As Iran proceeds into its second month of protests against the religious persecution of non-hijabi women, India, which contemplates a ban on the headdress in certain public spheres, faces a peculiar problem. The Supreme Court of India recently delivered a split verdict on a batch of appeals against the Karnataka High Court’s decision in Resham vs State of Karnataka, wherein the decision of government pre-university colleges to ban the wearing of hijabs had been upheld by a single judge.
On several occasions, hijab-wearing college students have been denied entry to examinations on account of their non-compliance with the dress code. Earlier this year, the matter came to be heard by the Karnataka HC after female students were prohibited from wearing hijabs inside the institutions. The ban was subsequently upheld based on the reasoning that the wearing of the hijab was not an "essential religious practice” (ERP) to Islam and that it therefore will not fall within the purview of the protection accorded under Article 25 of the Indian Constitution. The court went on to observe that since the petitioner had not met the basic criteria laid down under the ERP, the court would not venture into the question of constitutional values.
Thereafter, on October 13, 2022, a division bench of the apex court comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia delivered a split verdict on a batch of appeals in Aishat Shifa vs The State of Karnataka and Ors, which had been filed against the decision of the Karnataka High court. The matter inadvertently could not attain finality since the bench was divided between two contrasting views – Justice Hemant Gupta’s decision upholding the ban and Justice Dhulia’s ruling in favour of the removal of the ban.
While Justice Gupta arrived at his decision by primarily relying on the ERP test to give effect to collective rights and equality, Justice Dhulia did so by invoking the Doctrine of Proportionality to keep administrative action in check, in his quest to uphold individual liberty and religious freedom. Although Justice Gupta sought to give public order and equality their due importance, he undertook a narrow interpretation of the Constitution which stifled several other ancillary rights. His reasoning was based on the perception that the practice of wearing hijabs was not essential to the faith of Islam. The inherent peril in giving the ERP test the utmost degree of importance was that judges would have to step into the shoes of a theologist in deciding such matters, aside from applying binding legal principles. This was evident in Justice Gupta’s elaborate interpretation of the Quran in ascertaining if the hijab was, in fact, essential to the Islamic faith in order to seek protection under Article 25 of the Constitution. He further interpreted the right to equality under Article 14, whereby he evaluated how 'the uniform' was to be given its due importance.
However, Justice Gupta’s approach in this regard raised concerns since it seemingly discounted how the state action failed to meet the proportionality test on all counts. The decision failed to acknowledge that the Supreme court in a plethora of decisions, had enunciated that the right to equality under Articles 14 and 15 was not to be construed strictly, with regard to rights concerning minorities. Therefore, what the court failed to recognise in Aishat’s case was that, while maintaining uniformity through uniforms might have been essential to cultivate a sense of discipline, it should not have been the reason that a girl child was denied access to education.
Constitutional interpretation over the years has demonstrated that Article 14 and 15 permit a reasonable classification in making such concessions, in order to bring different groups of the society to an equal footing. By this rationale, a Muslim girl would be able to access the right to education only if she could step out of her house with the hijab, as permitted by her faith. The judiciary, in acting as the custodian of individual rights, ought to be keenly aware of the fact that in depriving a female student of this piece of clothing, she is also being robbed of her right to dignity and privacy as provided for under the constitutional scheme. Therefore, in such cases, the rights of the collective majority cannot be weighed against the rights afforded to select minorities.
In contrast, Justice Dhulia’s approach rejected the relevance of the ERP test to the matter at hand. In doing so, he observed that, “The main thrust of my judgement is that the entire concept of essential religious practice was not essential to the dispute. The High court took the wrong path.” The basis of this hypothesis being that, for a person to seek protection under Article 25(1), one does not necessarily have to prove that the practice of hijab-wearing grossly falls within the scope of ERP; it could simply be a religious practice that one follows without impinging on the rights of others. In deducing this seemingly radical hypothesis, he remarked that the ERP test had in fact not been essential to the instant case at all, emphasising that it was nothing but a matter of choice, “nothing more, nothing less.” Simply put, his understanding was that a practice, although not essential to the faith, can be afforded protection under Article 25, as long as it was genuine and did not fetter the rights of others.
In his engagement with the question of uniform and its intersection with privacy, Justice Dhulia also placed reliance on the ratio in KS Puttaswamy and Anr vs Union of India and Ors, using the analogy to acknowledge that a female Muslim student carried her right to dignity and privacy into the classroom as well. Interestingly, what is striking in his decision is that, even in undertaking such a pragmatic approach to constitutional interpretation, nowhere did Justice Dhulia attempt to emancipate Muslim women by ‘freeing them from the hijab’, but instead he obliquely recognised intersectional feminism as a valid legal principle underpinning the individual liberty of women and that this ought to be given legitimacy in matters concerning the rights of minorities. The entire crux of his reasoning was thus palpable in one primary observation. “The question this court would therefore put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!” In other words, by giving the ‘access to education’ primacy over the uniform, Justice Dhulia seemingly gave effect to equality under Article 15 of the Constitution.
Indeed, there has always been judicial reluctance in intervening with matters concerning challenges to personal laws, especially those with respect to minorities as seen in The State of Bombay vs Narasu Appa Mali. However, in Shayara Bano vs Union of India, the Supreme court took a progressive approach in applying the ERP test in checking the constitutionality of the practice of triple talaq. In doing so, the court held that a practice that was merely permitted or not prohibited by religion could not be considered an essential or positive tenet sanctioned by that particular religion and that it therefore could not seek refuge under Article 25. Both in Shayara Bano and India Young Lawyers Association v. The State of Kerala aka the Sabarimala verdict, it was essential for the court to venture into the question of ERP in order to settle questions concerning religion and religious practices. However, as rightly observed by Justice Dhulia, the question to be determined in both cases was not a matter concerning freedom of expression under Article 19.
In this regard, the Constitutional scheme saw a shift in narrative when the concept of secularism was embodied in our polity by addition of the word ‘secular’ to the Constitution in 1976, by virtue of the Forty-Second Constitutional Amendment. This simply meant that the state inherently had no religion and that religious freedom would be granted in line with Articles 25 and Article 14 of the fundamental rights of the Constitution. It was based on this underlying principle, that individual and collective religious rights were given effect to and made justiciable.
Seldom does jurisprudence give effect to the notion of constitutional morality, in deciding matters concerning constitutional rights. The Supreme court’s jurisprudence in Navtej Singh Johar vs Union of India was noteworthy in this regard, because not only did it uphold the concept of constitutional morality as introduced by Keshavananda Bharati vs State of Kerala, but it held that “constitutional morality embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism and is not confined to be a mere reading of the literal text of the constitution.” Justice Indu Malhotra rightly articulated that ‘constitutional morality in a pluralistic society with a secular polity would require that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion’, while delivering the dissenting decision in Sabarimala case.
In that rigour, she reiterated that it was irrelevant whether such a practice was rational or logical, stating that notions of rationality cannot be invoked in matters of religion by the courts. She observed that under our constitutional scheme, a balance was required to be struck between the principles of equality and non-discrimination and the cherished liberties of faith, belief and worship as guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity. Thus in the present context, the inference would be that equality in its literal sense cannot be applied in the context of a hijab-wearing-female-minor-Muslim student, given that she is granted constitutional refuge under Article 25(1), even if such a practice did not meet the requirements of the ERP test. In other words, the practice of hijab-wearing and its religious significance was irrelevant to the right emanating from Article 25 given that it was not defined anywhere in the statute.
The implication of Justice Gupta’s decision was that such an approach could have had a debilitating effect on several other fundamental rights guaranteed within our constitutional framework. By relying solely on one constitutional principle in deciding a matter that fetters so many ancillary rights, courts may be forced to tread into the precarious interpretation of theology in ascertaining if a certain practice is essential to a particular faith. While certain religious matters may remain justiciable, courts also ought to actively read the element of human dignity into Articles 14 and 21 of the Constitution and make sure these rights aren’t watered down in the quest to maintain public order.
In the grand scheme of things, a decision to ban a piece of clothing, which signifies one's religious identity will set a dangerous precedent for constitutional jurisprudence, by opening a Pandora’s box to decide on similar issues concerning the freedom of expression and liberty. Not only will it disrupt the secular fabric of society, but it will also obliterate the constitutional jurisprudence on human dignity which has been judiciously constructed post-independence. Complex legal doctrines and religious ideologies aside, the elementary discourse not just in Aishat Shifa but also in Shayara Bano and Sabarimala simply boils down to one basic aspect – ‘agency’ of a woman. To wear or not wear a hijab must only be a matter of choice – which neither the judiciary nor the legislature must be forced to decide on. In that, Justice Dhulia’s verdict has certainly given effect to a tectonic shift in the narrative, which must be capitalised in the hearing before a larger constitutional bench as it will give the petitioners’ contentions a firm leg to stand on.
Sithara Sarangan is a practising advocate at Madras High Court. Views expressed here are the author’s own.