A dent on Indian secularity, that no longer celebrates diversity

In this guest post, Shivani Vij critiques the Supreme Court’s split judgment concerning the Karnataka Government’s order on uniform dress code in schools (the Hijab case). She particularly critiques the judgment of Justice Gupta and highlights its four constitutional fallacies. She argues that both the Judges failed to adopt a reasoning based on equal treatment of sexes.

Last month, numerous Muslim girls in Karnataka, clad in their hijabs, anxiously awaited the decision of the Indian Supreme Court in Aishat Shifa v. State of Karnataka. Aggrieved by the Karnataka Government’s order on uniform dress code in schools, two Muslim girls were denied entry to a State-run school on account of their hijab. The decision in Aishat Shifa was thus expected to be life-changing for all Muslim girls faced with the Hobson’s choice of going to school without their hijabs or not attending school at all. In a rather disappointing verdict, the Supreme Court delivered a split decision [1:1] on ‘whether a uniform dress code in school infringes the right to free religious expression’. While Justice Hemant Gupta upheld the uniform dress on the basis of an alien interpretation of ‘secularity’, Justice Dhulia struck it down on the basis of right to privacy, dignity and  religious expression.

Let alone the inconsistencies in constitutional interpretation, the difference of opinion in the Supreme Court is startling in the backdrop of a seventy-two-year-old secular constitution that celebrates diversity in all forms. The word secular in the Preamble read with Article 25 mandates the State to respect the free exercise of all religious expression, belief or conscience. As consistently interpreted by the Court, a genuine and conscientiously held belief ought to be protected (Bijoe Emmanuel v. State of Kerala). It is also understood that though the State must remain neutral towards all religions, it must protect and respect its free exercise to the extent it does not come in conflict with another fundamental right, public order or morality. For instance, previously, the right to free exercise has been restricted on account of equal protection on the ground of sex (Sabarimala’s case), public order (loudspeakers case), right to life (Nikhil Soni’s case) etc. In the absence of any of these limitations having arisen in Aishat Shifa, it is shocking that the bench reached different conclusions on whether a uniform dress code could be imposed in a manner truly violative of free religious expression.

I believe four significant constitutional fallacies plague the judgement delivered by Justice Hemant Gupta, which are: Firstly, it misreads ‘secularity’ & ‘fraternity’ under the Indian Constitution to mean complete State neutrality devoid of any religious code or symbol, rather than a tolerant and diverse living that respects religious expression & accommodates difference. It appears almost as if the Court wrongly equates Indian secularity to that of the United States of America (‘USA’) which prohibits religious expression in classrooms or to that of France which prohibits all forms of religious dress codes/ symbols in public. Secondly,it uses discipline & uniformity in schools to restrict religious expression in classrooms. Not only are these grounds absent as justifiable limitations under Article 25, but also run afoul of the reasoning in Bijoe Emmanuel which requires accommodation of religious beliefs by the State & ought not to be faulted basis principles like discipline that have no constitutional protection. This is supported by a rather damaging classification made between classrooms and other public places, where it is (mis)reasoned that religion can be exercised anywhere besides a State-run secular school. This is eerily similar to the European Court of Human Rights (ECtHR)’s judgement in SAS v. France where uniformity and living together in a society were considered legitimate aims to restrict religious freedom of wearing a headscarf in a public place. Thirdly, the decision refuses to reasonably accommodate hijab clad girls, a principle readily accepted and applied for disability. It could even be argued that the principle was previously applied in Bijoe though without terming it as such. The harsh rejection to accommodate on the basis that it would amount to differential treatment of students is misguided in the Indian context where accommodation & affirmative action are tools of substantive equality and not antithetical to it. Fourthly, a lack of proportionality analysis puts in danger the very essence of right to religious expression. While enforcing a uniform dress code, the Court fails to account for the extent to which religious expression may be curtailed and ignores completely whether the curtailment is proportionate to the legitimate aim of fraternity/ uniformity/ (misguided) secularity.

Some of the misgivings of Justice Hemant Gupta’s decision are quelled by the other judgement delivered by Justice Dhulia, who holds that a denial of entry to hijab clad girls is a violation of their privacy, dignity and secular education. This judgement nips the issue in the bud by asking: “in what manner does wearing a hijab in a classroom cause a public order or law and order situation?” justifying an interference with the right. Discipline and uniformity are thus rejected as any basis to limit religious expression. Choice of expression is rightly considered as paramount and the choice of Muslim girls is compared to that of Jehovah’s witness in Bijoe Emmanuel (Indian SC)and Pillay’s in Kwazulu (South African Constitutional Court), both respected and accommodated by courts. A denial of entry to school by the State is thus held violative of Articles 19(1)(a), 21 & 25(1) of the Constitution.  In Bijoe Emmanuel, the Jehovah witnesses cited religious reasons to refuse singing the national anthem and in Kwazulu, Pillay a student cited religious and cultural reasons to wear a nose stud in school.

While Justice Dhulia’s decision sways in the right direction, an important factor missed by both sets of judgments is a reasoning based on equal treatment of sexes, which cannot be over-emphasised. I believe it is imperative for the Court to acknowledge that a uniform dress code would put school going Muslim girls in a particularly disadvantaged position not merely on account of their religion but also on account of their sex. Accommodation would thus become significantly more crucial since an absence thereof would specifically target Muslim girls and their education. Due to the divergence in views of the judges, the matter would now be taken up by a larger bench of the Supreme Court. It is hoped that the Court then reinforces secularity as understood in the Indian constitution, that respects diversity of all religious groups and accommodates the difference in religious clothing, not threatened by disproportionate and rather shallow aims of uniformity & discipline. It is also hoped that the Court upholds the right of religious expression (especially) in classrooms which is the foremost institution to instil values of a diverse, secular and tolerant society forming the rubric of India (that is Bharat).

Views are personal.

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