AISHAT SHIFA V. STATE OF KARNATAKA: A CRITICLE ANALYSIS
DATE OF THE CASE: 13 October, 2022
APPELLANT: AISHAT SHIFA
RESPONDENT: THE STATE OF KARNATAKA & ORS.
BENCH/JUDGES: Justice Hemant Gupta
Justice Sudhanshu Dhulia
Preface
The Government of Karnataka had issued a order dated 5th February ,2022 calling all government seminaries in the State to abide by sanctioned livery and orders. Comprising the said order, that order confined the wearing of hijab, which was challenged to be violating liberty, equivalency, and fraternity as well as the primary idea of denomination as is elevated in Preamble to the Indian Constitution. The Karnataka High Court upheld the said government order and the same was under challenge and decided by the Supreme Court.
SAID FACTS OF THE CASE
The challenge in this appeal was related to the Government Order dated 5th February,2022, a restatement of which reads as follows. The Karnataka Education Act was legislated by the Karnataka government in 1983. Section 7( 2)( g)( v) requires all Karnataka academy scholars to act in a brotherly manner, transcend group identity, and develop a sense of social justice. Under Section 133 of the forenamed Act, the government is permitted to give this type of training to sodalities and universities
- All of the state’s sodalities and universities have set up development panels to execute out government programmes, use fiscal coffers, upgrade abecedarian structure, and safeguard academic norms. The sodalities and institutions are advised to abide by the rules established by these development panels. The Act also stipulates that recognition may be abandoned if a original government or the governing body of a private educational institution denies admission to a citizen on the grounds of that person’s race, religion, estate, or language(as said in Section 39( 1)( b)); or if the educational institution directly or laterally supports any propaganda or practise that offends the religious sentiments of any class of Indian citizens or disparages their religion or religious beliefs.
- The said order was made using the authority granted by Section 133 of the Act, which reads as follows- “Subject to other vittles 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 disquisition into or to take applicable 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 disquisition in a timely manner. The State Government may issue similar instructions to any educational institution or tutorial institution as it deems necessary or advisable for carrying out the purposes of this Act or giving effect to any of the vittles contained therein or of any rules or orders made thereunder, and the Governing Council or proprietor of similar institution shall misbehave with every similar direction”. The State Government may also issue any directives to the officers or authorities under its control that it deems necessary or profitable for achieving the pretensions of this Act, and similar officers or authorities shall be needed to abide by similar directives.
- Section 145 of the Act grants the State Government the authority to legislate rules to carry out the purposes of this Act. In particular, and without limiting the generality of the forenamed power,sub-section( 2) thereof states that-“ the Rules may specify the creation, conservation, and administration of educational institutions( Section 145( 2)( xii))”; “the uses that may be made of the educational institutions’ demesne and the restrictions and conditions under which those uses may be made( Section 145( 2)( xxix))”; and all matters expressly related to similar uses. The challenge to the indirect dated5.2.2022 before the High Court remained unprofitable on colorful grounds.
INTERPRETED ISSUES OF THE CASE
1. Is wearing a hijab/ headscarf part of an essential religious practice of the Islamic faith defended by Article 25 of the Constitution?
2. Whether taking scholars to wear specified uniforms is licit or not, as it violates their abecedarian rights, including those defended by Article 19( 1)( a)( freedom of speech) and Article 21 of the Constitution.
ARGUMENTS FROM THE PETITIONER’S SIDE
Pleaders originally argued that-
“Wearing the hijab is an essential religious practice in Islam and that the defendant’s claim to ban the wearing of the hijab in the classroom violates the rights of Muslim pixies under Article 25 of the Constitution. They also argued that particular appearance and choice of dressing are particular rights defended under Article 19( 1)( a) of the Constitution and under Article 21 of the Constitution. Pleaders also purport violations of the “ principle of proportionality, ” arguing that the government order in question was easily arbitrary. They argued that the Karnataka State Education Act 1983 or any regulations legislated therein didn’t allow for any dress law or livery conditions. Also, the University enhancement( Development) Commission, established under a 2014 government memorandum, is an extra-statutory body with no authority to put dress canons or uniforms on scholars. The government order cites public policy as a consideration for dress canons and uniforms, so if wearing the hijab violates public policy, rather than banning the wearing of the hijab, the state should take applicable action against those causing similar dislocation. They had also argued that the hijab tradition offends women’s autonomy, and is violative of Article 14 of the Constitution, by virtue of creating gender – grounded demarcation, which Article 15 of the Constitution doesn’t permit. Eventually, they had argued that the dress law violates the right to education of scholars with hijab, whose entry to the institutions is banned, and that’s in denigration of transnational conventions that give for defensive demarcation of women’s rights, as well as the folder of the Education Department, which prohibits defining any kind of livery. Some of the desires had demanded that academy preceptors forcing scholars to remove hijab before entering institutions should have correctional action initiated against them”.
ARGUMENT FROM RESPONDENT’S SIDE
The respondents had argued that-
“The rights under Article 25 aren’t absolute, and that the wearing of hijab or head scarf isn’t a part of the ‘ essential religious practice ’ of Islamic faith, since the Quran doesn’t contain any similar injunctions. They had argued that the power to define academy livery is essential in the conception of academy education itself, and the impugned government order only authorizes the tradition of dress law by the institutions on their own and doesn’t define any by itself. They had contended that the contemporaneous claims to wear hijab inside the classroom under Articles 19( 1)( a) and 25 aren’t only mutually exclusive, but denuding of each other. Also, the freedom of heart, the right to exercise religion, the right to expression and the right to sequestration are all subject to reasonable restriction or regulation by law. Eventually, they had averred that wearing hijab offends tenets of mortal quality, robs down the individual choice of Muslim women, and militates against indigenous morality”.
JUDGEMENT PRONOUNCED
A two- judge bench of the Supreme Court delivered a disunited opinion on an appeal against a Karnataka High Court decision upholding a state order that commanded a livery for educational institutions, accordingly banning the hijab. Writing for the Court, Justice Gupta affirmed the High Court’s decision, while Justice Dhulia decided in favour of the petitioners. The case will now be appertained to a larger bench of Supreme Court.
CRITICAL ANALYSIS ON THE ORDERS MADE BY JUDGES
Hemant Gupta- “Justice Gupta starts his decision by talking about denomination and trying to explain what it means in a way, and sets the tone for the rest of his decision. Indeed though he says that the idea of denomination in the Indian Constitution is different from the Western idea, which rigorously separates religion from the conditioning of the State, and that it means “ treating all persuasions inversely, esteeming all persuasions, and guarding the practises of all persuasions, ” he starts by saying what he thinks denomination is “ Denomination, as espoused under our Constitution, is that religion can not be intertwined with any of the temporal conditioning of the State. Any encroachment of religion in the temporal conditioning isn’t admissible. ”
Justice Gupta bases the discussion on the notion that scholars should “ wear vesture that are in the interest of concinnity, equivalency, and public order ”. He closes his point in a single paragraph, furnishing neither further nor specific logic. He remarks, “ The object of the Government Order was to insure that there’s equality amongst the scholars in terms of livery. It was only to promote uniformity and encourage a temporal terrain in the seminaries. This is in tune with the right guaranteed under Composition 14 of the Constitution. Hence, restrictions on freedom of religion and heart have to be read jointly along with other vittles of Part III as laid down under the restrictions of Composition 25( 1). ”
The notion of discipline is the driving force behind Justice Gupta’s opinion. Twenty- two times in the ruling, the word “ discipline ” appears in colorful surrounds, but it appears most constantly in the precedent set by Justice Gupta. also, Justice Gupta constantly used the word “ discipline ” with the word “ livery ”, pressing how discipline( and formerly, “ discipline and control! ”) cannot live without a livery on multitudinous times. One particularly special paragraph in which Justice Gupta makes the following compliances highlights his profound regard for discipline “ Discipline is one of the attributes which the scholars learn in seminaries. Defiance to rules of the academy would in fact be antipode of discipline which can not be accepted from the scholars who are yet to attain majority. thus, they should grow in an atmosphere of brotherhood and fraternity and not in the terrain of revolutionary or defiance.”
Justice Gupta, used the word “ discipline ” twenty- two times in his judgement, while the word “ proportionality, ” the legal standard used to estimate when an violation of rights by the state is justified or not is used zero times in his judgement. There are several gaps in the logic of his judgement if it’s broken down para by para, citing the same reason one of the famed indigenous Law author “ Gautam Bhatia ”, writes “ Once livery( not a indigenous test) and uniformity( not the right indigenous test) fall down, Justice Gupta’s judgment doesn’t have a leg to stand on, and falls down along with them”.”
J. Sudhanshu Dhulia – “Justice Dhulia’s resolution poses a wide range of inquiries and starts off in a fully nonidentical position than Justice Gupta’s did. He started by talking about the ERP test and approaches it in an intriguing expressway. “ tallying to Justice Dhulia, the ERP test has historically been applied to cases involving the operation of religious property or the profession of collaborative birthrights against the country. still, in this case, the birthright of an individual( to break the hijab) against the country is at conclusion. tallying to Justice Dhulia, ERP is irrelevant not this situation since different clarifications of religious doctrine live in every faith, and it isn’t the part of the court to favour one interpretation over another. ”
He notes in his sentence- “ piecemeal from the fact that ERP wasn’t essential to the determination of the disagreement, which we’ve formerly spoke above, there’s another aspect which is indeed more important, which would explain as to why the Courts should be tardy in the matters of arbitrating as to what’s an ERP. In my unpretentious opinion Courts aren’t the forums to break theological questions. Courts aren’t well seasoned to do that for colorful reasons, but most importantly because there will invariably be further than one standpoint on a personal religious matter, and thus nobody gives the administration to the Court to pick one over the other. The Courts, still, must intrude when the boundaries set by the Constitution are broken up, or where unjustified circumscriptions are assessed”.
After coming to this conclusion, Justice Dhulia focuses his concentration away from ERP, towards the independence of heart and the significant holding in the Bijoe Emmanuel case. This is the alternate essential component in his evaluation. Recalling how the Supreme Court had allowed three Jehovah’s Witness scholars to refrain from descanting the public hymn at their academy assembly as long as they observed a regardful stillness throughout its playing. He also cites Bijoe Emmanuel to contextualise the eidolon of “ reasonable accommodation ” — which Justice Gupta categorically rejects — in Indian indigenous proposition. Justice Dhulia believes that the conditions are identical. Justice Dhulia thus uses Bijoe Emmanuel case in brace of the allegations that, first, the condition for seeking Article 25( 1) security is solely a matter of heart and, second, that, once that demand has been gratified, there’s a right to a reasonable accommodation of disparity. In his holding, Justice Dhulia states, “ we are making the life of a girl child any more by disconfirming her instruction, simply because she wears a hijab! ”
He continues, “ It doesn’t appeal to my sense or argument as to how a girl child who’s wearing out a hijab in a classroom is a public order case or indeed a law- and order case. To the contrary reasonable accommodation in this case would be a gesture of a ripe society which has learnt to reside and acclimate with its differences. ”
Justice Dhulia agrees that effects are a little trickier than they first appear. For case, it’s a well- known fact that a girl’s access to instruction is constantly a disputatious conclusion between her and her( conservative) blood, with authorization to attend academy being tentative upon the wearing out of the hijab. In paragraph 80 of his sentence, he notes, “ Under our indigenous gambit, wearing out a hijab should be exclusively a matter of liberty. It may or may not be a matter of essential religious practice, but it still is, a matter of heart, belief, andexpression.However, indeed inside her class space, she can not be stopped, If she wants to break hijab. ”
CONCLUSION
The Supreme Court’s split ruling on the Karnataka hijab ban case underscores the clash between institutional discipline and individual religious freedoms. Justice Gupta prioritizes uniformity and discipline, while Justice Dhulia advocates for religious freedom and reasonable accommodation. Referral to a larger bench reflects the profound constitutional and societal implications, necessitating careful consideration.
REFERENCES
- https://indiankanoon.org/doc/8682191/
- https://www.legalserviceindia.com/legal/article-11643-case-analysis-aishat-shifa-v-s-state-of-karnataka.html
- https://indconlawphil.wordpress.com/2022/10/17/guest-post-ends-over-means-on-dhulia-j-s-circumvention-of-the-essential-religious-practices-test-in-the-hijab-case/
- https://theamikusqriae.com/case-analysis-aishat-sifha-v-state-of-karnataka/
- https://www.quora.com/How-does-banning-abayas-in-schools-impact-Muslim-girls-expression-of-identity-and-fashion-choices
- https://www.theweek.in/news/india/2022/10/13/hijab-supreme-court-split-verdict.html
AUTHOR:- PRABHSIMAR SINGH, A STUDENT AT UNIVERSITY INSTITUTE OF LAWS,PURC,PANJAB UNIVERSITY