–Ashish Goel, Advocate, Supreme Court of India
Earlier this year, a three-judge Bench of the Karnataka High Court (HC) decided that female Muslim students have no fundamental right to wear a headscarf inside government schools. Given the manner in which the Petitioners put forth their arguments and given the dominance that the ‘essential religious practices’ test has on matters of religion in Indian constitutional law, the finding of the HC hardly came as a surprise.
The central issue before the HC was whether a headscarf is a part of ‘essential religious practice’ in Islamic faith, meriting protection under Article 25 of the Constitution.
Of course, one may argue that courts are incompetent or inexperienced to go into matters of religion or faith but unfortunately, as long as the test stands, there was no room for the HC to disregard the test. In fact, in Writ Petition No. 2347 of 2022, for instance, the very prayer was to direct the school authorities to not interfere with the Petitioner’s fundamental right to practice the ‘essential religious practice’ of her religion.
It is important to note that while Article 25 guarantees the freedom of conscience and the right to profess, practice, and propagate religion, Clause 2 of that article empowers the state to regulate a secular activity. It is nobody’s contention that education is not a secular activity.
The HC categorically ruled that a headscarf is not an ‘essential religious practice’ in Islamic faith. Because the state can regulate a secular activity and because the wearing of a headscarf is not ‘essential’ to Islamic faith, I do not see how the HC could have come to a different conclusion.
The matter is listed before the Supreme Court (SC) on August 29. It would be inappropriate to second-guess what stand the SC would take on this, and a lot would depend upon how the Petitioners frame their grounds of challenge, but it is high time that the SC takes stock of the fact that the ‘essential religious practices’ test has outlived its historical usefulness.
But if we look beyond Article 25, there is still an important discussion to be had on whether rules on school uniforms in government schools result into indirect discrimination. Prescribing uniforms for all school students may appear to be neutral on the face of it, but does it disproportionately disadvantage those belonging to a particular religious minority in a Hindu-majority country?
Unfortunately, the HC was not invited to go into an indirect discrimination analysis, and it is to be seen how the SC looks at it, if at all this turn into a contested issue.
Importantly, the HC did look at the principle of reasonable accommodation, but it did that in a rather shallow manner. It is surprising that the Petitioners took refuge to the principle of reasonable accommodation, not indirect discrimination. The two may appear to be the same but are not. Reasonable accommodation allows for temporary, individual-centric solutions but when we look at indirect discrimination, the solutions are rather permanent.
Needless to say, in India, the principle of reasonable accommodation has been discussed and applied in the context of disability rights. That is not to suggest that the principle cannot be extended to matters of religion or culture. However, the SC will need to examine if the state has an absolute duty to reasonably accommodate religiously motivated demands such as wearing of a headscarf inside schools where uniform is prescribed.
Measures aimed at reasonable accommodation tend to remove entry barriers for certain individuals or groups of individuals. In the context of a headscarf, some have termed the ban as a barrier to full participation of Muslim girl students in matters of education. That argument has to be tested in the SC. We may need to then go back and ask if wearing of a headscarf is intrinsic to Islam or to education, for that matter.
Of course, as stated above, the principle of reasonable accommodation is not absolute and would need to give way to an objective justification behind the ban.
To some extent, this reflects in the thinking of the HC when it states that allowing a headscarf would “offend the feel of uniformity which the uniform is designed to bring about amongst all the students regardless of their religion and faith,” would “establish a sense of social-separateness,” and “promote harmony and common brotherhood transcending religious or sectional diversities.”
The HC, however, did not examine the argument on reasonable accommodation from the perspective of access to full public participation, or a headscarf being an entry barrier to public education. Needless to say, one of the objectives of education is to think rationally and critically and not to adopt a conformist approach to pre-existing orthodoxy. These are critical questions that the SC will need to now grapple with.
Having said that, the HC took to rather shallow reasoning on one important aspect of the case that would have had an important bearing on its outcome. The HC’s observations that the petitions challenging the ban “do not involve the right to freedom of speech and expression or right to privacy, to such an extent…” and that “the grievances do not go to the core of substantive rights as such but lie in the penumbra thereof” have little jurisprudential basis. The entire analysis on Article 19(1)(a) rests on a flawed understanding of free speech jurisprudence and is not worth engaging. Hopefully, we will see some clarity on this aspect in the SC – one way or the other.
Suggested citation: Ashish Goel, Hijab Ban Case: Constitutional Questions before the Indian Supreme Court, Int’l J. Const. L. Blog, Aug. 30, 2022, at: http://www.iconnectblog.com/2022/08/hijab-ban-case-constitutional-questions-before-the-indian-supreme-court/
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