Prohibiting Hijab in Educational Institutions Corrected 412364

RESEARCH BRIEF
PROHIBITING HIJAB IN
EDUCATIONAL INSTITUTIONS:
A CONSTITUTIONAL ASSESSMENT
Farrah Ahmed, Mohsin Alam Bhat, Aparna Chandra,
Raunaq Jaiswal, Gauri Pillai, Faiza Rahman, Rishika
Sahgal, John Sebastian and Anup Surendranath
This document was published on 17 March 2022
Contributors – Farrah Ahmed, Mohsin Alam Bhat, Aparna Chandra, Raunaq Jaiswal, Gauri
Pillai, Faiza Rahman, Rishika Sahgal, John Sebastian and Anup Surendranath
Editorial and production assistance - Adrija Ghosh, Kathryn Taylor and Akhil Vasudevan
Available for download at Livelaw
Front Cover Image Credit: Emil Widlund (@emilwidlund) - https://unsplash.com/photos/xrbbXIXAWY0
RESEARCH 2
BRIEF
TABLE OF CONTENTS
INTRODUCTION�� 4
Brief context�� 4
Outline of arguments�� 5
UNLAWFULNESS UNDER ADMINISTRATIVE LAW �� 7
Prohibiting hijab is not a proper purpose with respect to the Karnataka Education Act 1983�� 7
Decision to disallow hijab is based on arbitrary and irrelevant considerations �� 9
Disallowing hijab is ultra vires the act and rules��11
Disallowing hijab is a breach of rules and legitimate expectations �� 12
VIOLATION OF ARTICLE 15�� 14
The GO constitutes direct and indirect discrimination and violates Article 15(1)�� 18
The GO is not saved by Article 15(3)�� 25
VIOLATION OF PRIVACY, DIGNITY, AUTONOMY UNDER ARTICLE 21 AND FREEDOM OF EXPRESSION

UNDER ARTICLE19(1)(a) �� 28
Decisional autonomy is recognised as a key facet of the fundamental right to privacy �� 28
Public expression of choices regarding faith and dress are protected as decisional autonomy under the right
to privacy �� 29
Dignity is recognised as another key basis of the fundamental right to privacy.�� 32
The GO violates the freedom of expression under Article 19(1)(a).......................................................................34
VIOLATION OF THE RIGHT TO EDUCATION UNDER ARTICLE 21 .......................................................................... 36
The right to education under the Indian Constitution is engaged�� 36
The right to education includes equal access to education without arbitrary barriers�� 36
FAILURE TO MEET THE PROPORTIONALITY STANDARD OF JUSTIFICATION .................................................... 38
The GO must be tested according to the standard of

proportionality....................................................................................................................................................... 38
The GO fails the proportionality test .......................................................................................................................39
VIOLATION OF FREEDOM OF RELIGION UNDER ARTICLE 25 ............................................................................... 48
Wearing of the hijab or other religious clothing is protected under Article 25.�� 49
The GO is an illegal restriction of Article 25.�� 53
3 RESEARCH
BRIEF
I. INTRODUCTION
In this research brief, we argue that banning Muslim students from wearing the hijab in educational institutions to access their
education in Karnataka is unlawful and unconstitutional. We present our considered views on the range of issues raised by the
case, from the perspective of academics from India, with research expertise in Indian administrative and constitutional law.
The brief aims to contribute to reasoned deliberations on the matter, both inside and outside the courtroom.
BRIEF CONTEXT
On 28 December 2021, Muslim students were denied entry into the college premises of Pre-University College for Girls, Udupi
City, Udupi, and were barred from attending classes, on the grounds that they were wearing a hijab. It was the stand of the
college that petitioners and other similarly placed students had violated the dress code of the college by wearing a hijab.1
The College Development Committee met on 25.01.2022 and 31.01.2022 where it decided that students should attend classes
wearing the prescribed uniform.2
On 05.02.2022, the Government of Karnataka issued a Government Order (‘GO’) purportedly under s 133(2) of the Karnataka
Education Act 1983. It directed that,
In colleges that fall under the Karnataka Board of Pre-University Education, dress code prescribed by the College
Development Committee or the administrative supervisory committee must be followed. If the administration does not
fix a dress code, clothes that do not threaten equality, unity, and public order must be worn.3
According to media reports, in furtherance of the GO, schools and PU colleges in Karnataka required Muslim girls to remove
their hijab and burqa to attend classes or write exams. Those girls who refused to remove the hijab or burqa were denied entry
to classes and permission to write exams.4 Many Muslim girls reported that they were taken to a separate classroom because
they were wearing a hijab over their school uniform.5
Students of Pre-University College for Girls, Udupi City, Udupi, filed writ petitions 2146 and 2346 before the Karnataka High
Court, challenging the barring of students wearing the hijab from entering the institution to gain access to education. A three-
judge bench of the Karnataka High Court in Resham v. State of Karnataka (‘Resham’)6 dismissed the writ petitions filed by
students and others who challenged the constitutional validity of the GO and other decisions of educational institutions
mentioned above. The Court held that the GO issued by the Government of Karnataka on 05.02.2022 and the actions taken by
various educational institutions prohibiting students wearing the hijab from entering classrooms were valid.7
In doing so, the Court discussed a number of issues. As framed by the Court, the main issues were the following:8
1 Mustafa Plumber, ‘Wearing Hijab Is Fundamental Right Under Art. 14 & 25 Of Constitution, Educational Institutions Can’t Restrict It: Student
Moves Karnataka High Court’ (Livelaw, 31 January 2022) <https://www.livelaw.in/news-updates/karnataka-high-court-muslim-girl-student-hijab-
fundamental-right-muslims-190780> accessed 8 March 2022.
2 Statement of Objections filed on Behalf of the Respondents State in WP Nos 2146/2022 and 2347/2022 , Annexures R3 and R4.
3 Government Order dated 05.02.2022. Translation available <https://www.scobserver.in/journal/karnataka-government-order-on-dress-code-for-

students/> accessed 8 March 2022.
4 ‘‘Can’t give up hijab’: Students, parents in Karnataka stay firm’ Hindustan Times (16 February 2022) <https://www.hindustantimes.com/india-
news/cant-give-up-hijab-students-parents-in-karnataka-stay-firm-101644950084939.html> accessed 27 February 2022; Rushda Fatima Khan,
‘What’s behind the escalating row over hijabs in India?’ Aljazeera (15 February 2022) <https://www.aljazeera.com/news/2022/2/15/what-lies-
beneath-the-indias-hijab-ban-row> accessed 27 February 2022.
5 Khan (n 4).
6 Resham v State of Karnataka (Karnataka High Court, 15 March 2022) Writ Petition No 2347/2022 <https://karnatakajudiciary.kar.nic.in/
judgements/WP2347-2022.pdf> accessed 15 March 2022.
7 ibid 106, 121.
8 ibid 39. The Court also framed a fourth issue, dealing with a prayer in one of the petitions to initiate disciplinary proceedings against college
authorities and to issue a writ of quo warranto. However, this contention was dismissed by Court summarily, noting that the ‘petition is apparently
ill-drafted and pleadings lack cogency and coherence,’ while observing that these prayers could not be granted in lieu of the Court’s discussion
on the other issues. We, hence, do not deal with that issue here. See ibid 125.
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1. Whether wearing hijab/head-scarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the
Constitution?
2. Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter
alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?
3. Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and
further is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?
OUTLINE OF ARGUMENTS
In this research brief, we identify six broad issues emerging in this context, and indicate how these ought to be addressed.
In Section II, we engage with administrative law issues raised by the case. Firstly, we argue that prohibiting the hijab is not a
proper purpose under the Karnataka Education Act 1983. Secondly, we argue that the GO makes false claims about the law and
invokes irrelevant considerations and stereotypes. This action is therefore arbitrary and based on irrelevant considerations
and liable to be struck down for this reason. The action is also unreasonable in the Wednesbury sense as it is unsupported
by reasons which are relevant. Thirdly, we argue that the government has no power under the Karnataka Education Act
1983 to empower the colleges to prohibit students from wearing hijab. The GO, insofar as it purports to do this, is ultra vires
the Karnataka Education Act 1983. Overall, we demonstrate that the prohibition of the hijab in educational institutions in
Karnataka through GO dated 05.02.2022 is unlawful.
In Section III, we engage with the issue of equality and non-discrimination. We argue that the GO violates the prohibition
against discrimination enshrined in Article 15 of the Constitution of India. Firstly, the GO violates the prohibition on direct
discrimination on grounds of religion, and on grounds of religion intersecting with sex, under Article 15(1). While the operative
part of the GO does not mention religion or sex in the context of the dress code, the preamble to the GO, and the admission of
the state in the Court make it explicit that the aim of the GO is to target headscarfs worn by Muslim women. In the alternative,
the operative part of the GO indirectly discriminates on ground of religion and religion intersecting with sex. Even if the GO is
seen as a facially neutral rule because its operative part does not specifically target any specific group and instead applies to
all groups equally, such that students of all groups are required to wear prescribed uniforms, it has a disproportionate impact
on members of a protected group, perpetuates their disadvantage, and thus amounts to indirect discrimination. Lastly, the GO
is not saved by Article 15(3) and cannot otherwise be justified.
In Section IV, we engage with the rights to privacy, decisional autonomy and dignity under Article 21, and the right to freedom
of expression under Article 19(1)(a) of the Indian Constitution. We argue that the prohibition on wearing a hijab and other
religious clothing/symbols within school and pre-university college premises in Karnataka is violative of the fundamental right
to privacy guaranteed under Article 21. Decisional autonomy is a facet of the fundamental right to privacy guaranteed under
Part III of the Constitution, and the prohibition on wearing a hijab and other religious clothing/symbols within school and
pre-university premises in Karnataka violates the decisional autonomy of female Muslim and other students. Moreover, unlike
certain other harms, wearing a hijab or other religious clothing is not an irreversible choice which inhibits the continuance of
an autonomous life. Secondly, we argue that the prohibition on wearing a hijab and other religious clothing/symbols within
school and pre-university premises in Karnataka violates the dignity and privacy of female Muslim and other students. The
banning of the hijab and other religious clothing invades the sanctity of bodily privacy and dignity. To many Muslim women,
the wearing of the hijab in public spaces enhances their dignity by creating a sanctified personal space of the body. Any
prohibition on wearing religious symbols within schools and colleges in Karnataka before and in pursuance of the GO requires
Muslim women to exist in these public spaces without the hijab. Media reports indicate that Muslim women have been required
to disrobe partially or remove their hijab before entering school and college premises.9 Such a requirement by the state to
appear what to the wearer is semi-clothed in public spaces, or to disrobe to an extent before entering schools and colleges,
can trigger personal humiliation and indignity and invades the basic guarantee of privacy of the body. It interferes in an area
of extremely intimate personal choice. The same applies to persons of other religions to whom being forced to take off their
religious symbols is an act of deep personal and religious humiliation. In addition, we argue that the GO unreasonably curtails
9 The Wire Staff, ‘Staff, Students Asked To Remove Hijab At Gates As Karnataka Schools Reopen’ The Wire (New Delhi, 14 February 2022)
<https://thewire.in/women/staff-students-asked-to-remove-hijab-at-gates-as-karnataka-schools-reopen> accessed 1 March 2022.
5 RESEARCH
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the right to express oneself through clothing. Non-verbal forms of expression of identity, including clothing, such as the hijab,
stand protected under Article 19(1)(a) which guarantees the freedom of expression.
In Section V, we engage with the right to education under Article 21 of the Constitution. We argue that the GO violates the
right to education of Muslim students being barred from attending classes and giving exams unless they remove the hijab.
The Supreme Court has emphasised equal access to education for all, and the removal of arbitrary barriers to education. The
GO denies equal access to education for Muslim students desirous of wearing the hijab, and puts in place arbitrary barriers to
access education.
The right against discrimination on grounds of religion and sex, the right to privacy, autonomy, and education can all be
validly restricted if the restriction meets the test of proportionality. In Section VI, we indicate that the GO does not meet the
requirements of the proportionality test. The state identified four purposes for the GO: (1) maintenance of public order, (2)
securing equality, (3) maintenance of unity, and (4) maintenance of discipline in educational institutions. Although these are
legitimate aims, the GO is not suitable in pursuing these aims, nor necessary to pursue the said aims.
It is unclear how prescribing a dress code furthers the maintenance of public order. The GO conflates equality with the pursuit
of uniformity. The vision of equality enshrined in the Indian Constitution eschews such formal or abstract equality in favour
of substantive equality that accounts for difference in people’s circumstances. Moreover, in practice, the GO does not restrict
other religious attire from being worn in schools, including turbans and kadas by Sikhs, religious threads by Hindus or the
cross by Christians, etc. The GO thereby only pays lip-service to even its limited understanding of equality as sameness, and
discriminates against Muslim girls desirious of wearing the hijab. The understanding of unity in the Indian context includes
respect for pluralism and diversity. It does not seek to impose uniformity or homogeneity on a diverse social reality, but finds
strength in the confluence of heterogeneous traditions, practices, thoughts and beliefs. The state has failed to demonstrate
that the GO furthers this conception of unity. Lastly, the GO is not suitable for imparting quality education. The Government of
India’s New Education Policy, 2020 recognises that a caring and inclusive culture in schools is essential for effective learning,
and studies also indicate the importance of diversity to promote educational attainments. By requiring Muslim students to
remove their hijab before entering the classroom, the GO helps perpetuate stigma, humiliation and discrimination rather than
a caring, inclusive and diverse environment to facilitate learning.
In Section VII, we engage with the issue of freedom of religion under Article 25 of the Indian Constitution. We argue that the
wearing of the hijab or other religious clothing is protected under Article 25. The practice of wearing hijab is a legitimate
understanding of an essential religious practice in Islam, falling within the ambit of Article 25. Alternate (stricter) interpretations
of the essential religious practices test are unwarranted or inappropriate because (a) the test has usually been applied in cases
of religious or social reform, which is not pertinent here, and (b) the Court must provide constitutionally appropriate protection
to religious freedom. Moreover, the practice of wearing hijab in the present case is based on a sincerely held religious belief,
and such practices are protected under Article 25.
We also indicate that the GO is an illegal restriction of Article 25, because it is not justified by secularism under the Indian
Constitution, and in fact violates the constitutional requirement of equal respect, accommodation and neutrality of religious
practices. The GO is not justified on the constitutionally specified grounds of public health, morality and order. The rule and its
application violates the constitutional requirement of equality of religious freedom, and selectively targets religious practices
of some communities or persons.
Throughout our discussion, we also discuss the extent to which the Karnataka High Court in Resham complies with constitutional
principles and Supreme Court precedent.
RESEARCH 6
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II. UNLAWFULNESS UNDER ADMINISTRATIVE LAW
Statement of Issues:
A. Is the prohibition of hijab a proper purpose with respect to the Karnataka Education Act 1983?
B. Does the decision to disallow hijab meet the requirements of non-arbitrariness and relevant considerations?
C. Do the Karnataka Education Act 1983 or Rules authorize the prohibition of hijab?
D. Have notice requirements been met?
Discussion of Issues:
A. Prohibiting hijab is not a proper purpose with respect to the Karnataka Education Act 1983
It is an elementary principle of administrative law that the Government and colleges may not exercise any power or discretion
granted to them by the Karnataka Education Act 1983 (‘the Act’) in a way that is not aligned with the purpose of the Act. The
purposes of the Act are to be discerned from a contextual reading of all its provisions. The Act aims to regulate education in
the State in a way that is secular, inclusive of all communities, sensitive to religious and other difference, accommodating of
religious and other difference, solicitious of the special needs of weaker sections of society and absolutely opposed to religious
discrimination and “any propaganda or practice wounding the religious feelings of any class of citizens”.10 The actions of the
colleges and government are in direct conflict with these purposes.
1. Purpose - secularism
The Act states that all regulation relating to discipline and standards aims at “cultivating a …secular outlook through
education”.11 Decades of Indian case law on secularism emphasises that secularism entails a respect for religion, a disavowal
of any anti-religious state position, the preservation of India’s ‘composite culture’12 and demonstrates concern for religious
communities and individuals (particularly minorities), and supports the equal public presence of religion.13 The Act’s aim to
further secularism as understood in the Indian Constitution is also evident in the other provisions of the Act discussed further.
(For example, Section 7 (2 ) (vi) anticipates the Government prescribing curricula in respect of fundamental duties including
to ‘value and preserve the rich heritage of our composite culture’). In failing to show respect for the practices of religious
minorities and valuing our composite culture, the government and colleges act contrary to the stated purpose of the Act.
The government’s use of secularism in defence of its actions are based on a misunderstanding of secularism in the Indian
constitution, as opposed to laicite in the French Constitution. Critics of French secularism argue that it enables the exclusion,
marginalisation and ‘othering’ of religious minorities by casting majority religious practices as national cultural practices, and
then sanitising the public sphere from (minority) religious influences.14 The French and Quebecois bans on religious symbols,
mostly affecting religious minorities, are often cited as examples of this feature of secularism. 15 Indian constitutional secularism
differs dramatically from these other models of secularism (e.g. the US and French models). It does not require the sanitising
of the public sphere from religious influence and rather is “celebratory”16 of religious diversity, unlike some other models of
10 Karnataka Education Act 1983, s 39.
11 Karnataka Education Act 1983, Statement of Objects and Reasons.
12 SR Bommai v Union of India (1994) AIR 1918 [28] (Ahmadi J), [88] (Verma J), [114] (Ramaswamy J).
13 Rajeev Bhargava, ‘Can Secularism Be Rehabilitated?’ in B.J. Berman, R. Bhargava & A. Laliberté (eds), Secular States and Religious Diversity
(2013) 69; Rajeev Bhargava, ‘Political Secularism: Why It Is Needed and What Can Be Learnt from Its Indian Version’, in G.B. Levey & T.
Modood (eds), Secularism, Religion, and Multicultural Citizenship (2009) 82.
14 Wendy Brown, ‘Civilizational Delusions: Secularism, Tolerance, Equality’ (2012) 15 Theory & Event; Lori G. Beaman, ‘Battles over Symbols: The
“Religion” of the Minority Versus the “Culture” Of the Majority’, (2015) 28 J. L. & Religion 67; Hussein Ali Agrama, ‘Sovereign Power and Secular
Indeterminacy: Is Egypt a Secular or a Religious State?’ Winnifred Fallers Sullivan & Mateo Taussig-Rubbo (eds) After Secular Law (2011).
15 Peter G. Danchin, ‘Islam in the Secular Nomos of the European Court of Human Rights’ (2011) 32 Mich. J. Int’l L. 663.
16 Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’
in BN Kirpal (ed), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP 2000) 258.
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secularism. The celebratory nature of Indian secularism - and its inclusiveness of religious dress - is demonstrated by the
specific protection offered to the carrying and wearing of the Sikh kirpan under Section 25 of the Constitution. We discuss the
nature of Indian secularism further in Section VII.
The government’s appeal to secularism in defence of its action is deeply flawed insofar as it conflicts with the conception of
secularism in the Indian Constitution.
2. Purpose – education for the disadvantaged
Section 5 of the Act shows special concern for weaker sections of society (which includes the young women affected by the
college and government actions) and directs the state to promote their education. Section 5 reads:
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 sections thereof and in particular of the Scheduled Castes, Scheduled Tribes with special care by
adopting towards that end such measure as may be appropriate.
The state and college’s actions which create obstacles to the education of girls and women wearing hijab, particularly Muslim
girls and women, brazenly contradicts the Act’s directive to promote their education.
3. Purpose – respect, inclusion and accommodation of diverse religious views and practices
Section 39 of the Act indicates that the Act aims for educational environments to be tolerant, sensitive, welcoming and inclusive
of all religious practices and views:
39. Withdrawal of recognition.- (1) Where any local authority or the Governing Council of any private educational
institution,-
(c) directly or indirectly encourages in the educational institution any propaganda or practice wounding the religious
feelings of any class of citizens of
… the competent authority may, for reasons to be recorded in writing, withdraw the recognition of the institution….
The actions of the colleges clearly amount to practices which wound the religious feelings of Muslim citizens. The Government
Order dated 05.02.2022 (‘GO’) is propaganda that wounds the religious feelings of Muslim citizens by singling out and
denouncing a religious practice and mischaracterising the position of the Courts on the practice:
However, it has come to the notice of the Department of Education that in some institutions, students are following
practises as per their religion, which is adversely affecting equality in such schools and colleges…
As the Supreme Court and various High Courts have held that restricting students from coming to school wearing head
scarfs or head covering is not in violation of Article 25 of the Constitution, and after carefully examining the rules under
Karnataka Education Act 1983, the government issues the following Order…17
The government has admitted as much as it accepted that the rhetoric in the GO was over -‘enthusiastic’18 and unnecessary.
The Act’s purposes also include regulating colleges in a way that makes accommodation for religious views and practices.
This is indicated by Section 15 (b) which, for instance, makes allowances for children to be excused from attendance from a
school in which “religious instruction of a nature not approved by his parent is compulsory.” The GO, on the other hand, has
as a stated purpose: the prohibition of a minority religious practice (hijab). This is an improper purpose, which makes the GO
unlawful.
Moreover, the actions of the colleges, under the supposed authority of the GO, are contrary to the Acts’ purposes of creating an
educational environment tolerant, sensitive, welcoming and inclusive of all religious practices and views.
17 Government Order dated 05.02.2022.
18 Oral arguments.
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4. Purpose- non-discriminatory access to education
Section 39 of the Act indicates that the Act aims for non-discriminatory access to education, while the actions of the government
and colleges thwart this purpose by discriminating against Muslim girls and women who wear hijab:
39. Withdrawal of recognition.- (1) Where any local authority or the Governing Council of any private educational
institution,-
(b) denies admission to any citizen on ground of religion, race, caste, language or any of them;
… the competent authority may, for reasons to be recorded in writing, withdraw the recognition of the institution…
B. Decision to Disallow Hijab is Based on Arbitrary and Irrelevant Considerations19
Ever since EP Royappa v State of Tamil Nadu,20 Article 14 has been understood to include protections from arbitrary state
action. The test for arbitrariness has never been explicitly stated, but can be discerned from close reading of Supreme Court
cases.
First, arbitrary decision-making has something to do with how the decision-maker relates to the normative reasons that
apply to the decision. The Supreme Court consistently connects arbitrariness to unreasonableness, irrationality and a lack of
principled justification.21
Secondly, there is a common intuition that power is arbitrary to the extent you can use it at your whim or fancy. The
Supreme Court repeatedly appeals to this intuition when it says that the legislature or executive acts arbitrarily when it acts
“capriciously”,22 “whimsically”23 or “at pleasure”.24 One aspect of caprice is that the decision-maker acts according to his or her
will or wish. So, an arbitrary decision may not be – usually will not be – completely random. Instead the decision is made based
on the private wish, desire, prejudices, animus, hatred, financial or personal interests of the decision-maker, rather than the
(true) reasons (e.g. public interest) that should be the basis of a decision.
Thirdly, and relatedly, an arbitrary decision – in the context of state action – will often take the form of a colourable exercise of
power. That is the decision will be clothed in pretextual reasons which hide the real motivations of the decision-maker. Thus,
as the Supreme Court has acknowledged in a different context,25 a decision-maker making an illegitimate decision typically
has to ‘cloak’26 or ‘veil’27 her motivating reasons with purported reasons28 which are “a mere pretense or disguise”29 so that the
decision appears legitimate.
Putting this all together, we can say roughly30:
19 Farrah Ahmed, ‘Arbitrariness, Subordination and Unequal Citizenship’ (2020) 4(2) Indian Law Review 121-137.
20 AIR 1974 SC 555.
21 Shayara Bano v Union of India (2017) 9 SCC 1 [281] – [282]; Navtej Singh Johar v Union of India AIR 2018 SC 4321.
22 Navtej Singh Johar (n 21) [238] (Dipak Misra CJ for himself and Khanwilkar J); Shayara Bano (n 12) [284].
23 Shayara Bano (n 21) [284].
24 Shayara Bano (n 21); Navtej Singh Johar (n 21) [379] (Chandrachud J).
25 The doctrine of colourable legislation is discussed below.
26 Jagannath Baksh Singh v The State of Uttar Pradesh AIR 1962 SC 1563 [22] (Gajendragadkar J’s judgement for language of ‘device and cloak’).
27 KC Gajapati Narayan Deo v The State of Orissa AIR 1953 SC 375 [9].
28 ibid, discussing “a statute purported to act within the limits of its powers, yet in substance and in reality, it transgressed these powers.”
29 ibid.
30 For a more precise formulation, see Farrah Ahmed (n 19).
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a. First, a decision might be arbitrary when the decision-maker is indifferent to the true reasons that apply for or
against a particular decision. For instance, if a decision-maker decides and justifies her decision by picking (at
random, by the roll of the dice) a legal argument in one of the briefs, her decision is arbitrary in this way.
b. A second way a decision might be arbitrary is when the decision-maker knows or believes that the purported
reasons for a decision do not really justify the decision, but she makes the decision anyway. For instance, if a
decision-maker, decides on a dress code policy that stirs up communal hatred for political reasons, instead of the
dress code policy that is justified, then his decision is also arbitrary
We can say a decision is arbitrary if there is no credible way to make sense of it without attributing to the decision-maker:
• Indifference to the true reasons that apply to questions addressed by the decisions or
• Belief or knowledge that the purported reasons for the legal provision do not really justify it
On this criteria, the government’s actions are clearly arbitrary. It bases its directive on a discussion of Supreme Court and High
Court cases:
As the Supreme Court and various High Courts have held that restricting students from coming to school wearing
head scarfs or head covering is not in violation of Article 25 of the Constitution, and after carefully examining the
rules under Karnataka Education Act 1983, the government issues the following Order:
In exercise of the powers conferred under Section 133(2) of the Karnataka Education Act, 1983, we direct students of all
government schools to wear the uniform fixed by the state. Students of private schools may wear uniforms prescribed
by the management committees of the school.
In colleges that fall under the Karnataka Board of Pre-University Education, dress code prescribed by the College
Development Committee or the administrative supervisory committee must be followed. If the administration does not
fix a dress code, clothes that do not threaten equality, unity, and public order must be worn.31
The directive mischaracterises the cases cited, some of which have nothing to do with the issue at hand, or are distinguishable
from the facts at hand.
There are references in the GO to public order, unity and equality, which are implied to justify the disallowance of hijab. But the
GO offers no real justification beyond extreme and stereotypical assumptions about the significance of hijab.
The GO further justifies its directive based on the fact 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.” As the discussion on purposes
above should make clear, the assumption that students’ religious practices should be curtailed goes against the inclusive and
secular purposes of the Act and is a wholly irrelevant consideration.
Given the false claims about the law, irrelevant considerations and stereotypes invoked by the GO, there is no credible way
to make sense of the GO unless we understand the government action as a colourable exercise of power, using the supposed
justifications in the GO to cloak instead the stereotypes, prejudices or political interest (all irrelevant considerations) on which
the decision was actually made.
This government action is therefore arbitrary and based on irrelevant considerations and liable to be struck down for this
reason. The action is also unreasonable in the Wednesbury sense as it is unsupported by reasons which are relevant.
While the government claimed in oral arguments that the GO was innocuous, and of very limited effect, the legal validity of the
GO is to be judged by the following principle laid down by a Supreme Court constitutional bench:
…when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds
later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: “Public orders,
31 Government Order dated 05.02.2022
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publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given
by the officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders
made by public authorities are meant to have public effect and are intended to effect the actions and conduct of those
to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
Orders are not like old wine becoming better as they grow older.32
C. Disallowing hijab is ultra vires the Act and Rules
Every action of the government, colleges and associated bodies (such as the college development committees) must be
authorised by law. Section 6 of the Act reads:
Educational institutions to be in accordance with this Act.- No educational institution shall be established or maintained
otherwise than in accordance with the provisions of this Act or the rules made thereunder.
Actions of the government and relevant colleges and associated bodies (hereinafter ‘colleges’) must therefore be authorized
by this Act.
The government has already conceded that the GO, purportedly made by exercise of its power to make directions under section
133(2) of the Karnataka Education Act 1983, does not of itself prohibit the wearing of a hijab in colleges. The Government
argues that the GO empowers the colleges to prohibit students from wearing hijab.
However, the government has no power under the Karnataka Education Act 1983 to empower the colleges to prohibit students
from wearing hijab. The GO, insofar as it purports to do this, is ultra vires the Karnataka Education Act 1983.
The government relies on Section 133 (2) as the basis of the GO; this section reads:
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.
Prohibiting students from wearing hijab (or empowering colleges to do so) is not plausibly necessary or expedient for giving
effect to the purposes or provisions of the Act, as already discussed.
Nor can prohibiting students from wearing hijab (or empowering colleges to do so) be plausibly necessary or expedient for
giving effect to the provisions of rules or orders (validly) made under the Act. The rule-making power under the Act states:
S 145. Power to make rules.- (1) The State Government may, by notification and after previous publication, make rules
to carry out the purposes of this Act.
Since disallowing hijab is an improper purpose with respect to the Act, and cannot be said to be required to carry out the
purposes of this Act, no rule or order disallowing students from wearing hijab would be valid.
In any case, prohibiting students from wearing hijab (or empowering colleges to do so) cannot be plausibly necessary or
expedient for giving effect to the specific Rule to which the government refers to justify the GO.
The government claims that the Government Order dated 05.02.2022 is necessary or expedient for carrying out the purposes
of the Karnataka Educational Institutions Rules 1995, particularly Rule 11 which empowers recognized educational institutions
to specify its own uniforms.
11. Provision of Uniform, Clothing, Text Books etc.
1. Every recognized educational institution may specify its own set of Uniform. Such uniform once specified shall not
be changed within the period of next five years
32 Mohinder Singh Gill v The Chief Election Commissioner 1978 AIR 851.
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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,
shall be at the option of the student or his parent. The school authorities shall make no compulsion in this regard,
However, the Rule merely grants educational institutions the discretion to specify uniforms, under certain conditions. There
is no evidence that the colleges in question had specified a uniform which disallowed the wearing of hijab. The only evidence
offered by the government are photographs of college students during ceremonial days and of official class photographs.
Rule 11 gives educational institutions the discretion to mandate uniforms, but only if they are specified. No uniform which
disallows hijab has been specified.
Even assuming without accepting that a Rule disallowing hijab (or empowering colleges to do so ) could be validly made
under the Act, the government cannot base the purported power of colleges to prohibit hijab on the Karnataka Educational
Institutions Rules 1995.
D. Disallowing Hijab is a Breach of Rules and Legitimate Expectations
Without prejudice to the discussion above, assuming without accepting that the college could validly disallow hijab, it cannot
do so without giving adequate notice.
Rule 11 requires:
(a) The uniform is not to be changed within a five year period
(b) Notice of a year should be issued to parents if the uniform is to be changed
Moreover, any change in the colleges’ practice of allowing hijab without adequate reasons, notice and hearing of those affected
would also breach the legitimate expectations of the parents and students. 33
The Supreme Court has endorsed the views of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service
(1985) AC 374 to the effect:
…the doctrine of “legitimate expectation” can be invoked if the decision which is challenged in the Court has some
person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in
private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted
by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has
been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to
comment; or (ii) he had received assurance from the decision-maker that it will not be withdrawn without giving him
first an opportunity of advancing reasons for contending that it should not be withdrawn.34
CONCLUSION
In Resham, the Karnataka High Court concluded that the government and educational institutions were competent to pass
the impugned orders prescribing dress codes under the Karnataka Education Act, 198335. Specifically, the Court held that
the power to prescribe school uniforms stems from Sections 7 and 133 of the 1983 Act and also Rule 11 of the 1995 Curricula
Rules (issued under the 1983 Act). The Court held that a combined reading of the 1983 Act and 1995 Karnataka Educational
Institutions Rules allows for the power to prescribe uniforms.36 Further, the Court held that Section 133(2) of the Act empowers
33 National Buildings Construction Corporation v Raghunathan AIR 1998 SC 2779 [18]- [21]; Navjyoti Coop. Group Housing Society and others v Union
of India and others (1992) 4 SCC 477.
34 ibid.
35 Resham (n 6) 121.
36 ibid 91.
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the government to issue directions to educational institutions in order to carry out the purposes of the Act and that such
conferment of power includes the power to prescribe a dress code.
However, it was no one’s argument that the government or educational institutions lacked the power to prescribe uniforms
in general. Rather the question was whether they could lawfully proscribe the wearing of hijab in educational institutions
(including via a uniform policy which does not accommodate hijab). The judgement acknowledges this more precise question
at points, including in the summary of the petitioners’ arguments, however its reasoning is primarily directed to the question
of the lawfulness of a uniform policy in general. The analysis offered in this section differs from the judgement, in large part,
due to its sustained focus on the more precisely-formulated question.
The contention that the GO suffered from non-application of mind was also dismissed by the Court. The Court was also of the
view that the use of the phrase ‘public order’ in the Government Order cannot be invoked as a reason to invalidate it. It held
that the meaning of phrases like ‘public order’ in documents like Government Orders cannot be attributed the same meaning
as when it is used in the Constitution and legislations. As a result, the Court takes the position that the GO cannot be read to
suggest that the government was claiming a link between wearing the hijab and ‘law and order’.
In contrast with the court’s general comments on the administrative law issues in part XVI of the judgement, the analysis
undertaken in this section involved a detailed contextual reading of the relevant Act to discern its purposes, and a careful
juxtaposition of those purposes with the impugned actions. It concludes that the prohibition of hijab (including by way of a
uniform policy) is not a proper purpose given the provisions and context of the Act. The section considers the Act and relevant
Rules that, in the Court’s view, made the State Government and educational institutions competent to issue the various orders
prescribing dress codes and prohibiting hijabs. Contrary to the Court, we argue that prohibiting the wearing of the hijab
(contrasted against the broader power to prescribe uniforms) in question is ultra vires, as it does not meet the precondition for
such orders in Section 133 (2) of the Act of being plausibly necessary or expedient for giving effect to the purposes or provisions
of the Act or (valid) Rules.
The judgment conflated arbitrariness and discrimination, finding that ‘there is absolutely no scope for complaint when the
dress code is equally applicable to all the students, regardless of religion, language, gender or the like.’37 By contrast, this
section lays out a test for arbitrariness based on Supreme Court jurisprudence, applies it to the GO and concludes that
the GO is arbitrary, unreasonable and based on irrelevant considerations.
37 Part XIV (iv).
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III. VIOLATION OF ARTICLE 15
A. Does the Government Order (‘GO’) dated 05.02.2022 violate Article 15?
1. Does the GO directly discriminate on grounds of religion and religion intersecting with sex?
2. Does the GO indirectly discriminate on ground of religion and religion intersecting with sex?
3. Is the GO saved by Article 15(3)?
4. Is the indirect discrimination justified?
Relevant Constitutional Provisions:
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.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them
2. …
3. Nothing in this article shall prevent the State from making any special provision for women and children
Discussion of issues:
A. Equality and Non-Discrimination under the Indian Constitution
The Constitution of India guarantees equality before the law and equal protection of the laws.38 It prohibits discrimination on
certain grounds including religion and sex.39 The Constitution specifically prohibits discrimination in admission to educational
institutions on grounds of religion.40
1. The Constitution of India conceives of equality in substantive, not formal terms
As the Supreme Court of India has recognized, the conception of equality contained in the Constitution of India is that of
substantive not formal equality. Formal equality requires that all are treated the same regardless of their circumstances. Under
this conception, “law treats everyone equal and does not favour anyone either because he belongs to the advantaged section
of the society or to the disadvantaged section of the society.”41 Formal equality is reflected in Anatole France’s oft-quoted
statement that “[t]he law, in its majestic equality, prohibits the rich and the poor alike from sleeping under bridges, begging
in the streets and stealing bread.”42
The Supreme Court has stated that “[u]nder the formal and symmetric conception of antidiscrimination law, all that the
law requires is that likes be treated alike. Equality, under this conception, has no substantive underpinnings. It is premised
on the notion that fairness demands consistency in treatment. Under this analysis, the fact that some protected groups are
disproportionately and adversely impacted by the operation of the concerned law or its practice, makes no difference.”43
38 Constitution of India 1950, art 14.
39 Constitution of India 1950, art 15(1).
41 M. Nagraj v. Union of India (2006) 8 SCC 212.
42 Lt. Col. Nitisha v Union of India AIR 2021 SC 1797 (‘Nitisha’).
43 ibid.
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However, the Supreme Court has recognized that such “[a]bstract equality is neither the theme nor philosophy of our
Constitution. Real equality through practical means is the avowed objective. … [P]rinciple of the equal protection of law does
not mean that, ‘every law must have universal application to all persons who are not by nature, attainment or circumstance,
in the same position’ [Dhirendra Kumar Mandal v. Govt. of West Bengal, AIR 1954 SC 424] and the varying needs of different
classes of persons require special treatment.”44
In Joseph Shine v. Union of India,45 while striking down Section 497, Indian Penal Code, 1860, the Supreme Court held that such
a “formal notion of equality … is contrary to the constitutional vision of a just social order.”46 Instead, the Court understood the
Constitution as espousing a substantive conception of equality. According to the Court:
In consonance with constitutional morality, substantive equality is ‘directed at eliminating individual, institutional
and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social,
economic, political and cultural participation in society.’ To move away from a formalistic notion of equality which
disregards social realities, the Court must take into account the impact of the rule or provision in the lives of
citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is
to determine whether the provision contributes to the subordination of a disadvantaged group of individuals.47
In keeping with this understanding, the Supreme Court has stated that “[a]s our constitutional jurisprudence has evolved, the
realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its
formal underpinnings to its substantive potential.”48
Taken together, the dicta of the Supreme Court understand equality as requiring more than a “one size fits all” approach.
Rather, the conception of equality espoused in the Constitution of India requires a sensitivity to context and differential
treatment in order to achieve “equality of results.”49
The imposition of a dress code that seeks to secure “uniformity” across the board without accounting for religious differences
has to be evaluated in the context of this overarching conception of substantive equality that undergirds the Indian Constitution.
2. Article 15 (1) prohibits discrimination “on grounds only of religion, … sex … or any of them.”
a. Impact of the impugned law and not its object, is the relevant factor in deciding whether a law
violates Article 15 (1).
Article 15 (1) specifically prohibits discrimination on grounds only of religion, race, caste, sex, place of birth or any of them’
(emphasis added). In determining whether a law is discriminatory or not, the Court is required to examine the impact of the law
and not its objective. In this context, the Supreme Court has cited with approval, the decision of the Privy Council interpreting
Section 298, Government of India Act, 1935, which provided that “No subject of His Majesty domiciled in India shall on grounds
only of religion, place of birth, descent, colour or any of them be ineligible for office under the Crown in India, or be prohibited
on any such by reason from acquiring, holding or disposing of property, or carrying on any occupation, trade, business or
profession in British India.” In interpreting this provision, the Privy Council held that
“…it is not a question of whether the impugned Act is based only on one or more of the grounds specified
in section 298 sub-section (1), but whether its operation may result in a prohibition only on these grounds. The
proper test as to whether there is a contravention of the sub-section is to ascertain the reaction of the impugned Act
on the personal right conferred by the subsection, and, while the scope and object of the Act may be of assistance in
determining the effect of the operation of the Act, on a proper construction of its provisions, if the effect of the Act so
determined involves an infringement of such personal right, the object of the Act, however laudable, will not
44 Indra Sawhney v. Union of India AIR 1993 SC 477.
45 Joseph Shine v Union of India (2019 ) 3 SCC 39.
46 ibid.
47 ibid.
48 B. K. Pavitra v. Union of India (2019) 16 SCC 129.
49 State of Kerala v N.M. Thomas (1976) 2 SCC 310 [75] (Mathew J. concurring); Indra Sawhney (n 44) [741] (Reddy J. plurality).
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obviate the prohibition of sub-section.”50
The Supreme Court cited this observation with approval in State of Bombay v. Bombay Education Society,51 and interpreted
Article 29 (2) as prohibiting state actions that while laudatory in objective, had the impact of denying the right under Article
29 (2) on a prohibited ground. In the facts of the case, the impugned order prohibited English medium schools from admitting
students other than those whose mother tongue was English. The Supreme Court struck this provision down for violating the
Article 29 (2) prohibition on grounds of language, and stated that
“Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil
is not English. …. [T]he laudable object of the impugned order does not obviate the prohibition of article 29(2) because
the effect of the order involves an infringement of this fundamental right, and that effect is brought about by denying
admission only on the ground of language.”
Applying a similar reasoning to Article 15 (1), in Navtej Johar v. Union of India,52 the Supreme Court held that:
When the constitutionality of a law is challenged on the ground that it violates the guarantees in Part III of the
Constitution, what is determinative is its effect on the infringement of fundamental rights. …. It is not the object of
the law which impairs the rights of the citizens. Nor is the form of the action taken determinative of the protection that
can be claimed. It is the effect of the law upon the fundamental right which calls the courts to step in and remedy the
violation. The individual is aggrieved because the law hurts. The hurt to the individual is measured by the violation of a
protected right. Hence, while assessing whether a law infringes a fundamental right, it is not the intention of the
lawmaker that is determinative, but whether the effect or operation of the law infringes fundamental rights.
A provision challenged as being ultra vires the prohibition of discrimination on the grounds only of sex under
Article 15(1) is to be assessed not by the objects of the state in enacting it, but by the effect that the provision has
on affected individuals and on their fundamental rights.
Hence, in deciding the validity of the GO, it is not enough for the state to show that its objective behind bringing in the law is
laudatory. The state must show that the law does not have the effect of discriminating on prohibited grounds, regardless of
how well-motivated the GO is.
As we argue below, whatever its objectives, the GO discriminates against Muslim girls which attracts the prohibition in Article
15 (1) of the Constitution. Such discrimination is not otherwise justified.
b. Article 15 (1) prohibits intersectional discrimination on grounds of religion intersecting with

sex.
In Air India v Nergesh Meerza,53 the Supreme Court read Article 15(1) as prohibiting discrimination on a single ground alone, by
placing emphasis on the word ‘only’ within the provision: ‘what Articles 15(1) and 16(2) prohibit is that discrimination should
not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making
discrimination on the ground of sex coupled with other considerations’.54 This would place intersectional discrimination—
occurring through an intersection of two or more grounds—outside the scope of Article 15(1).
Chandrachud J’s concurring opinion in Navtej Johar set aside the Nergesh Meerza reading of Article 15(1):
This formalistic interpretation of Article 15 would render the constitutional guarantee against discrimination
meaningless. For it would allow the State to claim that the discrimination was based on sex and another ground (‘Sex
plus’) and hence outside the ambit of Article 15. This narrow view of Article 15 strips the prohibition on discrimination
of its essential content. This fails to take into account the intersectional nature of sex discrimination, which cannot be
50 Punjab Province v Daulat Singh AIR 1946 PC 66.
51 AIR 1954 SC 561.
52 Navtej Singh Johar (n 21)
53 Air India v Nergesh Meerza AIR 1989 SC 1829 (‘Nergesh Meerza’).
54 ibid [70] (emphasis added).
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said to operate in isolation of other identities.55
Instead, Chandrachud J endorsed an ‘intersectional understanding of how discrimination operates. This infuses Article 15 with
true rigour to give it a complete constitutional dimension in prohibiting discrimination’.56
The understanding of intersectional discrimination was further developed by the Supreme Court in Patan Jamal Vali v State
of Andhra Pradesh.57 The case did not directly involve Article 15; it was a case of gender-based violence against a disabled,
Dalit woman. However, the Court’s observations on intersectional discrimination are instructive in its conceptual development
within Indian jurisprudence.
In Patan Jamal, the Supreme Court defined intersectionality as ‘a form of oppression [that] arises out of the combination of
various oppressions which, together, produce something unique and distinct from any one form of discrimination standing
alone’.58 The Court clarified that intersectionality does not simply see ‘caste, religion, class, disability and sexual orientation
as merely “add ons” to the oppression that women may face’. This would assume gender is similarly oppressive for all women,
only more so for women belonging to marginalised groups. Instead, ‘an intersectional analysis requires us to consider the
distinct experience of a sub-set of women who exist at an intersection of varied identities’.59 It thus ‘requires an exposition of
reality that corresponds more accurately with how social inequalities are experienced’.60
The Court then translated intersectionality into the language of discrimination law. The Court identified that ‘When the identity
of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and
discrimination due to two or more grounds’. This is due to the ‘interlocking of different relationships of power at play’.61 In
such a situation, single-axis approach to discrimination makes ‘invisible such minority experiences within a broader group
since it formulates identity as “totemic” and “homogenous”’.62 Further, when discrimination is intersectional, the ‘evidence of
discrete discrimination on a specific ground may be absent or difficult to prove’. The petitioner’s claim will then fail because
‘they are not able to simplify their story to accord with the dominant understanding of how discrimination or violence on the
basis of a given characteristic occurs’.63 It therefore becomes ‘imperative to use an intersectional lens to evaluate how multiple
sources of oppression operate cumulatively to produce a specific experience of subordination’.64 The Court also explicitly
identified that ‘[i]n India, the fundamental guarantees under the Constitution provide for such a holistic analysis of
discrimination faced by individuals’.65
Reading Navtej Johar and Patan Jamal together, it is clear that Article 15(1) extends to claims of intersectional discrimination.
Allowing claims of discrimination on an intersection of multiple listed (or analogous grounds) also gives proper effect to the
phrase ‘or any of them’ at the end of Article 15(1).66 Religion and sex are listed grounds under Article 15(1). Article 15(1) therefore
prohibits discrimination on grounds of religion intersecting with sex.
55 Navtej Singh Johar (n 21) [388] (Chandrachud J. concurring opinion).
56 ibid [393].
57 Patan Jamal Vali v State of Andhra Pradesh AIR 2021 SC 2190.
60 ibid [18].
62 ibid [14].
63 ibid [14].
66 Shreya Atrey, ‘Through the Looking Glass of Intersectionality: Making Sense of Indian Discrimination Jurisprudence under Article 15’ (2016)
Equal Rights Review 16.
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c. Article 15 (1) prohibits direct as well as indirect discrimination. The GO violates both prohibitions.
i. The GO violates the prohibition on direct discrimination on grounds of religion, and on

grounds of religion intersecting with sex under Article 15 (1).
Article 15 (1) prohibits the state from discriminating against a citizen on “grounds only of religion, …. sex, or any of them.”
This prohibition of discrimination interdicts direct as well as indirect discrimination. Direct discrimination refers to explicitly
classifying between persons on a prohibited ground.67 Thus, as the Supreme Court has noted, in direct discrimination, “the
discriminator explicitly relies on a suspect classification (prohibited ground of discrimination) to act in a certain way. Such
classification serves as an essential premise of the discriminator’s reasoning.”68 Indirect discrimination, discussed in greater
detail below, refers to a facially neutral provision that nonetheless has a disproportionate impact along prohibited grounds.
The GO violates the prohibition on direct discrimination on grounds of religion, and on grounds of religion intersecting with
sex. While the operative part of the GO does not mention religion or sex in the context of the dress code, the preamble to the
GO makes it explicit that the aim of the GO is to target headscarfs worn by Muslim women. The GO states that it has been
promulgated in response to the concern that “in some institutions, students are following practises as per their religion,
which is adversely affecting equality in such schools and colleges.”69 The GO then goes on to state (wrongly) that “As the
Supreme Court and various High Courts have held that restricting students from coming to school wearing head scarfs or
head covering is not in violation of Article 25 of the Constitution…”70 Thus the concern of the government in promulgating
the GO is the headscarf or head covering worn as part of religious attire. As such, the GO is expressly targeted at persons
belonging to religions that mandate the wearing of headscarves and head coverings as part of their attire. On its face, this
would include Muslims wearing the hijab or skull caps, and Sikhs wearing turbans, amongst others.
It could be argued that a measure that targets persons belonging to religions that expect head coverings is not discrimination
“on grounds only of religion.” Rather, this measure is based on grounds of religion plus attire since members of such religions
who do not choose to wear head coverings are not being discriminated against. This position is not in consonance with the
Supreme Court’s interpretation of the guarantee under Article 15 (1). In the context of sex discrimination under Article 15 (1),
the Court has stated in Navtej Johar v. Union of India,71 that
This formalistic interpretation of Article 15 would render the constitutional guarantee against discrimination
meaningless. For it would allow the State to claim that the discrimination was based on sex and another ground (‘Sex
plus’) and hence outside the ambit of Article 15. … This narrow view of Article 15 strips the prohibition on discrimination
of its essential content. … For example, a rule that people over six feet would not be employed in the army would be able
to stand an attack on its disproportionate impact on women if it was maintained that the discrimination is on the basis
of sex and height. Such a formalistic view of the prohibition in Article 15, rejects the true operation of discrimination,
which intersects varied identities and characteristics.
Based on this understanding, the Court declared:
That such a discrimination is a result of grounds rooted in sex and other considerations, can no longer be held to be a
position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true
rigour to give it a complete constitutional dimension in prohibiting discrimination.
By analogy, discrimination on grounds of religion include discrimination on grounds of religion plus attire that is worn as part
of religious observance. Since the impugned measure targets members of religious groups that wear head coverings as part of
their religious observance, this measure violates the prohibition of discrimination on grounds of religion.
More specifically, the GO targets Muslim girls who cover their heads as part of religious observance. As such it violates the
67 Nitisha (n 42) (citing the opinion of Advocate General Maduro of the Court of Justice of the European Union).
68 ibid.
69 Emphasis supplied.
70 Emphasis supplied.
71 Navtej Singh Johar (n 21).
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prohibition on intersectional discrimination on grounds of religion and sex. The GO cites some court decisions in support of
the proposition that restrictions on headscarves do not violate Article 25. All these decisions pertain to female Muslim students
who were restricted from wearing a head scarf in school. The other decisions that the GO cites refer to the general utility of
uniforms in educational institutions, but those cases do not examine whether the imposition of the dress code impinges the
religious rights of the petitioner, and in fact the petitioner did not seek to assert such a right at all. The intent behind the GO can
also be gauged from the fact that the entire justification offered by the government during the hearings in the matter pertained
to the application of the GO to Muslim girl students in schools and colleges across the state. The Attorney General for Karnataka
admitted in the hearings that the GO was promulgated in response to Muslim girls asserting their right to wear the hijab to
schools and colleges. The ban has also been applied expressly against the hijab. The wearing of other religious attire, including
Sikh turbans, kadas, religious threads, sindoor etc, which marks the religion of the wearer were not intended to be excluded,
and have, in practice, not been excluded by this GO.
Taken together, the explicit intent of the GO, and its focus in restricting the dress code is to discriminate on grounds of religion,
and in particular to target Muslim girl students who wear the headscarf to their educational institutions. The GO seeks to
prescribe a common uniform and restrict Muslim girls from “following practices as per their religion” and wear a headscarf
or head covering. This GO violates the prohibition in Article 15 (1), Constitution of India against discriminating on grounds of
religion, and on grounds of religion coupled with sex since the GO, by its express reasoning and by government admission,
seeks to impose restrictions along prohibited grounds.
ii. The GO violates the prohibition on indirect discrimination on ground of religion and religion
intersecting with sex under Article 15(1).
Since the Karnataka High Court has stated in its judgment that the GO is ‘“religion - neutral’” and ‘“universally applicable’” we
are also discussing the probhibition of indirect discrimination in Article 15 of the Constitution. We argue below that the GO
does not stand the test of indirect discrimination under Article 15.
TEST FOR INDIRECT DISCRIMINATION
In Navtej Singh Johar v Union of India,72 Chandrachud J in his concurring opinion identified indirect discrimination as
occurring under Article 15(1) when ‘persons already adversely hit by patterns of historic subordination had their
disadvantage entrenched or intensified by the impact of measures not overtly intended to prejudice’.73 Nergesh Meerza’s
reading of Article 15(1) prohibited discrimination ‘only and only on [a single ground]’.74 This meant that indirect discrimination
on ground of sex plus a facially neutral provision (such as height, which would have a disproportionate impact on members
of a specific sex) was seen as ‘sex plus’ discrimination, or discrimination on ground of sex coupled with other considerations.
This form of discrimination fell outside Article 15(1), per Nergesh Meerza.75 However, in Navtej Johar, Chandrachud J held
that the approach adopted by the Supreme Court in Nergesh Meerza was ‘incorrect’:76 ‘For example, a Rule that people over
six feet would not be employed in the army would be able to stand an attack on its disproportionate impact on women if
it was maintained that the discrimination is on the basis of sex and height. Such a formalistic view of the prohibition in
Article 15, rejects the true operation of discrimination’.77 Through this, the ambit of Article 15(1) was extended to indirect
discrimination. This conclusion was also accepted by Malhotra J.78
This holding in Navtej Singh Johar was elaborated upon by the Supreme Court in Lt. Col. Nitisha v Union of India.79 In accepting
indirect discrimination as falling within the scope of Article 15(1), the Supreme Court held: ‘Indirect discrimination is caused
72 ibid.
73 ibid [395], citing City Council of Pretoria v. Walker 1998 (3) BCLR 257 (SACC) (emphasis added).
74 Nergesh Meerza (n 53) [70]
75 This reading was adopted in Indian Hotel And Restaurants Association v State Of Maharashtra 2006 (3) BomCR 705.
76 Navtej Singh Johar (n 21) [393].
78 ibid [522]-[523].
79 Nitisha (n 42).
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by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion’.80 The
Supreme Court emphasised that the primary enquiry under indirect discrimination was the impact of such facially neutral
criteria:
An enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its consequences. In
a case of direct discrimination, the judicial enquiry is confined to the act or conduct at issue, abstracted from the social
setting or background fact-situation in which the act or conduct takes place. In indirect discrimination, on the other
hand, the subject matter of the enquiry is the institutional or societal framework within which the impugned
conduct occurs. The doctrine seeks to broaden the scope of antidiscrimination law to equip the law to remedy patterns
of discrimination that are not as easily discernible.81
Drawing on the Supreme Court of Canada’s decision in Fraser v Canada,82 the Supreme Court of India adopted a two-stage
test to prove indirect discrimination:
First, the Court has to enquire whether the impugned Rule disproportionately affects a particular group. Second, the
Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion...[p]sychological
harms...[p]hysical harms...[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical
disadvantages faced by the claimant group.83
This two-stage test was identified as a ‘well-structured framework of analysis’ because:
it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group,
as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks
to remedy.84
Thus, post-Nitisha, if a facially neutral rule disproportionately affects a particular group and it reinforces, perpetuates or
exacerbates disadvantage which is understood multi-dimensionally—economic, social, physical, psychological, political—
then it amounts to a prima facie holding of indirect discrimination. The Supreme Court in Nitisha emphasised that indirect
discrimination is ‘closely tied’ to substantive equality, which:
provides that the attainment of factual equality is possible only if we account for…ground realities. This conception
[of equality] eschews the uncritical adoption of laws and practices that appear neutral but in fact help to validate and
perpetuate an unjust status quo.85
The Supreme Court also clarified that intention is irrelevant to an assessment of indirect discrimination:
the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not
of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/
institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive
equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.86
A requirement was intention was identified by the Court as placing an ‘insuperable barrier’ in the way of a claimant: ‘It is this
barrier that a robust conception of indirect discrimination can enable us to counteract’.87
81 ibid [53] (emphasis added) (emphasis added).
82 Fraser v Canada 2020 SCC 28.
83 Nitisha (n 42) [65].
84 ibid [69].
85 ibid [45].
86 ibid [66].
87 ibid [67].
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NATURE OF EVIDENCE TO ESTABLISH INDIRECT DISCRIMINATION
In Nitisha, the Supreme Court laid down the nature of evidence required to prove a claim of indirect discrimination under the
two-stage test. The Court held that ‘statistical evidence that can establish how the impugned provision, criteria or practice
is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect
discrimination’.88 The Court thought it would not be wise to lay down the precise threshold of statistical disparity that must be
established for the claim to succeed.89 This appears to be due to an implicit acknowledgment that setting a threshold might
exclude relevant claims which falls below the threshold. The Court was also careful to emphasise that the requirement of
statistical evidence was not ‘absolute’:
The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for
debunking claims of indirect discrimination… statistical evidence demonstrating patterns of exclusion, can be one of
the ways to prove indirect discrimination.90
If so, what other ways exist to prove indirect discrimination? The Court cited the following paragraph from Fraser as relevant
to the question of the nature of evidence required to establish indirect discrimination:
as [statistical] evidence might be hard to come by, reliance can be placed on evidence generated by the claimant
group itself…Equally, recognizing the importance of applying a robust judicial common sense, the Court held: “In
some cases, evidence about a group will show such a strong association with certain traits-- such as pregnancy
with gender--that the disproportionate impact on members of that group will be apparent and immediate.91
This paragraph points to two additional forms of evidence, beyond statistical evidence. The first, anecdotal evidence which is
important in light of the shortage of statistical evidence on issues affecting disadvantaged groups. And second, the ‘apparent
and immediate’ forms of impact due to strong association between a group and a certain trait, discerned through ‘robust
judicial common sense’. The Supreme Court in Nitisha did not explicitly incorporate these two additional forms of evidence
within the evidentiary standard laid out. However, the Court did emphasise that statistical evidence is just one form of evidence
to prove indirect discrimination, and quote Fraser as pointing to these additional forms of evidence.
To summarise, the Nitisha test for a prima facie holding of indirect discrimination requires: (a) a facially neutral rule or
provision (b) which disproportionately affects members of a protected group (c) and perpetuates their disadvantage along
several dimensions (economic, social, physical, psychological, political). There is no fixed statistical threshold to determine
when disproportionate impact occurs. Statistical evidence may be used to establish that the impugned provision, criteria
or practice causes the ‘disproportionately disadvantageous outcome’. Two other possible sources of evidence for the same
purpose are anecdotal evidence and the ‘apparent and immediate’ forms of impact due to strong association between a group
and a certain trait, discerned through ‘robust judicial common sense’.
Applying the Nitisha test for Indirect Discrimination
Facially neutral rule
The impugned Government Order (‘GO’) directs students of all government schools to wear uniforms fixed by the State and
students of private schools to wear uniforms decided by the management committees of the school. Earlier, it was argued that
while the operative part of the GO does not mention religion or sex in the context of the dress code, the preamble to the GO
makes it explicit that the aim of the GO is to discriminate on grounds of religion, and in particular to target Muslim girl students
who wear the headscarf to their educational institutions.
In essence, it was argued that taken as a whole, the GO is not a facially neutral rule.
In the alternative, we now argue that even if the GO is seen as a facially neutral rule because its operative part does not
89 ibid [68].
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specifically target any specific group and instead applies to all groups equally, such that students of all groups are required to
wear prescribed uniforms, it has a disproportionate impact on members of a protected group, perpetuates their disadvantage,
and thus amounts to indirect discrimination.
Disproportionate impact on members of a protected group
To establish disproportionate impact of the GO on members of a protected group, it is first important to identify the groups at
play. Two groups are relevant here: (a) religion (b) religion intersecting with sex.
Religion
Religion is a protected ground under Article 15(1). In requiring all students to wear prescribed uniforms, the GO technically
places a restriction on any form of religious attire. This would include hijabs or burqas by Muslims, crosses by Christians,
religious threads or amulets by Hindus, turbans by Sikhs etc. The GO might also restrict other forms of attire not in consonance
with the uniform, for instance jewellery or other accessories. However, the Nitisha test for indirect discrimination does not
require that the whole of the affected group be comprised of the protected group. Instead, it only requires that the protected
group be disproportionately affected. From the evidence cited below, it can be seen that schools and PU colleges are, under
the GO, mainly (or, only) requiring students to remove specific forms of religious attire before entering the school: for instance,
turbans by Sikh students and hijab by Muslim students. Thus, in its operation the GO has a disproportionate impact on members
of a protected group, here religion, even if it might in theory potentially affect other students more generally.
However, it should be kept in mind that while the GO might affect any student wearing accessories not prescribed by the
uniform and any student wearing religious attire not permitted by the uniform, given the preamble of the GO, its context, and
the evidence cited below, it is likely that this impact will be minimal or negligible. The impact of the GO will instead fall most
harshly on Muslim girls and women. We now turn to this.
Religion intersecting with sex
Article 15(1) recognises discrimination that occurs due to an intersection of listed (or analogous) grounds, as argued above.
In the case at hand, while the GO appeared to apply to all religions and genders equally, it disproportionately impacts Muslim
girls and women—evidence shown below—by placing a barrier to their access to education and exposing them to harassment.
This impact is experienced by this group not because of their status as either Muslim or girls/women, that is, either on grounds
of religion or on grounds of sex. The GO does not have this impact on all Muslims, rather it specifically affects Muslim girls/
women because boys and men do not wear, or are not expected to wear, religious attire similar to the hijab or burqa. Similarly,
the GO does not have this impact on all girls and women. Instead, it impacts Muslim girls/women because the hijab or burqa
is central to religious observance for these women, as argued in Section VII. In other words, the impact caused by the GO is
experienced due the petitioners’ ‘unique and distinct’ intersectional status as Muslim girls and women.
Further, the facially neutral GO has a disproportionate impact on Muslim girls and women. Admittedly, the whole category
of Muslim girls and women may not be disadvantaged by the GO. Some Muslim girls and women might still be able to access
education, depending on their individual and familial preferences and circumstances. And, girls and women from other
religious communities might be affected by the GO. For instance, following the Karnataka High Court order barring students
from wearing ‘religious clothes’ in schools and colleges pending further directions, on two occasions the Mount-Carmel Pre-
University College in Bangalore asked a Sikh girl to remove her turban before entering the college.92 However, it is important
to remember that the Nitisha test for indirect discrimination only requires that the rule impact Muslim girls and women
disproportionately, not that the rule impacts only Muslim girls/women or that it impacts all Muslim girls/women. Further,
the Court in Nitisha does not lay down a fixed statistical threshold for what constitutes disproportionate impact. From the
evidence already emerging on the impact of the GO, discussed below, it is clear that most cases of denial of education involve
Muslim girls and women, when compared to girls and women from other religious communities. Thus, the second prong of the
Nitisha test for indirect discrimination—disproportionate impact on members of protected groups—is satisfied.
Perpetuation of disadvantage
The third prong of the Nitisha test requires that the facially neutral rule reinforces, perpetuates or exacerbates ‘[e]conomic
92 ‘Bengaluru college allegedly asks Sikh girl to remove turban, cites High Court order’ Scroll (24 February 2022) <https://scroll.in/latest/1018130/
bengaluru-college-allegedly-asks-sikh-girl-to-remove-turban-cites-high-court-order> accessed 27 February 2022.
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exclusion or disadvantage, [s]ocial exclusion...[p]sychological harms...[p]hysical harms...[or] [p]olitical exclusion’, viewed in
light of systemic or historical disadvantages faced by the claimant group.
The GO has the potential to disadvantage students from all religious groups who could be denied access to school due to their
religious attire. As Section IV argues, how one chooses to dress is an exercise of an individual’s decisional autonomy, central
to human personality under Article 21. Restrictions on modes of dressing disrespect how an individual chooses to define
and express himself or herself. This holds true for religious attire as well. However, the significance of religious attire goes
beyond it being an expression of individual personality. Religious attire is an exercise of the individual’s religious freedom
under Article 25, as argued in Section VII. It therefore has significance to an individual not purely on an individual level, but also
as a member of a religious group or community. It is a symbol of group membership, and being restricted from wearing it could
have an adverse impact on the individual’s participation within the religious group or community. In restricting religious attire
in schools, the GO thus disadvantages students from religious groups as individuals (through disregarding their decisional
autonomy), and as members of religious groups. On the other hand, if the students choose to wear religious attire, they are
then disadvantaged by being denied education, which is their constitutionally guaranteed fundamental right under Article 21,
as argued in Section V.
The GO also perpetuates the disadvantage of Muslim girls and women. As the GO is recent, statistical evidence on its impact is
not yet available. However, in Nitisha the Supreme Court emphasised that statistical evidence is just one form of evidence to
prove indirect discrimination. The Court gestured to anecdotal evidence as admissible, especially where statistical evidence is
not available. As the anecdotal evidence cited below shows, the GO has the specific effect of denying Muslim girls education.
By making education contingent on wearing a uniform which does not include their religious attire, the GO offers Muslim girls
an illusory ‘choice’ between attending school and wearing a hijab or burqa. The anecdotal evidence also indicates that when
assessed through ‘robust judicial common sense’, the impact of the GO on Muslim girls is ‘apparent and immediate’ in light of
the strong association between the group—here, Muslim girls—and the trait—here, the wearing of headscarves.
In furtherance of the GO, schools and PU colleges in Karnataka required Muslim girls to remove their hijab and burqa to attend
the class or write exams. Those girls who refused to remove the hijab or burqa were denied entry to classes and permission to
write exams.93
Muslim girls recounted the ‘humiliation’ of being forced to remove their headscarves and choose between education and
religion:
The humiliation of being asked to leave my classroom for wearing a head scarf by college officials has shaken my core
belief…My religion has been questioned and insulted by a place which I had considered as a temple of education…It is
more like telling us you choose between your religion or education, that’s a wrong thing.94
Many Muslim girls refused to go to school in light of the order:95
We have grown up wearing hijab since our childhood and we cannot give it up. I will not write the exam and I will go
home96…They told us that we cannot write the pre-board exam if we don’t remove our hijab…In that case, we will not
write the exam. We cannot compromise on the hijab.97
Several Muslim girls reported how their parents refused to send them to school if they were not allowed to wear a hijab:
We are following the dress code. How will the veil on our heads affect others? We are appealing to college authorities to
allow us in because we want education. Our parents will not allow us to go to college without hijab.98
93 ‘‘Can’t give up hijab’’ (n 4); Khan (n 4).
94 Sunil Kataria, ‘Indian Muslim students say hijab ban forces choice of religion or education’ Reuters (13 February 2022) <https://www.reuters.
com/world/india/indian-muslim-students-say-hijab-ban-forces-choice-religion-or-education-2022-02-12/> accessed 27 February 2022.
95 ‘‘Can’t give up hijab’’ (n 4).
96 ibid.
97 Khan (n n4).
98 ‘Girls in Karnataka want both hijab and education: ‘Won’t be allowed to go to school if we do not wear hijab’’ The Hindu (18 February 2022)
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Many Muslim girls reported that they were taken to a separate classroom because they were wearing a hijab over their school
uniform:99
We were in a separate room with no teaching, while our other classmates were attending classes. Why should we not
attend classes? If we are not allowed to attend classes, how can we appear for exams? We want both exams and hijab.100
Muslim girls wearing the hijab also experienced forms of harassment, instilling fear amongst the students.101 Some Muslim girls
reported receiving threatening calls.102
The emerging evidence clearly shows the immediate impact of the GO on Muslim girls. They are made to choose between
obtaining an education and wearing a hijab or burqa, which some girls are compelled to wear by their families. The GO
disadvantages Muslim girls by imposing a condition—removing their headscarf—on them accessing their constitutionally
guaranteed right to education under Article 21A. It is important to note that the condition imposed is not trivial. The condition
violates Muslim girls’ fundamental right to religion under Article 25 (argued in Section VII) and their right to decisional autonomy
and privacy under Article 21 (argued in Section IV). The GO thus disadvantages Muslim girls by requiring them to forfeit their
right to religion and privacy to access their right to education.
The GO also results in exclusion of Muslim girls from social spaces like schools and colleges. The evidence shows that Muslim
girls are either not allowed to enter the school/college campus or even if allowed, they are segregated into separate classrooms.
They are thus prevented from interacting with other students, and instead treated as social pariahs. Segregation lowers the
social and civic status of groups so segregated, treating them as second-class citizens. This is especially when segregation
is carried out by educational institutions in a society where learning and teachers are revered. Lowering of status through
reducing specially disadvantaged groups to the ‘position of a lower or disfavoured caste’103 amounts to ‘subordination’.104
The equality and non-discrimination protections of the Indian Constitution—Articles 14, 15, 16 and 17—and the preambular
commitment to ‘equality of status’, embody an ‘anti-subordination principle’,105 building in a ‘right against hierarchy’.106 While
the GO does not explicitly legitimise segregation of Muslim girls and women, it gave colleges implied encouragement to take
actions to prohibit hijabs. The colleges’ action in segregating hijab-wearing girls thus had the imprimatur of the State. Where
the colleges are government-run or aided, the imprimatur of the State is stronger still. The segregation from other students of
girls from a socially and economically disadvantaged minority which faces widespread prejudice cannot but be understood
as a subordinating act. The action sends the message that the girls are not of equal status to their class-mates and that their
religious commitments mean that they are not entitled to the same facilities and education that are available to their peers.
The anecdotal evidence extracted above also points to harassment and threats against Muslim girls, possibly causing physical
<https://www.thehindu.com/news/national/karnataka/girls-in-karnataka-want-both-hijab-and-education-wont-be-allowed-to-go-to-school-if-we-
do-not-wear-hijab/article65062045.ece> accessed 27 February 2022.
99 Khan (n 4).
100 ‘Girls in Karnataka want both hijab and education’ (n 98).
101 Rebecca Rose Varghese and Vignesh Radhakrishnan, ‘Hijab row: Why the ban is a double blow to Muslim girl students’ The Hindu (20 February
2022) <https://www.thehindu.com/data/data-hijab-row-why-the-ban-is-a-double-blow-for-muslim-girl-students/article65066546.ece> accessed
27 February 2022.
102 Kataria (n 94).
103 Reva Siegel, ‘Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown’ (2004) 117 Harvard Law
Review 1470, 1535 (internal quotes not included); Owen Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy and Public Affairs
107, 157.
104 Scott Grinsell, ‘Caste and the Problem of Social Reform in Indian Equality Law’ (2010) 35 Yale Journal of International Law 199; Sean A. Pager,
‘Antisubordination of Whom? What India’s Answer Tells Us About the Meaning of Equality in Affirmative Action’ (2007) 41 UC Davis Law Review
289; Clark Cunningham and Madhava Menon, ‘Race, Class, Caste…? Rethinking Affirmative Action’ (1999) 97 Michigan Law Review 1296;
Laura Dudley Jenkins, ‘Race, Caste and Justice: Social Science Categories and Antidiscrimination Policies in India and the United States’
(2004) 36 Connecticut Law Review 747.
105 Farrah Ahmed, ‘Arbitrariness, Subordination and Unequal Citizenship’, (2020) 4(2) Indian Law Review 121-137; Pager (n 104) 302-3; Grinsell
(n 104) 229.
106 Gautam Bhatia, ‘Equal Moral Membership: Naz Foundation and the Refashioning of Equality under a Transformative Constitution’ (2017) Indian
Law Review 115, 116, 131.
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and/or psychological harm. The impact of the GO should further be assessed against the historical or systemic disadvantage
of the affected group, as the Supreme Court held in Nitisha. Muslim girls are already at a disadvantage in school education
compared to girls from other religions. According to the National Family and Health Survey (NFHS)-5, the share of Muslim girls
between the ages of 6 and 17 who attend school is significantly lower than their Hindu and Christian counterparts.107 Thus,
even as of the present, the GO perpetuates Muslim girls’ historical disadvantage through denying them access to education
(unless they forfeit their rights to religion and privacy), and causing social exclusion, physical and psychological harm. It is also
likely that the denial of education will have a broader impact on Muslim women and girls in the future, though the longer-term
impact of this GO cannot be accurately determined at this point. Education could affect women’s participation in the labour
market,108 their decision-making ability within their home,109 and women’s participation in political spaces.110 Being denied
education thus might, in the future, disadvantage Muslim women economically and politically. The third prong of the Nitisha
test for indirect discrimination is therefore satisfied. A prima facie claim of indirect discrimination on grounds of religion, and
religion intersecting with sex, exists.
iii. The GO is not saved by Article 15 (3) and is not otherwise justified
Article 15 (3), Constitution of India states that “Nothing in this article shall prevent the State from making any special provision
for women and children.” It may be argued that the GO is making a special provision for women and children and is thus
protected by this clause. However, as the Supreme Court has recognized, Article 15(3) enables the state to make special
provisions for women and children in order to empower and strengthen them. A law under this provision cannot have the
effect of disadvantaging the very groups for whose benefit the law is being made.
In Government of AP v PB Vijayakumar,111 the Supreme Court held that
The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that centuries, women of this
country have been socially and economically handicapped. As a result, they are unable to participate in the socio-
economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness
of women and to empower them in a manner that would bring about effective equality between men and women
that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.
A law that restricts women’s access to education or denies them the right to assert their religious identity cannot empower
women or strengthen their status.
In Anuj Garg v Hotel Association of India,112 the Supreme Court struck down a provision that prohibited women from working
in places that served liquor. Rejecting the argument that such a provision was protected under Article 15 (3), the Court held
that
It is to be borne in mind that legislations with pronounced “protective discrimination” aims, such as this one,
potentially serve as double edged swords. … Legislation should not be only assessed on its proposed aims but rather
on the implications and the effects. …. No law in its ultimate effect should end up perpetuating the oppression of
women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until
unless there is a compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review
in such cases.
107 Varghese and Radhakrishnan (n 101).
108 Sanghamitra Kanjilal-Bhaduri and Francesco Pastore, ‘Returns to Education and Female Participation Nexus: Evidence from India’ (IZA Institute
of Labour Economics, 2017) <https://docs.iza.org/dp11209.pdf> (accessed 27 February 2022); Amrita Datta, Tanuka Endow and Balwant Singh
Mehta, ‘Education, Caste and Women’s Work in India’, (2020) 63 The India Journal of Labour Economics 387-406.
109 Randeep Kaur and others, ‘Dimensions of Women Autonomy in Household Decision Making in Rural Punjab’ (2018) 11(1) OIDA International
Journal of Sustainable Development 11-40; Minakshi Vishwakarma and others, ‘Women Autonomy and its Correlates in India: Findings from
National Family Health Survey-4’ in Prabhat Kumar Singh and Amit Bhowmick (eds), Women’s Journey Towards Empowerment: Issues and
Challenges (Delton Publishing House, 2019).
110 Shelly Abdool and others, ‘Empowerment Beyond Numbers: Substantiating Women ’s Political Participation’ (2005) 7(2) Journal of International
Women’s Studies 123-141; M Khanna, ‘Political Participation of Women in India’, (2009) 70(1) The Indian Journal of Political Science 55-64.
111 AIR 1995 SC 1648.
112 (2008) 3 SCC 1.
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In striking down the law, the Court also cautioned the state that “[i]nstead of putting curbs on women’s freedom, empowerment
would be a more tenable and socially wise approach.”113
Building on this jurisprudence, in Joseph Shine v Union of India,114 the Supreme Court held that
Article 15(3) encapsulates the notion of ‘protective discrimination’. The constitutional guarantee in Article 15(3) cannot
be employed in a manner that entrenches paternalistic notions of ‘protection’. This latter view of protection only
serves to place women in a cage. Article 15(3) does not exist in isolation. … Neither Article 15(1), nor Article 15(3) allow
discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim
the protection of Article 15(3).
Thus, Article 15 (3) cannot be used to justify a law that imposes restrictions on women in the exercise of their rights (such as to
education, privacy, autonomy, and religious freedom) in the guise of benefiting them.
Even otherwise, a law that seeks the shelter of Article 15 (3) in order to discriminate against women for their own benefit, i.e.,
engage in “protective discrimination,” has to satisfy the test of proportionality. As stated in Anuj Garg v Hotels Association of
India,115 in evaluating whether a protective discrimination law is saved by Article 15 (3),
[t]he Court’s task is to determine whether the measures furthered by the State in form of legislative mandate,
to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of
well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line
in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities
and options without discriminating on the basis of sex, race, caste or any other like basis. In fine, there should be a
reasonable relationship of proportionality between the means used and the aim pursued.
The Court added that such a measure which seeks the protection of Article 15 (3) requires to be strictly scrutinised by the
Court, and “should not be only assessed on its proposed aims but rather on the implications and the effects.”116
Likewise, indirect discrimination can be justified if the impugned measure pursues a legitimate aim through proportionate
means. In Nitisha,117 the Supreme Court stated that
[W]hile assessing the justifiability of measures that are alleged to have the effect of indirect discrimination, the Court
needs to return a finding on whether the narrow provision, criteria or practice is necessary for successful job
performance. In this regard, some amount of deference to the employer/defendant’s view is warranted. Equally,
the Court must resist the temptation to accept generalizations by defendants under the garb of deference and must
closely scrutinize the proffered justification. Further, the Court must also examine if it is possible to substitute the
measures with less discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness
to the possibility of alternatives can a Court ensure that the full potential of the doctrine of indirect discrimination is
realized and not lost in its application.
Adapting this dictum to the present context, to justify the indirect discrimination perpetrated by the GO, the state has to
show that the measure is necessary to meet educational objectives, and that it is not possible to substitute the measure with
less discriminatory alternatives. Since these elements of justification are part of the structured proportionality analysis, we
undertake this analysis towards the end of this document, after examining the other rights that are being infringed by the GO.
CONCLUSION
In Resham, the Court framed this following as an issue for adjudication:
113 ibid.
114 Joseph Shine (n 45).
115 (2008) 3 SCC 1
116 ibid.
117 Nitisha (n 42).
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Whether the Government Order dated 05.02.2022 apart from being incompetent is issued without application of mind and further
is manifestly arbitrary and therefore, violates Articles 14 & 15 of the Constitution?
As noted in the previous section, this framing conflates discrimination and non-arbitrariness which are distinct facets
of the guarantee of equality under the Indian Constitution.118
The Court very briefly dismissed the arguments premised on equality and non-discrimination. It observed that since the ‘dress
code is equally applicable to all the students, regardless of religion, language, gender or the like,’ there was ‘absolutely no
scope for complaint[s] of manifest arbitrariness or discrimination’ under Articles 14 and 15119. To the contrary, the Court largely
agreed with the contentions of the respondents that the prohibition of the hijab would further egalitarianism through the
erasure of distinct identities in the classroom120. The Court also noted that ‘“the prescription of dress code for the students that
too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally
protected category of rights, when they are ‘religion-neutral’ and ‘universally applicable’ to all the students.’” (emphasis in
original).
In this section, we have discussed the manner in which the Court fails to account for the discriminatory impacts of the
prohibition of the hijab. As we argued abovebelow, the bare assertion of the Court that the uniform equally applies to all
students does not adequately consider the direct, indirect and intersectional aspects of the discrimination caused to Muslim
women by the impugned orders.
118 Subramanian Swamy v Director CBI, (2014) 8 SCC 682.
119 Resham (n 6) 100.
120 ibid 107.
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IV. VIOLATION OF PRIVACY, DIGNITY, AUTONOMY UNDER ARTICLE 21 AND THE FREEDOM
OF EXPRESSION UNDER ARTICLE 19(1)(A)
Whether the prohibition on wearing a hijab and other religious clothing/symbols within school and pre-university college
premises in Karnataka is violative of the fundamental rights to privacy guaranteed and freedom of expression under the
Constitution of India (‘Constitution’)?
A. Is decisional autonomy a facet of the fundamental right to privacy guaranteed under Part III of the Constitution?
B. Does the prohibition on wearing a hijab and other religious clothing/symbols within school and pre-university
premises in Karnataka violate the decisional autonomy of female Muslim and other students?
1. The choice to wear a hijab or other religious clothing is a facet of decisional autonomy protected by the right
to privacy.
2. In arguendo, unlike certain other harms, wearing a hijab or other religious clothing is not an irreversible choice
which inhibits the continuance of an autonomous life.
C. Does the prohibition on wearing a hijab and other religious clothing/symbols within school and pre-university
premises in Karnataka violate the dignity and privacy of female Muslim and other students?
1. The banning of the hijab and other religious clothing is a violation of dignity.
2. The banning of the hijab and other religious clothing invades the sanctity of bodily privacy and dignity.
D. Does the prohibition on wearing a hijab violate the freedom of expression under Article 19(1)(a) of the Constitution?
A. Decisional autonomy is recognised as a key facet of the fundamental right to privacy.
In K.S Puttaswamy v. Union of India (‘Puttaswamy I’),121 a nine-judge bench of the Supreme Court of India (‘SCI’) affirmed
that the fundamental right to privacy ‘is protected as an intrinsic part of the right to life and personal liberty under Article 21
and as a part of the freedoms guaranteed by Part III of the Constitution.’122
Expanding on the philosophical foundations of the concept of privacy, Chandrachud J, speaking for four judges in Puttaswamy
I, held that individual autonomy i.e the ability of an individual to make choices and decide how to develop their personality,
lies at the core of the concept of privacy.123 The learned judge specifically highlighted:
Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables
individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against
societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the
individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects
the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to
the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in
privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked
in a pattern woven out of a thread of diversity into the fabric of a plural culture.124
There are several important takeaways from this. First, autonomy necessarily implies the ability to make decisions which go
against social norms or ‘demands of homogeneity.’ In safeguarding autonomy, therefore, the right to privacy ensures and
121 KS Puttaswamy v Union of India (2017) 10 SCC 1 (‘Puttaswamy I’).
122 ibid [652].
123 ibid [297] (Chandrachud J).
124 ibid [297] (Chandrachud J) (emphasis added).
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protects heterogeneity and diversity in our plural culture. This is, in turn, linked to the increasing recognition of the concept
of ‘constitutional morality’ by the SCI. In Navtej Singh Johar v. Union of India (‘Navtej Singh Johar’),125 for instance, Misra CJ
held that the autonomy of individuals cannot be curtailed due to demands of conformity or societal morality.126 Any attempt at
imposing homogeneity and uniformity throughout society would strike at this guarantee.127
Second, the preservation of autonomy is linked to the dignity of the individual. Chandrachud J notes the inextricable ties
between the two concepts, and how each is a ‘facilitative tool to achieve the other.’128 Dignity is impaired by the non-recognition
of an individual’s identity.129 Since religion forms a crucial facet of the identity of individuals, therefore, the inability to express
it strikes at the right to dignity and privacy.
Third, privacy as a concept applies to persons and not places. An individual continues to possess a right to privacy even in
public spaces, which would include schools and other educational institutions.
The links between decisional autonomy and privacy were highlighted by other judges in Puttaswamy I; thereby clearly
establishing the importance of autonomy to privacy.130 Navtej Singh Johar reiterated that the fundamental right to privacy
encompasses decisional autonomy, which preserves the sanctity of the private sphere of an individual by protecting intimate/
personal decisions from the intrusion of the state.131 It is clear, therefore, that decisional autonomy, or the ability of individuals
to make choices which go against social demands for homogeneity, lies at the core of the right to privacy.
B. Choices expressed in public regarding faith and modes of dress are a part of decisional autonomy and
protected by the fundamental right to privacy.
1. The choice to wear a hijab or other religious clothing in public spaces is a facet of the right to
privacy.
In Puttaswamy I, Chandrachud J held that the privacy of the individual recognises an ‘inviolable right to determine how
freedom shall be exercised.’132 Further, he specifically held that the individual freedom to determine the way one eats, dresses
and the religion one practices are facets of autonomy and self-determination, guaranteed under the right to privacy:
The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences.
Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets
of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other
matters on which autonomy and self determination require a choice to be made within the privacy of the mind. The
constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and
the freedom to express or not express those choices to the world. These are some illustrations of the manner in which
privacy facilitates freedom and is intrinsic to the exercise of liberty.133
That the right to privacy covers the dress one wears was also reiterated by Chelameswar J in Puttaswamy I.134 Chandrachud
J also specifically held that individual choices relating to the expression of faith or ‘modes of dress’ in public spaces forms an
125 Navtej Singh Johar (n 21).
126 ibid [131], [161] (Misra J).
127 ibid [128] (Misra J).
128 Puttaswamy I (n 121) [298] (Chandrachud J).
129 Navtej Singh Johar (n 21) [4], [262]-[263] (Misra J).
130 Puttaswamy I (n 121) [371] (Chelameswar J), [521-522] (Nariman J), [644] (SK Kaul J), [392] (SA Bobde J).
131 Navtej Singh Johar (n 21) [640.3] (Indu Malhotra J).
132 Puttaswamy I (n 121) [298] (Chandrachud J); In the context of transgender persons, the Supreme Court has upheld that privacy, self-identity,
autonomy and personal integrity are fundamental rights guaranteed under Article 19(1) (a) of the Indian Constitution see National Legal Services
Authority v Union of India (2014) 5 SCC 438 [72] (K.S. Radhakrishnan, J).
134 ibid [374] (Chelameswar J).
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integral part of the decisional autonomy of individuals protected under the Fundamental Right to privacy. While explaining the
meaning of decisional autonomy, he observed:
Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control.
Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices
such as those governing reproduction as well as choices expressed in public such as faith or modes of dress.
Informational control empowers the individual to use privacy as a shield to retain personal control over information
pertaining to the person.135
In Shafin Jahan v Ashokan K.M, the Supreme Court reiterated that an individual’s ability to ‘decide on aspects which define
one’s personhood and identity’ is protected by the constitutional recognition of individual liberty and autonomy.136 Further,
the court stated that Article 21 of the Constitution guarantees every individual the right to make intimate personal choices on
‘matters central to the pursuit of happiness’ including matters of belief and faith, dress, food, ideologies, love and partnership.
The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees
the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just
and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each
individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including
whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for
agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or
he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the
central aspects of identity.137
Consequently, the right of all individuals to both express their faith in public and make deeply intimate choices regarding their
mode of dressing in public is protected under the fundamental right to privacy in the Constitution. The right of Muslim women
to wear the hijab in public places such as schools and colleges is a public expression of their faith (their interpretation of and
belief in the tenets of their religion) as well as as an intimate choice relating to mode of dressing. It enables Muslim women to
protect their beliefs and preferences against ‘societal demands of homogeneity’ and permits them to stand against the ‘tide
of conformity’ and create a ‘zone of solitude in public.’138 To many women therefore the wearing of the hijab enhances their
autonomy.139 Hence, the right to wear hijab in public places such as schools and colleges is a facet of decisional autonomy.
Any demand for complete homogeneity or uniformity in the form of imposing dress codes within schools and pre-university
colleges by prohibiting women wearing hijabs from entering institutional premises and receiving education is an assault on
individual autonomy guaranteed by the fundamental right to privacy under the Constitution. Similarly, the wearing of turbans
by Sikhs, crosses by Christians, religious threads or mangalsutras by Hindus is also a public expression of faith and autonomy
that is protected from state intrusion under the right to privacy.
Therefore, a complete prohibition of any religious clothing as part of the uniform within school and college premises, including
the headscarf or hijab worn by muslim women, imposed by the different pre-university Government colleges and schools
in Karnataka before and in pursuance of the Government of Karnataka order dated February 5, 2022 intrudes gravely upon
individual decisional autonomy guaranteed by the fundamental right to privacy.
2. In arguendo, unlike certain other harms, wearing a hijab or other religious clothing is not an
irreversible choice which inhibits the continuance of an autonomous life.
As mentioned earlier, individual autonomy or the ability of individuals to make choices has been seen as the core of human
136 Shafin Jahan v Ashokan K.M (2018) 16 SCC 368 [84] (Chandrachud J).
139 Cécile Laborde, ‘Female Autonomy, Education and the Hijab’ (2006) 9(3) Critical Review of International Social and Political Philosophy 351,
365-66.
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personality by the Supreme Court in a number of decisions following Puttaswamy I.140 Can it be argued that the hijab or other
religious clothing reduces the autonomy of those who wear them, in as much as they view the practice as obligatory? Does the
state, therefore, have a paternalistic duty to ban the hijab or other religious clothing in the interests of the persons wearing
them? No. First, as we have argued above, the wearing of the hijab or other religious clothing is rather an expression or positive
affirmation of autonomy.
Second, paternalistic duties of the state arise only in certain limited situations. In Puttaswamy I, Chandrachud J acknowledged
that individual autonomy is not absolute or total as that would make it theoretically possible to ‘hire another person to kill
oneself or to sell oneself into slavery or servitude.’141 The law does not allow individuals to engage in such activities, however
ostensibly autonomous these decisions may be. However, what distinguishes these actions fundamentally is their irreversible
and substantial negative impact upon the autonomy of the individual concerned, which is what necessitates the state’s
paternalistic role.142 For instance, selling oneself into slavery is not a truly autonomous decision since it irreversibly and
substantially reduces the ability of the individual concerned to make autonomous choices in the future.
Whether one’s autonomy will be irreversibly or substantially reduced in the future involves both objective and subjective
criteria, in accordance with the decision of the SCI in Common Cause v Union of India (‘Common Cause’),143 which discussed the
validity of passive euthanasia and living wills. In Common Cause, the court emphasised that persons in a permanent vegetative
state (‘PVS’) irreversibly lose the ability to control their bodies, which is an essential aspect of autonomy. The decision to end
one’s life in this context, in other words, does not lead to the extinction of autonomy, but rather to an affirmation of it.. Misra J
observes how this inability affects the PVS patient’s ‘right to live with dignity and face death with dignity, which is a preserved
concept of bodily autonomy and right to privacy.’144 Even within this, the subjective wishes of the patient expressed through a
living will are taken into account, thereby ensuring that decisional autonomy and privacy remain central to the process.
It is pertinent to note that there is no meaningful analogy between the practice of wearing hijab and other practices such as
sati, slavery, selling oneself into servitude etc., because the latter involve irreversible and substantially harmful choices, unlike
the wearing of a hijab. Muslim women remain free to opt out of practicising the religious tradition of wearing a hijab both
within and outside the school and college premises in the future, if they change their religious beliefs. Similarly, Sikh men and
women wearing turbans within school or college premises are free to stop wearing them if they choose to do so at any point in
time. The same goes for religious symbols like the mangalsutra and thread. This, coupled with the autonomous choice of the
wearers to wear a thread, turban or hijab, enhances rather than diminishes autonomy.
The non-accommodation of religious clothing like the hijab results in the exclusion of Muslim women and other religious
persons from educational institutions. This has several negative effects. The provision of education is a prerequisite for the
meaningful development of individual autonomy. Our status as human beings depends on individual agency and human
rights are essentially meant to protect this unique personhood of individuals. This usually involves several components, such
as autonomy, which is the ability to choose one’s own path through life i.e, to not be dominated or controlled by anyone else.
Meaningful autonomy however requires the ability to choose from an adequate range of options.145 This in turn requires a
minimum level of education and information, and the minimum resources to give effect to our choices, along with the freedom
to pursue them.146 The SCI has recognised that the provision of education constitutes one of the minimum requirements to
140 Joseph Shine (n 45) [114] (Chandrachud J); Common Cause (A Regd Society) v Union of India (2018) 5 SCC 1 [168] (Misra J).
142 John Sebastian and Aparajito Sen, ‘Unravelling the role of autonomy and consent in privacy’ (2020) 9 Indian Journal of Constitutional Law 1,
11-12.
143 Common Cause (n 140) [486] (Chandrachud J).
145 Joseph Raz, The Morality of Freedom (OUP 1988) 426.
146 Griffin states, ‘To be an agent, in the fullest sense of which we are capable, one must (first) choose one’s own path through life—that is, not be
dominated or controlled by someone or something else (call it “autonomy”). And (second) one’s choice must be real; one must have at least
a certain minimum education and information. And having chosen, one must then be able to act; that is, one must have at least the minimum
provision of resources and capabilities that it takes (call all of this “minimum provision”). And none of this is any good if someone then blocks
one; so (third) others must also not forcibly stop one from pursuing what one sees as a worthwhile life (call this “liberty”).’ See James Griffin, On
Human Rights (OUP 2008) 33.
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ensure a dignified life for an individual in Unni Krishnan v. State of Andhra Pradesh. In that case, the court held that the right
to education is implicit in and flows directly from the right to life and personal liberty enshrined under Article 21 of the Indian
Constitution.147
Additionally, the state has a duty to provide citizens with a ‘right to exit’ from social, cultural, religious or other communities
and groups. A right to exit implies the ability of an individual to exit the confines of groups and their social norms.148 The
existence of such a right allows individuals to question and dissent from group practices, and to exit groups in case necessary,
thereby benefiting both the individual and others in the group in question.149 However, such an ability to question, dissent
and exit from social groups can only arise when individuals are provided the necessary means to do so. In particular, access
to education provides individuals with both the financial and intellectual resources to exercise this right to exit. Education, as
mentioned above, provides individuals with the necessary abilities to provide for themselves independently of their group.
Further, education also provides persons with the intellectual resources to question and oppose community practices.
Measures such as a ban on the hijab are therefore counterproductive both for individuals and the social, cultural or religious
group in question.
Hence, the provision of education is a key component for ensuring that individual choices are meaningful and real. That
education leads to the enhancement of life opportunities and freedom - especially for women - has been well established.150
The ability of Muslim women to make more autonomous and real choices in all aspects of their life, standing against the
expectations of family, culture, state or society is only enhanced by them continuing to receive education, which strengthens
their sense of self and paves a way for a financially independent future. In contrast, not only does prohibiting Muslim girls
from receiving education because they choose to wear the hijab forcibly block their pursuit of what they consider to be a
worthwhile life, it also harms their ability to make autonomous choices regarding their life and religion in the future. The same
applies to religious clothing of persons belonging to other faiths.
Therefore, wearing the hijab or other religious clothing within public places such as schools and colleges enhances autonomy,
not only in the direct sense of being able to decide what to wear, but also in enabling a larger range of options in the future
opened up due to the ability to attend educational institutions.
C. Dignity is recognised as another key basis of the fundamental right to privacy.
1. The banning of the hijab and other religious clothing is a violation of dignity.
The links between autonomy, privacy and dignity drawn by various judges in Puttaswamy I have been highlighted above.
As mentioned, the ability of an individual to make autonomous choices allows them to develop their personalities, which in
turn is a ‘postulate of human dignity itself.’151 The SCI has, in its conceptualisation of dignity, reaffirmed an autonomy-based
approach to dignity rather than a communitarian one.152 This means that the contours of a dignified life are not determined
by ‘social morality,’ but rather by ‘constitutional morality.’153 Constitutional morality, in turn, preserves the autonomy of the
individual against societal demands of homogeneity.154
Therefore, it cannot be argued that the ban on the hijab is an attempt to preserve the dignity of Muslim women. Such a
conception of dignity is based on social morality i.e. that dignity requires uniformity and homogeneity, and what counts as
147 Unnikrishnan v State of Andhra Pradesh (1993) 1 SCC 645 [149], [171]. For a detailed discussion on this, see Section V.
148 Leslie Green, ‘Rights of Exit’ (1998) 4 Legal Theory 165, 166.
149 Chandran Kukathas, ‘Are There Any Cultural Rights?’ (1992) 20(1) Political Theory 105, 128. See also generally Joel Feinberg, Freedom and
Fulfilment (Princeton University Press 1992) ch 3.
150 Amartya Sen, Development as Freedom (Alfred A Knopf, 1999) 191-92.
151 Puttaswamy I (n 121) [297 ](Chandrachud J).
152 Sebastian and Sen (n 142) 11-12. On the distinctions between an autonomy-based approach to dignity and a communitarian approach, see
Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) The European Journal of International Law
655, 699.
153 Navtej Singh Johar (n 21) [127]-[128] (Misra J).
154 ibid; Common Cause (n 140) [170] (Misra J).
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dignified clothing is to be defined by societal standards. This argument is also founded upon romantic paternalism, where
the state steps in to ‘protect’ women based on a patriarchal conception of women as weak and lacking in agency.155 Such
arguments based on homogeneity and romantic paternalism have been firmly rejected by the SCI in favour of an approach
which favours and affirms the agency of women.156 A ban on wearing the hijab or other religious clothing is therefore an assault
on the dignity of women because it treats them as non-agents in the matter of choosing what to wear. Dignity requires that it
must be left to individual women themselves to decide how they want to exercise their freedoms.
The banning of the hijab and other religious symbols is therefore also a violation of the right to dignity.
2. The banning of the hijab and other religious clothing invades the sanctity of bodily privacy and
dignity.
In Puttaswamy I, both Chandrachud J and Nariman J also held that privacy of the body entitles the individual to safeguards
regarding state intrusion into physical aspects of personhood.157 Chandrachud J. held:
The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the
guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical
aspects of personhood… When these guarantees intersect with gender, they create a private space which protects all
those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all
integral to the dignity of the individual.158
Therefore this dignity-rich understanding of the right to privacy endorsed by the SCI guarantees all individuals protection from
state intrusion into the privacy and integrity of the body. The Court has also clearly held that the physical aspect of privacy
might be especially crucial when it intersects with gender and extends the protection of right to privacy to physically intimate
decisions such as family, marriage, procreation and sexual orientation.
To many Muslim women, the wearing of the hijab in public spaces enhances their dignity by creating a sanctified personal space
of the body. Any prohibition on wearing religious symbols within schools and colleges in Karnataka before and in pursuance
of the Government of Karnataka order dated February 5, 2022 will undoubtedly require Muslim women to now suddenly exist
in these public spaces without the hijab. We have already seen images of Muslim women being required to disrobe partially
or remove their hijab before entering school and college premises.159 Such a requirement by the state to appear what to the
wearer is semi-clothed in public spaces, or to disrobe to an extent before entering schools and colleges, can trigger personal
humiliation and indignity and invades the basic guarantee of privacy of the body. It interferes in an area of extremely intimate
personal choice. It is therefore violative of the fundamental right to dignity and privacy of Muslim women. The same applies
to persons of other religions to whom being forced to take off their religious symbols is an act of deep personal and religious
humiliation.
This does not imply that the state or schools are prohibited from prescribing any sort of uniform, but rather that the right of
privacy and dignity of individuals should be accommodated within the requirements of uniformity and therefore any uniforms
prescribed must be justified by the state in accordance with the doctrine of proportionality. In the case of Muslim women
in particular, their religious beliefs and humiliation at being asked to disrobe intensify the degree of the privacy and dignity
violation, requiring stronger justifications from the state.
Therefore, since the ban on the hijab and other religious clothing in educational institutions gravely infringes the rights to
privacy and dignity of individuals, it must be justified by the state applying the proportionality test.160 We discuss the application
of the proportionality test to this matter in Section VI. D.
155 Joseph Shine (n 45) [214](Chandrachud J).
156 ibid; Anuj Garg v Hotel Association of India (2008) 3 SCC 1 [43].
157 Puttaswamy I (n 121) [298] (Chandrachud J); [521]-[522] (Nariman J).
158 ibid (Chandrachud J).
159 The Wire Staff, ‘Staff, Students Asked To Remove Hijab At Gates As Karnataka Schools Reopen’ The Wire (New Delhi, 14 February 2022)
<https://thewire.in/women/staff-students-asked-to-remove-hijab-at-gates-as-karnataka-schools-reopen> accessed 1 March 2022.
160 Puttaswamy I (n 121) [325] (Chandrachud J); [638] (SK Kaul J).
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D. The prohibition on wearing the hijab violates the freedom of expression guaranteed in Article 19(1)(a).
Clothing as a means of expressing one’s identity was recognised and protected under Article 19(1)(a) by the Supreme Court
in NALSA v. Union of India [(2014) 5 SCC 438] (see paragraphs 69-72). Expression of identity under Article 19(1)(a) was also
accepted as a ground in Navtej Singh Johar to invalidate Section 377 of the Indian Penal Code. It is now clear that the
protection under Article 19(1)(a) is not restricted to verbal speech but also covers forms of expressing one’s identity. The hijab
is a means of expressing religious identity that individuals can choose. Once the freedom is recognised under Article 19(1)
(a), any restriction on it would have to be in compliance with the provisions of Article 19(2). There are very specific grounds
on which reasonable restrictions can be imposed under Article 19(2) and the basis for the actions by the state or the schools/
colleges clearly do not satisfy any of the grounds in that constitutional provision. This is further discussed in Section VI.
CONCLUSION
In Resham161, the petitioners had contended that the right of Muslim women to wear the hijab in schools and colleges is
protected by individual autonomy guaranteed under the fundamental right to privacy in accordance with the Supreme Court’s
decision in Puttaswamy I. While dismissing this contention, the Karnataka High Court in Resham held that the rights to free
speech and expression and privacy were only derivative rights in the context of the hijab in schools and due to the inferior
status of derivative rights, the application of the tests of reasonableness and proportionality were not required. The rights of
the petitioners, it was opined, were not ‘core’ and ‘substantive’ rights, but were instead ‘derivative and penumbral.162
However, as our analysis above has shown, Chandrachud J, speaking for four judges in Puttaswamy I, held clearly
that individual autonomy i.e the ability of an individual to make choices which go against social norms or ‘demands of
homogeneity’ lies at the core of the concept of privacy.163 In this case, the court also held that the right of all individuals
to both express their faith in public and make deeply intimate choices regarding their mode of dressing in public, are
facets of this individual autonomy and are consequently protected by the fundamental right to privacy guaranteed
under the Constitution.164 We therefore disagree with the suggestion in Resham that the right of Muslim women to wear
the hijab in schools and universities is not protected by the core understanding of the fundamental right to privacy.
Rather, the restriction of the right of Muslim women to wear the hijab in public places such as schools and colleges is a
gross violation of their autonomy and dignity and strikes at the heart of the fundamental right to privacy.
The Karnataka High Court’s verdict in Resham also states that the right to privacy is not available in ‘qualified public places’
such as schools and colleges, as such ‘spaces by their very nature repel the assertion of individual rights to the detriment of their
general discipline and decorum.’165 In such qualified public spaces, the Court opined that substantive rights ‘metamorphise’
into derivative rights. The Court drew an analogy between schools and prisons, claiming that both are spaces where rights
protections are inherently ‘inferior.’166 Later, the Court also distinguished between the liberties available to an individual in
different spaces. While the extent of liberty at home would be ‘enormous’, this would diminish in qualified public spaces such
as schools, courts, war rooms and the military, consistent with the requirements of discipline and decorum in these spaces.167
Our analysis above demonstrates the inaccuracy of the Court’s position in Resham. First, as highlighted in our analysis
161 Resham (n 6).
162 ibid 99-100
165 Resham (n 6) 100
166 ibid.
167 ibid 104
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above, a plurality of the judges in the Supreme Court verdict of Puttaswamy I explicitly stated that privacy as a
concept attaches to persons and not places. Accordingly, the constitutional protection of fundamental right to privacy
is available to individuals in all places, including public places such as schools and colleges. Further, the verdict in
Resham also does not give reasons to demonstrate how a substantive right to privacy transforms into a derivative
right when it comes to public spaces such as schools and colleges and why it does not enjoy the same constitutional
protections.
There is no parallel between public spaces such as schools and colleges and war rooms and defence camps, which
differ greatly in relation to their functions (while schools aim to provide good education, the function of war rooms
and defence camps is to fight wars with hostile nations) as well as in the amount and nature of discipline required
for the performance of those functions. Even indulging the judgment’s resort to the undertrial/ convict analogy, the
Supreme Court has for many decades now recognised that ‘prisoners are entitled to all constitutional rights unless
their liberty has been constitutionally curtailed’ and even then ‘convicts are not wholly denuded of their fundamental
rights’ [see Sunil Batra v Delhi Admn. (1978) 4 SCC 494 (paragraph 213)]. So, even in those contexts if rights are to be
curtailed, it has to be done in a manner that is required by the Constitution. This would require the application of the
reasonableness or proportionality tests to ascertain the validity of restrictions. The judgment’s reasoning to invoke
‘derivative rights’ in ‘qualified public spaces’ to avoid the application of tests of reasonableness and proportionality is
unknown to Indian constitutional law.
The Karnataka High Court does not engage with the contention of petitioners demonstrating the similarities between the
Muslim practice of wearing the hijab and the Sikh tradition of wearing the turban in public places.168 In Sections VI and VII, we
point out that in the context of the Armed Forces, where the requirements of uniformity and discipline are undoubtedly
higher than in educational institutions, the rules regarding head and facial hair provide religious accommodation to
armed force members from the Sikh community whose religion prohibits cutting of hair.169 As we discuss, given that
the Armed Forces do not find the provision of such religious accommodation disruptive to their discipline, cohesion,
unity and performance of the critical duty of protecting the nation, it is surprising that the Court was unable to uphold
the right to similar religious accommodation for Muslim women seeking education in schools and colleges.
While the judgment of the Karnataka High Court recognises the argument on the hijab as freedom of expression under Article
19(1)(a), it does not identify the specific ground/s in Article 19(2) under which the prohibition on the hijab is justified. The
judgment’s reasoning for denying the protection under Article 19(1)(a), as mentioned above, seems to be that substantive
rights change into ‘derivative rights’ in contexts like schools and prisons. While this constitutional analogy is wholly misplaced,
the judgment provides no reason as to why the freedom of expression in this context is subservient to a very general and
vague consideration of ‘general discipline and decorum’ (see Resham, page 100). Such considerations do not satisfy the
constitutionally mandated requirements under Article 19(2), pursuant to which the freedom of expression can be restricted.
We therefore argue that the right to privacy of Muslim women, which guarantees them the right to wear the hijab, is
constitutionally protected in public places such as schools and colleges as well. We reiterate that this does not imply that the
state or schools are prohibited from prescribing any sort of uniform. This also does not imply, as the court claims, that ‘the
students should be free to choose their attire in the school individually,’170 but that any uniforms prescribed must be justified
by the state in accordance with the doctrine of proportionality. We believe that the state ought to explore less restrictive means
such as allowing Muslim women to match their hijabs with the school or college uniform, as permitted in the case of relgious
clothing within the Armed Forces.
168 Plumber (n 1).
169 See Sections VI and VII.
170 Resham (n 6) 105.
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V. VIOLATION OF THE RIGHT TO EDUCATION UNDER ARTICLE 21
A. Does the Government Order (‘GO’) dated 05.02.2022 violate the right to education of students at Government Pre-
University College for Girls, Udupi?
Relevant constitutional provisions
Article 21: No person shall be deprived of his life or personal liberty except according to a procedure established by law.
Article 21A: 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.
A. The right to education under the Indian Constitution is engaged
In Mohini Jain and Unni Krishnan, the Supreme Court recognised the right to education as part of the right to a dignified life
under Article 21.171 In both cases, the Court recognised the importance of the right to education for the realisation of all other
rights under Part III of the Indian Constitution.172 For example, in Unni Krishnan the Supreme Court observed,
Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting
the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, … that right to
education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been
treated as one of transcendental importance in the life of an individual has been recognised not only in this country
since thousands of years, but all over the world. In Mohini Jain the importance of education has been duly and rightly
stressed… In particular, we agree with the observation that without education being provided to the citizens of this
country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail.173
Article 21A explicitly recognises the right to free and compulsory education for all children between the ages of 6 and 14
years.174 The inclusion of an explicit right to education under Article 21A does not extinguish the implicit right to education
under Article 21. The residue of the right not covered within Article 21A, including the right to education for persons above the
age of 14, such as pre-university education provided at PU College, are included within the right to education under Article
21.175
B. The right to education includes equal access to education without arbitrary barriers
The scope of the right to education under Article 21 includes the right to access free education between the ages of 6 and 14.176
After the age of 14, the right to access free education is circumscribed by the economic capacity of the state,177 but includes the
right to access higher (university) education in private universities without payment of capitation fees.178 This is in recognition
of the close link between the rights to education and equality, wherein the Supreme Court has emphasised equal access
to education for all, and the removal of arbitrary barriers to education.179 For example, in Mohini Jain, while striking down
capitation fees in universities as unconstitutional, the Supreme Court observed that,
171 Mohini Jain v State of Karnataka (1992) 3 SCC 666 [12]; Unni Krishnan (n 147) [182].
172 Mohini Jain (n 171) [13]; Unni Krishnan (n 147) [183]; as cited in Sanya Samtani, ‘The Right of Access to Educational Materials and Copyright:
International and Domestic Law’ (University of Oxford 2021) 271.
173 Unni Krishnan (n 147) [166].
174 Constitution of India 1950, art 21A.
175 Samtani (n 172) 281.
176 ibid [182].
177 ibid.
178 Mohini Jain (n 171) [17], [21].
179 ibid [19].
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Capitation fee makes the availability of education beyond the reach of the poor. The State action in permitting capitation
fee to be charged by state-recognised educational institutions is wholly arbitrary and as such violative of Article 14 of
the Constitution of India.180
It follows that arbitrary barriers to access education, violate the right to education when read together with Article 14 of the
Indian Constitution.
The petitioners in the case at hand demand a right to access education without giving up wearing the hijab. The petitioners
already have access to education at the pre-university level at PU College. The case involves depriving students their access
to education at the pre-university level, by requiring students to choose between their education and wearing of the hijab. In
furtherance of the relevant GO, schools and PU colleges in Karnataka required Muslim girls to remove their hijab and burqa
to attend the class or write exams. Those girls who refused to remove the hijab or burqa were denied entry to classes and
permission to write exams.181 Thus, a barrier was created for Muslim students to access their education. In section II, we have
argued that this requirement of removal of the hijab before accessing education, is unlawful and arbitrary. When reading the
requirements of non-arbitrariness under Article 14 together with the right to education under Article 21, it follows that creation
of arbitrary barriers to education for Muslim students violates the requirement of access to education without imposition of
arbitrary barriers.182
Moreover, in section III, we have indicated that the GO violates Article 15 of the Constitution. When read together with the right
to education under Article 21, the rights to non-discriminatory access to education are violated for Muslim students.
C. Restrictions on education must be tested on the touchstone of the proportionality test
Restrictions on rights under Article 21 of the Indian Constitution are subject to the proportionality test.183 This test ought to
apply to restrictions on all rights under Article 21,184 including the right to education.185 In Section VI, we indicate that the GO
does not meet the requirements of the proportionality test , including in the context of the right to education.
CONCLUSION
The Karnataka High Court in Resham barely engaged with the claimed infringement of the right to education, beyond asserting
that ‘prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion … does
not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside
the classroom.’186 This assertion does not acknowledge the weight of the right to equal access to education without arbitrary
barriers described in this section.
180 ibid [18].
181 ‘‘Can’t give up hijab’’ (n 4).; Khan (n 4).
182 Mohini Jain (n 171) [18].
183 Puttaswamy I (n 121).
184 Rishika Sahgal, ‘Evictions and Participation Rights in India and South Africa’ (University of Oxford 2022) 239.
185 Samtani (n 172) 277.
186 Resham (n 6 ) 124.
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VI. FAILURE TO MEET THE PROPORTIONALITY STANDARD OF JUSTIFICATION
A. Does the proportionality test apply to the GO?
B. Is the GO justified under the proportionality test?
1. Is the GO pursuing a legitimate aim?
2. Is the GO suitable in pursuing said aim?
3. Is the GO necessary to pursue said aim?
4. Is the GO proportional?
A. The test of proportionality applies in determining the constitutionality of the GO
We have demonstrated above that the GO violates a range of rights of the petitioners. This includes the right to equality and
non-discrimination, the right to privacy and autonomy, and the right to education. However, most rights are not absolute
and can be restricted in certain circumstances.187 The right against discrimination on grounds of religion and sex, the right to
privacy, autonomy, and education can all be validly restricted if the restriction meets the test of proportionality.
As stated by the Supreme Court in Modern Dental College v State of MP,188 the test of proportionality requires that once the
infringement of a right is proved, the state has the burden of showing that the measure (1) pursues a proper purpose (2)
through means that are suitable and (3) necessary, and (4) that the benefit from the impugned measure outweighs the harm
caused due to the restriction of the right.189 To be declared valid, a rights infringing measure has to satisfy all four prongs of the
proportionality test.
Explaining the importance of the proportionality test, in K. S. Puttaswamy v. Union of India (Right to Privacy),190 the Supreme
Court observed that
Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature
and quality of the encroachment on the right is not disproportionate to the purpose of the law.
Since 2016, multiple Supreme Court judgments have upheld the proportionality test as the basis for adjudicating the validity
of restrictions on Article 15(1), 19 and 21.191 Overall, the test that has been approved by the Court requires a rights restricting
measure to satisfy the following conditions:
a. A measure restricting a right must have a legitimate goal (legitimate goal stage).
b. It must be a suitable means of furthering this goal (suitability or rational connection stage).
c. There must not be any less restrictive but equally effective alternative (necessity stage).
d. The measure must not have a disproportionate impact on the rightholder (balancing stage).192
187 Modern Dental College and Research Centre v State of Madhya Pradesh (2016) 7 SCC 353 (‘Modern Dental’).
188 ibid.
189 ibid.
190 (2017) 10 SCC 1.
191 See eg Modern Dental (n 187); Subramanian Swamy v Union of India (2016) 7 SCC 221; Binoy Viswam v Union of India (2017) 7 SCC 59;
Puttaswamy (I) (n 121); Puttaswamy (II) v Union of India (Aadhaar) (2019) 1 SCC 1 (‘Puttaswamy II’); Anuradha Bhasin v Union of India (2020)
3 SCC 637; Internet and Mobile Association of India v Reserve Bank of India 2020 SCC OnLine SC 275.
192 Modern Dental (n 187), cited with approval in Puttaswamy (II) (n 191) and Anuradha Bhasin (n 191).
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As is evident from this test, a rights restricting measure is not constitutional only because it pursues a public interest, howsoever
important that interest may be. Only those measures that pursue a legitimate aim through proportionate means impose valid
restrictions on fundamental rights. As such, the GO’s invocation of the Supreme Court’s decision in Asha Renjan v. State of
Bihar193 on the point that “individual interest must yield to larger public interest” does not accurately capture the development
of the law. After the acceptance of the proportionality test, the individual right will give way to the larger public interest only if
the measure is shown to be pursuing the public interest through means that are suitable and necessary and the harms caused
by restricting the right are outweighed by the benefits from pursuing the impugned measure.
In Resham, the Karnataka High Court rejects the application of the proportionality test on the ground that the rights claimed
in the present petition are derivative and not substantive rights. The Court also states that schools are qualified public spaces
where rights do not apply with equal vigour and even substantive rights transform into derivative rights.
This assertion by the Court directly contravenes the dicta of the Supreme Court in PUCL v Union of India (2003) 4 SCC 399) where
the state sought to argue that the ‘right to know’ under Article 19(1)(a) is a derivative right and can therefore be restricted to a
greater extent by the legislature. The Court stated that:
[T]his submission requires to be rejected as there is no such concept of derivative fundamental rights. Firstly, it should be
properly understood that the fundamental rights enshrined in the Constitution such as, right to equality and freedoms have
no fixed contents. From time to time, this Court has filled in the skeleton with soul and blood and made it vibrant. Since the
last more than 50 years, this Court has interpreted Articles 14, 19 and 21 and given meaning and colour so that the nation can
have a truly republic democratic society.
Essentially the court held that all rights apply with equal vigour, and some rights cannot be treated as derivatives of others.
Rather, they are interpretations of the enumerated rights.
Similarly, the Court’s contention that rights apply less vigorously in ‘qualified public spaces’ is in contrast to the Supreme
Court’s position in a long line of cases culminating in K. S. Puttaswamy v Union of India (Right to Privacy) that the right to
privacy applies to ‘persons, not places.’ The Court in Puttaswamy went on to state that the test of proportionality applies to
infringements of the right to privacy.
Therefore, as we argue below, the GO has to be tested against the doctrine of proportionality. The state has to justify why
the interests of discipline and decorum (and other goals being pursued by the state through the GO) outweigh the rights to
equality and non-discrimination, speech and expression, and privacy, dignity, and autonomy of the petitioners.
B. The GO fails the proportionality test
1. Proper Purpose or Legitimate Goal Test
The state has to prove that the impugned order is pursuing a proper purpose. From a perusal of the GO and the cases cited
in it, there appear to be four purposes or objectives for the measure: (1) maintenance of public order, (2) securing equality,
(3) maintenance of unity, and (4) maintenance of discipline in educational institutions. The purpose of the GO also must be
understood in the context of the parent legislation from which the GO derives its authority: the Karnataka Education Act, 1995.
In its preamble, this Act states that the objective of the Act, inter alia, is to cultivate a secular outlook through education. These
are also the objectives mentioned by the Karnataka High Court in support of the GO.
Prima facie, all of these are legitimate aims for the state to pursue; and specifically, Article 19(2) allows the state to restrict the
right to free speech and expression in the interests of public order. Hence, the first limb of the test is satisfied. However, it is
one thing for the GO to assert that it is pursuing a proper purpose, and quite another for it to demonstrate that the measure is
a suitable, necessary, and balanced approach to achieving these purposes.
In Section II above, we have demonstrated that the GO does not fulfill the purposes of its parent legislation, the Karnataka
Education Act, 1995. Below, we argue that the GO is neither suitable nor necessary to meet the other objectives it seeks to
pursue.
2. Suitability
193 (2017) 4 SCC 397.
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The test of suitability is that of rational nexus.194 The state has to demonstrate that the measure advances the purposes for
which it has been promulgated. We argue that the restriction on religious headscarves in schools is not suitable for advancing
any of the objectives set out in the GO.
a. The GO does not advance public order
The first objective set out in the GO is the maintenance of public order. The Karnataka High Court suggests that public order in
the GO is different from the constitutional ground of public order. Even otherwise, it is unclear how prescribing a dress code
furthers the maintenance of public order. The Supreme Court has understood “public order” as requiring a high threshold of
disturbance, going much beyond general law and order problems. In Dr Ram Manohar Lohia v State of Bihar,195 the Supreme
Court held that the phrase “maintenance of public order” has to be understood as follows:
[O]ne has to imagine three concentric circles : Law and order represents the largest circle within which is the next circle
representing public order and the smallest circle represents the security of the State.
Citing this dictum with approval, in Madhu Limaye v Sub-Divisional Magistrate196 the Supreme Court held that
“Public order” no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It
means, what the French designate order publique, defined as an absence of insurrection, riot turbulence, or crimes of
violence. The expression “public order” includes absence of all acts which are a danger to the security of the State and
also acts which are comprehended by the expression “order publique” explained above but not acts which disturb only
the serenity of others.
Thus, the state has a high burden of proving that the restriction on Muslim women wearing the hijab in educational institutions
will cause such a disturbance as to rise to the level of threatening the maintenance of public order. Public order cannot be
understood as any kind of order that the government seeks the citizenry to follow. Further, mere law and order disturbances
will not be enough to satisfy this requirement. Neither the GO, nor the state have demonstrated that wearing the hijab itself
causes a disturbance to public order in the sense that the Supreme Court has understood the phrase.
The only link between the measure and public order is that the government fears that if Muslim women are allowed to wear the
headscarf to educational institutions, vigilante groups and mobs may create public disorder. Hence, the GO restricts Muslim
women from exercising their rights. If this is the purported justification for the ban on headscarves, then this justification will
fall foul of the Supreme Court’s holding that an otherwise valid exercise of a right cannot be restricted on account of threat of
violence if the right is exercised.
In Gulam Abbas v State of UP,197 the Supreme Court struck down an order under Section 144, CrPC that restricted a religious
community from performing religious ceremonies for fear of reprisals from another community. The Court held that the state
cannot
interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute
a large majority and it would be more convenient for the administration to impose restrictions which would affect only
a minor section of the community rather than prevent a larger section more vociferous and militant.
Likewise in S. Rangarajan v Jagjivan Ram,198 where certification had been denied to a movie on the ground that it would
provoke violence, the Supreme Court held that
We want to put the anguished question, what good is the protection of freedom of expression if the State does not take
care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom
of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That
194 Anuradha Bhasin (n 191).
195 (1966) 1 SCR 709
196 (1970) 3 SCC 746.
197 AIR 1981 SC 2198.
198 (1989) 2 SCC 574.
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would tantamount to negation of the rule of law and a surrender to black mail and intimidation. It is the duty of the State
to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability
to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.
More recently, in Indibily Creative Pvt Ltd v Govt of West Bengal,199 the Supreme Court has stated that the state has a positive
obligation to ensure that rights are realised and the “conditions in which freedoms flourish are maintained.” The Court held
that
[T]he State cannot look askance when organised interests threaten the existence of freedom. The State is duty-bound to
ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the State must be
utilised to effectuate the exercise of freedom. When organised interests threaten the [rights holders] with reprisals, it is
the plain duty of the State to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive
obligation on the State to create and maintain conditions in which the freedoms guaranteed by the Constitution can be
exercised, there is a real danger that art and literature would become victims of intolerance.
Taken together, the Supreme Court has held that an otherwise valid exercise of a right cannot be restricted only on the ground
of threats of mob violence. In the present case, while in the abstract, the maintenance of public order is a legitimate aim for the
state to pursue, the impugned measure does not advance the aim. The only reasoning by which the impugned measure could
be said to advance the aim is disallowed as a means to maintain public order by the dicta of the Supreme Court.
b. The GO does not advance equality
The next objective set out in the GO is that of securing equality. The GO states that while schools and colleges have “adopted
methods to allow all students to participate in uniform learning programs,” “in some institutions, students are following
practises as per their religion, which is adversely affecting equality in such schools and colleges.” This indicates that the
GO is conflating equality with the pursuit of uniformity. It assumes that the condition of equality is obtained by requiring
every student to wear the same uniform. However, uniformity does not lead to equality if the underlying conditions upon
which uniform laws operate are not equal. Some religions mandate its devotees to wear religious attire as part of religious
observance. Others do not. Imposing the same requirement on groups that do not have a religious mandate with respect to
attire, and groups which do, falls foul of the substantive understanding of equality. As discussed in Section III above, the vision
of equality enshrined in the Indian Constitution eschews such formal or abstract equality in favour of substantive equality that
accounts for difference in people’s circumstances.
Even the existing “uniform” policy pays attention to context and prescribes (or allows for) different uniforms for girls and
boys. If the pursuit of equality is not hampered by recognition of this cultural context where girls and boys expect to, and are
expected to, dress differently, it is not clear why the context where some religions may expect religious attire to be worn cannot
be accommodated within the requirements of uniformity. At the very least, the gender differentiated “uniforms” indicate that
uniformity is not a natural or pre-existing condition, but socially constructed and imposed. In this light, the only way the GO
can be said to further equality is by limiting the understanding of equality to sameness, which goes against the constitutional
conception of equality as discussed in Section III. As such, the GO does not advance a constitutional conception of equality.
In practice, the GO does not restrict other religious attire from being worn in schools, including turbans and kadas by Sikhs, or
religious threads on wrists and chests, sindoor, mangalsutra/thali, etc by Hindus.200 This indicates that the GO is only paying
lip-service to even its limited understanding of equality as sameness, and is hiding behind the guise of equality to discriminate
against Muslim girls.
c. The GO does not advance unity
The state has failed to show any nexus between the impugned restriction and the advancement of unity. If anything, the GO
stands in opposition to the constitutional conception of unity.
199 2019 SCC OnLine SC 564.
200 Oral submissions of the Attorney General before the Karnataka High Court.
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As the Supreme Court has recognized in St. Stephen’s College v University of Delhi,201 the “aim of our Constitution is unity in
diversity.” Expounding on this theme, the Court has held that
Unity in diversity is the Indian culture and ethos. The tolerance of all religious faiths, respect for each other’s religion
are our ethos. These pave the way and foundation for integration and national unity and foster respect for each other’s
religion; religious faith and belief.202
Along the same lines, in Tehseen Poonawalla v Union of India,203 the Supreme Court recently held that
A fabricated identity with bigoted approach sans acceptance of plurality and diversity results in provocative sentiments
and display of reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an
atmosphere is one in which rational debate, logical discussion and sound administration of law eludes thereby
manifesting clear danger to various freedoms including freedom of speech and expression. One man’s freedom of
thought, action, speech, expression, belief, conscience and personal choices is not being tolerated by the other and this
is due to lack of objective rationalisation of acts and situations. ….
Pluralism and tolerance are essential virtues and constitute the building blocks of a truly free and democratic
society. It must be emphatically stated that a dynamic contemporary constitutional democracy imbibes the
essential feature of accommodating pluralism in thought and approach so as to preserve cohesiveness and
unity. ….
The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race,
caste, class or religion. The State has the primary responsibility to foster a secular, pluralistic and multi- culturalistic
social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives. Stifling
free voices can never bode well for a true democracy. …
Unity in Diversity must be recognized as the most potent weapon in India’s armoury which binds different
and varied kinds of people in the solemn thread of humanity. This diversity is the strength of our nation and
for realizing this strength, it is sine qua non that we sustain it and shun schismatic tendencies. It has to be
remembered that the unique feature of “Unity in Diversity” inculcates in the citizens the virtue of respecting
the opinions and choices of others. Such respect imbibes the feeling of acceptance of plurality and elevates the
idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity.
Thus the understanding of unity in the Indian context includes respect for pluralism and diversity. It does not seek to impose
uniformity or homogeneity on a diverse social reality, but finds strength in the confluence of heterogeneous traditions,
practices, thoughts and beliefs. The state has failed to demonstrate that the GO furthers this conception of unity.
d. The GO does not advance discipline or enhance educational attainments
A third objective discernible from the GO and the state’s defence of it, is the maintenance of discipline and receiving quality
education. In Col. Nitisha204 too, the Supreme Court accepted that indirect discrimination can be justified if the state could
prove that the impugned measure is required for successful job performance (or in this case, educational performance).
The government argues that,
In educational institutions, students should not be allowed to wear identifiable religious symbols or dress code catering
to their religious beliefs and faith. Allowing this practise would lead to a student acquiring a distinctive, identifiable
feature which is not conducive for the development of the child and the academic environment.205
201 St. Stephen’s College v University of Delhi AIR 1992 SC 1630.
202 Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v State of UP (1997) 4 SCC 606.
203 Tehseen Poonawalla v Union of India (2018) 9 SCC 501.
204 Nitisha (n 30).
205 Statement of Objections filed on Behalf of the Respondents State in WP Nos 2146/2022 and 2347/2022 [15].
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However, any link between attire and performance in educational endeavours is extremely tenuous and remote. Apart from
making ipse dixit statements during the hearings, the state has not shown what specific harm is caused to educational
attainments because of Muslim women wearing the hijab. As the Supreme Court has noted, the nexus between the measure
and its objective must be “intimate” and “proximate.”206 The Court has noted in the context of reasonable restrictions under
Article 19 that
The limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a
proximate connection or nexus with public order, but not one far- fetched, hypothetical or problematical or too
remote in the chain of its relation with the public order.207
Similarly, in S. Rangarajan v Jagjivan Ram,208 the Supreme Court held that the anticipated danger that is the basis of the
impugned order, “should not be remote, conjectural or far fetched.” It should have a “proximate and direct nexus” with the
action sought to be restricted.
Thus, it is not enough for the state to assert that Muslim girls wearing the hijab in educational institutions will inhibit discipline
or educational attainments. They have to show a proximate nexus between this purported danger and the impugned measure.
In the words of the Supreme Court such nexus should not be “hypothetical and imaginary.”209 The state has completely failed
to prove any proximate nexus between the prohibition on the hijab and the maintenance of school discipline and enhancing
educational attainments.
If anything, the impugned order runs contrary to the objectives that it seeks to achieve. As the Supreme Court has recognized,
in determining the reasonableness of a restriction, “the Court has to see whether by virtue of the restriction imposed on the
right of the citizen the object of the statute is really fulfilled or frustrated.”210 The impugned order limits Muslim girls’ ability to
successfully complete their education.
Theoretically, it could be argued that Muslim girls who wear the hijab may take off the hijab and attend school. However, as the
Government of India’s New Education Policy, 2020 (“NEP”) recognizes, “a caring and inclusive culture” in schools is essential for
“effective learning.”211 The NEP states that an educational culture based on “notions of inclusion and equity, and the respect,
dignity, and privacy of all persons … will provide the best pathway to help students become empowered individuals who, in
turn, will enable society to transform into one that is responsible towards its most vulnerable citizens.”212 In this light, a culture
that forces hijab wearing Muslim students to give up their religious practices in order to seek an education flies in the face of
inclusive education, and run counter to an educational environment that promotes effective learning. The negative impact of
the restriction on hijabs on access to education is discussed in Sections III and V.
Secondly, it is widely acknowledged that diversity and inclusivity within the classroom facilitates and improves learning for all
students. For example, in the Karnataka Education Act 1983, the following goals are emphasised for the education curricula,
(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;213
This fits with the wider constitutional goal to promote diversity, as has been acknowledged by the Supreme Court in a number
206 The Superintendent, Central Prison, Fatehgarh v Dr. Ram Manohar Lohia AIR 1960 SC 633.
207 ibid.
208 1989 SCC (2) 574.
209 Ram Manohar Lohia (n 206).
210 Pathumma v State of Kerala AIR 1978 SC 771.
211 New Education Policy 2020, 21.
212 ibid 28.
213 Karnataka Education Act 1983, s 7(2)(g).
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of cases, including St Stephen’s College214 and Tahseen Poonawalla.215 It also forms part of the New Education Policy 2020,
which emphasises that an inclusive approach to education enhances learning.
The need to harness the benefits of diversity for education, has been recognised as a ‘compelling state interest’ under the US
Constitution.216 The US Supreme Court has recognised that students bringing diverse ideas and life experiences enable a ‘robust
exchange of ideas’ in the classroom,217 and this improves the ‘educational experience both inside and outside the classroom.’218
Here, we refer to jurisprudence of the US Supreme Court not to argue that India un-reflexively adopt a similar view,219 but
rather to indicate that the importance of diversity for education is widely acknowledged in comparative jurisdictions, and that
we ought to deliberate whether diversity may similarly be important for education in India.
Studies confirm these views, indicating that a diverse classroom has benefits for education.220 For example, in a report
submitted before the US Supreme Court, psychologist Patricia Gurin argued, ‘[d]iversity of all forms in the student body –
including racial diversity – is crucially important in helping students become conscious learners and critical thinkers, and in
preparing them for participation in a pluralistic, diverse society.’221 It is important to develop similar empirical evidence in
the context of India, and with special reference to religious diversity in the classroom. The presence of students practicing
different religions, with different interpretations of what their religion requires of them,222 ought to be beneficial for education,
because it exposes students not only to the existence of religious diversity, but also to diversity within religions. Some Muslim
girls interpret the requirements of Islam as requiring them to wear the hijab, while others do not. Banning the hijab within the
classroom robs students of exposure to this kind of diversity.
It should be noted, here, that arguments are not being made in favour of doing away entirely with uniforms. This argument has
not been raised by the petitioners in the case, who have conformed with the requirement to wear a uniform, save for wearing
the hijab in addition to the uniform. The constitutionality of uniforms as a whole, is a separate issue that is beyond the scope
of this note. Rather, arguments are being made to indicate that absolute uniformity, and the removal of all distinctiveness
among students, such as students wearing the hijab or turban in educational institutions at the pre-university level, has not
been shown to be suitable to promote educational outcomes, rather diversity is good for education.
Studies also indicate the importance of diversity in the classroom to promote a sense of solidarity or fraternity, by improving
intergroup understanding, and challenging stereotypes.223 It has been found that diversity within the classroom helps prepare
students to live in a multicultural society. Thus, it is not suitable to impose uniformity and erase all diversity within the
classroom in order to promote ‘feelings of oneness, fraternity and brotherhood’ within educational institutions. Again, the
burden must fall on the government to provide empirical evidence to indicate otherwise – to show imposing uniformity in
214 St Stephens’s College (n 201).
215 Tahseen Poonawalla (n 203).
216 University of California Regents v Bakke 438 US 265 (1978); Grutter v Bollinger (2003) 539 US 306; Gratz v Bollinger (2003) 539 US 244; Fisher
v University of Texas at Austin (2016) 136 S Ct 2198; Carole J Buckner, ‘Realizing Grutter v. Bollinger’s Compelling Educational Benefits of
Diversity - Transforming Aspirational Rhetoric into Experience’ (2003) 72 UMKC Law Review 877.
217 Bakke (n 216) 313.
218 Grutter (n 216) 319.
219 Sandra Fredman, Comparative Human Rights Law (OUP 2018) ch 1.
220 Justin Pidot, ‘Intuition or Proof: The Social Science Justification for the Diversity Rationale in “Grutter v. Bollinger and Gratz v. Bollinger”’ (2006)
59 Stanford Law Review 761; Sylvia Hertado, ‘Linking Diversity and Educational Purpose: How Diversity Affects the Classroom Environment and
Student Development’ in Gary Orfield (ed), Diversity Challenged: Evidence on the Impact of Affirmative Action (Harvard Education Press 2001);
Patricia Gurin, ‘Expert Report of Patricia Gurin’ (1999) 5 Michigan Journal of Race & Law 363; Mitchell J Chang, ‘The Positive Educational Effects
of Racial Diversity on Campus’ in Gary Orfield (ed), Diversity Challenged: Evidence on the Impact of Affirmative Action (Harvard Education Press
2001); James Jones and others (eds), Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (Stanford
University Press 2003); Jeffrey F Milem, ‘The Educational Benefits of Diversity: Evidence from Multiple Sectors’ in James Jones and others
(eds), Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (Stanford University Press 2003).
221 Gurin (n 220).
222 See Section VII on violation of religion under Article 25.
223 Patricia Gurin, Biren (Ratnesh) A Nagda and Gretchen E Lopez, ‘The Benefits of Diversity in Education for Democratic Citizenship’ (2004) 60
Journal of Social Issues 17; Milem (n 220).
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the classroom is suitable to facilitate solidarity. Such an assertion on the part of the government is not self-evident, and is not
sufficient to fulfil the requirements of the proportionality test.
It can be seen that since the decision of individual educational institutions, such as PU College Udupi, to prevent students
wearing the hijab from accessing education, and since the promulgation of the relevant GO, disorder and controversy has
plagued educational institutions in the state of Karnataka. Since these events, polarisation within classrooms has increased,224
and it is difficult to see how this is conducive to learning in pre-university or other educational institutions. In a report on
diversity and democracy in higher education, it was argued that, ‘[t]he politicization of caste and religion can be disastrous for
higher education’.225 This seems to have occurred in PU College, where, it is reported, ‘[e]veryone is hoping that things soon
return to the way they were.’226
3. Necessity
In a proportionality analysis, an impugned measure is unconstitutional if it fails a single prong of the test. Thus, once it is
shown that the restriction on wearing the hijab in educational institutions is not a suitable means to carry out the objectives of
the GO, the measure should be declared unconstitutional.
Even assuming that the restriction meets the test of suitability, the state must also prove that its objectives could not be met by
measures that restrict the right to a lesser degree. This is the test of necessity. For example, in Anuj Garg v. Hotels Association
of India,227 the Supreme Court rejected the argument of the state that a restriction on women working in places that served
liquor was justified for the security of women, and stated that even though women’s security was a legitimate state aim,
[i]nstead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wise approach.
This empowerment should reflect in the law enforcement strategies of the state as well as law modeling done in this
behalf
Thus, the existence of an alternative policy that achieves the aims of the impugned measure, but restricts rights less, would go
to show that the impugned measure is not necessary.
In the present context, the state has not shown that other less rights restricting alternatives cannot address the objectives
behind the impugned measure. In particular, in the context of educational institutions, the concerns regarding equality,
discipline and educational benefits can be addressed by measures that inculcate the values of inclusivity, pluralism, and
respect for diversity. In recognition of the importance of such values, the New Education Policy, 2020 states that it will foster a
new educational culture that promotes these values and that
Students will be sensitized through this new school culture, brought in by teachers, trained social workers and
counsellors as well as through corresponding changes to bring in an inclusive school curriculum. The school curriculum
will include, early on, material on human values such as respect for all persons, empathy, tolerance, human rights,
gender equality, non-violence, global citizenship, inclusion, and equity. It would also include more detailed knowledge
of various cultures, religions, languages, gender identities, etc. to sensitize and develop respect for diversity. Any biases
and stereotypes in school curriculum will be removed, and more material will be included that is relevant and relatable
to all communities.228
Such an inclusive education that accommodates and celebrates religious pluralism and diversity is more in tune with the
224 Divya Arya, ‘Karnataka Hijab Controversy Is Polarising Its Classrooms’ BBC News (Karnataka, 16 February 2022) <https://www.bbc.co.uk/news/
world-asia-india-60384681> accessed 25 February 2022.
225 Edgar F Beckham (ed), Diversity, Democracy, and Higher Education: A View from Three Nations (Association of American Colleges and Universities
2000) 16; Jayalakshmi Indiresan, ‘The Dynamics of Diversity and Higher Education: Initiatives and Challenges in the Indian Context’ in Edgar F
Beckham (ed), Diversity, Democracy, and Higher Education: A View from Three Nations (Association of American Colleges and Universities 2000)
55.
226 Soumya Kalasa, ‘Govt Pre University College For Girls: The Udupi Institution Where the Hijab Row Began’ Firstpost (11 February 2022) <https://
www.firstpost.com/india/karnataka-farmer-seeks-permission-to-die-by-suicide-pdo-approves-and-officially-acknowledges-it-10367621.html>
accessed 25 February 2022.
227 (2008) 3 SCC 1.
228 New Education Policy 2020, 28
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constitutional values and ethos of substantive equality, respect for autonomy, privacy and dignity, and fostering a democratic
culture that strengthens unity through the protection of diversity. As the New Education Policy 2020 recognises, such an
inclusive approach to education also enhances learning.
Less rights restricting measures such as requiring Muslim girls to match their hijabs to the colour of their uniform can also
take care of the concerns regarding discipline and the benefits of having a prescribed uniform, while accommodating the
distinctive religious needs of Muslim girls. In other contexts, such as the Armed Forces, where the requirements of uniformity
and discipline are much higher than in educational institutions,229 the rules regarding head and facial hair provide religious
accommodation to armed force members whose religion prohibits cutting of hair.230 Guidelines are put in place to ensure
that armed force personnel can observe their religious practice consistently with the requirements of army discipline and
uniformity.231
In sum, if the state is concerned that Muslim girls wearing the hijab in schools will impact equality, discipline, unity or
educational attainments, it should empower students to understand the importance and value of pluralism and to respect
diversity. It can provide for rules that allow Muslim girls to wear the hijab consistent with overall uniform guidelines. If the state
is concerned that Muslim girls wearing hijabs in schools will impact the maintenance of public order, then the state has the
responsibility of securing public order instead of curbing the rights of Muslim women to wear the hijab.
4. Balancing
Finally, in the balancing stage of proportionality, the court is required to determine whether the benefits from the impugned
measure outweigh the harms caused by the restriction of the rights concerned. In engaging in this analysis, the Court has
to examine both the importance of the objectives being pursued and the likelihood that they will be realised.232 These
have to be balanced against the harms caused by the restriction and the likelihood of such harms coming to pass.233 In the
current context, as discussed above, the harms from the restrictions have been immediate and have deprived female Muslim
students of valuable rights, including the right to an inclusive education. As discussed above, any nexus between the GO and
the objectives it seeks to pursue is based on a very attenuated and constitutionally suspect meaning of these objectives.
Furthermore, the likelihood of the measure advancing such objectives is also neither evident nor proven. There is no direct
or proximate nexus between the GO and the objectives it seeks to pursue. Hence, on balance, the harms from the restrictions
placed on Muslim women’s rights outweighs the negligible (if any) and remote public benefits that are likely to accrue from
implementing the GO.
Taken together, the analysis above indicates that the GO infringes Muslim women’s right to equality and non-discrimination,
autonomy, privacy and dignity, and right to education. The restrictions imposed by the GO are neither suitable nor necessary
for meeting the purported objectives of the GO. The harms caused to Muslim women from the restrictions imposed by the GO
far outweigh any potential benefit arising from such restrictions. As such, the GO is not a proportionate restriction on above
mentioned rights. It is therefore unconstitutional.
CONCLUSION
In Resham, the Karnataka High Court recognised that the infringements of rights has to be justified by reference to the test of
proportionality. However, the Court stated that the rights being claimed in the present petitions were
…essentially ‘derivative rights’ of the kind. Their grievances do not go to the core of substantive rights as such but lie in the
penumbra thereof. So, by a sheer constitutional logic, the protection that otherwise avails to the substantive rights as such
cannot be stretched too far even to cover the derivative rights of this nature…
229 Mohd Zubair v Union of India (2017) 2 SCC 115 (stating that “uniformity, cohesiveness, discipline and order … are indispensable to the Air Force,
as indeed to every armed force of the Union).”
230 See e.g., Regulations for the Air Force 1964, cl 425.
231 ibid.
232 Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press, 2012) 348 (cited with approval in Modern
Dental (n 161); Puttaswamy (II) (n 165); Anuradha Bhasin (n 165).
233 ibid.
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The Court also stated that schools are ‘qualified public places,’ which ‘by their very nature repel the assertion of individual
rights to the detriment of their general discipline & decorum. Even the substantive rights themselves metamorphise (sic) into
a kind of derivative rights in such places.’
In essence the Court argued that the rights claimed by the petitioners did not require the application of the proportionality test
since (1) the rights claimed were derivative, not substantive rights and (2) the rights were being claimed in a “qualified public
place” where assertion of rights is itself attenuated, and substantive rights “metamorphise” (sic) into derivative rights.
Second, even though the Court held that the reasonableness and proportionality tests were inapplicable to such derivative
rights, it observed that the prohibition of the hijab was a reasonable regulation in the interests of secularism, discipline and
decorum.234 This, in the Court’s opinion, involved ‘a sort of balancing’ between individual rights and collective interests.235
We have already discussed above the manner in which the Court engages with the nature of Indian secularism, holding the
prohibition of the hijab as compatible with it. On the objective of discipline and decorum, the Court reiterated its observation
that places such as ‘courts, war rooms, defence camps, etc’ are qualified public spaces where individual freedoms must be
curtailed in order to ensure discipline and decorum.236 The Court also dismisses the ‘extreme argument’ that students should
be free to choose their attire on the grounds that this causes indiscipline leading to possible chaos in educational institutions
and society as a whole.237
Third, the Court held that the object of school uniforms, which was to create a ‘safe space,’ where ‘differentiating lines of race,
region, religion, language, caste, place of birth, etc.’ could be erased would be defeated.238 TIn the Court’s view, the wearing of
a hijab also interferes with this objective since it creates a ‘a sense of “social-separateness”.’239
Further, the Karnataka High Court decision in Resham does not state the reason as to why the right of Muslim women to
wear the hijab within schools and colleges would not directly flow from individual autonomy and dignity guaranteed by the
fundamental right to privacy and why it would qualify as a derivative right lying in the penumbra of the right. In creating this
unsubstantiated distinction, the Karnataka High Court also goes against the Supreme Court in PUCL, as discussed above,
which rejected such a distinction.
In this section, we have analysed the Court’s discussion of the applicability of the doctrine of proportionality to the GO. We
argue that the test of proportionality will have to be applied in evaluating the prohibition of the hijab. We discuss the manner
in which the proportionality test applies to this case, arguing that the prohibition of the hijab falls foul of this test. We argue
against the Court’s implicit claims that there exists only two choices when it comes to space for religious attire in schools:
complete homogeneity in uniforms, or no uniforms at all. This misconstrues the contentions of the petitioners, and we argue
that the hijab can be accommodated within the requirements of school uniforms, so as to meet the objectives of prescribing
school uniforms in a manner that is less restrictive of the rights of the petitioners than the present GO.
234 ibid 103-106.
235 ibid 102.
236 ibid 104.
237 ibid 105-06.
238 ibid 107 (emphasis in original).
239 ibid 106 (emphasis in original).
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VII. VIOLATION OF FREEDOM OF RELIGION UNDER ARTICLE 25
Central Issue: Whether a ban on the wearing of the hijab and other religious clothing in educational institutions violates the
freedom to practice one’s religion in Article 25.
Sub-Issues:
A. Whether the wearing of the hijab or other religious clothing is protected under Article 25.
1. Article 25 protects both religious beliefs and practices, and the practice of wearing hijab is by its nature a
religious practice.
2. The practice of wearing hijab is a legitimate understanding of an essential religious practice in Islam, falling
within the ambit of Article 25.
3. Alternate (stricter) interpretations of the essential religious practices test are unwarranted or inappropriate
because —
a. the test has usually been applied in cases of religious or social reform, which is not pertinent here,
b. the Court must provide constitutionally appropriate protection to religious freedom.
4. The practice of wearing hijab in the present case is based on a sincerely held religious belief, and such practices
are protected under Article 25.
B. Whether the present notification/rule is an illegal restriction of Article 25.
1. The rule and its application are not justified by secularism under the Indian Constitution, and in fact violate the
constitutional requirement of equal respect, accommodation and neutrality of religious practices.
2. The uniform rule is not justified on the constitutionally specified grounds of public health, morality and
order.
3. The rule and its application in the present case violates the constitutional requirement of equality of religious
freedom, and selectively targets religious practices of some communities or persons.
Relevant Constitutional Provisions:
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 —
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious
practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus.
Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 26. Freedom to manage religious affairs.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right —
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(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
Discussion of issues:
A. Whether the wearing of the hijab or other religious clothing is protected under Article 25.
1. Article 25 protects both religious beliefs and practices, and the practice of wearing hijab is by its
nature a religious practice.
There is little doubt that Article 25 of the Constitution protects not just the internal religious beliefs of individuals but also
external practices associated with religion.240 Freedom of religion is therefore not merely a private affair. This was established
early on by the Supreme Court of India (‘SCI’) in Commissioner Hindu Religious Endowments v Shirur Mutt (‘Shirur Mutt’),241
where the Court held:
… [I]t would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down
a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes
of worship which are regarded as integral parts of religion, and these forms and observances might extend even to
matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion
but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of
religion” in article 25.242
It is clear, therefore, that freedom of religion extends to religious practices such as the clothes one wears if they are regarded as
‘integral’ or essential to the religion in question. There is little doubt that the wearing of the hijab is viewed by those who wear
them as a religious obligation, and therefore the wearing of the hijab falls within Article 25’s ambit.243
2. The practice of wearing hijab is a legitimate understanding of an essential religious practice in

Islam, falling within the ambit of Article 25.
In Durgah Committee v Syed Hussain Ali,244 the Court made a distinction between practices which were essential to a religion,
and those which were ‘merely superstitious.’245 While the former would fall within the ambit of Article 25, the latter would not.
This distinction between essential and superstitious practices give courts a role in identifying which practices are religious.
As mentioned earlier, in Shirur Mutt, the Court clarified that practices which are integral or essential to a religion are protected
by Article 25. The Court notes that what constitutes an essential part of a religion is ‘primarily to be ascertained with reference
to the doctrines of that religion itself.’246 No ‘outside authority’ can determine which practices are essential, and the religious
denomination in question enjoys ‘complete autonomy’ in the matter.247
Later cases suggest that ‘fundamental’ or ‘core’ practices would be protected.248 Any practice which, if removed, would not
240 ‘(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.’ Constitution of India 1950, art 25 (emphasis added).
241 (1954) SCR 1005.
242 ibid [17]-[18] (BK Mukherjea J) (emphasis added).
243 Amnah Bint Basheer v Central Board of Secondary Education (2016) SCCOnline Ker 41117 [29] (AM Mustaque J).
244 Durgah Committee, Ajmer v Syed Hussain Ali (1962) 1 SCR 383.
245 ibid [33] (PB Gajendragadkar J).
246 Shirur Mutt (n 241) [20].
247 ibid [23].
248 Commissioner of Police v Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770 [9] (S Rajendra Babu J).
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cause a ‘fundamental change in the character of that religion or in its belief’ would not fall within the right to freedom of
religion.249 The problems with applying the ‘essential religious practices’ (‘ERP’) doctrine without deferring the individual or
group practicing the religion have been observed by many, including Chandracud, J’s concurring opinion in Indian Young
Lawyers’ Association v State of Kerala (‘Sabarimala I’).250 This way of applying ERP doctrine puts judges in the inappropriate
position of interpreting religious practices and beliefs (which they are not trained to do),251 takes away the ability of groups
to determine for themselves the practices or beliefs they deem religious,252 fails to recognise dissenting groups,253 privileges
religious scripture over oral practices, and prevents courts from engaging in the more appropriate task of balancing religious
and other public interests.254
The difficulties with applying ERP in this manner are hence manifest. Applying the ERP test to judge whether the hijab should
be protected under Article 25 involves the court undertaking the unenviable task of interpreting Islamic doctrine, a task which
is best left to those within the religion. Much like all religious practices, there are many different views within the community
on the importance of the hijab. Additionally, the correctness of the doctrine, and how it is applied, has been referred to a nine-
judge bench in the Sabarimala matter. It is therefore inadvisable for courts to attempt to decide whether hijab is an ERP based
on a flawed understanding of the ERP doctrine.
We say this despite the fact that the hijab has indeed been held to be an essential part of the Islamic religion. In Amnah
Bint Basheer vs Central Board Of Secondary Education (‘Amnah Basheer’),255 the Kerala High Court was confronted with
challenges to the validity of the dress code prescribed by the CBSE for the Pre-Medical Entrance Test. This dress code required
candidates to keep their heads uncovered, and was challenged by Muslim students as violation of their religious freedom to
wear a hijab. After an analysis of the Quran and various Hadiths, the court concluded that there are good foundations to the
claim that wearing the hijab is an obligation under Islam, despite the existence of other interpretations.256 Being an essential
practice of Islam, wearing it is protected under Article 25(1). In turn, since the wearing of the hijab did not adversely affect
public order, morality or health, the court directed the CBSE to permit candidates to wear the hijab during the examinations.
Candidates wearing the hijab would be frisked by women invigilators, and could be asked to come early for the examinations
for this purpose, but could not be prohibited from wearing the hijab altogether.257 Such a reasonable accommodation of diverse
religious practices is a hallmark of Indian secularism, as we discuss below.
Despite holding that the hijab is essential to the Islamic faith and thereby protected under Article 25(1), the court in Amnah
Basheer had to engage in a religious exposition of the texts of the Quran and various Hadiths, which, by the Shirur Mutt
principle, is not an appropriate task for a court of law. While in the case the hijab, the beliefs and practices of the petitioners
have adequate official religious scripture and authority to back their claim, Article 25 also protects those who diverge from
official practices within a religion, when such divergent beliefs or practices are sincerely held by an individual or the religious
community in question. An evaluation of whether the hijab is protected by Article 25(1) needs to stand on firmer foundations.
249 ibid.
250 Indian Young Lawyers’ Association v State of Kerala (2019) 11 SCC 1 [408]-[415] (Chandrachud J); See also Rajeev Dhavan, ‘Religious Freedom
in India’ (1987) 35(1) American Journal of Comparative Law 209; Marc Galanter, Law and Society in Modern India (OUP 1989) 237-258; Ronojoy
Sen, ‘Secularism and Religious Freedom’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian
Constitution (OUP 2016) 886, 890-94; Faizan Mustafa and JS Sohi, ‘Freedom of Religion in India: Current Issues and Supreme Court acting as
Clergy’ (2017) BYU Law Rev 915.
251 Galanter (n 250) 253.
252 Dhavan (n 250) 224. See also Amit Bindal, ‘Sabarimala and the Flattening of Religious Community’ (2019) 721 Seminar 73, 76-77.
253 Galanter (n 250) 252. See also Gautam Bhatia, ‘Freedom from community: Individual rights, group life, state authority and religious freedom
under the Indian Constitution’ (2016) 5(3) Global Constitutionalism 351, 365.
254 Dhavan (n 250) 230.
255 Amnah Bint Basheer (n 243).
256 ibid [29]-[30].
257 ibid [32].
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3. Restrictive applications of the essential religious practices test are unwarranted or inappropriate
because (i) the test has usually been applied restrictively in cases of religious or social reform,
which is not pertinent here, (ii) the Court must provide constitutionally appropriate protection to
religious freedom.
Any restrictive application of the essential religious practices doctrine is unwarranted and inappropriate in the present case. As
the evolving jurisprudence of religious freedom under the Constitution clearly establishes, courts formulated the doctrine of
essential religious practices specifically to assess the constitutionality of legislation regulating religious institutions. In these
cases, the State sought to defend its policies on the ground that the legislation was bringing either social reform, or regulating
secular or financial aspects of religious institutions, which it was permitted to do under Article 25 of the Constitution.258
These cases presented three related issues for courts: (1) Were the practices that legislation sought to regulate ‘secular’ aspects
of religious institutions or practice, (2) How could ‘secular’ practices be distinguished from non-secular or ‘religious’ practices,
and (3) If religious and secular practices were intricately intermingled, how could courts still meaningfully separate them so as
to determine the constitutionality of state legislation. It was originally in these legal controversies, involving state legislation
seeking to regulate and manage secular aspects of religious institutions, that courts evolved the doctrine of essential religious
practices, so as to meaningfully distinguish practices that were essentially secular as against those that were integral parts of
religious practice.
An illustration of this can be found in Gajendragadkar J’s judgment in the seminal case of Tilkayat Shri Govindlalji Maharaj
v. State of Rajasthan (‘Shri Govindlalji’),259 which is the locus classicus of the doctrine of essential religious practices. In this
case, the legislation in question vested the ownership, endowments and management of the Nathdwara Temple in a Board
constituted under it. The appellate, who claimed to be the Mahoney or Shebait of the temple, asserted a beneficial interest in
the office of the high priest and the properties of the temple, and challenged the constitutionality of the Nathdwara Temple
Act, 1959 among other things on the ground that it violated his (and his religious denomination’s ) freedom of religion, which
under Articles 26 (b) and 26 (c) included the right to ‘to manage its own affairs in matters of religion’ and ‘to own and acquire
movable and immovable property’ respectively.
One of the key questions before the Court was whether the appellant’s asserted interest was religious in nature (and hence
protected by Articles 25 and 26), or non-religious and secular that was not protected by the Constitution’s freedom of religious
clauses and hence open for the state to regulate through legislation. Writing for the Court, Gajendragadkar J observed,
...[W]hat is protected under Arts. 25 (1) and 26 (b) respectively are the religious practices and the right to manage
affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the
statute is essentially and absolutely secular in character, it cannot be urged that Art. 25 (1) or Art. 26 (b) has been
contravened… whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes
his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right
guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether
the practice in question is religious or the affairs in respect of which the right of management is alleged to have
been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in
matters of religion, then, of course, the rights guaranteed by Art. 25 (1) and Art. 26 (b) cannot be contravened.260
In other words, Gajendragadkar J noted that ‘purely secular’ practices, or practices that were ‘essentially and absolutely
secular in character’ could not receive protection under Articles 25 and 26. But the obvious question this would arise is how
would the Court identify ‘purely secular’ practices and practices that were religious in nature. On this point, Gajendragadkar
J went on to observe,
...[A]s to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in
question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious
and secular, are inextricably mixed up… it is necessary that in judging about the merits of the claim made in that
behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion…
259 1964 SCR (1) 561.
260 ibid [58].
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If an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to
be a religious practice, the Court would be justified in rejecting the claim because the protection guaranteed by
Art. 25(1) and Art. 26(b) cannot be extended to secular practices and affairs in regard to denominational matters
which are not matters of religion, and so, a claim made by a citizen that a purely secular matter amounts to a
religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair
in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and
cannot attract the provisions of Art. 25(1) or Art. 26(b).261
Thus, as held by Gajendragadkar J, if practices that the State sought to regulate were ‘obviously secular,’ then the right to
religious freedom under Articles 25 and 26 would not be triggered. Gajendragadkar J also addressed the concern that
sometimes it may not be easy for the Court to identify such ‘obviously secular’ practices, as opposed to religious ones. In such
cases he held that the Court must assess evidence before it. Gajendragadkar J observed that,
... religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers, include
practices which are an integral part of the religion itself and the protection guaranteed by Art. 25 (1) and Art. 26
(b) extends to such practices. In deciding the question as to whether a given religious practice is an integral part of the
religion or not, the test always would be whether it is regarded as such by the community following the religion
or not… In cases where conflicting evidence is produced in respect of rival contentions as to competing
religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the
community decides which practice is an integral part of its religion, because the community may speak with more than
one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and
in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is,
whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue
will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its
religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution
in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali (1), and observed that in order that the practices in question
should be treated as a part of religion they “must be regarded by the said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as religious practices within the meaning of Art. 25 (1).262
Properly understood, the ERP doctrine should not be applied restrictively in the present case.
First, the present case does not involve social welfare or reform legislation. In the present case, the State has not sought
to regulate activities associated with religious institutions or practices that may be considered harmful. The State has
only adopted a general policy that permits certain educational institutions to lay down uniform rules for all students.
Such a policy does not amount to social welfare legislation. In the case of social welfare legislation, as clear from
Gajendragadkar J’s opinion in the Shri Govindlalji case, courts have a good reason to ensure that constitutionally-
mandated religious reform is not halted due to a broad interpretation of religious practices. Thus, limiting constitutional
protection to essential aspects of religion is justified, so that purely secular or non-essential religious practices
can be reformed. But in the present case, the constitutionality of such social reform legislation is not at stake.
Second, it cannot be anyone’s case that the practice of hijab is anything but a religious practice. The practice is not a ‘purely
secular’ practice, and is widely adopted by Muslim women across the world as an expression of their religiosity based on
the understanding that it is mandated under Islam. There cannot be any reasonable controversy about the fact that hijab is
‘religious in character.’ Moreover, as the passages from Shri Govindlalji case make clear, whether a practice is religious or not
should ideally be based on the views of the adherents of that religion.
Third, since neither is the regulation in question one of social reform nor can there be any reasonable controversy about the
religious character of hijab, we submit that the court must give due respect to religious freedom, which is a constitutionally
guaranteed fundamental right. An application of the doctrine of essential practices that reduces the scope of religious freedom
would not be in the spirit of the Constitution’s fundamental rights and individual liberties.
261 ibid [59].
262 ibid [57].
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4. The practice of wearing hijab in the present case is based on a sincerely held religious belief, and such
practices are protected under Article 25.
To evaluate whether the hijab falls within the ambit of Article 25, the more appropriate test to apply is the test of genuine belief.
This test was discussed in the case of Bijoe Emmanuel v State of Kerala (‘Bijoe Emmanuel’),263 where the Court held:
… [T]he question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether
the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and
reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but
subject, of course, to the inhibitions contained therein.264
In accordance with this ‘genuine belief’ standard, what matters is not the content of the belief but rather whether it is
genuinely held by the believer to be a part of her faith. A court’s role is limited to ascertaining the genuineness of this belief,
and does not include a determination of the validity of that belief. Once this threshold is crossed, then courts can inquire into
whether religious practice can nevertheless be restricted in accordance with the various restrictions mentioned in Article 25.
Applying this to the hijab matter, the only relevant question in determining the applicability of Article 25 to the hijab is whether
those who wear it genuinely believe that wearing it is a part of their religion or a religious duty. There is little question that the
Muslim women who choose to wear the hijab genuinely believe that it is their religious duty. First, many Muslim women across
the world wear the hijab, and there is no reasonable dispute that several interpretations of Islamic doctrine do prescribe the
wearing of the hijab, even though other interpretations also exist.265 Second, the fact that Muslim women in Karnataka have
continued to wear the hijab despite the difficulties and humiliations the actions of state and non-state actors have subjected
them to attests to the strength of their beliefs.266 The continuance of a religious practice in the face of oppression and
humiliation has been recognised by the Supreme Court as a factor in determining the genuineness of the belief.267 Third, as
mentioned above, the personal views of judges on the hijab do not matter; what matters is the belief of the person asserting
the right. In this case, the beliefs of the Muslim women who wear the hijab is clear. Hence, the right to wear the hijab falls within
the ambit of Article 25’s right to practise religion.
Once this threshold is crossed, the next question is whether wearing the hijab contravenes public order, morality or health or
any of the other rights in Part III of the Constitution. We assert that it does not, in the following Part.
B. Whether the present notification/rule is an illegal restriction of Article 25.
1. The uniform rule is not justified on the constitutionally specified grounds of public health, morality and
order.
The State of Karnataka’s Government Order dated 5.2.2022 mandates that the ‘students of all educational institutions shall
behave as one family, without restricting themselves to one class of persons, jointly maintain and uphold public order,’ and
further stipulates that in the event a dress code is not fixed, ‘clothes that do not threaten equality, unity, and public order must
be worn’.268 In a way, the Government Order envisages a situation where the students at a government run educational
institution may wear a piece of clothing which may threaten the values of equality, unity, and public order. The question this
formulation presents is whether by wearing a headscarf or a hijab, at a Government run educational institute, a student may
potentially cause a breach of public order? For the reasons listed below, we submit that it does not.
264 ibid [20].
265 Amhah Basheer (n 243) [29]-[30].
266 Shubhanjana Das, ‘‘It is my comfort and confidence amid the chaos’: Women share what wearing a hĳab means to them’ Indian Express
(Jaipur, 24 February 2022) <https://indianexpress.com/article/lifestyle/life-style/my-hĳab-is-my-comfort-and-confidence-amidst-all-the-chaos-
around-me-women-share-what-wearing-a-hĳab-means-to-them-karnataka-hĳab-row-7768140/> accessed 3 March 2022. See also Zoya Mateen,
‘Karnataka: “Wearing hĳab doesn't make Muslim women oppressed”’ BBC News (Delhi, 23 February 2022) <https://www.bbc.com/news/world-
asia-india-60454685> accessed 3 March 2022.
267 Bijoe Emmanuel (n 263) [3]-[8].
268 Gauri Kashyap, ‘Karnataka Government Order on Dress Code for Students (Translated to English)’ (SC Observer, 14th February, 2022) <https:/
/www.scobserver.in/journal/karnataka-government-order-on-dress-code-for-students/> accessed 6 March, 2022.
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A plain reading of Article 25 of the Indian Constitution would highlight that the right to exercise religious freedom is not an
absolute right, but a qualified right, which is subject to restrictions on the grounds of public order, public health or public
morality. Plainly, the purpose of these qualifiers is to prevent a faith from having or endorsing practices which run counter to
public order, public health or public morality, and in the event the Government is of the view that such a practice exists, they
may step in to regulate it. However, given the Court's well-settled tradition of following principles of religious tolerance,
neutrality, equal respect and accommodation, these qualifiers which stipulate interference in religious practices are an
exceptional safeguard against abuse of the right, demanding rigorous scrutiny, and non-interference is the rule, rather than an
exception. Even at the height of exceptional situations due to the COVID-19 pandemic, courts have upheld exercise of religious
practices, processions and gatherings, designing narrowly tailored restrictions, rather than invoking a blanket ban and stifling
them by invoking grounds of public health, order or morality. Let us consider these qualifiers one by one:
a. Public Order:
The Government’s order specifying a uniform is not justified on the grounds of public order for these reasons. First,
enactments which seek to regulate religious practices on the grounds of public order need to be ‘in interest of public order’,
not for ‘maintaining public order’. In Ramji Lal Modi, a constitutional bench of the Court noted the link between Articles 19(2),
25 and 26, all of which sought to impose some restrictions on exercise of fundamental rights on the basis of ‘public order’. The
Court observed that the nature of the restrictions on the grounds of public order, which can be imposed on freedom of religion,
are similar to the restrictions which can be imposed upon free speech ‘in the interests of public order.’ We discuss in Section VI
how the ban on the hijab and other religious clothing in educational institutions does not meet the requirements of
proportionality in the context of a restriction on public order grounds. Therefore, on the same grounds, the ban on the hijab
cannot be justified on public order grounds for Article 25 as well.
b. Public Health:
Consider for example the order of the SCI in Odisha Vikash Parishad,269 wherein a 3 judge bench passed an order to allow a
religious procession to proceed, after accepting accommodative conditions designed to balance the need to protect the public
from the coronavirus, and the exercise of religious practices, rather than prohibit the procession altogether.270 In their order,
the Court stipulated that each chariot will be pulled by a maximum of 500 people, all of who had tested negative for the virus,
the closure of all city public transit system, and a tele broadcast of the procession, all of which was designed to deter public
attendance, but at the same time ensure minimal interference with the religious practices.271 Similarly, in the Kumbh Mela
orders of the Uttarakhand High Court in 2021,272 the Court is made aware of the dangers posed by the Covid-19 pandemic, the
woeful inadequacy of the beds and ventilators for dealing potential Covid cases, and about the general lack of facilities.273 The
Court goes on to note that it is the foremost duty of the State is to protect the people from the pandemic, yet, rather than using
it to justification for prohibiting public gathering, they instruct the State government to essentially fulfil their positive
obligations towards the people exercising their faith,274 directing them to be thoroughly equipped for any contingency arising
out of the hosting of the event, and to ‘seriously consider the increase in the medical health care system, both in terms of the
physical infrastructure, in terms of the human resources, and in terms of the availability of the medical equipment.’275
269 Odisha Viskash Parishad v Union of India (2020) 7 SCC 264.
270 ibid [3]-[4].
271 ibid [5.1]-[5.11].
272 Writ Petition (Public Interest Litigation) 58 of 2021, heard on January 13, 2021. The details of this order is available at <https://indiankanoon.org/
doc/141267164/> accessed March 7, 2022.
273 ibid [6], [20]-[21].
274 ibid [21]-[24].
275 ibid [22.3].
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It is only when the exigencies of the situation are dire, that permitting the exercise of religious practices would imperil public
health, that the courts have imposed restrictions on the practice of religious practices. In Mahant Ramlakhandasji’s case, a
petition was filed before the Gujarat High Court which sought to overturn blanket restrictions on the procession of the
Jagannath Rath Yatra in the state of Gujarat.276 The petitioners in this case sought the Court’s permission due to the Supreme
Court order in Odisha Vikash Parishad’s, which was delivered a day earlier. The Gujarat High Court contrasted the public health
situation in Puri, and the prevailing situation in Ahmedabad,277 to reject any modification or recall of the previous order, which
had restricted the procession on public health grounds, by specifically noting—
It is not disputed that the number of people that are likely to gather for the annual Rath Yatra scheduled to be held from
23rd June, 2020, is going to be about 10 to 12 lakhs. The festivities normally continue for a period of 10 to 12 days.
Having regard to the danger presented by such a large gathering of people for the Rath Yatra, we consider it appropriate
in the interests of public health and safety of citizens who are devotees to restrain the respondents from holding the
Rath Yatra this year.278
Contrasting the accommodative stance put by the Uttarakhand High Court and the Supreme Court with the reasoning put
forward by the Gujarat High Court, we can notice that the Courts in India have issued direction to the State, essentially
reminding them of their duty to accommodate religious practices, and have crafted narrowly tailored restrictions on exercise
of religious freedom in order to balance it against the qualifier of public health. It has been only when the exigencies of the
situation are grave enough, has the Court mandated complete restrictions on the exercise of religious practices.
In the present case, it is clear that the wearing of the hijab poses no threat to public health in any way, and no claim on that
ground has been made by the state. This ground, therefore, cannot restrict the right of students to wear the hijab or other
religious clothing in schools. What must be understood from these preceding cases is that when it has come to the Courts to
restrict exercise of religious freedoms, based on the qualifiers on Article 25, the Courts have adopted an accommodative
stance, crafting innovative means to enable the exercise, and directing the government for taking actions to provide remedies
for shortfalls when existing conditions were inadequate, rather than prohibiting them outright.
c. Morality:
In Sabarimala I,279 the Supreme Court had to consider the question of whether the restrictions on women between the ages of
10 to 50 years from entering the Sabarimala temple could be justified by the state on the grounds of public morality. The Court
discussed the meaning of the term ‘morality’ in Article 25. Misra, J observed that ‘public morality [in Article 25] has to be
appositely understood as being synonymous with constitutional morality.’280 Constitutional morality, in turn, has been
understood to mean an adherence to the values embodied in the Constitution.281 Additionally, constitutional morality has
been contrasted with societal morality, or the values held by the public at large, in several cases.282 The Supreme Court has
repeatedly held that the Constitution protects those who differ from the majority, and those who resist the imposition of
uniform homogenous societal values and practices.283 The transformative aims of the Constitution would be held back if
276 Mahant Akhileshwardasji Ramlakhandasji v State of Gujarat (2020) SCCOnline Guj 917 [2.9].
277 ibid [7]. See also [2.2]. The Court had also highlighted the COVID situation specifically in the State, noting–
…[I]n the wake of the present pandemic situation of COVID- 19 and in particular in relation to city of Ahmedabad which has huge
number of infected cases of more than 15,000 and the mortality rate being the highest in the country and the figures having crossed
more than 1000. It is also submitted that the Rath Yatra has total passage of 8 to 9 Kilometers one way i.e. total of 16 to 18
Kilometers and it passes through three Containment Zones and one Buffer Containment Zone. Once the procession starts, it would
be very difficult to stop the public at large from joining the Rath Yatra. According to the learned counsels, it is estimated that about
6,00,000 to 8,00,000 is the regular gathering of this procession based upon previous years. This would be disastrous if it happens.
278 ibid [2.4].
279 Sabarimala I (n 250).
281 ibid [108].
282 Navtej Singh Johar (n 21) [128], [131]-[133] (Misra J), [601] Chandrachud J.; Joseph Shine (n 45) [143] (Chandrachud J).
283 Puttaswamy I (n 121) [297] (Chandrachud J); Navtej Singh Johar (n 21).
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societal morality was given a free hand in the restriction of fundamental rights. When deciding the validity of restrictions on
the grounds of morality, therefore, what matters is whether the restriction is in conformance with other values embodied in
the Constitution, and not the opinions of the majority in society.284
In the present case, it therefore does not matter what the majority of people in society think about the morality of wearing the
hijab or other religious clothing in schools. What matters is whether the wearing of the hijab is fundamentally opposed to the
values embodied in the Constitution. We submit that this is clearly not the case, and, to the contrary, allowing persons to wear
the hijab furthers important constitutional values. We have argued in this part how the hijab furthers the constitutional value
of freedom of religious practice. In Sections III and IV, we have argued how the ban on the hijab violates other important
constitutional values of equality, non-discrimination, privacy, autonomy and dignity. Therefore, constitutional morality would
require a duty of the state to protect those who wear the hijab and other religious clothing, in furtherance of these various
constitutional values. The ban on the hijab and other religious clothing hence cannot be justified on the grounds of public
morality.
d. Other Rights in Part III
Restrictions can also be imposed upon religious freedom on the grounds of protecting the rights embodied in other provisions
in Part III.285 So, for instance, it cannot be claimed that a person has a right to practise Untouchability due to religious reasons,
since this is specifically prohibited in Article 17.286 It is unclear how the ban on the hijab protects the rights of persons in Part III
of the Constitution. Rather, as discussed in the sub-part above, the ban on the hijab instead negatively affects various
fundamental rights of persons in Part III. The protection of the rights in Part III requires the state to positively protect those who
wear the hijab and other religious clothing in schools. Therefore, this ground cannot be used by the state to restrict the right
to wear the hijab.
Therefore, the state cannot justify the ban on the hijab or other religious clothing on any of the grounds mentioned in Article
25.
2. The rule and its application in the present case violates the constitutional requirement of equality of
religious freedom, and selectively targets religious practices of some communities or persons.
It is important to mention that Article 25 specifically mentions that ‘persons are equally entitled to freedom of conscience and
the right freely to profess, practise and propagate religion.’287 This reiteration of the principle of equality in Article 25 is
significant, especially since other provisions in Part III already mention the duty of the state to ensure equality.288 This,
therefore, recognises the particular importance of preserving equality of the right to profess, practice and propagate religion.
Notably, Article 25 mentions equality of the right to practice one’s religion, and does not imply that the kind of practice
protected has to be the same. For instance, Article 25 protects a Sikh’s right to carry a kirpan as equally as the right of a Hindu
to wear a religious thread, even though the practices are different. As mentioned in Shirur Mutt, what counts as a religious
practice varies from religion to religion, and is to be determined in accordance with the tenets of each religion separately rather
than by looking at what is practised by other religious groups.289 An equality of rights in this context therefore implies an equal
accommodation of diverse religious practices.
284 Sabarimala I (n 250) [106],[110],[144.5] (Misra J); [213]-[215] (Chandrachud J).
285 ‘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, practice and propagate religion.’ Constitution of India 1950, art 25(1) (emphasis added).
288 Constitution of India 1950, arts 14-18.
289 Shirur Mutt (n 241) [17], [23].
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This is buttressed by an examination of the concept of equality espoused by the Supreme Court in its jurisprudence. Equality,
in the understanding of the Supreme Court, implies substantive equality, or the duty of the state to protect those with different
capacities and interests.290 Formal equality, or the uniform treatment of individuals irrespective of their different positions, has
been rejected in the jurisprudence of the Supreme Court.291 A substantive conception of equality, therefore, complements the
equal protection of the right to practise one’s religion in Article 25(1), and leads to a duty of the state to equally accommodate
the diverse religious practices of different religions.
Additionally, we have already examined in Section III how the ban on the wearing of the hijab in educational institutions is a
violation of various constitutional guarantees of equality and non-discrimination. Therefore, Article 25’s reiteration of the
principle of equality further complements those arguments, and protects the equal rights of persons to be reasonably
accommodated and not be discriminated against in their religious practice of wearing the hijab or other religious clothing. The
right to equal freedoms of conscience, religious profession, practice and propagation in Article 25, therefore, requires the state
to take measures to safeguard the rights of persons to wear the hijab or other religious clothing.
The ban on the hijab and other religious clothing in schools by the State of Karnataka therefore violates the equal right of
persons to freely profess, practice and propagate their religion under Article 25.
3. The rule and its application are not justified by secularism under the Indian Constitution, and in fact
violate the constitutional requirement of equal respect, accommodation and neutrality of religious
practices.
We have briefly discussed the nature of Indian secularism above, in Section II. It must be noted that there are different models
of secularism in practice, followed by different countries in the world, and to conflate the models in a manner which gives a
uniform meaning to the term ‘secularism’ would not be a correct approach. Laïcité, popularly termed as the French model of
secularism, for example, envisages a form of negative identification, whereby the State is marked by a separation of religion
from the State.292 Contrasted against the American notion of ‘religious freedom,’ which aims to protect individuals against the
excesses of the State, Laïcité has a different connotation, that is to protect the state against excesses of religion so as to
continue maintaining a strict separation of religion and state.293 To put this simply, Laïcité aims to exclude religion and religious
identity from the State and prohibits the State from collaborating or cooperating with any particular religion or religious
belief.294 To give substance to this concept, the Constitution of France, 1958 (and the Constitution of 1905 before it) contain
references to give effect to this separation of religion from the State. 295
In contrast to the French model of strict separation, the Indian model of secularism presents a different approach. While the
drafters of the Constitution discussed the possibility of invoking secularism initially, the principles of ‘equal respect’ were
ultimately accepted, a concept that was between the principles of goodwill towards all religions and religious neutrality.296 The
word ‘secular’ was inserted in the Preamble to the Constitution by way of a constitutional amendment in 1976.297 At the same
290 State of Kerala v NM Thomas (1976) 2 SCC 310 [78] (Mathew J), [141], [147]-[149] (Krishna Iyer J); Indra Sawhney v Union of India (n 44) [741]-
[742], [859] (Jeevan Reddy J); Joseph Shine (n 45) [171]-[172] (Chandrachud J).
291 EP Royappa v State of Tamil Nadu (1974) 4 SCC 3 [85] (Bhagwati J); Navtej Singh Johar (n 21) [409]-[410] (Chandrachud J).
292 T. J. Gunn, 'Under God But Not The Scarf: The Founding Myths Of Religious Freedom In The United States And Laicite In France' (2004) 46
Journal of Church and State 7, 8-10.
293 ibid 9.
294 Elisabeth Zoller, ‘Laïcité in the United States or The Separation of Church and State in a Pluralist Society’ (2006) 13 Indiana Journal of Global
Legal Studies 561-562.
295 The French Constitution 1958, art. 1. See also The French Law 1905, art. 1 & 2. Article 1 of the French Constitution 1958, which provides
“France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction
of origin, race or religion. It shall respect all beliefs”; and Articles 1 & 2 of the Constitution of 1905, which provides 1) “The Republic ensures the
liberty of conscience. It guarantees the free exercise of religion, under restrictions prescribed by the interest in public order.”; and 2) “The Republic
does not recognize, remunerate, or subsidize any religious denomination”
296 Ronojoy Sen, Articles of faith (Oxford University Press 2012) xxiv. Sen notes — “This was also the Nehruvian formulation of secularism. This
is a position that oscillates between sarvadharma samabhava (goodwill towards all religions) and dharma nirapekshata (religious neutrality).”
297 Constitution (Forty-second Amendment) Act 1976, s 2.
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time, there is also Article 25 (b) of the Constitution which makes an explicit reference to a particular religion.298 It is clear that,
unlike the French constitution, which specifically directs the state to not even recognise any religion, the Indian constitution
itself recognises religions and, simultaneously, authorises deep state interventions within them. First, the Constitution
specifically envisages the state socially reforming religions.299 This is coupled with the outlawing of religiously-associated
practices such as Untouchability.300 The strict separationist model is, therefore, inapplicable to understanding Indian
secularism. Second, particular religions are recognised in different ways. The Constitution gives the state the power to open
Hindu temples, specifically, to all sections of Hindus.301 In a similar vein, minority religious groups are explicitly recognised and
given special rights in Article 30.302 Third, by recognising religious practices, and mentioning, for instance, the right of Sikhs to
wear and carry kirpans, the Constitution envisages the creation of a plural public sphere, with multiple religious identities
contributing to a diverse culture.303 Hence, contrasting with the French model, the Constitution instead encourages state
recognition of, and intervention in, religion rather than separation. The public space is, therefore, not sanitised of religion like
in the French model, and the requirement of complete uniformity in the public sphere is clearly rejected by the Constitution.
It has been contended that while the purpose of the 42nd Amendment was to formalise a shift from a system of a positive
identification of religion and the state to a form of moderated neutrality, that would have been “inconceivable in India,
where…religious and secular life are so pervasively entangled that official indifference cannot be justified politically or
constitutionally.”304 This view, it is submitted, is a plausible interpretation of the scheme of things. Consider the landmark
judgement in Bommai, where Justice BP Jeevan Reddy took the view that secularism is —
…[M]ore than a passive attitude towards 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.305
Justice Reddy’s conception of secularism is wide, in the sense that it envisages that the State has to play an active, and
enabling role to ensure individuals across all religions are able to exercise their religious freedoms. It was a view that was also
accepted by the judges in M. Siddiq, wherein the judgment noted —
At its heart, this reiterated what the Constitution always respected and accepted: the equality of all faiths. Secularism
cannot be a writ lost in the sands of time by being oblivious to the exercise of religious freedom by everyone.306
The reading of these constitutional provisions and judicial expositions mentioned make it clear that the French and the Indian
Constitution in their present forms envisage a model of secularism which are different from each other and conflating them
298 The Constitution of India 1950, Art. 25(2)(b). Art. 25(b) reads as “(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.”
299 ibid.
300 ibid art 17.
301 ibid art 25(2)(b).
302 ibid art 30(1). The protection in Article 30(1) also extends to linguistic minorities.
303 ‘Explanation I — The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.’ ibid art 25. See
also the mention of India’s ‘composite culture’ in Article 351. ibid art 351.
304 Gary J Jacobsohn, The Wheel of Law (Princeton University Press 2005) 10. Jacobsohn notes that “...[S]uch an arrangement is inconceivable in
India, where, upon initial analysis, religious and secular life are so pervasively entangled that a posture of official indifference cannot be justified
either politically or constitutionally.”
305 S.R. Bommai v. State of Karnataka (1994) 3 SCC 1 (BP Jeevan Reddy J) [304].
306 M Siddiq v. Mahant Suresh Das (2019) 4 SCC 641 [204].
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would be incorrect in law. On the one hand, the Indian model essentially places a positive duty on the state to enable the exercise
of religious freedom,307 whereas, on the other hand, the French model constrains the State, placing a duty on them to maintain a
strict separation of state and religion.
Applying the wisdom of the precedents listed above to facts of the hijab matter, we submit that the reliance placed on the French
laïcité model as a justification for directing a uniform for all students, without making reasonable accommodations for religious
practices, is misplaced since the French model is different from the Indian model. As mentioned above, the Indian model of
secularism is built upon a positive recognition and duty of the state to preserve pluralism in the public sphere, requiring the
reasonable accommodation of religious practices. It might be argued that the case of Mohammed Zubair v Union of India (‘Mohd
Zubair’),308 allowed uniforms to prevail over religious practices. In this case, the petitioner, who was serving in the Air Force, was
not permitted to grow a beard after joining service, on the grounds that this would adversely impact the ‘uniformity, cohesiveness,
discipline and order’ of the Air Force.309 However, this case is easily distinguishable from the banning of the hijab and other
religious clothing from educational institutions for several reasons. First, the petitioner in Mohd Zubair did not adduce evidence in
favour of the proposition that sporting a beard was a requirement of his religion.310 In the absence of such a claim, Article 25 was
not even discussed by the Court. Second, the Court repeatedly noted the particular importance of uniformity within the Armed
Forces, due to their higher requirements of cohesion, discipline and order. The maintenance of identity also assumes importance
due to the possibilities of infiltration and security threats in the Armed Forces.311 The situation in a school is clearly quite different
from this. Third, since the petitioner was in the Armed Forces, the Court specifically noted the applicability of Article 33 of the
Constitution to the case. Article 33 allows Parliament to restrict or abrogate the application of fundamental rights of members of
the Armed Forces, in the ‘interests of proper discharge of their duties and the maintenance of discipline among them.’312 The Mohd
Zubair case, therefore, is not an authority for interpreting Article 25, and cannot be applied to judge the validity of the ban on the
hijab and other religious clothing in schools.
Due to this, it is submitted that the rule and its application as prescribed by the government order, and the observations of the
Department of Education, wherein they note that “students are following practises as per their religion, which is adversely
affecting equality in such schools and colleges” as a ground for implementing the uniform, are not justified by the constitutional
commitment to the values of secularism as envisaged by the Indian constitution, and are in fact contrary to the constitutional
requirement to accommodate religious practices, to accord them equal respect, and maintain neutrality.
In conclusion, the right to wear the hijab or other religious clothing is protected by Article 25’s equal right to freely profess, practise
and propagate religion. The state cannot justify the ban on the hijab or other religious clothing on any of the grounds mentioned
in Article 25. Additionally, the ban on the hijab or other religious clothing is contrary to several basic tenets of the Indian
Constitution’s conception of secularism, which is premised on equal respect, accommodation and neutrality.
CONCLUSION
In Resham, the Karnataka High Court, when considering whether wearing the hijab is protected by Article 25, applied the ‘essential
religious practices’ test, and held that wearing the hijab is not an essential part of the Islamic faith.313 The Court discussed several
307 Anuradha Dingwaney Needham and Rajeswari Sunder Rajan, The crisis of secularism in India (Duke University Press 2007) 20. In the
introduction, they note —
The Indian state has chosen to interpret secularism differently: it has undertaken the charge to ensure the protection of all religions. It
therefore makes a huge investment in matters of religion, unlike any nation in the West—for example, by administering religious trusts,
declaring holidays for religious festivals, preserving the system of different personal laws for different communities…
308 (2017) 2 SCC 115.
309 ibid [18].
310 ibid [15].
311 ibid [16].
313 Resham (n 6) 87.
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verses from the Holy Quran, hadiths and Islamic scholars to arrive at the conclusion that the wearing of the hijab is not mandatory,
but is only recommended or directory.314 The absence of any explicit ‘penalty or penance’ for not wearing the hijab and the
linguistic structure of certain Quranic verses affirmed this view, in the opinion of the Court.315 This section outlined the
difficulties with the approach taken by the judgment to applying the essential religious practices test. The restrictive
approach to the essential religious practices test adopted by the judgment is unwarranted and inappropriate because the
jurisprudence reveals that the test was only intended to be applied in this way in cases of religious or social reform, not in
cases of the present type. According to the preferable Shirur Mutt approach to the essential religious practices test,
defended here, interpreting religious doctrine is best left to those within the religion. There is little doubt that the wearing
of the hijab is viewed by those who wear them as a religious obligation, and therefore the wearing of the hijab falls within
Article 25’s ambit.
The Court also reasoned that the hijab was not an essential part of Islam316 because its original rationale was to offer ‘social
security’ and ‘safe access to the public domain’ for women in Islamic times,317 and this rationale no longer holds good as the ‘socio-
cultural conditions’ no longer obtain.318 This reasoning sits uneasily with another part of the judgment in Resham which
observes that the existence of practices preceding and prevailing during the founding of the religion is relevant in
determining whether such practices are essential.319 More generally, the section above argues that the judicial
rationalisation of religious beliefs and practices seen in Resham is not consistent with religious freedom protection. As the
section discussed, the Supreme Court warned against exactly this kind of judicial attempt at rationalising religion in Bijoe
Emmanuel v State of Kerala (‘Bijoe Emmanuel’),320 “… [T]he question is not whether a particular religious belief or practice
appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession
or practice of religion321
The Karnataka High Court distinguished Bijoe Emmanuel,322 (in part) on the basis that Bijoe Emmanuel involved practices grounded
in conscience whereas the present case involved practices grounded in religion; and ‘[t]here is scope for the argument that the
freedom of conscience and the right to religion are mutually exclusive.’323 The Supreme Court’s characterisation in Bijoe
Emmanuel of the ‘conscientiously held religious faith’ of the petitioners (quoted in Resham as well)324 belies any such
suggestion of the mutual exclusivity of religion and conscience. Even if one were to assume that the petitioners in Resham
made a claim based on religion and not conscience (and the two are separable), what they claimed was the right to
externally manifest their conscientiously-held religious belief in the form of wearing the hijab, which is precisely what the
students in Bijoe Emmanuel claimed - the protection of their practice of not singing the national anthem which flowed from
their conscientiously held religious beliefs. The parallel between the facts of Resham and Bijoe Emmanuel, in their specific
applicability to practices and the school environment, makes Bijoe Emmanuel directly applicable. As our analysis
demonstrates above, a correct application of the Bijoe Emmanuel standard would protect the practice of wearing the hijab
as a part of the freedom to practise religion in Article 25.
314 ibid 65-66.
315 ibid.
316 ibid 71.
317 ibid 70.
318 ibid 71
319 ibid 55.
320 Bijoe Emmanuel (n 263)
321 ibid [20].
322 ibid.
323 Resham (n 6) 81.
324 ibid 80.
60
The Court noted the absence of evidentiary material placed by the petitioners to support the contention that wearing the hijab is
essential to Islam. This included the absence of any affidavit ‘sworn to by any Maulana’ supporting the interpretations of Islamic
doctrine advocated by the petitioners.325 This fact creates doubt about the precedential value of this judgment in any future
case in which there is evidence from religious experts to the effect that the hijab is a part of the Islamic faith.
Finally, after discussing the nature of Indian secularism, the Court dismissed the petitioners’ arguments that the goal of education
is to promote heterogeneity and plurality, and not homogeneity and uniformity.326 The Court instead accepted the respondents’
argument that ‘school regulations prescribing dress code for all the students as one homogenous class, serve constitutional
secularism.327 In this section, we also showed how that the judgement is incorrect about the nature of Indian secularism,
which does not require the removal of religion from the public sphere, but instead values, promotes and preserves
pluralism and the diversity of religious practices.
325 ibid 86 (emphasis in original). This goes against the Shirur Mutt approach, as we have highlighted above, and creates doubt about the
precedential value of the Resham judgment in any future case in which religious experts (such as Maulanas) assert that the hĳab is a part of the Islamic
faith.
326 ibid 97.
327 ibid 96-97.
328 It is also uncertain how the Court in Resham arrives at this conception of secularism, especially given that, in propounding this conception, it
quotes for authority the judgment of Venkatachaliah, J in Ismail Faruqui which explicitly mentions the plural nature of the Indian conception of
secularism. See ibid 96-97.
61
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Prohibiting Hijab in Educational Institutions Corrected 412364

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RESEARCH BRIEF

Front Cover Image Credit: Emil Widlund (@emilwidlund) - https://unsplash.com/photos/xrbbXIXAWY0

Decision to disallow hijab is based on arbitrary and irrelevant considerations ����������������������������������������������������� 9

Disallowing hijab is a breach of rules and legitimate expectations ���������������������������������������������������������������������� 12

VIOLATION OF PRIVACY, DIGNITY, AUTONOMY UNDER ARTICLE 21 AND FREEDOM OF EXPRESSION

Dignity is recognised as another key basis of the fundamental right to privacy.�������������������������������������������������� 32

The GO violates the freedom of expression under Article 19(1)(a).......................................................................34

VIOLATION OF THE RIGHT TO EDUCATION UNDER ARTICLE 21 .......................................................................... 36

The right to education under the Indian Constitution is engaged������������������������������������������������������������������������� 36

FAILURE TO MEET THE PROPORTIONALITY STANDARD OF JUSTIFICATION .................................................... 38

The GO must be tested according to the standard of

The GO fails the proportionality test .......................................................................................................................39

VIOLATION OF FREEDOM OF RELIGION UNDER ARTICLE 25 ............................................................................... 48

3 Government Order dated 05.02.2022. Translation available <https://www.scobserver.in/journal/karnataka-government-order-on-dress-code-for-

7 ibid 106, 121.

D. Have notice requirements been met?

10 Karnataka Education Act 1983, s 39.

11 Karnataka Education Act 1983, Statement of Objects and Reasons.

2. Purpose – education for the disadvantaged

17 Government Order dated 05.02.2022.

B. Decision to Disallow Hijab is Based on Arbitrary and Irrelevant Considerations19

Putting this all together, we can say roughly30:

20 AIR 1974 SC 555.

23 Shayara Bano (n 21) [284].

25 The doctrine of colourable legislation is discussed below.

30 For a more precise formulation, see Farrah Ahmed (n 19).

31 Government Order dated 05.02.2022

C. Disallowing hijab is ultra vires the Act and Rules

11. Provision of Uniform, Clothing, Text Books etc.

D. Disallowing Hijab is a Breach of Rules and Legitimate Expectations

(a) The uniform is not to be changed within a five year period

(b) Notice of a year should be issued to parents if the uniform is to be changed

37 Part XIV (iv).

3. Is the GO saved by Article 15(3)?

4. Is the indirect discrimination justified?

Relevant Constitutional Provisions:

A. Equality and Non-Discrimination under the Indian Constitution

1. The Constitution of India conceives of equality in substantive, not formal terms

38 Constitution of India 1950, art 14.

39 Constitution of India 1950, art 15(1).

40 Constitution of India 1950, art 29(2).

41 M. Nagraj v. Union of India (2006) 8 SCC 212.

42 Lt. Col. Nitisha v Union of India AIR 2021 SC 1797 (‘Nitisha’).

44 Indra Sawhney v. Union of India AIR 1993 SC 477.

45 Joseph Shine v Union of India (2019 ) 3 SCC 39.

48 B. K. Pavitra v. Union of India (2019) 16 SCC 129.

b. Article 15 (1) prohibits intersectional discrimination on grounds of religion intersecting with

50 Punjab Province v Daulat Singh AIR 1946 PC 66.

51 AIR 1954 SC 561.

52 Navtej Singh Johar (n 21)

53 Air India v Nergesh Meerza AIR 1989 SC 1829 (‘Nergesh Meerza’).

54 ibid [70] (emphasis added).

55 Navtej Singh Johar (n 21) [388] (Chandrachud J. concurring opinion).

57 Patan Jamal Vali v State of Andhra Pradesh AIR 2021 SC 2190.

58 ibid [14] (emphasis added).

59 ibid [15] (emphasis added).

61 ibid [12] (emphasis added).

64 ibid [12] (emphasis added).

65 ibid [20] (emphasis added).

i. The GO violates the prohibition on direct discrimination on grounds of religion, and on

Based on this understanding, the Court declared:

71 Navtej Singh Johar (n 21).

TEST FOR INDIRECT DISCRIMINATION

Decision to disallow hijab is based on arbitrary and irrelevant considerations �� 9

Disallowing hijab is a breach of rules and legitimate expectations �� 12

Dignity is recognised as another key basis of the fundamental right to privacy.�� 32

The right to education under the Indian Constitution is engaged�� 36