IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE / ORIGINAL JURISDICTION
HEMANT GUPTA; J., SUDHANSHU DHULIA; J.
OCTOBER 13, 2022
AISHAT SHIFA versus THE STATE OF KARNATAKA & ORS.
J U D G M E N T
HEMANT GUPTA, J.
1.The challenge in the present appeals is to an order passed by the Full Bench of the Karnataka High Court on 15.3.2022, dismissing the challenge to the Government Order dated 5.2.2022. Such Government Order directed the Government Schools in Karnataka to abide by the prescribed uniform, and the private schools were directed to mandate a uniform as decided by their Board of Management.
2. Before adverting to the submissions made by the counsels on both sides, it is imperative to give a background of the ethos and principles of secularism adopted in the Constitution of India. Though the term ‘secular’ has a wide amplitude and has been understood differently in different parts of the world, it is important to comprehend the same in context of the Indian Constitution.
3. The word “secular” is now part of the Preamble of the Constitution. What is meant by “Secular” (???????in the Hindi version of the Constitution) needs to be discussed first. The 3 word ‘Secular’ was inserted in the Preamble of the Constitution by the 42nd Amendment w.e.f. 3.1.1977. It is commonly understood in contradistinction to the term ‘religious’. The political philosophy of a secular government has been developed in the West in the historical context of the pre-eminence of the established Church and the exercise of power by it over the society and its institutions. The democratic State thereafter gradually replaced and marginalized the influence of the Church. The idea of secularism may have been borrowed in the Indian Constitution from the West; however, it has adopted its own unique brand based on its particular history and exigencies which are far distinct in many ways from secularism as defined and followed in European countries, the United States of America and Australia.
4. The use of word ‘panthnirpeksh’ in the Constitution brings out the difference in the terms "Dharmanirpeksh" and "Panthnirpeksh". ‘Panth’, or sect, symbolizes devotion towards any specific belief, way of worship or form of God, but Dharma symbolizes absolute and eternal values which can never change, like the laws of nature. Dharma is what upholds, sustains and results in the well-being and upliftment of the Praja (citizens) and the society as a whole.
5. This Court in a judgment reported as A.S. Narayana Deekshitulu v. State of A.P. & Ors.2 quoted the concept of Dharma explained by Justice M. Rama Jois in his Legal and Constitutional History of India as “it is most difficult to define Dharma. Dharma has been explained to be that which helps the upliftment of living beings. Therefore, that which ensures welfare (of living beings) is surely Dharma. The learned rishis have declared that which sustains is Dharma”. This Court held that “when dharma is used in the context of duties of the individuals and powers of the King (the State), it means constitutional law (Rajadharma). Likewise, when it is said that Dharmarajya is necessary for the peace and prosperity of the people and for establishing an egalitarian society, the word dharma in the context of the word Rajya only means law, and Dharmarajya means rule of law and not rule of religion or a theocratic State”. Any action, big or small, that is free from selfishness, is part of dharma. Thus, having love for all human beings is dharma. This Court held as under: “156. It is because of the above that if one were to ask “What are the signs and symptoms of dharma?”, the answer is: that which has no room for narrowmindedness, sectarianism, blind faith, and dogma. The purity of dharma, therefore, cannot be compromised with sectarianism. A sectarian religion is open to a limited group of people whereas dharma embraces all and excludes none. This is the core of our dharma, our psyche. 157. Nothing further is required to bring home the distinction between religion and dharma; and so I say that the word ‘religion’ in Articles 25 and 26 has to be understood not in a narrow sectarian sense but encompassing our ethos of . Let us strive to achieve this; let us spread the message of our dharma by availing and taking advantage of the freedom guaranteed by Articles 25 and 26 of our Constitution.”
6. This Court in Kesavananda Bharati v. State of Kerala & Anr.3 , even prior to the addition of the word ‘Secular’ by the 42nd Amendment, held that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of individual would always subsist in the welfare State. Hon’ble Justice H.R. Khanna in his judgment referred to the statement of K. Santhanam, a prominent member of the Constituent Assembly and Editor of a newspaper. It was observed as under: 1 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 (11 Judges Bench) 2 (1996) 9 SCC 548 3 (1973) 4 SCC 225 4 “1481. …K. Santhanam, a prominent southern member of the Assembly and editor of a major newspaper, described the situation in terms of three revolutions. The political revolution would end, he wrote, with independence. The social revolution meant ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education’. The third revolution was an economic one: ‘The transition from primitive rural economy to scientific and planned agriculture and industry’. Radhakrishnan (now President of India) believed India must have a ‘socio-economic revolution’ designed not only to bring about ‘the real satisfaction of the fundamental needs of the common man’, but to go much deeper and bring about ‘a fundamental change in the structure of Indian society’…” (Emphasis Supplied)
7. The secular character of the State was reiterated in a later Constitution Bench judgment reported as Smt. Indira Nehru Gandhi v. Shri Raj Narain wherein it was held as under: “252. It has been stated by me on p. 685 (SCC p. 767) of the judgment (already reproduced above) that the secular character of the State, according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. The above observations show that the secular character of the Constitution and the rights guaranteed by Article 15 pertain to the basic structure of the Constitution…”
8. The word ‘Secular’ after being added in the Preamble was also considered by a threeJudge Bench judgment of this Court reported as Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors.5 . This Court was considering an appeal against the setting aside of election of the appellant under the Representation of the People Act, 1951 to the Maharashtra State Assembly on the ground of speeches made by him in the course of election campaign. It was held that “the Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices…”
9. The term ‘Secular’ was also considered by a nine-Judges Bench of this Court reported as S.R. Bommai & Ors. v. Union of India & Ors.6 . It was held that our Constitution does not prohibit the practice of any religion either privately or publicly. The relevant extract of the judgment reads thus: “146. These provisions by implication prohibit the establishment of a theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and denominations. xx xx xx 148. One thing which prominently emerges from the above discussion on secularism under our Constitution is that whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited… xx xx xx 304. Both the expressions — ‘socialist’ and ‘secular’ — by themselves are not capable of precise definition. We are, however, not concerned with their general meaning or content. Our object is to ascertain the meaning of the expression “secular” in the context of our Constitution. As the discussion hereafter would demonstrate, the 42nd Amendment merely made explicit what was implicit in it…..................... While the citizens of this country are free to profess, practice and 4 1975 (Supp.) SCC 1 5 (1976) 2 SCC 17 6 (1994) 3 SCC 1 5 propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other religions, races and castes. How are the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality.…"
10. In the same year, in a judgment reported as Santosh Kumar & Ors. v. Secretary, Ministry of Human Resources Development & Anr.7 , a question arose as to whether the inclusion of Sanskrit in the syllabus of Central Board of Secondary Education as an elective subject so far as teaching in secondary school is concerned is permissible. This Court quoted that “It would be profitable to note that according to Justice H.R. Khanna secularism is neither anti-God nor pro-God; it treats alike the devout, the agnostic and the atheist. According to him, secularism is not antithesis of religious devoutness. He would like to dispel the impression that if a person is devout Hindu or devout Muslim, he ceases to be secular.”
11. The National Curriculum Framework for School Education published by National Council of Educational Research and Training was challenged before this Court in a judgment reported as Ms. Aruna Roy & Ors. v. Union of India & Ors.8 . This Court relied upon S.B. Chavan Committee Report, 1999 which strongly recommended education about religions as an instrument of social cohesion and social and religious harmony, when it said “a word of caution is required here. Education about religions must be handled with extreme care. All steps must be taken in advance to ensure that no personal prejudice or narrowminded perceptions are allowed to distort the real purpose of this venture and no rituals, dogmas and superstitions are propagated in the name of education about religions. All religions therefore have to be treated with equal respect (sarva dharma sambhav) and that there has to be no discrimination on the ground of any religion (panthnirapekshata).” It was observed as under: “29. At this stage, we would quote the relevant part of the S.B. Chavan Committee’s Report as under: xx xx xx 12. In view of the diverse character of our country, it is essential that certain national values are also imbibed by our young students. They should be acquainted with the history of India's freedom struggle, cultural heritage, constitutional obligations and the features comprising our national identity. The Committee feels that some of these national values can be imparted indirectly at the primary stage while at the middle and secondary levels, these can be included in the curriculum. 13. Another aspect that must be given some thought is religion, which is the most misused and misunderstood concept. The process of making the students acquainted with the basics of all religions, the values inherent therein and also a comparative study of the philosophy of all religions should begin at the middle stage in schools and continue up to the university level. Students have to be made aware that the basic concept behind every religion is common, only the practices differ. Even if there are differences of opinion in certain areas, people have to learn to coexist and carry no hatred against any religion.” xxx xxx 7 (1994) 6 SCC 579 8 (2002) 7 SCC 368 6 37. Therefore, in our view, the word “religion” should not be misunderstood nor contention could be raised that as it is used in the National Policy of Education, secularism would be at peril. On the contrary, let us have a secularistic democracy where even a very weak man hopes to prevail over a very strong man (having post, power or property) on the strength of rule of law by proper understanding of duties towards the society. Value-based education is likely to help the nation to fight against all kinds of prevailing fanaticism, ill will, violence, dishonesty, corruption, exploitation and drug abuse. ............... Let knowledge, like the sun, shine for all and that there should not be any room for narrow-mindedness, blind faith and dogma. For this purpose also, if the basic tenets of all religions over the world are learnt, it cannot be said that secularism would not survive.”
12. In T.M.A. Pai Foundation, it was held that the State is not prevented from making any law in relation to religious practice and the same is permissible under Article 25(2)(a) of the Constitution of India. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice. The Court held as under: “83. Article 25(2) gives specific power to the State to make any law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice as provided by sub-clause (a) of Article 25(2). This is a further curtailment of the right to profess, practise and propagate religion conferred on the persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice”.
13. Thus, though the concept of secularism emerged in the west, it has taken a different colour over the period of time. In a democratic country like India, consisting of multiple religions, regions, faith, languages, food and clothing, the concept of secularism is to be understood differently. Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any encroachment of religion in the secular activities is not permissible. Secularism thus means treating all religions equally, respecting all religions and protecting the practices of all religions. The positive meaning of secularism would be nondiscrimination by the State on the basis of religious faith and practices. Secularism can be practiced by adopting a completely neutral approach towards religion or by a positive approach wherein though the State believes and respects all religions, but does not favour any.
14. The challenge in the present appeals is to the Government Order dated 5.2.2022, the translated copy of which reads as under: “Proceedings of the Government of Karnataka Subject – Regarding a dress code for students of all schools and colleges of the state. Refer – 1) Karnataka Education Act 1983 2) Government Circular:509 SHH 2013, Date:31-01-2014 Preamble:- As mentioned in the above at reference No.1, the Karnataka Education Act 1983 passed by the Government of Karnataka (1-1995) Section [7(2)(g)(v)]* stipulates that all the school students studying in Karnataka should behave in a fraternal manner, transcend their group identity and develop an orientation towards social justice. Under the Section 133 of the above law, the government has the authority to issue directions to schools and colleges in this regard. The above-mentioned circular at reference No.2 underlines how Pre-university education is an important phase in the lives of students. All the schools and colleges in the state have set up development committees in order to implement policies in line with the policies of the government, utilize budgetary allocations, improve basic amenities and maintain their academic standards. It is recommended that the schools and colleges abide by the directions of these development committees. Any such supervisory committee in schools and colleges (SDMC in Government Institutions and Parents Teachers’ Associations and the management in private institutions) should strive to provide a conducive academic environment and enforce a suitable code of conduct in accordance with government regulations. Such a code of conduct would pertain to that particular school or college. Various initiatives have been undertaken to ensure that students in schools and colleges have a standardized learning experience. However, it has been brought to the education department’s notice that students in a few institutions have been carrying out their religious observances, which has become an obstacle to unity and uniformity in the schools and colleges. The question relating to a uniform dress code over individual dressing choices has come up in several cases before the Honourable Supreme Court and High Courts, which have ruled as below. 1) In para 9 of the Hon’ble High Court of Kerala’s ruling in W.P. (C) No.35293/2018, date : 04- 122018, it cites a ruling by the Hon’ble Supreme Court: “9. The Apex Court in Asha Renjan and others v/s State of Bihar and others [(2017) 4 SCC 397] accepted the balance test when competing rights are involved and has taken a view that individual interest must yield to the larger public interest. Thus, conflict to competing rights can be resolved not by negating individual rights but by upholding larger right to remain, to hold such relationship between institution and students.” 2) In the case of Fatima Hussain Syed v/s Bharat Education Society and Ors. (AIR 2003 Bom 75), in a similar incident regarding the dress code, when a controversy occurred at Kartik High School, Mumbai. The Bombay High Court appraised the matter, and ruled that it was not a violation of Article 25 of the Constitution for the principal to prohibit the wearing of head scarf or head covering in the school. 3) Subsequent to the Hon’ble Supreme Court’s abovementioned ruling, the Hon’ble Madras High Court, in V. Kamalamma v/s Dr. MGR Medical University, Tamil Nadu and Ors. upheld the modified dress code mandated by the university. A similar issue has been considered by the Madras High Court in Shri. M Venkatasubbarao Matriculation Higher Secondary School Staff Association v/s Shri M. Venkatasubbarao Matriculation Higher Secondary School (2004) 2 MLJ 653 case. As mentioned in the abovementioned rulings of the Hon’ble Supreme Court and various High Courts, since the prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the Constitution. Additionally, in terms of the [Karnataka Education Act, 1983 Article 133 Sub Rule (2) and Article 7(1)(i), 7(2)(g)(v) and Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) of Rules 1995 as per Rule 11]**, the government has decreed as belowGovernment Order No: EP14 SHH 2022 Bengaluru Dated: 05.02.2022 In the backdrop of the issues highlighted in the proposal, using the powers granted by Karnataka Education Act, 1983 Sub-Rule 133 (2) [Section 7(1)(i), 7(2)(g)(v) and Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) of Rules 1995 as per Rule 11**, all the government schools in the state are mandated to abide by the official uniform. Private schools should mandate a uniform decided upon by their board of management. In colleges that come under the pre-university education department’s jurisdiction, the uniforms mandated by the College Development Committee, or the board of management, should be worn. 8 In the event that the management does mandate a uniform, students should wear clothes that are in the interests of unity, equality and public order. By the Order of the Governor of Karnataka, And in his name Padmini SN Joint Secretary to the Government Education Department (Pre-University) *Substituted by the Corrigendum/Addendum dated 5.2.2022 **Inserted by the Corrigendum/Addendum dated 5.2.2022”
15. The Karnataka Education Act, 19839 , under which the above Government Order has been issued, was enacted with a view to foster the harmonious development of the mental and physical faculties of students and cultivate a scientific and secular outlook through education. The long title and some of the relevant provisions of the Act read thus: “An Act to provide for better organisation, development, discipline and control of the educational institutions in the State. Whereas it is considered necessary to provide for the planned development of educational institutions inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organisation, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education; Section-5. Promotion of education of the weaker sections and the handicapped. – The State Government shall endeavour to promote the education of the handicapped, backward classes and the weaker sections of the society including the economically weaker section thereof and in particular of the Scheduled Castes, Scheduled Tribes with special care by adopting towards that end such measure as may be appropriate. xx xx xx Section-7. Government to prescribe curricula, etc. – (1) Subject to such rules as may be prescribed, the State Government may, in respect of educational institutions, by order specify,- xx xx xx (h) the facilities to be provided, such as buildings, sanitary arrangements, playground, furniture, equipment, library, teaching aid, laboratory and workshops; (i) such other matters as are considered necessary. (2) The curricula under sub-section (1) may also include schemes in respect of,- xx xx xx (v) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women; (vi) to value and preserve the rich heritage of our composite culture; xx xx xx (viii) to develop the scientific temper, humanism and the spirit of inquiry and reform; xx xx xx (x) to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endevaour and achievement.” For short, the ‘Act’ 9
16. The Act also contemplates withdrawal of recognition if any local authority or the Governing Council of any private educational institution denies admission to any citizen on the ground of religion, race, caste, language or any of them [Section 39 (1)(b)]; or directly or indirectly encourages in the educational institution any propaganda or practice wounding the religious feelings of any class of citizens of India or insulting religion or the religious belief of that class [Section 39 (1)(c)].
17. The impugned Government Order has been issued by exercising the powers conferred under Section 133 of the Act, which reads as thus: “133. Powers of Government to give directions.- (1) The State Government may, subject to other provisions of this Act, by order, direct the Commissioner of Public Instruction or the Director or any other officer not below the rank of the District Educational Officer to make an enquiry or to take appropriate proceeding under this Act in respect of any matter specified in the said order and the Director or the other officer, as the case may be, shall report to the State Government in due course the result of the enquiry made or the proceeding taken by him. (2) The State Government may give such directions to any educational institution or tutorial institution as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the owner, as the case may be, of such institution shall comply with every such direction. (3) The State Government may also give such directions to the officers or authorities under its control as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of such officer or authority to comply with such directions.”
18. The State Government is also empowered to make rules to carry out the purposes of this Act under Section 145 of the Act. Subsection (2) thereof provides that in particular and without prejudice to the generality of the foregoing power, the Rules may provide for the establishment or maintenance and administration of educational institutions [Section 145 (2)(xii)]; the purposes for which the premises of the educational institutions may be used and the restrictions and conditions subject to which such premises may be used for any other purpose [Section 145 (2)(xxix)]; and all matters expressly required by the Act to be prescribed or in respect of which the Act makes no provision or makes insufficient provision and a provision is, in the opinion of the State Government, necessary for the proper implementation of the Act [Section 145 (2)(xL)].
19. In pursuance of the above statutory provisions, the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curricula etc.) Rules, 199510 were framed. Rule 11 of the said Rules provides for uniform, clothing, text books etc., which reads thus: “11. Provision of Uniform, Clothing, Text Books etc., (1) Every recognised educational institution may specify its own set of Uniform. Such uniform once specified shall not be changed within the period of next five years. (2) When an educational institution intends to change the uniform as specified in sub-rule (1) above, it shall issue notice to parents in this regard at least one year in advance. (3) Purchase of uniform clothing and text books from the school or from a shop etc., suggested by school authorities and stitching of uniform clothing with the tailors suggested by the school authorities, shall be at the option of the student or his parent. The school authorities shall make no compulsion in this regard.” 20. Rule 16 of the Rules provides for the constitution and functions of District Level Education Regulating Authority. An order was passed by the State on 31.1.2014 constituting 10 For short, the ‘Rules’ 10 College Betterment Committee for the purpose of proper utilization of the grants sanctioned to it and for developing basic infrastructure and maintaining the quality of education. Such Committee is chaired by Member of Legislative Assembly as well as representatives of parents, one of whom is a woman, one SC/ST, another member with an interest in educational field, two student representatives out of which one shall be girl, Vice Principal/Senior Teacher of High School and Senior Lecturers of the college. The principal of the respective college is the Member Secretary. Such College Betterment Committee of the Government Pre-University College for Girls, Udupi, on 23.6.2018, passed the following resolution: “
xx xx xx 4. Further, it is resolved to maintain the same uniform in this year also as maintained in the last year like blue colored chudidar pant, white colored with blue color checks top and blue pant colored shawl on the shoulders, in all the six days of the week. Also, it is decided to handover the responsibility of providing the uniform to the poor girl students from the donors, to the VicePresident Yashpal Suvarna and powers were given to the Principal to take decision to after checking availability of the uniform in the shops.”
21. The challenge to the Circular dated 5.2.2022 before the High Court remained unsuccessful on various grounds which are not necessary to be extracted herein.
22. Mr. Sanjay Hegde, Mr. Devadutt Kamat, Mr. Rajeev Dhawan, Ms. Meenakshi Arora, Ms. Jayna Kothari, Mr. Salman Khurshid, Mr. A.M. Dar, Mr. Kapil Sibal, Mr. Colin Gonsalves, Mr. Aditya Sondhi, Mr. Yusuf Muchhala, Mr. Huzefa Ahmadi, Mr. Dushyant Dave, learned Senior Advocates and Mr. Prashant Bhushan, Ms. Kirti Singh, Mr. Rishad Ahmed Chowdhury, Mr. Shoeb Alam, Mr. Rahmatullah Kotwal, Ms. Thulasi K. Raj, Mohd. Nizamuddin Pasha, learned counsels have assisted the Court in this matter on behalf of the appellants; whereas, Mr. Tushar Mehta, Solicitor General, Mr. K.M. Natraj, Additional Solicitor General, Mr. Prabhuling Navadgi, Advocate General for the State of Karnataka, Mr. R. Venkataramani, Ms. V. Mohana, Mr. D.S. Naidu, learned Senior Advocates, argued on behalf of the Respondents. The arguments covered various issues which will be dealt with hereinafter at appropriate stages.
23. We have heard learned counsels for the parties at length. I find that the following questions arise for consideration in the present appeals: “(i) Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution? (ii) Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Act? (iii) What is ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ under Article 25? (iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution? (v) Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy under Article 21 mutually exclusive or are they complementary to each other; and whether the Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and Article 14? 11 (vi) Whether the Government Order impinges upon Constitutional promise of fraternity and dignity under the Preamble as well as fundamental duties enumerated under Article 51-A subclauses (e) and (f)? (vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can seek right to wear headscarf to a secular school as a matter of right? (viii) Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental rights under Articles 19, 21 and 25 as a precondition for accessing education in a State institution? (ix) Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable accommodation’ to its citizens? (x) Whether the Government Order is contrary to the legitimate State interest of promoting literacy and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution? (xi) Whether the Government Order neither achieves any equitable access to education, nor serves the ethic of secularism, nor is true to the objective of the Karnataka Education Act?” Question (i)- Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re-9J) and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of the Constitution?
24. The preliminary submission of learned counsel for the appellants is that the present case ought to be referred to a larger bench in view of the order of this Court reported as Kantaru Rajeevaru (Sabarimala Temple Review-5J.) v. Indian Young Lawyers Association & Ors.11 . One of the arguments raised for such submission was that it has to be decided as to what is considered to be essentially religious, essential to religion and integral part of religion. The contention was that “religion” is a means to express one's “faith”. The larger Bench of this Court framed the questions of law in an order12 . However, the reasons13 recorded for the reference state the ambit to be “the contours of judicial review in matters pertaining to essential religious practices”. The questions referred to in the said case relate to the extent to which the Court can inquire into the issue as to whether a particular practice would be qualified as an integral, essential part of religion.
25. It was also argued that the present case involves a substantial question of law relating to interpretation of the Constitution, therefore, ought to be referred to a Constitution Bench in terms of Article 145(3) of the Constitution.
26. It is noted that the review in Kantaru Rajeevaru (Right to Religion, In Re-9J.) is to consider much wider questions. The argument that the matter should be referred to a larger Bench to be heard along with such referred cases does not warrant consideration. The questions referred to the larger Bench relate to power of judicial review in the matters of essential religious practices. But the said question need not be examined in the present matter as the issue herein is whether a religious practice, which may be an essential religious practice, can be regulated by the State in a secular institution. Therefore, I do not find it necessary to tag the present appeals along with Kantaru Rajeevaru.
27. The argument that the present appeals involve a substantial question of law as to the interpretation of the Constitution, and thus should be referred to the Bench of Five Judges in terms of Article 145(3) of the Constitution is not tenable. Reliance is placed on a 9-Judges 11 (2020) 2 SCC 1 12 (2020) 3 SCC 52 13 (2020) 9 SCC 121 12 bench judgment reported as K.S. Puttaswamy and Anr. v. Union of India & Ors.14 , wherein this Court held “When a substantial question as to the interpretation of the Constitution arises, it is this Court and this Court alone under Article 145(3) that is to decide what the interpretation of the Constitution shall be, and for this purpose, the Constitution entrusts this task to a minimum of 5 Judges of this Court”.
28. There is no dispute about the proposition canvassed. The issue in the present matter is however as to whether the students can enforce their religious beliefs in a secular institution. Thus, the issues raised do not become a substantial question of law as to the interpretation of the Constitution only for the reason that the right claimed by the appellants is provided under the Constitution. Hence, I do not find the need to refer the matter to a larger bench or that the same should be heard along with Kantaru Rajeevaru. Question (ii)- Whether the State Government could delegate its decision to implement the wearing of uniform by the College Development Committee or the Board of Management and whether the Government Order insofar as it empowers a College Development Committee to decide on the restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Act?
29. The argument raised is with reference to Section 143 of the Act. It is contended that the State Government can delegate all or any of its powers exercisable by it, or to be exercised also by such office/authority subordinate to the State Government, as may be specified in the notification. It is the contention of the learned counsel for the appellants that the notification dated 31.1.2014 is to delegate the essential State functions in favour of a non-statutory authority. Therefore, such notification violates the mandate of Section 143 of the Act. Section 143 of the Act reads thus: “143. Delegation. – The State Government may by notification in the official gazette, delegate all or any powers exercisable by it under this Act or rules made thereunder, in relation to such matter and subject to such conditions, if any as may be specified in the direction, to be exercised also by such officer or authority subordinate to the State Government as may be specified in the notification.”
30. It is contended by the learned counsel for the appellants that the power to maintain public order is the responsibility of the State Government and, therefore, the State Government could not delegate its authority to College Development Committee which is not State within the meaning of Article 12 as it is a mechanism created by the State. The Circular issued by the Government of Karnataka dated 31.1.2014, published in the official Gazette, reads thus: “Government of Karnataka No. ED 580 SHH 2013 Department of Education Multistore Building Bangalore dated 31-01-2014
Education department is providing 1 st and 2 nd PUC education in the state. PUC education is the main stage in the student’s life. In accordance with the government and department direction and in order to utilise the grants as well as in maintaining academic standards and development of infrastructure, we are hereby directed to form a college development committee and to follow the guidelines as under: 1. President MLA of the respective constitution 2. Vice President Local representative nominated by the MLA 14 (2017) 10 SCC 1 13 3. Members 1) 4 members from the students parents and among them 1 parent should be a female and 1 parent should belong to schedule caste/schedule tribe. 2) The person who is interested in the education field. 3) 2 members from the students representative, among them 1 should be a girl student (this is not applicable for boys college) 4) Vice Principal/Senior Teacher from respective composite P.U. college. 5) Senior Lecturer of PU College. 4. Secretary member Principal of the respective PU College. SD/ 31-01-2014 (S.H. Curiyavar) Under Secretary to the Govt Dept of Education (P.U Education).”
31. Furthermore, learned counsels for the appellants have also vehemently argued that the Government Order dated 5.2.2022 refers to some of the judgments which do not deal with the issue of wearing hijab, but still it is concluded that use of headscarf or a garment covering the head is not in violation of Article 25. It is averred that though the operative part of the order seems to be facially religious-neutral, it targets a particular community in effect. It is also contended that the High Court has supplanted the reasons to uphold the said Government Order even though the reasons recorded therein are not sufficient to prohibit the use of headscarf. Hence, at the outset, the State ought to prove the jurisdiction to issue such a circular.
32. The alternate argument is that the College Development Committee, a non-statutory authority, cannot exercise power of the State Government under Part III of the Constitution. It was contended that the law which can restrict the right of an individual under Article 19(1)(a), Article 25(2), or any other right falling within part III of the Constitution, can only be by way of a law made by the competent legislature. Mr. Shoeb Alam referred to judgments of this Court reported as State of Madhya Pradesh & Anr. v. Thakur Bharat Singh15 , State of West Bengal v. Anwar Ali Sarkar16 , Bishambhar Dayal Chandra Mohan & Ors. v. State of Uttar Pradesh & Ors.17 and a recent order passed by this Court reported as Pharmacy Council of India v. Rajeev College of Pharmacy & Ors. 18 to support such contention. However, Mr. Dushyant Dave argued that the rights in Part III of the Constitution can be restricted or regulated by a statute made by competent legislature and also includes any law as defined under Article 13(2) & (3) of the Constitution. Articles 13(2) and (3) of the Constitution are relevant for the purposes of the present proposition, which reads thus: “13. Laws inconsistent with or in derogation of the fundamental rights.— xx xx xx (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— 15 AIR 1967 SC 1170 16 AIR 1952 SC 75 17 (1982) 1 SCC 39 18 2022 SCC OnLine SC 1224 14 (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;”
33. I do not find any merit in the said argument raised by the appellants. The College Development Committee is envisaged to be an in-house mechanism to ensure better utilization of grants as well as maintaining academic standards and development of infrastructure. Such directions are relatable to sub-section (3) of Sections 133 and 145 of the Act. In any case, the constitution of the College Development Committee is not in conflict with any of the provisions of the Act. The said circular was published in the Karnataka Gazette, issued in exercise of the executive powers of the State, supplementing the provisions of the Act and not supplanting all or any of the provisions thereof.
34. The Government Order is in two parts. The first part is the Preamble which gives the background leading to the order impugned before the High Court. The second part, i.e., the operative part of the order alone bears the Government Order number and date. The order mandates that the uniform prescribed by the College Development Committee or the Board of Management should be worn. The appellants have though understood the order to be interfering with their essential religious practices.
35. The executive power under Article 73 extends to all matters in respect of which the Parliament has power to make laws or under Article 162 in respect of the matters where legislature of the State has power to make laws.19 The question is whether restrictions can be imposed by the executive in respect of the rights specified under Part III such as Articles 19, 21, 25 and 31A.
36. There is no dispute about the proposition that in the absence of any statute or the statutory rule, but in exercise of the executive power, the State can issue an executive order. However, the argument raised is that restrictions under Part III of the Constitution can only be imposed by way of a statutory law and not by way of an executive power.
37. Now, coming to the judgments referred to by the learned counsel for the appellant for the abovementioned contention; in Anwar Ali Sarkar, this Court was considering the conviction of the respondent by the Special Court established under Section 3 of the West Bengal Special Courts Ordinance, 1949, which was replaced by the West Bengal Special Courts Act, 1950. It was the provision of the Act which was set aside being discriminatory. This Court, in fact, inter-alia held that “this is further made clear by defining "law" in Article 13 (which renders void any law which takes away or abridges the rights conferred by part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe Article 14. The trilogy of articles thus ensures non discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India”. Thus, the said judgment is thus not helpful to the argument raised.
38. In Thakur Bharat Singh, this Court dismissed an appeal filed by the State against the judgment of the High Court reported as Thakur Bharat Singh v. State of M.P. & Anr.20 . The High Court struck down Section 3(1)(b) of the Madhya Pradesh Public Security Act, 1959 when the writ petitioner before the High Court was prohibited to be in Raipur District and was directed to remain within the municipal limits of Jhabua District and was also ordered to report daily to the Police Station Officer, Jhabua. The High Court held as under: 19 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 20 AIR 1964 MP 175 15 “For the foregoing reasons, our conclusion is that clauses (a) and (c) of section 3(1) of the Act are valid, but clause (b) being violative of article 19(1)(d) of the Constitution is invalid. As clause (b) is invalid, the direction made against the appellant Bharatsingh under that clause asking him to reside in Jhabua was clearly illegal and was rightly quashed by the learned Single Judge. On quashing that direction, the further direction that Bharatsingh should notify his movements by reporting himself daily to the Police Station Officer, Jhabua, cannot survive. The learned Single Judge, therefore, rightly quashed the order made against Bharatsingh directing him to notify his movements and report himself daily to the Police Station Officer, Jhabua, though he did so on the erroneous view that clause (c) of section 3(1) was inextricably woven with clause (b) thereof and was invalid. The result is that both these appeals are dismissed. In the circumstances of the case, we leave the parties to bear their own costs of the two appeals.”
39. An appeal against the said judgment was dismissed by this Court wherein this Court held as under: “7. We are therefore of the view that the order made by the State in exercise of the authority conferred by Section 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Article 352 no immunity from the process of the Court could be claimed under Article 358, of the Constitution, since the order was not supported by any valid legislation.”
40. The aforementioned judgment is in respect of the statute enacted by a State Legislature, the provision of which was found to be invalid. The issue raised in the aforesaid case has no parity with the facts of the present case.
41. In Bishambhar Dayal Chandra Mohan, the State Government contended that the impugned teleprinter message dated March 31, 1981 was in the nature of an executive instruction issued by the State Government under its powers under Article 162 of the Constitution for the due observance of the provisions of the U.P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and the Uttar Pradesh Foodgrains (Procurement and Regulation of Trade) Order, 1978. It was the stand of the State that no person can carry on business in foodgrains as a dealer or as a commission agent, except under and in accordance with the terms and conditions of a valid licence issued in that behalf under the two orders. In these circumstances, this Court held as under: “33. Under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6)............ 41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word “law” in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State made law…”
42. The writ petitions filed by the dealers were dismissed. In the aforesaid case, the restriction was put by an executive order, which was found to be a reasonable restriction in terms of Article 19(6) of the Constitution. Even the said judgment does not aid the appellants and has no applicability to the facts of the present case.
43. Furthermore, reliance on a recent judgment of this Court reported as Pharmacy Council of India is unfound as it has no parity with the facts of the present case. The Pharmacy Council of India, an authority created under the Pharmacy Act, 1948, resolved on 16 17.7.2019 to put a moratorium on the opening of new pharmacy colleges for running Diploma as well as Degree courses in pharmacy for a period of five years. The argument raised by the appellant was that Sections 3, 10 and 12 of the Pharmacy Act confer the power to regulate, therefore, such power would include the power to prohibit also. This Court negated such an argument and held as under: “55. Since we have held that the Resolutions/communications dated 17th July 2019 and 9 th September 2019 of the Central Council of the appellant-PCI, which are in the nature of executive instructions, could not impose restrictions on the fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution of India, we do not find it necessary to consider the submissions advanced on other issues. We find that the Resolutions/communications dated 17th July 2019 and 9 th September 2019 of the Central Council of the appellant-PCI are liable to be struck down on this short ground.”
44. A perusal of the above judgment shows that an authority under the Act had put a moratorium on the opening of new pharmacy colleges, thus, prohibiting the right conferred on an individual under Article 19(1)(g) of the Constitution. The same however was by virtue of a resolution not supported by any statute. Therefore, the said judgment of this Court has no applicability to the facts of the present case.
45. Furthermore, this Court in a judgment reported as Shri Dwarka Nath Tewari v. State of Bihar21 was considering Article 182 of the Bihar Education Code. The Court found that Article 182 of the Code is not in exercise of any power granted under the statute and thus cannot deprive the petitioners of their rights in the properties which were the subject matter of the writ petition. This Court held as under: “13. It is clear, therefore, from the portion of the preface extracted above, that Article 182 of the Code has no greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor-General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid.”
46. "Law”, as contemplated under Articles 19(2) and 25(2), falls within Part III of the Constitution. Therefore, law, as defined under Article 13(3), would include any ordinance, order, bye-law, rule, regulation, notification, custom or usage in the territory of India to have the force of law. The order issued by the State Government would thus be a law within the meaning of Article 13(2) read with Article 13(3)(a), which is a valid exercise of power under Article 19(1)(a) read with Article 19(2), and Article 25(1) read with Article 25(2) of the Constitution.
47. The Government Order relates to the powers conferred on the executive under Section 133 of the Act and rule-making power of the State under Article 162 of the Constitution. The said Government Order does not run contrary to any of the provisions of the Act and the rules framed thereunder. Therefore, the executive was well within its jurisdiction to ensure that the students come in the uniform prescribed by the College Development Committee.
48. The College Development Committee so constituted consists of Member of the Legislative Assembly, representatives of the students, faculty members etc. Therefore, such authority is a representative body of the students and teachers including the Member of the Legislative Assembly and Principal of the College as Member Secretary. Such Committee cannot be said to be beyond the scope of Section 143 of the Act. Such authority established 21 AIR 1959 SC 249 17 in exercise of the powers vested with the State Government is not in contravention of any of the provisions of the statute. In terms of Article 162 of the Constitution, the State Government in exercise of its executive power could create the College Development Committee as such Committee does not contravene any of the provisions of the statute or the rules framed thereunder.
49. In view of the above, I find that the State Government has the power to constitute a College Development Committee by notification dated 31.1.2014 in terms of Section 143 of the Act. The State Government could confer its power to be exercised by such office/authority subordinate to the State Government. It is noted that the word ‘authority’ has not been defined under the Act. The authority contemplated by the Act could be a nonstatutory authority such as of a person or a group of persons who may be authorized to exercise powers under Section 143 of the Act.
50. Further, it is well settled that executive powers can be used to supplement the statutory rules. This Court in a judgment reported as Sant Ram Sharma v. State of Rajasthan & Ors. 22 held that it is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed thereunder. This Court in a judgment reported as Union of India & Anr. v. Ashok Kumar Aggarwal23 held as under: “59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of India v. Majji Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166], C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC 2220] .)”
51. The Preamble of the Act aims towards fostering harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. 52. The curricula under Section 7(2) of the Act is to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, to renounce practices derogatory to the dignity of women, to value and preserve the rich heritage of our composite culture, to develop scientific temper, humanism and the spirit of inquiry and reform and to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievement. The said provision is substantially pari materia with the fundamental duties enumerated in Part IV-A of the Constitution inserted by 42nd Amendment, required to be followed by the institutions covered under the Act.
53. The said provisions show that the mandate of the statute is to renounce sectional diversities, to develop humanism and to cultivate scientific and secular outlook. The sectarian approach that certain students will carry their religious beliefs to secular schools run by the State would be antithesis of the mandate of the statute. All students need to act 22 AIR 1967 SC 1910 23 (2013) 16 SCC 147 18 and follow the discipline of the school. Out of the many steps required to ensure uniformity while imparting education, one of them is to wear the uniform dress without any addition or subtraction to the same. Any modification to the uniform would cease to be the uniform, defeating the very purpose of prescribing under Rule 11 and as mandated by the College Development Committee.
54. Mr. Dushyant Dave referred to an extract which appears to be from a booklet published by the Department of Pre-University Education containing guidelines for the year 2021-2022. It is contended that such guidelines have contemplated that uniform is not mandatory and that some College Principals and Management Committee have imposed uniforms as mandatory, which is illegal. The relevant clause reads as under: “Uniform is not mandatory for students studying in Pre University college under Government / Pre University Education Department / Education Act. But some college principals and management committee members have imposed uniforms as mandatory which is illegal. Any violation of the foregoing instructions will be taken seriously.” 55. In respect of the said contention, I find that the students were following uniform prescribed by the College Development Committee. It is not the case of any of the students that they were not wearing uniform for the academic session 2021-22. The only claim raised was in relation to right to wear the headscarf during the academic year 2021-22, the year in controversy, and to which the guidelines relate. The recognized educational institution in terms of Section 2(30) of the Act means an educational institution recognized under the Act and includes one deemed to be recognized thereunder. The recognition of educational institutions is contemplated by Section 36 of the Act whereas the educational ins
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