As the Karnataka High Court continues to hear petitions concerning the hijab saga that has dominated news from the state for the last few weeks, the Karnataka government has insisted that it is not actually interfering with any religious issues, that its order dated 5 February was "totally innocuous" and that it has left it to college authorities to decide what uniforms to prescribe for students.
Even though the Basavaraj Bommai government has insisted in the high court, through Advocate General Prabhuling Navadgi, that it has not imposed any ban on hijabs for Muslim girl students, it has also reiterated the stance taken in the non-operative part of its earlier order – that the wearing of hijabs is not an 'essential religious practice' that needs to be protected under Article 25 of the Constitution.
While the 'essential religious practice' issue issue has come to dominate the proceedings before the high court, it must not be forgotten that there are several other legal questions that need to be asked here, including
Whether the restrictions are manifestly arbitrary.
Whether the rules can be changed suddenly in the middle of an academic year.
Whether the rules on 'uniforms' amount to indirect discrimination.
These questions are extremely important, because the answers to them could mean that the actions of the college authorities in the state and of the Karnataka government are illegal and unconstitutional, regardless of the eventual decision by the bench on the 'essential religious practice' issue.
A Manifestly Arbitrary Prohibition
The term ‘Arbitrariness’ has been defined by the Hon’ble Supreme Court in the matter of M/S Sharma Transport vs Government Of A.P. & Ors, wherein it was observed that the expression 'arbitrarily' means:
“in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.”
This test was refined further in the triple talaq case in 2017, Shayara Bano vs Union of India, where it was explained how manifest arbitariness is a violation of Article 14 of the Constitution:
“And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.”
It's not just legislation, but rules as well, that have been struck down by the courts for being arbitrary because they are unreasonable. The importance of reasonableness to the right to equality has been emphasised for decades by the Supreme Court, including in the landmark Maneka Gandhi case in 1978 where it held that "Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment."
What we are dealing with here are rules by government college authorities which treat hijab-wearing girls differently from other girl students. Applying a very traditional legal test, it could be said that this is not arbitrary there is a classification being made here between those who wear hijabs/headscarves with a religious connotation, and those who do not, and that there is a specific policy objective behind this.
However, in 1989, the apex court pointed out in Deepak Sibal vs Punjab University, that to consider the reasonableness of a particular classification in a law, it is necessary to take into account the objective for such classification.
"If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable," the court observed.
In 1981, the court had also explained how the test of arbitrariness can apply independently of the classic test of classification, in Ajay Hasia vs Khalid Mujib Sehravardi.
The judges observed there that the concept of reasonableness and non-arbitrariness "pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."
The classical test of classification evolved by the courts is not the be-all and end-all of Article 14, and if a classification is not reasonable, the impugned legislative or executive action would be arbitrary and therefore unconstitutional.
The well-settled principle that the courts have tried to lay down is that Article 14 of the Constitution strikes at arbitrariness because any action that is arbitrary, must necessarily involve negation of equality.
To see whether the act of banning hijabs/headscarfves as manifestly arbitrary, we need to apply the test laid down in Shayara Bano – is it unreasonable, capricious, discriminatory, biased, unfair or non-transparent.
Even on a bare perusal of the facts in hand, there is no doubt that these restrictions take away, in an unreasonable manner, the fundamental right of a particular section of students.
It is trite that the right to wear clothing of one's choice (especially clothing which does not interfere with a prescribed uniform where applicable) is a facet of fundamental rights to freedom of expression and religion, and the threshold to restrict this right on ground of public order will be extremely high.
The issue at hand, where there is no interference with public order by these girls wearing hijabs, is a clear instance of unreasonableness, which warrants thorough examination of how the restrictions have come about.
Can the Rules of the Game be Changed in the Middle?
An overlooked aspect of this entire debate is the insensitive approach adopted by the authorities to segregate a bunch of girls from the entire batch, in the middle of an academic session.
Aside from the basic question of fairness this raises, it is also a settled position of law that 'rules of the game' cannot be changed in the middle.
The Supreme Court in the 2001 case of Maharashtra State Road Transport Corporation and Ors. vs Rajendra Bhimrao Mandve and Ors noted that
“it has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.”
This principle was also upheld in subsequent cases in 2008.
Restricting a particular section of the students from wearing specific items of clothing in the middle of an academic session (which is certainly the case for at least some, if not all the colleges where the controversy started) clearly amounts to a change in the rules of the game from what they previously were, without sufficient notice or intimation.
For this to suddenly become such a pressing issue for these colleges, and for it to be now justified on the grounds of maintaining public order, also raises another question.
How is it that it is a public order issue for these students to wear the hijab on their school/college campus and interact with their peers, but it is not a public order issue if the same batch of students interact outside the school gate?
The reasoning of the college development committees to suddenly decide that crossing a college entrance gate while wearing this particular apparel creates a public order issue (and therefore justifies a restriction on the exercise of a fundamental freedom), hardly seems prudent.
A Case of Indirect Discrimination?
One of the more interesting arguments to be raised by the petitioners in the high court was by senior advocate Ravivarma Kumar, that the way in which the restrictions on clothing in Karnataka – which are on the face of them neutral – amounted to 'hostile discrimination' against the Muslim community, as it was only them who were being materially affected.
According to Black’s Law dictionary, discrimination is defined as “failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured."
A law or an act can appear to be neutral but it can be discriminatory in its impact and usage, something which has been recognised by constitutional courts across the world.
For instance, the Kenyan High Court in 2008 in Nyarangi & Others vs Attorney General observed that "indirect or subtle discrimination involves setting a condition or requirement which is a smaller proportion of those with the attribute are able to comply with, without reasonable justification."
In the landmark US case of Griggs vs Duke Power Company in 1971, an aptitude test used in a job application was found “to disqualify [African Americans] at a substantially higher rate than white applicants”, thereby making it a classic example of indirect discrimination.
The Supreme Court of the United Kingdom in the 2017 case of Naeem vs Secretary of State for Justice also recognised that seemingly neutral state actions could lead to indirect discrimination.
In the Indian context, it is settled that what cannot be done directly cannot be done indirectly. The implementation of a rule prohibiting particular sections of students from following a religious belief, raises serious concerns regarding the impact of such a rule being discriminatory in nature and practice.
While the jurisprudence on indirect discrimination is still at a nascent stage in India, the Supreme Court recognised its relevance in the Navtej Johar case in 2018, where it decriminalised consensual homosexual acts.
In Justice Chandrachud's opinion there, he noted that assessing whether Section 377 of the IPC as it then stood was discriminatory involved looking at indirect discrimination as well. While Section 377 applied to heterosexual persons as well, it had a disproportionate effect on the LGBTQ community, and affected their ability to engage in public life, thereby violating the "substantive equality" guaranteed by the Constitution.
It is inconceivable that Muslim women are being restricted from attending classes because they are inclined to follow a religious practice, for which no explicit ban has been imposed by law. Does the Constitution permit such exclusion?
That this is being left to the college authorities to decide doesn't help either. It is worth remembering that the Supreme Court said back in the Maneka Gandhi case, that if a rule vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle to guide them:
"it would be affected by the vice of discrimination since it would leave it open to the Authority to discriminate between persons and things similarly situated.”
The authority vested with college development committees to allow/disallow a particular religious belief is unbridled and suffers from the vice of material irregularity without proper checks and balances.
Don't Forget the High Court's Interim Order
In addition to the government and college committee's actions, another key element of the hijab saga has been the interim order of the Karnataka High Court.
The three-judge bench of the high court in its order dated 10 February passed interim directions to re-open universities and, pending consideration of the petitions "restrained the students regardless of their religion or faith from wearing saffron shawls (bhagwa), scarfs, hijab, religious flags or the like within the classroom."
It is clear that an interim order like this has wide ramifications, regardless of the clarification by the bench that it would only apply to colleges where college development committees had prescribed uniforms.
Such a direction opens the flood gates for litigation across the country and given its scope for misapplication beyond school or college going students wearing hijab, can give rise to a serious national problem with much larger associated consequences.
Despite being briefly raised in the proceedings before the high court, it also appears to be increasingly forgotten that aside from the question of freedom of religion, in the landmark right to privacy judgment in 2017, the Supreme Court clarified that one's choice of appearance and apparel are also aspects of the right of privacy.
The constitutional courts, being the protector of the fundamental rights of the citizens need to examine the issue keeping in mind the principles of secularism, equality, right to religion and freedom to practice the same, among other factors.
The ramifications of a direction by the high court in a secular country like India – not the laicite secularism of France, but secularism under our Constitution which protects personal beliefs – cannot be ignored and need to be considered carefully.
And finally, it also should be kept in mind by the court going forward that a particular religious belief should never become the basis for an embargo on the right to education.
(KTS Tulsi is a senior advocate practicing at the Supreme Court of India and a Member of Parliament in the Rajya Sabha. Tanvi Dubey is an advocate practicing in the Supreme Court of India. This is an opinion piece, and the views expressed are the personal views of the authors. The Quint neither endorses nor is responsible for them.)
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