Discipline or Freedom: The Supreme Court’s Split Verdict in the Hijab Case

Today, a two-judge bench of the Supreme Court delivered a split judgment in Aishat Shifa vs State of Karnataka, popularly known as the “Hijab Case.” Petitioners appealed the judgment of the High Court of Karnataka, which had upheld a ban on the hijab in various State-run educational institutions. At the Supreme Court, Justice Hemant Gupta wrote a judgment agreeing with the High Court and upholding the ban, while Justice Sudhanshu Dhulia wrote a judgment overruling the High Court, and striking down the ban. The immediate upshot of this is that the Chief Justice will now have to constitute a larger bench to determine the issue. In the meanwhile, the High Court judgment continues to stand, and, therefore, the ban on the hijab continues to be in force as well.

The Judgment of Hemant Gupta J.

Previously on this blog, I had examined the High Court judgment at some length. I had noted at the time that “a close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page.” Lurking behind the High Court’s judgment was the unarticulated belief that allowing the hijab would open a floodgate that would end in the destruction of the very idea of a uniform, without which education was unimaginable. It was this belief that informed the Court’s analysis of the constitutional rights to freedom of conscience, speech, and privacy, and led it to effectively hold that these rights were either inapplicable, or only weakly applicable in “qualified public spaces” such as schools, and in any event, were subordinate to the overriding logic of the uniform.

A few months down the line, the spectre of the uniform appears to have traveled from Karnataka, and now haunts the pages of Justice Gupta’s judgment. A reading of the judgment reveals that Justice Gupta’s response to virtually every argument advanced by the petitioners is: “the uniform!” Article 25 and the freedom of conscience? The uniform! Article 19 and the freedom of expression? But, the uniform! Article 21 and the right to privacy? Most verily, the uniform! All moral and constitutional values have come to repose in the uniform: it is a marker of formal equality (“uniformity”) under Article 14, which – in turn – justifies the restriction of the freedom of conscience under Article 25, as that article is subject to the other provisions of Part III (paragraph 87); it is the basis of permissible “regulation” of Article 19(1)(a) (paragraph 144); and the “homogeneity” of the uniform discourages sectarianism and encourages constitutional fraternity (paragraph 154).

Clearly, however, it is not the uniform itself that is doing the moral heavy lifting in the judgment. Dig a little deeper, and you find what really animates Gupta J: it is the idea of discipline. The word “discipline” occurs twenty-two times in the judgment, in varying contexts, but most commonly in the precedent the Gupta J. elects to cite, and in his own analysis. And it occurs with particular frequency in the neighbourhood of the word “uniform”, with Gupta J. stressing – on multiple occasions – how discipline (and even, once, “discipline and control!”) cannot exist without a uniform. Gupta J.’s depth of feeling for discipline is revealed in one particularly extraordinary passage, where he notes that:

Discipline is one of the attributes which the students learn in schools. Defiance to rules of the school would in fact be antithesis of discipline which cannot be accepted from the students who are yet to attain adulthood. Therefore, they should grow in an atmosphere of brotherhood and fraternity and not in the environment of rebel or defiance (sic). (paragraph 188)

We should, perhaps, be thankful that this grim, bleak, and joyless vision of the school will always be far from reality, and that wherever there will be teenagers, there will be “rebel or defiance”, notwithstanding the efforts of sergeant-teachers or of disciplinarian Supreme Court judges. But be that as it may, the real problem here is that in his enthusiasm to prescribe discipline and stamp out “rebel or defiance” in the “pious atmosphere of the school” (paragraph 193), Gupta J. forgets to apply the law. So, while the word “discipline” occurs twenty-two times in the judgment, the word “proportionality” – which is the legal test to determine when the State’s infringement of constitutional rights is justified – occurs a grand total of zero times. In a truly highlight reel moment, Gupta J. holds:

The intent and object of the Government Order is only to maintain uniformity amongst the students by adherence to the prescribed uniform. It is reasonable as the same has the effect of regulation of the right guaranteed under Article 19(1)(a). Thus, the right of freedom of expression under Article 19(1)(a) and of privacy under Article 21 are complementary to each other and not mutually exclusive and does meet the injunction of reasonableness for the purposes of Article 21 and Article 14. (paragraph 144)

Apart from the fact that the last sentence makes no sense at the level of the sentence, in this single paragraph, Gupta J. disposes of the Articles 19(1)(a) and 21 arguments with the familiar answer “but the uniform!” “But the uniform!”, however, is not a constitutional test, and it is certainly not the constitutional test of proportionality that – in accordance with precedent – is binding upon Gupta J., if he wishes to hold that State action meets the “injunction of reasonableness.” Equally erroneous is his (repeated) holding that the uniform furthers the goal of Article 14 because it is about “uniformity”: the proposition that Article 14 of the Constitution requires “uniformity” has never been the jurisprudential position since 1950, and at any rate, is most certainly not the jurisprudential position after the Supreme Court’s landmark judgments in Navtej Johar and Joseph Shine: it is – to use a word beloved of lawyers – trite to say that the Indian Constitutional approach to equality, in 2022, is contextual and substantive: it focuses on issues around structural and institutional disadvantage, and their remedies.

Thus, once “uniform” (not a constitutional test) and “uniformity” (not the right constitutional test) fall away, Gupta J.’s judgment does not have a leg to stand on, and falls away along with them.

The Judgment of Dhulia J.

In stark contrast to Gupta J., the judgment of Dhulia J. commences at a different starting point, asks a different set of questions, and – unsurprisingly – arrives at a very different answer. There are four facets of this judgment that, in particular, deserve to be highlighted.

The first is Dhulia J.’s treatment of the essential religious practices [“ERP”] test. As I have argued previously, in this case, the ERP test presented the petitioners with a fundamental dilemma: on the one hand, the case was pegged as being about constitutional values: the freedom of expression, conscience, and choice, of the Muslim women students who wished to wear the hijab. To put it in one word: agency. On the other hand, pegging the case on the ERP test would – by definition – erase agency. To show that the hijab is an “essential religious practice”, one would have to show that it is mandated by Islam, an injunction that leaves no room for choice or agency.

Before the High Court, petitioners made extensive submissions on the ERP test, and indeed, a major prong of the High Court’s judgment is its finding that the hijab is not an ERP. Before the Supreme Court, the position was different: while some of the petitioners (now appellants) continued to nail their colours to the ERP mast, others avoided it altogether, and focused instead on expression, choice, and conscience.

Justice Dhulia’s judgment deals with the ERP test in a fascinating way. He notes that the test – while indisputably a part of India’s religious freedom jurisprudence – is inapplicable to the present case. Why? Because, on a survey of the history, Dhulia J. finds that the ERP test has been historically used when the issues turn around the managements of religious property, or the invocation of group rights against the State. In this case, however, what is at stake is an individual right (to wear the hijab) against the State. For Dhulia J., in such a case, ERP is inapplicable, for the reason that in any religion, there will be different views on what religious doctrine truly means, and it is not the Court’s remit to privilege one view over another (paragraph 36).

It is impossible to overstate how vital a finding this is. One of the most pernicious facets of the ERP doctrine is how it completely erases the very possibility of religious dissent, and religious pluralism. It requires the Court to make a determination that a particular doctrine is “essential” to a religion or not, and in doing so – inevitably – the Court relies upon the dominant viewpoints within the religion (by looking at religious books, the opinions of “authorities”, and so on). Indeed, this is starkly evident in Gupta J.’s judgment, where he spends reams and reams of pages reading the Quran to try and figure out if the hijab is truly essential or not. For Dhulia J., on the other hand, the question of ERP is simply irrelevant where an individual right is at stake. There, all that matters is the sincerity of belief (paragraph 34). And this is another crucial shift, because what it does is to prioritise an individual’s subjective understanding and articulation of their religion, over the diktats of religious “authorities.” In other words, in one stroke, Dhulia J. rescues agency from the talons of the ERP test. If – and this is a big if – this finding is upheld by the larger bench, it would signal a quiet – and desperately needed – revolution in our ERP jurisprudence.

This finding then allows Justice Dhulia to move on from ERP, and – instead – make the freedom of conscience, and the landmark judgment in Bijoe Emmanuel, the centrepiece of his analysis. This is the second important aspect of his judgment. Recall that in Bijoe Emmanuel, the Supreme Court had permitted three students – who were Jehovah’s Witnesses – to refrain from singing the national anthem in their school assembly, as long as they stood in respectful silence while it was being played. Dhulia J. finds the situations to be analogous: and he, in turn, invokes Bijoe Emmanuel to locate the principle of “reasonable accommodation” (which Gupta J. rejects out of hand) in Indian constitutional jurisprudence. Thus, for Dhulia J., Bijoe Emmanuel is authority for the propositions that, first, the threshold to trigger Article 25(1) protection is simply a case of conscience, and that secondly, once that threshold has been triggered, there is a right to reasonable accommodation of difference.

What of the reasonableness in this particular case? This brings us to the third important facet of the judgment, and to Dhulia J.’s fundamental disagreement with Gupta J. Recall that for Gupta J., State action was reasonable because it was in the service of the uniform, and of discipline. Dhulia J.’s disagreement could not be starker or more unambiguous: “not discipline at the cost of freedom, at the cost of dignity” (paragraph 52). Freedom and dignity are constitutional values, and this allows Dhulia J. to hold:

Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person even inside her school gate or when she is in her classroom. (paragraph 52)

Indeed, a very different picture of the classroom emerges in the judgment of Dhulia J.: a space where the governing value is not discipline but freedom, and where the idea of fraternity requires us to embrace and express our differences, rather than flatten and erase them (paragraph 71).

The final important facet is perhaps the most basic of all: education. Dhulia J. asks himself whether “we are making the life of a girl child any better by denying her education, merely because she wears a hijab!” (paragraph 66). This observation comes in the context of the admitted fact that after the Karnataka High Court’s judgment, many girls were unable to take their exams. Once again, the differences between Dhulia J. and Gupta J. are stark: for Gupta J., there is nothing to see here, as the girl students’ missing exams is, essentially, their own fault for refusing to follow the uniform. Dhulia J., on the other hand, recognises that the situation is rather more complex: it is a known fact, for example, that in many households, access to education is a contested terrain between the girl-child and her (conservative) family, with permission to go to school contingent upon the wearing of the hijab. Indeed, as Nisha Susan highlights in this article, there are a range of complicated reasons why someone might wear the hijab, and it is almost never as simple as a total compulsion/unencumbered choice binary: indeed, agency is something that is both situated and negotiated, especially when it comes to women dealing with patriarchy, both within the home and outside. Thus, for Dhulia J., what it basically comes down to is whether the effect of the Court’s judgment will be the denial of access to education; and if so, how best to ensure that that outcome is avoided.

Conclusion

At one level, the split within the bench turns upon different understandings of the law and of its application. On a closer look, however, the difference is much more fundamental: it is a difference in world-view.

One of these worlds is governed by the iron laws of discipline and control; of inflexible rules and punitive action for those that question them; of authority that brooks no “rebel or defiance”; of homogeneity, the denial of difference, and the “unanimity of the graveyard”; of one tune and one song; and a world in which students are like undifferentiable lumps of clay, to be moulded into what the authority considers to be “model citizens.”

The other world celebrates freedom and plurality; believes that rules should allow space to breathe instead of suffocation; values diversity – and the expression of diversity – over homogeneity; believes in the beauty of an orchestra, with many voices, rather than just one; sees the classroom as a space of liberation rather than control; and considers students to be autonomous, thinking beings, capable of making choices, and even difficult, negotiated choices.

Which world would we rather live in? That question is for each of us to answer for ourselves. Which world do we live in? The answer to that hangs in the balance; and all eyes will now turn to the Chief Justice, and the next – and perhaps – final round in the history of this case.