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IN THE HIGH COURT OF BOMBAY
R.M. Lodha D.B. Bhosale, JJ.
Fathema Hussain Sayed .... Petitioner.
Versus
Bharat Education Society others.... Respondents.
Writ Petition No. 1096 of 2002, decided on 2-8-2002.
Advocates appeared :
Nusrat Shah with Ms. Nisha Sayed Shabeeb Rizvi i/b., Ms. P.D. Contractor, for petitioner.
K.P. Ravi, S.J. Panicker Ms. Payal Mishra, for respondent Nos. 1 2.
Constitution of India, 1950 - Article 226 - Withdrawal of writ - Ground - Withdrawal without reason Court not allowed to file again - Any allowing again would be against public policy - Even if there is no question of res judicata or estoppel. - If a litigant exercises his right in approaching the Court and complains infraction of fundamental right, the process must be taken to logical conclusions. Such litigant if withdraws proceedings unconditionally and without liberty to file fresh proceedings he may not be allowed to approach the Court again and again because it is against the public policy even though there is no question of res judicata or estoppel.
Constitution of India, 1950 - Articles 25 and 226 - Restriction on Muslim girl students - By school - Maintenance of dress code - Not to wear scarf in head - Restriction alleged to be unreasonable - It is her religious rights to wear scarf on head - Held - Restriction imposed by school order can be reasonable if girl is studying in a school exclusively for girls but not otherwise - Right to profess a religion is subject to restrictions imposed by State in public order and for social welfare return etc. - By asking petitioner who is student in class VIth standard of respondent No. 2 school to maintain the dress code prescribed by the school, how can it be said that the petitioner s fundamental right of freedom of conscience and free profession, practice and propagation of religion is violated. Article 25 guarantees that every person in India shall have freedom of conscience and shall have the right to profess, practice and propagate religion, subject to restrictions imposed by the State on the grounds of (i) public order, morality and health; (ii) other provisions of the Constitution; (iii) regulation of non-religious activity associated with religious practice; (iv) social welfare and reform etc. There does not seem to be such established practice and profession of the Islam religion from covering their heads by the girls studying in all girls school.
A girl student not wearing the head-scarf or head covering studying in exclusive girls section cannot be said to in any manner acting inconsisted with the aforesaid Verse 31 or violating any injunction provided in Holy Quran. It is not an obligatory overt act enjoined by Muslim religion that a girl studying in all girl section must wear head covering. The essence of Muslim religion or Islam cannot be said to have been interfered with by directing petitioner not to wear head-scarf in the school.
Constitution of India, 1950 - Articles 25 and 226 - Civil Procedure Code, 1908, Section 11 - Police policy - Res judicata - Writ petition by Muslim girl student - Challengings school orders not to wear scarf on head - Withdrawn unconditionally - Subsequent petition - Contending that since matter relates to her fundamental right to religion hence withdrawn of earlier petition unconditionally cannot operate as res judicataHeld - Petitioner withdrawing a petition against a public policy cannot be permitted to approach - Court again and again even if there is no question of res judicata. - It is clear from the aforesaid order that neither liberty to approach the Court again was sought nor granted. It is against public policy to permit a litigant to approach the Court again and again once the matter has been withdrawn by him unconditionally. Mr. Nusrat Shah, learned counsel for the petitioner submitted that there is no estoppel against statute and if there is violation of fundamental right, the petitioner can file 100 writ petitions again and again and again so long as infraction of fundamental right continues. The sweeping statement of the learned counsel cannot be accepted. If a litigant exercises his right in approaching the Court and complains infraction of fundamental right, the process must be taken to logical conclusion. Such litigant, if withdraws the proceeding unconditionally and without liberty to file fresh proceeding, he may not be permitted to approach the Court again and again because it is against the public policy even though there is no question of res judicata or estoppel.
Even if we assume that petitioner may be permitted to file second writ petition though first writ petition was withdrawn without liberty, it is difficult to accept the submission of the learned counsel that by not permitting the petitioner to wear head-scarf the fundamental right of the petitioner under Article 25 is violated.
Constitution of India, 1950 - Articles 30 and 32 - Administration of Educational Institutions - Right of minority - Provisions of Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 - Education - Commerciali-sation of - No upper limit fixed by State - Vide power under 1987 Act - Reference of case laws. - The position
remains unchanged till how and hence the legal position is that State cannot impose any restriction on the right of minorities to administer educational institutions so long as such institutions are unaided by State except to the limited extent that regulations can be made for ensuring excellence in education.
2. The petitioner Ms. Fathema Hussain Sayed (minor) is a student of standard VI in Karthika English School (respondent No. 2). It is her case that she was asked by the Principal of the School to not to attend class from 28-11-2001 if she wore the head scarf. This direction given by the Principal to the petitioner on 28-11-2001 is under challenge in this writ petition. The petitioner says that she hails from Muslim family and follows the Islam religion and since the Holy Quran provides that a female child after 9 years of age should cover her head by scarf, she started wearing head-scarf from June, 2001. According to her, head-scarf does not violate the dress code or the discipline of respondent No. 2 school and therefore, the direction given by the Principal on 28-11-2001 is violative of petitioners fundamental right of freedom of conscience and professing, propagating and practicing Islam religion.
3. Before we advert to the merits of the matter, we observe that the petitioner for the self-same relief filed earlier Writ Petition No. 357 of 2002. The said writ petition was withdrawn by the petitioner and dismissed accordingly vide order dated 11th February, 2002. The order reads thus-
"The learned Counsel appearing for the petitioner seeks leave to withdraw the petition. Leave granted. Petition is dismissed as withdrawn."
4. It is clear from the aforesaid order that neither liberty to approach the Court again was sought nor granted. It is against public policy to permit a litigant to approach the Court again and again once the matter has been withdrawn by him unconditionally. Mr. Nusrat Shah, learned Counsel for the petitioner submitted that there is no estoppel against statute and if there is violation of fundamental right, the petitioner can file 100 writ petitions again and again and again so long as infraction of fundamental right continues. We are afraid, the sweeping statement of the learned Counsel cannot be accepted. If a litigant exercises his right in approaching the Court and complains infraction of fundamental right, the process must be taken to logical conclusion. Such litigant, if withdraws the proceeding unconditionally and without liberty to file fresh proceeding, he may not be permitted to approach the Court again and again because it is against the public policy even though there is no question of res judicata or estoppel.
5. Even if we assume that petitioner may be permitted to file second writ petition though first writ petition was withdrawn without liberty, we find it difficult to accept the submission of the learned Counsel that by not permitting the petitioner to wear head-scarf, the fundamental right of the petitioner under Article 25 is violated. Article 25 of Constitution of India reads thus---
"25. Freedom of conscience and free profession, practice and propagation of religion.---(1) Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law---
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.---The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.---In sub-clause (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be const
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