AISHAT SHIFA V. STATE OF KARNATAKA: A CRITICLE ANALYSIS

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

  1. 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.
  2.  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.
  3.  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

AUTHOR:- PRABHSIMAR SINGH, A STUDENT AT UNIVERSITY INSTITUTE OF LAWS,PURC,PANJAB UNIVERSITY

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