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Case Analysis: Aishat Shifa v/s State of Karnataka

Facts of the case:
The following facts are the basis for the appeal:
  1. The challenge in this appeal related to the Government Order dated 5.2.2022, a translation of which reads as follows:
  2. The Karnataka Education Act was enacted by the Karnataka government in 1983. Section [7(2)(g)(v)] requires all Karnataka school students to act in a fraternal manner, transcend group identity, and develop a sense of social justice. Under Section 133 of the aforementioned Act, the government is permitted to provide this type of training to colleges and universities.[1]
  3. All of the state's colleges and universities have set up development committees to execute out government programmes, utilise financial resources, upgrade fundamental infrastructure, and safeguard academic standards. The colleges and institutions are advised to abide by the rules established by these development committees.
  4. The Act also stipulates that recognition may be revoked if a local government or the governing body of a private educational institution denies admission to a citizen on the grounds of that person's race, religion, caste, or language [Section 39 (1)(b)]; or if the educational institution directly or indirectly supports any propaganda or practise that offends the religious sentiments of any class of Indian citizens or disparages their religion or religious beliefs. [2]
  5. The contested government order was made using the authority granted by Section 133 of the Act, which reads as follows:
    • Subject to other provisions of this Act, the State Government may, by order, direct the Commissioner of Public Instruction, the Director, or any other officer not below the rank of the District Educational Officer to conduct an investigation into or to take appropriate legal action regarding any matter specified in the said order. The Director or the other officer, as the case may be, shall report to the State Government the findings of the investigation in a timely manner.
    • The State Government may issue such instructions to any educational institution or tutorial institution as it deems necessary or expedient for carrying out the purposes of this Act or giving effect to any of the provisions contained therein or of any rules or orders made thereunder, and the Governing Council or owner of such institution shall comply with every such direction.
    • The State Government may also issue any directives to the officers or authorities under its control that it deems necessary or advantageous for achieving the goals of this Act, and such officers or authorities shall be required to abide by such directives.[3]
  6. Section 145 of the Act grants the State Government the authority to enact rules to carry out the purposes of this Act. In particular, and without limiting the generality of the aforementioned power, sub-section (2) thereof states that the Rules may specify the creation, maintenance, and administration of educational institutions [Section 145 (2)(xii)]; the uses that may be made of the educational institutions' premises and the restrictions and conditions under which those uses may be made [Section 145 (2)(xxix)]; and all matters expressly related to such uses.
  7. The challenge to the Circular dated 5.2.2022 before the High Court remained unsuccessful on various grounds. [4]

Issues Involved:
  1. Is it possible for the State Government to delegate the College Development Committee or the Board of Management the authority to make decisions regarding the wearing of uniforms, and does the Government Order, insofar as it allows the College Development Committee to make decisions regarding the restriction or prohibition of headscarves, appear to violate Section 143 of the Act?
  2. What are the boundaries and purview of Article 25's right to "conscience" and "religion" freedom?
  3. What does Article 25 of the Constitution define as "essential religious practises"?
  4. Does the Government Order comply with the need of reasonableness for the purposes of Articles 21 and 14 and does it conflict with the fundamental rights to freedom of speech under Article 19(1)(a) and the right to privacy under Article 21?
  5. Does the government order violate the Preamble's guarantee of fraternity and dignity, as well as the fundamental duties listed in Article 51-A clauses (e) and (f)?
  6. Can a student request the right to legally wear a headscarf to a public school if donning the hijab is regarded as an essential religious practise?
  7. Is it necessary for a student-citizen to give up her fundamental rights under Articles 19, 21, and 25 in order to enrol in a state institution of higher learning under the current constitutional framework?
  8. Does the Constitution require the State to make "reasonable accommodations" for its citizens?
  9. Does the Government Order violate the Constitution's Articles 21, 21A, 39(f), 41, 46, and 51A, which mandate that the State promote literacy and education?

Laws Applied:
Article 14 (Equality before law)
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[5]

Article 19 (Protection of certain rights regarding freedom of speech, etc)
  1. All citizens shall have the right:
    1. to freedom of speech and expression;
    2. to assemble peaceably and without arms;
    3. to form associations or unions [or co-operative societies];
    4. to move freely throughout the territory of India;
    5. to reside and settle in any part of the territory of India;
    6. to practise any profession, or to carry on any occupation, trade or business.
  2. Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 6 [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.]
  3. Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 6 [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
  4. Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
  5. Nothing in [sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
  6. Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, [nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to:
    1. the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
    2. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise].[6]
Article 21 (Protection of life and personal liberty):
No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21A. (Right to education):
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]"[7]

Article 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:
    1. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
    2. 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.[8]

Delegation (Section 143):
The State Government may by notification in the official gazette, delegate all or any powers exercisable by it under this Act or rules made thereunder, in relation to such matter and subject to such conditions if any as may be specified in the direction, to be exercised also by such officer or authority subordinate to the State Government as may be specified in the notification.[9]

"A two-judge bench of the Supreme Court delivered a split opinion on an appeal against a Karnataka High Court decision upholding a state order that mandated a uniform for educational institutions, consequently banning the hijab. Writing for the Court, Justice Gupta affirmed the High Court's decision, while Justice Dhulia decided in favour of the appellants."[10] The case will now be referred to a larger bench of Supreme Court.

Critical Analysis:
J. Hemant Gupta- Justice Gupta starts his decision by talking about secularism and trying to explain what it means in a way, and sets the tone for the rest of his decision. Even though he says that the idea of secularism in the Indian Constitution is different from the Western idea, which strictly separates religion from the activities of the State, and that it means "treating all religions equally, respecting all religions, and protecting the practises of all religions," he starts by saying what he thinks secularism is:
"Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any encroachment of religion in the secular activities is not permissible."[11]

Justice Gupta bases the discussion on the notion that students should "wear attire that are in the interest of unity, equality, and public order". He closes his point in a single paragraph, providing neither more nor specific reasoning. He remarks, "The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1)."[12]

The notion of discipline is the driving force behind Justice Gupta's opinion. Twenty-two times in the ruling, the word "discipline" appears in various contexts, but it appears most frequently in the precedent set by Justice Gupta. Additionally, Justice Gupta frequently used the word "discipline" with the word "uniform", highlighting how discipline (and once, "discipline and control!") cannot exist without a uniform on numerous times. One particularly special paragraph in which Justice Gupta makes the following observations highlights his profound regard for discipline:

"Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance."[13]

Justice Gupta, used the word "discipline" twenty-two times in his judgement, while the word "proportionality," the legal standard used to evaluate when an infringement of rights by the state is justified or not is used zero times in his judgement.

There are several gaps in the reasoning of his judgement if it is broken down para by para, citing the same reason one of the renowned Constitutional Law author "Gautam Bhatia", writes "Once uniform (not a constitutional test) and uniformity (not the right constitutional test) fall away, Justice Gupta's judgment does not have a leg to stand on, and falls away along with them."[14]

J. Sudhanshu Dhulia- Justice Dhulia's decision begins in a completely different place than Justice Gupta's did and asks a diverse array of questions. He first begins with ERP test, and deals with the ERP test in a fascinating way. "According to Justice Dhulia, the ERP test has historically been applied to cases involving the management of religious property or the assertion of collective rights against the State.

However, in this instance, the right of an individual (to wear the hijab) against the State is at issue. According to Justice Dhulia, ERP is inapplicable not this situation since diverse interpretations of religious doctrine exist in every faith, and it is not the role of the court to favour one interpretation over another."[15] He notes in his judgement- "Apart from the fact that ERP was not essential to the determination of the dispute, which we have already said above, there is another aspect which is even more important, which would explain as to why the Courts should be slow in the matters of determining as to what is an ERP. In my humble opinion Courts are not the forums to solve theological questions.

Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other. The Courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed."[16]

Having reached this conclusion, Justice Dhulia shifts his focus from ERP to the freedom of conscience and the landmark decision in Bijoe Emmanuel[17]. The second crucial component of his assessment is this. Recall that in the case of Bijoe Emmanuel, the Supreme Court had given three Jehovah's Witness students permission to forego singing the national anthem during their school assembly as long as they observed a respectful silence during its playing.

In turn, he references Bijoe Emmanuel to situate the concept of "reasonable accommodation"- which Justice Gupta rejects outright-in Indian constitutional doctrine. Justice Dhulia considers the circumstances to be identical. As a result, Justice Dhulia cites Bijoe Emmanuel as support for the claims that, first, the requirement for invoking Article 25(1) protection is merely a matter of conscience and, second, that once that requirement has been met, there is a right to a fair accommodation of difference.

Justice Dhulia notes in his judgement that, "we are making the life of a girl child any better by denying her education, merely because she wears a hijab!"[18] he further adds to the it, "It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and order problem. To the contrary reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences."[19]

Justice Dhulia, also acknowledges that the situation is somewhat more complicated. For instance, it is a well-known fact that in many households, a girl's access to education is a contentious issue between her and her (conservative) family, with permission to attend school being conditional upon the wearing of the hijab, in paragraph 80 of his judgement he notes, "Under our Constitutional scheme, wearing a hijab should be simply a matter of Choice.

It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education."[20]

  1. Sangwan S, "Case Analysis: Aishat Shifa v. State of Karnataka & Ors., (2022) Hijab Ban Case" (Case Analysis: Aishat Shifa v. State of Karnataka & Ors., (2022) Hijab Ban Case, October 17, 2022) accessed December 12, 2022
  2. Ibid.
  3. Ibid.
  4. Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC) 842]
  5. The Constitution of India, 1950
  6. Ibid.
  7. Ibid.
  8. Ibid.
  9. Karnataka Education Act,1983
  10. Policy Review LS, "Aishat Shifa: Decoding Justice Gupta's Opinion in the SC's Hijab Decision" (Aishat Shifa: Decoding Justice Gupta's Opinion in the SC's Hijab Decision � Law School Policy Review & Kautilya Society, October 31, 2022) accessed December 12, 2022
  11. Para (13), Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC) 842]
  12. Para (89), Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC) 842]
  13. Para (188)' Aishat Shifa vs. State of Karnataka [2022 LiveLaw (SC)842]
  14. Bhatia G, "Discipline or Freedom: The Supreme Court's Split Verdict in the Hijab Case" (Discipline or Freedom: The Supreme Court's Split Verdict in the Hijab Case � Indian Constitutional Law and Philosophy, October 13, 2022) accessed December 12, 2022
  15. Ibid.
  16. Para (36), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]
  17. Bijoe Emmanuel & Ors vs State of Kerala & Ors 1986 SCR (3) 518
  18. Para (66), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]
  19. Para (67), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]
  20. Para (80), Aishat Shifa vs. State of Karnataka [2022 Livelaw (SC)842]

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