The Karnataka High Court has delivered its final verdict on the constitutionality of the state government order banning the wearing of hijabs in educational institutions.
In its verdict, the high court framed four questions in the case and decided all of them in favour of the state government. As others have pointed out, the weaknesses in the court's ruling flow from the peculiar questions framed by the court which fail to reflect, leave alone engage with, most submissions advanced by the petitioners.
Even thereafter, the judgment consists of an assortment of assertions, selective references to judicial decisions, and reliance on novel concepts that are at odds with established principles of Indian constitutional law.
The court's judgment is completely divorced from the situation on the ground and constitutional rights jurisprudence.
Was the Essential Religious Practices Test Really the Key to This Issue?
The high court was primarily concerned with applying what is known as the "essential religious practices test" (ERP).
As per this test, the court is required to identify whether a religious practice relates to "the core beliefs upon which a religion is founded," which is "to be determined with reference to its doctrines, practices, tenets, historical background, etc."
Applying this test, the high court arrived at the conclusion that "wearing of hijab by Muslim women does not form a part of (ERP) in Islamic faith" and is thus not protected under Article 25.
The ERP test has been heavily critiqued for several years by scholars, and even by the Indian Supreme Court.
Scholars have pointed out that the test is not derived from the constitutional text but from a misreading of a speech by Dr BR Ambedkar before the Constituent Assembly. Many others have objected to the power the test confers to judges to act as priests and theological authorities, and argued that this is inconsistent with the guarantee of religious freedom.
Recently, in the Sabarimala judgment, the Supreme Court expressed serious concerns over the use of the test.
In addition to Justice Indu Malhotra's dissent, in his opinion that went with the majority, Justice Chandrachud noted the absence of a constitutional foundation for the test, and that the test has led the judiciary to render findings on areas "where it lacks both competence and legitimacy."
Further, and of great relevance for the hijab ban case, Justice Chandrachud explains that the ERP "imposes an external point of view" on religious beliefs and practices, and that such a view "about what does or does not constitute an essential part of religion is inconsistent with the liberal values of the Constitution which recognise autonomy in matters of faith and belief."
Indeed, by requiring courts to place definitional boundaries on religion, the test ignores how religion is rooted in the right of personal autonomy which protects individual belief of what one's commitment to religion entails under Article 25.
In the high court's judgment, it is precisely this notion of autonomy that the court appears averse to. In addition to flatly denying the possibility that one might choose to wear a hijab, the court carries out a heavily strained reading of religious material to arrive at the conclusion that wearing hijabs is inessential to Islam.
While it is possible to critique the Court's interpretation of religious texts on several grounds, the point to be most concerned with here is the judicial usurpation of theological authority arising through the use of the ERP test.
One might argue that the Court cannot be faulted for the generally prevailing confusion over the desirability of the ERP as that is attributable to a line of case law spanning over several decades.
Yet, it needs to be remembered that precedent does not suggest that the essential religious practices test is the only test the court can apply in cases involving a claim under Article 25, especially in cases where individuals are claiming the right to religious freedom against the State and not against another religious faction or religious denomination.
It is particularly strange that the court does not acknowledge the weaknesses of the test pointed out in Sabarimala despite relying on the judgment quite extensively to arrive at its conclusion that the right to freedom of religion does not include the right to wear a hijab.
This selective reliance on particular cases is, in fact, a recurring feature of the Karnataka High Court decision, which renders it susceptible to attack in the appeal now filed before the Supreme Court.
What Is the Alternative?
Understanding religion as a facet of personal autonomy requires the court to defer to an individual's belief or self-definition of its religion. This does not, it should be noted, render the right to religion absolute.
The court ought to check whether the claim is a sincere one and is not being made for fraudulent or strategic reasons. Further, once a practice is found to be protected by the right to religion under Article 25, it can be limited by the State on grounds of public order, morality, or health.
This, and not the ERP, is the judicial inquiry that is envisaged by the Constitution.
By applying the ERP to hold that hijab is not essential to Islam and thus not protected under Article 25, the Karnataka High Court side-steps its main role of ascertaining whether the State has imposed valid restrictions on the right to religion, and instead, goes into matters of theology that it is not competent to evaluate.
A Concept of Fundamental Rights That Was Overruled 50 Years Ago
The court's approach to constitutional jurisprudence is also worrying in respect of how it understands the nature of fundamental rights and the interaction of rights with one another.
One may recall that the petitioners had argued that the prohibition of hijab violates not only the right to freedom of religion under Article 25, but also the right to freedom of speech and expression under Article 19 and the right to privacy under Articles 14, 19, and 21.
Here, the court would have to determine whether the ban satisfies the test of proportionality to be a valid restriction on these rights.
However, the court avoids this judicial inquiry by asserting that these rights are not implicated at all because the issues...
"...do not involve the right to freedom of speech & expression or right to privacy, to such an extent as to warrant the employment of these tests for evaluation of argued restrictions, in the form of school dress code."
This is a bizarre statement. The Indian Constitution does not prescribe a particular threshold to trigger fundamental rights claims, but simply requires a court to determine the scope of rights, and thereafter, determine whether a restriction imposed on a right is constitutionally valid.
The high court also refers to the right of freedom of speech and privacy as "derivative" rights without explaining what this concept means, or where it has borrowed this concept from.
The use of this novel concept appears reminiscent of the very first judgment of the Indian Supreme Court delivered in 1950, where the apex court held that a statute must "directly" affect a fundamental right.
In that case, the court held that the constitutionality of a preventive detention law could only be judged against Articles 21 and 22 which deal with personal liberty, and not against freedom of speech and movement under Article 19 as they were only indirectly engaged. This implies that fundamental rights exist in silos, separate from each other.
In most contemporary cases, petitioners argue and the courts find that a law violates multiple fundamental rights simultaneously. In this context, the court's assertions regarding "derived" rights and its distinction between derived and substantive rights require much more elaboration to constitute reasoning.
A Dangerous New Concept of 'Qualified Public Places'
Another novel concept that the judges introduce without relying on any precedent or authority is that of "qualified public places." In the court’s words:
"It hardly needs to be stated that schools are qualified public places that are structured predominantly for imparting educational instructions to the students." (page 100).
The court then notes that individual rights are repelled in qualified public places and then it attempts to draw a link between derivative rights and qualified public places by holding that "substantive rights… metamorphise into a kind of derivative rights in such places."
The court does not attempt to define what are qualified public places. It provides a list of such places, but again, the thread uniting such places is not immediately clear. This list includes "schools, courts, war rooms, defence camps, etc." (page 104).
One interpretation of the court's reasoning is that it views areas where discipline is expected as qualified public places.
Notably, however, no such sub-classification within public places is recognised under the Indian Constitution. On the contrary, Articles 12 and 13 of the Constitution simply make it clear that fundamental rights would apply to all forms of State action.
Admittedly, Article 25 envisages restrictions on the right to freedom of religion on grounds of public order, but this envisaged restriction does not mean that any administrative decision claiming to pursue public order necessarily entails a space that is a qualified public space.
If such logic were to be adopted, then freedom, including both religious freedom and individual freedom more broadly, becomes the exception rather than the norm.
Alternatively, one might seek to rationalise the sub-classification of "qualified public places" on the ground that the areas listed by the Karnataka High Court are areas where extensive rules and regulations have been imposed to ensure discipline and maintain smooth functioning.
However, this too appears contrary to the ordinary logic of Indian constitutional law.
If anything, the existence of an extensive set of rules and regulations governing the behaviour of individuals in these areas and institutions ought to be a ground for careful judicial scrutiny of such rules and regulations for compliance with constitutional provisions and principles – and not a ground to argue that the rights applicable in such areas are automatically weaker.
Supreme Court Needs To Step Up
In recent years, we have witnessed the Indian judiciary step back from its role as a rights protector in various ways.
This includes by narrowing the scope of rights, by lowering the level of judicial scrutiny for checking violations of the constitution, by identifying rights violations but failing to provide adequate remedies to safeguard them and by facilitating sealed cover jurisprudence.
The high court's judgment upholding the basis for hijab bans signifies a further retreat in judicial power – one where the judiciary actively seeks to carve out new categories of situations where the scope and applicability of rights claims are narrowed down further.
This is unprecedented, both in a literal sense, and in the ramifications that could flow from it. For the sake of the many of Muslims girls who are being harassed and are missing out on their education due to the hijab ban, one hopes that the Supreme Court takes up the appeal soon.
For the sake of India’s rights jurisprudence more broadly, one hopes that the apex court carefully examines and mends the gaps in the Karnataka High Court’s reasoning.
(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 nor is responsible for them.)