Diversity and Religious Freedoms in the Classroom: The Malawi High Court’s Judgment on Dreadlocks in Schools

Last month, the High Court of Malawi handed down a judgment holding that the State could not deny enrolment in public schools to certain Rastafarian children, on the ground that they wore their hair in dreadlocks, which was contrary to school policy. The arguments in the case replicated the arguments that we have discussed on this blog, in multiple cases around the world. On the side of the students, it was argued that “uniform” requirement of having short, straight hair in school constituted indirect discrimination, a violation of the right to religious freedom, and of the right to education. On the other hand, while the State challenged jurisdiction and did not appear to make detailed substantive arguments (by denying that there was any such policy in the first place), the usual contentions were nonetheless considered by the Court: namely, the nature of the classroom space, the need for uniformity, and the validity of facially neutral rules that sought to enforce that uniformity.

In its analysis, the High Court makes two interesting arguments, which are worth highlighting. The first is on the nature of the classroom space. As we have seen in previous cases – most notably, the hijab case in India – one of the fundamental points of disagreement in these disputes regarding religious freedom in the classroom – turns upon what the classroom is for. The High Court answers this by holding that the classroom ought to reflect the diversity of the broader society at large: just as individuals are expected to engage with individuals from other belief systems (and ways of expressing those belief systems) in the public sphere, so should the classroom – as a microcosm of society – provide space for such encounters. The school premises, therefore, are not meant for a stripping of identity (which is what is sought to be achieved through non-exempted rules about uniform), but a truer reflection of identity. Relying primarily upon the South African case of Pillay (which, readers will recall, involved the rights of a Hindu girl to wear a nose-stud in school), the High Court thus notes that:

… the legitimacy of a code of conduct should reflect the culture and experiences of the entire school community which includes Rastafari children. Therefore, it is this Court’s considered view that school codes of conduct but more so national policies on education should celebrate diversity and be conscious of their potential to exclude, particularly in relation to hair, but also be more comprehensively inclusive.  (para 4.15)

The High Court buttresses this finding by looking to the Malawian Education Act, which also specifies that the “spirit of diversity, equity, inclusion, and tolerance” should inform school policies (para 4.16).

The second interesting part of the Court’s analysis is its focus on the right to education. Importantly, the High Court links the right to education with non-discrimination, noting that the two are often connected: “… for the right to education to be enjoyed holistically there is need to ensure that all barriers to its access are removed and policies and plans of actions developed in the education aim at strengthening respect for human rights and the prohibition of discrimination.” (para 4.25) Having said this, the Court then places the burden of ensuring that the right to education is exercised effectively upon the State. It, therefore, notes that:

The overall duty and purpose of 2nd respondent is the promotion of education for all that respects human rights and fundamental freedoms. To deny one a chance at getting an education from a government secondary school on grounds that he or she keeps long dreadlocked hair on account of religion equals giving excessive weight to a factor of minor importance. It is like the example that Lord Greene gave in the Wednesbury case of firing a red-haired teacher because of she has red hair. It is utterly unreasonable and a disproportionate use of one’s discretionary power when the said hair has no interference at all with learning. 

In other words, therefore, the High Court does places an affirmative obligation upon the State to take whatever reasonable measures it can to ensure that everyone’s right to education is effectively exercised, including an obligation to provide reasonable accommodation within the dress code where not doing so would lead to exclusion. And, furthermore, where the State does not do so, it can only be for a weighty reason, and one which has a direct nexus with the overall objective of learning: that is, the State cannot insist on its dress code – even where this insistence is leading to exclusion and deprivation of rights – especially where the exemption would not interfere at all with the process of learning within the schoolroom. This is a very different approach from the approach that certain courts have taken, where the students are given a simple, stark choice between complying with the dress code at the cost of their religious beliefs, or leaving the school altogether.

These two elements form the core of the High Court’s analysis. A few other points are also worth noting. The High Court draws upon a range of scholarly sources – from Frantz Fanon to Ngugi wa’ Thiong’o – to contextualise the insistence of uniform, short-cut hair within the history of colonialism; refreshingly, the High Court’s references are not gratuitous, but necessary. Not only this, but the Ntaba J refers to her own experience – of having seen not a single dreadlocked fellow-student during her own classroom days, despite the existence of Rastafarians in society – as an indication of the policy’s exclusionary nature. And finally, the High Court relies upon a range of precedent from other African countries (including the Kenyan Court of Appeal’s Fugicha judgment for the proposition that students do not leave behind their constitutional rights at the doors of the classroom) in order to turn back the litany of common arguments against reasonable accommodation, such as the “parade of horribles” that might follow if one exemption is granted. This locates the judgment firmly within the tradition of progressive, comparative constitutional jurisprudence on this issue.

Thus, in sum, the High Court’s judgment is (refreshingly) short, but repays close study for the clarity and lucidity with which it affirms the agency and choice of students to manifest or articulate their diverse faiths or traditions, within the space of the classroom; and its affirmation of the classroom itself as a space of diversity, and not one that mandates the unanimity of the graveyard.

Reasonable Accommodation for Religious Beliefs in Schools: The Judgment of the Kenyan Court of Appeal

Yesterday, in Philip Okoth vs Board of Management, St Anne’s Primary School, the Kenyan Court of Appeal delivered an interesting judgment reaffirming certain important principles with respect to the religious rights of students in the schoolroom, and the principle of reasonable accommodation. The case involved the expulsion of certain school students – who were Jehovah’s Witnesses – for refusing to attend a mandatory, thirty-minute Catholic mass organised by the school (the first petitioner/appellant was later re-admitted, but required to sign a declaration that she would attend mass).

The High Court found against the Appellants/Petitioners, on the bases that they had indicated their willingness to comply with the school rules (which included mandatory mass), and that they had not established that mandatory mass amounted to an impingement of their own freedom of belief.

The Court of Appeal – consisting of Kiage, Tuiyott, and Ngugi JJA – disagreed, for the following reasons. First, constitutionally-guaranteed rights (such as the freedom of religion, guaranteed under Article 32 of the Kenyan Constitution) could not be deemed to be implicitly waived by prior conduct. Thus, the fact that the appellants/petitioners had initially participated in the school’s inter-faith activities could not stand in the way of a constitutional claim, whenever it might be raised (pg 21). The Court of Appeal linked this to the Respondent’s argument that if the Petitioners/Appellants had a problem with the school rules, they could simply have left and taken admission in another school. This argument, of course, is familiar to us. But, relying upon the previous judgment of SDA – where the Court had labeled this a “lame and gloomy” argument – the Court of Appeal cited with approval the observation that:

This view is not only impractical, but also ignores many factors that a student or parent considers in choosing a school, such as the availability of public schools where the students’ particular religious beliefs would be accommodated, the student’s personal career choice and academic standards of the school. It violates, not only sub-article (3) of Article 32 of the Constitution but also section 34 of the Basic Education Act.

This observation is important, as it reiterates the simple point that in cases involving constitutional rights, the burden of finding alternatives for the exercise of the right in case it is blocked off in certain spaces should not be upon the rights-bearer (i.e., in this case, the students). In particular – although the judgment does not go further into this point – what is implicit is that the existence of constitutional guarantees carries with it the right to be able to exercise those guarantees without undue burden. This is particularly important in the case of schools, where it is well-documented that wrenching a child out of a school environment in which they are well-settled triggers a number of mental and psychological harms. This is, of course, independent of the facts – as noted in the judgment – pertaining to the availability and accessibility of alternatives. In other words, therefore, the Court affirmed the students’ right to access a school where the exercise of their constitutional rights would be reasonably accommodated. (see pg 22)

The Court of Appeal then went on to hold that as “religion is a fundamentally subjective matter of faith”, and that it was evident from the record that “the appellants’ belief was genuinely held”, nothing more was needed to trigger the exercise of the right (pg 26). That being the case, the Court went on to find that an exemption from attending mass fell well within the contours of reasonable accommodation (pg 27): this was because – as Counsel Ochiel Dudley had argued – the rule itself was facially neutral, but had a discriminatory impact; and secondly, the application of this rule was particularly apposite in a “specific, localised context”, such as a workplace or a school, where the balance between rights could be struck.

Interestingly, as a final point, the Court referred to a Ministry of Education Circular from 4 March 2022, which itself had noted that “the violation of religious rights in schools has negative effects on maintenance of peace and tranquility and some students end up dropping out altogether.” This, the Court held, accorded with the thrust of its own judgment – a case where the judiciary and the executive were ad idem on the constitutional principles involved!

The final declaration of the Court is important. It held that “the 1st appellant’s expulsion from school on the basis of her religious views amounted to indirect discrimination; constituted a violation of her right to education and right to dignity and is therefore null and void.” It is worthwhile to focus on this because – as the analysis above showed – cases of this kind involve a number of intersecting rights. It is not simply a case of an assertion of religiosity by a minority group; but it is – crucially – about indirect discrimination (i.e., facially neutral rules that nonetheless enforce majoritarian cultural norms, whether it be mass or regulations about the uniform), about the right to education (i.e., forcing students to pick between an exercise of constitutional rights and dropping out of education altogether), and the right to dignity (through singling out and exclusion). It is therefore a mistake to think of these cases as only involving religious expression versus uniformly applicable school regulations: a sensitive exploration of the issues – as was undertaken by the Court of Appeal – reveals much more at play.

As a post-script, it will be interesting to see what the impact of this case might be on potential future litigation on issues such as – for example – the wearing of the hijab in schools. Recall that this same Court of Appeal had – in Fugicha’s Case – had affirmed the right to wear the hijab, in a closely-reasoned judgment (see the analysis on this blog, here) (indeed, Kiage JA – the author of today’s judgment – was also a party to Fugicha). That judgment had eventually been overturned by the Supreme Court, but only on procedural grounds. Interestingly, today’s judgment quotes extensively from Fugicha (as also from SDA); and it does appear that its observations apply squarely to more complex cases such as the hijab case. Indeed, the Court’s clear invocation of the right to education in this case, and its dismissal of the argument that students unhappy with the rules could simply leave and go elsewhere, create a strong foundation for rights-protective rulings in those cases, where the argument on behalf of school authorities rests on instinctively stronger foundations (such as the need for a ‘uniform’ uniform). It remains to be seen how the Kenyan courts carry forward this progressive jurisprudence.

Guest Post: Sabarimala V 2.0 – Religious Freedom and Non-Discrimination Revisited

[This is a guest post by Shreyasi Singh.]

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Recently, a petition before the Kerala H.C. challenged the constitutional validity of the Travancore Dewaswom Board notification, inviting applications only from Malayala Brahmins for appointment as Melshanthi (chief priest) of Sabarimala-Malikappuram temples. The notification has been mainly challenged on the grounds of the violation of Articles 14, 15(1), 25(2), and 16(2) of the Constitution. Previously on this blog, there have been critiques of the application of the Essential Religious Practice Test, hereinafter ‘ERP’, as infringing upon the religious autonomy of religious institutions. Rather than going by that path, for the course of this article, I shall limit my analysis to the Anti-Exclusion principle vis a vis Justice Chandrachud’s question: ‘what was the legacy of injustice that the Constitution sought to acknowledge and then transform’?  

Four questions come to my mind while examining the same : 

Ques 1. What should be the governing principle for balancing the Religious freedom of groups with that of individuals? 

Ques 2. Whether the governing principle applies equally to religious denominations under Article 26?  

Ques 3. Whether the governing laws of the Anti-Exclusion Principle cover religious institutions, or is there a restriction on the application of the rights? 

Ques 4. If the answer to the above question is yes, what alternatives, if any, does the Constitution provide for balancing the fundamental right to religion of individuals, that of religious denomination vis a vis the transformative vision of the Constitution?

I shall take each of these questions in the subheads below. I start by tracing the judicial development of the Anti-Exclusion principle and its extension to religious denominations. In the second half of this article, I shall first answer the normative question of reading Article 15 (2)( b) to include places of worship within its ambit and then apply the grounds of discrimination enumerated in Article 15 to test the validity of the notification. It is important to note that Sabarimala has been declared not constituting a religious denomination in Indian Young Lawyers Association v State of Kerala. However, a review petition is pending against the same. For the sake of clarity, I shall examine the validity of the notification by considering Sabarimala, firstly, as a non-religious denomination and, secondly, as a religious denomination. I conclude by addressing the limitations of applying the Anti-Exclusion principle to balance the rights of religious groups. 

TRACING THE ANTI-EXCLUSION PRINCIPLE IN INDIAN JURISPRUDENCE

Babasaheb Ambedkar, while discussing the religious freedom clauses in Constituent Assembly Debates (hereinafter ‘CAD’) noted that in India, religion, the private life of an individual, and the community’s public life are inextricably bound together and thus require state intervention to regulate merely secular matters. He observed in the CAD that ‘we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious’. Importantly, however, this method/basis of the distinction between religious and secular is not contained within the code. It is through judicial pronouncements that the distinction is interpreted and, in that exercise, has lost its intent by application of the ERP test, which the drafters did not intend. 

However, a rejection of the same demands another way of making sense of the freedom of religion vis a vis rights of individuals. As an alternative to the same, recently, in Indian Young Lawyers Association v the State of Kerala, J Chandrachud, in his concurring opinion, subscribes to what Bhatia has called the Anti-Exclusion Principle. The principle adds to what Sandra Fredman identifies as a multi-dimensional approach to equality and provides an additional ‘common denominator‘ that enables courts to balance irreconcilable issues. In effect, the anti-exclusion principle provides for the interests of disadvantaged groups with a history of social exclusion to be given precedence over religious autonomy claims, particularly those of dominant religious groups. The Court should leave it to the followers of any religion to determine what practices are essential and worthy of following. It is not a new perspective; it has been followed across jurisdictions committed to constitutional liberalism, like the US, Canada, and Europe, by restricting the imposition of external points of view over religious affairs to judge its essentiality. 

The application of the Principle demands a horizontal application of the non-discrimination rights contained in Article 15(2) and Article 17, primarily intended to secure the individual’s dignity and balance it with the coexisting freedom of religion. Such application can be traced back to the dissenting opinion of BP Sinha CJ in Sardar Syedna Tahir Saifuddin v State of Bombay. The case concerned the challenge to the Bombay Prevention of Excommunication Act 1949, which prohibited religious communities from excommunicating any of its members. While this Court held barring ex-communication on religious grounds cannot be considered to promote social welfare and reform, C.J. B.P. Sinha framed the issue as one of untouchability and, thus, not within the guaranteed right to religious freedom. He held that the “impugned act was aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others” (paragraph 11). He did an impact analysis of the social aspect of ex-communication to hold that ex-communication would render the person untouchable in their community. 

Anti-exclusion has not been invoked before the Sabarimala judgment, but it has been in the judicial conscience for some time now. 

APPLICATION OF ANTI-EXCLUSION PRINCIPLE TO RELIGIOUS DENOMINATION: 

Essentially, there are two aspects to applying the Anti-Exclusion principle under Article 26. Firstly, religious freedom rights are a seamless web of rights within the cover of Part III of the Constitution. Secondly, a true construction of the word morality means “constitutional morality.” 

This first view is built upon Rustom Cavasjee Cooper (Bank Nationalisation) v. Union of India that held fundamental rights contained in Part III do not exist in watertight compartments, and that all freedoms have linkages and exist in a state of mutual co-existence. In effect, where a belief infringes the fundamental values of dignity, liberty, and equality, it is liable to be struck down. Moreover, in the case of Shri Venkataramana Devaru v. State of Mysore, a Constitution Bench of this Court considered the constitutionality of the Madras Temple Entry Authorisation Act, 1947, which sought to reform the practice of religious exclusion of Dalits from a denominational temple founded by the Gowda Saraswat Brahmins. In this case, by harmonious construction, the Court balanced the tension between the individual right under Article 25(2)(b) and the denominational right under Article 26(b). It held that to preserve individual dignity and constitutional guarantees, where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the former. The Court emphasized that Article 25(2)(b) is not a mere enabling provision but a substantive right. It creates an exception for laws providing for social reform or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices. Moreover, the word public institutions in Article 25(2)(b) includes all religious institutions of public character and, thus, all denominational temples.

Furthermore, J Chandrachud, in the Sabarimala case, held that the right of religious denominations under Article 26 is not mutually exclusive of all guaranteed fundamental rights. He posed the question: “should the freedom conferred upon a group—the religious denomination under Article 26(b)—have such a broad canvas as would allow the denomination to practice exclusion that would be destructive of individual freedom?” Answering the question negatively, Justice Chandrachud observed that bestowing such exclusive rights on religious denominations would not only run against the liberal constitutional values but also be derogatory to individual dignity, which couldn’t have been the intention of the Constitution. It is in line with what Dr. Ambedkar had argued during the Constituent Assemble Debate, that the Constitution had adopted the individual as its basic unit. Thus, group rights, in a way, also are a platform for individuals within the denominations to achieve self-determination. 

Secondly, as clarified by Justice Misra in Indian Young Lawyers Association v State of Kerala, the word morality used in Article 26(b) means constitutional morality. It is rooted in the fundamental postulates of human liberty, equality, fraternity, and dignity. Thus, as a consequence, the freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination are subject to fundamental notions of constitutional morality, effectively opening the door for the application of Article 15(2) and Article 17, given the conditions enumerated within the clauses are satisfied. 

The above analysis helps answer the first two questions posed at the start of this blog. Firstly, the anti-exclusion principle could be applicable to balance individuals’ rights with that of religious groups. Secondly, an interpretation of the fundamental rights as a seamless web of rights extends the application of the anti-exclusion principle to religious denominations, even though the same is absent in the bare text of Article 26. 

APPLICATION OF ANTI-EXCLUSION PRINCIPLE:                        

Having traced the recognition of the anti-exclusion principle in Indian Jurisprudence and its extension to religious denominations, I shall now apply the anti-exclusion principle to the present case. 

In the present case, Article 17 would be inapplicable. Untouchability requires a form of social ostracising of a group. A restriction on appointment to a public office is not necessarily social exclusion amounting to Untouchability. 

Further, the notification prescribes the appointment as the chief priest to one particular category of brahmins and excludes all other brahmins and non-brahmins likewise; thus, it wouldn’t amount to Untouchability. It does not selectively exclude a category but instead restricts the appointment to a subcategory that is not caste-based. The SC in the N. Adithayan v. Travancore Devaswom Board observed thatArticle 17 was not applicable since the exclusion from the sanctum sanctorum and duties of performance of poojas extended even to Brahmins. Thus, it was not caste-based exclusion. 

This brings us to the other aspect of the anti-exclusion principle, i.e., Article 15(2). However, the Application of Article 15(2) raises questions about the lack of explicit mention of places of worship within the text of the provision. 

A CASE FOR ARTICLE 15(2)

There are two primary arguments against extending the application of Article 15(2) to Religious institutions:  

1. Firstly, it has been contended that a reading of the Constituent Assembly Debates and, specifically, the interpretation of the word ‘Public Resort’ signifies the intention on the part of the framers to exclude religious institutions.  
2. Secondly, allowing the reading of public resort to include religious institutions would mean that any person, regardless of their religious inclination or belief, ought to enjoy equal access to any place of worship without a bar on religion. 

J Indu Malhotra, in her dissenting opinion in Indian Young Lawyers Assn. v. State of Kerala, opined that all the proposals for inclusion of the places of worship within the ambit of draft Article 9 of the Constitution were rejected. In the course of this part, I shall deal with the amendments proposed in the Constituent Assembly debates and reach a different conclusion. A fair reading of Constituent Assembly Debates suggests that “public resort” does include places of worship, and where the State fully or partially funds it, the same would be subject to the application of Article 15(2). 

Let us consider all three amendments: 

Prof. K.T. Shah proposed the first amendment for the substitution of sub-clauses (a) and (b) as follows: “any place of public use or resort, maintained wholly or partly out of the revenues of the State, or in any way aided, recognised, encouraged or protected by the State, or place dedicated to the use of general public like schools, colleges, libraries, temples, hospitals, hotels and restaurants, places of public entertainment, recreation or amusement, like theatres and cinema-houses or concert-halls; public parks, gardens or museums, roads, wells, tanks or canals; bridges, posts and telegraphs, railways, tramways and bus services; and the like.” 

Significantly, the modified clause uses the word ‘like,’ and to that extent, it gives an indicative list of places included within the term public resort. Prof Shah, while proposing the amendment, mentioned, “I am not merely trying to give a list of places of public use or resort, or those dedicated to public service, from which in the past discrimination has been made and individuals of particular communities or classes have been excluded for no other reason except their Caste or birth. Clearly, this is the intention of the article, and I am only seeking to expand and express it more clearly than has been done in the wording of the article as it stands.”

Thus, while discussing places of public resort and what to include in them, he was proposing a list and not referring specifically to places of worship. 

Furthermore, the intention to include places governed by religious institutions is also evident when at one point, S Nagappa asked whether places of the public resort included places like burial or cremation grounds which are generally maintained by religious bodies. Dr. Ambedkar answered that if there is a burial ground maintained out of State funds, then obviously, every person would have every right to have their body buried or cremated therein. 

The discussion on the meaning of public resort was further clarified when R.K. Sidhva asked Dr. Ambedkar about the interpretation of the word ‘public’. Dr. Ambedkar refused to accept the narrow definition of ‘Public’ used in the Indian Penal code. He clarified that in this clause, the word public is used in a special sense to mean ‘a place is a place of public resort provided it is maintained wholly or partly out of State funds’.

Thus, it can be said that KT Shah’s amendment was merely indicative of places that would come within places of public resort. Reliance on one facet of the amendment, i.e., there was an indication of places of worship, and the same was not incorporated in the final draft, as signifying the intention to not include places of worship under Article 15(2) is not accurate. Because in this manner, the amendment even had the word educational institutions, which is not prima facie included in the text of Article 15(2) but has been interpreted in the case of Indian Medical Association V UOI within the meaning of the word ‘shops’. The intention of the constitution makers is seen from the drafting committee and the basis of rejection. In this case, the basis of the amendment’s rejection was not the intention to not include places of worship but to leave it wide open to include places that the State partially and fully funds. 

The second and third amendments were proposed to modify 15(2)(a) to include the words ‘places of worship’ after the word ‘public entertainment’ at the end of sub-clause (a) of Article 15(2). The rejection of both of these amendments by the drafters was logical. It helped clarify that places of public worship were already included in public resorts in a restricted sense with the condition of it being partially or fully funded by the State under Article 15(2)(b). Thus there was no need to incorporate the word in Article 15(2)(a). It is also true, given that the condition of being fully or partially funded is only a qualification for Article 15(2)(b) and not of Article 15(2)(a). 

This interpretation helps answer the second part of the contention raised against the application of Article 15(2)(b) to include places of worship because it might hamper the autonomy of religious institutions, and they would not have any say. This, however, is not true. Article 15(2) is qualified by the phrase ‘wholly or partly out of State funds or dedicated to the use of the general public’. Thus, it acts as a condition precedent for subjecting a temple to Article 15(2)(b ), which as a consequence, balances the religious autonomy by restricting the application of Article 15(2) only to places of worship that are public places. 

The above reading of the CAD clarifies the intent of the Constituent makers and helps answer the third question, i.e., the governing laws of the anti-exclusion principle cover religious institutions within their ambit. 

APPLICATION OF ARTICLE 15 TO PRESENT PETITION

In the present case, the notification prescribes the appointment of Malayala brahmin as the Melshanti of the Sabarimala Temple. A Malayala Brahmin is a subcategory of Brahmin belonging to the State of Kerala. Thus, the question for consideration is whether the Travancore Board’s notification restricting the appointment of Melshanti on the grounds of Caste and Place of birth violates Article 15(2), i.e., whether simultaneous discrimination based on two prohibited categories is within the fold of Article 15?

Article 15(2)(b) provides that “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”. 

Shreya Atrey suggests a complete reading of the clause, including the phrase “or any of them”, which clarifies an indication of covering multi-ground discrimination within its ambit. Similarly, Kannabiran supports the assertion that Article 15(1) could be interpreted to mean that discrimination is prohibited on a single ground or a combination of grounds, whether listed or not, and places the responsibility of examining discrimination on the Court. Furthermore, A reference to Constituent Assembly debates suggests that there has neither been an indication in the CAD to exclude multi-ground discrimination nor an indication to restrict the number of grounds in a claim or consider it a closed list. 

While the above observation is regarding Article 15(1), it could be imported to Article 15(2) in the absence of intentions to the contrary in CAD. Thus, in the present case, restricting the appointment of the Melshanti to Malayala Brahmin infringes upon the personal autonomy of other eligible brahmins and non-brahmins based on their immutable status of Caste and place of birth.

This brings us to the second prong of the analysis, i.e., when can such categorisation and discrimination be justified? Article 15 allows discrimination for affirmative action. Any categorisation should satisfy the reasonableness standard. For that, there should be an intelligible differentia and a rational nexus to achieve the objective. In the present case, the criteria is that person should be a Malayala Brahmin. However, it is not clear who would form Malayala brahmin. There exist multiple categories and subcategories within the Malayala Brahmin, and a lack of prescribed criteria in the absence of a census to determine a person as a Malayala brahmin. Secondly, the reason behind affirmative action flows from article 14 to maintain equality of opportunity for equals. Malayala brahmins are the upper priests in the State of Kerala, and there is no need to provide for their upliftment. 

Further, the aim, if any, is the proper performance of the rituals of the Temple. It requires that only a qualified person well-versed and adequately trained for the purpose should perform pooja at the Temple. Notably, the Travancore Devaswom Board had opened a Thanthra Vedantha School at Tiruvalla for training Santhikarans, irrespective of their caste/community. Thus, there cannot be any justification later on, to restrict appointments to one particular Subcategory of Brahmin. 

WHAT IF SABARIMALA WERE ASSUMED TO BE A RELIGIOUS DENOMINATION 

In the preceding section, I have examined the validity of notification in line with the current judgment of the Court in the Indian Young Lawyers Association v State of Kerala. Here, I will try to analyse the impact, if any, of declaring Sabarimala as a religious denomination on the application of Article 15(2)(b). 

In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the expression “religious denomination” was held to require three conditions:

(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;

(2) common organisation, and

(3) designation by a distinctive name.

Significantly, funding from the State is not a necessary condition for a religious denomination. However, for a place of worship to be subject to Article 15(2)(b), funding from the State acts as a condition precedent. Thus, a fair reading of the conditions prescribed for Article 15(2)(b) and Article 26 suggests that all places of worship, whether governed by a religious denomination under Article 26 or not, are subject to Article 15(2)(b) if the State wholly or partially funds them.  This helps answer the final question about the limitation on application of anti-exclusion principle to balance the fundamental right to religion of individuals to that of religious denominations. In cases where a private religious denomination not funded by the state restricts appointment to priestly position to a particular group, citing their religious practice/custom, and such practice/custom does not run foul on the threshold prescribed for untouchability under Article 17, it would not be made subject to general and broader grounds of prohibition mentioned under Article 15(2). 

In the present case, it is clear that the Travancore Devaswom board receives funding from the consolidated fund of Kerala according to Article 290 A and is administered through a statutory body constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950. Thus, the only condition precedent to the application of Article 15(2)(b) is satisfied even in cases where the Court was to declare Sabarimala a religious denomination. 

Proportionality Under Article 25?: A Response to Kartik Kalra [Guest Post]

[This is a guest post by Priyansh Dixit.]

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In India Young Lawyers’ Association v State of Kerala (‘Sabrimala’), Justice Chandrachud observed the possibility of using proportionality as a limitation analysis in Article 25(1), as opposed to the Essential Religious Practice (‘ERP’) test. The case is currently pending before a nine-judge bench under the Court’s review jurisdiction. In line with Justice Chandrachud’s observations, it has been more elaborately argued elsewhere that proportionality should be applied to the limitation analysis of religious rights, as a superior alternative to the contemporary ERP test.

Such arguments have taken on new significance in light of the recent split division bench of the Supreme Court in Aishat Shifa v State of Karnataka, regarding the (in)famous Hijab issue. The case has been put before the Chief Justice of India and is likely to raise the issue of limitation analysis in religious rights, which would be echoed in the Sabrimala review. The important issue of applying a proportionality-based review can arise. Nevertheless, because of the critique that the ERP test is subjected to, and because of the importance that limitation analysis based on proportionality is given, the question of applying proportionality to Article 25(1) becomes important.

In assessing the application of proportionality to Article 25(1), the first step of the inquiry, before a normative analysis of the desirability of using proportionality in the adjudication of religious rights, would be to ascertain whether a legal foundation exists that justifies limitations analysis based on proportionality. Recently, in a guest post, Kartik Kalra, while criticising Justice Dhulia for sidestepping the ERP test in his judgement in the Hijab case, argued that a cleaner, judicially sound alternative would have been to use proportionality in Article 25(1) of the Indian Constitution, effectively contending that such a legal basis exists. His central premise was that because it has been held that no state action can be arbitrary, unreasonable, or fanciful (Maneka Gandhi v Union of India, Mithu v State of Punjab), and because no right can be abridged more than what is necessary to achieve a state’s legitimate objectives (K.S. Puttaswamy v Union of India), proportionality can be applied.

In this article, I take a stance contrary to Kalra. I argue that proportionality, as a structured four-prong structured test, cannot be applied to Article 25(1). Firstly, I will argue that standards of reasonableness, even though they have been read broadly into the constitutional scheme, do not justify reading proportionality as a limitation analysis in Article 25(1). This argument is not a contribution toward my actual inquiry into whether proportionality can be applied to Article 25(1). Rather, it acts as a rebuttal to Kalra’s argument that mere reasonability can justify the use of proportionality. To make such a rebuttal is particularly important because otherwise, any need for a specific inquiry into Article 25(1) would be rendered meaningless. Secondly, I will assess the threshold for establishing proportionality in a constitutional provision by analysing the case of Modern Dental College and Research Centre v State of Madhya Pradesh (‘Modern Dental’), where proportionality as a structured doctrine was established in Article 19’s context. I would further argue that the threshold is not met in the context of Article 25.

Note that I will not deal with normative issues of whether proportionality should be applied. Rather, I will limit myself to a formal inquiry in analysing if proportionality can be applied if required.

Also note that across the article, I use proportionality to refer to the structured four-prong test – where the four prongs are: (i) Legitimate Purpose (ii) Rational Connection (iii) Necessity (iv) Balancing – which is used to, as Aharon Barak explains, balance ‘constitutional’ and ‘sub-constitutional’ norms. The former are principles/rules enshrined in the Constitution (such as Article 25(1)), while the latter include legislations that limit the scope of such principles/rules. For the latter to be valid, they must conjunctively satisfy each prong of the test.

NON-APPLICATION OF REASONABLENESS

Let me briefly extend the argument that I am dealing with. What is being proposed is that any elaborate analysis of whether proportionality cannot be applied to Article 25(1), or any other provision for that matter, is unnecessary since the same has been done by Courts, which have read reasonableness as a requirement in every legislative action. This reasonableness is understood to be a requirement that runs across the constitution, including Article 25(1) by extension. If this contention is indeed true, then there is no point in further analysis of this article. But there are two reasons why this is not the case and why a more specific inquiry into the question of applying proportionality is needed.

Firstly, it must be noted that despite Courts reading reasonableness broadly into the constitutional structure, specific limitation analysis of any constitutional provision has still been considered important. Professor Aparna Chandra has argued that while the Supreme Court has stated that the requirement of reasonableness runs through the entire constitution, it does not consider the same to imply that there should be a single limitation test. This is evident by the multiple approaches courts have taken to analyse limitations on fundamental rights. Thus, whether standards of reasonableness can be used in Article 25(1) at all is a contested issue. To determine the same, the limitation of Article 25(1) and its interpretation by the Court must be specifically analysed. It will be argued later that any balancing exercise, like reasonableness or proportionality, cannot be read into Article 25(1) because of its limitation, and the judicial history of the same.

Secondly, even if we assume that reasonableness can be read into Article 25(1), the case is not necessarily the same for proportionality. This is because the two standards – reasonableness and proportionality – are different. They are often mistakenly equated because both entail balancing competing values, but two fundamental differences between the two illustrate otherwise.

One, the substantive content of both is different. While the proportionality test requires an independent review of the four prongs, there is no need for the same in assessing reasonableness. The mandate to analyse each step can considerably affect the adjudication process. A judge might reach a different conclusion when using reasonableness than while using proportionality when she is looking at the same set of facts. It can be argued that in cases like Chinataman Rao v State of MP and V.G. Row v State of Madras, where reasonableness was first introduced, strands of proportionality can be found. For instance, in V.G. Row, it was observed that the “disproportion of imposition” needs to be analysed while assessing the validity of right-restricting measures. Similarly, in Chintaman, it was held that:

“Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.” (para 6) [emphasis mine]

However, while using reasonableness, the approach of Courts has largely been deferential to the legislative wisdom. Consider the following observation from the Directorate of Film Festivals v Gaurav Ashwin Jain, which illustrate the approach this approach:

“Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy…Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review…”

The conceptualisation of judicial review here is that Courts are not supposed to explicitly look at whether a policy is necessary for its purported aim. The lack of the necessity prong makes a substantial difference since the prong gives Courts leeway to inquire into the appropriateness of policy which is otherwise exempted from judicial review. Professor Chandra has argued here that many cases, where proportionality has been ostentatiously applied, have deemed the alleged right-restriction measure to be valid, only because they improperly analysed the necessity prong. If courts had applied reasonableness as the standard of review, Professor Chandra’s critique would have had no legal basis at all. The point is that the content of both the tests and the results they produce are different. Thus, it cannot be argued that the mere presence of reasonableness warrants applying proportionality.  

Two, the evidentiary standards of both are different. Evidentiary standards comprise the burden of proof, the standard of proof, and the quality of evidence. The higher these standards, the greater the justificatory burden on the State to justify its right infringement. For instance, take burden of proof. In applying reasonableness, the burden of proof to establish that a certain restriction invalidly infringes rights and is unconstitutional is on the party alleging unconstitutionality. This is based on the well-established doctrine of presumption of constitutionality, which (i) places the burden of proving the unconstitutionality on the petitioner and (ii) raises the degree of evidence required to prove unconstitutionality, since presumption of constitutionality entails a strong assumption that the impugned legislation is compliant with part III rights.  In proportionality, however, the burden of proof is reversed. Justice Chandrachud observed in Puttaswamy (II) v Union of India, interpreting his plurality judgement in Puttaswamy (I) v Union of India:

“Proportionality requires the State to justify that the means which are adopted by the legislature would encroach upon the right to privacy only to the minimum degree necessary to achieve its legitimate aim” (para 32) [emphasis mine]

Reasonableness, as compared to proportionality, has lower evidentiary standards, as has been illustrated above. The point that I am again making is that the impact of a judicial review done using reasonableness would be different than if it is done using proportionality. Therefore, even if it is assumed that the standards of reasonableness can be applied to Article 25(1), proportionality cannot be read into it.

In summation, proportionality and reasonableness are two different kinds of judicial review. If limitation analysis of a certain provision requires the application of reasonableness, the same cannot justify applying the structured four-prong proportionality test. To apply the same, a separate interpretative process is required. What such a process would entail and what would be the result of applying it to Article 25(1) are issues that the next section deals with.

PROPORTIONALITY IN INDIA – APPLYING THE EXTANT THRESHOLDS TO ARTICLE 25(1)

In the previous section, I proved that reasonableness does not justify using proportionality in Article 25(1). What is required is a more specific inquiry. In this section, I do exactly that through two steps. First, I will explain how Indian Courts sourced proportionality into Article 19 and distil the appropriate threshold that ought to be used to apply proportionality to other rights. Second, I will show why this threshold is not met in Article 25(1)’s context.

PROPORTIONALITY THRESHOLD IN INDIA

Proportionality as a structured doctrine was explicitly established for the first time by Indian Courts in Modern Dental in the context of Article 19. The Court’s reasoning to reach its conclusion regarding proportionality had two levels. Firstly, and on a more abstract note, the Court cited Aharon Barak, a renowned constitutional scholar, and the former Chief Justice of the Israeli Supreme Court, who identifies two sources of proportionality – democracy and rule of law – that warrant balancing constitutional rights against the public interest (para 62).  The Court worked with the premise that these sources are intrinsic features of India’s constitutionalism and thus reasoned that the said balancing is justified (para 62).  Secondly, the Court noted that the doctrine of proportionality is already built into the Article, using the term ‘reasonable restrictions’ in its text (para 65).  The court analysed case laws that have interpreted this scope of reasonableness and argued that it has been interpreted in a manner that would warrant a conjunctive use of all prongs of the structured doctrine of proportionality (para 65).

Here, a question arises: Can either of these conditions justify using proportionality as a limitation analysis for a provision or do both need to exist? It is submitted that the latter is the correct interpretation. If the contrary is correct, the implication would be that proportionality can be applied to any right since ‘democracy’ and ‘rule of law’, which forms the first condition, is a part of the basic structure of the Indian constitution and is thus a part of every provision. Such an interpretation has two issues. Firstly, Modern Dental’s analysis of Article 19’s limitation clause would be rendered useless. This fails to make sense since the Court imputed sufficient weight to the analysis. Moreover, this would also violate the point that specific limitation analysis of different rights ought to be done and that broad limitations cannot be read across rights, which was established earlier. Secondly, the deliberate differences made by the constituent assembly in different limitation clauses would be ignored. This would render the drafting exercise a futile endeavour, which would be contrary to constitutional interpretation.

Thus, to assess if proportionality can be applied to Article 25(1), an analysis of the limitation clause presents a valid method.  In the next sub-section, I undertake the analysis and conclude that Article 25(1)’s limitation clause disallows applying proportionality.

APPLYING THE THRESHOLD TO ARTICLE 25(1)

The limitation clause of Article 25(1) states that the right provided under the article (to freely profess, practice, and propagate religion) are “subject to public order, morality, and health and the other provisions of this part.”  This section, first, analyses the text of Article 25’s limitation clause and argues that because of how it is hierarchically sewn with other provisions of Part III, it does not warrant balancing exercises like proportionality and, secondly, argues that if the judicial history of Article 25 is analysed, as was done for Article 19 in Modern Dental, one concludes that it does not warrant applying proportionality.

Firstly, ‘Subject to… other provisions of this part’ leads to the conclusion that Article 25(1) is hierarchically inferior to other articles in Part III. Two arguments, regarding the interpretation of the term ‘part’, can be made against this interpretation. One, that the term ‘part’ refers to Article 25(2), and two, that it refers to Article 26. However, as has been argued elsewhere, these arguments do not hold. The former does not hold, because if the framers wanted to do so, they could have retained “this Article” instead of “this part” as was done in the earlier drafts of the current Article 19. The latter does not hold because to do that, the framers could have simply stated “subject to Article 26” as was done with some other provisions (Art 62(2), 68(2), 81(1), etc.). The specific wording, which was not used by the constituent assembly for other provisions, signifies that Article 25(1) was meant to be sewn into a hierarchy with other fundamental rights.

This argument also gains some force from Justice Chandrachud’s decision in Sabrimala. He had noted while holding that values like dignity and equality form overriding considerations against which religious rights would have to be sacrificed: “These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief” (para 54). This is illustrative of the idea that some other constitutional values are in a supreme position vis-à-vis individual religious freedom.

In Sahara India Real Estate Corporation. Ltd v SEBI, the Court had held that the conceptual premise of any balancing exercise, such as proportionality, is the equality between these rights: “When rights of equal weight clash, Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the Constitutional Scheme” (para 42). Thus, Article 25(1), whose limitation clause puts it in an inferior position, cannot be balanced using proportionality.

Secondly, the specificities that were found in Article 19’s limitation clause are absent in Article 25(1). No standard of reasonableness has been provided in the text as has been done with Article 19 with the use of the word ‘reasonable’. Moreover, notions of reasonableness find no mention in the jurisprudence of limitations of Article 25(1). Instead, the history of its limitation analysis primarily consists of the ERP test, which simply justified state interventions where the concerned religious practices are not essential. What concerns us is how this essentiality has been analysed.

This essentiality, evident by court judgements, is demonstrably devoid of the requirement of reasonableness. In its nascent form, the ERP test evaluated the essentiality of practices as per the beliefs of the followers (See Commissioner v Shirur Mutt). Later, the jurisprudence flipped on its head, with the Court deciding the essentiality of a practice based on extraneous considerations as opposed to evaluating the faith of the believer. Such considerations include the optionality of the practice (See Ismail Farooqui v Union of India, Hanif Quareshi v State of Bihar) and the recency of the practice (See Acharya Jagdishwaranand Avadhuta v Comm. Of Police Calcutta). Evidently, the inquiries under the ERP test assess the concerned religious practice. No assessment of the state restriction is done, which is what an inquiry into reasonableness would entail. Therefore, the reasonableness of state restrictions is left out of the picture while applying the ERP test.

At this juncture, one might argue that if proportionality and reasonableness are different standards, why does it matter if the latter has not been used to adjudicate Article 25(1) cases to analyse if the former can be applied? At the cost of reiteration, I will have to restate my argument regarding reasonableness and proportionality to rebut this argument. Reasonableness and proportionality are closely related, and the existence of the former can lead to the conclusion that the latter might be justified. Therefore, I argue the lack of reasonableness in the adjudication of rights becomes a reason why the application of proportionality is not justified. But the two are still different in the sense that their application requires different lines of inquiry and can lead to different results. So, while related, the use of proportionality and a separate interpretative exercise is required to apply it. If the contrary happens, the character of reasonableness as a standard of judicial review would be drastically changed. Therefore, it is conceptually and legally consistent to argue that while a lack of reasonableness can be used to justify not applying proportionality, the two standards are different in the sense that one does not lead to the presumption that the other can apply.

In summation, proportionality cannot apply to Article 25(1). The standards that are required for the same cannot be established owing to the requirements of balancing, which are not met in Article 25(1)’s context, and because of the jurisprudence of Article 25(1), which has refrained from applying standards of reasonableness.

CONCLUSION

Whether proportionality should be applied to Article 25(1) is a normative question, answering which would require much research. In this article, I limited myself to a much-limited inquiry of whether proportionality can be applied to Article 25(1) if needed and answered it in the negative. I began with the argument that standards of reasonableness cannot be used to justify proportionality in India. Then, I argued that to establish proportionality, the limitation clause of Article 25(1), and its judicial interpretation, needed to be analysed and that on such an analysis, it is found that proportionality could not be applied to the article.

Guest Post: Ends over Means – On Dhulia J.’s Circumvention of the Essential Religious Practices Test in the Hijab Case

[This is a guest post by Kartik Kalra.]

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The Supreme Court delivered its judgement in Aishat Shifa v. State of Karnataka last week, a split verdict on the constitutionality of a Government Order (“Order”) prescribing an official uniform for government schools. This Order begins by complaining about the occurrences of religious observances inside school premises, which it considers to constitute an “obstacle to unity and uniformity in schools and colleges.” Anticipating an immediate constitutional challenge to the prohibition on wearing the Hijab inside the classroom, the Order cites selective precedent to argue that wearing the Hijab is not an essential religious practice in Islam, and is therefore outside the scope of the right to profess and practice religion under Article 25. The Karnataka High Court, via a survey of religious texts, concluded in Smt. Resham v. State of Karnataka that wearing the Hijab is only directory instead of mandatory, and is therefore not an essential religious practice in Islam. This meant that wearing the Hijab is outside the domain of the right to profess and practice religion under Article 25. On appeal, the Supreme Court was tasked to determine the constitutionality of the Order on many axes, one of which was the Essential Religious Practices (“ERP”) test.

In the split verdict, Dhulia J. holds that an ERP analysis has no application in navigating the assertion of an individual’s right against the state, and therefore no application to the instant case (¶17). He cites two reasons for this proposition: first, that an ERP analysis is undertaken only when rights under both Articles 25 and 26 are in question; and second, that there is no scope of an ERP analysis when rights under both Articles 19(1)(a) and 25(1) are in question (¶21). In this piece, I propose that the circumvention of the ERP in Dhulia J.’s judgement, while ultimately desirable due to the extensively highlighted plethora of problems with the test, occurs via means that do not have a firm grounding in jurisprudence. I also propose cleaner, judicially sound alternatives to reach the conclusion of the Order’s unconstitutionality.

Scope of the ERP Test: Confined to Article 26?

In favour of the first proposition of the necessity of simultaneous claims under both Articles 25 and 26 to invoke the ERP, Dhulia J. argues the following (para 21):

The test of ERP has been laid down by this Court in the past to resolve disputes of a particular nature…By and large these were the cases where a challenge was made to State interference on what was claimed to be an “essential religious practice.” What was raised was the protection of Article 25 as well as Article 26 of the Constitution of India. In other words, these were the cases where both Article 25 (1) and (2) and Article 26 were in play. Essentially, these were the cases where the rituals and practices of a denomination or a sect of a particular religion sought protection against State intervention. Even when Rights of an individual were raised, as we may say in the case of Shayara Bano… or [the] Sabarimala case, these were cases where an individual right was asserted against a religious practice or where there was an assertion, primarily on a religious identity.” (emphasis mine)

The first segment of the above paragraph on the invocation of the ERP test when simultaneous claims under Articles 25 and 26 are made, does hold true for the early days of ERP jurisprudence. In the cases of Shirur Mutt, Durgah Committee and Venkatarama Devaru that involved simultaneous claims under both Articles, Gopalan’s formulation of the compartmentalization of fundamental rights and the absence of a subordination clause under Article 26 were reasons to carve out limits to the rights of religious denominations. While the individual’s right under Article 25(1) is expressly subordinated to other fundamental rights, no such subordination is done for the rights of religious denominations under Article 26. The rights of the denomination cannot, of course, be unfettered. Therefore, in attempting to regulate the right under Article 26, the Court proposed various formulations of the ERP test that had the effect of limiting the extent of the right instead of defining its restrictions. In Durgah Committee, therefore, the question was whether the practice of the Soofi Chishtia Muslims exclusively managing the Durgah Khwaja Sahib was an essential religious practice. If the answer was in the affirmative, the Act undermining the practice became unconstitutional, and if the answer was in the negative, then there existed no right at all.

Subsequently, the migration of the ERP test to Article 25(1) did occur. Dhulia J. recognizes this in the second segment of the quoted paragraph, but holds that the limited cases where ERP has been applied to Article 25(1) involve an individual’s dissent against religious practices, and not the state-led deprivation of an individual’s religious freedoms (¶21). He considers Sabarimala and Shayara Bano to be illustrative of this proposition. Shayara Bano fits the bill, for an individual aggrieved by a discriminatory practice supposedly mandated by religion (and enforced by the state) petitioned the Court to hold it unconstitutional. However, Sabarimala, while also involving an individual’s dissent against state-sanctioned discriminatory practices supposedly ordained by religion, did not involve an application of ERP in Article 25(1), and therefore does not illustrate this proposition. Instead, the application of ERP occurred in its traditional location of Article 26(b). In response to the claim that the exclusion of women from places of public worship was violative of their right to equality and privacy, the Ayyapans argued that they constitute a religious denomination and the exclusion of women from the Sabarimala temple and its corresponding pilgrimage was an essential religious practice protected under Article 26(b). The Court, by a majority, rejected this argument by finding inconsistencies in the exclusion of women from the temple and its pilgrimage, and held that this practice did not pass the ERP test.

Shayara Bano, however, is only the tip of the iceberg. There is significant jurisprudence where the ERP test has also been applied to cases of state deprivation of individual religious freedoms. In this category of cases, the ERP test is invoked to portray the absence of a right: if there is no right to “profess or practice” religion because such practice is not essential to the religion, there is no right available under Article 25(1) whose infringement could be complained of. Mohd. Hanif Quareshi v. State of Bihar is the most significant case employing the ERP in an Article 25(1) analysis. The constitutionality of laws prohibiting cow-slaughter was before the Court. The petitioners argued that cow-slaughter is mandated at Bakr-Id and was therefore an essential religious practice. The Court examined Quranic texts and concluded that slaughtering cows is optional instead of obligatory, and thus not an essential religious practice (¶13). The Quareshi Muslims, therefore, had no right under Article 25(1).

In N. Adithayan v. Travancore Devaswom Board, Brahmin worshippers at a temple in Kerala petitioned the Court to hold the state-sanctioned appointment of a non-Brahmin as a temple priest unconstitutional because it violated their rights under Article 25(1). The Court held that caste-based appointments to the position of a temple priest did not have to do with the character of Hindusim, for “Hinduism is far more than a mere form of theism resting on Brahmanism” (¶12) and the monopolization of temple positions by the Brahmins was not religiously ordained but a product of its circumstances (¶17). The same course was followed in Javed v. State of Haryana, which held that polygamy is not an essential practice in Islam protected by Article 25(1) (¶44); in M. Ismail Farooqui v. Union of India, which held that offering prayers at the Babri Mosque in Ayodhya is not an essential practice in Islam protected under Article 25(1) (¶78); and in Khursheed Ahmad Khan v. State of Uttar Pradesh, holding that polygamy is not an integral part of Hinduism protected by Article 25(1) (¶13). 

On this basis, I submit that the proposition of the ERP’s irrelevance in a case involving solely an Article 25(1) question rests on shaky ground. Mohd. Hanif Quareshi and M. Ismail Farooqui are five-judge benches, and have expressly invoked the ERP in their Article 25(1) analyses. Judicial discipline, therefore, would demand a recognition of doctrine associated with the Article despite the attractive pursuit of its abandonment.

Intersection of Articles 25(1) and 19(1)(a): Applies only to the Hijab or also to the Tandava?

The second proposition used by Dhulia J. to circumvent the application of the ERP is the sui generis nature of the immediate case. He argues the following:

In the case at hand, the question is not merely of religious practice or identity but also of ‘freedom of expression,’ given to a citizen under Article 19(1)(a) of the Constitution of India, and this makes this case different.

He then makes the following further observations (paragraph 34):

We have before us two children, two girl students, asserting their identity by wearing hijab, and claim protection under Article 19 and Article 25 of the Constitution of India. Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute.

The instrumental role played by Article 19(1)(a) to preclude the application of doctrine under Article 25(1), however, is not discussed. There are two problems with this mode of circumventing the ERP: first, Gopalan’s formulation of judicial review being constrained by the principle of directness of legislation cannot be farther away from current standards; and second, there exists no determining principle to distinguish cases under Article 25(1) that also involve a question under Article 19(1)(a) and those that don’t.

Gopalan mandated that judicial review is circumscribed by the form and object of the legislation and the directness of its effects (¶8). Thus, a law that directly impacts rights under Article 22 could only be challenged under that Article, and not under Article 19(1)(d), which may have been consequentially impacted. This restraint on judicial review was done away with in R.C. Cooper v. Union of India, which held that judicial review must occur for all rights impacted by the law, not only the right most directly impacted (¶50). When rights under both Articles 25(1) and 19(1)(a) are impacted by the Order, why must a test not be undertaken for each? This also serves as an alternative cleaner route to reach Dhulia J.’s conclusion, and is discussed in the following section.

Further, Dhulia J. considers that prohibiting the Hijab inside the school also constitutes a violation of an individual’s freedom of expression, for religious clothing is a means of asserting one’s identity and preserving pluralism in a public space. He further circumvents the ERP by distinguishing the instant case from Shayara Bano and Sabarimala once more. He observes the following (paragraph 31):

In both the cases cited above [Shayara Bano and Sabarimala] again the essential determination before the Court was of religion and religious practice. Freedom of expression given to a citizen under Article 19(1)(a) was not an issue, and if at all it was it was on the periphery. In other words, not the central issue.

Even if one assumes that ERP becomes irrelevant when there is a simultaneous claim under Articles 19(1)(a) and 25(1), what principle distinguishes claims that are only under Article 25(1) from those under both Articles 19(1)(a) and 25(1)? In other words, when does a religious practice constitute meaningful expression? This issue is complicated further when Dhulia J. invokes the test of sincerity of belief, presumably under Article 25(1)(a) (paragraph 34):

Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom.

The demonstration of one’s sincerity of belief is much easier than satisfying the present form of the ERP test, and therefore claiming the right under Article 25(1) becomes easier. Added to this, there is no determining principle to distinguish claims that belong only to Article 25(1) from those belonging to both Articles 19(1)(a) and 25(1), other than the subjective attribution of social value to particular forms of religious activity. Apart from the socially ascribed meaningfulness imputed to the wearing of the Hijab when public space is turning increasingly majoritarian, is there any reason why wearing the Hijab engages Article 19(1)(a) but doing the Tandava dance does not? In Ananda Margis (I and II), followers and monks of the Ananda Marga community petitioned the Court to hold Section 144 orders preventing them from performing the Tandava dance unconstitutional on the ground that the dance was an essential part of their religion, and hence protected by Articles 25 and 26. While this was a simultaneous claim under Articles 25 and 26, Dhulia J.’s second proposition considers ERP to be inapplicable when rights under both Articles 19(1)(a) and 25(1) are claimed. In Ananda Margis (I), the Court concluded that the Tandava dance was not an essential part of the Ananda Marga faith, and held the following (para 15):

Once we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Articles 25 or 26 to perform tandava dance in public streets and public places has to be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order was justified in the interest of public order as provided in Article 25.

A right to perform the Tandava dance, therefore, is not within the scope of Article 25(1). But could the followers of the Ananda Marga not argue that they perform the Tandava dance with sincerity, and that it constitutes a form of expression of their religious identity and devotion to God? Consider the invocation of this argument in Mohd. Hanif Quareshi, which involves solely an Article 25(1) question: can’t the Quareshi Muslims claim that slaughtering cows at Bakr-Id is done out of sincerity, and is also a form of expression of their religious identity during a religious festival? There is, therefore, no determining principle to bring some cases of religious freedom within the scope of Article 19(1)(a) and exclude others, especially when sincerity becomes the metric under Article 25(1).

Cleaner, Judicially Sound Alternatives to Dhulia J.’s Circumvention

To summarize, Dhulia J.’s circumvention of the ERP occurs via the following reasoning:

1. ERP does NOT apply when either of the following two claims are involved:
   • When the claim is only for Article 25(1) and concerns the state deprivation of individual religious freedom, and NOT for both Articles 25 and 26 or an individual’s dissent against religion, or,
   • When the claim is for both Articles 19(1)(a) and 25(1);
2. Given the inapplicability of the ERP in the above two cases, sincerity of belief shall be used to determine the existence of a right under Article 25(1).

Once these two steps are successfully completed, a law infringing on an individual’s religious freedom can be held unconstitutional. This, for the reasons highlighted in the above two sections, is not in line with jurisprudence and does not possess an adequate determining principle. In this section, I propose cleaner, judicially sound alternatives to reach the same conclusion of the Order’s unconstitutionality.

Shirur Mutt: Back to the Basics

Shirur Mutt remains the locus classicus of the jurisprudence on Articles 25 and 26, for it is the only 7-judge bench to decide a case on this point. It held that the religious character of the practice is the only enquiry to be undertaken under the two Articles, and not the significance accorded to that practice by the religion (¶20). All other formulations of the enquiry under these two Articles, including Durgah Committee’s exclusion of superstitious beliefs or Ananda Margis II’s “essence of the religion” are accretions to Shirur Mutt’s basic formulation. The Court could, therefore, argue that the character of the impugned practice is undoubtedly religious, and therefore a right under Article 25(1) is engaged. This was the exact route used by the majority in Saifuddin v. State of Bombay. Given the existence of a right, the question shall now be the reasonableness of the restriction, for which a proportionality enquiry would be necessary.

Proportionality in Article 25(1)

The existence of a right under Article 25(1) is not determinative of the question of the Order’s constitutionality. Given the existence of a right, a prima facie violation thereof shall be established and the state will have the burden to prove that its limitation is pursuing a legitimate aim, is rationally connected to that aim, that there are no less restrictive alternatives that fulfil the aim in a real and substantial manner, and that the benefits derived from the limitation outweigh the harm to the right. While a reasonableness enquiry is not mandated under Article 25(1), it has been repeatedly held by the Court that no state action can be arbitrary, unreasonable or fanciful (Maneka Gandhi v. Union of India, Mithu v. State of Punjab, Shayara Bano), and more recently, that no right must be abridged more than what is necessary to achieve the state’s legitimate aims (Puttaswamy, Subhash Chandra Aggarwal, Akshay N. Patel).

The Order traces its aim to remedy “obstacle[s] to unity and uniformity in the schools and colleges”. In this case, a proportionality enquiry in its first stage would ask whether the pursuit of uniformity in schools and colleges by eliminating religious heterogeneity is legitimate. This would be followed by inquiring into the connection between the aim and the limitation: would the obstacles to unity and uniformity in schools and colleges be diminished by prohibiting the Hijab (or other religious clothing)? While both of these would likely be answered in the affirmative because the first two stages are relatively deferential, an evaluation of the connection between the pursuit of unity via the elimination of religious heterogeneity could also lead to a negative answer in the second stage. In a previous post, an author has proposed the same using European precedent, which holds that the “role of the State is not [to] remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. The question of contradictory aims could also be raised in the second stage: can uniformity ever breed unity?

The third stage would ask whether there exist less restrictive means than prohibiting the Hijab, which may substantially achieve the aim of diminishing obstacles to unity and uniformity. These could include the reasonable accommodation of religious heterogeneity or an institutionalized dialogue on communalism and religious cohabitation of a manner proposed in Aruna Roy v. Union of India. There do exist lesser restrictive alternatives to the prohibition on wearing the Hijab that may achieve unity amongst students in the school, and the limitation may fail the test at this stage. The last stage would ask whether the benefits derived from the limitation outweigh the harm caused to the right, which will be a true test of the values we hold dear: uniformity or heterogeneity.

Gupta J. does undertake the first step of the enquiry in locating the limitation’s legitimate aim in the pursuit of equality in Article 14, since he holds that the Order doesn’t “violate the freedom guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14” (¶139). He does not undertake the enquiry further. Dhulia J., however, does not undertake a proportionality enquiry at all for either Article 19(1)(a) or Article 25(1). A recognition of the engagement of a right under Article 25(1) and the Order’s pursuit of an extra-constitutional legitimate aim was a ripe ground to argue for the Order’s unconstitutionality because of its disproportionate nature, but Dhulia J. did not choose this path.

Sabarimala and Constitutional Morality

As mentioned before, Sabarimala used the ERP test in its traditional location of Article 26(b) when the Ayyapans claimed themselves to be a religious denomination and the exclusion of women an essential religious practice. In his concurrence, Chandrachud J. first held that the Ayyapans were not a religious denomination (¶319), the exclusion of women was not an essential religious practice (¶296), and arguendo, even if these two were answered the other way around, the exclusion of women from the temple and the pilgrimage would still be unconstitutional because the “freedom of a religious denomination [does not] exist in an isolated silo” (¶216) and “the freedom of religious denominations under Article 26 must be read in a manner which preserves equally, other individual freedoms which may be impacted by an unrestrained exercise” (¶217). Since the Ayyapans were not a religious denomination and had no rights available under Article 26, the question of the freedom to profess and practice their religion under Article 25(1) came next. The rights under Article 25(1) are subject to public order, morality and health along with other fundamental rights. Chandrachud, Khanwilkar and Misra JJ. held that the exclusion of women as a religious practice under Article 25 is subject to the term “morality”, which they read as constitutional morality. A progressive picture of constitutional morality was painted, which was held to include the values of nondiscrimination, equality, liberty and dignity (¶215). Since the exclusion of women from the temple and the pilgrimage was based on stereotypical understandings of sex, the religious practice did not meet the standards of constitutional morality under Article 25(1) (¶300, 422.2).

The exercise of the religious freedom, therefore, must jeopardize constitutional morality for it to be set aside. It can hardly be argued that the voluntary wearing of the Hijab undermines any of these principles. While the test of constitutional morality is not expressly invoked by Dhulia J., he does make the following rhetorical remark (paragraph 67):

All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? [O]r even decency or against any other provision of Part III of the Constitution[?]

In sum, Dhulia J.’s judgement is extremely progressive and rings the right bells for the stakes at hand. He registers his dissent against the ERP test and upholds the values of dignity and privacy, finding the Order unconstitutional. While his conclusion is desirable and necessary in any society committed to a liberal-democratic order, the means to reach it do not have a firm grounding in jurisprudence. While the evolution of case law on this issue has been inconsistent, more progressive jurisprudence has developed in other domains that was ripe to be utilized here. The ERP test, while significantly undermined by Dhulia J., still lives on to fight another day.

Guest Post: Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case

[This is a guest post by Megha Mehta.]

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A Division Bench of the Supreme Court is currently hearing SLPs from Resham v. State of Karnataka, (MANU/KA/0912/2022) the Karnataka High Court judgement upholding the ban on hijab in state government-run educational institutions. Judging by what has been reported in legal news portals, the hearings have gone on the tangent of whether it is permissible to proscribe a ‘uniform dress code’ (a sartorial precursor to the UCC?) in ‘secular’ government institutions. Keeping aside the debatable nature of some of the observations made by the Bench, the issue now risks being collapsed into the same category as controversies involving Sikhs’ right to wear the turban in the army, the rights of Muslim airforce officers to have beards, whether the essential religious practices [ERP] test applies, etc.

However, this eclipses the larger jurisprudential point, i.e., to what extent should the State/judiciary intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women? Whose version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves? This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions challenging the practice of polygamy and nikah halala amongst Muslims.

I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender equality and religious freedom: Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’). In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’ between the right to equality and protection against gender discrimination versus the right to freedom of religious practice. Moreover, in both cases the Court has sought to resolve this conflict by applying considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the women affected by the practice.

Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test, and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral divorce disadvantages Muslim women. Indeed, the majority as well as the dissenting opinions referred to the Muslim woman in protectionist language, framing her as a victim of religious oppression. [1]

In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the Sabarimala temple is an “essential practice” of Hindu religion. Rather, he commented that it is essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement, ¶122) affirming the idea that Hinduism has always been egalitarian. On the other hand, Nariman J. and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution. (¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices should be to bypass the ERP test altogether. Instead, the question should be whether the impugned practice results in the exclusion of a group of citizens and thus violates the fundamental principles of dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained in the Constitution. (¶215-216)

There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect. From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation, promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious practice has the effect of denying civic equality to women. Notably, the anti-exclusion principle as developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s ‘capabilities approach.’ Nussbaum has also argued, in relation to the Hindu Code Bill debates and the Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights. This particularly includes practices which stigmatize individuals on account of their sex. [2]

Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian Constitution’s transformative potential is a powerful tool for checking the subordination of women by religious norms. However, there are some important nuances which are not expressly clarified by the judgement though they may be implied therein—who is the correct authority for making assessments about what constitutes ‘dignity’ and ‘exclusion’? What if the affected group does not see religious worship and the enjoyment of fundamental rights in bright line/hierarchical terms—what if women wish to build a feminist reinterpretation of the religious practice into the law rather than arguing for it to be declared illegal/unconstitutional? It may be argued that since the anti-exclusion principle is undoubtedly a tool for achieving substantive equality, the views of the purportedly marginalized group should take precedence over that of any other authority. However, if you apply intersectionality as a framework, how should the State/judiciary respond to fractures within the group? What if upper-caste women and Dalit women have substantially differing ‘moral understandings’ of a religious practice? What about differences between Sunni and Shia Muslim women? Etc. etc.

In this respect, neither Shayara Bano nor the Sabarimala judgement have directly quoted women worshippers’ views on how they are excluded by the impugned practice or discussed dissonances therein—arguably it’s the judges’ own moral views on the subject which are taking center stage. The Sabarimala judgement has in fact, expanded the scope of the Supreme Court’s jurisdiction to entertaining PILs against allegedly exclusionary religious practices even if no woman worshipper has personally complained of discrimination (The petitioners in that case did not subscribe to the worship of Lord Ayappa). The counsel for the respondents had raised this issue in their submissions before the Supreme Court. However, both Nariman J. and Chandrachud J. emphasized in their respective concurring opinions that the “gravity of the issue” necessitated that the petition be heard, notwithstanding this anomaly. (Sabarimala judgement, ¶198, 224. Both judges cited Adi Saiva Sivachariyargal Nala Sangam v. State Of Tamil Nadu, (2016) 2 SCC 725, 737, ¶12 on this point.) Interestingly, it was the lone female justice, Indu Malhotra J. who highlighted in her dissent that permitting PIL’s in matters relating to religious practices, particularly by persons who do not subscribe to the faith, “would open the floodgates to interlopers” to question such practices, “and that the perils are even greater for religious minorities if such petitions are entertained.” (¶447) Notwithstanding criticisms of ‘anti-feminist’ thinking/conspiracy theories of a general pro-temple management stance concerning her decision, permitting ‘ideological challenges’ does create a due process issue given that the Court’s precedent will bind the affected group, i.e., religious women, without any mechanism to ensure that their interests are adequately represented. [3]

It can be counter-argued that Resham presents a substantially different bundle of facts since over here Muslim women are not challenging the constitutionality of a religious practice on the grounds that it demeans them, but are rather seeking the autonomy to continue following it contrary to State diktat. To that extent the application of the anti-exclusion principle should not encounter any difficulty if the women are able to prove that wearing the hijab does not stigmatize them as unequal, but is in fact essential to facilitating their full participation in civil society. Nevertheless, the High Court has completely ignored this distinction. The Advocate General of Karnataka quoted the Sabarimala judgement to argue that the hijab as a form of ‘compulsion of dress’ is not acceptable as it violates ‘constitutional morality’ and ‘individual dignity.’ The High Court went a step further and quoted Dr. B.R. Ambedkar on how the purdah system brings about the “segregation of Muslim women” and makes them “helpless and timid” to legitimize its conclusions on why the hijab militates against anti-exclusion and equality of opportunity (This of course, completely ignores the fact, as argued by Devdutt Kamat, that purdah and hijab are sociologically distinct practices).

The aforesaid reflexive application of the Sabarimala judgement to Resham is better understood from a law and political economy lens. From a legal realist perspective, though the Constitution embodies a transformative vision of Indian society, it is also in some respects a political compromise, given the ghost of Partition. Hence whilst Article 25(1) explicitly makes religious freedom subject to other provisions of Part III of the Constitution, Article 25(2) delegates the power to undertake social reform to the State. This echoes Dr. Ambedkar’s assurance to religious minorities during Constituent Assembly debates that “all that the State is claiming…is a power to legislate” and that their personal law would not be modified without popular consensus. (See Constituent Assembly Debates (Vol. VII), Dec. 2, 1948 speech by B.R. Ambedkar 7.65.178) In both Shayara Bano and the Sabarimala judgement, the Supreme Court has opened the floodgates to ‘ideological challenges’ to religious practices, sidestepping determination of popular consensus and deliberation by the legislature on the matter. The Karnataka government’s example indicates that such interventions by the judiciary are likely to push the executive to reclaim the mantle of ‘social reform’, and appropriate concepts like ‘constitutional morality’ and ‘dignity’ to enforce its own political agenda of ‘formal equality’ amongst religions [See 1].  On the other hand, the Supreme Court while hearing the challenge to the hijab ban, continues to parallelly act as a counter-majoritarian theological reformer in cases like polygamy/nikah halala. Scholarship critiquing rights-based reasoning has highlighted that the outcomes of ‘rights’-based cases often depend on the subjective political commitments of the judges hearing the case more than the inherent content of rights, which makes rights discourse ripe for appropriation across the political spectrum. [4] Therefore there is no guarantee that the same understanding of anti-exclusion which was applied in the Sabarimala judgement will be extended to similar cases involving ideological contestations over purportedly ‘anti-women’ religious practices (as evidently happened in Resham). In the political tangle between a majoritarian executive/legislature and a judiciary which is prone to changes in Bench composition, women’s voices are bound to be lost.

Thus, rather than delving into vague speculations about ‘secularism’, ‘liberal constitutionalism’ and the problematic ERP test, the Court should take a closer look at the anti-exclusion approach and refine it in a manner that can be used to resolve the conundrum of enforcing gender justice in religious communities. It is worth asking: which institutions are legitimately equipped to address such concerns? Can there be reconciliation, rather than rights conflict, between religious liberty and gender equality? (Malhotra J.’s dissent in the Sabarimala judgement indicated the possibility of a harmonious approach.) How can women’s voices be brought to the forefront? How do we avoid the problem of legal paternalism, i.e., courts/legislatures thinking they know ‘better’ than women themselves as to whether a particular practice is ‘dignifying’ or ‘exclusionary’? How do we deconstruct ‘woman’ itself as a monolithic category? These questions are particularly pertinent to any adjudication on the hijab, given that the existing binary between denouncing it as ‘oppressive’ and accepting it as a mandated Quranic injunction ignores the spectrum of unique reasons that Muslim women have for wearing it. Till the time courts adopt an adequate intersectional feminist analytical framework, we are unlikely to find much satisfaction in judicial reasoning on the issue.

Endnotes

1. Ratna Kapur, Gender and the “Faith” In Law: Equality, Secularism and the Rise of the Hindu Nation, 35(3) Journal of Law and Religion 407, 418 (2020).
2. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 188 (2012).
3. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy Requirement, 93(2) Harvard Law Review 297, 306, 308 (1979).
4. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 198 (Wendy Brown & Janet Halley eds., 2002); Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart xi, xix (2021).

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

[This is a guest post by Karan Gupta.]

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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.

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[All views are personal]

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.

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).

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.