Hijab verdict | Justice Hemant Gupta: ‘Freedom of religion is subject to restrictions… (including) equality before law under Article 14’

Justice Gupta held that the “argument that the wearing of a headscarf provides dignity to the girl students is also not tenable”. He said “the students are attending an all-girls’ college” and “are at liberty to carry their religious symbols outside the schools but in pre-university college, the students should look alike, feel alike, think alike and study together in a cohesive cordial atmosphere. That is the objective behind a uniform, so as to bring about uniformity in appearances”.

Upholding the the power of the state government to constitute College Development Committees (CDCs) under the Karnataka Education Act, 1973 and delegate the decision to implement the uniform to it as per the February 5, 2022 Government Order (GO), he said the “intent and object” of the GO “is only to maintain uniformity amongst the students by adherence to the prescribed uniform and “is reasonable as the same has the effect of regulation of the right (of freedom of speech and expression) guaranteed under Article 19(1)(a).”

He reiterated that no fundamental right is absolute and can be curtailed by following due procedure, and that the freedom of conscience and religion under Article 25 is subject to restrictions provided under Article 25(1). “Such right is not just subject to public order, morality and health but also ‘other provisions of Part III’. This would also include Article 14 which provides for equality before law.”

He rejected the contention that restrictions on wearing hijab will hinder the development of fraternity, Justice Gupta said “the abstract idea of fraternity…has to be applied to the ground realities wherein some students wearing headscarf in a secular school run by the State Government would stand out and overtly appear differently… The Constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom”.

Justice Gupta said the right under Article 19(1)(a) “does not extend to the wearing of headscarf. Once the uniform is prescribed, all students are bound to follow it. The uniform is to assimilate the students without any distinction of rich or poor, irrespective of caste, creed or faith and for the harmonious development of the mental and physical faculties of the students and to cultivate a secular outlook.”

Turning down arguments equating wearing hijab to wearing rudraksha or a cross, he said the GO “necessarily excludes all religious symbols visible to naked eye. The argument that the students wear Rudraksha or a Cross is mentioned only to deal with an argument so raised. Anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the GO.”

He also found it unnecessary to send the matter to the nine-judge SC Bench which will examine questions of law arising in the Sabarimala review petitions, saying it was set up “to consider much wider questions”, or to a five-judge Constitution Bench as it does not “raise any substantial question of law”.