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

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

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

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

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

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

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

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

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

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

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

[This is a guest post by Priyansh Dixit.]

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

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

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

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

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

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

NON-APPLICATION OF REASONABLENESS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROPORTIONALITY THRESHOLD IN INDIA

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

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

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

APPLYING THE THRESHOLD TO ARTICLE 25(1)

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

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

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

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

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

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

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

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

CONCLUSION

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

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

[This is a guest post by Kartik Kalra.]

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

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

Scope of the ERP Test: Confined to Article 26?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Shirur Mutt: Back to the Basics

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

Proportionality in Article 25(1)

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

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

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

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

Sabarimala and Constitutional Morality

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

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

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

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

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

[This is a guest post by Karan Gupta.]

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

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

Secularism – Two questions

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

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

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

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

Individuals and Identity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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[All views are personal]

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

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

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

Introduction

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

Essential Religious Practices

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

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

Freedom of Expression and Privacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Non-Discrimination

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

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

Addendum: A Case of Conscience

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

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

Conclusion

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

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

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

The scope, thus, is limited to classrooms.

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

The Hijab Case: Round-Up

This is a round-up of blog posts that have discussed various issues in the ongoing hijab case before the Karnataka High Court, on which judgment has now been reserved.

1. The Essential Religious Practices Test and the Inversion of Agency: Notes from the Hijab Hearing (see here).
2. Guest Post: The Hijab Case through the Lens of Article 19(1)(a) [by Hari Kartik Ramesh] (see here).
3. Guest Post: The Hijab Case through the Lens of Non-Discrimination – Lessons from Kenya [by M. Jannani] (see here).
4. Guest Post: The Hijab Case Through the Lens of Proportionality [by Shreyas Alevoor] (see here).
5. Guest Post: The Hijab Case through the Lens of Intersectionality [by M. Jannani] (see here).

Guest Post: The Hijab Case through the Lens of 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.

Guest Post: The Citizenship (Amendment) Bill is Unconstitutional

[This is a guest post by Nivedhitha K. The piece was written before the latest draft of the Bill – which exempts certain North-Eastern states from the operation of the Amendment – was made available.]

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The BJP-led Union government is determined to table the Citizenship (Amendment) Bill, 2019 in this parliamentary session, after it lapsed earlier in the year. The bill proposes to amend Section 2 (b) of the Citizenship Act – which defines ‘illegal immigrants’ – by excluding “persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” from the ambit of “illegal immigrants”. The bill also reduces the period of residence in India for the acquisition of Indian citizenship through naturalization to six years from the earlier period of twelve years. Thus, under the amendment, these ‘minority communities’ from Afghanistan, Bangladesh, and Pakistan are no longer ‘illegal’ immigrants, and they can obtain Indian citizenship through naturalization if they have resided in India for six years.

The amendment makes two classifications: first, a classification based on religion by excluding Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from the ambit of illegal immigrants; and secondly, a classification based on country, by restricting the benefit of acquiring citizenship through naturalization to minority immigrants only from Afghanistan, Pakistan and Bangladesh.

Religion-based classification

The first argument for the unconstitutionality of the CAB is that it enacts an impermissible, religious-based classification under Article 14 of the Constitution. To understand why, we first need to look at Article 15. Article 15 provides for specific grounds – religion, race, caste, sex, place of birth – that cannot form the basis for discrimination. Thus, the grounds in Article 15 indicate impermissible discrimination, i.e the law should effect discrimination based on these grounds to be violative of Article 15. In Navtej, Chandrachud J and Indu Malhotra J did not declare section 377 of the IPC as violative of Article 15 only because it effected classification based on “sex”. Rather the test used was whether the classification was based on Article 15 grounds, and if so whether it effected discrimination. Therefore, for the violation of Article 15, both classification based on the grounds and discrimination in effect will have to be proved. However, the  Citizenship Amendment Bill cannot be subjected to Article 15, because that Article is only applicable to citizens (immigrants, by definitions, are not citizens).

This takes us to Article 14. The traditional test for an Article 14 violation requires the classification to have an intelligible differentia and a reasonable nexus with the legislative object. In Anwar Ali Sarkar, it was explained that intelligible differentia means that there must be a yardstick to differentiate between those included in, and excluded from the group. However, in Navtej, an important interpretive advance was made upon this. Indu Malhotra J, in her judgment, infused Article 15 grounds into Article 14. She interpreted intelligible differentia to mean reasonable differentia. She required the intelligible differentia test to fulfil two sub-tests: one there must be a yardstick to differentiate between those included in and excluded from the group, and two, that yardstick must itself be reasonable. She observed: “Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification based on an intelligible differentia”. Therefore, the yardstick is reasonable only if it is not based on an intrinsic and core trait of an individual. She then referred to Article 15 grounds to explain that they form an intrinsic and core trait of an individual. She noted: “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy.” Therefore, contrary to Article 15, the test for Article 14 violation is based on impermissible classification. Impermissible classification means that a particular principle cannot be used to classify because it is constitutionally irrelevant. Religion is a facet of personal autonomy, and a classification based on it is an impermissible classification.

The infusion of impermissible classification into the intelligible differentia test is justifiable for two reasons. First, while the objective of Article 15 is anti-discrimination, the objective of Article 14 is to provide equal protection of laws. Thus, Article 14 will be violated if the classification is unreasonable, while Article 15 will be violated only if there is discrimination based on the classification. Second, the interpretation of Article 14 on the lines of Article 15 aligns with the argument that fundamental rights are not watertight compartments. This understanding began with Fazl Ali J’s dissent in A.K Gopalan v. The State of Madras on the interpretation of the ‘procedure established by law’ clause. The interpretation was cemented through the evolution of the golden triangle in Maneka Gandhi v. Union of India, and strengthened by Chandrachud J’s interpretation of Article 26 in the Sabarimala case.  Therefore, classification based on religion is prima facie impermissible and violative of Article 14.

The second argument against religion-based classification in this case turns on its inability to fulfil Article 14’s nexus prong. The object of the amendment is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan, and Bangladesh’. However, by excluding Muslims from the category of ‘persecuted’, the amendment is based on the false premise that only minorities face religious persecution in a Muslim-majority country. The amendment makes an easy – but untrue – classification between minority and majority religion. This assumption is similar to assuming that all Hindus in India are treated alike irrespective of caste. However, within the majority Muslim religion, there is persecution based on sect. For example, in Pakistan, the Shias face religious persecution. Ahmadiyyas who align themselves with the Sunni school also face persecution. Unless persecution of a sect within the majority religion is recognised, the classification – of majority and minority – will have no nexus with the object of protecting those who face religious persecution.

Country based classification

The country based classification violates Article 14 as it fails the “manifest arbitrariness” test. Nariman J in Shayara Bano noted, “manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” The common threads that run through the three selected countries in the CAB are that they are Muslim-majority countries, and that they are India’s neighbours. The first rationale has been addressed above. If, however, the relevant countries have been selected because they are India’s neighbors, the exclusion of the other neighbors – such as Sri Lanka and Myanmar where people face religious persecution – must be justified. However, there is no justification because there is no adequate determining principle that guides the classification. The following points elucidate the absence of a determining principle for the classification.

1. Principle 1: Pakistan and Bangladesh were part of British India. Illegal immigrants from there could still generically be considered of Indian origin. However, with the inclusion of Afghanistan, it is evident that the classification is not based on the principle of divided India and undivided India.
2. Principle 2: Afghanistan, Pakistan and Bangladesh have a State religion. However, the classification cannot be on the basis of a State religion, as Sri Lanka prescribes Buddhism as the State religion.
3. Principle 3: Degrees of harm. In Chiranjit Lal Chowdhury it was held that the legislature is free to recognize the degrees of harm and confine the classification to where harm is the clearest. However, if the CAB is based on the degrees of harm then the Rohingyas of Myanmar ought to be included as the 2013 UN report states that the Rohingyas are the most persecuted in the world.
4. Principle 4: The classification might be limited to singling out persecuted religious minorities. However, on this logic, Sri Lankan Eelam Tamils must also be included, as the Tamil Eelams are persecuted based on religion (Hinduism) and ethnicity.

Therefore, it is evident that the exclusion of the other neighboring countries where people face religious persecution is not justified, because the inclusion of these three countries is not based on any determining principle be it Indian origin, state religion, the degree of harm, or of persecuted minorities. Thus, the country based classification is violative of Article 14 as it suffers from the vice of manifest arbitrariness.

Under-inclusiveness and Deference

Having established the violation of Article 14, it is also necessary to address two counter arguments that arise. The first counter argument is that under-inclusiveness cannot render the law unconstitutional. The second counter argument is that the court would have to exercise deferential review – by showing deference to legislative wisdom – while deciding cases on citizenship, refugees etc.

Indian courts have permitted under-inclusive laws on grounds of administrative necessity and legislative experimentation (see State of Gujarat v. Ambika Mills). However, in N.P Basheer v. the State of Kerala, it was held that under-inclusiveness would withstand scrutiny under Article 14 only when it is ‘nominal’. However, the decision neither explains nor defines the word ‘nominal’. Nonetheless, there is ample evidence now for what cannot be considered “nominal”: for example, in the case of Sowmithri Vishnu, the constitutionality of the adultery provision was challenged. The court observed that Section 497 was under-inclusive but allowed deference to legislative wisdom. However, in Joseph Shine, the court performed a volte face and struck down section 497 because it violated the ‘personal autonomy’ of women. The importance of personal autonomy in Article 14 challenges is also evident from the Supreme Court’s decisions in Indian Young Lawyers (Sabarimala) and Navtej. Hence, if the differentiation violates personal autonomy – in this case, religion – under-inclusiveness is certainly not ‘nominal’.

What of the argument that deference to legislative wisdom is required on issues of citizenship, refugees and the like, as they fall under the realm of legislative policy? On the contrary, I suggest that this argument should be turned on its head: precisely because the issue concerns citizenship, deference is undesirable. It has already been argued above that the court should not allow deference to issues that concern personal autonomy. In Navtej, Indu Malhotra J and Dipak Mishra (writing for himself and A.M. Khanwilkar) referred to Article 15 grounds as illustrative of personal autonomy. They also accepted the analogous grounds argument, by holding Section 377 violative of Article 15 because it discriminates on sexual orientation which is a ground analogous to grounds specified textually in Article 15. Therefore, very little deference must be allowed to grounds under Article 15, and grounds that are analogous to Article 15 grounds, since they are based on personal autonomy. The argument now is that citizenship is a ground analogous to Article 15 grounds, since it is an important facet of personal autonomy. The Canadian Supreme Court in Andrew v. Law Society of British Columbia held that citizenship is a ground analogous to Section 15 of the Canadian Charter of Rights and Freedom – a provision which is similar to Article 15 of the COI – because it is a ‘personal characteristic’. It was observed that analogous grounds must be determined based on the “place of a group in the socio-political-legal fabric of the society.” Where a number of important rights are accrued on the basis of citizenship, non-citizens as a minority whose interests are brushed off would fall within the analogous category. Hence, the heightened level of scrutiny to a classification based on personal characteristics (grounds analogous to Article 15, and grounds in Article 15) should prevent the court from applying a deferential review.

Conclusion

Consolidating the arguments above, religion-based classification is violative of Article 14 of the Constitution because religion is a constitutionally impermissible ground for classification, and the classification does not have any nexus with the object of the bill. The country-based classification is manifestly arbitrary and violative of Article 14, as it is not based on any determining principle. The argument that under-inclusiveness cannot be a ground for unconstitutionality is countered by explaining that a law that is grounded on personal autonomy (i.e religion) is not merely a case of nominal under-inclusiveness. And the argument on application of deferential review to issues concerning citizenship and refugees is inapplicable, as citizenship falls within the ambit of analogous grounds, for which deference should not be allowed.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?“

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Sabarimala Judgment – I: An Overview

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.  

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.