Hijab verdict strikes at liberty, equality and fraternity

Our social contract is built on a building that gives primacy to individual choice. The Preamble of the Constitution recognizes this when it places an obligation on the state to protect, among other things, liberty, equality and fraternity for all citizens. The last of those values ​​is steadfast in another commitment. The state, the preamble said, shall guarantee “the dignity of the individual and fraternity ensuring the unity and integrity of the nation”.

BR Ambedkar, the chief architect of the Constitution, saw the norms embodied in these words as a trio of values. Liberty, equality and fraternity, he said, were the principles of life, “a union of the Trinity”. Divorce each other and the very purpose of democracy will be lost. The Constituent Assembly believed that only a deep commitment to these principles could help bring about a social revolution in the country. The structures of India’s democracy—the various logarithms of administration described in the Constitution—were each built on the idea that in order to achieve individual happiness, the state needed to put these standards in the foreground.

applying popular morals

In that picture, independent courts, the framers thought, would stand as a railing against any attempt to undermine social democracy. But far from acting as a “sentinel” qui vive“- as a former Chief Justice of India once described the role of the Supreme Court of India – the judiciary has periodically invoked the popular morality of the time, treating the values ​​of individual liberty as unnecessary trifles. Considered in. of Tuesday Karnataka High Court verdictIn Resham vs State of Karnataka, is the latest addition to this litany. It upholds the ban imposed on the use of hijab by students in classrooms in the state (Karnataka), and in doing so, strikes a blow against every principle enshrined in BR Ambedkar’s Trimurti Sangha.

use of court precedent

The decision is based on three broad conclusions. First, the court holds that wearing the hijab is not necessary for the practice of Islam, and, therefore, does not inhibit the petitioners’ right to freedom of religion; Second, it was found that there is no real right to freedom of expression and privacy that can be claimed within a classroom; And, third, according to this, since the government order does not by itself prohibit the use of the hijab and since it is otherwise neutral, there is no discrimination against Muslim female students.

These findings suffer from one flaw or another. Rejecting the argument that wearing the hijab is a legitimate exercise of religious freedom, the court referred to a plethora of precedents that point to only “essential religious practices” that enjoy constitutional protection. According to the court, the petitioners failed to produce any evidence to show that the use of hijab is a requirement for Islam. Yet, in spite of this, it proceeds to conduct a theological study – which one would think to do so without a thorough examination, especially without thorough testing – and conclude that Islam wearing the hijab does not make it mandatory.

This is an extraordinary discovery for a secular court. Undoubtedly, similar decisions have been made in the past by the judiciary – for example, in 2004, the Supreme Court concluded that the performance of the tandava dance was not indispensable to the Ananda Margi faith, even if followers of that religion believed so. used to go. But if the Karnataka High Court’s finding is partly based on a flawed principle, then it should take the blame for raising the question of whether the hijab was necessary for religion at all.

free choice and state action

Unlike many cases in which the principle of essential exercise is applied, this was not the case where individual liberty was contrary to group rights. Conversely, this was a case where the exercise of choice was discontinued independent of state action. The petitioners had argued that they wore the hijab as a matter of conscience. Article 25 of the Constitution guarantees to all persons equal rights not only to profess, practice and propagate religion but also “freedom of conscience”. The lawyer pointed to the Supreme Court’s decision: bijo emmanuel (1986), where the rights of Jehovah’s Witnesses who refused to participate in the singing of the national anthem were protected. There, the Court ruled that unless students sincerely believed that they should not attend lessons, their rights could be curtailed only in the interest of public order, morality or health.

In SilkKarnataka gets an easy distinction from the High Court bijo emmanuel, The judgment stated that there is no evidence in this case that the petitioners had sincerely believed in the requirement of the hijab – it is inconsequential that once the affidavit has been requested, it should be on the state to establish was that the petitioner was, in fact, not wearing a hijab out of conscience.

The court then proceeds to make an even more surprising claim: in all cases where the right of discretion is advocated, according to this, actually ipo Matters of religious freedom, and therefore, must be subject to the test of imperative. This conclusion ignores the fact that bijo emmanuel was clearly laid down on the basis of conscience and conscience should have no direct relation to religious belief. It is possible, for example, that the hijab may not be necessary for Islam, and yet Muslim women prefer to wear it as a practice of their personal beliefs.

in the classroom

That the court was unwilling to deal with this distinction is even more evident in its rejection of claims on the basis of free expression. The petitioners argued that when choosing to wear the hijab, they were merely exercising a form of identity related to their rights to freedom of expression and privacy. The court opposed this, saying that classrooms are “deserving public places” where individual rights cannot be asserted at the “damage” of “general discipline and dignity”. In places like this – and the court draws a remarkable analogy with prisons – there is a metamorphosis into fundamental rights, in judgments, in derivative rights. It is unclear what the ruling means by all of this, except that these expressly derived rights are incapable of being enforceable in a protected environment.

In all this, the Court ignores the classic test for determining when and how the right to free expression can be legitimately limited: that is, the test of proportionality. According to the decision, there is no need to draw attention to the legal principle, as “the petitions we are considering do not include the right to freedom of speech and expression or the right to privacy, to the extent that their employment is guaranteed.” test for the evaluation of reasoned restrictions in the form of school dress codes”. In this way, the court also rejects requests for “reasonable accommodation”.

multiple residences

Kendriya Vidyalayas, for example, allowed hijab within the prescribed uniform, as claimed by the petitioners. But it has been said in the judgment that by creating such a place, the purpose of the uniform will be defeated. This conclusion fails to recognize that even within the current dress code, many accommodations have actually been built. For example, religious and cultural marks on the forehead and accessories on other parts of the body are not allowed. If the purpose of the uniform is to allow no distinction, of course every display of faith in the classroom must be stamped. Therefore, we can only see the failure to provide proper accommodation for the hijab as deliberate discrimination against Muslim women.

The judgment makes repeated mention of constitutional secularism. But secularism, properly understood, demands exactly what the petitioners were seeking here: rights of agency, choice and equal treatment, and, more than anything, guarantees of fraternity, as the preamble states, With respect to everyone.

Suhrit Parthasarathy is an advocate practicing in the Madras High Court.

• Our social contract is built on a building that gives primacy to individual choice.

• Liberty, Equality and Fraternity, said BR Ambedkar, are the principles of life, “a union of the Trinity”. Divorce each other and the very purpose of democracy will be lost.

• If the purpose of the uniform is to allow no distinction, of course every display of faith in the classroom must be stamped.