Guest Post: The Hijab Judgment and the Meaning of Constitutional Secularism

[This is a guest post by Karan Gupta.]


Numerous questions arose consequent to the recent ban in Karnataka on students wearing a hijab over a school uniform in classrooms. Some resolution was brought to the dispute on 15 March 2022, when a three-judge Bench of the Karnataka High Court dismissed the petitions challenging the ban. The High Court adopted a narrow path to reach its conclusion – that wearing a hijab is neither essentially religious nor is it an essential religious practice. To the Court, the ban, though touching upon the right to privacy, autonomy, and agency, is a constitutionally permissible restriction.

Some authors have commented on the judgment from different angles (see here, here, here, here, and here). I will focus however on the Court’s reasoning and conclusion which rests on India’s commitment to secularism. In unpacking the arguments raised, I argue that the Court committed itself to operationalising secularism through an equality lens which views all individuals as abstracted from society. This lens prioritises uniformity, assimilation and sameness within the arbitrarily identified ‘quasi-public space’ of a classroom, as opposed to viewing individuals as shaped by distinct identities and consequently prioritising the recognition, protection and celebration of plurality.

Secularism – Two questions

In unpacking how the case sets the stage for secularism as a cause of concern, let us consider two roughly separate questions – what is secularism and how is it operationalised/achieved? 

On the first question, I suggest reading the Petitioners’ argument in the following manner: first, India is committed to a “positive” secularism which entails religious diversity, pluralism, and toleration; second, under the Indian Constitution, though the state is not anti-religion, the Constitution proscribes state action which discriminates against individuals on religious grounds.

On the second question, I suggest reading the Petitioners’ argument in the following manner: first, operationalising secularism includes recognising, protecting, promoting, and celebrating diversity and proscribing any action which homogenises and erases diverse identities; and second, flowing from the previous, where state action indirectly discriminates against an individual on the basis of religion, there is a duty of reasonable accommodation. The argument then was that positive secularism, understood as religious diversity, pluralism, and toleration, is operationalised through recognising and protecting diversity through the implementation of the non-discrimination duty.

The Court accepts the Petitioners’ arguments on the first question (what is secularism) and rejects the arguments on the second question (how is secularism operationalised). It is worth unpacking this in some detail.

Individuals and Identity

The Court accepted that India is committed to positive secularism, which is “not antithesis of religious devoutness but comprises in religious tolerance” (p. 42). It also accepted that secularism, as a basic feature of the Indian Constitution, places upon the state a duty to not discriminate against anyone on the basis of religion. (p. 42). The Court cited Chief Justice S. R. Das’ (as he then was) observations in Re: Kerala Education Bill that India has welcomed diverse creeds, cultures and races, the observation in S. R. Bommai that India, as the ‘world’s most heterogenous society’ celebrates its rich heritage through accommodation and tolerance, as well as the Supreme Court’s observations in Indira Gandhi v Raj Narain that the basic feature of secularism is that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion (p. 40-42). So far, so good. The crucial move however, which touches upon the second question, came immediately thereafter.

The Court recorded that “it is pertinent” that the Constitution imposes a Fundamental Duty to promote harmony and the spirit of common brotherhood transcending religious, linguistic and regional or sectional diversities (p. 42). The Court observed that this duty is as also found in the Karnataka Education Act 1983 Act, which empowers the State to act in a manner to “inculcate the sense of this duty” and “cultivate a secular outlook” (p. 97). The move here is crucial. To the Court, the commitment to secularism (or as the Court frames it – ‘a secular outlook’) is operationalised/achieved by transcending religious diversities. And how should this be done? The Court answered – through equal treatment that is not informed whatsoever by religious identities or claims. As long as all individuals are treated equally(i.e., in the same manner), and no space is accorded whatsoever for religious claims, the actions aid in transcending religious diversities and are constitutionally protected (p. 95-97). To the Court, any religion-sensitive treatment undermines the constitutional duty to transcend religious diversities, and by extension undermines the commitment to secularism.

This, I argue (with respect), is problematic.

Individual identity is shaped by their membership of groups across different axes – nationality, religion, language, caste, colour, creed, etc. There is a critical difference between an identity axis as the basis for autonomy, agency, and self-actualisation as compared to an identity axis as the basis for prejudicial and degrading treatment based on group membership. This view of equality is sensitive to the reasons and effects for which the identity axis is employed. If race is employed as the basis for actions which result in recognising and redressing past disadvantage, or addressing structural inequality, this would arguably be permissible. However, if race is used as the basis for actions which perpetuate unfair treatment and stigmatisation, these actions would be suspect. It recognises, protects, promotes and celebrates a claim arising out of an identity axis when it furthers individual liberty and proscribes state action where it perpetuates unfair treatment.

For instance, the former explains the Constitutional guarantee that any section of citizens having a distinct language shall have the right to conserve the same (Art. 29) as well as the enabling provisions empowering the President to direct that a language be officially recognised throughout a State if a demand is made by a substantial proportion of the population of a State (Art. 347). The latter explains the constitutional guarantee that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion (Art. 29.2). This also explains the co-existence of the constitutional guarantee to the freedom of conscience and the right to freely profess, practise and propagate religion (Art. 25.1) and the provision enabling the state to make law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice (Art. 25.2). The distinction based on the reasons and effects recognises that an identity axis (say language and religion) may at an individual level be founded in autonomy and agency, be deeply constitutive of individual identity, and be worth protecting. The distinction also recognises that identity axes have historically been the basis of prejudicial and degrading action, requiring constitutional non-discrimination guarantees on their basis.

The Court overlooked the above difference. To the Court, any claim grounded in or arising out of religion, whether based on autonomy, privacy, and choice or to recognise and redress past disadvantage and prevent its perpetuation, is impermissible. To the Court, transcending religious diversities (which is how secularism is operationalised) entails viewing every individual, not as located at the cross-currents of distinct identities and group memberships, but as a unit abstracted from society. Social structures, power imbalances, past and present practices are all irrelevant so long as the action under challenge treats all individuals equally(i.e., in the same manner). Even if the action under challenge results in unfavourable treatment, exclusion, or relative group disadvantage, the same is sustainable as long as every individual has been treated equally.

Notice how the above view is often the basis of the argument against reservations. In adopting the ‘equality as symmetry’ view, the argument runs that any differential treatment, even if explained through recognising and redressing past disadvantage, constitutes preferential’ treatment, which is impermissible. The Court adopts this view of equality as symmetry and sameness in contrast to an equality which is sensitive to social structures, power imbalances, past and present practices.

Armed with the view that secularism is operationalised by transcending religious diversities, and that this entails treating all individuals in the same manner, the Court concluded that the State is right in its argument that the prescription of a dress-code (even if to the exclusion of hijabs), being “religion-neutral” and “universally applicable” cannot be called into question as it operationalises constitutional secularism (p.39, 96). As every individual is a unit abstracted from society, the prescription of a dress-code, in so far as it treats “all the students as one homogenous class, serves constitutional secularism” (p. 96).

An (undesired) solidarity of sameness – indirect discrimination, reasonable accommodation, and public spaces

The Court’s reasoning from the above may be deduced thus:

  1. Indian is committed to positive secularism, which entails religious diversity;
  2. Operationalising secularism involves a duty to transcendall religious diversity;
  3. Religious diversity can only be transcended by abstracting individuals from the ebbs and flows of societal structures and treating allindividuals in the samemanner; and
  4. Any differential treatment, based on religious identities or claims, will undermine the constitutional commitment to secularism.

This above line of reasoning sets the stage for the Court to address (and reject) the Petitioners’ arguments on indirect discrimination and reasonable accommodation. The argument was two-fold – first, proscribing hijabs within classrooms, in so far as it prejudicially affects only women, amounts to ‘gender–based’ discrimination which Article 15 does not permit (p. 28); and second, where facially neutral regulations have an adverse impact on one gender or one religion, a commitment to substantive equality places the burden of reasonable accommodation on the State – i.e., where there is no undue burden/hardship, the state must take steps to accommodate the claim (p. 29).

These above contentions were however decidedly at odds with the Court’s understanding that any action is protected as long as it treats all individuals equally(in the same manner) in furtherance of the secular commitment to transcend all religious diversities. Thus, the Court’s rejection of the Petitioners’ arguments rested comfortably on its own understanding – “when the dress code is equally applicable to all the students, regardless of religion, language, gender or the like”, there is “absolutely no scope” for a challenge on discrimination (p. 100).

The Court then went one step forward and took the reasoning to its logical conclusion and rejected the argument for reasonable accommodation. The Court held that if the Petitioners argument was accepted, there would be two classes of students – those who wear a hijab and those who do not. To the Court, the object of prescribing a uniform (i.e., ensuring uniformity, transcending religious diversities, and homogenising) would be defeated if there is “non-uniformity in the matter of uniforms”.  And thus, if the Petitioners’ arguments were accepted, the uniform “ceases to be uniform” (106). The next observation is crucial. The Court noted that “this would establish a sense of social separateness, which is not desirable”. The Court noted that as young children are highly impressionable, and grasp the “differentiating lines of race, region, religion, language, caste”, proscribing hijabs creates a “safe-space where such divisive lines should have no place” (107).

Notice the emphasis on the object of prescribing a uniform within educational institutions, and specifically classrooms. This is not piece-meal, but animates the entire judgment. Something must explain the Court’s acceptance of India’s commitment to a positive secularism which entails religious diversity and plurality and at the same time be averse to the visibility of that diversity within classrooms. This distinction between a public space generally and the public space of a classroom is explained in the Court’s acceptance of the State’s argument that educational institutions are ‘qualified public spaces’ (p. 32). The Court concluded that: first, schools are qualified public spaces predominantly for imparting education; second, imparting education implicitly includes discipline and decorum; third, given the qualified nature of the space with a demarcated primary goal, substantive rights “metamorphise into a kind of derivative rights” and must give way to the primary goal (p. 100). With this, the Court concluded that by “no stretch of imagination” can it be said that the prescription of a dress-code offends the right to expression or autonomy (p. 100). The Court cements its distinction between public spaces and the qualified public space of the classroom by concluding that women “can wear any apparel of their choice outside the classroom” (p. 124).

With respect, the Court’s reasoning on the above front is inadequate. First, there is no explanation whatsoever on what demarcates a ‘space’ as a qualified public space. For instance, why are only classrooms carved out, as opposed to the entire school premise itself? Second, the arbitrary demarcation of ‘qualified public spaces’ would open the floodgates to arguments that all substantive rights are nothing but derivative rights within such qualified spaces which must give way to the primary objective with which those spaces are demarcated; third, the Court offered no justification as to why secularism may be operationalised differently within a classroom as opposed to outside it. To me, the only explanation is the Court’s notion that it is mostly young impressionable students (p. 107) who are within classroom and as operationalising secularism is solely understood as transcending religious diversities, students should not be allowed to “readily grasp” the “differentiating lines” of religion. But this is again not helpful as there is no explanation as to why transcending religious diversities operates in this specific manner within classrooms only and why the logical conclusion is not that religious diversity and plurality must be eliminated from all public spaces which are equally accessible to ‘young’ and ‘impressionable’ children.

There is yet another worrying premise in the reasoning – that seeing difference and diversity is problematic and does not serve constitutional secularism. To the Court, transcending religious diversities entails that such diversity should not be seen in the public space of a classroom, as these would create separateness. Recall here that one basic premise of critical race theory is that ‘colour-blindness’ or not seeing race for any context and in public spaces is in reality a technology of power to prevent the redressal of past disadvantage or celebrate diversity in the name of universalism. At its base, colour-blindness (and by extension religion-blindness) obscures the distinction I noted above which touches upon the reasons and effects for employing an identity axis and treats any action based on an identity axis as impermissible. The Court adopted a similar premise and held that constitutional secularism is served by eliminating any plurality in the public space which (to it) may cause social-separateness.

The Court however overlooked the importance of seeing diversity and locating every individual within their societal structures and power hierarchies. It (regrettably) accepted that transcending religious diversity entails suppressing and turning a blind-eye to any religious plurality within the classroom as a public space. In accepting that students should not see diversity, and that uniformity and assimilation is the core ideal, the Court committed itself to a universalism that is erroneously structured on the solidarity of sameness, rather than the dynamics of celebrating difference and plurality. In doing so, the Court operationalised secularism by arbitrarily carving out a ‘qualified public space’ and effectively suspending the right to freely profess, practise and propagate religion.

Conclusion

The Petitioners’ argued that a commitment to positive secularism was operationalised through protecting, promoting, and celebrating diversity, while the State argued that the commitment was operationalised by transcending all religious diversities through equal treatment, homogenisation, assimilation and the removal of any plurality from public spaces. Ratna Kapoor was right to caution over two decades ago that ideological battles are waged not “in opposition to secularism, but in and through it”. The Court vindicated this when it recognised that both sides equally emphasised secularism to buttress their arguments (p. 39).

In failing to recognise that the reasons for and effects of employing an identity axis are relevant, the Court accepted the argument that secularism is operationalised/achieved through an equality lens which views all individuals as abstracted from society and prioritises uniformity, assimilation and sameness. In a bid to achieve this, it also abandons its own observations on the first question of what constitutes secularism.

It is ironic that the Court recognised that India is a “sanctuary for several religions, faiths & cultures that have prosperously co-existed” (p. 40). It is also ironic that the Court quoted the words of Rabindranath Tagore that “none shall be turned away from the shore of this vast sea of humanity that is India”. It is not ironic however that a secularism which accommodates, celebrates and nurtures plurality and diversity has been rejected. It remains to be seen whether the Supreme Court will take note of the two questions on secularism as well as the distinctions urged above and arrive at a different conclusion.


[All views are personal]

2 thoughts on “Guest Post: The Hijab Judgment and the Meaning of Constitutional Secularism

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