The Supreme Court on Thursday, 13 October, delivered a split verdict on the constitutionality of the order effectively prohibiting students from wearing a hijab in certain schools in Karnataka. Justice Hemant Gupta found the order to be constitutionally valid while Justice Sudhanshu Dhulia found it to be a violation of the right to privacy, dignity, religion and religion.
The two opinions do not simply arrive at different conclusions, but do so through starkly contrasting approaches to constitutional adjudication.
Justice Gupta’s judgment, running into 133 pages, begins with a preliminary section discussing secularism in the abstract, with multiple references to case law. The judgment relies on case law to identify important constitutional concepts (such as secularism and equality), but then appears to distort or obfuscate the meaning of those concepts at the stage of applying them to the facts of the case.
The opinion also conflates the inquiry on the scope of the fundamental rights involved and whether there is a valid restriction on those rights. By contrast, Justice Dhulia’s simply written and succinct opinion carries out a structured inquiry, taking a clear view of the justificatory burden on the Government and explaining why this burden was not discharged.
Secularism and Freedom of Religion Under Article 25
Straight off the bat, Justice Gupta recognises that there is a distinction between the conception of secularism in India and in the west.
This is a well documented distinction and is two fold. First, the difference is of “separation”. While the states in the West maintain a wall of separation between the state and religion, in India the state maintains a “principled distance” from religion.
The Indian Constitution, while providing for a right to freedom of religion in Article 25(1) allows the State to interfere in matters of religion by regulating the secular activities associated with religion (Article 25(2)(a)) and enacting social welfare reforms (Article 25(2)(b)). Second, while in many Western jurisdictions, secularism is construed to mean that the State must be blind to all religions in order to promote religious neutrality, in India secularism is understood to require tolerance of religious diversity while not endorsing any one religion.
Despite noting the distinction in the two conceptions of secularism, Justice Gupta ends up blurring it.
For instance, he notes that “the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him”.
This means that the State should not discriminate against a person on the basis of religion. However, Justice Gupta considers it a cue for the State “to bridge the gap between different sections of the society and to harmonise the relationship between the citizens to ensure growth of community in all spheres i.e., social, economic and political”.
On this basis, Justice Gupta goes on to conclude that even though the belief of an individual may require them to wear a headscarf, “the religious belief cannot be carried to a secular school maintained out of State funds.” This conception is clearly inspired by the “blindly anti-religious” western conception of secularism as opposed to the notion of secularism that respects religious diversity.
Once Justice Gupta acknowledged that the hijab is part of an individual’s personal belief, the inquiry should have been carried out in terms of Article 25.
Article 25(1) makes the right to religion subject to other fundamental rights in Part III and to public order, morality, health.
Justice Gupta’s primary justification for upholding the hijab ban is not on the basis of public order, morality or health, but because he views it as promoting discipline in the institution.
However, instead of explaining how this particular deviation in wearing uniforms would result in an overall loss of discipline across the institution, his judgment simply asserts that the two are intricately linked.
In one place, he asks: “if the norms of the uniform in the school are permitted to be breached, then what kind of discipline is sought to be imparted from the students”. This kind of rhetoric fails to evaluate the validity of the restriction on the right under Article 25 based on the text of the provision.
In comparison, Justice Dhulia’s reasoning on this aspect lays bare the weaknesses in Justice Gupta’s view. He notes that while there can be no quarrel with the proposition that schools require discipline, the High Court’s comparison of schools with a jail or military camp was odd.
He also that “[l]aying down a principle is one thing, justifying that to the facts of a case is quite another....Do the facts of the case justify the restrictions inside a classroom, which is admittedly a public place? In my opinion there is no justification for this.”
Justice Dhulia correctly placed the burden on the State, and found that the State had provided no plausible reasons to explain how a woman wearing a hijab in a classroom is contrary to public order, morality or health.
Discipline, But Not Be at the Cost of Freedom & Dignity: Justice Dhulia
Aside from carefully scrutinising the State’s emphasis on discipline, Justice Dhulia’s judgment grapples with the substantive content of the rights that were sought to be balanced away in the name of discipline.
At the heart of the issue lies the value of dignity that connects religious autonomy and freedom of speech and expression.
As Justice Dhulia noted, while discipline is desirable, it should not be at the cost of freedom and dignity. He added:
“Asking a pre university school girl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Articles 19(1)(a) and 21 of the Constitution of India. This right to her dignity and her privacy she carries in her person, even inside her school gate or when she is in her classroom.”
He also stressed on the principle of reasonable accommodation as a sign of a mature constitutional democracy.
Students Wearing Headscarf Would Appear Different: Justice Gupta
On the other hand, Justice Gupta’s treatment of these issues is incorrect in law, heart-wrenching in fact and distressing in its broader implications.
After citing numerous judgments that underline the value of unity in diversity, Justice Gupta holds “the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike”.
For Justice Gupta, hijab stands in the way of creating a homogenous group of students and would create a segmented society. Justice Dhulia, on the other hand, recognises that it is the undue emphasis on homogeneity in this manner that might create segregations in society as it could discourage certain female students from pursuing education.
Strikingly, Justice Gupta expresses fear over the fact that “some students wearing headscarf in a secular school run by the State Government would stand out and overtly appear differently”. It appears that Justice Gupta’s conception of fraternity does not have room for anyone who looks different from what a majority understands as homogenous.
While the Supreme Court on one hand has gradually constructed a jurisprudence on dignity, recognising the uniqueness of individuals and the importance of autonomy, Justice Gupta’s constitutional vision is predicated on the idea that unless individuals in public spaces can blend into a homogenous mass their rights would not be taken seriously.
Would differently-abled persons or transgender persons who might appear different to a majority find a place in Justice Gupta’s classroom?
Uniformity for Equality vs The Actual Effects of the Govt Order: Two Judges, Two Approaches
Perhaps the most puzzling part of Justice Gupta’s judgment is its use of the right to equality under Article 14 to narrow down the scope of other rights, and to expand the scope of restrictions on rights in general.
Flying in the face of decades of Indian constitutional jurisprudence on equality, Justice Gupta repeatedly asserts that equality requires uniformity in all respects.
In one place, he even declares that students “should look alike, feel alike, [and] think alike”. In asserting this shallow conception of equality, he, knowingly or not, attempts to disconnect Article 14 from the broader “equality code” that it is a part of under the Constitution (containing Articles 14 to 18), and also attempts to disconnect the concept of equality from the concept of dignity that informs it.
Even aside from the fact that Justice Gupta’s understanding of the right to equality is at odds with Indian constitutional doctrine, it is noteworthy because of how it inverts the nature of the judicial inquiry involved in the case.
In one place, he notes that “the equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be breached by the State on the basis of religious faith”.
This formulation of the issue almost suggests that the State was duty-bound to issue a government order banning students from wearing a hijab, or it would be held responsible for violating the right to equality of other students under Article 14. Elsewhere, while asserting that the hijab ban does not violate the right to freedom of speech and expression under Article 19(1)(a), Justice Gupta partially relies on the idea that the ban “rather reinforces the right to equality under Article 14”.
It is also here that the disparity between the two judgments is most stark.
In contrast to Justice Gupta’s emphasis on uniformity for the sake of uniformity, Justice Dhulia considers the effects of the government order banning hijabs in educational institutions.
He notes “the case … has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!”
In appreciating the unequal starting points and different kinds of hurdles faced by various groups in society, Justice Dhulia exemplifies a concern for equality in a substantive sense.
ERP Test and the Way forward
A final and encouraging point to be noted is that neither of the two judges heavily relied on the essential religious practices (ERP) test to arrive at their conclusions.
In line with what we have argued previously, Justice Dhulia distinguishes this case from other religious freedom cases as one involving an individual right under Article 25(1), where Articles 25(2) and 26 do not come into play for ERP to be engaged.
Further, in focusing on the sincerity of the belief rather than on whether it could be said to be essential to the religion, Justice Dhulia at once recognises the Court’s limits in exercising theological power and affirms the value of an individual in expressing their own understanding of their religion.
Justice Dhulia addresses this even more clearly later in the judgment, where he emphasises that courts are not well equipped to solve theological questions, partly because there will always be more than one viewpoint on a particular religious matter. He correctly puts the burden on the State to explain why such a restriction was imposed.
Now, it remains to be seen which of these two approaches would be affirmed and developed by the Supreme Court.
The difference between the constitutional visions animating the two judgments could not be more stark.
With respect, Justice Gupta’s vision is not supported by the history, text and structure of the Constitution, and is based on a selective reading of precedent. Justice Dhulia’s approach is rooted in the constitutional provisions and builds on precedent on dignity and personal autonomy.
If the majority carries forward Justice Dhulia’s approach when this issue is finally decided, it could have a significant role in re-writing and rectifying the many weaknesses in Indian constitutional jurisprudence on religious freedom, while also reaffirming the core value of individual dignity under the Indian Constitution.
(Jahnavi Sindhu and Vikram Aditya Narayan are Delhi-based advocates. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)
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