One, it spends half the judgment on deciding whether the practice is essential to Islam, when, in fact, it’s completely unnecessary to do so. Even if the practice has a basis in Islam and if the wearer of the hijab voluntarily manifests a bona fide belief in wearing it, the Freedom of Religion encapsulated in Article 25 of the Constitution protects the wearer.
Two, the High Court concludes that the use of hijab would lead to the death of discipline, forgetting that in all states and Union Territories, as well as the Central government-run Kendriya Vidyalayas throughout India, hijab is permitted in schools and in all public places.
For all these decades, there has never been a single instance that can be used as evidence before the court that the wearing of a hijab led to a breakdown of public order. This is pure majoritarian thinking.
Where Is the Evidence?
Three, the High Court enunciates a militaristic adherence to uniforms as a requirement for “secularism”. The notion of a secular society being pluralistic and diverse is foreign to its thinking. On the contrary, it warns of “disruption”, “disorder” and “invasion of rights of others” without there being a shred of evidence on record.
Four, it makes a hurtful conclusion: “At the most, the practice of wearing this apparel may have something to do with culture but certainly not with religion.”
Five, it irrationally concludes that “it is impossible to instil scientific temperament into young minds so long as any proposition such as wearing of hijab or Bhagwa are regarded as religiously sacrosanct and not open to question.”
Six, it brushes aside the very important argument raised regarding the freedom of expression, the right to privacy and the right to dignity, which are all fundamental rights elaborated in a catena of decisions by the Supreme Court. It says, “The petitions we are treating do not involve the right to freedom of speech and expression or the right to privacy to such an extent…”
Seven, it uses the hurtful expression “insistence on wearing … of headgear … may hinder the emancipation of … Muslim women in particular".
Three Cases the Court Must Have Heeded
While delivering the judgment, the attention of the High Court was drawn to the brilliant decisions of the South African Constitution Court in Pillay’s case, the decision of the Kenya Court of Appeal in Fugicha’s case, and of the Canadian Supreme Court in Multani’s case. Pillay’s case dealt with the Tamil practice of girls wearing a nose stud, Fugicha’s case dealt with hijab in schools, and Multani’s case dealt with the wearing of a kirpan in schools. The High Court referred to these decisions and cursorily passed over them.
The ultimate conclusion – that genuinely-believed religious practices that are voluntarily followed by members of a religious community can also be constitutionally protected under freedom of religion, dignity, privacy, conscience, autonomy, diversity and identity – is ignored. One certainly does not have to search desperately for a binding obligation within the religion itself to secure these rights.
'Not for the Courts to Judge Correctness of Beliefs'
In Fugicha’s case, the court held, “The hijab is genuinely considered to be an item of clothing constituting a practice or manifestation of religion. It is not for the Courts to judge the correctness of the beliefs.”
In Pillay’s case, the court held:
“Religious and cultural practices are protected because they are central to human identity and hence to human dignity, which is, in turn, central to equality. A necessary element of freedom and of dignity is the entitlement to respect voluntary religious and cultural practices. That we chose voluntarily rather than through a feeling of obligation only enhances the significance of a practice to our autonomy, identity and dignity. This conforms to the Constitution’s commitment to affirming diversity and is in accord with this nation’s decisive break from its history of intolerance and exclusion.”
In Multani’s case, the Canadian Supreme Court said that “freedom of religion consists of the freedom to undertake practices and harbour beliefs having a nexus with religion, in which an individual demonstrates she sincerely believes in order to connect with the divine, irrespective of whether a particular practice or belief is required by official religious dogma.”
Absolute Uniformity Is Not Secularism
When the interim as well as the final decisions were challenged in appeal in the Supreme Court, it is unfortunate that the court did not take up the matter immediately and stay the decisions of the High Court. It is not often that matters of utmost social importance and which have wide-ranging consequences come before the Court to be relegated to a later day, without even a consideration regarding an immediate stay. I am sure that had the court spent even a little time perusing the final order, it would have stayed the judgment immediately.
Constitutionally wrong decisions that create social discontent and give majoritarian groups cause for celebration must be decided with utmost alacrity. The Supreme Court must set an example and deliver a quick and sharp criticism of the High Court judgment. This is what the constitution demands. This is what secularism needs, particularly now, during this period of communal overtones in court arguments.
“War-room” and “defence-camp” (a phrase used in the judgment) kind of uniformity should never be equated with secularism. That all minorities must merge with the majority in a grand sameness is a majoritarian point of view.
Rather, we must remember the words of the South African Constitutional Court: “the Constitution thus acknowledges the variability of human beings, affirms the right to be different, and celebrates the diversity of the nation.”
(The author is a designated Senior Advocate of the Supreme Court of India and the founder of Human Rights Law Network (HRLN). This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)