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. 

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).

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.

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

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

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

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

The Problem With Article 25-centric Arguments

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

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

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

Clothes as a Form of Symbolic Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

Bijoe Emmanuel v Nalsa

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

Nine Judges, Seven Questions

Tomorrow, a nine-judge bench of the Supreme Court will begin hearing seven “questions” that have arisen out of a reference made in the Sabarimala review. On this blog, we have questioned the manner of the referral, the constitution of the bench, the constitution of the bench, and the framing of the questions. That said, the Court has decided to go ahead with the hearing in its present form; so the question now turns to what would be the best manner in which to answer these questions.

As a preliminary point, it is important to reiterate that many of the questions are framed in abstract terms. The best-case scenario remains – of course – for the Court to refrain from answering them in the absence of specific facts, from which legal doctrine can develop. If the Court does, however, intend to answer all the questions, then it follows that the answers, too, must be framed in the language of principles, not as concrete legal propositions. A good example of this is the last time a nine-judge bench was called upon to answer a purely constitutional question, in the absence of facts: Puttaswamy (I) v Union of India (the “privacy judgment”). Faced with the question of whether the Indian Constitution guaranteed a right to privacy, the Court – in the operative part of its judgment – simply affirmed that it did. Working out the contours of the right to privacy was left to future benches, which – for example – happened in Puttasamy II (the “Aadhaar judgment). The nine-judge bench, therefore, set out the principles involved, while concrete shape and flesh to those principles was given by later benches that had the benefit of specific facts before them. It is submitted that this salutary approach ought to be followed here as well.

On to the specific questions themselves: I will not in this post examine them individually (some of that work has been done before on this blog, and in this article, here). That may be left to later in the hearing, when there is a clearer sense of the parties’ arguments. What I want to indicate here, however, is that there is one common theme that runs through (many of) the questions: that is, the conflict between the individual and the group in the context of religion.

This conflict arises because the Indian Constitution understands religion as something that is practiced both individually (guaranteed under Article 25 of the Constitution) and in community (guaranteed by Article 26 and, in particular, Article 26(2)). In most circumstances, the contest will be between an individual and the State, or the community and the State, when laws are passed seeking to regulate or restrict elements of religious practice. There do exist, however, a set of cases where individuals are pitted against their communities – when the individual’s conception of what religious practice requires differs from what is officially sanctioned by the community, or when the individual believes that their rights are being violated by the manner in which the community’s decision-making structure functions. The classic example of this, of course, is the famous Dawoodi Bohra case, which involved the question of religious excommunication.

Now, how ought a Court to decide such a conflict if it comes before it? It is important to note, first, that there is no default “neutral” position on offer. The Constitution grants to religious denominations the right to determine matters of religion. It also grants to all the right to equally profess and practice religion. Thirdly, it grants a number of other individual rights, some of which are applicable between private parties (such as the right against “untouchability”) while others that are applicable against the State nonetheless place upon the State a positive obligation to protect them (i.e., affirmatively act to ensure that private parties are not violating them). The Constitution itself does not suggest a hierarchy of norms. Consequently, the question is one of interpretation.

Let us imagine two possible extreme approaches. Let us call the first extreme “group supremacy.” The group supremacy holds that once there exists a formal, community-sanctioned version of what religious faith or practice requires, that is sanctified by the Constitution, and nobody can interfere. Within the religious domain, in other words, there is no space for intra-group dissent, for individuals to assert their own interpretations of what faith requires, or any question of violating individuals’ rights.

The second extreme is that of “individual supremacy.” This approach holds that rights under Article 26 are entirely subject to all other parts of the Constitution. There can be no claim on behalf of the group, therefore, that conflicts with other constitutional principles (such as the right to equality, for example), and to the extent that individual and group articulations of faith come into conflict, that of the individual will prevail.

Both extremes, I suggest, are unsatisfactory, and unfaithful to the constitutional vision. The “group supremacy” approach ignores entirely what Madhavi Sunder refers to as “cultural dissent”: that is, it ignores the fact that norms internal to religious groups are often under contestation and challenge. What the “group supremacy” approach does is to put State power (through the Courts) in service of the status quo, which is the version of religious truth imposed by the formal decision-making apparatus of the group. The group supremacy approach also ignores the fact that there exist, in our country, an entire set of practices sanctified in the name of religion, that have been – and still are – violent assaults on basic human dignity (see the example of madesnana, for instance). Group supremacy, therefore, would be fundamentally contrary to our constitutional ethos.

Individual supremacy, on the other hand, is equally unsatisfactory, as it ignores the undeniable fact that the Constitutional scheme considers group autonomy in matters of religion a fundamental value. And if group autonomy means anything, it means the power of the group to determine what norms it follows for itself, without interference by parallel sets of norms (such as – again – strict requirements of individual equality).

If neither group supremacy nor individual supremacy are satisfactory ways of interpreting the scheme of Articles 25 and 26 and how they are nested within Part III, then what is? I suggest that the answer is to be found in recalling a point that Ambedkar made in the Constituent Assembly: that the fundamental unit of the Constitution remains the individual. Group rights exist in the Constitution because the framers understood that individuals need community in order to fully flourish as human beings. However, the very rationale for group rights serves to place a limit upon their extent: the group has autonomy upto the point that its norms or practices do not cause harm to the dignity or civil rights of its constituents. What is crucial to note is that the dignitarian or other harms must not lie solely within the domain of religion, because that would make the argument circular: they must extend beyond the strictly religious domain. Once again, madesnana – where Dalits are required to roll upon the leftovers of food eaten by Brahmins – is an excellent example of dignitarian harm that is deeply linked to broader social structures that go beyond simple religious faith.

The ultimate rationale for this is – as many scholars have pointed out – that in India, religion continues to be deeply linked with larger society and social and cultural structures. The consequences of unequal – or oppressive – religious practices, therefore, is not always limited to questions of faith. And it is precisely when it goes beyond that the Constitution and the Courts step in. And of course, whether that test is satisfied is for individual cases, based on specific facts.

Elsewhere, we have called this the “anti-exclusion principle.” The idea is a very simple one: the Constitution guarantees rights to both individuals and groups. In cases of conflict, a balance is essential. This balance is best-served by asking whether a particular practice under consideration has the effect of causing exclusion, or of treating certain constituents as second-class members of society, in ways that harm their dignity, or other rights in the non-religious domain. Thus, when the Court is faced with a host of competing interpretations of the Article 25/26 scheme in the coming days, this basic moral and ethical framework may come of some use in charting a path through the minefield.

The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.