmir High Court in LUBNA MEHRAJ VS.
MEHRAJ-UD-DIN KANTH MANU/JK/0252/2003 : 2004 (1) JKJ 418. Even here,
no credentials are discussed nor is anything stated about the authenticity and
reliability of his version of Ahadith. Secondly, the text & context of the verse do
not show its obligatory nature. Our attention is not drawn to any other verses in
the translation from which we can otherwise infer its mandatory nature.
Whichever be the religion, whatever is stated in the scriptures, does not
become per se mandatory in a wholesale way. That is how the concept of
essential religious practice, is coined. If everything were to be essential to the
religion logically, this very concept would not have taken birth. It is on this
premise the Apex Court in SHAYARA BANO, proscribed the 1400 year old
pernicious practice of triple talaq in Islam. What is made recommendatory by
the Holy Quran cannot be metamorphosed into mandatory dicta by Ahadith
which is treated as supplementary to the scripture. A contra argument offends
the very logic of Islamic jurisprudence and normative hierarchy of sources. This
view gains support from paragraph 42 of SHAYARA BANO which in turn refers
to Fyzee's work. Therefore, this contention too fails.
X. AS TO VIEWS OF OTHER HIGH COURTS ON HIJAB BEING AN ESSENTIAL RELIGIOUS
PRACTICE:

Strangely, in support of their version and counter version, both the petitioners and the
respondents drew our attention to two decisions of the Kerala High Court, one decision
of Madras and Bombay each. Let us examine what these cases were and from which fact
matrix, they emanated.
(i) In re AMNAH BINT BASHEER, supra: this judgment was rendered by a
learned Single Judge A. Muhamed Mustaque J. of Hon'ble Kerala High Court on
26.4.2016. Petitioner, the students (minors) professing Islam had an issue with
the dress code prescribed for All India Pre-Medical Entrance Test, 2016. This
prescription by the Central Board of Secondary Education was in the wake of
large scale malpractices in the entrance test during the previous years. At
paragraph 29, learned Judge observed:
"Thus, the analysis of the Quranic injunctions and the Hadiths would
show that it is a farz to cover the head and wear the long sleeved dress
except face part and exposing the body otherwise is forbidden (haram).
When farz is violated by action opposite to farz that action becomes
forbidden (haram). However, there is a possibility of having different
views or opinions for the believers of the Islam based on Ijithihad
(independent reasoning). This Court is not discarding such views. The
possibility of having different propositions is not a ground to deny the
freedom, if such propositions have some foundation in the claim..."
Firstly, it was not a case of school uniform as part of Curricula as such.
Students were taking All India Pre-Medical Entrance Test, 2016 as a onetime
affair and not on daily basis, unlike in schools. No Rule or Regulation having
force of law prescribing such a uniform was pressed into service. Secondly, the
measure of ensuring personal examination of the candidates with the presence
of one lady member prior to they entering the examination hall was a feasible
alternative. This 'reasonable exception' cannot be stretched too wide to swallow
the rule itself. That feasibility evaporates when one comes to regular adherence
to school uniform on daily basis. Thirdly, learned Judge himself in all grace
states: "However, there is a possibility of having different views or opinions for
the believers of the Islam based on Ijithihad (independent reasoning). In
formulating our view, i.e., in variance with this learned Judge's, we have
heavily drawn from the considered opinions of Abdullah Yusuf Ali's works that
are recognized by the Apex Court as being authoritative vide SHAYARA BANO
and in other several decisions. There is no reference to this learned authors'
commentary in the said judgment. Learned Judge refers to other commentators
whose credentials and authority are not forthcoming. The fact that the Writ
Appeal against the same came to be negatived by a Division Bench, does not
make much difference. Therefore, from this decision, both the sides cannot
derive much support for their mutually opposing versions.
(ii) In re FATHIMA THASNEEM supra: the girl students professing Islam had an
issue with the dress code prescribed by the management of a school run by a
religious minority (Christians) who had protection under Articles 29 & 30 of the
Constitution. This apart, learned Judge i.e., A. Muhamed Mustaque J. was
harmonizing the competing interests protected by law i.e., community rights of
the minority educational institution and the individual right of a student. He
held that the former overrides the latter and negatived the challenge, vide order
dated 4.12.2018 with the following observation:

"10. In such view of the matter, I am of the considered view that the
petitioners cannot seek imposition of their individual right as against
the larger right of the institution. It is for the institution to decide
whether the petitioners can be permitted to attend the classes with the
headscarf and full sleeve shirt. It is purely within the domain of the
institution to decide on the same. The Court cannot even direct the
institution to consider such a request. Therefore, the writ petition must
fail. Accordingly, the writ petition is dismissed. If the petitioners
approach the institution for Transfer Certificate, the school authority
shall issue Transfer Certificate without making any remarks. No doubt,
if the petitioners are willing to abide by the school dress code, they
shall be permitted to continue in the same school..."
This decision follows up to a particular point the reasoning in the earlier
decision (2016), aforementioned. Neither the petitioners nor the respondent-
State can bank upon this decision, its fact matrix being miles away from that of
these petitions. This apart, what we observed about the earlier decision
substantially holds water for this too.
(iii) In re FATHIMA HUSSAIN, supra: This decision by a Division Bench of
Bombay High Court discussed about Muslim girl students' right to wear hijab
"...in exclusive girls section cannot be said to in any manner acting inconsistent
with the aforesaid verse 31 or violating any injunction provided in Holy Quran.
It is not an obligatory overt act enjoined by Muslim religion that a girl studying
in all girl section must wear head-covering. The essence of Muslim religion or
Islam cannot be said to have been interfered with by directing petitioner not to
wear head-scarf in the school." These observations should strike the death knell
to Writ Petition Nos. 2146, 2347, 3038/2022 wherein the respondent college
happens to be all-girl-institution (not co-education). The Bench whilst rejecting
the petition, at paragraph 8 observed: "We therefore, do not find any merit in
the contention of the learned counsel for the petitioner that direction given by
the Principal to the petitioner on 28-11-2001 to not to wear headscarf or cover
her head while attending school is violative of Article 25 of Constitution of
India." We are at loss to know how this decision is relevant for the adjudication
of these petitions.
(iv) In re SIR M. VENKATA SUBBARAO, supra: The challenge in this case was to
paragraph 1 of the Code of Conduct prescribing a dress code for the teachers.
The Division Bench of Madras High Court while dismissing the challenge at
paragraph 16 observed as under:
"For the foregoing reasons and also in view of the fact that the teachers
are entrusted with not only teaching subjects prescribed under the
syllabus, but also entrusted with the duty of inculcating discipline
amongst the students, they should set high standards of discipline and
should be a role model for the students. We have elaborately referred
to the role of teachers in the earlier portion of the order. Dress code, in
our view, is one of the modes to enforce discipline not only amongst
the students, but also amongst the teachers. Such imposition of dress
code for following uniform discipline cannot be the subject matter of
litigation that too, at the instance of the teachers, who are vested with
the responsibility of inculcating discipline amongst the students. The
Court would be very slow to interfere in the matter of discipline

imposed by the management of the school only on the ground that it
has no statutory background. That apart, we have held that the
management of the respondent school had the power to issue circulars
in terms of clause 6 of Annexure VIII of the Regulations. In that view of
the matter also, we are unable to accept the contention of the learned
counsel for appellant in questioning the circular imposing penalty for
not adhering to the dress code."
This case has completely a different fact matrix. Even the State could not have
banked upon this in structuring the impugned Govt. Order dated 5.2.2022. The
challenge to the dress code was by the teacher and not by the students. The
freedom of conscience or right to religion under Article 25 was not discussed.
This decision is absolutely irrelevant.
(v) In re PRAYAG DAS vs. CIVIL JUDGE BULANDSHAHAR This decision is cited
by the petitioner in W.P. No. 4338/2022 (PIL) who supports the case of the
State. This decision related to a challenge to the prescription of dress code for
the lawyers. The Division Bench of Allahabad High Court whilst rejecting the
challenge, observed at paragraph 20 as under:
"In our opinion the various rules prescribing the dress of an Advocate
serve a very useful purpose. In the first place, they distinguish an
Advocate from a litigant or other members of the public who may be
jostling with him in a Court room. They literally reinforce the
Shakespearian aphorism that the apparel oft proclaims the man. When
a lawyer is in prescribed dress his identity can never be mistaken. In
the second place, a uniform prescribed dress worn by the members of
the Bar induces a seriousness of purpose and a sense of decorum
which are highly conducive to the dispensation of justice..."
This decision is not much relevant although it gives some idea as to the
justification for prescribing uniform, be it in a profession or in an educational
institution. Beyond this, it is of no utility to the adjudication of issues that are
being debated in these petitions.
XI. AS TO WEARING HIJAB BEING A MATTER OF FREEDOM OF CONSCIENCE:
(1) Some of the petitioners vehemently argued that, regardless of right to
religion, the girl students have the freedom of conscience guaranteed under
Article 25 itself and that they have been wearing hijab as a matter of conscience
and therefore, interdicting this overt act is offensive to their conscience and
thus, is violative of their fundamental right. In support, they heavily rely upon
BIJOE EMMANUEL supra, wherein at paragraph 25, it is observed as under:
"We are satisfied, in the present case, that the expulsion of the three
children from the school for the reason that because of their
conscientiously held religious faith, they do not join the singing of the
national anthem in the morning assembly though they do stand up
respectfully when the anthem is sung, is a violation of their
fundamental right to freedom of conscience and freely to profess,
practice and propagate religion."
Conscience is by its very nature subjective. Whether the petitioners had the
conscience of the kind and how they developed it are not averred in the petition

with material particulars. Merely stating that wearing hijab is an overt act of
conscience and therefore, asking them to remove hijab would offend
conscience, would not be sufficient for treating it as a ground for granting
relief. Freedom of conscience as already mentioned above, is in distinction to
right to religion as was clarified by Dr. B.R. Ambedkar in the Constituent
Assembly Debates. There is scope for the argument that the freedom of
conscience and the right to religion are mutually exclusive. Even by overt act,
in furtherance of conscience, the matter does not fall into the domain of right to
religion and thus, the distinction is maintained. No material is placed before us
for evaluation and determination of pleaded conscience of the petitioners. They
have not averred anything as to how they associate wearing hijab with their
conscience, as an overt act. There is no evidence that the petitioners chose to
wear their headscarf as a means of conveying any thought or belief on their
part or as a means of symbolic expression. Pleadings at least for urging the
ground of conscience are perfunctory, to say the least.
(2) BIJOE EMMANUEL CASE: ITS FACT MATRIX AND RATIO DECIDENDI:
(i) Since the petitioners heavily banked upon BIJOE EMMANUEL, in
support of their contention as to freedom of conscience, we need to
examine what were the material facts of the case and the propositions
of law emanating therefrom. This exercise we have undertaken in the
light of what Rupert Cross and J.W. Harris in their 'PRECEDENT IN
ENGLISH LAW',4th Edition-CLARENDON, at page 39 have said: "the
ratio decidendi is best approached by a consideration of the structure
of a typical judgment...A Judge generally summarizes the evidence,
announcing his findings of fact and reviews the arguments that have
been addressed to him by counsel for each of the parties. If a point of
law has been raised, he often discusses a number of previous
decisions...It is not everything said by a Judge when giving judgment
that constitutes a precedent...This status is reserved for his
pronouncements on the law...The dispute is solely concerned with the
facts...It is not always easy to distinguish law from fact and the
reasons which led a Judge to come to a factual conclusion..." What
LORD HALSBURY said more than a century ago in the celebrated case
of QUINN vs. LEATHEM MANU/UKHL/0001/1901 : (1901) A.C. 495' is
worth noting. He had craftily articulated that a decision is an authority
for the proposition that is laid down in a given fact matrix, and not for
all that which logically follows from what has been so laid down.
(ii) With the above in mind, let us examine the material facts of BIJOE
EMMANUEL: Three 'law abiding children' being the faithful of Jehovah
witnesses, did respectfully stand up but refused to sing the National
Anthem in the school prayer. This refusal was founded on the dicta of
their religion. They were expelled under the instructions of Deputy
Inspector of School. These instructions were proven to have no force of
law. They did not prevent the singing of National Anthem nor did they
cause any disturbance while others were singing. Only these facts
tailored the skirt, rest being the frills. The decision turned out to be
more on the right to religion than freedom of conscience, although
there is some reference to the conscience. The court recognized the
negative of a fundamental right i.e., the freedom of speech &
expression guaranteed under Article 19 as including right to remain

silent. What weighed with the court was the fact 'the children were well
behaved, they respectfully stood up when the National Anthem was
sung and would continue to do so respectfully in the future' (paragraph
23). Besides, Court found that their refusal to sing was not confined to
Indian National Anthem but extended to the Songs of every other
country.
(iii) True it is that the BIJOE EMMANUEL reproduces the following
observation of Davar J. made in JAMSHEDJI CURSETJEE TARACHAND
vs. SOONABAI MANU/MH/0216/1907 : (1909) 33 BOM. 122:
"...If this is the belief of the community--and it is proved
undoubtedly to be the belief of the Zoroastrian community--a
secular judge is bound to accept that belief-it is not for him to
sit in judgment on that belief--he has no right to interfere with
the conscience of a donor who makes a gift in favour of what
he believes to be in advancement of his religion and for the
welfare of his community or of mankind..."
These observations essentially relate to 'the belief of the Zoroastrian
community'. It very little related to the 'freedom of conscience' as
envisaged under Article 25 of the Constitution enacted about four
decades thereafter. The expression 'conscience of a donor' is in the
light of religious belief much away from 'freedom of conscience'. After
all the meaning of a word takes its colour with the companion words
i.e., noscitur a sociis. After all, a word in a judgment cannot be
construed as a word employed in a Statute. In the absence of
demonstrable conformity to the essentials of a decision, the
denomination emerging as a ratio would not be an operationable entity
in every case comprising neighbourly fact matrix. What is noticeable is
that BIJOE EMMANUEL did not demarcate the boundaries between
'freedom of conscience' and 'right to practise religion' presumably
because the overt act of the students in respectfully standing up while
National Anthem was being sung transcended the realm of their
conscience and took their case to the domain of religious belief. Thus,
BIJOE EMMANUEL is not the best vehicle for drawing a proposition
essentially founded on freedom of conscience.
XII. PLEADINGS AND PROOF AS TO ESSENTIAL RELIGIOUS PRACTICE:
(i) In order to establish their case, claimants have to plead and prove that
wearing of hijab is a religious requirement and it is a part of 'essential religious
practice' in Islam in the light of a catena of decision of the Apex Court that
ultimately ended with INDIAN YOUNG LAWYERS ASSOCIATION. The same has
already been summarized by us above. All these belong to the domain of facts.
In NARAYANA DEEKSHITHULU, it is said: "...What are essential parts of religion
or religious belief or matters of religion and religious practice is essentially a
question of fact to be considered in the context in which the question has arisen
and the evidence-factual or legislative or historic-presented in that context is
required to be considered and a decision reached..." The claimants have to
plead these facts and produce requisite material to prove the same. The
respondents are more than justified in contending that the Writ Petitions lack
the essential averments and that the petitioners have not loaded to the record

the evidentiary material to prove their case. The material before us is extremely
meager and it is surprising that on a matter of this significance, petition
averments should be as vague as can be. We have no affidavit before us sworn
to by any Maulana explaining the implications of the suras quoted by the
petitioners' side. Pleadings of the petitioners are not much different from those
in MOHD. HANIF QUARESHI, supra which the Apex Court had criticized. Since
how long all the petitioners have been wearing hijab is not specifically pleaded.
The plea with regard to wearing of hijab before they joined this institution is
militantly absent. No explanation is offered for giving an undertaking at the
time of admission to the course that they would abide by school discipline. The
Apex Court in INDIAN YOUNG LAWYERS ASSOCIATION, supra, has stated that
matters that are essential to religious faith or belief; have to be adjudged on
the evidence borne out by record. There is absolutely no material placed on
record to prima facie show that wearing of hijab is a part of an essential
religious practice 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 practice 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 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'.
In view of the above discussion, we are of the considered opinion that wearing
of hijab by Muslim women does not form a part of essential religious practice in
Islamic faith.
XIII. AS TO SCHOOL DISCIPLINE & UNIFORM AND POWER TO PRESCRIBE THE SAME:
(i) We are confronted with the question whether there is power to prescribe
dress code in educational institutions. This is because of passionate
submissions of the petitioners that there is absolutely no such power in the
scheme of 1983 Act or the Rules promulgated thereunder. The idea of schooling
is incomplete without teachers, taught and the dress code. Collectively they
make a singularity. No reasonable mind can imagine a school without uniform.
After all, the concept of school uniform is not of a nascent origin. It is not that,
Moghuls or Britishers brought it here for the first time. It has been there since
the ancient gurukul days. Several Indian scriptures mention
samavastr/shubhravesh in Sanskrit, their English near equivalent being
uniform. 'HISTORY OF DHARMASASTRA' by P.V. Kane, Volume II, page 278
makes copious reference to student uniforms. (This work is treated by the Apex
Court as authoritative vide DEOKI NANDAN vs. MURLIDHAR
MANU/SC/0085/1956 : AIR 1957 SC 133). In England, the first recorded use of
standardized uniform/dress code in institutions dates to back to 1222 i.e.,
Magna Carta days. 'LAW, RELIGIOUS FREEDOMS AND EDUCATION IN EUROPE'
is edited by Myrian Hunter-Henin; Mark Hill, a contributor to the book, at
Chapter 15 titles his paper 'BRACELETS, RINGS AND VEILS: THE
ACCOMMODATION OF RELIGIOUS SYMBOLS IN THE UNIFORM POLICIES OF
ENGLISH SCHOOLS'. At page 308, what he pens is pertinent:
'...The wearing of a prescribed uniform for school children of all ages is
a near-universal feature of its educational system, whether in state
schools or in private (fee-paying) schools. This is not a matter of

primary or secondary legislation or of local governmental regulation
but rather reflects a widespread and long-standing social practice. It is
exceptional for a school not to have a policy on uniform for its pupils.
The uniform (traditionally black or grey trousers, jumpers and jackets
in the coloured livery of the school and ties for boys serves to identify
individuals as members of a specific institution and to encourage and
promote the corporate, collective ethos of the school. More subtly, by
insisting upon identical clothing (often from a designated
manufacturer) it ensures that all school children dress the same and
appear equal: thus, differences of social and economic background that
would be evident from the nature and extent of personal wardrobes are
eliminated. It is an effective leveling feature-particularly in
comprehensive secondary schools whose catchment areas may include
a range of school children drawn from differing parental income
brackets and social classes...'
'AMERICAN JURISPRUDENCE', 2nd Edition. (1973), Volume 68, edited by The
Lawyers Cooperative Publishing Company states:
"S. 249. In accord with the general principle that school authorities
may make reasonable rules and regulations governing the conduct of
pupils under their control, it may be stated generally that school
authorities may prescribe the kind of dress to be worn by students or
make reasonable regulations as to their personal appearance...It has
been held that so long as students are under the control of school
authorities, they may be required to wear a designated uniform, or may
be forbidden to use face powder or cosmetics, or to wear transparent
hosiery low-necked dresses, or any style of clothing tending toward
immodesty in dress...
S. 251. Several cases have held that school regulations proscribing
certain hairstyles were valid, usually on the basis that a legitimate
school interest was served by such a regulation. Thus, it has been held
that a public high school regulation which bars a student from
attending classes because of the length or appearance of his hair is not
invalid as being unreasonable, and arbitrary as having no reasonable
connection with the successful operation of the school, since a
student's unusual hairstyle could result in the distraction of other
pupils, and could disrupt and impede the maintenance of a proper
classroom atmosphere or decorum..."
(ii) The argument of petitioners that prescribing school uniforms pertains to the
domain of 'police power' and therefore, unless the law in so many words
confers such power, there cannot be any prescription, is too farfetched. In
civilized societies, preachers of the education are treated next to the parents.
Pupils are under the supervisory control of the teachers. The parents whilst
admitting their wards to the schools, in some measure share their authority
with the teachers. Thus, the authority which the teachers exercise over the
students is a shared 'parental power'. The following observations In T.M.A. PAI
FOUNDATION, at paragraph 64, lend credence to this view:
"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 the
students in their pursuit of education..."
It is relevant to state that not even a single ruling of a court nor a sporadic
opinion of a jurist nor of an educationist was cited in support of petitioners
argument that prescribing school uniform partakes the character of 'police
power'. Respondents are justified in tracing this power to the text & context of
sections 7(2) & 133 of the 1983 Act read with Rule 11 of 1995 Curricula Rules.
We do not propose to reproduce these provisions that are as clear as gangetic
waters. This apart, the Preamble to the 1983 Act mentions inter alia of
"fostering the harmonious development of the mental and physical faculties of
students and cultivating a scientific and secular outlook through education."
Section 7(2)(g)(v) provides for promoting "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." The Apex Court in MODERN DENTAL COLLEGE, supra,
construed the term 'education' to include 'curricula' vide paragraph 123. The
word 'curricula' employed in section 7(2) of the Act needs to be broadly
construed to include the power to prescribe uniform. Under the scheme of 1983
Act coupled with international conventions to which India is a party, there is a
duty cast on the State to provide education at least up to particular level and
this duty coupled with power includes the power to prescribe school uniform.
(iii) In the LAW OF TORTS, 26th Edition by RATANLAL AND DHIRAJLAL at page
98, parental and quasi parental authority is discussed: "The old view was that
the authority of a schoolmaster, while it existed, was the same as that of a
parent. A parent, when he places his child with a schoolmaster, delegates to
him all his own authority, so far as it is necessary for the welfare of the child.
The modern view is that the schoolmaster has his own independent authority to
act for the welfare of the child. This authority is not limited to offences
committed by the pupil upon the premises of the school, but may extend to acts
done by such pupil while on the way to and from the school..." It is relevant to
mention an old English case in REX vs. NEWPORT (SALOP)(1929) 2 KB 416
which these authors have summarized as under:
"At a school for boys there was a rule prohibiting smoking by pupils
whether in the school or in public. A pupil after returning home smoked
a cigarette in a public street and next day the schoolmaster
administered to him five strokes with a cane. It was held that the father
of the boy by sending him to the school authorized the schoolmaster to
administer reasonable punishment to the boy for breach of a school
rule, and that the punishment administered was reasonable."
Even in the absence of enabling provisions, we are of the view that the power
to prescribe uniform as of necessity inheres in every school subject to all just
exceptions.
(iv) The incidental question as to who should prescribe the school uniform also
figures for our consideration in the light of petitioners' contention that
government has no power in the scheme of 1983 Act. In T.M.A. PAI
FOUNDATION, the Apex Court observed at paragraph 55 as under:

"...There can be no doubt that in seeking affiliation or recognition, the
Board or the university or the affiliating or recognizing authority can
lay down conditions consistent with the requirement to ensure the
excellence of education. It can, for instance, indicate the quality of the
teachers by prescribing the minimum qualifications that they must
possess, and the courses of study and curricula. It can, for the same
reasons, also stipulate the existence of infrastructure sufficient for its
growth, as a pre-requisite. But the essence of a private educational
institution is the autonomy that the institution must have in its
management and administration. There, necessarily, has to be a
difference in the administration of private unaided institutions and the
government-aided institutions. Whereas in the latter case, the
Government will have greater say in the administration, including
admissions and fixing of fees, in the case of private unaided
institutions, maximum autonomy in the day-today administration has to
be with the private unaided institutions. Bureaucratic or governmental
interference in the administration of such an institution will undermine
its independence..."
Section 133(2) of the 1983 Act vests power in the government to give direction
to any educational institution for carrying out the purposes of the Act or to give
effect to any of the provisions of the Act or the Rules, and that the institution
be it governmental, State aided or privately managed, is bound to obey the
same. This section coupled with section 7(2) clothes the government with
power inter alia to prescribe or caused to be prescribed school uniform. The
government vide Circular dated 31.1.2014 accordingly has issued a direction.
Significantly, this is not put in challenge and we are not called upon to adjudge
its validity, although some submissions were made de hors the pleadings that
to the extent the Circular includes the local Member of the Legislative Assembly
and his nominee respectively as the President and Vice President of the College
Betterment (Development) Committee, it is vulnerable for challenge. In
furtherance thereof, it has also issued a Government Order dated 5.2.2022. We
shall be discussing more about the said Circular and the Order, a bit later.
Suffice it to say now that the contention as to absence of power to prescribe
dress code in schools is liable to be rejected.
XIV. AS TO PRESCRIPTION OF SCHOOL UNIFORM TO THE EXCLUSION OF HIJAB IF
VIOLATES ARTICLES, 14, 15, 19(1)(a) & 21:
(i) There has been a overwhelming juridical opinion in all advanced countries
that in accord with the general principle, the school authorities may make
reasonable regulations governing the conduct of pupils under their control and
that they may prescribe the kind of dress to be worn by students or make
reasonable regulations as to their personal appearance, as well. In MILLER vs.
GILLS (D.C. III)315 F SUP. 94, a rule that the students of an agricultural high
school should wear a khaki uniform when in attendance at the class and whilst
visiting public places within 5 miles of the school is not ultra vires,
unreasonable, and void. Similarly, in CHRISTMAS vs. EL RENO BOARD OF
EDUCATION (D.C. Okla.) MANU/FETT/0306/1971 : 313 F SUPP. 618, a
regulation prohibiting male students who wore hair over their eyes, ears or
collars from participating in a graduation diploma ceremony, which had no
effect on the student's actual graduation from high school, so that no
educational rights were denied, has been held valid. It is also true that our

Constitution protects the rights of school children too against unreasonable
regulations. However, the prescription of dress code for the students that too
within the four walls of the class room as distinguished from rest of the school
premises does not offend constitutionally protected category of rights, when
they are 'religion-neutral' and 'universally applicable' to all the students. This
view gains support from Justice Scalia's decision in EMPLOYMENT DIVISION vs.
SMITH MANU/USSC/0122/1990 : 494 U.S. 872 (1990). School uniforms
promote harmony & spirit of common brotherhood transcending religious or
sectional diversities. This apart, it is impossible to instill the scientific
temperament which our Constitution prescribes as a fundamental duty vide
Article 51A(h) into the young minds so long as any propositions such as
wearing of hijab or bhagwa are regarded as religiously sacrosanct and
therefore, not open to question. They inculcate secular values amongst the
students in their impressionable & formative years.
(ii) The school regulations prescribing dress code for all the students as one
homogenous class, serve constitutional secularism. It is relevant to quote the
observations of Chief Justice Venkatachalaiah, in ISMAIL FARUQUI, supra:
"The concept of secularism is one facet of the right to equality woven
as the central golden thread in the fabric depicting the pattern of the
scheme in our Constitution... In a pluralist, secular polity law is
perhaps the greatest integrating force. Secularism is more than a
passive...It is a positive concept of equal treatment of all religions.
What is material is that it is a constitutional goal and a Basic Feature of
the Constitution."
It is pertinent to mention that the preamble to the 1983 Act appreciably states
the statutory object being "fostering the harmonious development of the mental
and physical faculties of students and cultivating a scientific and secular
outlook through education." This also accords with the Fundamental Duty
constitutionally prescribed under Article 51A(e) in the same language, as
already mentioned above. Petitioners' argument that 'the goal of education is to
promote plurality, not promote uniformity or homogeneity, but heterogeneity'
and therefore, prescription of student uniform offends the constitutional spirit
and ideal, is thoroughly misconceived.
(iii) Petitioners argued that regardless of their freedom of conscience and right
to religion, wearing of hijab does possess cognitive elements of 'expression'
protected under Article 19(1)(a) vide NATIONAL LEGAL SERVICES AUTHORITY,
supra and it has also the substance of privacy/autonomy that are guarded under
Article 21 vide K.S. PUTTASWAMY, supra. Learned advocates appearing for
them vociferously submit that the Muslim students would adhere to the dress
code with hijab of a matching colour as may be prescribed and this should be
permitted by the school by virtue of 'reasonable accommodation'. If this
proposal is not conceded to, then prescription of any uniform would be
violative of their rights availing under these Articles, as not passing the 'least
restrictive test' and 'proportionality test', contended they. In support, they press
into service CHINTAMAN RAO and MD. FARUK, supra. Let us examine this
contention. The Apex Court succinctly considered these tests in INTERNET &
MOBILE ASSN. OF INDIA vs. RESERVE BANK OF INDIA MANU/SC/0264/2020 :
(2020) 10 SCC 274, with the following observations:

"...While testing the validity of a law imposing a restriction on the carrying on
of a business or a profession, the Court must, as formulated in Md. Faruk,
attempt an evaluation of (i) its direct and immediate impact upon of the
fundamental rights of the citizens affected thereby (ii) the larger public interest
sought to be ensured in the light of the object sought to be achieved (iii) the
necessity to restrict the citizens' freedom (iv) the inherent pernicious nature of
the act prohibited or its capacity or tendency to be harmful to the general public
and (v) the possibility of achieving the same object by imposing a less drastic
restraint... On the question of proportionality, the learned Counsel for the
petitioners relies upon the four-pronged test summed up in the opinion of the
majority in Modern Dental College and Research Centre v. State of Madhya
Pradesh. These four tests are (i) that the measure is designated for a proper
purpose (ii) that the measures are rationally connected to the fulfilment of the
purpose (iii) that there are no alternative less invasive measures and (iv) that
there is a proper relation between the importance of achieving the aim and the
importance of limiting the right...But even by our own standards, we are
obliged to see if there were less intrusive measures available and whether RBI
has at least considered these alternatives..."
(iv) All rights have to be viewed in the contextual conditions which were framed under
the Constitution and the way in which they have evolved in due course. As already
mentioned above, the Fundamental Rights have relative content and their efficacy levels
depend upon the circumstances in which they are sought to be exercised. To evaluate
the content and effect of restrictions and to adjudge their reasonableness, the aforesaid
tests become handy. However, the petitions we are treating do not involve the right to
freedom of speech & expression or right to privacy, to such an extent as to warrant the
employment of these tests for evaluation of argued restrictions, in the form of school
dress code. The complaint of the petitioners is against the violation of essentially
'derivative rights' of the kind. Their grievances do not go to the core of substantive
rights as such but lie in the penumbra thereof. So, by a sheer constitutional logic, the
protection that otherwise avails to the substantive rights as such cannot be stretched
too far even to cover the derivative rights of this nature, regardless of the 'qualified
public places' in which they are sought to be exercised. 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 nature
repel the assertion of individual rights to the detriment of their general discipline &
decorum. Even the substantive rights themselves metamorphise into a kind of derivative
rights in such places. These illustrate this: the rights of an under-trial detenue
qualitatively and quantitatively are inferior to those of a free citizen. Similarly, the
rights of a serving convict are inferior to those of an under-trial detenue. By no stretch
of imagination, it can be gainfully argued that prescription of dress code offends
students' fundamental right to expression or their autonomy. In matters like this, there
is absolutely no scope for complaint of manifest arbitrariness or discrimination inter alia
under Articles 14 & 15, when the dress code is equally applicable to all the students,
regardless of religion, language, gender or the like. It is nobody's case that the dress
code is sectarian.
(v) Petitioners' contention that 'a class room should be a place for recognition and
reflection of diversity of society, a mirror image of the society (socially & ethically)' in
its deeper analysis is only a hollow rhetoric, 'unity in diversity' being the oft quoted
platitude since the days of IN RE KERALA EDUCATION BILL, supra, wherein paragraph
51 reads: '...the genius of India has been able to find unity in diversity by assimilating
the best of all creeds and cultures.' The counsel appearing for Respondent Nos. 15 & 16

in W.P. No. 2146/2022, is justified in pressing into service a House of Lords decision in
REGINA vs. GOVERNORS OF DENBIGH HIGH SCHOOL, supra wherein at paragraph 97, it
is observed as under:
"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 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 code can play its role in smoothing over ethnic,
religious and social divisions..."
(vi) It hardly needs to be stated that our Constitution is founded on the principle of
'limited government'. "What is the most important gift to the common person given by
this Constitution is 'fundamental rights', which may be called 'human rights' as well." It
is also equally true that in this country, the freedom of citizens has been broadening
precedent by precedent and the most remarkable feature of this relentless expansion is
by the magical wand of judicial activism. Many new rights with which the Makers of our
Constitution were not familiar, have been shaped by the constitutional courts. Though
the basic human rights are universal, their regulation as of necessity is also a
constitutional reality. The restriction and regulation of rights be they fundamental or
otherwise are a small price which persons pay for being the members of a civilized
community. There has to be a sort of balancing of competing interests i.e., the
collective rights of the community at large and the individual rights of its members.
True it is that the Apex Court in NATIONAL LEGAL SERVICES AUTHORITY supra, said
that dressing too is an 'expression' protected under Article 19(1)(a) and therefore,
ordinarily, no restriction can be placed on one's personal appearance or choice of
apparel. However, it also specifically mentioned at paragraph 69 that this right is
"subject to the restrictions contained in Article 19(2) of the Constitution." The said
decision was structured keeping the 'gender identity' at its focal point, attire being
associated with such identity. Autonomy and privacy rights have also blossomed vide
K.S. PUTTASWAMY, supra. We have no quarrel with the petitioners' essential
proposition that what one desires to wear is a facet of one's autonomy and that one's
attire is one's expression. But all that is subject to reasonable regulation.
(vii) Nobody disputes that persons have a host of rights that are constitutionally
guaranteed in varying degrees and they are subject to reasonable restrictions. What is
reasonable is dictated by a host of qualitative & quantitative factors. Ordinarily, a
positive of the right includes its negative. Thus, right to speech includes right to be
silent vide BIJOE EMMANUEL. However, the negative of a right is not invariably
coextensive with its positive aspect. Precedentially speaking, the right to close down an
industry is not coextensive with its positive facet i.e., the right to establish industry
under Article 19(1)(g) vide EXCEL WEAR vs. UNION OF INDIA MANU/SC/0263/1978 :
AIR 1979 SC 25. Similarly, the right to life does not include the right to die under
Article 21 vide COMMON CAUSE vs. UNION OF INDIA MANU/SC/0232/2018 : (2018) 5
SCC 1, attempt to commit suicide being an offence under Section 309 of Indian Penal
Code. It hardly needs to be stated the content & scope of a right, in terms of its
exercise are circumstantially dependent. Ordinarily, liberties of a person stand curtailed
inter alia by his position, placement and the like. The extent of autonomy is enormous
at home, since ordinarily residence of a person is treated as his inviolable castle.
However, in 'qualified public places' like schools, courts, war rooms, defence camps,

etc., the freedom of individuals as of necessity, is curtailed consistent with their
discipline & decorum and function & purpose. Since wearing hijab as a facet of
expression protected under Article 19(1)(a) is being debated, we may profitably advert
to the 'free speech jurisprudence' in other jurisdictions. The Apex Court in INDIAN
EXPRESS NEWSPAPERS vs. UNION OF INDIA MANU/SC/0406/1984 : (1985) 1 SCC 641
observed:
"While examining the constitutionality of a law which is alleged to contravene
Article 19(1)(a) of the Constitution, we cannot, no doubt, be solely guided by
the decisions of the Supreme Court of the United States of America. But in
order to understand the basic principles of freedom of speech and expression
and the need for that freedom in a democratic country, we may take them into
consideration...".
(viii) In US, the Fourteenth Amendment is held to protect the First Amendment rights of
school children against unreasonable rules or regulations vide BURNSIDE vs. BYARS
MANU/FEFT/0294/1966 : 363 F 2d 744 (5th Cir. 1966). Therefore, a prohibition by the
school officials, of a particular expression of opinion is held unsustainable where there
is no showing that the exercise of the forbidden right would materially interfere with the
requirements of a school' positive discipline. However, conduct by a student, in class or
out of it, which for any reason-whether it stems from time, place, or type of behavior-
materially disrupts class work or involves substantial disorder or invasion of the rights
of others, is not immunized by the constitutional guaranty of freedom of speech vide
JOHN F. TINKER vs. DES MOINES INDEPENDENT COMMUNITY SCHOOL, supra In a
country wherein right to speech & expression is held to heart, if school restrictions are
sustainable on the ground of positive discipline & decorum, there is no reason as to
why it should be otherwise in our land. An extreme argument that the students should
be free to choose their attire in the school individually, if countenanced, would only
breed indiscipline that may eventually degenerate into chaos in the campus and later, in
the society at large. This is not desirable to say the least. It is too farfetched to argue
that the school dress code militates against the fundamental freedoms guaranteed under
Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore, the same should be
outlawed by the stroke of a pen.
(ix) CONCEDING HIJAB ON THE PRINCIPLE OF REASONABLE ACCOMMODATION:
The counsel for the petitioners passionately submitted that the students should
be permitted to wear hijab of structure & colour that suit to the prescribed
dress code. In support of this, they bank upon the 'principle of reasonable
accommodation'. They drew our attention to the prevalent practice of dress
codes/uniforms in Kendriya Vidyalayas. We are not impressed by this argument.
Reasons are not far to seek: firstly, such a proposal if accepted, the school
uniform ceases to be uniform. There shall be two categories of girl students
viz., those who wear the uniform with hijab and those who do it without. That
would establish a sense of 'social-separateness', which is not desirable. It also
offends the feel of uniformity which the dress-code is designed to bring about
amongst all the students regardless of their religion & faiths. As already
mentioned above, the statutory scheme militates against sectarianism of every
kind. Therefore, the accommodation which the petitioners seek cannot be said
to be reasonable. The object of prescribing uniform will be defeated if there is
non-uniformity in the matter of uniforms. Youth is an impressionable period
when identity and opinion begin to crystallize. Young students are able to
readily grasp from their immediate environment, differentiating lines of race,

region, religion, language, caste, place of birth, etc. The aim of the regulation
is to create a 'safe space' where such divisive lines should have no place and
the ideals of egalitarianism should be readily apparent to all students alike.
Adherence to dress code is a mandatory for students. Recently, a Division
Bench of this Court disposed off on 28.08.2019, Writ Petition No. 13751 OF
2019 (EDN-RES-PIL) between MASTER MANJUNATH vs. UNION OF INDIA on
this premise. What the Kendriya Vidyalayas prescribe as uniform/dress code is
left to the policy of the Central Government. Ours being a kind of Federal
Structure (Professor K.C. Wheare), the Federal Units, namely the States need
not toe the line of Center.
(x) Petitioners' heavy reliance on the South African court decision in MEC FOR
EDUCATION: KWAZULU-NATAL,supra, does not much come to their aid. Constitutional
schemes and socio-political ideologies vary from one country to another, regardless of
textual similarities. A Constitution of a country being the Fundamental Law, is shaped
by several streams of forces such as history, religion, culture, way of life, values and a
host of such other factors. In a given fact matrix, how a foreign jurisdiction treats the
case cannot be the sole model readily availing for adoption in our system which
ordinarily treats foreign law & foreign judgments as matters of facts. Secondly, the said
case involved a nose stud, which is ocularly insignificantly, apparently being as small as
can be. By no stretch of imagination, that would not in any way affect the uniformity
which the dress code intends to bring in the class room. That was an inarticulate factor
of the said judgment. By and large, the first reason supra answers the Malaysian court
decision too7. Malaysia being a theistic Nation has Islam as the State religion and the
court in its wisdom treated wearing hijab as being a part of religious practice. We have
a wealth of material with which a view in respectful variance is formed. Those foreign
decisions cited by the other side of spectrum in opposing hijab argument, for the same
reasons do not come to much assistance. In several countries, wearing of burka or hijab
is prohibited, is of no assistance to us. Noble thoughts coming from whichever direction
are most welcome. Foreign decisions also throw light on the issues debated, cannot be
disputed. However, courts have to adjudge the causes brought before them essentially
in accordance with native law.
In view of the above, we are of the considered opinion that the prescription of school
uniform is only a reasonable restriction constitutionally permissible which the students
cannot object to.
XV. AS TO VALIDITY OF GOVERNMENT CIRCULAR DATED 31.1.2014 CONCERNING THE
FORMATION OF SCHOOL BETTERMENT (DEVELOPMENT) COMMITTEES:
(i) The government vide Circular dated 31.1.2014 directed constitution of
School Betterment Committee inter alia with the object of securing State Aid &
its appropriation and enhancing the basic facilities & their optimum utilization.
This Committee in every Pre-University College shall be headed by the local
Member of Legislative Assembly (MLA) as its President and his nominee as the
Vice President. The Principal of the College shall be the Member Secretary. Its
membership comprises of student representatives, parents, one educationist, a
Vice Principal/Senior Professor & a Senior Lecturer. The requirement of
reservation of SC/ST/Women is horizontally prescribed. It is submitted at the
Bar that these Committees have been functioning since about eight years or so
with no complaints whatsoever. Petitioners argued for Committee's invalidation
on the ground that the presence of local Member of Legislative Assembly and
his nominee would only infuse politics in the campus and therefore, not

desirable. He also submits that even otherwise, the College Development
Committee being extra-legal authority has no power to prescribe uniform.
(ii) We are not much inclined to undertake a deeper discussion on the validity
of constitution & functioning of School Betterment (Development) Committees
since none of the Writ Petitions seeks to lay challenge to Government Circular
of January 2014. Merely because these Committees are headed by the local
Member of Legislative Assembly, we cannot hastily jump to the conclusion that
their formation is bad. It is also relevant to mention what the Apex Court said
in STATE OF PUNJAB VS. GURDEV SINGH MANU/SC/0612/1991 : AIR 1992 SC
111, after referring to Professor Wade's Administrative Law:
"...Apropos to this principle, Prof. Wade states: "the principle must be
equally true even where the 'brand' of invalidity' is plainly visible; for
their also the order can effectively be resisted in law only by obtaining
the decision of the Court (See: Administrative Law 6th Ed. p. 352).
Prof. Wade sums up these principles: The truth of the matter is that the
court will invalidate an order only if 'the right remedy is sought by the
right person in the right proceedings and circumstances. The order may
be hypothetically a nullity, but the Court may refuse to quash it
because of the plaintiff's lack of standing, because he does not
deserve a discretionary remedy, because he has waived his rights, or
for some other legal reason. In any such case the 'void' order remains
effective and is, in reality, valid. It follows that an order may be void
for one purpose and valid for another, and that it may be void against
one person but valid against another." (Ibid p. 352) It will be clear
from these principles, the party aggrieved by the invalidity of the order
has to approach the Court for relief of declaration that the order against
him is inoperative and not binding upon him. He must approach the
Court within the prescribed period of limitation. If the statutory time
limit expires the Court cannot give the declaration sought for..."
It is nobody's case that the Government Circular is void ab initio and
consequently, the School Betterment (Development) Committees are non est.
They have been functioning since last eight years and no complaint is raised
about their performance, nor is any material placed on record that warrants
consideration of the question of their validity despite absence of pleadings &
prayers. It hardly needs to be stated that schools & hospitals amongst other,
are the electoral considerations and therefore, peoples' representatives do show
concern for the same, as a measure of their performances. That being the
position, induction of local Members of Legislative Assembly in the Committees
per se is not a ground for voiding the subject Circular.
(iii) We have already held that the schools & institutions have power to
prescribe student uniform. There is no legal bar for the School Betterment
(Development) Committees to associate with the process of such prescription.
However, there may be some scope for the view that it is not desirable to have
elected representatives of the people in the school committees of the kind, one
of the obvious reasons being the possible infusion of 'party-politics' into the
campus. This is not to cast aspersion on anyone. We are not unaware of the
advantages of the schools associating with the elected representatives. They
may fetch funds and such other things helping development of institutions. This
apart, no law or ruling is brought to our notice that interdicts their induction as

the constituent members of such committees.
XVI. AS TO VALIDITY OF GOVERNMENT ORDER DATED 5.2.2022 PROVIDING FOR
PRESCRIPTION OF DRESS CODES IN EDUCATIONAL INSTITUTIONS:
(i) The validity of Government Order dated 05.02.2022 had been hotly debated
in these petitions. Petitioners argue that this order could not have been issued
in purported exercise of power under sections 133 and 7(2) of the 1983 Act
read with Rule 11 of the 1995 Curricula Rules. The State and other contesting
respondents contend to the contrary, inter alia by invoking sections 142 & 143
of the 1983 Act, as well. This Order per se does not prescribe any dress code
and it only provides for prescription of uniform in four different types of
educational institutions. The near English version of the above as submitted by
both the sides is already stated in the beginning part of the judgment. However,
the same is reiterated for the ease of reference: Students should compulsorily
adhere to the dress code/uniform as follows:
a. in government schools, as prescribed by the government;
b. in private schools, as prescribed by the school management;
c. in Pre-University colleges that come within the jurisdiction of the
Department of the Pre-University Education, as prescribed by the
College Development Committee or College Supervision Committee;
and
d. wherever no dress code is prescribed, such attire that would accord
with 'equality & integrity' and would not disrupt the 'public order'.
(ii) Petitioners firstly argued that this Order suffers from material irregularity
apparent on its face inasmuch as the rulings cited therein do not lay down the
ratio which the government wrongly states that they do. This Order refers to
two decisions of the Kerala High Court and one decision of Bombay and Madras
High Courts each. We have already discussed all these decisions supra at
paragraph (X) and therefore, much need not be discussed here. Regardless of
the ratio of these decisions, if the Government Order is otherwise sustainable in
law, which we believe it does, the challenge thereto has to fail for more than
one reason: The subject matter of the Government Order is the prescription of
school uniform. Power to prescribe, we have already held, avails in the scheme
of 1983 Act and the Rules promulgated thereunder. Section 133(2) of the Act
which is broadly worded empowers the government to issue any directions to
give effect to the purposes of the Act or to any provision of the Act or to any
Rule made thereunder. This is a wide conferment of power which obviously
includes the authority to prescribe school dress code. It is more so because
Rule 11 of 1995 Curricula Rules itself provides for the prescription of school
uniform and its modalities. The Government Order can be construed as the one
issued to give effect to this rule itself. Such an order needs to be construed in
the light of the said rule and the 2014 Circular, since there exists a kinship inter
se. Therefore, the question as to competence of the government to issue order
of the kind is answered in the affirmative.
(iii) Petitioners' second contention relates to exercise of statutory power by the
government that culminated into issuance of the impugned order. There is
difference between existence of power and the exercise of power; existence of

power per se does not justify its exercise. The public power that is coupled with
duty needs to be wielded for effectuating the purpose of its conferment.
Learned counsel appearing for the students argued that the Government Order
has to be voided since the reasons on which it is structured are ex facie bad
and that new grounds cannot be imported to the body of the Order for infusing
validity thereto vide COMMISSIONER OFPOLICE vs. GORDHANDAS BHANJE
MANU/SC/0002/1951 : AIR 1952 SC 16. This decision articulated the
Administrative Law principle that the validity of a statutory order has to be
adjudged only on the reasons stated in the order itself. We have no quarrel with
this principle which has been reiterated in MOHINDER SINGH GILL, supra.
However, we are not sure of its invocation in a case wherein validity of the
impugned order can otherwise be sustained on the basis of other intrinsic
material. As we have already mentioned, the Government Order is issued to
give effect to the purposes of the 1983 Act and to Rule 11 of the 1995 Curricula
Rules. That being the position the question of un-sustainability of some of the
reasons on which the said Order is constructed, pales into insignificance.
(iv) Petitioners next argued that the Government Order cites 'sarvajanika
suvyavasthe' i.e., 'public order' as one of the reasons for prescribing uniform to
the exclusion of hijab; disruption of public order is not by those who wear this
apparel but by those who oppose it; most of these opposers wear bhagwa or
such other cloth symbolic of religious overtones. The government should take
action against the hooligans disrupting peace, instead of asking the Muslim girl
students to remove their hijab. In support of this contention, they drew
attention of the court to the concept of 'hecklers veto' as discussed in K.M.
SHANKARAPPA, supra. They further argued that ours being a 'positive
secularism', the State should endeavor to create congenial atmosphere for the
exercise of citizens rights, by taking stern action against those who obstruct
vide PRAVEEN BHAI THOGADIA, supra. Again we do not have any quarrel with
the proposition of law. However, we are not convinced that the same is
invocable for invalidating the Government Order, which per se does not
prescribe any uniform but only provides for prescription in a structured way,
which we have already upheld in the light of our specific finding that wearing
hijab is not an essential religious practice and school uniform to its exclusion
can be prescribed. It hardly needs to be stated that the uniform can exclude any
other apparel like bhagwa or blue shawl that may have the visible religious
overtones. The object of prescribing uniform cannot be better stated than by
quoting from 'MANUAL ON SCHOOL UNIFORMS' published by U.S. Department
of Education:
'A safe and disciplined learning environment is the first requirement of
a good school. Young people who are safe and secure, who learn basic
American values and the essentials of good citizenship, are better
students. In response to growing levels of violence in our schools,
many parents, teachers, and school officials have come to see school
uniforms as one positive and creative way to reduce discipline
problems and increase school safety.'
(v) We hasten to add that certain terms used in a Government Order such as
'public order', etc., cannot be construed as the ones employed in the
Constitution or Statutes. There is a sea of difference in the textual structuring of
legislation and in promulgating a statutory order as the one at hands. The
draftsmen of the former are ascribed of due diligence & seriousness in the

employment of terminology which the government officers at times lack whilst
textually framing the statutory policies. Nowadays, courts do often come across
several Government Orders and Circulars which have lavish terminologies, at
times lending weight to the challenge. The words used in Government Orders
have to be construed in the generality of their text and with common sense and
with a measure of grace to their linguistic pitfalls. The text & context of the Act
under which such orders are issued also figure in the mind. The impugned
order could have been well drafted, is true. 'There is scope for improvement
even in heaven' said Oscar Wilde. We cannot resist ourselves from quoting what
Justice Holmes had said in TOWNE vs. EISNER MANU/USSC/0056/1918 : 245
U.S. 418 (1918), "a word is not a crystal, transparent and unchanged; it is the
skin of a living thought and may vary greatly in color and content according to
the circumstances and the time in which it is used." Thus, there is no much
scope for invoking the concept of 'law and order' as discussed in ANITA and
GULAB ABBAS, supra, although the Government Order gives a loose impression
that there is some nexus between wearing of hijab and the 'law & order'
situation.
(vi) Petitioners had also produced some 'loose papers' without head and tail,
which purported to be of a brochure issued by the Education Department to the
effect that there was no requirement of any school uniform and that the
prescription of one by any institution shall be illegal. There is nothing on record
for authenticating this version. Those producing the same have not stated as to
who their author is and what legal authority he possessed to issue the same.
Even otherwise, this purported brochure cannot stand in the face of
Government Order dated 05.02.2022 whose validity we have already
considered. Similarly, petitioners had banked upon the so called research
papers allegedly published by 'Pew Research Centre' about religious clothing
and personal appearance. They contend that this paper is generated from the
research that studied various religious groups & communities and that a finding
has been recorded: 'Most Hindu, Muslim and Sikh women cover their heads
outside the home' and therefore, the Government Order which militates against
this social reality, is arbitrary. We are not inclined to subscribe to this view. No
credentials of the researchers are stated nor the representative character of the
statistics mentioned in the papers are demonstrated. The authenticity of the
contents is apparently lacking.
(vii) Petitioners contended that the said Government Order has been hastily
issued even when the contemplated High Powered Committee was yet to look
into the issue as to the desirability of prescription and modules of dress codes
in the educational institutions. The contents of Government Order give this
impression, is true. However, that is too feeble a ground for faltering a policy
decision like this. At times, regard being had to special conditions like social
unrest and public agitations, governments do take certain urgent decisions
which may appear to be knee-jerk reactions. However, these are matters of
perceptions. May be, such decisions are at times in variance with their earlier
stand. Even that cannot be faltered when they are dictated by circumstances.
After all, in matters of this kind, the doctrine of 'estoppel' does not readily
apply. Whether a particular decision should be taken at a particular time, is a
matter left to the executive wisdom, and courts cannot run a race of opinions
with the Executive, more particularly when policy content & considerations that
shaped the decision are not judicially assessable. The doctrine of 'separation of
powers' which figures in our constitution as a 'basic feature' expects the organs

of the State to show due deference to each other's opinions. The last contention
that the Government Order is a product of 'acting under dictation' and
therefore, is bad in law is bit difficult to countenance. Who acted under whose
dictation cannot be adjudged merely on the basis of some concessional
arguments submitted on behalf of the State Government. Such a proposition
cannot be readily invoked inasmuch as invocation would affect the institutional
dignity & efficacy of the government. A strong case has to be made to invoke
such a ground, in terms of pleadings & proof.
In view of the above, we are of the considered opinion that the government has power
to issue the impugned Order dated 05.2.2022 and that no case is made out for its
invalidation.
XVII. INTERNATIONAL CONVENTIONS AND EMANCIPATION OF WOMEN:
(i) There have been several International Conventions & Conferences in which
India is a participant if not a signatory. UNIVERSAL DECLARATION OF HUMAN
RIGHTS (1948), CONVENTION OF ELIMINATION ON ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (1981), INTERNATIONAL COVENANTS ON
CIVIL AND POLITICAL RIGHTS (1966), UNITED NATIONS CONVENTION ON
RIGHTS OF CHILD (1989), are only a few to name. Under our Constitutional
Jurisprudence, owing to Article 51 which provides for promotion of
international peace & security, the International Conventions of the kind assume
a significant role in construing the welfare legislations and the statutes which
have kinship to the subject matter of such Conventions. In a sense, these
instruments of International Law permeate into our domestic law. Throughout,
there has been both legislative & judicial process to emancipate women from
pernicious discrimination in all its forms and means. Women regardless of
religion being equal, if not superior to men, are also joining defence services
on permanent commission basis vide Apex Court decision in C.A. No. 9367-
9369/2011 between THE SECRETARY, MINISTRY OF DEFENCE vs. BABITA
PUNIYA, decided on 17.2.2020. Be it business, industry, profession, public &
private employments, sports, arts and such other walks of life, women are
breaking the glass ceiling and faring better than their counterparts.
(ii) It is relevant to quote what Dr. B.R. Ambedkar in his book 'PAKISTAN OR
THE PARTITION OF INDIA' (1945) at Chapter X, Part 1 titled 'Social Stagnation'
wrote:
"...A woman (Muslim) is allowed to see only her son, brothers, father,
uncles, and husband, or any other near relation who may be admitted
to a position of trust. She cannot even go to the Mosque to pray, and
must wear burka (veil) whenever she has to go out. These burka
woman walking in the streets is one of the most hideous sights one can
witness in India...The Muslims have all the social evils of the Hindus
and something more. That something more is the compulsory system of
purdah for Muslim women... Such seclusion cannot have its
deteriorating effect upon the physical constitution of Muslim women...
Being completely secluded from the outer world, they engage their
minds in petty family quarrels with the result that they become narrow
and restrictive in their outlook... They cannot take part in any outdoor
activity and are weighed down by a slavish mentality and an inferiority
complex...Purdah women in particular become helpless,

timid...Considering the large number of purdah women amongst
Muslims in India, one can easily understand the vastness and
seriousness of the problem of purdah...As a consequence of the purdah
system, a segregation of Muslim women is brought about ..."
What the Chief Architect of our Constitution observed more than half a century
ago about the purdah practice equally applies to wearing of hijab there is a lot
of scope for the argument that insistence on wearing of purdah, veil, or
headgear in any community may hinder the process of emancipation of woman
in general and Muslim woman in particular. That militates against our
constitutional spirit of 'equal opportunity' of 'public participation' and 'positive
secularism'. Prescription of school dress code to the exclusion of hijab, bhagwa,
or any other apparel symbolic of religion can be a step forward in the direction
of emancipation and more particularly, to the access to education. It hardly
needs to be stated that this does not rob off the autonomy of women or their
right to education inasmuch as they can wear any apparel of their choice
outside the classroom.
XVIII. AS TO PRAYER FOR A WRIT OF QUO WARRANTO IN SOME WRIT PETITIONS:
The petitioners in W.P. No. 2146/2022, have sought for a Writ of Mandamus for
initiating a disciplinary enquiry on the ground that the respondent Nos. 6 to 14
i.e., Principal & teachers of the respondent-college are violating the
departmental guidelines which prohibit prescription of any uniform and for their
hostile approach. Strangely, petitioners have also sought for a Writ of Quo
Warranto against respondent Nos. 15 & 16 for their alleged interference in the
administration of 5th respondent school and for promoting political agenda. The
petition is apparently ill-drafted and pleadings lack cogency and coherence that
are required for considering the serious prayers of this kind. We have already
commented upon the Departmental Guidelines as having no force of law.
Therefore, the question of the said respondents violating the same even
remotely does not arise. We have also recorded a finding that the college can
prescribe uniform to the exclusion of hijab or bhagwa or such other religious
symbols, and therefore, the alleged act of the respondents in seeking adherence
to the school discipline & dress code cannot be faltered. Absolutely no case is
made out for granting the prayers or any other reliefs on the basis of these
pleadings. The law of Quo Warranto is no longer in a fluid state in our country;
the principles governing issuance of this writ having been well defined vide
UNIVERSITY OF MYSORE vs. C.D. GOVINDA RAO MANU/SC/0268/1963 : AIR
1965 SC 491. For seeking a Writ of this nature, one has to demonstrate that the
post or office which the person concerned holds is a public post or a public
office. In our considered view, the respondent Nos. 15 & 16 do not hold any
such position in the respondent-school. Their placement in the College
Betterment (Development) Committee does not fill the public character required
as a pre-condition for the issuance of Writ of Quo Warranto.
In view of the above, we are of the considered opinion that no case is made out in W.P.
No. 2146/2022 for issuance of a direction for initiating disciplinary enquiry against
respondent Nos. 6 to 14. The prayer for issuance of Writ of Quo Warranto against
respondent Nos. 15 and 16 is rejected being not maintainable.
From the submissions made on behalf of the Respondent - Pre - University College at
Udupi and the material placed on record, we notice that all was well with the dress code

since 2004. We are also impressed that even Muslims participate in the festivals that are
celebrated in the 'ashta mutt sampraddya', (Udupi being the place where eight Mutts are
situated). We are dismayed as to how all of a sudden that too in the middle of the
academic term the issue of hijab is generated and blown out of proportion by the
powers that be. The way, hijab imbroglio unfolded gives scope for the argument that
some 'unseen hands' are at work to engineer social unrest and disharmony. Much is not
necessary to specify. We are not commenting on the ongoing police investigation lest it
should be affected. We have perused and returned copies of the police papers that were
furnished to us in a sealed cover. We expect a speedy & effective investigation into the
matter and culprits being brought to book, brooking no delay.
XIX. THE PUBLIC INTEREST LITIGATIONS:
(i) One Dr. Vinod Kulkarni has filed PIL in W.P. No. 3424/2022 seeking a Writ
of Mandamus to the Central Government and State Government inter alia 'to
permit Female Muslim students to sport Hijab provided they wear the stipulated
school uniform also' (sic). The petition mentions about BIJOE EMMANUEL,
INDIAN YOUNG LAWYERS ASSOCIATION, JAGADISHWARANANDA AVADHUTA,
CHANDANMAL vs. STATE OF WEST BENGAL MANU/WB/0018/1986 : AIR 1986
CAL. 104 and such other cases. Petition is unsatisfactorily structured on the
basis of some print & electronic media reports that are not made part of the
paper book. There is another PIL in GHANSHYAM UPADHYAY VS. UNION OF
INDIA in W.P. No. 4338/2022 (GM- RES-PIL) inter alia seeking a Writ of
Mandamus for undertaking an investigation by the Central Bureau of
Investigation (CBI), National Investigating Agency (NIA) as to the involvement
of radical Islamic organizations such as Popular Front of India, Students Islamic
Organization of India, Campus Front of India and Jamaat-e-Islami and their
funding by some foreign universities to Islamize India. There are other
incoherent prayers. This petitioner opposes the case of students who desire to
wear hijab. Most of the contentions taken up in these petitions are broadly
treated in the companion Writ Petitions. We are not inclined to entertain these
two Writ Petitions filed in PIL jurisdiction, both on the ground of their
maintainability & merits. The second petition, it needs to be stated, seeks to
expand the parameters of the essential lis involved in all these cases much
beyond the warranted frame of consideration. In W.P. No. 3942/2022 (GM-RES-
PIL) between ABDUL MANSOOR MURTUZA SAYED AND STATE OF KARNATAKA
decided on 25.02.2022, we have already held that when the aggrieved parties
are effectively prosecuting their personal causes, others cannot interfere by
invoking PIL jurisdiction. A battery of eminent lawyers are representing the
parties on both the sides. Even otherwise, no exceptional case is made out for
our indulgence.
In view of the above, we are of the considered opinion that both the above Writ
Petitions filed as Public Interest Litigations are liable to be rejected, absolutely no case
having been made out for indulgence.
In the above circumstances, all these petitions being devoid of merits, are liable to be
and accordingly are dismissed. In view of dismissal of these Writ Petitions, all pending
applications pale into insignificance and are accordingly, disposed off.
Costs made easy.

1 Application No. 44774/98
2 C-804/18 and C-341/19 dated 15th July 2021
3 Application No. 26625/02
4 Constitutional Law of India: A Critical Commentary, 4th Edition
5 Principles of Mahomedan law, 20th Edition (2013)
6 Outlines of Muhammadan, Law 5th Edition (2008)
* References to the footnote attached to these verses shall be made in subsequent
paragraphs.
* Id
7 HJHHALIMATUSSAADIAH BTE HJ KAMARUDDIN V. PUBLIC SERVICES COMMISSION,

MALAYSIA (CIVIL APPEAL NO. 01-05-92) DECIDED ON 5-8-1994 [1994] 3 MLJ
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MANU/KA/0912/2022

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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