The Hijab Case: Round-Up

This is a round-up of blog posts that have discussed various issues in the ongoing hijab case before the Karnataka High Court, on which judgment has now been reserved.

1. The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing (see here).
2. Guest Post: The Hijab Case through the Lens of Article 19(1)(a) [by Hari Kartik Ramesh] (see here).
3. Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya [by M. Jannani] (see here).
4. Guest Post: The Hijab Case Through the Lens of Proportionality [by Shreyas Alevoor] (see here).
5. Guest Post: The Hijab Case through the Lens of Intersectionality [by M. Jannani] (see here).

Direct and Indirect Discrimination: Conceptual Slippages in the Orchestra Bars Case

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]

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The Office of the Mumbai Commissioner of Police appears to be a somewhat joyless one. Every two years or so, rules framed by the Commissioner of Police trying to restrict dance and musical performances in bars end up before the Supreme Court, and invariably they are struck down. On February 18, the Supreme Court decided Round Four of the interminable battle between the Police Commissioner and the bars and musical performers of Mumbai. In Hotel Priya v State of Maharashtra, the Police Commissioner’s Order that an Orchestra Bar could only have four male and four female artists upon the stage at any point, was challenged and struck down by the Supreme Court.

While the Court’s conclusion is largely unremarkable, the judgment moves between concepts of direct and indirect discrimination in a way that merits closer scrutiny. First of all, in paragraph 5 of the judgment, while recording the submissions of the Petitioners, the Court notes that the challenge was not only to the separate gender-caps of four male and four female performers, but also to “the impugned conditions restricting the establishments to engage only eight artists.” In paragraph 6, however, while still recording the submissions of the Petitioners, the Court notes that “while not disputing that the overall limit of eight performers on stage at any given point of time is reasonable, the insistence that limits the number of performers of either gender is unreasonable and manifestly arbitrary.” These are two diametrically opposite submissions, however, and which one of them is the actual argument affects the entire framework of analysis upon which the case is based. In the former case, the gender cap takes on an absolute form, and the argument – inter alia – can be framed in the language of gender discrimination (i.e, restricting how many women can perform at any given time). In the latter case, however, if it is accepted that the overall cap of eight is reasonable, then the challenge appears to be more an arbitrariness challenge than a gender discrimination challenge: that there is no rational basis for a strict gender division, given that orchestras could have men and women (not to mention members of sexual minorities) in different proportions.

This lack of clarity at the beginning affects the judgment as a whole, because the Court opts to frame its analysis within a gender discrimination framework. Starting at paragraph 42, it notes that “the impugned gender-cap (i.e. four females and four males, in any performance) appears to be the product of a stereotypical view that women who perform in bars and establishments, like the appellants, belong to a certain class of society.” But it is unclear why, if the gender-cap is indeed based on an intersection of gender and class stereotypes, that it symmetrically restricts the orchestra to four men and four women. For that to be the case, the unarticulated major premise of the rule would have to be that an orchestra of eight members with a majority of women was in some way problematic or exploitative. But that is not an argument that appears to have been made by the State, or indeed, analysed by the Court. In the absence of that, it is unclear how this symmetrical gender-cap is treated as gender and class discriminatory because it entrenches stereotypes about gender and class.

From paragraphs 43 to 46, the Court then cites various judgments that discuss the stereotyping analysis. Once again, for the reasons supplied above, the relevance of these judgments is unclear. In paragraph 47, the Court then notes that “the restriction is upon the gender, in the sense that it seeks to cap the number of performers on the basis of gender. This restriction directly transgresses Article 15 (1).” But the second sentence is a non-sequitur. Yes, the restriction is upon the basis of gender, but it is unclear how it discriminates directly on grounds of gender, since what it prescribes is an equal number of men and women, in the context of an overall cap of eight performers (the overall cap being gender-agnostic). Thus, we are once again taken back to how the initial confusion about what, really, was under challenge, affects the discrimination analysis.

In any event, it appears clear that whatever else it does, the restriction does not directly transgress Article 15(1). Does this mean that it is not gender-discriminatory at all? I do not think so, and indeed, we can see glimpses of the actual argument through the judgment: that a substantially greater number of women – as opposed to men – perform as part of these orchestras, and therefore a gender-cap that is symmetrical on its face will have an asymmetrical impact upon women. This, in my view, would then constitute a case of indirect discrimination, where a seemingly neutral rule has a disparate, gender-based impact. Furthermore, it would also be a case of intersectional discrimination, given the class angle involved. This analysis, however, would have required the Court to demonstrate the disparate impact, based on studies pertaining to the gendered distribution of performers within the industry. The Court does not do this.

For this reason, while the judgment of the Court is undoubtedly correct, in my view, it suffers from conceptual confusion about the distinction between direct and indirect discrimination – and indeed, misses a chance to further evolve the still-nascent Indian jurisprudence on indirect (and intersectional) discrimination.  

Guest Post: The Hijab Case through the Lens of Intersectionality

[This is a guest post by M. Jannani.]

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In my previous post, I had analysed judgments delivered by the Kenyan courts in Mohamed Fugicha v. Methodist Church and how they had applied of the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the uniform, issued by a school in Kenya. I had also discussed how the Kenyan courts had applied the indirect discrimination test laid down in the Sarika case. In this blog, I take a step further and argue why the Hijab case would benefit from the import and application of the Sarika test by Indian courts. The first part of my essay will discuss why the direction issued by the pre-university education department of the Karnataka government has the effect of intersectional discrimination upon female Muslim students. The second part will discuss why the indirect discrimination tests laid down in Fraser v. Canada or Griggs v. Duke Power Company should not be applied by the court to the Hijab case. In the third part, I examine how the principle of reasonable accommodation interacts with the doctrine of indirect discrimination and its relevance to the present case.

Intersectional discrimination

In Navtej Johar v. Union of India , Justice Chandrachud’s concurring opinion recognized that claims of discrimination can be made on more than a single ground under article 15 of the Constitution of India. This view was affirmed by the Supreme Court in Ravinder Kumar Dhariwal v. Union of India.  In Patan Jamal Vali v. The State of Andhra Pradesh the Supreme Court discussed in length the difference between single axis discrimination and intersectional discrimination. It also specifically held that:

“When the identity of a woman intersects with, inter alia, her caste, class, religion, disability and sexual orientation, she may face violence and discrimination due to two or more grounds.” (Emphasis mine)

The restriction on female Muslim students from wearing the Hijab is one that has the effect of discriminating against them on account of both their religious and gender identities. This is best captured by the following excerpt from an article by Maleiha Malik titled Complex Equality: Muslim Women and the ‘Headscarf’ which explains how the restriction imposed by different governments on headscarves worn by Muslim women is not only an attack on their religion but also a form of gender-based discrimination:

“One reason that the gender aspects disappears within the analysis is because it uses single axis definitions of equality which are designed to focus exclusively on one ground of inequality, e.g. sex or religion or race. However, the discrimination that Muslim women suffer through headscarf bans operates at the margins of race, religion and gender. It is a form of intersectional discrimination which leads to a quantitative increase in the amount of discrimination; as well as a qualitative change in how multiple discrimination undermines Muslim women’s agency. The structure of single-axis equality, with its focus on symmetry and comparison, is inappropriate where there is more than one ground for discrimination: e.g. sex and religion and race. Methods that treat equality around a single axis as an either/or choice between criteria such as gender and religion are inadequate for addressing acute and subtle form of intersectional discrimination. The need for a single hypothetical comparator within single axis equality forces a stark choice. If gender is chosen then majoritarian definitions of woman may marginalise the needs of Muslim women. If religion is preferred then this often reflects the needs of the Muslim man as the representative of religion rather than Muslim women. Complex equality, unlike single axis equality, is an alternative formulation of the problem which changes the frame for analysing patriarchy. As well as examining gender oppression by Muslim men within minority Muslim communities, complex equality also takes into account the power of the state and majority women vis a vis Muslim women.” (Emphasis mine)

Therefore, the Karnataka notification which in effect restricts female Muslim students from wearing Hijabs along with their uniforms has a discriminatory effect that intersects at least with two personal identities- gender and religion. Hence, the restriction is one that has an effect of intersectional discrimination.

The courts should avoid the application of the tests laid down in Fraser or Griggs to the Hijab case

I will start by acknowledging that the doctrine of indirect discrimination is in its nascent stages of legal development in India. But that shouldn’t stop the courts from applying the doctrine of indirect discrimination to the Hijab case which is a textbook case of indirect discrimination – one where the restrictions may seem facially neutral, but has a disparate impact on female Muslim students who wear the Hijab. The Indian Courts on the question of indirect discrimination have relied on the Fraser v. Canada and Griggs v. Duke Power Company, as had been mentioned in a previous essay on this blog. I argue, why the courts should not apply the two tests in this specific case.

As I had mentioned in the previous section, the current case is one that involves a group of persons (female Muslim students) who face discrimination due to their intersecting identities. In Griggs v. Duke Power, the question before the Supreme Court of the United States of America was whether the employment requirements had a disparate impact on African-Americans because of their race. In the case of Fraser v. Canada, the Supreme Court of Canada evolved the indirect discrimination test in a case where a pension plan had an effect of adverse impact discrimination on women. Thereby, it can be observed that the courts in these two cases have evolved the test in the specific context where the individuals have been subjected to indirect discrimination on a singular aspect of their identity i.e., race or gender.

These tests have been applied by the Indian Courts primarily in cases of indirect discrimination where a group of persons or an individual has been subjected to discrimination on the basis of one factor of their identity. For example, in Nitisha v. Union of India (where the Supreme Court applied the Fraser test), the court looked into whether the requirement laid down for women to attain permanent commission in the Indian Army was one that had the effect of gender-based discrimination. Similarly, in Madhu v. Northern Railways (where the Supreme Court applied the disparate impact principles laid down in Griggs v. Duke Power) the Delhi HC looked into indirect discrimination where the discriminating factor was only gender.

On the other hand, In Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court remarked on the dangers of courts adopting a legal analysis which looks at discrimination only through a single axis in cases where an intersectional approach is required. The relevant parts of the judgment are as follows:

“A single axis approach to violence and discrimination renders invisible such minority experiences within a broader group since it formulates identity as “totemic” and “homogenous”. Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or violence can argue that “but for” that identity, they would have been treated in the same way as a comparator. Therefore, their treatment is irrational and unjustified.

By exhibiting attentiveness to the ‘matrix of domination’ created by the intersecting patterns at play, the Court can more effectively conduct an intersectionality analysis. A legal analysis focused on delineating specific dimensions of oppression running along a single axis whether it be caste, disability or gender fails to take into account the overarching matrix of domination that operates to marginalise an individual.” (Emphasis supplied)

Thereby, tests laid down in Fraser or Griggs which have been formulated in a context where the affected persons were subjected to discrimination on a single factor of their identity should not be applied to the Hijab Case wherein the persons are being exposed to indirect discrimination due to their intersectional identities. If either of the two tests are applied to the latter case it renders invisible the discrimination faced by the female Muslim students by putting them into a homogenous religious group of ‘Muslims’ and does not acknowledge the specific dimension of oppression that interacts with their religious and gender identity. 

The present case demands for the import of the test laid down in the Sarika judgment

In the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School , the England and Wales High Court examined whether a girl student from a minority religious community in the region i.e., the Sikh community, was subjected to indirect discrimination. As one can notice, the judgment begins with a recognition of how ‘school girls’ had lost cases before the court where they exerted their right to wear articles of faith along with their school uniform. The judgment also recognises her gender and religious identification, and addresses her as a ‘Sikh girl’ or ‘Sikh school girl’, resulting in acknowledging her intersectional identity. Similarly, the Kenyan Court of Appeals decision in Mohamed Fugicha v. Methodist Church looked into the question of indirect discrimination in a case where hijabs were restricted due to which a certain groups of students faced indirect discrimination. The group in this case were female Muslim students who were affected by the discrimination due to their intersectional identities (religion and gender). The Kenyan Court of Appeals applied the test laid down in the Sarika judgment. Though the courts may not have explicitly addressed the aspect of intersectional discrimination of persons in these cases, they have applied the specific test to recognise the indirect discrimination, where they have identified the groups with their intersectional identities as either ‘Sikh school girl’ or ‘female Muslim students’ as the case maybe. Thereby, Sarika test is more appropriate to cases where the doctrine of indirect discrimination is invoked with respect to persons who may be disparately impacted due to their intersecting identities since they formulated and applied in such contexts.

The Sarika judgment and the Essential Religious Practices Test

The judgment in Sarika referred to the following factors laid down in the case of R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 to access whether a religious belief in the case was one that was genuine:

(a) …when the genuineness of a claimant’s professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…”;

(b) …the court is concerned to ensure an assertion of religious belief is made in good faith ‘neither fictitious, nor capricious and that it is not an artifice’…”;

(c) …emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its “validity” by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of other professing the same religion…”; and that 

(d) …the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.

It can thereby be seen that the third factor for accessing whether a religious belief is genuine expressly states that the court should not embark on an inquiry and judge such a practice on the metric of some objective standard such as the source of the material upon which the person based their religious belief on. Similarly, Kenyan Court of Appeals while applying the Sarika test in Mohamed Fugicha held:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

Therefore, if the Sarika test is applied to the Hijab case, to prove the whether the belief is genuine in the case a claim of indirect discrimination is brought, the court will only need to look into whether the belief is genuinely held. It need not apply the Essential Religious Practices test.

Reasonable Accommodation and Indirect Discrimination

In NALSA v. Union of India, the Supreme Court recognized that the principle of non-discrimination goes beyond the prevention of discrimination and extends to remedying systemic discrimination that persons may suffer due to their identities. One such remedy is the notion of ‘reasonable accommodation’.  The following is the relevant portion of the judgment:

In international human rights law, equality is found upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.

In Madhu v. Northern Railways, while addressing the aspect of indirect discrimination the Delhi High Court referred to the following excerpt from the judgment in Jeeja Ghosh v. Union of India:

“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society.”

It is important to interpret this reference by understanding what the judgment in Jeeja Ghosh addressed. The Supreme Court in Jeeja Ghosh recognised the principle of reasonable accommodation for disabled persons (who were systematically discriminated in this case) in a bid to remedy discrimination that they had faced. It also mentioned that such reasonable accommodation has to be made in the interest of substantive equality.  Therefore, when the Delhi High Court in Madhu referred to this specific excerpt, it in effect recognised that remedying discrimination also includes within it allowing reasonable accommodation to those groups that face systemic discrimination beyond the realm of disability.

Similarly, in Nitisha v. Union of India, the court mentioned, while referring to the judgments in Jeeja Ghosh v. Union of India and Vikas Kumar v. UPSC, that the Supreme Court has recognised reasonable accommodation as a ‘substantive equality facilitator’ while discussing indirect discrimination. Thereby it can be noticed that the courts have acknowledged the need for the principle of reasonable accommodation to be applied to cases involving indirect discrimination for the realisation of substantive equality.

The Supreme Court in Ravinder Kumar Dhariwal v. Union of India held that the initiating disciplinary proceedings against a mentally disabled person (in the said factual background) amounted to indirect discrimination. The judgment referred to the case of the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, and recognised that in case prima facie discrimination exists, the burden shifts on the person or entity who discriminates to justify the discrimination and to prove that it did indeed provide for reasonable accommodation. The Supreme Court used this three stage test while discussing indirect discrimination. The relevant extract is as follows:

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU 83, the Canadian Supreme Court held that once it is established that prima facie discrimination exists, the burden shifts on the employer to justify the discrimination, which involves proving that it provided reasonable accommodation. The court developed a three-stage test based on proportionality to determine whether an employer may use the bona fide occupational requirement.

Thereby, the burden in the present case, will fall on the relevant authorities of the Karnataka government to prove that measures to allow reasonable accommodation were provided for the students who are at the receiving end of the discrimination. It must however be kept in mind that Indian Courts have explicitly recognized the principle of reasonable accommodation, for the most part, in cases relating to disability rights.

Conclusion

The judgments delivered by the Indian courts on indirect discrimination are a testament to transformative constitutionalism, one where the courts have not hesitated to borrow from other jurisdictions in order to ensure that there is not a formalistic interpretation of equality. Even though the Supreme Court of India has commented in certain judgments (such as Nitisha v. Union of India) on how the doctrine of indirect discrimination is at its nascent stages, one can observe that that hasn’t stopped the courts from using the doctrine in those cases or expanding the contours of the doctrine’s application with due regard to the specific nature of each case. Such a commitment to substantive equality, in my opinion, is only strengthened, when the unique nature of the interaction between indirect discrimination and intersectional discrimination is recognized in the Hijab case.

Guest Post: Compulsory “Borrowing” of State Administrative Officers by the Central Government – Impact Upon the Federal Structure

[This is a guest post by Yash Sinha.]

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The central government has recently proposed amendments to the Indian Administrative Service (Cadre) Rules, 1954 (‘the 1954 Rules’). Succinctly, they enable the Central Government to compulsorily “borrow” an officer from the Indian Administrative Service (‘IAS’) serving a state government. This article argues that the probable impact will be damaging to two ideas underlying Indian federalism. Firstly, there is a breach of ‘centripetal federalism’, which is specific to the provisions on civil services. Secondly, there is an assault on the principles of quasi-federalism as found in the remaining Constitutional text.

As necessary preface to the argument advanced, Part I describes the present framework to contextualise the amendment’s implications. It maps the present degree of administrative control possessed by both the Centre and the states over such officers. It demonstrates that the framework provides for a titular inclination towards central discretion. Simultaneously, the density of the states’ weightage in power is shown to be residing in the concerned rule. Part II explains the Constitutional intent behind the distribution of such controls. It argues that the intent was to favour the states’ interests by having the centre supervise manpower. It links this to the Constitutional desire of having a centripetal force for enhanced cohesion and better functioning of the state executive. This centripetal force is shown to come from a titular, as opposed to an actual, central preponderance. Eventually, Part III discusses relevance of quasi-federalism as revealed by other parts of the Constitution. It argues that centripetal federalism fits perfectly in Ambedkar’s model of quasi-federalism, and is meant to have a cumulative effect of prioritising state interests in its IAS officers. Consequently, the amendments are shown to be (impermissibly) re-arranging Constitutional allocation of power.

The framework and the amendment

The All India Services Act, 1951 (‘AIS’) requires direct recruitment of freshly minted IAS officers to state governments. This recruitment is made in the President’s name, with the Department of Personnel and Training as its controlling authority.

The centre has conclusive discretion in more substantial aspects of the process as well. These illustratively include allocating recruits to each state cadre, determining those numbers, reserving a few for itself, imparting training to them, and exercising the power to selectively extend career-durations.

Furthermore, it has unequivocal priority in matters pertaining to suspension. The centre’s will is binding in spite of a state’s differing opinion on the same. The same arrangement governs disagreements about disciplinary proceedings, except that the state needs prior permission from the centre to initiate those. The centre also has the sole discretion in compulsorily and prematurely retiring IAS officers in state or central cadres.

The states, however, have a wide array of incentives/disincentives with which they govern the behaviour of their IAS officers. The officers’ transfers, reallocation of territorial units for administration and elevation to coveted posts, are the primary tools of control. Pertinently, the states have a sufficient deterrent in initiating an interim suspension till the centre’s final decision. To compete with the centre’s power of career-extensions, the states have devised their own workaround: the civil servant may choose to wait till the organic expiry of her tenure comes about, and subsequently function as an aide/advisory to the state government.

Regardless, it is seen that the centre has greater say till the stage of allocation to the state government, and then directly in ending the careers of IAS officers. However, the centre faced one significant handicap. The number of officers drawn by way of the present version of rule 6 was low in quanta. Therefore, it introduced the Central Staffing Scheme (‘CSS’). This ‘scheme’ was brought in through a government resolution, bypassing the All India Services Act (‘AIS’). Sec. 3 of this enactment requires that every amendatory rule be first scrutinised by the Parliament. Since the scheme was not a ‘rule’, it was considered to be an exercise of residuary executive power.

Under this scheme, the centre may choose to declare certain officers as fit to work directly under its administration. This process is referred to as ‘empanelment’, and earmarks possible candidates for future/immediate deputation. Regardless of the intent behind CSS, it serves favourably for the states. The state officers eluding empanelment are given the more strategic posts, minimising the possibility of disruption in functioning.

Simultaneously, the centre continues to face a handicap. Migration of empanelled officers is still contingent on the satisfaction of rule 6(1) of the 1954 Rules. By virtue of this, the centre cannot forcibly borrow a recruited state officer, regardless of empanelment. In 1969, a proviso was introduced to tweak this arrangement. It states that any differences regarding central deputation will see the centre’s view as binding. However, this does not denote the centre’s will as ‘overriding by default’. Rather, it was stated to be suggesting a dispute resolution mechanism, with the centre as an independent arbiter.

This proposed amendment is to negate the current rule 6(1) and forcibly recruit empanelled/non-empanelled IAS officers in states. This is ensured through two key changes. Firstly¸ the pre-requisite of the states’ consent is sought to be done away with. Secondly, the centre will have complete discretion to determine the number of such officers it may so wrest away.

Thus, this amendment effectively entitles the centre to expropriate members of the state administration. Combined with the significant power to additionally determine the numbers, the dispossessing impact renders it Constitutionally offensive.

Striking at the edifice of civil services: centripetal federalism

Given that IAS recruitment happens largely for the states, the centre’s role of a manager seems incongruous. This feature, however, is laden with Constitutional purpose.

Alongside other articles pertaining to the civil services, Art. 311 was formulated by Sardar Patel. Essentially, it compels pause and deliberation in the removal of Indian bureaucrats. Cl. 1 ensures that IAS officers are removed only by the centre. Art. 310(1) requires the centre to have strong reasons before affecting such removals. Simultaneously, Art. 311(2) mandates that the states follow a proper inquiry procedure before initiating a request for removal. Succinctly put, the design ensures that the states have the power to initiate penalties, without attaching it with any finality. It is these bounds that the statutory framework discussed in Part I are adhering to.

The underlying reasoning is present in the Constituent Assembly Debates. Few members were opposed to the state’s say in removal of officers, given certain provinces’ past loyalty to the British. Simultaneously and regardless, another set of members nurtured the very same suspicion about the bureaucracy itself. Both the groups demanded that there be no constitutional mention for the officers’ ‘removal’. By specifying a singular and tortuous procedure in the Constitution, Patel was accused of giving them a certain amount of protection. Patel refused to budge, citing the IAS’ potential to protect the Constitution. The bureaucracy, he stated, remains rooted in governance even if the political domain goes through severe flux. Officers unfailingly abiding by executive orders suggested to him institutional strength, and not moral vacuity. The bureaucracy-conduced stability during the crises thrown by the Partition and transition to independent governance were cited as footnotes to this assertion. More significantly, accession of some provinces was secured entirely on the assurance of preserving their internal freedom. Patel argued that this essentially denoted preserving their bureaucratic structure.

The grist of his argument, however, is packed in one significant portion of his rebuttal:

“This Constitution is meant to be worked by a ring of Service which will keep the country intact […] we shall have this model wherein the ring of Service will be such that will keep the country under control.”

Evidently, Patel envisaged the centre’s say on states’ officers as a source of national cohesion. This design seems further consolidated in light of another vital aspect of Indian Constitutional history. When the Government of India Act, 1935 introduced federalism to British India, it created an administrative office to singularly oversee and manage bureaucratic recruitments to the provinces. Termed as the ‘Establishment Officer’ and now within the DoPT, it is additionally tasked with handling the CSS.

Hence, Patel envisaged ‘centripetal federalism’: a counterintuitive concept wherein the centre has an overriding say, but in order to achieve effective decentralisation. The centre’s role in managing IAS officers of the states was to preserve and further federal cohesion. The limited preponderance it enjoys is only cosmetic and essentially bestows greater power on the states. But contrary to this, the amendments are aimed at creating an actual tilt towards the centre and at the states’ expense.

Quasi-federalism’s overlap with centripetal federalism

Ambedkar was distrustful of a liberal approach towards decentralisation in India. So while Patel argued for enhanced federalism, Ambedkar disagreed, and favoured a pseudo-unitary system of governance. The eventual Constitutional inclination towards the centre across different parameters has come to be identified – by the decisions in State of Karnataka, Shamsher Singh, Kuldip Nayar and Bhim Singh – as quasi-federalism.

It stands on a different footing than centripetal federalism, in the following manner. The latter weaves vertical federal units into one single thread of cohesion, whilst retaining the vital powers of the states. It brings in an effective central discretion to the fore, while still prioritising state-interests in the federal-vertical. On the other hand, the quasi-federal model is best understood as a bundle of different federal arrangements. It encompasses federal collaboration, unit-exclusive functioning, and permissible circumstances for the centre’s domination.

According to Ambedkar, this dominance denoted ‘circumscribing’ the states’ power in legislative and executive concerns. In elaboration, he asserted that the overriding power of the centre was to be kept strong in intensity, yet minimal in occurrence. Accordingly, the centre was conferred with legislative preponderance only in disagreements pertaining to concurrent and residuary subjects. However, as espoused in V. Hariharan and consolidated in GNCTD, it is the states which have executive preponderance in concurrent subjects, except where Constitutional or parliamentary law specify exceptions.

It is at this point where flanks of both the models of federalism confluence. Centripetal provisions on civil services are cocooned by Ambedkar’s exemptions from central dominance for a cumulative impact.

It is to be noted that IAS officers in a state are bound to execute and handle laws under List II. These officers, insofar as they constitute the state executive, are not tasked with implementing central laws due to Ambedkar’s ‘exclusive priority’. Art. 256 and 257 reservedly ask state officers to neither hinder such laws’ implementation, nor the centre’s functioning. This indicates mutual exclusivity between the functioning of state and central executives. Additionally, the Constitutional text also bears out his intention to minimise the hijacking of state executives. At present, only under Art. 352 and 356 can the state executive machinery be taken control over by the centre. That apart, Art. 324(6) has been judicially interpreted as the only other provision that permits a temporary and non-consensual expropriation of a state’s executive machinery.

Thus, the cumulative impact of both the models is to impart states’ executive with a high degree of exclusivity. Central preponderance therein would be a fickle proposition, except when permitted by the Constitution.  Presently, its text suggests the contrary.

Conclusion

In its present form, rule 6(1) embodies a Constitutional allocation. It encapsulates the core of decentralisation by granting states a decisive hold over their in-service civil servants. In parallel and by intelligent design, the Constitution protects these officers from politically motivated state-level reprimands.

Both the safeguards exist due to two different ideas of federalism.  The centripetal model stresses on unity to advance greater decentralisation. It exists to generate a unifying factor, but prioritises states in doing so. Contrarily, the pseudo-unitary model prioritises the centre, and goes beyond merely supplying an appellation of unity. It is best viewed as a wide spectrum of federal arrangements, with slight inclination to the centre and complete substitution of state powers as the two extreme ends. The crux of both, however, is the asymmetry in the federal-vertical. 

As far as civil services within the states is concerned, the two versions reinforce each other to have a curious constitutional impact: both cement plenary powers of the state executive. The cohesive intent ensures that no state is dispossessed of its administrative instruments. Simultaneously, the specificity in areas for central dominance makes it rare for the centre to interfere with the everyday functioning of state executives. Combined, they make states’ consent all the more indispensable.

Without rule 6(1) in its present form, the country shall move closer to a unitary operation under the facade of an operative quasi-federal system.

Guest Post: The Hijab Case Through the Lens of Proportionality

[This is a guest post by Shreyas Alevoor.]

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Previously on this blog, a case was made for the application of the disparate test to challenge the ban on Hijab. However, the indirect discrimination test ought to be applied with caution, and with awareness of the fact that Indian jurisprudence on indirect discrimination is still nascent. In Part I of this piece, I argue that arguments founded on indirect discrimination test may not be entirely effective. In Part II, I argue that the ban on Hijab, being a violation of Art. 19(1)(a) is better off being challenged on grounds of proportionality.

Let us return to the Karnataka government’s directive. The directive states that “clothes which disturb equality, integrity, and public law and order should not be worn”, and cites the Supreme Court’s judgement in Asha Ranjan vs. State as justification for this. The invocation of Asha Ranjan is problematic for several reasons, one of them being that its factual matrix makes it irrelevant to this controversy. But more on that later.

Indirect Discrimination and its Discontents

In the landmark US case of Griggs vs. Duke Power Company, disparate impact was said to occur when a policy, which is neutral at the face of it:

1. Puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group, and
2. Fails to satisfy a means-end justification test.

The two-factor test for indirect discrimination that the Canadian Supreme Court developed in Fraser vs. Canada, also recognized by the Indian Supreme Court, is as follows:

1. Whether the impugned rule disproportionately affects a particular group;
2. Whether the law has the effect of reinforcing, perpetuating, and exacerbating a disadvantage (social, political, and economic exclusion, psychological and physical harms).  

I submit that, under this test, the government order [“G.O.”] does not have the effect of indirectly discriminating against a particular group. The first prong of both the Griggs and Fraser tests requires that the protected group face a disproportionate impact compared to a comparator/cognate group. The evidentiary standard used in the United Kingdom to determine the disproportionality is that of the deliberately vague ‘particular disadvantage’. This is done to ensure that the parties or the courts do not get caught up in an empirical exercise, but rather employ an intuitive assessment of disparate impacts. The Court in Fraser similarly notes that the “disproportionate impact on the members will be apparent and immediate”, and will “show such strong association with the [group’s] traits.”

The State government’s directive requires the school to act against anyone who violates the dress code of the institution – which applies not only to Hijabs, but also any other articles of clothing with religious connotations. The disadvantage suffered is not ‘particular’, but universal. Indeed, Hindu boys wearing saffron scarves were barred from entering the classroom. Hence, the impacts of the measure does not show an association with the protected group’s traits.

Note that indirect discrimination is said to occur to when a measure that appears to uphold equality in treatment results in an inequality of outcomes, due to the systemic nature of discrimination. One can understand this with the example provided in Jones vs. Chief Adjudication Officer: in a large children’s party, the host announces that presents will be divided equally between all the girls and boys. Later, he announces that only the girls shall be given presents, and the boys will have none. After a while, the host discovers that the presents have been misplaced and thus nobody will receive a present. While there is discrimination in the first case, there is none in the second case as “the disadvantage to girls is not mirrored by any corresponding advantage to boys”. 

An Alternative Argument for Indirect Discrimination

How should the Court determine if a ban on Hijab perpetuates a disadvantage under the second prong of the Fraser test? It might have to investigate whether the Hijab is essential to the Muslim community – at which point it may again be drawn into the minefield of the Essential Religious Practice (ERP) test as it currently stands. Notwithstanding the principled arguments against the test, there are also practical difficulties in proving Hijab as an ERP.

Before I conclude this Part, I must recognize that a claim for indirect discrimination could exist, but not in the way previously discussed on this blog. In Fraser, the Court had noted that indirect discrimination not only results from headwinds against protected groups built into facially neutral laws, but could also arise from an “absence of accommodation for members of protected groups”. The refusal to accommodate Hijab may be construed as an absence of accommodation.

One can find a tiny sliver of the accommodation argument in the Delhi High Court’s judgement in Inspector (Mahila) Ravina vs. Union of India. Here, a female CRPF officer was denied promotion because she was unable to attend a pre-promotion course in 2011 due to her being pregnant at the time, even though she did complete it successfully in 2012. S. Ravindra Bhat, J. (as he was then), held that the State could not make her choose between the pregnancy and a promotion. It was held that such a choice, while made under a “seemingly neutral reason of inability of employee” would be discriminatory. Here, the dispute results not from built-in headwinds, but from not making an accommodation for pregnancies. However, the difficulty with the accommodation argument is that the Supreme Court’s nascent indirect discrimination jurisprudence as developed in Navtej Johar and Lt. Co. Nitisha does not explicitly recognize claims of accommodation as yet.

Proportionality Challenge

In a previous blog post, Hari Kartik makes an excellent argument for clothes as symbolic speech. I further argue that the Karnataka government’s directive and its grounds for the ban (equality, integrity, and public law and order) fail on proportionality grounds in so far as it violates Art. 19(1)(a).  

A proportionality test at its simplest consists of the following four prongs: Legitimate Aim, Rational Nexus, Necessity, and Balancing.

Equality as a Justification

It is difficult to understand how religious expression can undermine equality if the right to such expression is available to people of all religions. In any case, ‘equality’ (as cited in the directive) is not a ground for restricting free speech and expression under Art. 19. Neither is it a “legitimate interest of sufficient importance” in this case, for reasons I will explain shortly.

Tests of indirect discrimination also prescribe proportionality. The measure should “correspond to a real need and the means must be appropriate” to achieve the stated objectives, as stated in Bilka Kaufhaus GmbH vs. Weber von Harz. A reasonable accommodation of religious items of clothing does not result in inequality by abolishing uniforms. In this case, the demand is for a Hijab over the uniform. In Navneethum Pillay, the Court rightly pointed out that religious and cultural displays in public “[are not] a parade of horribles, but a pageant of diversity”.

Integrity and Public Law and Order

Whatever the possible arguments for a short-term prohibition in light of a sensitive situation, it is difficult to justify the ban as a long-term measure as it prohibits potentially every form of religious expression. There exists no rational nexus between such a ban and protecting law and order. The ban is not only limited to the Hijab, but also other articles of clothing of religious significance. In MRF Ltd. vs. Inspector Kerala Government, the Court held in the context of reasonableness that that the restriction imposed by a measure should not be “arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.” There exist better alternatives to an outright ban – that of making accommodations on a case-by-case basis after careful scrutiny.

The final Balancing prong, as Mark Tushnet notes, requires a determination of “whether the government’s goals are important enough and are advanced enough by the statute so as to justify the actual impairment of liberty”. The ‘equality’ objective of the directive fails here as it is not important enough. While ‘integrity and law and order’ is an important objective, a ban does not fulfill it.

The directive by invoking Asha Ranjan also tries to fulfill the Balancing requirement (albeit unintentionally) but doesn’t really succeed at it:

Larger public interest prevails upon the individual interest not by negating individual rights but by upholding larger interests and to ensure relationship between the institution and the students.

Let us compare the following formulations:

Proportionality: Government’s goals and measures taken should be important enough to justify the impairment of liberty.

Directive: Larger public interest (i.e., government goals of law and order) and measures taken (i.e., the ban) are important to ensure relationship between the institution and the students.

This is the first problem: for reasons explained above, the government goals and the measure taken do not justify the impairment of liberty, but only justify a “relationship between the institution and students”. What this relationship is, no one really knows. 

The other problem is that this attempt at a balancing act draws a false dichotomy between a larger State interest (education, and public order) on the one hand, and individual rights (freedom of speech and expression, and freedom of faith and conscience) on the other. It claims that it does not wish to “negate individual rights”, but that is precisely the effect of the ban – a veritable Tacitus’ desert.  In Serif vs. Greece, the European Court of Human Rights held that the role of the State is to “not remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. This was relied upon in Sarika Watkins-Singh vs. Aberdare Girls’ High School to hold that schools had a ‘very important obligation’ to ensure that its students are tolerant as to the beliefs of other people, and respect other people’s religious wishes.

For these reasons, the G.O. – and the hijab fan – fail the test of proportionality.

Swimming With Your Arms Tied Behind Your Back: The Supreme Court’s UAPA Bail Order in Iqbal Ahmed’s Case

On 13th August 2021, a division bench of the Bombay High Court had granted bail to one Iqbal Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act [“UAPA”]. In my analysis of the judgment on this blog, I had written that – when read alongside the Delhi High Court’s judgment in Asif Iqbal Tanha (see here) – the bail order in Iqbal Ahmed was an important instance of how the Bombay and Delhi High Courts were beginning to develop a jurisprudence of liberty, even within the highly restrictive confines of the UAPA.

The bail order was appealed to the Supreme Court. In a brief order passed on 11th February 2022, a two-judge bench comprising of Chandrachud and Surya Kant JJ declined to interfere with the grant of bail. However, the two judge bench also passed the following observation, in paragraph 2:

In the facts and circumstances of the present case, we are not inclined to disturb the order of the High Court. However, we clarify that the observations contained in the impugned order are confined to the disposal of the application for bail arising out of the judgment of the Special Judge on the question of bail. Moreover, it was unnecessary for the High Court to advert to the decision in Shreya Singhal v Union of India and the judgment of the High Court can be sustained even independent of the said observations. (Emphasis mine)

There are two points I want to make with respect to this paragraph, which – in my view – highlight starkly the internal tensions that have come to characterise bail jurisprudence under the UAPA. The first is the part where the Court “clarifies” that the observations in the High Court’s bail order “are confined to the disposal of the application of bail.” Now, this would be entirely unexceptionable were this an order of bail under regular criminal law. However, where a Court has granted bail on merits in a UAPA case, this cannot be so. The reason for this is explained at some length by Abhinav Sekhri, in this piece and in this piece. As Sekhri points out, “the UAPA dramatically flips the regular law of bail on its head. Here, courts are required by the statute to primarily focus upon the merits of the case to determine whether or not bail should be granted.” The reason for this is that s. 43(D)(5) statutorily bars the grant of bail the moment the Prosecution can show that a prima facie case exists against the accused. Or, in reversal, a merits bail under the UAPA can happen only if the Court finds that there is not even a prima facie case against the accused, on the basis of the evidence provided. For this reason, it simply does not make logical sense for the Supreme Court to say that the “observations … [in the High Court order] are confined to … the question of bail”: the UAPA mandated the High Court to issue findings about the case that went beyond the “question of bail”, because without addressing those questions, it could not have granted bail on merits to start with (it’s a different matter that it could still have granted bail on the separate and independent procedural ground of delay, as per the Supreme Court’s K.A. Najeeb judgment).

The other reason why this observation is unjustified is simply on grounds of fairness and parity. As Abhinav Sekhri has pointed out in the articles linked to above, the UAPA almost entirely stacks the decks against an accused. Going into a UAPA bail hearing, accused’s counsel have to argue as if they were participating in a swimming competition with both arms tied behind their backs: they cannot deploy any part of the arsenal open to the defence team in a regular criminal trial, and they are only permitted to try and point out internal contradictions within the Prosecution’s case, or show how even when you assume the Prosecution’s case to be true, it does not meet the UAPA threshold. The Supreme Court judgment in Watali effectively tied a dumbbell to the defence’s legs in addition to its arms being tied behind its back, when it further restricted what materials the Court could consider in a UAPA bail hearing.

This being the case, on the rare occasion when the defence does succeed in merits bail under the UAPA (in the manner indicated above), basic principles of fairness and equality of arms suggest that it ought to be entitled to the full benefits of that bail judgment – which, in this case, for the reasons advanced above, necessarily include certain judicial findings on the substantive quality of the prosecution’s case. It is crucial to note that the only reason why this is happening is because of how the UAPA itself front-loads bail hearings entirely in the prosecution’s favour. In this context, the Supreme Court’s observations in paragraph 2 basically amounts to a situation where the swimmer with both arms tied behind their back and dumbbells tied to their legs nevertheless wins the swimming competition, and is then told that their win doesn’t count because ropes and dumbbells are not supposed to be brought into the pool.

The second point I want to comment on is the Court’s observation that it was “unnecessary” for the High Court to refer to the Shreya Singhal judgment. This observation bears some resemblance to oral arguments before a different bench of the Supreme Court when Asif Iqbal Tanha’s bail order was appealed by the State: in that case, the Supreme Court expressed surprise that the High Court had spent a hundred pages discussing various judgments in a bail order. It then went on to hold that the bail order was “not to be treated as a precedent or relied on by the parties” (something that, as may people have pointed out, was beyond the scope of its jurisdiction). The present order does not do that, but the observation in question betrays the same problem. As has been pointed out before, because s. 43(D)(5) of the UAPA statutorily bars the grant of bail where there is a prima facie case against the accused, in a merits bail application, there are two ways a Court can go: (a) hold that the Prosecution’s case, even when taken at the highest, with all allegations presumed to be true, does not meet the legal threshold that the offences under the UAPA require to be met; or (b) there are gaps in the Prosecution’s case, and the link between the facts as alleged, and the offences under the UAPA, have not been filled except by surmises or inferences. Now the point as that for (a), the Court must, by the very nature of the analysis, embark upon a detailed legal examination of what the UAPA offence actually requires. This was what the Delhi High Court did in Asif Iqbal Tanha. And this was exactly why the Bombay High Court invoked Shreya Singhal’s Case in this order. As I wrote in my analysis of this order:

While the analysis in Tanha’s case was multi-faceted, in this case, there are two primary principles: the first is that given the stringency of the UAPA, and the harshness with which it operates, its definitional clauses ought to be given a strict and narrow meaning. In the present case, Shinde and Jamadar JJ deployed the Shreya Singhal judgment to (correctly) hold that mere discussions would not fall within the substantive clauses of the UAPA – whether the membership clause, or any other. And the second principle is that to make out a prima facie case, the “allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.” This is evident in the present case from the Court’s refusal to infer a larger conspiracy simply from the recovery of an unsigned oath form or a switchboard, without further, tangible material on record.

It should therefore be clear that not only was it correct for the Bombay High Court to have invoked Shreya Singhal, but indeed, it could not have been any other way. Recall, once again, that this was a case of bail on merits under the UAPA; the Bombay High Court did not grant bail solely on the K.A. Najeeb ground of excessive delay in trials. It is for this reason that paragraph 2 in the Supreme Court’s bail order is problematic: because both sets of observations – if they are taken to their logical conclusion – would make merits bail under the UAPA not only very difficult (which it is now), but a virtual impossibility.

By way of conclusion, it is important to note that short orders of this kind – dismissing Special Leave Petitions – are invariably delivered after very brief hearings, without the bench having had the benefit of hearing proper arguments on either side. Thus, it is to be hoped that when the question of merits bail and 43(D)(5) comes up before the Supreme Court again – as it inevitably will – these internal contradictions of the UAPA will be considered in greater and more substantive detail.

Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya

[This is a guest post by M. Jannani. Previous posts on the Hijab Case can be found here and here.]

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Recently, the Karnataka State Government pre-university education department issued a direction invoking 133(2) of the Karnataka Education Act, 1933 which in effect restricted female Muslim students from wearing hijab in educational institutions that are under the its jurisdiction. The order reportedly stated that:

“Invoking 133 (2) of the Karnataka Education Act-1983 which says a uniform style of clothes has to be worn compulsorily. The private school administration can choose a uniform of their choice”

Though on the face of it, the notification may seem neutral, the point lies in disparate impact it has had on female Muslim students whose self-expression and religious practices have been jeopardised. This piece discusses the judgment of Fugicha v. Methodist Church in Kenya which used the doctrine of indirect discrimination to strike down a restriction on wearing Hijabs along with the usual uniforms prescribed by a school in Kenya. It also aims to contextualize the judgment’s relevance to the doctrine of indirect discrimination, which has already been recognized by Indian courts.

Background

On the 22^nd of June 2014, there was a request made by the Deputy Governor of Isiolo county to allow Muslim girl students to wear hijab and white trousers in addition to the already prescribed uniform in St. Paul’s Kiwanjani Day Mixed Secondary School (“the school”). Approximately a week after the request was made, Muslim girl students wore both the hijab and white trousers along with the school uniform that was prescribed by the school. They were then asked to revert back to the dressing in the uniform that they had to wear before the request was made. The county director passed a decision that Muslim girl students should be allowed to wear the hijab and white trousers along with the school uniform. However, the Methodist Church in Kenya (“the Church”) opposed it and argued that this particular move allowed for preferential treatment of female Muslim students. It also termed the move as a violation of natural justice and the rule of law, while supporting the dress code that did not (according to it) permit the exhibition of religious symbols.

At the outset it is important to note that Constitution of Kenya expressly recognizes the right against indirect discrimination in article 27 which states as follows:

“27 (4) The state shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another on any of the grounds specified or contemplated in clause (4)”.

Given this background, the Kenyan Courts, among other questions in the present case, were tasked with the role of examining whether the banning of hijabs in schools amounted to an act of indirect discrimination, which violated article 27 of the Kenyan Constitution.

Decision of the High Court

The High Court observed that the Republic of Kenya is a secular country and since article 8 of the Kenyan Constitution states that there cannot be a state religion, the school was not justified in allowing female Muslim students to wear a hijab. It also stated that they should revert back to the uniform. The judgment further held that not having such restrictions on the uniform for female Muslim students would amount to preferential treatment over their non-Muslim peers.

In my opinion, the court terming the move to allow female Muslim students to wear hijabs being called special or preferential treatment was erroneous and ran contrary to the principles of indirect discrimination. These principles were, for instance, laid down by the judgment of the Constitutional Court of South Africa in MEC for Education: Kwazulu-Natal v. Navaneethum Pillay. In this case, a girl student wore a nose stud (which formed a part of her cultural belief as a Hindu) to her school. Her school found it to be a violation of the uniform dress code and objected to her wearing the nose stud. This restriction was constitutionally challenged. The Constitutional Court of South Africa held that such restrictions would have an effect of indirect discrimination on those whose cultural practices are compromised. The relevant extract of the judgment is as follows:

“It is those learners whose sincere religious or cultural beliefs or practices are not compromised by the Code, as compared to those whose beliefs or practices are compromised. The ground of discrimination is still religion or culture as the Code has a disparate impact on certain religions and cultures. The norm embodied by the Code is not neutral, but enforces mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms. It thus places a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. In my view, the comparator is not learners who were granted an exemption compared with those who were not. That approach identifies only the direct effect flowing from the School’s decisions and fails to address the underlying indirect impact inherent in the Code itself.”

Decision by the Kenyan Court of Appeals

The Court of Appeals in Mohamed Fugicha v. Methodist Church in Kenya looked into whether the restriction on wearing hijabs was a violation of article 27 of the Kenya’s Constitution. To determine whether the restriction on female Muslim students wearing hijabs on their uniforms was an act of indirect discrimination, the court imported the test that was laid down in the case of Sarika Angel Watkins v. The Governing Body of Aberdare Girls’ High School. In the case of Sarika, the English and Wales High Court looked into whether a Sikh girl student could be restricted from wearing a Kara, which was of immense significance to her faith. The following four step test was laid down in the Sarika judgment, and was affirmed by the Kenyan Court of Appeals :   

“(a)  to identify the relevant ‘provision, criterion or practice’ which is applicable;

(b) to determine the issue of disparate impact which entails  identifying a pool for the purpose of  making a  comparison of the relevant disadvantages;

(c) to ascertain if the provision, criterion or practice also  disadvantages the claimant personally;

(d) Whether this policy is objectively justified by a legitimate aim; and to consider, if the above requirements are  satisfied, whether this is a proportionate means of achieving a legitimate aim.”

When applying the above test, the Kenyan Court of Appeals firstly stated the relevant practice to be considered was the restriction imposed by the school on female Muslim students wearing hijab along with their uniform. The court then observed that the ‘pool’ in this case comprised of the female Muslim students and the ‘comparator group’ consisted of the non-Muslim student body. In this context, it made the observation that unlike the ‘pool’, the comparator group’s compliance with the school’s uniform rules did not subject them to disadvantage which was violative of their religious practices and beliefs. While looking into whether the criterion or practice disadvantages the claimant personally, the court held that the ban on wearing hijabs that existed in the school was one that compromised and curtailed their religious beliefs that were of exceptional importance to the individual. While upholding that the restriction constituted an act of indirect discrimination under the Sarika test, the court expressly stated that:

“It is important to observe at this point that it is not for the courts to judge on the basis of some ‘independent or objective’ criterion the correctness of the beliefs that give rise to Muslim girls’ belief that the particular practice is of utmost or exceptional importance to them.  It is enough only to be satisfied that the said beliefs are genuinely held.”

The Court of Appeals also referred to the judgment of the Constitutional Court of South Africa in City Council of Pretoria v. Walker to hold that though the rules on the uniform dress code may be perceived as neutral, the still may have a discriminatory effect. The relevant portion of the judgment states as follows:

“The inclusion of both direct and indirect discrimination, within the ambit of the prohibition imposed by section 8(2) of the Constitution, evinces a concern for the consequences rather than the form of conduct.  It recognizes that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination and, if it does, that it falls within the purview of section 8(2) [our Article 27(4)] of the Constitution.”

It was therefore held even though the uniform dress policy was one that appeared to be neutral, by not allowing female Muslim students to wear the Hijab, it amounted to an act of indirect discrimination. This constituted a violation of article 27, Constitution of Kenya. The Kenyan Court of Appeals, thereby, proceeded to outlaw the restriction on wearing hijabs on uniforms.

Decision by the Kenyan Supreme Court

The decision given by the Kenyan Court of Appeals in Mohamed Fugicha v. Methodist Church was appealed before the Supreme Court of Kenya. The majority set aside the judgments of both the High Court and the Court of Appeals on the procedural ground that there was no proper cross-petition to be determined by the courts. The minority opinion delivered by Chief Justice Ojwang termed the view of the Appellate Court in the interpretation of indirect discrimination as ‘appositely pragmatic and rational’ while also holding that it reflects the desirable judicial stand.

Recognition of Indirect Discrimination by Indian Courts

Last year, the Supreme Court in Nitisha v. Union of India applied the doctrine of indirect discrimination while holding that women army officers being denied Permanent Commission (“PC”) by the Indian Army was discriminatory. Through the judgment it acknowledged that though certain rules or laws appear to be neutral they may have a disparate impact on certain groups/ communities of people due to their identities. While doing so, the Supreme Court of India, similar to the Kenyan Court of Appeals, referred to the Constitutional Court of South Africa’s judgment in City Council of Pretoria v. Walker. A similar reference to the decision of the South African court was made in the decision of Madhu v. Northern Railways. which also looked into the doctrine of indirect discrimination.  Thereby, it can be observed that the Indian courts have not hesitated in borrowing the interpretation of the indirect discrimination from jurisdictions that have expressly recognised. However, to determine whether an act constituted indirect discrimination, the Supreme Court in Nitisha had adopted the Fraser v. Canada test as opposed to the test laid down in Sarika which had been adopted by the Kenyan Court of Appeals.

Conclusion

Though the Kenyan Court of Appeals judgment in Methodist Church in Kenya v. Mohamed Fugicha was set aside by the Supreme Court of Kenya (albeit not on the merits), it can be seen that the Court of Appeal’s interpretation of the doctrine of indirect discrimination in the specific context of the restrictions on wearing hijabs over uniforms is one that is extremely relevant. The doctrine of indirect discrimination plays an important role in opposing state action that may have a perversely disproportionate impact on those who face intersectional discrimination as has been demonstrated by the Kenyan Court of Appeals. The application of this doctrine by the Indian Courts in the way the Court of Appeals did to outlaw the restriction on hijabs will, in my opinion, be of critical importance to the realization of substantive equality.

Reservations in Promotions: The Clarificatory Judgment in Jarnail Singh – II

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)]

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On January 28, a three-judge bench of the Supreme Court handed down a judgment in Jarnail Singh v Lacchmi Narain [Jarnail Singh – II], clarifying some of the issues that had arisen out of the Consitution Bench judgment of the same name, delivered in 2018 [Jarnail Singh – I]. In Jarnail Singh – II, the Court clarified that (i) the yardstick for determining what constitutes “inadequacy of representation” in the services was a matter of executive discretion; (ii) determining inadequacy of representation as a pre-condition to granting reservations was mandatory, and would have to be reviewed on a periodic and “reasonable” basis; (iii) that the unit of determining inadequacy of representation was the “cadre”, and not the service as a whole; (iv) and that the judgment in M. Nagaraj would operate prospectively.

The Court’s first conclusion – that the yardstick for determining inadequacy is at the discretion of the State – seems unexceptionable at first glance, but is worth closer scrutiny. The Court’s judgment, in my view, implicitly continues with the tension between two strands of Indian jurisprudence on reservations, which I highlighted in my last post. Because if it is true that – after N.M. Thomas – Article 16(4) (and therefore, by extension, Articles 16(4A) and (4B), which deal with reservations in promotions) is a facet of equal protection, then it follows that reservations are not merely enabled by Article 16(4), but are a part of the overall substantive equality code. It then follows that the determination of “inadequacy” is a question of substantive equality, and that executive failure to do it in the first place – or to do it improperly – triggers a constitutional right under Article 16(1). It follows, in turn, that in principle at least, the methods that the State follows to determine inadequacy of representation in public employment have to be subject to judicial review, on the grounds of substantive equality.

Indeed, there seems to be an internal tension within the judgment itself, because it does mandate that the unit for determining adequacy has to be the cadre. But the “cadre” – as the judgment itself acknowledges – is itself a creation of service law jurisprudence. The Court appears to argue that the reason why cadres have to be taken as the bases for determining inadequacy in representation is because promotions happen cadre-wise (see e.g., para 28). But here, the Court is engaging in a judicial determination of what form of substantive inequality (i.e., substantive inequality with respect to representation within cadres, and not – for example – the whole service) would merit the triggering of a reservations policy. Why then would the same considerations not apply when it comes to determination of substantive inequality – as a justification for reservations – in general? This is not, of course, to suggest that the Court should substitute its judgment for the judgment of the executive; it is, however, to suggest that if a citizen comes before the Court stating that the State’s reservation policy – or absence thereof – discriminates against them by ignoring the structural and institutional barriers that they face (i.e., substantive inequality), then the Court should not ipso facto shut its doors to that claim. To reiterate, this is not equivalent to claiming that there is a “right to reservation”. The claim, rather, is that there is a right to substantive equality, one remedy for which is reservation.

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[PS. On another – unrelated – note, while holding that the judgment in Nagaraj was to be applied prospectively, the Court distinguished the prior judgment in M.A. Murthy, by noting that its seemingly contrary observations were obiter dicta, and not binding. Long-time followers of the Supreme Court’s jurisprudence might be somewhat bemused by the extensive discussion on ratio decidendi and obiter dicta that takes place in paragraph 41 of the judgment, given that the Court has, on previous occasions, held that there is no such distinction when it comes to its own judgments, and that – in effect – both ratio and obiter in Supreme Court judgments constitute the law. Perhaps, on some occasion, we will need a Constitution Bench just to clarify this point!]

Guest Post: The Hijab Case through the Lens of Article 19(1)(a)

[This is a guest post by Hari Kartik Ramesh.]

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Controversy has raged in the corridors of educational institutions in Karnataka on the matter of uniforms. In the beginning of 2022, the Karnataka government issued an order to government educational institutions, insisting that the administration of each educational institution follow the policy of prescribing a singular uniform policy for their institutions. The order noted that clothes which disturbed public order, equality and integrity within the schools would be banned. The order noted that the government had noticed a trend of religious attire being worn instead of merely the prescribed uniform and argued that this disturbed equality and public order within schools. The order was used by administrations of educational institutions in colleges in Karnataka to bar Muslim women wearing the Hijab from entering the educational institute. In some cases, though the women were allowed to enter the institute, they were segregated and attended classes separately from other students.

Prima facie, the matter appears to be an issue primarily concerning the freedom to religion enshrined under Article 25. It may be argued that Hijabs are essential to the religion of Islam, and therefore by debarring Muslim women from educational institutions for wearing the Hijab, their freedom to express their religion is being infringed upon by the State. While intuitively an argument along the lines of freedom of religion is attractive – and indeed, it is precisely the line of argument counsel for the petitioning Muslim women argued in the Karnataka High Court, it presents several issues. This piece shall argue that rather than a freedom of religion-based judgement, the High Court ought to base its judgement on the grounds of Freedom of Expression.

The Problem With Article 25-centric Arguments

The question of which aspects of a religion are guaranteed protection under Article 25 of the Constitution is a complex one. In order for the state to be unable to interfere with the religious practice, it must be proven that the practice constitutes an essential part of the religion. This Essential Religious Practices (ERP) test has been critiqued by scholars for several decades. They have noted that under the ERP, the court often becomes a theological institution, and effectively results in non-followers of a religion explaining to followers of a religion how certain practices are not in fact essential to their religion. Even if the judges did follow the religion in question, courts are generally not equipped to conduct such theological enquiries, are ill-suited for the task, and consequently have failed to produce a consistent framework or guidelines regarding how the court ought to carry out the enquiry of whether a practice is indeed an ERP.

Only a narrow sliver of religious practices are recognised as an essential religious practice. For example, mosques were considered not essential to Islam and a religious dance was considered not essential to a community, despite the fact that the religious documents of the community explicitly labelled it as an essential practice. It may very well be argued that a Hijab will satisfy the test for essential religious practices. However as precedent, only those who are able to prove that their outfit, or accessory on their uniform, is of a religious nature and essential to the religion, would be able to receive constitutional protection. Thus, as precedent, the judgement may have extremely limited value.

However, I propose instead that the court has an opportunity to build on its free speech jurisprudence. Grounding the reasoning in the terms of compelled speech would give protection to a more varied form of expressions and objections as opposed to purely religions terms. Indeed, as shown above, many religious objections may also fall foul to the high standard of ERP imposed by the Supreme Court. Therefore, the approach of compelled speech and expression would be a more suitable path for the court to utilise.

Clothes as a Form of Symbolic Speech

There is a long history of small amendments to uniforms being used to send a political message. School children in the United States wore black armbands in protest of the Vietnam War in the 1960s and 1970s. In India students have worn black badges in Manipur, as a sign of solidarity for public demands for strict punishments for certain murderers. University students wore black armbands to protest lack of pay for Physiotherapists, violence in Jawaharlal Nehru University in 2020 etc. These are clear examples where political views were expressed through a piece of clothing such as badges or armbands. Students have used such simple, yet effective and symbolic means of protests for decades.

School children in Des Moines were punished for black armbands as it was argued the armbands violated the school uniform. The case reached the Supreme Court of the United States (SCOTUS) wherein the court laid down its famous judgement of Tinker v Des Moines Independent School District that the black armbands was constitutionally protected speech. The majority observed that school students had not surrendered any of their fundamental rights by deciding to enrol in a school, observing that:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The court noted that due to the circumstances surrounding the armbands, that is, the students were wearing it to specifically protest the Vietnam War and were therefore making a political statement, such symbolic conduct would amount to speech. The court noted:

“It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. “

As it was an issue of free speech, the court noted that the only reason for which restrictions may be placed on symbolic speech/conduct amounting to speech is when such conduct caused an immediate disturbance and disturbed the peace and order of the school. The majority noted that black armbands by themselves could not constitute a disturbance to any form of public order and therefore the punishments faced by students were unconstitutional as it amounted to an infringement on their right to free speech. The majority concluded its opinion, observing:

“These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.”

Tinker represents the court’s acknowledgement that deviations from school uniform can express a message, or a viewpoint and those deviations may not be punished by school authorities unless there was a countervailing interest in maintaining order which was threatened by the deviation.

The idea that certain non-verbal conduct is loaded with meaning due to the nature of conduct and the context the conduct occurs in that the conduct is akin to speech has been accepted in Indian Constitutional Jurisprudence as well. In NALSA v Union of India whilst dealing with several constitutional issues regarding the transgender community, the court makes an important observation that people express their gender-identity through their mannerisms and clothes, and such expression is a fundamental right guaranteed under Article 19(1)(a) of the constitution (para 62). The court refers to the US cases City of Chicago v. Wilson et al and Doe v. Yunits et al as examples wherein courts stated that expression of gender-identity through choice of clothes is a key aspect of a person’s fundamental right to expression and autonomy. Having cited these cases the court concludes that:

“Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc”.

Through the NALSA judgement, the court broadened the scope of Article 19(1)(a) to include non-verbal speech as well. Much like in Tinker where, in the given context, the black armbands represented anti-Vietnam fervour in the students, in the societal context, the choices a person made regarding the clothes they wore could communicate an important part of their gender-identity to society at large. Thus, the meaning of the non-verbal speech did not have to be a purely political one (that is relating to a governmental policy), it would suffice if the impugned conduct/action communicated an aspect of the person’s identity to the audience.

This idea was further articulated in the judgement of Navtej Johar v Union of India dealing with Section 377 of the Indian Penal Code which criminalised homosexual sexual acts. Whilst striking it down on the anvil of privacy, autonomy and discrimination, Chief Justice Misra (along with Justice Khanwilkar) additionally struck down the section on the ground of violation of free speech (para 247). The court observed that the section caused many in the queer community to live their lives in secret, out of fear of being accosted by the police. This chilling effect amounted to a violation of the freedom of expression. Section 377 criminalised sexual acts, not any form of verbal speech of any form. However, due to the chilling effect on the queer identity caused by the legislation, it violated free speech. Thus, due to the impact of the provision causing a person to be unable to communicate an aspect of their identity to society, a freedom of expression violation had occurred. Justice Indu Malhotra in her concurring opinion cited the NALSA judgement that individuals have the right to express their gender identity in the manner they choose through mannerisms, clothes etc and extends this principle to sexual orientation as well, thus striking down the section on the anvil of free speech (para 17.1-17.2).

Further from home, in case similar to NALSA, the Malaysian Court of Appeal in Muhamad Juzaili bin Mohd Khamis v. State Government of Negeri Sembilan struck down legislation criminalising the act of cross-dressing on the grounds of it violating free speech, whilst citing Tinker and NALSA. The court held that cross-dressing involved a form of symbolic speech as the conduct communicated a part of the person’s identity to the audience. Therefore, as the conduct did not cause a public order problem, the state had no justification for criminalising it (Page 23).

Bijoe Emmanuel v Nalsa

In the famous Bijoe Emmanuel case, students who were Jehovah’s Witnesses were punished and expelled form a school due to their refusal to sing the national anthem. The SC held that compelling the students to sing the anthem would infringe on their fundamental rights and therefore would be a violation of the Constitution. The court’s judgement revolved around the fact that the opposition to the singing was based in religion. Thus, any politically motivated reason for not wishing to sing the national anthem could perhaps not use Bijoe Emmanuel for precedential value in making their case. If a  situation like Colin Kapernick  (NFL athlete who kneeled during the national anthem to protest police brutality in the United States) occurred in India, the Bijoe Emmanuel judgement might not be of great assistance.

However, was the nature of the source of the objection relevant in the case? Why should a decision motivated by politics to not be compelled to participate in the singing of a song, be given less protection than a decision to not sing grounded in religion? In both instances a person is being compelled to participate in an activity at risk of sanction despite their personal discomfort, abhorrence and the fact that the activity goes against their beliefs. The important fact ought not to be the nature of the source of objection but rather the fact the individual is being compelled to participate in the activity and take part in a form of expression they object to. Sincerity of beliefs can exist in political ones just as they do in cases of religious beliefs. This piece is not arguing that politics in itself is a form of a religion, instead it is being argued that the distinction is irrelevant when looking at it from a perspective of forced speech/forced expression.

Instead of going down the path of Bijoe Emmanuel wherein the religious source of objection played a central role in the Court’s analysis of freedom of expression, the proposed alternate framework would utilise an understanding of symbolic speech seen in NALSA. The alternate framework would be that, any conduct which communicates an intimate aspect of a person’s identity to society would amount to non-verbal speech (aka symbolic speech). Censorship of such symbolic speech would have to abide by the reasonable restrictions placed on free speech as listed in Article 19(2).

On an application of the proposed alternative framework in the case of the Hijab bans of Karnataka it is clear that the bans are unconstitutional. Muslim women have argued that given the marginalisation faced by Muslims in society, publicly wearing a Hijab is an act of resistance and solidarity. When a person wears a Hijab, they are communicating their religious affiliation through the piece of clothing. The Hijab symbolises that person’s Muslim identity to a viewer, it is not an unclear message as seen by the fact that a major argument against allowing students to wear the Hijab is that it is a religious symbol.

Therefore, it can be easily established that wearing the Hijab is a form of symbolic speech. One of the arguments against allowing the wearing of Hijab is that it creates a law and order situation, which is seemingly proven by the outbreaks of violence in Karnataka, thus allowing the government to justify the restriction on grounds of Article 19(2).  However, a closer analysis of the violence is required. The fact that Muslims were wearing the Hijab by itself, was not a source for violence. It was only after the enforcement of the government order, and the counter-protests, that the law-and-order situation deteriorated.

Hijabs, thus, cannot be equated to “fighting words” (i.e., speech of such nature that, itself, provokes violence and chaos). The more appropriate applicable concept here is the “heckler’s veto”, i.e. if an objector to a certain form of expression is able to cause enough chaos, the state may opt for the easier option of silencing the speaker rather than stopping the violence. The SC has clearly stated in Prakash Jha Production and Anr v Union of India and Viacom Media 18 Pvt. Limited v Union of India, that the state cannot utilise the Heckler’s veto to attempt to silence individuals. The court observed that the state has an obligation to ensure that permissible speech is provided the adequate protection required in order to ensure it is not silenced by threats of causing violence. It has been established that the Hijab is a permissible form of symbolic speech, therefore the state is obligated to protect the wearers of the Hijab.

A final argument may be made that due to the Secular nature of India, it is open for government institutions to prohibit religious attire. However, this line of argument fails to take notice of the fact that Indian secularism has consistently differed from the form of secularism practiced in European countries. The French idea of secularism of state and church being distinct, with religion being a private right with no relevance to the public sphere of the state, is distinct from Indian secularism. In France, any form of religious imagery including turbans are banned in schools, which is completely unlike India where turbans have never been banned in public institutions. Thus, Indian secularism has always seen equidistant involvement of the state with religion rather than maintaining an arm’s-length distance.

Conclusion

An argument against the proposed framework may be made that it would lead to the death of uniforms as a concept as every student would find one aspect of their identity they wished to represent through a deviation from the standard uniform. The common thread between the protests against Vietnam War through black armbands and the Hijab is that the rest of the uniform is followed. There is merely an addition made whilst the student continues to be clothed in the prescribed uniform. In the case of  R (Begum) v  Governors of Denbigh High School the House of Lords rejected the contention of a Muslim student that she ought to be able to wear a ‘Jilbab’ (Muslim full body attire) partially because the school allowed for ‘Hijabs’ and that the school had taken efforts to ensure that the uniform code was ‘Muslim-friendly’. Thus, a line of distinction can be drawn if necessary that deviations of uniform still require that the rest of the uniform be abided by.

In sum, therefore, the Karnataka High Court has an opportunity to continue the growth of a novel jurisprudence of free speech which was germinated in the NALSA decision. The High Court ought to base its ruling on broad-based grounds of free-speech rather than restricting itself to the comparatively narrower grounds of protection of essential religious practices.

The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing

The essential religious practices test [“ERP”] is one of the enduring burdens of Indian constitutional law. Its origins (as I have shown here) lie in a judicial misreading of one sentence spoken by Dr. Ambedkar in the Constituent Assembly Debates. Scholars have criticised it. Judges have expressed discomfort about how it forces them into becoming ecclesiastical authorities (often for religions that are not even their own). And yet, every time a faith-based dispute is brought to the courts, the ERP returns to haunt all of us: like the proverbial betal upon the Constitution’s shoulders, that can only be shaken off upon the peril of being devoured.

On this blog, I have previously criticised the ERP test. While there are good reasons for jettisoning the test – not least that it has no foundation in the Constitution, has been repeatedly demonstrated to be arbitrary, and that other – better – tests exist, in this post I want to make another point: by its very nature, the ERP test is set up to deny and negate individual agency. And there is no better evidence of that than the ongoing – and now suspended – proceedings before the Karnataka High Court, concerning the exclusion of Muslim women students from certain schools and colleges because they were wearing the hijab.

It is important to start by noting that there exist multiple reasons why someone might wear the hijab, and – as in most cases involving community symbols (especially gendered symbols) – these reasons exist along a spectrum between choice and coercion. For some, it may be a defence of a beleaguered identity; for others, an expression of that same identity; for still others, a deference to tradition, or a modus vivendi with family members; or in still other cases, outright coercion. The point is that unlike certain other social practices (say, for instance, the Nazi salute – or, perhaps a closer analogy, the practice of FGM), in our context, the wearing of the hijab is not subject to one specific meaning or interpretation. And it is obviously impossible for the State to investigate every specific instance of someone wearing the hijab in order to determine just how free or unfree that choice was.

Now, given that there might be a range of reasons why someone might wear the hijab, what – specifically – was the reason that came to the fore in the case before the Karnataka High Court? The very first thing that the Petitioners’ counsel invoked was the Quran, and he then proceeded to read from it. Counsel then went on to quote various hadith, according to which “it is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation” (sic), that women’s garments should be “lowered a hand span” (otherwise, punishment would follow), and then a previous Kerala High Court judgment where – on an analysis of these same lines – it had been observed that the practice of leaving the head uncovered (for women) was “haram” in Islam.

We therefore see how, before the High Court, the entire range of complex reasons for why one might wear the hijab was reduced to one overarching claim: that it was a religious command that brooked no disobedience. In other words, a case that – as a matter of fact – was a case about agency and choice (albeit, complex and situated agency and choice) turned into – in law – a case about the absence of choice and the deprivation of agency. The Court was asked to allow the petition because the Muslim women students effectively had no choice in the matter, for the wearing of a headscarf was a compulsory prescription that flowed from religious authority.

Note that this is not meant to be a criticism of either the counsel (for choosing to lead with this argument) or of the judge (for engaging with its on its own terms). The form of the argument was effectively dictated to all the parties by virtue of the long shadow of the ERP. Because the ERP – in the highly perverse manner in which the Indian courts have interpreted it over the years – applies to prohibitions and proscriptions, but not – seemingly – to things that a religion might simply allow – a successful ERP claim literally depends upon first obscuring and erasing the agency of the petitioners before the Court. It needs to be shown to the Court that the petitioners are helpless in the matter, that they have no say or choice in fashioning for themselves the contours of their religious practice, that the possibility of cultural or religious dissent, or pluralism, or heterodoxy simply does not exist.

In the hijab case, it becomes a particular problem, because once the argument is framed this way, it leaves the Court with one of two choices: either to accept the argument and allow the hijab on the basis of a highly dated and expressly misogynistic and patriarchal logic, and create a legal fiction where women have no agency in the matter; or to reject the argument, and in the process, deny the elements of actual agency that are involved here. It is an impossible choice, and – as I have tried to show in this post – it is a choice that is foisted upon the Court because of the ERP test. The ERP test is based upon the fundamental – and anti-constitutional – premise of legitimising the denial of individual agency.

Instead, would it not be better if the argument took the following form?

1. That dress and clothing are aspects of individual and often social expression (especially when it comes to community symbols), and therefore – regardless of whether the motivation to wear them is religious or otherwise – they are protected under the rights to free speech and privacy (as decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.
2. This means that claims of this kind (where the Court is allowed to look into the subjective sincerity of the belief, but not whether it is objectively “essential” to a religion) should be presumptively allowed, subject to the principle of reasonable accommodaiton.
3. That the burden should then be on the authorities to show why reasonable accommodation is not possible in a specific case: i.e., what is it about the hijab (or other aspects of clothing that meet the first prong) that is fundamentally incompatible with public/educational spaces such as schools or colleges.

Rejecting the ERP test for for a test of this kind would allow courts – especially in contentious cases of this kind – to actually respect the agency and choice of the claimants. In that sense, the hijab case presents the quintessentially “good case” before the courts: it is difficult to imagine another case where the problems with the ERP test are so stark and clear, and where the arguments for jettisoning it in favour of a more constitutionally grounded and just approach are so evident. While, for now, the case is in limbo, I’m fairly sure that we haven’t heard the last of this one: a full bench of the Karnataka HC will now consider the issue afresh, and in all likelihood, it will travel up to the Supreme Court. It remains to be seen what the judiciary does now.