NEW CASES

I. Union of India v. Naveen Jindal, AIR 2004 SC 1559.....................................................................................1

II. Supriyo @ Supriya Chakraborty v. Union of India, 2023.............................................................................3
III. National Legal Services Authority v. Union of India, AIR 2014 SC 1863....................................................15
IV. Janhit Abhiyan v. Union of India, (2023) 5 SCC 1 (EWS Judgement).........................................................15
V. Aishat Shifa v. State of Karnataka, (2023) 2 SCC 1 (Hijab Ban Judgment).................................................20
VI. P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3236.........................................................................32

I. Union of India v. Naveen Jindal, AIR 2004 SC 1559

The rights specified in Article 19 operate against the State actions. The rights granted to a citizen of India
under Article 19 of the Constitution of India, it is trite, is not to be considered in isolation as Part III constitutes
an amalgam of rights and, thus, a law falling under Articles 21 and 22 of the Constitution of India has yet to
satisfy the requirements of other Articles in Part III of the Constitution, such as Articles 14 and 19 of the
Constitution of India. With a view to find out an answer to the aforementioned question, it was necessary for
us also to take into account : importance of the National Flag; (2) Constituent Assembly Debates; and (3) Rules
existing in other countries, which have already been adverted to. As would appear from the discussions made
herein before, flying of National Flag being symbol of expression would come within the purview of Article
19(1) (a) of the Constitution.

- How to interpret the constitution?

Interpretation of the Constitution is a difficult task. While doing so, the constitutional courts are not only
required to take into consideration their own experience over the time, the international treatise and
covenants but also keeping the doctrine of flexibility in mind. This Court times without number has extended
the scope and extent of the provisions of the fundamental rights, having regard to several factors including the
intent and purport of the constitution makers as reflected in Parts IV and IVA of the Constitution of India.

In developed countries, like Australia, freedom of expression did not find place in the Australian Constitution.
In fact, there is no list of personal rights of freedom which may be enforced in the courts, listed in the
Australian Constitution, save and except certain personal rights such as the right to trial by jury (Section 80)
and the right to freedom of religion (Section 116). Despite the same the High Court of Australia beginning from
1992 indicated that the citizens enjoy implied rights to free speech and communication on matters concerning
politics and government, as for example, permitting political advertising during election campaigns terms as
’implied freedom of political communication’.

This Court has also extended the meaning of Articles 14, 19 and 21 of the Constitution of India. [See; Jagdish
Saran and Others vs. Union of India (1980) 2 SCC 768] Decisions are many where this Court read various rights
in Article 21 of the Constitution of India. This Court has also interpreted the provisions of the Constitution of
India either in the light of the Directive Principles of the State Policy as contained in Part IV of the Constitution
of India or fundamental duties as adumbrated in Part IVA thereof or both. Applying the said test and keeping
in view the fact that the right to fly the National Flag is not an absolute right but a qualified right, such right
can be read with having regard to Article 51- A of the Constitution of India.

- Present Case

Here it is necessary to notice the distinction between the Constitution of India and that of United States of
America and that is that in U.S.A. the first amendment gives an absolute right to a citizen of religion and free
expression, but under Constitution of India Article 19(1)(a) does not confer such an absolute right of free
speech and expression. It only provides for a qualified right. Such a fundamental right of a citizen of speech
and expression is subject to the regulatory measures contained in clause (2) thereof. So long as the expression
is confined to nationalism, patriotism and love for motherland, the use of the National Flag by way of
expression of those sentiments would be a fundamental right. It cannot be used for commercial purpose or
otherwise. Flag Code is not a statute; thereby the Fundamental Right under Article 19(1) (a) is not regulated.
But the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for
preservation of dignity and respect for the national flag. The right to fly the National Flag is not an absolute
right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that
is required to be done is that the duty to respect the flag must be strictly obeyed. The pride of a person
involved in flying the Flag is the pride to be an Indian and that, thus, in all respects to it must be shown. The
state may not tolerate even the slightest disrespect. Last question which arises in this respect is whether the
right to fly the National Flag is to be considered in the context of fundamental duties. Every right is coupled
with a duty. Part III of the Constitution of India although confers rights, duties and regulations are inherent
thereunder. Such reasonable regulations have been found to be contained in the provisions of Part III of the
Constitution of India, apart from clauses 2 to 4 and 6 of Article 19 of the Constitution of India. Thus, this right
is subject to certain restrictions which can be read from Chapter IV A. Article 51A(c) reads as under: "(c) to
uphold and protect the sovereignty, unity and integrity of India." The question as to whether Article 51-A is
not justiciable or enforceable thus takes a backseat.

- Conclusion
We, however, hope and trust that the Parliament, keeping in view the importance of the question involved in
this matter, shall make a suitable enactment for the aforementioned purpose. For the aforesaid reason, we
hold that- (i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen
within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of
his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National
Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of
Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950
and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag ; (iv) Flag
Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose
of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the
national flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the
National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional
scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-‘-
vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken
recourse to.

II. Supriyo @ Supriya Chakraborty v. Union of India, 2023

Traditional barriers – such as those based on social practice, and stereotypes such as gender roles, have,
through express constitutional provisions like Articles 14, 15 and 16 which shaped legislation (and where this
fell short, through judicial intervention), been overcome and in some cases eliminated. 26. The role of the
legislature has been to act as codifier, and in many instances, not enact or codify existing customs or practices,
and, wherever necessary, intervene, and in furtherance of Article 14 and 15(3) enact laws.

- NALSA & Navtej SIngh Johar

38. The equality code - Articles 14, 15, 16, and 17 (and Articles 23 and 24), so referred to in various previous
decisions of this Court - for instance as the constitution’s “identity” in M. Nagaraj v. Union of India (hereafter,
“M. Nagaraj”)36 is not a “wooden” equality before law and equal protection of law. It contains specific
injunctions prohibiting the state from discriminating on specifically forbidden grounds [such as caste, race, sex,
place of birth, religion, or any of them, in Article 15; and caste, sex, religion, place of residence, descent, place
of birth, or any of them, in Article 16]. The rooting of such explicit issues - commanding the state against
discriminating on such specific heads, is therefore, as much a part of the equality code, as the principle of
equality indorsed in Article 14. The inclusion of Article 17 enjoins the state to forbear caste discrimination,
overtly, or through classification, and looms large as a part of the equality code and indeed the entire
framework of the Constitution. The protected attribute of ‘sex’ has been held to include ‘sexual orientation’
and ‘gender expression’ by this court in NALSA (supra) and Navtej Johar & Ors. v. Union of India (hereafter,
“Navtej Johar”)37 .
39. The rationale for enacting proscribed grounds under Article 15 or 16 (or both) is the awareness of
Constitution makers that courts could use these markersor pointers of distinction, to determine if reasonable
classification were permissible. Hence, absent the prohibited ground of sex, gender could have been a
plausible basis for an intelligible differentia. To prevent such classifications specific proscribed grounds were
enacted as injunctions against State action. The provisions, and the equality code, are consequently not only
about the declaratory sweep of equality: but also about the total prohibition against exclusion from
participation in specified, enumerated activities, through entrenched provisions. A closer look at Article 15,
especially Article 15(2), would further show that likewise most of the proscribed grounds in Article 15(1) were
engrafted to ensure that access to public resources - in some cases not even maintained by the state, but
available to the public generally, could not be barred. This provision was made to right a historical wrong, i.e.,
denial of access to the most deprived sections of society of the most basic resources, such as water, food, etc.
The aim of the Constitution was to act as the ultimate leveller, ensuring that equality in practice, and
substance, became the constitutional culture of this great nation. Together with the affirmative action
provisions - Articles 15(3) & (4), 16(4) & 16(5) was intended to guarantee that not mere facial discrimination
was forbidden but that existing inequalities were ultimately eradicated. Flowing from these, this court has,
time and again, emphasized that non-discrimination is essential for enjoyment of all rights and freedoms of
citizens of our country, to realize their worth and potential.38

40. In the context of the present debate, in NALSA (supra), this court took note of the Yogyakarta Principles
and principle on right to equality and nondiscrimination enshrined therein which reads as: “2. The rights to
equality and non-discrimination - Everyone is entitled to enjoy all human rights without discrimination on the
basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal
protection of the law without any such discrimination whether or not the enjoyment of another human right is
also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective
protection against any such discrimination.” In this backdrop, the declaration of law, in Navtej Johar (supra)
has provided impetus, so far as LGBTQ+ persons are concerned. Consensual queer relationships are not
criminalized; their right to live their lives, and exercise choice of sexual partners has been recognised. They are
no longer to be treated as “sub-par humans” by law. Yet, that ipso facto, the petitioners allege, is not
sufficient, because the fact that they are allowed to be by themselves, “let alone” in the privacy of where they
live, is not adequate. Discrimination and prejudice faced by the queer community has been acknowledged,
and discussed at length by this court in NALSA (supra) and Navtej Johar (supra). The draft opinion of the Chief
Justice, also highlights these aspects, so is only briefly touched upon in the following section, for the sake of
completeness.

42. Sexual relation between persons of the same sex was outlawed, by virtue of Section 377 of the IPC. It
characterized such acts as “unnatural sex”, enacted an offence, and prescribed sentence. This provision was
read down by a Division Bench ruling of the Delhi High Court in Naz Foundation v. State (NCT of Delhi)
(hereafter, “Naz Foundation”)39, which de-criminalized consensual sex between persons of the same sex.
However, Naz Foundation (supra) was over turned, and its holding disapproved by this Court in Suresh Kumar
Kushal v. Naz Foundation40 that became the final word for a time so to say, resulting in the criminalization of
physical intimacy between same sex consenting adults. Implicit in this was the chilling effect on the exercise of
other freedoms by such couples particularly in exhibiting even bare, decent expressions of affection – which
was a position that prevailed till the later five-judge bench decision in Navtej Johar (supra).
43. NALSA (supra) was a significant ruling regarding the rights of transgender persons. It was held that
“discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law
and equal protection of law time, recognized what now is obvious but was not perceived to be till then, i.e.,
that the transgender persons have the same rights and have to be treated as full citizens, entitled to their self-
expression of gender identity. In other words, every human being’s right to assert what their gender is, not
limited by what has been ascribed to them based on their sex at the time of birth. The court unequivocally
declared that the right of transgender persons to non-discrimination is equally contained and resonates in the
same manner as it does with other citizens. The court also acknowledged the right to self-determination of
one's gender as intrinsic to Article 21 of the Constitution. The court further declared that necessarily, to realize
such persons’ fundamental right to live with dignity under Article 21, extends to the right of equal access to all
facilities to achieve full potential as human beings, such as education, social assimilation, access to public
spaces and employment opportunities. The court also expressly alluded to their rights under Articles 15 and 16
of the Constitution of India. The court was cognizant of the acutest form of discrimination of such persons,
resulting in their degradation. This declaration of the entitlement of the transgender persons sensitized the
society to take measures for addressing their concerns, eventually paving the way for the enactment of the
Transgender Persons (Protection of Rights) Act, 2019 which aims to entrench the principle of non-
discrimination and entitles transgender persons to a range of statutory rights, which they can enforce.

- Is there a right to marry?

45. This court has recognized that marriage is a social institution.45 As elaborated in Part I, marriage existed
and exists, historically and chronologically in all of the senses - because people married before the rise of the
state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it. The status is
still, not one that is conferred by the state (unlike the license regime in the US). This implies that the marriage
structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished
as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its
source is external to the state. That source defines the boundaries of marriage. This implies that state power
to regulate marriage does not sit easy with the idea of marriage as a fundamental right. In attempting to
analyse the claim to a fundamental right to marry, there are primarily two competing claims about the nature
of marriage: one being that the state should exercise more control over marriage to support and protect
“traditional purposes and perceptions” and the other, that each individual should have the right to define
marriage for themselves and state involvement in marriage should be minimal. 46. If indeed there is a right to
marry unless it is elevated to a right akin to Articles 17, 23, and 24, [which apply to both state and nonstate
agencies and actors], it cannot be operationalized. These provisions, most emphatically create positive
obligations; likewise Articles 15 (3), 15 (4) – and 15 (6), as well as Articles 16 (4), 16 (6) highlight state interest
in creating conditions to further the goal of non-discrimination. Yet, the previous decisions of this court have
carefully held such provisions to enable the state, and in a sense oblige it to take measures; but ruled out
court mandated policies and laws.46 In our considered opinion, this is not however, one such case where the
court can make a departure from such rule, and require the state to create social or legal status.

47. What is being asked for by the petitioners is state intervention in enabling marriage between queer or
non-heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist
in the absence of statute. The demand, hence, is that of a right of access to a publicly created and
administered institution. There is a paradox here or a contradiction, which runs to the root of the issue and
weighs on this court’s mind, heavily - in that the creation of the institution, here depends on state action,
which is sought to be compelled through the agency of this court.

48. Most of the precedents cited contain discussions on how the institution of marriage involves issues of
basic importance. Many decisions, including Obergefell v. Hodges (hereafter, “Obergefell”)47 , recall tradition,
to underline that marriage is of utmost significance, and that it underlines the importance of commitment of
two individuals towards each other and that it is a foundational relationship of society. Traditions of marriage
per se may not support the basis of recognition of marital relationship between non-heterosexual couples.
Many decisions by the US courts, have underlined the rationale for declaring the right to marry a fundamental
right as being essential to the orderly pursuit of Happiness (as it appears in their Declaration of Independence)
by free persons. This strand of reasoning is apparent from Loving48 to Obergefell (supra)

49. This with respect is not sound - at least as applied to state licensing of marriage (as in the US), which is
what civil marriage is. The fundamental importance of marriage remains that it is based on personal
preference and confers social status. Importance of something to an individual does not per se justify
considering it a fundamental right, even if that preference enjoys popular acceptance or support. Some may
consider education to be fundamentally important in that they consider nothing less than a postgraduate
degree is fundamental; there may be a large section of the people, who consider that access to internet is a
fundamental right, and yet others, who may wish that access to essential medication is a fundamental right.
All these cannot be enforceable rights, which the courts can compel the state or governance institutions to
provide. These cannot result in demand for creation of a social institution, and in turn creation of status,
through a statute. This result - i.e. recognition, can be achieved only by enacted law.

50. All decisions relied on by the petitioners – K.S. Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini
(supra) and Deepika Singh v. Central Administrative Tribunal49 , contain broad observations with respect to
individuals’ choice of their partner as also a reference as to non-conventional relationships. Some broad
observations are undoubtedly to be found in these judgments they cannot be referenced to hold that a right
to marry automatically flows in the manner from the provisions of Part III which the petitioner asserts. There
cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which
requires treatment as a fundamental freedom; we agree on this conclusion arrived at by the learned Chief
Justice, and his analysis of Shakti Vahini (supra), Shafin Jahan (supra), Navtej Johar (supra), K.S. Puttaswamy
(supra), and NALSA (supra) that the constitution does not expressly recognize a right to marry.

- Positive Obligation of the state

There cannot be any doubt that the individuals have the choice of their life partners and the right to live the
lives they wish to, undisturbed. This is the essence of what the jurisprudence of this Court has been so far, i.e.,
an explanation of the right to life and the other rights enumerated or discovered by interpretive process –
privacy, choice, dignity etc. 57. Repeatedly, decisions of this court have emphasized on the nondiscriminatory
and positive content of certain fundamental rights (Articles 14, 15, 16, 17, 23 and 24). In fact, the court has
underlined the obligations of the state to create conditions conducive to the exercise of the right to equality
(i.e., substantive equality), and to realize fraternity [Refer: decisions in N.M. Thomas51 and Indra Sawhney52
which expanded the understanding of substantive equality, though without making enabling provisions
enforceable by court]. This court has also in some decisions, accepted the argument that given the nature of
fundamental rights, and its evolving content, in many circumstances, it might be necessary for the state to
intervene and protect the fundamental right concerned thus creating an atmosphere conducive for the
enjoyment of such right.

63. There is no difficulty about the right of two consenting persons to decide to live together, to co-habit with
each other, and create their unique idea of a home, unconstrained by what others may say. That is the natural
sequitur to K.S. Puttaswamy (supra) and Navtej Johar (supra). Conduct hitherto criminalised, is now
permissible. The liberative effect of Section 377 being read down is that two individuals, regardless of their
sexual orientation are enabled to live together, with dignity, and also protected from any kind of violence, for
living and existing together. Therefore, the right to be left alone, the right to exercise choice, the right to
dignity, and to live one’s life, with the person of one’s choice, is an intrinsic and essential feature of Article 21
of the Constitution.

67. We do not therefore, agree with the learned Chief Justice who has underlined that the positive postulate
of various rights, leads to the conclusion that all persons (including two consenting adult queer persons) have
an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an
obligation to recognize, “to give real meaning” to the right. There is no recorded instance nor was one pointed
out where the court was asked to facilitate the creation of a social institution like in the present case.

68. There are observations from the judgment of the (then Justice Chandrachud and) now Chief Justice) Justice
D.Y. Chandrachud, in Navtej Johar (supra), of how social institutions must be arranged:

“Social institutions must be arranged in such a manner that individuals have the freedom to enter into
relationships untrammelled by binary of sex and gender and receive the requisite institutional
recognition to perfect their relationships. The law provides the legitimacy for social institutions. In a
democratic framework governed by the Rule of law, the law must be consistent with the constitutional
values of liberty, dignity and autonomy.”

These observations underscored the need to respect and give worth to the choice of queer couples. The
observations were in the context of criminalization of consensual sexual conduct between queer couples. The
observations, however, have tended to point to the direction that there should be some social ordering of
institutions, which not merely accommodate such choice, but facilitate its meaningful exercise beyond the
confines of their right to privacy and to live together. While the decision’s decriminalising impact is
undoubted, and not

contested, yet the broader observations obliging social institutions to accommodate and facilitate exercise of
choice fully were not necessary. In one sense, they travelled beyond the scope of the court’s remit and have to
be viewed as obiter dicta. That the State should or ought to order such social institutions, is different from a
direction issued by this court, which they must carry out; the latter is what we take exception to, and place our
reservations against. 69. Therefore, even if we were to, for argument sake, recognise an entitlement under the
Constitution to enter into an abiding cohabitational relationship or union– in our opinion, it cannot follow to a
claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right
to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings. “Ordering a
social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel
framework for nonheterosexual couples, would require conception of an entirely different code, and a new
universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage
between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling
out eligibility conditions, such as minimum age, relationships which fall within “prohibited degrees”; grounds
for divorce, right to maintenance, alimony, etc.

70. As a result, with due respect, we are unable to agree with the conclusions of the learned Chief Justice, with
respect to tracing the right to enter into or form unions from the right to freedom of speech and expression
[Article 19(1)(a)], the right to form associations [Article 19 (1)(c)], along with Article 21 and any corresponding
positive obligation. It is reiterated that all queer persons have the right to relationship and choice of partner,
co-habit and live together, as an integral part of choice, which is linked to their privacy and dignity. Any further
discussion on the rights which consenting partners may exercise, is unnecessary. No one has contested that
two queer partners have the rights enumerated under Article 19 (1)(a); (c), and (d), or even the right to
conscience under Article 25.

- Special Marriage ACt & Article 14

85. In all the judgments cited by petitioners, the court was able to discern or find that a classification, made at
an earlier point in time, had lost its relevance, and operated in a discriminatory manner. In some
circumstances, rather than declaring the entire law void, this court “read down” the relevant provision to the
extent the statute could be so read. In the present case, the petitioner’s arguments with respect to “reading
down” provisions of the SMA are insubstantial. The original rationale for SMA was to facilitate inter-faith
marriages. That reason is as valid today as it was at the time of birthing that law. It cannot be condemned on
the ground of irrelevance, due to passage of time. It would be useful to recall principle (9)79 of the opinion in
Re Special Court’s Bill (supra). The classification was primarily not between heterosexual and non-heterosexual
couples, but heterosexual couples of differing faiths. All its provisions are geared to and provide for a
framework to govern the solemnisation, or registration, of the marital relationship, which replicates the status
that different personal laws bestow. Since there was no one law, which could apply for couples professing
differing religions, the SMA created the governing norms- such as procedure, minimum age, prohibited degree
of relationship and forbidden relationships for the male and female spouses respectively (through different
schedules); the grounds of divorce, etc. The relevance of SMA has gained more ground, because of increasing
awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be
said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA
has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation. Without a
finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”.

SMA & FMA: Paras 100 to 107

- Indirect Discrimination

110. The common feature of the “effect of the law and of the action upon the right” in R.C. Cooper (supra) and
the decisions which applied the indirect discrimination lens, is that the objects (of the legislation or the policy
involved) are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s
inquiry. In one sense, the development of the indirect discrimination test, is a culmination, or fruition of the
methods which this court adopted, in judging the discriminatory impact of any law or measure, on an
individual. 111. This court in the previous sections of this judgment, has discussed and concluded how the
claim for reading a fundamental right to marry, into the Constitution, cannot be granted. However, the court
cannot be oblivious of the various intersections which the existing law and regulations impact to queer
couples. 112. The constitution exists, and speaks for all, not the many or some. The felt indignities of persons
belonging to the LGBTQIA+ community need no proof, of the forensic kind; it does have to meet a quantifiable
threshold, this court has outlined them in Navtej Johar (supra). The refusal to acknowledge choice, by society,
is because it is statedly based on long tradition (dating back to the times when the constitution did not exist).
In such cases, the issue is does the state’s silence come in the way of this court recognizing whether the
petitioners have been denied the right to choose their partner?

113. It is important to recognize, that while the state ipso facto may have no role in the choice of two free
willed individuals to marry, its characterizing marriage for various collateral and intersectional purposes, as a
permanent and binding legal relationship, recognized as such between heterosexual couples only (and no
others) impacts queer couples adversely. The intention of the state, in framing the regulations or laws, is to
confer on benefits to families, or individuals, who are married. This has the result of adversely impacting to
exclude queer couples. By recognizing heterosexual couples’ unions and cohabitation as marriages in various
laws and regulations such as: in employment (nominations in pension, provident fund, gratuity, life and
personal accident insurance policies); for credit (particularly joint loans to both spouses, based on their total
earning capacity); for purposes of receiving compensation in the event of fatal accidents, to name some such
instances, and not providing for non-heterosexual couples such recognition, results in their exclusion.

114. The individual earned benefits(by each partner or both collectively), which would be available to family
members (such as employee state insurance benefits, in the event of injury of the earning partner, provident
fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are
examples of what the injured or deceased partner by dint of her or his work, becomes entitled to, or the
members of her family become entitled to. The denial of these benefits and inability of the earning partner in
a queer relationship, therefore has an adverse discriminatory impact. The state may not intend the
discrimination, or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework
of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of
entitlements/benefits, despite the professional abilities and contributions which such individuals might to
society.

115. The objective of many of these laws or schemes is to confer or provide entitlements based on individual
earning and contribution. For example, provident fund is payable due to the employee’s personal contribution
and their status as an employee, directly flowing from the functions discharged. Similarly, the objective of
entitlement of benefits under the Employee State Insurance Act, and other such insurance related schemes or
welfare measures (such as the Workman’s Compensation Act), flow from the individual status, work, and
effort of the concerned employee. Major part of these benefits, or all of them, flow in the event of certain
eventualities such as fatal accident, or death. The design of these statutes and schemes, is to enable both the
concerned subscriber or employee (in the event of infirmity or termination of employment) to receive them,
or in an unforeseen event such as death, for his dependents to receive them. The restrictive way in which
‘dependent’ or ‘nominee(s)’ are defined (‘spouse’, or members of the family in a heteronormative manner)
exclude their enjoyment to the intended beneficiary.

116. This deprivation has to be addressed. That these can be magnified, can be illustrated by a few examples.
For instance, a queer couple might live together as spouses (without legal recognition)- even for two decades.
If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get
any share of the deceased partner’s estate, but also any portion of the compensation. In case the union was
not with approval of their respective families, who might have ostracised or broken relationship with them,
the result would be injustice, because the surviving spouse, who shared life and cared for the deceased
partner, especially during hard times, would be completely excluded from enjoying any benefits - all of which
would go to the family members of the deceased (who may have even boycotted them). The same result
would occur, in the event of death of one partner; family pension and death benefits would be denied to the
queer partner. This injustice and inequity results in discrimination, unless remedial action is taken by the state
and central governments.

117. It is relevant to record a note of caution at this juncture. While the right to marry or have a legally
recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s
home is fundamental, and enjoyed by all. This is not to say that the latter, is unqualified or without restriction.
Rather, that the latter, is a right afforded to all, irrespective of the State's recognition of the relationship or
status, as in the case of ‘married’ couples. The discriminatory impact recognised in the above paragraphs,
however, is to highlight the effect of a legislative vacuum – specifically on long term queer couples, who do
not have the avenue of marriage, to entitle them to earned benefits. Could this same logic then be extended
to heterosexual couples that choose to not get married, despite having the avenue? With respect, this would
require further consideration by the State, and was an aspect that was neither argued, nor were we called
upon to decide, in the present petitions. Therefore, it is pointed out that State must remain cognizant of such
an unwitting consequence of creating two parallel frameworks, for live-in or domestic partnerships, and
marriages, and the confusion or anomalies this may cause to gendered legal frameworks (as they stand today)
– while trying to remedy or mitigate the discrimination faced by queer couples.

118. Addressing all these aspects and concerns means considering a range of policy choices, involving
multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns -
many of them possibly coalescing. On 03.05.2023, during the course of hearing, the learned Solicitor General,
upon instructions, had expressed the Union’s position that a Highpowered committee headed by the Union
Cabinet Secretary would be formed to undertake a comprehensive examination to consider such impacts, and
make necessary recommendations in that regard.

- Discriminatory impact of adoption regulations on queer persons

131. Section 57(2) of that Act spells out the eligibility conditions of prospective adoptive parents. The
petitioner’s argument was that the expression “marital” results in discrimination inasmuch as single parent
can adopt – the only 69 prohibition being that a single man cannot adopt a girl child. Further, if a single man
and/or a single woman choose to adopt separately as an individual, and live together, the resultant de facto
parents would still have a choice of marrying each other – for the child in question to be legally the child of
both parents. Or put differently, if a heterosexual couple wants to adopt a child jointly, they have the option of
entering into a marriage, thereby making them eligible for joint adoption. However, in the absence of legal
recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family
would have no avenue for legal recognition. This iniquitous result too is an aspect which needs to be
addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of
their union) but also upon the children adopted by them (who have no say in the matter).

132. Furthermore, given the social reality that queer couples are having to adopt in law as individuals, but are
residing together and for all purposes raising these children together – means that the State arguably has an
even more urgent need to enable the full gamut of rights to such children, qua both parents. For instance, in
an unforeseen circumstance of death of the partner who adopted the child as an individual, the child in
question may well become the ward of such deceased’s relatives, who might (or might not) even be known to
the child, whereas the surviving partner who has been a parent to the child for all purposes, is left a stranger
in the law. Therefore, this is yet another consequence of the nonrecognition of queer unions, that the State
has to address and eliminate, by appropriate mitigating measures.

133. This is not to say that unmarried couples – whether queer or heterosexual– are not capable or suitable,
to be adoptive parents. However, once the law permits, as it has done – adoption by both single individuals,
the likelihood of their joining and co-habiting cannot be ruled out. In such event, de facto family unit can and
do come about. The underlying assumption in the law as it exists, that such unmarried heterosexual or queer
couples should not adopt needs to be closely 70 examined. Similarly, the need of such couples to have and
raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to
the best interests of the child. The existing state of affairs which permits single individuals to adopt, and later
to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various
legal and social benefits, which are otherwise available to children of a married couple. In other words, given
the objective of Section 57 and other allied provisions of the JJ Act, which is beneficial for children, the State as
parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure
that the maximum welfare and benefits reach the largest number of children in need of safe and secure
homes with a promise for their fullest development. This aspect is extremely important given that a large
number of children remain neglected, or orphaned.

134. It goes without saying that the welfare and the benefit of the children is paramount in every case, and
the State has the duty to act as parens patriae. That our country has countless children who are orphaned or
neglected, and in need of loving homes, is not lost on us – and is certainly a concern that the State is most
acutely aware of. In these circumstances, it would be in the general interest of all children that such impact is
removed at the earliest instance, after undertaking indepth study and analysis of the various permutations
and combinations that would arise in opening adoption more widely, without hampering the child’s rights. In
its exercise of reframing the regulations or laws, it is reiterated that the State cannot, on any account, make
regulations that are facially or indirectly discriminatory on the ground of sexual orientation. It would be
entirely wrong, if the observations herein, are construed as saying that the State should hamper or interfere in
queer persons who have in the past, or are seeking to adopt as individuals. These observations are to be
construed to enable the state to consider all options, and implications, with the object of promoting the best
welfare of children, especially whether joint adoption can be facilitated to such willing 71 couples, even while
ensuring that the legal web of statutory protections and entitlements guaranteed to children, are
operationalised for these children as well.

135. These observations are not meant to impede all possibilities and make all necessary policy and legislative
changes, enabling children’s welfare. In other words, the possibility of queer couples adopting children, should
be given equal concern and consideration having regard to the larger interest of the largest number of
children and their development.

- Moulding relief

138. Does the existence of such discriminatory impacts, in these intersections with the state, and arising out of
a variety of regulations and laws, impel this court to fashion a remedy, such as a declaration, which enjoin
legislative activity, or instruct the executive to act in a specified manner, i.e., achieving nonheterosexual
couple marriage? This aspect cannot be viewed in isolation, but in the context of our constitution’s
entrenchment of separation of powers, which according to Kesavananda Bharati (supra), Indira Gandhi119 and
other judgments constitutes an essential feature of the Constitution. It is one thing for this court, to commend
to the state, to eliminate the discriminatory impact of the intersections with laws and publicly administered
policies and institutions, upon non-heterosexual couples, and entirely another, to indirectly hold that through
a conflation of positive obligations cast on the State, that such individuals’ right to choice to cohabit and form
abiding relationships, extends to the right (or some entitlement) to a legally recognised union that must be
actualized by State policy/legislation.

145. In the present case, however, the approach adopted in the above three cases would not be suitable. The
court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations.
Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not
merely the State. The learned Chief Justice’s conclusions also do not point towards directions of the kind
contemplated in Vishaka (supra). 76 However, the outlining of a bouquet of rights and indication that there is
a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the
State to accord recognition to such union, is what we take exception to.

- Conclusion and directions

146. Marriage, in the ultimate context, is not defined merely by the elements, which delineate some of its
attributes, and the differing importance to them, depending on times, such as permanence of a sexual
partner; procreation and raising of children, stability to family, and recognition in the wider society. Some, or
most of these elements may be absent in many relationships: there may be no procreative possibility due to
choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle,
due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some
marriage, because of constraints including spouses being located in different places; some marriages may be
(by choice or otherwise) bereft of physical or sexual content. Yet, these marriages might be as successful, as
fulfilling and complete as any other. The reason, in this author’s opinion, is that at its core, marriage has
signified companionship, friendship, care and spiritual understanding a oneness, which transcends all other
contents, and contexts. Thus, “home” is not a physical structure; it is rather the space where the two
individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been
understood.

147. This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the
cover of it (for e.g., those who are simply in committed cohabitational relationships). While many others, may
only be able to experience such a feeling and way of life, if it were to have the legitimacy in society, akin to
marriage. That law has the potential to play such a legitimising role, cannot be overstated. The feeling of
exclusion that comes with this status quo, is undoubtedly one which furthers the feeling of exclusion on a daily
basis, in society for members of the queer community. However, having concluded that there exists no
fundamental right to marry, or a right to claim a status for the relationship, through the medium of a law (or
legal regime) and acknowledged the limitations on this court in moulding relief, this court must exercise
restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered
partnership, or marriage, or abiding co-habitational relationship. Yet, it would be appropriate to note that
everyone enjoys the right to choice, dignity, non-discrimination, and privacy. In a responsive and
representative democracy which our country prides itself in being, such right to exercise choices should be
given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time,
prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard,
would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and
experiences, of this community.

148. The resultant adverse impact suffered by the petitioners in relation to earned benefits [as elaborated in
Part VI], solely because of the State’s choice to not recognise their (social) union or relationship, is one which
results in their discrimination. This discriminatory impact – cannot be ignored, by the State; the State has a
legitimate interest necessitating action. The form of action – whether it will be by enacting a new umbrella
legislation, amendments to existing statutes, rules, and regulations that as of now, disentitle a same-sex
partner from benefits accruing to a ‘spouse’ (or ‘family’ as defined in the heteronormative sense), etc.– are
policy decisions left to the realm of the legislature and executive. However, the recognition that their non-
inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned
and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences,
amounting to discrimination violating their fundamental right under Article 15 – is this court’s obligation,
falling within its remit. The State has to take suitable 78 remedial action to mitigate the discriminatory impact
experienced by the members of the queer community, in whatever form it deems fit after undertaking due
and necessary consultation from all parties, especially all state governments and union territories, since their
regulations and schemes too would have to be similarly examined and addressed.

149. This court hereby summarizes its conclusions and directions as follows:

i. There is no unqualified right to marriage except that recognised by statute including space left by custom.

ii. An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal
status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court
cannot enjoin or direct the creation of such regulatory framework resulting in legal status.
iii. The finding in (i) and (ii) should not be read as to preclude queer persons from celebrating their
commitment to each other, or relationship, in whichever way they wish, within the social realm.

iv. Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to
union or relationship (under Article 21) – “be it mental, emotional or sexual” flowing from the right to privacy,
right to choice, and autonomy. This, however, does not extend to a right to claim entitlement to any legal
status for the said union or relationship.

v. The challenge to the SMA on the ground of under classification is not made out. Further, the petitioner’s
prayer to read various provisions in a ‘gender neutral’ manner so as to enable same-sex marriage, is
unsustainable.

vi. Equality and non-discrimination are basic foundational rights. The indirect discriminatory impacts in
relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a
relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be
suitably redressed and removed by the State. These measures 79 need to be taken with expedition because
inaction will result in injustice and unfairness with regard to the enjoyment of such benefits, available to all
citizens who are entitled and covered by such laws, regulations or schemes (for instance, those relating to
employment benefits: provident fund, gratuity, family pension, employee state insurance; medical insurance;
material entitlements unconnected with matrimonial matters, but resulting in adverse impact upon queer
couples). As held earlier, this court cannot within the judicial framework engage in this complex task; the State
has to study the impact of these policies, and entitlements.

vii. Consistent with the statement made before this Court during the course of proceedings on 03.05.2023, the
Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a
comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of
such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories
shall be taken into account.

viii. The discussion on discriminatory impacts is in the context of the effects of the existing regimes on queer
couples. While a heterosexual couple’s right to live together is not contested, the logic of the discriminatory
impact [mentioned in conclusion (vi) above] faced by queer couples cohabiting together, would definitionally,
however, not apply to them.

ix. Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the
existing statutory provisions.

x. Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged. At the same time, this
court is of the considered opinion that CARA and the Central Government should appropriately consider the
realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a
non-matrimonial relationship. In an unforeseen eventuality, the adopted child in question, could face
exclusion 80 from the benefits otherwise available to adopted children of married couples. This aspect needs
further consideration, for which the court is not the appropriate forum.

xi. Furthermore, the State shall ensure - consistent with the previous judgment of this Court in K.S.
Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini (supra) and Shafin Jahan (supra)- that the choice
exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of
violence or coercion. All necessary steps and measures in this regard shall be taken. The respondents shall
take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary
medical or surgical treatment.

xii. The above directions in relation to transgender persons are to be read as part of and not in any manner
whittling down the directions in NALSA (supra) so far as they apply to transgender persons.

xiii. This court is alive to the feelings of being left out, experienced by the queer community; however,
addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary
approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable
remedies.

III. National Legal Services Authority v. Union of India, AIR 2014 SC 1863

- THE RIGHT TO RECOGNITION BEFORE THE LAW

Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual
orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined
sexual orientation and gender identity is integral to their personality and Page 24 24 is one of the most basic
aspects of selfdetermination, dignity and freedom. No one shall be forced to undergo medical procedures,
including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of
their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal
recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress or deny
their sexual orientation or gender identity.

States shall:

A. Ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of
sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to
conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and
dispose of property;

B. Take all necessary legislative, administrative and other measures to fully respect and legally recognise each
person’s self-defined gender identity;

C. Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby
all State-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports,
electoral records and other documents — reflect the person’s profound self-defined gender identity;

D. Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy
of the person concerned; Page 25 25

E. Ensure that changes to identity documents will be recognised in all contexts where the identification or
disaggregation of persons by gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all persons experiencing gender transitioning
or reassignment.

- ARTICLE 14 AND TRANSGENDERS

54. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before
the Page 70 70 law or the equal protection of the laws within the territory of India. Equality includes the full
and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the
Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure
of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation
on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that
everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14
does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who
are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in
all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship
rights, as enjoyed by any other citizen of this country. Page 71 71

55. Petitioners have asserted as well as demonstrated on facts and figures supported by relevant materials
that despite constitutional guarantee of equality, Hijras/transgender persons have been facing extreme
discrimination in all spheres of the society. Nonrecognition of the identity of Hijras/transgender persons
denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and
sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation,
rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable
statistics and materials to support such activities. Further, nonrecognition of identity of Hijras /transgender
persons results in them facing extreme discrimination in all spheres of society, especially in the field of
employment, education, healthcare etc. Hijras/transgender persons face huge discrimination in access to
public spaces like restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious
problem they face quite often. Since, there are no separate toilet facilities for Page 72 72 Hijras/transgender
persons, they have to use male toilets where they are prone to sexual assault and harassment. Discrimination
on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal
protection of law and violates Article 14 of the Constitution of India.

- ARTICLES 15 & 16 AND TRANSGENDERS

56. Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the
ground of ‘sex’. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination.

57. Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground of sex,
with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) use of
wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public. Page 73 73 The requirement of taking affirmative action for the
advancement of any socially and educationally backward classes of citizens is also provided in this Article.
58. Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to
employment or appointment to any office under the State. Article 16 (2) of the Constitution of India reads as
follows : “16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence
or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the
State.” Article 16 not only prohibits discrimination on the ground of sex in public employment, but also
imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment
and appointment by the State.

59. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination
is a historical fact and needs to be addressed. Constitution makers, it can be gathered, gave emphasis to the
fundamental right against sex discrimination so as to Page 74 74 prevent the direct or indirect attitude to treat
people differently, for the reason of not being in conformity with stereotypical generalizations of binary
genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics,
of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s
self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on
the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender
identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female,
but intended to include people who consider themselves to be neither male or female.

60. TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to any
disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded
special provisions envisaged under Article 15(4) for the Page 75 75 advancement of the socially and
educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get
the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice
done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and
political rights without discrimination, because forms of discrimination on the ground of gender are violative
of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and
discriminated against in respect of employment or office under the State on the ground of sex. TGs are also
entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution.
State is bound to take affirmative action to give them due representation in public services.

61. Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and various
international instruments to which Indian is a party, call for social equality, which the TGs could realize, only if
facilities Page 76 76 and opportunities are extended to them so that they can also live with dignity and equal
status with other genders.

- LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY

70. Self-identified gender can be either male or female or a third gender. Hijras are identified as persons of
third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a
person’s internal sense of being male, female or a transgender, for example Hijras do not identify as female
because of their lack of female genitalia or lack of reproductive capability. This distinction makes them
separate from both male and female genders and they consider themselves neither man nor woman, but a
“third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to
be considered as a “third gender”, apart from male and female. State of Punjab has treated Page 82 82 all TGs
as male which is not legally sustainable. State of Tamil Nadu has taken lot of welfare measures to safeguard
the rights of TGs, which we have to acknowledge. Few States like Kerala, Tripura, Bihar have referred TGs as
“third gender or sex”. Certain States recognize them as “third category”. Few benefits have also been
extended by certain other States. Our neighbouring countries have also upheld their fundamental rights and
right to live with dignity. 71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v. Nepal Government (Writ
Petition No.917 of 2007 decided on 21st December, 2007), spoke on the rights of Transgenders as follows:-
“the fundamental rights comprised under Part II of the Constitution are enforceable fundamental human
rights guaranteed to the citizens against the State. For this reason, the fundamental rights stipulated in Part III
are the rights similarly vested in the third gender people as human beings. The homosexuals and third gender
people are also human beings as other men and women are, and they are the citizens of this country as well….
Thus, the people other than ‘men’ and ‘women’, including the people of ‘third gender’ cannot be
discriminated. The Page 83 83 State should recognize the existence of all natural persons including the people
of third gender other than the men and women. And it cannot deprive the people of third gender from
enjoying the fundamental rights provided by Part III of the Constitution.”

72. The Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki & Anr. V. Senior Superintendent of Police
(Operation) Rawalpindi & Ors. (Constitution Petition No.43 of 2009) decided on 22nd March, 2011, had
occasion to consider the rights of eunuchs and held as follows:- “Needless to observe that eunuchs in their
rights are citizens of this country and subject to the Constitution of the Islamic Republic of Pakistan, 1973,
their rights, obligations including right to life and dignity are equally protected. Thus no discrimination, for any
reason, is possible against them as far as their rights and obligations are concerned. The Government
functionaries both at federal and provincial levels are bound to provide them protection of life and property
and secure their dignity as well, as is done in case of other citizens.”

73. We may remind ourselves of the historical presence of the third gender in this country as well as in the
neighbouring countries. Page 84 84

74. Article 21, as already indicated, protects one’s right of self-determination of the gender to which a person
belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In
other words, gender identity is integral to the dignity of an individual and is at the core of “personal
autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over
and above binary genders under our Constitution and the laws.

75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from
its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on
one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather
we prefer to follow the psyche of the person in determining sex and gender and prefer the “Psychological
Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal Code, for example,
Section 8, 10, etc. and Page 85 85 also in the laws related to marriage, adoption, divorce, inheritance,
succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity of
Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread
discrimination.

76. Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex”
so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression
“person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take
within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity
as already indicated forms the core of one’s personal self, based on self identification, not on surgical or
medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated
on the ground of gender identity, including those who identify as third gender. Page 86 86

77. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes
any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing
equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are
inclined to give various directions to safeguard the constitutional rights of the members of the TG community

IV. Janhit Abhiyan v. Union of India, (2023) 5 SCC 1 (EWS Judgement)

- Whether providing for economic criteria as the sole basis for reservation is a violation of the basic
structure of the Constitution

72. On a contextual reading, it could reasonably be culled out that the observations, wherever occurring in the
decisions of this Court, to the effect that reservation cannot be availed only on economic criteria, were to
convey the principle that to avail the benefit of this affirmative action under Articles 15(4) and/or 15(5) and/or
16(4), as the case may be, the class concerned ought to be carrying some other disadvantage too and not the
economic disadvantage alone. The said decisions cannot be read to mean that if any class or section other
than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to
economic conditions, the State can never take affirmative action qua that class or section.

73. In view of the principles discernible from the decisions aforesaid as also the background aspects, including
the avowed objective of socio- economic justice in the Constitution, the observations of this Court in the past
decisions that reservations cannot be claimed only on the economic criteria, apply only to class or classes
covered by or seeking coverage under Articles 15(4) and/or 15(5) and/or 16(4); and else, this Court has not put
a blanket ban on providing reservation for other sections who are disadvantaged due to economic conditions.

.... In other words, the wide spectrum of distributive justice mandates promotion of educational and economic
interests of all the weaker sections, in minimizing the inequalities in income as also providing adequate means
of livelihood to the citizens. In this commitment, leaving one class of citizens to struggle because of
inequalities in income and want of adequate means of livelihood may not serve the ultimate goal of securing
all-inclusive socio-economic justice.
74.1.2. In fact, the argument that the State may adopt any poverty alleviation measure but cannot provide
reservation for EWS by way of affirmative action proceeds on the assumption that the affirmative action of
reservation in our constitutional scheme is itself reserved only for SEBCs/OBCs/SCs/STs in view of the existing
text of Articles 15(4), 15(5) and 16(4) of the Constitution. Such an assumption is neither valid nor 121
compatible with our constitutional scheme. This line of argument is wanting on the fundamental constitutional
objectives, with the promise of securing ‘JUSTICE, social, economic and political’ for ‘all’ the citizens; and to
promote FRATERNITY among them ‘all’. Thus viewed, the challenge to the amendment in question fails on the
principle of distributive justice.

A simple reading of the heading together with the contents would make it clear that the broader expression
“other weaker sections” in Article 46 is disjointed from the particular weaker sections (Schedule Castes and
Scheduled Tribe); and is not confined to only those sections who are similarly circumstanced to SCs and STs.

74.3. Apart from the aforesaid two major shortcomings in the argument suggesting restricted operation of the
measures contemplated by Article 46, the other shortcoming rather knocks the bottom out of this argument
when the same is examined in the context of a constitutional amendment. The fundamental flaw in this
argument is that even if the Statement of Objects and Reasons for the amendment in question refers to Article
46, such a reference is only to one part of DPSP to indicate the constitutional objective which is sought to be
addressed to, or fulfilled. However, the amendment in question could be correlated with any other provision
of the Constitution, including the Preamble as well as Articles 38 and 39. Moreover, it is not the requirement
of our constitutional scheme that an amendment to the Constitution has to be based on some existing
provision in DPSP. In fact, an amendment to the Constitution (of course, 124 within the bounds of basic
structure) could be made even without any corresponding provision in DPSP.

75. In the aforesaid view of matter, there appears no reason to analyse another unacceptable line of
arguments adopted by the petitioners that the amendment in question provides for compensatory
discrimination in favour of the so-called forward class/caste. Suffice it to observe that the amendment in
question is essentially related to the requirements of those economically weaker sections who have hitherto
not been given the benefit of such an affirmative action (particularly of reservation), which was accorded to
the other class/classes of citizens namely, the SEBCs/OBCs/SCs/STs. Viewing this affirmative action of EWS
reservation from the standpoint of backward class versus forward class is not in accord with the very
permissibility of compensatory discrimination towards the goal of real and substantive justice for all.

76. There has been another ground of challenge that if at all reservation on economic criteria is to be given,
keeping the SEBCs/OBCs/SCs/STs out of this affirmative action is directly at conflict with the constitutional
scheme and hits the Equality Code. This line of arguments shall be dealt with in the next segment. Enough to
say for the present purpose that the challenge to the amendment in question on the ground that though the
State could take all the relevant measures to deal with poverty and the disadvantages arising therefrom but,
the affirmative action of reservation is envisaged by the Constitution only for socially and 125 educationally
backward class of citizens; and economic disadvantage alone had never been in contemplation for this action
of reservation, is required to be rejected. In any case, any legitimate effort of the State towards all-inclusive
socio-economic justice, by way of affirmative action of reservation in support of economically weaker sections
of citizens, who had otherwise not been given the benefit of this affirmative action, cannot be lightly
interfered with by the Court.
 - EWS Reservation Not Availing to Certain Classes: Whether Violates Basic Structure

77.1. As noticed, the amendment in question introduces clause (6) to both the Articles, i.e., 15 and 16. Clause
(6) of Article 15 starts with a non obstante preposition, making it operative notwithstanding anything
otherwise contained in other clauses of Article 15 or Article 19(1)(g) or Article 29(2). Sub-clause (a) of clause
(6) of Article 15 enables the State to make any special provision for the advancement of any economically
weaker sections of citizens and sub-clause (b) thereof provides for making a maximum of ten per cent.
reservation in the matter of admission 126 to educational institutions, public or private, barring minority
educational institutions. Similarly, clause (6) of Article 16 also starts with a non obstante preposition, making it
operative notwithstanding anything otherwise contained in other clauses of that Article and enables the State
to make any provision for the reservation of appointments or posts in favour of any economically weaker
sections of citizens to a maximum of ten per cent. As per the Explanation to clause (6) of Article 15,
“economically weaker sections” for the purpose of both these Articles 15 and 16 shall be such as to be notified
by the State from time to time on the basis of family income and other indicators of economic disadvantage.
However, when both these clauses exclude from their ambit those classes who are already covered under
Articles 15(4), 15(5) and 16(4), that is to say, the benefits under these amended provisions do not avail to
Scheduled Castes, Scheduled Tribes, and Other Backward Classes (Non-creamy layer), the ground of challenge
is that keeping the socially and educationally backward classes out of Articles 15(6) and 16(6) is directly at
conflict with the constitutional scheme and is of inexplicably hostile discrimination. Rather, according to the
petitioners, the classes covered by Articles 15(4), 15(5) and 16(4) are comprising of the poorest of the poor
and hence, keeping them out of the benefit of EWS reservation is an exercise conceptionally at conflict with
the constitutional norms and principles. 127

77.2. At the first blush, the arguments made in this regard appear to be having some substance because it
cannot be denied that the classes covered by Articles 15(4), 15(5) and 16(4) would also be comprising of poor
persons within. However, a little pause and a closer look makes it clear that the grievance of the petitioners
because of this exclusion remains entirely untenable and the challenge to the amendment in question remains
wholly unsustainable. As noticed infra, there is a definite logic in this exclusion; rather, this exclusion is
inevitable for the true operation and effect of the scheme of EWS reservation.

78. It is true that in identifying the classes of persons for the purpose of Articles 15(4), 15(5) and 16(4) of the
Constitution i.e., Other Backward Classes (Non-creamy layer), Scheduled Castes and Scheduled Tribes, the
social and educational backwardness predominantly figures but then, it needs no great deal of research to
demonstrate that the poverty too is thickly associated with these factors.

78.2. Though, the principal factor in the observations aforesaid is class poverty which is indicated to be
different than individual poverty but, it cannot be denied that poverty is a material factor taken into
consideration along with caste, residence, occupation or other dominant feature while recognising any
particular class/caste’s entitlement to the affirmative action by way of reservation enabled in terms of Articles
15(4), 15(5) and 16(4). In that scenario, if the Parliament has considered it proper not to extend those classes
covered by the existing clauses of Articles 15(4), 15(5) and 16(4) another benefit in terms of affirmative action
of reservation carved out for other economically weaker sections, there is no reason to question this judgment
of the Parliament. Obviously, for the reason that those classes are already provided with affirmative action in
terms of reservation, in the wisdom of the Parliament, there was no need to extend them or any of their
constituents yet another benefit in the affirmative action of reservation carved out for other economically
weaker sections.

78.3. Moreover, the benefit of reservation avails to the excluded classes/castes under the existing clauses of
Articles 15 and 16; and by the amendment in question, the quota earmarked for them is not depleted in any
manner.

79. The amendment in question makes a reasonable classification between “economically weaker sections”
and other weaker sections, who are already mentioned in Articles 15(4), 15(5) and 16(4) of the Constitution
and are entitled to avail the benefits of reservation thereunder. The moment there is a vertical reservation,
exclusion is the vital requisite to provide benefit to the target group. In fact, the affirmative action of
reservation for a particular target group, to achieve its desired results, has to be carved out by exclusion of
others. The same principle has been applied for the affirmative action of reservation qua the groups of SEBCs,
OBCs, SCs, and STs. Each of them takes reservation in their vertical column in exclusion of others. But for this
exclusion, the purported affirmative action for a particular class or group would be congenitally deformative
and shall fail at its inception. Therefore, the claim of any particular class or section against its exclusion from
the affirmative action of reservation in favour of EWS has to be rejected.

80. In fact, it follows as a necessary corollary to the discussion in the preceding segments of this judgment that
looking to the purpose and the objective of the present affirmative action, that is, reservation for the benefit
of economically weaker sections, the other classes, who are 130 already availing the benefit of affirmative
action of reservation by virtue of Articles 15(4), 15(5) and 16(4), are required to be kept out of the benefits of
EWS reservation in Articles 15(6) and 16(6). It could easily be seen that but for this exclusion, the entire
balance of the general principles of equality and compensatory discrimination would be disturbed, with extra
or excessive advantage being given to the classes already availing the benefit under Articles 15(4), 15(5) and
16(4). In other words, sans such exclusion, reservation by way of the amendment in question would only lead
to an incongruous and constitutionally invalid situation.

81. Putting it in other words, the classes who are already the recipient of, and beneficiary of, compensatory
discrimination by virtue of Articles 15(4), 15(5) and 16(4), cannot justifiably raise the grievance that in another
set of compensatory discrimination for another class, they have been excluded. It gets, perforce, reiterated
that the compensatory discrimination, by its very nature, would be structured as exclusionary in order to
achieve its objectives. Rather, if the classes for whom affirmative action is already in place are not excluded,
the present exercise itself would be of unjustified discrimination. 8

2. Even a slightly different angle of approach would also lead to the same result. The case sought to be made
out on behalf of the class or classes already availing the benefit of Articles 15(4), 15(5) and 16(4) is that their
exclusion from EWS reservation is of inexplicable discrimination. What this argument misses out is that in
relation to the principles of 131 formal equality, both the reservations, whether under the pre-existing
provisions or under the newly inserted provisions, are of compensatory discrimination which is permissible for
being an affirmative action; and is to be contra-distinguished from direct discrimination, which is not
permissible.
82.1. According to the petitioners, it is a case of their direct discrimination when they have been excluded
from EWS reservation. The problem with this argument is that EWS reservation itself is another form of
compensatory discrimination, which is meant for serving the cause of such weaker sections who have hitherto
not been given any State support by way of reservation. SEBCs/OBCs/SCs/STs are having the existing
compensatory discrimination in their favour wherein the presently supported EWS are also excluded
alongwith all other excluded classes/persons. As a necessary corollary, when EWS is to be given support by
way of compensatory discrimination, that could only be given by exclusion of others, and more particularly by
exclusion of those who are availing the benefit of the existing compensatory discrimination in exclusion of all
others. Put in simple words, the exclusion of SEBCs/OBCs/SCs/STs from EWS reservation is the compensatory
discrimination of the same species as is the exclusion of general EWS from SEBCs/OBCs/SCs/STs reservation.
As said above, compensatory discrimination, wherever applied, is exclusionary in character and could acquire
its worth and substance only by way of exclusion of others. Such 132 differentiation cannot be said to be
legally impermissible; rather it is inevitable. When that be so, clamour against exclusion in the present matters
could only be rejected as baseless.

88. Thus, the exclusion of other groups and classes from the ten per cent. reservation earmarked for EWS does
not make them constitutionally aggrieved parties to invoke the general doctrine of equality for assailing the
amendment in question. In other words, their grievance cannot be said to be a legal grievance so as to be
agitated before the Court.

- Breach of Fifty Per Cent. Ceiling of Reservations and Basic Structure

91. Moreover, the argument regarding the cap of fifty per cent. is based on all those decisions by this Court
which were rendered with reference to the reservations existing before the advent of the amendment in
question. The fifty per cent. ceiling proposition would obviously be applied only to those reservations which
were in place 137 before the amendment in question. No decision of this Court could be read to mean that
even if the Parliament finds the necessity of another affirmative action by the State in the form of reservation
for a section or class in need, it could never be provided. As noticed hereinbelow, the decisions of this Court
are rather to the contrary and provide that flexibility within which the Parliament has acted for putting in
place the amendment in question.

92. In the above backdrop, the relevant decisions of this Court in regard to this fifty per cent. ceiling limit could
be referred but, while reiterating that these decisions are applicable essentially to the class/classes who are to
avail the benefits envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India 93. Thus, having
examined the permissible limits of affirmative action in light of the possible harm of preferential treatment
qua other innocent class of competitors, i.e., general merit candidates, this Court has expressed the
desirability of fifty per cent. as the ceiling limit for reservation in education and public employment but, as
observed hereinbefore, all such observations are required to be read essentially in the context of the
reservation obtaining under Articles 15(4), 15(5) and 16(4) or other areas of affirmative action like that in
relation to local selfgovernment [the case of K. Krishna Murthy (supra)] and cannot be 146 overstretched to
the reservation provided for entirely different class, consisting of the economically weaker sections.
94. Moreover, as noticed, this ceiling limit, though held attached to the constitutional requirements, has not
been held to be inflexible and inviolable for all times to come. Reasons for this are not far to seek. As
mentioned hereinbefore, reservation by affirmative action is not having trappings of any such essential feature
of the Constitution, collectively enumerated by Kesavananda and successive decisions, that its modulation
with reference to any particular compelling reason or requirement could damage the basic structure of the
Constitution. 95. In another view of the matter, the prescription of ceiling limit of fifty per cent., being
apparently for the benefit of general merit candidates, does not provide any justified cause to the candidates
standing in the bracket of already available reservation to raise any grievance about extra ten per cent.
reservation for the benefit of another section of society in need of affirmative action. In any case, there is no
question of violation of any such basic feature of the Constitution that the entire structure of equality of
opportunity in Article 16 would collapse by this EWS reservation.

- Conclusions

102. For what has been discussed and held hereinabove, the points formulated in paragraph 31 are answered
as follows: -

a. Reservation is an instrument of affirmative action by the State so as to ensure all-inclusive march towards
the goals of an egalitarian society while counteracting inequalities; it is an instrument not only for inclusion of
socially and educationally backward classes to the mainstream of society but, also for inclusion of any class or
section so disadvantaged as to be answering the description of a weaker section. In this background,
reservation structured singularly on economic criteria does not violate any essential feature of the
Constitution of India and does not cause any damage to the basic structure of the Constitution of India.

b. Exclusion of the classes covered by Articles 15(4), 15(5) and 16(4) from getting the benefit of reservation as
economically weaker sections, being in the nature of balancing the requirements of nondiscrimination and
compensatory discrimination, does not violate Equality Code and does not in any manner cause damage to the
basic structure of the Constitution of India.

c. Reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing
reservations does not result in violation of any essential feature of the Constitution of India and does not
cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of
fifty per cent. because, that ceiling limit itself is not inflexible and in any case, applies only to the reservations
envisaged by Articles 15(4), 15(5) and 16(4) of the Constitution of India.

103. Not much of the contentions have been urged in relation to the impact of the amendment in question on
admissions to private unaided institutions. However, it could at once be clarified that what has been observed
hereinabove in relation to the principal part of challenge to the amendment in question, read with the
decision of this Court in Pramati Trust, the answer to the issue framed in that regard would also be against the
challenge.

104. Accordingly, and in view of the above, the answers to the issues formulated in these matters are as
follows:
1. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by
permitting the State to make special provisions, including reservation, based on economic criteria.

2. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by
permitting the State to make special provisions in relation to admission to private unaided institutions.

3. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in
excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation. 105. Consequently, the transferred
cases, transfer petitions, writ petitions and the petition for special leave to appeal forming the part of this
batch of matters are dismissed.

V. Aishat Shifa v. State of Karnataka, (2023) 2 SCC 1 (Hijab Ban Judgment)

- Secularism

13. Thus, though the concept of secularism emerged in the west, it has taken a different colour over the
period of time. In a democratic country like India, consisting of multiple religions, regions, faith, languages,
food and clothing, the concept of secularism is to be understood differently. Secularism, as adopted under our
Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any
encroachment of religion in the secular activities is not permissible. Secularism thus means treating all
religions equally, respecting all religions and protecting the practices of all religions. The positive meaning of
secularism would be non- discrimination by the State on the basis of religious faith and practices. Secularism
can be practiced by adopting a completely neutral approach towards religion or by a positive approach
wherein though the State believes and respects all religions, but does not favour any.

- Factual Background

As mentioned in the abovementioned rulings of the Hon’ble Supreme Court and various High Courts, since the
prohibition of a headscarf or a garment covering the head is not a violation of Article 25 of the Constitution.
Additionally, in terms of the [Karnataka Education Act, 1983 Article 133 Sub Rule (2) and Article 7(1)(i), 7(2)(g)
(v) and Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) of Rules 1995 as
per Rule 11]**, the government has decreed as below-

Government Order No: EP14 SHH 2022 Bengaluru Dated: 05.02.2022 In the backdrop of the issues highlighted
in the proposal, using the powers granted by Karnataka Education Act, 1983 Sub-Rule 133 (2) [Section 7(1)(i),
7(2)(g)(v) and Karnataka Education Act (Classification, Regulation, Curriculum Scheduling, Others) of Rules
1995 as per Rule 11**, all the government schools in the state are mandated to abide by the official uniform.
Private schools should mandate a uniform decided upon by their board of management.

In colleges that come under the pre-university education department’s jurisdiction, the uniforms mandated by
the College Development Committee, or the board of management, should be worn. In the event that the
management does mandate a uniform, students should wear clothes that are in the interests of unity, equality
and public order.

- Issues

We have heard learned counsels for the parties at length. I find that the following questions arise for
consideration in the present appeals:

“(i) Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re-9J)
and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of
the Constitution?

(ii) Whether the State Government could delegate its decision to implement the wearing of uniform
by the College Development Committee or the Board of Management and whether the Government
Order insofar as it empowers a College Development Committee to decide on the
restriction/prohibition or otherwise on headscarves is ex facie violative of Section 143 of the Act?

(iii) What is ambit and scope of the right to freedom of ‘conscience’ and ‘religion’ under Article 25?

(iv) What is the ambit and scope of essential religious practices under Article 25 of the Constitution?

(v) Whether fundamental rights of freedom of expression under Article 19(1)(a) and right of privacy
under Article 21 mutually exclusive or are they complementary to each other; and whether the
Government Order does not meet the injunction of reasonableness for the purposes of Article 21 and
Article 14?

(vi) Whether the Government Order impinges upon Constitutional promise of fraternity and dignity
under the Preamble as well as fundamental duties enumerated under Article 51-A sub-clauses (e) and

(f)?

(vii) Whether, if the wearing of hijab is considered as an essential religious practice, the student can
seek right to wear headscarf to a secular school as a matter of right?

(viii) Whether a student-citizen in the constitutional scheme is expected to surrender her fundamental
rights under Articles 19, 21 and 25 as a pre-

condition for accessing education in a State institution?

(ix) Whether in the constitutional scheme, the State is obligated to ensure ‘reasonable
accommodation’ to its citizens?

(x) Whether the Government Order is contrary to the legitimate State interest of promoting literacy
and education as mandated under Articles 21, 21A, 39(f), 41, 46 and 51A of the Constitution?
(xi) Whether the Government Order neither achieves any equitable access to education, nor serves
the ethic of secularism, nor is true to the objective of the Karnataka Education Act?” Question (i)-
Whether the appeals should be heard along with Kantaru Rajeevaru (Right to Religion, In Re-9J)
and/or should the present appeals be referred to the Constitution Bench in terms of Article 145(3) of
the Constitution?

- Question (iii)- What is the ambit and scope of right to freedom of ‘conscience’ and ‘religion’ under Article 25?

58. At the outset, it is pertinent to mention that the Constitution does not define the term ‘Religion’, though it
is used in Articles 15, 16, 25, 26, 27, 28 and 30.

69. Thus, the debates show the in-depth knowledge of the members of the Constituent Assembly at that
relevant point of time, but more than 70 years later, with the interpretation of various provisions by the
Constitutional Courts, it is not advisable to rely solely upon views of the individual members in such debates.

73. It was on 23.6.2018, that the College Development Committee, Udupi, prescribed a dress code for the
students. On 31.12.2019, the College Development Committee of another College i.e., Kundapura Pre-
University College, Udupi, unanimously resolved that the uniform of the students for the academic year would
continue to be same as one prescribed in the previous years.

74. The students at the time of admission to the pre-university course undertook to comply with all the rules
and regulations of the Pre-University College. It was pointed out that suddenly in the middle of the academic
term, the issue of hijab was generated in the social media by the activists of Popular Front of India. The police
papers in this respect were handed over to the High Court in a sealed cover as mentioned on page 126 of the
order of the High Court. It is stated that the chargesheet has since been filed. Thereafter, some
representations were made by the parents of the students and/or students requesting hijab to be worn in
classrooms.

75. The College Development Committee directed to maintain status quo. Five students thereafter filed Writ
Petition No. 2146 of 2022 on 29.1.2022 seeking an interim prayer that they be allowed to continue to attend
school wearing headscarves. On 31.1.2022, the College Development Committee, Udupi, decided that
students must not wear hijab in classrooms whereas the Kundapura Pre-University College resolved it on
2.2.2022. There was a counter-reaction for the demands raised. It is in these circumstances that the
Government issued the impugned order.

76. It is contended that such directions were issued to the colleges/institutions and not to the individual
students as per the mandate of the Act. The Preamble of the Act is to provide for the planned development of
educational institutions, inculcating healthy educational practice, maintenance and improvement in the
standards of education, better organization, discipline and control over educational institutions so as to
cultivate a scientific and secular outlook through education. Section 133(2) of the Act empowers the State
Government to give directions to any educational institution as in its opinion are necessary or expedient for
carrying out the purposes of the Act. Therefore, the Government Order was issued to direct the
colleges/institutions to ensure that wherever uniform is mandated by the College Development Committee or
the Board of Management, it should be worn. But if such uniform is not mandated, the students should wear
clothes which are in the interest of unity, equality and public order. Therefore, the circular was issued to the
colleges to ensure compliance of norm of uniform in a non-discriminatory manner, irrespective of any
religious faith of the students.

77. The legality of Rule 11 of the Rules is not under challenge. In terms of the said Rule, the educational
institutions have a right to prescribe a uniform to the students attending the said school. The scope of judicial
review of the decisions of the educational institutions vis-a-vis its pupil is narrower than a purely
administrative action.

87. Thus, religion believes in conscience and ethical and moral precepts. The freedom of conscience is what
binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men. There is
a fine distinction between freedom of conscience and religion. The scope of protection (1997) 4 SCC 606
under Article 25 goes beyond religious beliefs. This provision affords to all persons freedom to beliefs which
may not necessarily be religious but which may spring from one’s conscience. Freedom of religion, on the
other hand, grants one the right to follow one’s faith, the established form of which gives a set of ethical
norms to its followers and defines the rituals, observances, ceremonies and modes of worship.

88. I need to examine the right to freedom of conscience and religion in light of the restrictions provided
under Article 25(1) of the Constitution. 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.

- Question (iv) - What is the ambit and scope of essential religious practices under Article 25 of the
Constitution?

99. There are various text books interpreting the verses of the Holy Quran. However, reference is made to the
interpretation given by Abdullah Yusuf Ali, translation in English published alongside the original Arabic text,
completed in Lahore on 4.4.1937. The interpretation by Yusuf Ali has been referred to by this Court in a
number of judgments 41. Mr. Aditya Sondhi and Mohd. Nizamuddin Pasha have also referred to the Holy
Quran by Abdullah Yusuf Ali in their written submissions. The English translation and meaning ascribed to such
translation available online “The Glorious Quran” read thus:

2985 Zinah means both natural beauty and artificial ornaments. I think both are implied here, but chiefly the
former. The woman is asked not to make a display of her figure or appear in undress except to the following
classes of people: (1) her husband, (2) her near relatives who would be living in the same house, and with
whom a certain amount of neglige is permissible; (3) her women, i.e., her maid-servants, who would be
constantly in attendance on her: some Commentators include all believing women; it is not good form in a
Muslim household for women to meet other women, except when they are properly dressed; (4) slaves, male
and female, as they would be in constant attendance (but with the abolition of slavery this no longer applies);
(5) old or infirm men-servants; and (6) infants or small children before they get a sense of sex. Cf. also 33:59.

2986 It is one of the tricks of showy or unchaste women to tinkle their ankle ornaments, to draw attention to
themselves.
2987 While all these details of the purity and good form of domestic life are being brought to our attention,
we are clearly reminded that the chief object we should hold in view is our spiritual welfare. All our brief life
on this earth is a probation, and we must take our individual, domestic, and social life all contribute to our
holiness, so that we can get the real success and bliss which is the aim of our spiritual endeavor.(R).” Surah 33
Verse 36

-- Other cases

104. The Constitution Bench in a judgment reported as Dr. M. Ismail Faruqui & Ors. v. Union of India & Ors. 45
held that offering of prayer or worship is a religious practice, but its offering at every location where such
prayers can be offered would not be an essential or integral part of such religious practice. It was held as
under:

“77. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the
Constitution. The right to practise, profess and propagate religion guaranteed under Article 25 of the
Constitution does not necessarily include the right to acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and every place of worship so that any hindrance to worship at
a particular place per se may infringe the religious freedom guaranteed under Articles 25 and 26 of the
Constitution. The protection under Articles 25 and 26 of the Constitution is to religious practice which forms
an essential and integral part of the religion. A practice may be a religious practice but not an essential and
integral part of practice of that religion.

78. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can
be offered would not be an essential or integral part of such religious practice unless the place has a particular
significance for that religion so as to form an essential or integral part thereof. Places of worship of any
religion having particular significance for that religion, to make it an essential or integral part of the religion,
stand on a different footing and have to be treated differently and more reverentially.

xx xx xx

82. … A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims
can be offered anywhere, even in open…” 45 (1994) 6 SCC 360

106. In Shayara Bano, Justice Nariman, speaking for himself and Justice Lalit, noted that “a practice does not
acquire the sanction of religion simply because it is permitted” and applied the essential religious practices
test. It was held as under:

“54. … it is clear that triple talaq is only a form of talaq which is permissible in law, but at the same time,
stated to be sinful by the very Hanafi school which tolerates it. According to Javed [Javed v. State of Haryana,
(2003) 8 SCC 369 : 2004 SCC (L&S) 561] , therefore, this would not form part of any essential religious practice.
Applying the test stated in Acharya Jagadishwarananda [Commr. of Police v. Acharya Jagadishwarananda
Avadhuta, (2004) 12 SCC 770], it is equally clear that the fundamental nature of 46 (2003) 8 SCC 369 the
Islamic religion, as seen through an Indian Sunni Muslim's eyes, will not change without this practice.
107. Justice Kurian Joseph, concurring with Justices Nariman and Lalit, held that on an examination of the Holy
Quran and Islamic legal scholarship, the practice of triple talaq could not be considered an essential religious
practice. He opined that “merely because a practice has continued for long, that by itself cannot make it valid
if it has been expressly declared to be impermissible”.

108. The judgments referred to above had the direct or indirect effect on modifying the understanding of the
verses of the Holy Quran, apart from the statutes mentioned by Mulla in his book referred to above. But I
would examine the question that if the believers of the faith hold an opinion that wearing of hijab is an
essential religious practice, the question is whether the students can seek to carry their religious beliefs and
symbols to a secular school.

109. A reading of the judgment in Sri Shirur Mutt shows an argument that secular activities which may be
associated with religion but do not really constitute an essential part of it are amenable to State regulation.
The power to legislate in respect of all secular activities was not accepted. The question examined was the
scope of clause (b) of Article 26 which speaks of management of its own “affairs in matters of religion.” The
language undoubtedly suggests that there could be other affairs of a religious denomination or a section
thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The
question is, where is the line to be drawn between what are matters of religion and what are not. It was held
that what constitutes an essential part of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself. This Court held as under:

“17. … A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who
profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is
nothing else but a doctrine or belief… 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.” xxx xxx xxx

19. … What constitutes the essential part of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food
should be given to the idol at particular hours of the day … all these would be regarded as parts of religion and
the mere fact that they involve expenditure of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities partaking of a commercial or economic
character; all of them are religious practices and should be regarded as matters of religion within the meaning
of Article 26(b).”

114. In Acharya Jagdishwaranand Avadhuta & Ors. v.

Commissioner of Police, Calcutta & Anr. 51, the question was whether performance of Tandava dance is a
religious rite or practice essential to the tenets of the religious faith of the followers of Ananda Marga. Such
argument was not accepted, (1983) 4 SCC 522 when this Court held that “even conceding that Tandava dance
has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a
necessary corollary that Tandava dance to be performed in the public is a matter of religious rite”. Later, in a
judgment reported as Acharya Jagadishwarananda Avadhuta-II, it was held that the protection guaranteed
under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts
done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion. What constitutes an integral or essential part
of religion has to be determined with reference to its doctrines, practices, tenets, historical background of the
given religion. This Court held as under:

“9. … What is meant by “an essential part or practices of a religion” is now the matter for elucidation. Essential
part of a religion means the core beliefs upon which a religion is founded. Essential practice means those
practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or
practices that the superstructure of a religion is built, without which a religion will be no religion. Test to
determine whether a part or practice is essential to a religion is to find out whether the nature of the religion
will be changed without that part or practice. If the taking away of that part or practice could result in a
fundamental change in the character of that religion or in its belief, then such part could be treated as an
essential or integral part. There cannot be additions or subtractions to such part because it is the very essence
of that religion and alterations will change its fundamental character. It is such permanent essential parts
which are protected by the Constitution.

Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an
event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based
and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic
essential) part or practices.”

115. In the Constitution Bench judgment reported as Young Lawyers Association & Ors. (Sabarimala Temple, In
Re) v. State of Kerala & Ors. 52, it was held as under:

“208. In clause (1), Article 25 protects the equal entitlement of all persons to a freedom of conscience and to
freely profess, protect and propagate religion. By conferring this right on all persons, the Constitution
emphasises the universal nature of the right. By all persons, the Constitution means exactly what it says :
every individual in society without distinction of any kind whatsoever is entitled to the right. By speaking of an
equal entitlement, the Constitution places every individual on an even platform. Having guaranteed equality
before the law and the equal protection of laws in Article 14, the draftspersons specifically continued the
theme of an equal entitlement as an intrinsic element of the freedom of conscience and of the right to
profess, practise and propagate religion. There are three defining features of clause (1) of Article 25 : first, the
entitlement of all persons without exception, second, the recognition of an equal entitlement; and third, the
recognition both of the freedom of conscience and the right freely to profess, practise and propagate religion.
The right under Article 25(1) is evidently an individual right for, it is in the individual that a conscience inheres.
Moreover, it is the individual who professes, practises and propagates religion. Freedom of religion in Article
25(1) is a right which the Constitution recognises as dwelling in each individual or natural person.

52 (2019) 11 SCC 1

209. Yet, the right to the freedom of religion is not absolute. For the Constitution has expressly made it subject
to public order, morality and health on one hand and to the other provisions of Part III, on the other. The
subjection of the individual right to the freedom of religion to the other provisions of the Part is a nuanced
departure from the position occupied by the other rights to freedom recognised in Articles 14, 15, 19 and 21.
While guaranteeing equality and the equal protection of laws in Article 14 and its emanation, in Article 15,
which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, the Constitution does
not condition these basic norms of equality to the other provisions of Part III. Similar is the case with the
freedoms guaranteed by Article 19(1) or the right to life under Article 21. The subjection of the individual right
to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without
substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of
religion was not intended to prevail over but was subject to the overriding constitutional postulates of
equality, liberty and personal freedoms recognised in the other provisions of Part III.

210. Clause (2) of Article 25 protects laws which existed at the adoption of the Constitution and the power of
the State to enact laws in future, dealing with two categories. The first of those categories consists of laws
regulating or restricting economic, financial, political or other secular activities which may be associated with
religious practices. Thus, in sub-clause (a) of Article 25(2), the Constitution has segregated matters of religious
practice from secular activities, including those of an economic, financial or political nature. The expression
“other secular activity” which follows upon the expression “economic, financial, political” indicates that
matters of a secular nature may be regulated or restricted by law. The fact that these secular activities are
associated with or, in other words, carried out in conjunction with religious practice, would not put them
beyond the pale of legislative regulation. The second category consists of laws providing for (i) social welfare
and reform; or (ii) throwing open of Hindu religious institutions of a public character to all classes and sections
of Hindus. The expression “social welfare and reform” is not confined to matters only of the Hindu
religion. .........”

116. In Bijoe Emmanuel v. State of Kerala 53, it was held that “Article 25 is an article of faith in the
Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of
even an insignificant minority to find its identity under the country's Constitution. This has to be borne in mind
in interpreting Article 25”. This Court upheld the right of the students belonging to Jehovah’s Witnesses not to
sing National Anthem in the school prayer though the students stood at the time of singing of the National
Anthem. In the said case, the circular of the State Government dated 18.2.1970 was in question mandating
that all schools in the State shall have morning assembly and that the whole school shall sing National Anthem
in the assembly. The circular was not restricted to secular schools only but to all schools. The said judgment is
of no help to the arguments raised as it does not deal with secular schools only.

117. Thus, to sum up, the essential religious practice doctrine was developed when the State interfered with
certain practices qua religious places or religious festivities or performance of religious rituals in public or
where such practices curtailed fundamental rights such as:

(1986) 3 SCC 615

(i) In Sri Shirur Mutt, the statute interfered with the management of the Mutt.

(ii) In Ratilal Panachand Gandhi, a notification issued under the Bombay Public Trusts Act was under
challenged which covered the temples and Mutt entitling the Government to control them through the Charity
Commissioner.
(iii) In Durgah Committee, the challenge was to the constitutional validity of the Dargah Khwaja Saheb Act,
1955 on the ground that it interferes with the right of management of the Durgah.

(iv) In Tilkayat Shri Govindlalji Maharaj, the validity of Nathdwara Temple Act, 1959 was challenged on the
ground that all the properties of the Nathdwara Temple are the private properties of the appellant and that
the State legislature was not competent to enact the Act. It was the argument that even if Nathdwara Temple
was held to be a public temple, the appellant as a Mahant or a Shebiat had a beneficial interest in the office of
the high priest as well as the properties of the temple as the rights of the appellant under Articles 14, 19(1)(f)
and 31(2) of the Constitution of India have been contravened.

(v) In Dawoodi Bohra, the religious faith and tenets of Dawoodi Bohra community conferring power of
excommunication from the community on its religious head as part of the management of the religious affairs
under Article 26(b) of the Constitution was upheld.

(vi) The Shayara Bano case relating to triple talaq was in respect of gender equality granted under Articles 14
and 15 of the Constitution of India.

118. The essential religious practice in the abovementioned cases related to (i) right of management of places
of worship, (ii) right of individual qua places of worship and (iii) curtailment of fundamental rights of
individuals through religious practices. The claim of the appellants is not to perform a religious activity in a
religious institution but to wear headscarf in public place as a matter of social conduct expected from the
believers of the faith. But in the present, the students want to subjugate their freedom of choice of dress to be
regulated by religion than by the State while they are in fact students of a state school. The equality before
law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be
breached by the State on the basis of religious faith.

119. The Constitution has negatively worded Article 25(2). Article 25(2)(a) gives primacy to laws made by
competent legislature for regulation of secular aspects and Article 25(2)(b) gives primacy to “social welfare”
and “reform”. In other words, if the State seeks to regulate the economic, political, financial or other secular
aspects connected with religion, the State law is to have primacy over the proposed right. Similarly, if a
particular practice/belief/part of any religion is in existence and is found to be subjected to either “social
welfare” and “reform”, such right will have to give way to “social welfare” and “reform”.

120. It is reiterated that Article 25(2) being negatively couched is clearly an enabling provision which provides
the power to the State in the matters mentioned therein. The said provision does not curtail or restrict the
otherwise positive right under Article 25(1) in the absence of any intervention by the State in the nature of
legislative or executive power.

121. Justice H.R. Khanna had quoted the statement of K. Santhanam in Kesavananda Bharati in respect of
social revolution to get India out of the medievalism based on factors like birth, religion, custom, and
community and reconstruct her social structure on modern foundations of law, individual merit, and secular
education. I find that religion is not to be understood in a narrow sectarian sense but by encompassing our
ethos that all should be treated alike. Secular State means rising above all differences of religions, and
attempting to secure the good of all its citizens irrespective of their religious beliefs and practices. The faith or
belief of a person is immaterial from the point of view of the State. For the State, all are equal and all are
entitled to be treated equally. The Constitutional promises of social justice, liberty of belief, faith or worship
and equality of status and of opportunity cannot be attained unless the State eschews the religion, faith or
belief of a person from its consideration altogether while dealing with him. Secularism is thus more than a
passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. Therefore, the
object of the State is to bridge the gap between different sections of the society and to harmonize the
relationship between the citizens to ensure growth of community in all spheres i.e., social, economic and
political.

122. The appellants have also made a comparison with the rights of the followers of the Sikh faith by arguing
that since Kirpan is allowed in terms of Explanation I to Article 25, therefore, the students who want to wear
headscarf should be equally protected as in the case of the followers of the Sikh students. The Full Bench of
the Punjab & Haryana High Court in Gurleen Kaur & Ors. v. State of Punjab & Ors. 54 held that the essential
religious practice of the followers of Sikh faith includes retaining hair unshorn, which is one of the most
important and fundamental tenets of the Sikh religion. The Full Bench of the High Court held as under:

54 2009 SCC OnLine P& H 6132 “128............A perusal of explanation I under Article 25 of the Constitution of
India reveals, that wearing and carrying a “kirpan” by Sikhs is deemed to be included in the profession of the
Sikh religion. During the course of examining historical facts, legislation on the ‘Sikh religion’, the “Sikh
rehatmaryada”. the “Sikh ardas” and the views of authors and scholars of the Sikh religion, we arrived at the
conclusion that wearing and carrying of “kirpans” though an important and significant aspect of the Sikh
religion, is nowhere close to the importance and significance of maintaining hair unshorn. If the Constitution
of India itself recognizes wearing and carrying of “kirpans” as a part of the profession of the Sikh religion, we
have no hesitation, whatsoever, to conclude that wearing hair unshorn must essentially be accepted as a
fundamental requirement in the profession of the Sikh religion. For the present controversy, we hereby,
accordingly, hold that retaining hair unshorn is one of the most important and fundamental tenets of the Sikh
religion. In fact, it is undoubtedly a part of the religious consciousness of the Sikh faith.”

123. It appears that no appeal has been filed against the judgment of the Full Bench. Thus, the said judgment
is final as on today. The issue in the present appeals is not the essential religious practices of the people
following Sikh faith. It would not be proper to discuss the essential religious practices of the followers of the
said faith without hearing them. The practices of each of the faith have to be examined on the basis of the
tenets of that religion alone. The essential religious practices of the followers of Sikh faith cannot be made
basis of wearing of hijab/headscarf by the believers of Islamic faith.

124. Mr. Mohd. Nizamuddin Pasha relied upon a Constitution Bench judgment of this Court reported as M.
Siddiq (Dead) through LRs. (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors. 55 wherein this
Court held that Courts should not enter into an area of theology and attempt to interpret religious scriptures.
This Court held as under:

“90. During the course of the submissions, it has emerged that the extreme and even absolute view of Islam
sought to be portrayed by Mr P.N. Mishra does not emerge as the only available interpretation of Islamic law
on a matter of theology. Hence, in the given set of facts and circumstances, it is inappropriate for this Court to
enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is
whether those who believe and worship have faith in the religious efficacy of the place where they pray. The
belief and faith of the worshipper in offering namaz at a place which is for the worshipper a mosque cannot be
challenged. It would be preposterous for this Court to question it on the ground that a true Muslim would not
offer prayer in a place which does not meet an extreme interpretation of doctrine selectively advanced by Mr
Mishra. This Court, as a secular institution, set up under a constitutional regime must steer clear from
choosing one among many possible interpretations of theological doctrine and must defer to the safer course
of accepting the faith and belief of the worshipper.

91. Above all, the practise of religion, Islam being no exception, varies according to the culture and social
context. That indeed is the strength of our plural society.

Cultural assimilation is a significant factor which shapes the manner in which religion is practised. In the plural
diversity of religious beliefs as they are practised in India, cultural assimilation cannot be construed as a
feature destructive of religious doctrine. On the contrary, this process strengthens and reinforces the true
character of a country which has been able to preserve its unity by accommodating, tolerating and respecting
a diversity of religious faiths and ideas. There can be no hesitation in rejecting the submission made by Mr
Mishra. Our Court is founded on and owes its existence to a constitutional 55 (2020) 1 SCC 1 order. We must
firmly reject any attempt to lead the Court to interpret religious doctrine in an absolute and extreme form and
question the faith of worshippers. Nothing would be as destructive of the values underlying Article 25 of the
Constitution.”

125. There is no dispute about the proposition canvassed. The practice of wearing of hijab may be a ‘religious
practice’ or an ‘essential religious practice’ or it may be social conduct for the women of Islamic faith. The
interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual.
The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the
students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak,
which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to
direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from
the State funds. Thus, the practice of wearing hijab could be restricted by the State in terms of the
Government Order.

- Question (vii)- Whether, if the wearing of hijab is considered as an essential religious practice, the student
can seek right to wear headscarf to a secular school as a matter of right?

166. The argument is that hijab is an additional cloth worn on the head, and that it does not cause any harm to
any other person. The argument is based upon Conscience & Religion (Article 25), Culture (Articles 29 and 51-
A(f)), Identity (Articles 19 and 21 - Autonomy, Dignity, Choice) and Secularism (Articles 19 and 21 - Autonomy,
Dignity, Choice), therefore, the students have been wrongly denied admission to an educational institution on
the basis of religion. The contention of the students is that by denying the right to wear headscarf, they have
also been denied to attend the classes which stand foul with the mandate of clause (2) of Article 29.

167. I do not find any merit in the said argument. The schools run by the State are open for admission
irrespective of any religion, race, caste, language or any of them. Even the Act mandates that the students
would be admitted without any restriction on such grounds. However, the students are required to follow the
discipline of the school in the matter of uniform. They have no right to be in the school in violation of the
mandate of the uniform prescribed under the Statute and the Rules.
168. In M. Ajmal Khan v. The Election Commission of India, rep.

by its Chief Election Commissioner, New Delhi-I & Ors. 73, the challenge was to the Elector Roll with
photographs particularly of Muslim Gosha Women in the eligible voters’ list. The argument was that wearing
of purdah by Muslim women is one of the principles laid down in Holy Quran and it has to be strictly followed
by Muslim women. Therefore, any interference with such religious practice would amount to interfering with
the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India.
The Madras High Court dismissed such writ petition holding that such direction of the Election Commission is
not violative of Article 25 of the Constitution. It was held that “the decision of the Election Commission of
putting the photographs in the electoral roll was taken with a view to improving the fidelity of the electoral
rolls and to check impersonation and eradicate bogus voting. Hence, the argument of the learned counsel that
the decision violates the right to privacy is required to be rejected". The said judgment though is in the context
of elections but the ratio thereof is applicable to the present matters, the education to a school by 73 2006
SCC OnLine Mad 794 : (2006) 5 CTC 121 the State is constitutional mandate to be carried out in a non-

discriminatory manner irrespective of caste, sex and religion.

169. The State has not denied admission to the students from attending classes. If they choose not to attend
classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said
to be in violation of Article 29 by the State. It is not a denial of rights by the State but instead a voluntary act of
the students. It would thus not amount to denial of right to education if a student, by choice, does not attend
the school. A student, thus, cannot claim the right to wear a headscarf to a secular school as a matter of right.

VI.Shayara Bano & Others v. Union of India & Others, AIR 2017 SC 4609

23. It has been argued somewhat faintly that Triple Talaq would be an essential part of the Islamic faith and
would, therefore, be protected by Article 25 of the Constitution of India. Article 25 reads as follows:

24. “Religion” has been given the widest possible meaning by this Court in Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 at 1023-1024. In
this country, therefore, atheism would also form part of “religion”. But one important caveat has been entered
by this Court, namely, that only what is an essential religious practice is protected under Article 25. A few
decisions have laid down what constitutes an essential religious practice. Thus, in Javed v. State of Haryana,
2003 (8) SCC 369, this Court stated as under:

“60. Looked at from any angle, the challenge to the constitutional validity of Section 175(1)(q) and Section
177(1) must fail. The right to contest an election for any office in Panchayat is neither fundamental nor a
common law right. It is the creature of a statute and is obviously subject to qualifications and disqualifications
enacted by legislation. It may be permissible for Muslims to enter into four marriages with four women and for
anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he
likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have
children more than one. What is permitted or not prohibited by a religion does not become a religious practice
or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is
permitted. Assuming the practice of having more wives than one or procreating more children than one is a
practice followed by any community or group of people, the same can be regulated or prohibited by legislation
in the interest of public order, morality and health or by any law providing for social welfare and reform which
the impugned legislation clearly does.” (at page 394) And in Commissioner of Police v. Acharya
Jagdishwarananda Avadhuta, 2004 (12) SCC 770, it was stated as under:

“9. The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine
or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes
an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets,
historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr.,
H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005], Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853 : 1962 Supp (2) SCR 496] and
Seshammal v. State of T.N. [(1972) 2 SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be
looked into so as to determine whether a part or practice is essential or not.) What is meant by “an essential part
or practices of a religion” is now the matter for elucidation. Essential part of a religion means the core beliefs
upon which a religion is founded. Essential practice means those practices that are fundamental to follow a
religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is
built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a
religion is to find out whether the nature of the religion will be changed without that part or practice. If the
taking away of that part or practice could result in a fundamental change in the character of that religion or in its
belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions
to such part because it is the very essence of that religion and alterations will change its fundamental character.
It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential
part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or
practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon.
They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.” (at
pages 782-783)

25. Applying the aforesaid tests, it is clear that Triple Talaq is only a form of Talaq which is permissible in law,
but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra),
therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya
Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through
an Indian Sunni Muslim’s eyes, will not change without this practice. Indeed, Islam divides all human action
into five kinds, as has been stated by Hidayatullah, J. in his introduction to Mulla (supra). There it is stated:

“E. Degrees of obedience: Islam divides all actions into five kinds which figure differently in the sight of God
and in respect of which His Commands are different. This plays an important part in the lives of Muslims.

(i) First degree: Fard. Whatever is commanded in the Koran, Hadis or ijmaa must be obeyed.

Wajib. Perhaps a little less compulsory than Fard but only slightly less so.

(ii) Second degree: Masnun, Mandub and Mustahab: These are recommended actions.

(iii) Third degree: Jaiz or Mubah: These are permissible actions as to which religion is indifferent.
(iv) Fourth degree: Makruh: That which is reprobated as unworthy.

(v) Fifth degree: Haram: That which is forbidden.”

It will be remembered that under the third degree, Triple Talaq is a permissible action as to which religion is
indifferent. Within the fourth degree, it is reprobated as unworthy. We have already seen that though
permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates Triple Talaq as being sinful. It is
clear, therefore, that Triple Talaq forms no part of Article 25(1). This being the case, the submission on behalf
of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that
Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the
Constitution.