Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself. In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?

It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education – with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.” The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.

Introduction

First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam, and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).

Essential Religious Practices

I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter, and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab. Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.

There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion. This is particularly ironic when we think of the right as the “right to religious freedom”; the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.

Freedom of Expression and Privacy

Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.

Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban would suffice, a ban is disproportionate. The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the State (or private party), without the activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.

How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes:

  1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
  2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
  3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.

With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same. This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.

Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”. Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.

But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:

The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.

But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society; what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal), it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect. And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”

Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere. On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.” But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!

Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School, where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:

It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.

The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity; and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!

In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all. On page 105, the Court notes:

An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.

But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.

Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.

Non-Discrimination

Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.

In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.

Addendum: A Case of Conscience

From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.” It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.

Conclusion

There are two important things to note, by way of conclusion.

The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:

It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.

The scope, thus, is limited to classrooms.

Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it misapplies the reasonable accommodation test, and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly, it wrongly elides freedom of conscience and religious freedom. This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach is more consistent with our Constitution.

33 thoughts on “Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment

  1. What is the “derivative right” being referred to by the Court is unclear from the Judgment. Further, even assuming that the case of the Petitioners was founded on a right deriving from a Fundamental Right (a derivative right), on what basis does the Court hold that since the claim is based on a derivative right the same amount of protection would not be available and that since it is a derivative right, the proportionality test won’t be applied to determine the reasonability of the restriction. One would assume that if a particular right derives from one of the fundamental rights, all consequences of the said FR would follow. Further, even assuming the absurd proposition that the protection accorded to derivative rights would be to a lesser degree to be correct, still don’t see how principles to determine whether a restriction of the right is reasonable (like the proportionality test) would be inapplicable. Suppose the Court applied the proportionality test, it would not have been able to skirt the issue of reasonability of the restrictions imposed by uniforms by making vague assertions regarding the importance of uniforms. Rather it would have had to rigorously analyze: (i) the purpose/legitimate State aim sought to be achieved through uniforms; (ii) whether restricting the choice/autonomy to decide one’s attire is reasonable keeping in view the objects sought to be achieved through uniforms; (iii) if so, to what extent can such restriction reasonably extend i.e., what all would have to necessarily be included in a uniform code (as a minimum) in order to substantially meet the avowed object while imposing the least possible amount of restrictions on a person’s right to choice; (iv) would a prohibition on headscarfs/hijabs be something which would have to necessarily be included in the uniform code in order to meet the underlying object sought to be achieved by imposing uniforms? None of these issues have been touched upon in the Judgment.

  2. By the same analogy :
    1. Saffron Shawls will be protected
    2. Namaz in classrooms can be protected & maha-aarti too


    You are not clear how prescription of uniform is an unreasonalble restriction on FoE

    • On (1), I think that there is nothing wrong with saffron shaws being protected.

      On (2), namaz or maha-aarti in the middle of teaching obviously will not be protected, as that interferes with the literal imparting of education. However, if namaz or maha-aarti is being offered in the break or between classes, then again, I see nothing wrong with it.

      On your final point, the argument is not that *prescription* of uniform is an unreasonable restriction on FoE – the argument is that the refusal to grant *reasonable accommodation* is what is unreasonable.

      • If I may add to this an example – in government run and government aided schools in Kerala, the lunch break on Fridays are near two hours as opposed to the normal breaks of 45-60 minutes. This is meant to reasonably accommodate Muslim boys who are to offer namaz at the mosque on Fridays (which is considered a sacred day of worship).

    • But the court should have stated which reasonable restriction it is applying to curtail this freedom, right? You do realise that FoE can’t be curbed without tracing such curtailment to some ground under 19(2), don’t you. Not sure, where that analysis has been done in the Court’s order.

  3. Framing a question on how a question has to be framed itself is a circular logic. The author is making his argument in subterfuge. The three questions the Court framed for itself makes legal sense. First, the Court is right in asking itself , that whether wearing hijab, is a fundamental religious practice that the State’s intrusion would violate the establishment directive of the Constitution. The court framed the question this way because, the petitioners pleaded primarily the State’s order as an intrusion into their religious freedom. On the argument that the wearing of hijab is a freedom of expression, the Court addressed this in its second question that Uniform prescription of uniform (pun intended) intrudes on the symbolic speech of wearing hijab. The third question is administrative and every Court dealing with Constitutional issues has to address that.

    • I didn’t object to the first or third question. My objection is to the second question, because nobody claimed that a uniform can’t be prescribed at all. The claim was that allowing for reasonable accommodation in the context of uniforms is consistent with the overall goal of imparting public education.

  4. Under the pretext of freedom of agency, you are actually facilitating the uglier underlying fact that muslim women may be socially getting compelled by their families or society to wear the hijab, rather than a so called genuine issue of free will and conscience.
    So many points in this blog fails for that reason. It is not america we are talking about.

  5. With your logic, one can even justify burqa or dhoti in school classrooms. The argument of proportionality is subjective and should not be used as a fault-line in promoting vested interests.

    Below is the conclusion of much discussed Begum case that you (and the bench) talked about:
    “The Begum case illustrates that state school uniform policies in England do not have to accommodate a pupil’s requirements to wear religious dress. The House of Lords held that there was no infringement with a pupil’s right under Article 9 of the Convention if they could attend another school which accommodated their religious beliefs and that there was also no infringement of Article 2 of the First Protocol.”

    Shabina Begum had lost this case and the court had ruled that schools can dictate their uniforms. The fact that this school allowed hijab was really an incidental part of the whole case. But you made your whole argument based on that. You complained that the high court bench selectively used excerpts to justify their argument, you yourself are doing that. In fact, Begum’s counsel had used hijab to justify allowing jilbabs. Look at the argument:

    “In criticising the school’s decision, Booth (Begum’s counsel) argued that the uniform policy was undermined by Muslim girls being allowed to wear hijabs (in the colour of the school uniform) as this identified the wearers as Muslim and so it would have made little difference to allow the wearing of jilbabs in the same way”.

    The England court had appreciated the fact that the school considered uniforms after consulting local mosques even though it is not required. In the Karnataka case too, the school did include local mosques (Okkuta) to resolve the issue before things went awry. The Okkuta had advised the girls to take off the hijab in classrooms but they refused to relent.

    • It does not follow from my reasoning that the burqa and the dhoti are automatically allowed. The point of “reasonable accommodation” is precisely that it needs to be judged on a case to case basis. This is evident from the Court’s own distinguishing of a nose stud (ocularly insignificant) from the hijab, which shows that it is actually fully possible to differentiate between cases. In fact, there are very good reasons for disallowing the burqa, since the burqa is far more unambiguously a symbol of patriarchal control than the hijab. As for the dhoti, I actually don’t see why it shouldn’t be allowed.

  6. The post is arguing that the decision by the government to ban hijab is wrong. Probably many reasonable people agree. But the question is is it unconstitutional. To give uniformity precedence over education may be ill advised but I don’t see why it is unconstitutional.

    • Also, supposing a muslim wants to practice slavery (since slavery is also heartily recommended in the Quran), can that be allowed? Not just in school, but anywhere?
      This article/blog is approaching the issue as though a hijab is nothing more than cultural preference/expression/a piece of cloth, but the doctrine of hijab is that believing women are supposed to distinguish themselves from non believers by not allowing their bodies to be visible. So, by implication, non believers and non muslims are tarred as sluts. This is the malefic thinking behind the doctrine of hijab.

    • I’ve argued that it is unconstitutional because our jurisprudence now recognises reasonable accommodation in cases of claims to gender or religious freedom, which the ban ignores.

      • Surely what is “reasonable” is somewhat subjective. It can be argued (by otherwise reasonable people) that allowing hijab is not “reasonable” accomodation. I do not see it as a very clear cut situation – unlike triple talaq. I think in this case to say that the judgement is unconstitutional is not warranted. I could say that “in my opinion the judgement is regressive”.

  7. It was using these same principles that the court prevented the use of firecrackers and overturned the ritualistic requirements at sabarimala. Then you didn’t feel the need to argue in this fashion, which would lead to very contrary conclusions, yet Chandrachud could deny Hindus their basic rights. The utter hypocrisy and fear of application of principles by the “constitutionalists” is destructive to the republic and religious rights of Hindus

    • (a) I’m not sure how the issue of firecrackers is relevant to this case, as it was never argued on a religious freedom basis.

      (b) Sabarimala is a different case, because the practice there was directly *exclusionary* to the women involved. The hijab issue does not involve exclusion. The Sabarimala case is closer to the Haji Ali Dargah case – where again, the practice of excluding women from a religious space was struck down by the Court – rather than the hijab case.

      • 1) The firecracker case was filed by children worried about air pollution and the supposed fright of their pet animals which easily overrode the religious rights of Hindus in offering ulka danam to light up the sky paths for their ancestors. The case looked specious and flimsy, yet the SC could not grant Hindus their primary and fundamental religious right whereas here you look for excuses to promote dresses to fundamental rights! Suddenly you invoke proportionality and “objectives”, something which never seems to come up when it comes to Hindus.
        This way there can be no laws, let alone uniform application of laws which society requires. Or do you want to suggest thatthe law should not apply to Muslims?

        2) It was argued that the sabarimala cult requires the absence of a class of women from the premesis(clearly an essential practice from the ritual manuals), which was not considered a primary religious right at all just on the remonstrations of women who were not even followers of the cult, whereas you want to award that consideration to muslims just for a dress that could not be proven to be an essential practice.

        The judges who are of similar mind to you invoked such arbitrary principles to deny Hindus their religious rights. Anyway, nothing much can be expected from judges given to cosmic pretentions whose minds probably do understand the full implications of their sentences, if their productions have any meaning or consistency at all.

  8. On point (1), once again I am asking for the judgment where these contentions are raised and analysed, so that an adequate comparison can be drawn to the present judgment. The claim of inconsistency can’t really stick without some record to go by.

    Re (2) Sabarimala, the claim of there being special dispensation for Muslims is disproved by the fact that in the case that is actually the closest analogy – Haji Ali Dargah – there was the exact same outcome, and Muslim women were allowed to access the inner sanctum from the Dargah. However, if you’re intent on claiming that there is a pro-Muslim, anti-Hindu bias at work here, and everything written above is in bad faith, then there’s nothing more to be gained by discussing this further. Cheers!

    • I am not here to worry about what happened in the case of Haji Ali dargah. That is for devotees of the dargah to outline to the court and I agree the judgement could be against Muslim belief, though no one could show based on the Quran and Hadith that it was indeed so.
      My point is the selective and seemingly random invoking of “higher principles”, “constitutional morality” in cases pertaining to hindus. These principles do not occur in the judgements of cases involving other religions. Also, you seeking the judgement for comparison means there is more than an element bof analogical thinking in the judiciary(distinct from precedence) which is deeply pernicious, allowing of vague terms like the living constitution, morality which can conveniently be abused.
      My contention is that religious freedom cannot be superseded by the principle of exclusion or even women’s rights. As the shrine of the cult was of the believers, essentially a private space and forcefully grabbed by the government solely for the funds it attracted. That itself was a violation of religious freedom, since in the absence of a religious book, the ritual manual must inform the conduct of actions in the shrine. The court did not accept non written praxis instead insisting on a set of written beliefs to apply it’s ever shifting interpretations of the buzzwords associated with the current fads amongst the whites. That way the way of life of unique tribes could never get the protection of the courts if womens rights were applied on all and sundry. In fact, the mimansa religion too doesn’t have any beliefs, the only principle being that the correct performance of ritual itself even without grasping ithe meaning of the word is sufficient religious activity. This subtle notion of religion is not even admitted as a religion(in the Roman, Greek or Hindu sense) by the courts even though they claim the legacy of those hoary civilizations.
      The principle of exclusion or inclusion or chandrachuda insistence that religious rights must conform with constitutional morality is harebrained. Religion is the core of civilization and the constitution cannot arrogate the right to meddle with things way deeper and profounder than itself.

  9. The problem is forget about dhoti or other symbols, there can be a demand for wearing uniform colored panchagachams, and it according to the reasonableness doctrine will be ok. Actually a generation ago teachers used to wear panchagachams. It will not be an unreasonable ask in a pluralistic society. The arguments are made under a tunnel vision of accommodating a demand. The Courts second question may be broad in its contour, but the foundation is not wrong. If Hijab is a symbolic speech then what are the limits on its expression. The Freedom of expression and Right to Privacy are not absolute rights in any jurisprudence and limits can be enforced. The O’Brien four part test is applicable in the Indian context too, because the symbolic speech expression is not absolute. The court is asking itself , whether the ban is justifiable. The least restrictive means will fail because , the solution is only full allowance, there is no middle ground, and the author leads us to believe the color choice is an option, but it is not. It is a only a cosmetic change (pun intended). The threshold question is, whether hijab in itself is a symbolic speech. To be considered as such , the hijab should convey (1) an intent to convey a particular message; (2) taking into totality of circumstances, there is substantial likelihood that the message will be understood by those who view the symbol. In United States , the Supreme Court recognized as symbolic speech an arm band wore in protest in Tinker v. Des Moines Schools and that arm band was in protest against Vietnam War. I do not see any such symbolic expression here. If the pleading is on right to privacy, it way weaker than freedom of expression and Uniform would triumph in a school setting. Most importantly Schools are not free speech zones. The author seems to forget that. That is what the court meant by quasi public forums. A school is not even an University in that sense. Courts have consistently held that school authorities have deference in how they maintain the school atmosphere including outright ban on speech by students. Further in a public forum or a quasi-public forum like school , least restrictive alternative analysis need not be the test , my guess is the court is considering the quasi-public forum similar to the “limited public forums” in US jurisprudence and in that case the government can have , reasonable -viewpoint neutral restrictions.

    • This is basically a slippery slope – or the proverbial parade of horribles – argument. But there is no warrant for suggesting that allowing of the hijab in this case means that tomorrow every conceivable claim of accommodation necessarily has to be allowed – in fact, as I’ve mentioned in my post, the Court itself shows that it is capable of making distinctions between accommodations when it says that a nose-stud can be allowed because it is “ocularly insignificant.” That shows that it is fully possible to a draw a line – only that in my view, “ocular insignificance” is not the correct place where to draw it.

  10. Yes it is a slippery slope and yet it is not. For example, Hindu scripture, Sadacharam and other materials clearly prescribe a dress code, at least I know for the brahmins, so should the state (school) accommodate that under the freedom of religion, whatever prescription that is in the religious scriptures. This is a much stronger argument because it can be construed as an essential part of the religion, but clearly we do not do that, and I am sure the court will not allow it. I want a pluralistic society where the kids can express themselves freely under a broad, albeit reasonable boundaries in the school. However that is a social change that should come from the ground, not through courts. I completely disagree that there can be a bright line here, only case be case analysis is possible because in a pluralistic society, there are many interests that needs to be accommodated. For example , we do allow sikh students to wear turbans, because it is so essential to their religion. Even for that ,there can be counter that many sikhs do not wear turbans and hence it is not essential. I think your blog is thought provoking and I am glad I landed on it by accident. I will end my arguments on this blog and thank you for doing this. I will be reading this blog on a regular basis.

  11. Thank you for your concise summary of why the decision is problematic in many ways.

    One aspect which is particularly shaky is the primacy afforded to uniforms themselves. Not all countries have schools that prescribe school uniforms; surely they cannot be said to be anti-education. It is risible to me that education (a fundamental right) is held to be impossible to impart in the absence of uniforms (a mere private/semi-public rule).

    I well remember that in most schools I attended, a child whose birthday it was, was informally exempted from wearing uniform for that day, and further was permitted to distribute toffees to their classmates, even in schools that used to inspect the children every morning and rebuke them for scruffy or unpolished shoes.

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