Right to wear Hijab in School

Can school impose condition of a Uniform for it’s students?

Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights.

The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right.

The petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.

Full Judgment:

Religious dress in a private educational institution is the issue in this writ petition. The petitioners are students, who are studying in Christ Nagar Senior Secondary School, a CMI Educational Institution. They are represented in this writ petition through their parents.

The school has adopted a uniform. The petitioners are girl students. They belong to the Muslim community and are followers of the Islamic faith. They want to wear the headscarf as well as full sleeve shirt. The school authority found that it is not consistent with the dress code prescribed by the school authority. The petitioners were directed to attend school with a proper dress code, but they did not relent and insisted that they should be permitted to attend classes wearing the headscarf and full sleeve shirt which is not prescribed in the dress code. Since they are not able to obey the instructions in regard to the uniform, they are before this court in this writ petition.

One has the liberty to follow his own notions and convictions in the matter of dress code. At the same time, when such a right is claimed against a private entity which is also having equal Fundamental Right to manage and administer an institution, the Court has to balance the competing Fundamental Rights and decide the issue.

This Court by judgment in Amnah Bint Basheer v. Central Board of Secondary Education [2016 (2) KLT 601] had taken a view that right of woman to have the choice of dress based on religious injunctions is a Fundamental Right protected under Article 25(1) of the Constitution of India, when such prescription of dress is an essential part of the religion. Therefore, there may not be any difficulty to hold that it is the Fundamental Right of the petitioners to choose the dress of their own choice.

The right to establish, manage and administer an institution is equally a Fundamental Right. This Fundamental Right is traceable under Article 19 of the Constitution of India, of course, subject to reasonable restrictions. {See judgments of the Hon’ble Supreme Court in T.M.A. Pai Foundation and Others v. State of Karnataka and Others [2002 (8) SCC 481] and P.A.Inamdar and Others v. State of Maharashtra and Others [(2005) 6 SCC 537]}. This competing Fundamental Right is to be considered in this writ petition and, in what manner this matter has to be resolved is called for a Judicial decision in this case.

Imparting education is a State function. Therefore private educational institutions discharge public function. Assuming that it is not a public function in regard to the prescription of dress code, the Fundamental Rights can be claimed as against the private actors horizontally. Horizontal application of the Fundamental Rights has been accepted by the Apex Court in various judgments. {See judgments of the Hon’ble Supreme Court in I.M.A. v. Union of India [(2011) 7 SCC 179], R.Rajagopal v. State of Tamil Nadu [(1994) 6 SCC 632], PUDR v. Union of India [(1982) 3 SCC 235]}.

7. Fundamental Rights are either in nature of the absolute right or relative right. Absolute rights are non-negotiable. Relative rights are always subject to the restriction imposed by the Constitution. The religious rights are relative rights (see Art 25 of the Constitution). In the absence of any restriction placed by the State, the Court need not examine the matter in the light of restriction under the Constitution. The Court will, therefore, have to examine the matter on a totally different angle on the conflict between Fundamental Rights available to both. The Court has to examine the prioritization of competing Fundamental Rights in a larger legal principle on which legal system function in the absence of any Constitutional guidance in this regard. The Constitution itself envisage a Society where rights are balanced to subserve the larger interest of the Society.

8. In every human relationship, there evolves an interest. In the competing rights, if not resolved through the legislation, it is a matter for judicial adjudication. The Court, therefore, has to balance those rights to uphold the interest of the dominant rather than the subservient interest. The dominant interest represents the larger interest and the subservient interest represents only individual interest. If the dominant interest is not allowed to prevail, subservient interest would march over the dominant interest resulting in chaos. The dominant interest, in this case, is the management of the institution. If the management is not given free hand to administer and manage the institution that would denude their fundamental right. The Constitutional right is not intended to protect one right by annihilating the rights of others. The Constitution, in fact, intends to assimilate those plural interests within its scheme without any conflict or in priority. However, when there is a priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.

9. The Apex Court in Asha Renjan and Others v. State of Bihar and Others [(2017) 4 SCC 397] accepted the balance test when competing rights are involved and has taken a view that individual interest must yield to the larger public interest. Thus, conflict to competing rights can be resolved not by negating individual rights but by upholding larger right to remain, to hold such relationship between institution and students.

10. In such view of the matter, I am of the considered view that the petitioners cannot seek imposition of their individual right as against the larger right of the institution. It is for the institution to decide whether the petitioners can be permitted to attend the classes with the headscarf and full sleeve shirt. It is purely within the domain of the institution to decide on the same. The Court cannot even direct the institution to consider such a request.

Therefore, the writ petition must fail. Accordingly, the writ petition is dismissed. If the petitioners approach the institution for Transfer Certificate, the school authority shall issue Transfer Certificate without making any remarks. No doubt, if the petitioners are willing to abide by the school dress code, they shall be permitted to continue in the same school. No costs.

Fathima Thasneem (Minor) & Others v/s The State of Kerala, Rep. by Its Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram & Others

    WP(C). No. 35293 of 2018
    Decided On, 04 December 2018

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