Our social contract is built on an edifice that grants pre-eminence to individual choice. The Constitution’s Preamble recognises this when it places an onus on the state to secure to all citizens, among other things, liberty, equality and fraternity. The last of those values is fortified by a further commitment. The state, the Preamble says, will guarantee “fraternity assuring the dignity of the individual and the unity and integrity of the Nation”.
The chief architect of the Constitution, B.R. Ambedkar, saw the standards contained in these words as forming a triumvirate of values. Liberty, equality, and fraternity, he said, were principles of life, “a union of trinity”. Divorce one from the other and the very purpose of democracy will be defeated. The Constituent Assembly believed that it was only a deep commitment to these principles that can help usher in a social revolution in the country. The structures of India’s democracy — the various minutiae of administration that the Constitution spells out — were each built on the idea that securing individual happiness required the state to foreground these standards.
Enforcing popular morality
In that picture, independent courts, the framers thought, would stand as a guardrail against any effort to undermine social democracy. But far from acting as “sentinels on the qui vive” — as a former Chief Justice of India once described the Supreme Court of India’s role — the judiciary has time and again enforced the popular morality of the day, treating values of individual freedom as dispensable trifles. Tuesday’s judgment by the Karnataka High Court, in Resham vs State of Karnataka, is the newest addition to this litany. It upholds a ban imposed on the use of hijabs by students in classrooms across the State (Karnataka), and, in doing so, strikes a blow against each of the principles contained in B.R. Ambedkar’s union of trinity.
Court’s use of precedent
The judgment is premised on three broad conclusions. First, the court holds that the wearing of a hijab is not essential to the practice of Islam, and, therefore, the petitioners’ right to freedom of religion is not impinged; second, it finds that there is no substantive right to free expression and privacy that can be claimed within the confines of a classroom; and, third, according to it, since the Government’s order does not by itself ban the use of a hijab and since it is otherwise neutral, there is no discrimination aimed at Muslim women students.
These conclusions suffer from one flaw or another. In rejecting the plea that the wearing of a hijab is a legitimate exercise of religious freedom, the court refers to a plethora of precedent that points to only “essential religious practices” enjoying constitutional protection. According to the court, the petitioners failed to produce any evidence to show that the use of a hijab was essential to Islam. Yet, despite this, it proceeds to perform a theological study — which one would think it is ill-equipped to do, especially without conducting a full-fledged trial — and concludes that Islam does not make the wearing of a hijab mandatory.
This is an extraordinary finding for a secular court to make. No doubt, similar leaps of judgment have been made by the judiciary in the past — for example, in 2004, the Supreme Court concluded that the performance of the Tandava dance was not indispensable to the Ananda Margis faith, even though the followers of that religion believed it to be so. But if the Karnataka High Court’s inference is partly based on flawed doctrine, it must take the blame for posing to itself the question of whether at all a hijab was essential to religion.
Free choice and state action
Unlike many of the cases in which the doctrine of essential practice is invoked, this was not a case where individual freedom was at odds with group rights. On the contrary, this was a case where exercise of free choice was curtailed by state action. The petitioners had contended that they wore the hijab as a matter of conscience. Article 25 of the Constitution guarantees to all persons not only an equal right to profess, practise and propagate religion but also a “freedom of conscience.” Counsel pointed to the Supreme Court’s judgment in Bijoe Emmanuel (1986), where the rights of Jehovah’s Witnesses who refused to partake in the singing of the national anthem was protected. There, the Court ruled that so long as students conscientiously believed that they must not participate in the recital, their rights could be abridged only in the interests of public order, morality or health.
In Resham, the Karnataka High Court draws a facile distinction from Bijoe Emmanuel. The judgment holds that there is no evidence in this case that the petitioners conscientiously believed in the necessity of the hijab — this is anomalous given that once a pleading is made on affidavit, the onus ought to have been on the state to establish that the petitioners were not, in fact, wearing the hijab out of a sense of conscience.
The court then proceeds to make an even more astonishing assertion: all cases where a right of conscience is pleaded, according to it, are ipso facto cases of religious freedom, and, therefore, ought to be subject to the test of essentiality. This conclusion ignores the fact that Bijoe Emmanuel was explicitly decided based on conscience and that conscience need have no direct relation to religious faith. It is possible, for example, that the hijab might not be essential to Islam, and yet that Muslim women choose to wear it as an exercise of their own individual beliefs.
On the classroom space
That the court was simply unprepared to grapple with this difference is even more evident in its rejection of claims based on free expression. The petitioners argued that in choosing to wear the hijab, they were merely exercising a form of identity relatable to their rights to freedom of speech and privacy. The court counters this by holding that classrooms are “qualified public spaces”, where individual rights cannot be asserted to “the detriment” of “general discipline and decorum”. In spaces such as these — and the court draws a remarkable analogy with prisons — substantive rights, the judgment holds, metamorphose into derivative rights. It is unclear what the ruling means by all this, except that these apparently derivative rights are incapable of being invoked in protected environments.
In all of this, the court ignores the classic test for determining when and how the right to free expression can be legitimately limited: that is, the test of proportionality. There is, according to the judgment, no need to dwell on legal doctrine, because “the petitions we are treating do not involve the right to freedom of speech & expression or right to privacy, to such an extent as to warrant the employment of these tests for evaluation of argued restrictions, in the form of school dress code”. In this manner, the court also brushes aside requests for “reasonable accommodation”.
Kendriya Vidyalayas, for example, as the petitioners claimed, allow for hijabs within the contours of the prescribed uniforms. But the judgment holds that to make such an accommodation would defeat the very purpose of uniforms. This finding fails to recognise that even within the existing dress code, many accommodations are, in fact, made. For instance, religious and cultural marks on the forehead and accessories on other parts of the body are not disallowed. If the purpose of the uniform is to allow for no differences, surely every exhibition of faith in the classroom must be stamped out. Therefore, we can only see the failure to provide for a reasonable accommodation for the hijab as deliberate discrimination wrought on Muslim women.
The judgment makes repeated references to constitutional secularism. But secularism, properly understood, demands precisely what the petitioners here were pleading for: the rights to agency, choice, and equal treatment, and, more than anything else, a guarantee of fraternity undergirded, as the Preamble says, with dignity to every individual.
Suhrith Parthasarathy is an advocate practising in the Madras High Court
- Our social contract is built on an edifice that grants pre-eminence to individual choice.
- Liberty, equality, and fraternity, B.R. Ambedkar said, are the principles of life, “a union of trinity”. Divorce one from the other and the very purpose of democracy will be defeated.
- If the purpose of the uniform is to allow for no differences, surely every exhibition of faith in the classroom must be stamped out.