The Hijab Verdict Is Judicial Legitimisation of the Heckler’s Veto
The HC judgment is in a tone that is almost patronising in its dismissal of the action taken by the petitioner.
It is not uncommon for a judgment to come across as legally incorrect or jurisprudentially infirm but what makes the - pronounced by the High Court of Karnataka on Tuesday, 15 March, in Resham v. State of Karnataka- remarkable is the sheer disdain and ridicule with which the court has dealt with some of the averments of the petitioner.
The judgment has been delivered in a tone that is almost patronising in its dismissal of the action taken by the petitioner; in this case, approaching the court for upholding the petitioner’s right to wear hijab (head-scarf) in the classroom.
The most concerning aspect of the judgment, however, is the court’s reluctance to directly address the aspect of ‘hecklers’ actions’, which manifested in the form of certain groups, comprising mostly men- confronting Muslim women in hijab, even going to the extent of issuing verbal threats to prevent their entry in educational institutions.
The court made note of the petitioners’ submission that disruption to ‘public order’ is not by those who wear hijab but by those who oppose it but did not acknowledge that such heckling has caused religious discrimination to hijab-clad women in Karnataka, let alone remedy it.
The lead question before the full bench was whether the practice of wearing hijab by Muslim women constitutes ‘essential religious practice’ (ERP) in Islamic faith.
After analysing the texts and material placed on record in light of the tests laid down by the Supreme Court of India, the court concluded that the practice of wearing hijab does not constitute an ERP in Islam and as such, is not entitled to enjoy the protection guaranteed by Article 25 of the Constitution.
The court reiterated the established jurisprudence that the protection guaranteed under Article 25 of the Constitution contains a guarantee of practice for only those rituals and observances, which are essential or integral part of religion.
Since the threshold requirement to prove hijab-wearing as an ERP was not met in the wisdom of the court, the bench did not go into the discussion whether wearing of hijab was in sync with other constitutional values, more specifically, dignity, liberty, and equality.
The bizarre part of the judgment arrives a little later when the court discusses the petitioners’ claims concerning violation of, inter alia, Article 15. The lack of nuance betrayed by the court while dealing with the substantive injunction against religious discrimination contained in Article 15 is, for the want of a better word, shocking.
The court proffers a reasoning that since the prescribed dress code is applicable to all the students irrespective of religion, language, and gender, the question of discrimination does not arise. This explanation goes against one of the fundamental tenets of Article 14 of the Constitution, and its other cognates, which include Article 15(1), that the equality contemplated under our constitutional scheme is secured not only by treating equals equally, but also by treating unequals unequally.
The Supreme Court has consistently that equal treatment to unequal would also amount to violation of the ‘equal protection clause' enshrined under Article 14. From its superficial treatment of Article 15, it appears as if the court has conflated the two distinct rights of ‘the right to freedom of religion’ and ‘the right against religious discrimination’ to be one and the same.
Article 15 and Article 25: Two Distinct Fundamental Rights Related to Religion
Article 15(1) of the Constitution lays down that the state shall not discriminate against any citizen on grounds only of, inter alia, their religion. At first glance, this Article might look like a superfluous reiteration of Article 14, which already militates against discrimination by guaranteeing equality before law and equal protection of laws.
Article 15(1), however, is a necessary extension of Article 14 and intends to achieve specific equity related goals. It takes a step forward from the general promise of equality given by Article 14 by recognising the disadvantageous position of religious minorities and postulating extra protection for them in the form of an explicit mandate of non-discrimination.
Such protection from discrimination is not only from state actors but also from private parties. In other words, quite like Article 14, Article 15(1) casts a negative as well as a positive obligation on the state, the duty to not discriminate against an individual belonging to a religious minority group basis his religion, and the affirmative obligation to ensure that such individual is not discriminated against by any non-state actor for the same reason.
On the other hand, the right enshrined under Article 25, one of practise of religion, only accords the entitlement to freely practice the canons of one’s religion subject to the restrictions guaranteed under the same Article.
Religious practice can always be restricted for reasons of, inter alia, public order, morality, and health. In such a case, and as briefly discussed earlier in this article, a plea of protection under Article 25 will only survive if (a) the canon can be proved to be an ERP (the threshold to prove which is quite high in the Indian context); and (b) such ERP is also in harmony with the principles of equality, liberty, and dignity as envisaged under the Constitution.
It is also crucial to note that claims under the aforementioned fundamental rights can exist independently of each other, that is to say contravention of one does not have to be necessarily claimed to prove contravention of the other. Violation of one also does not automatically lead to violation of the other.
In that sense, operation of the two Articles 15 and 25 are mutually exclusive and their conflation will inevitably lead to erroneous conclusions. The standard to prove violation of the fundamental right to freedom under Article 25 is relatively higher. Therefore, a genuine discrimination claim wrongly brought under Article 25, even if zealously pursued, will hardly be entertained.
While the court went into a detailed discussion apropos Article 25, its treatment of the religious discrimination claim under Article 15 left a lot to be desired.
Article 15 Militates Against Direct as Well as Indirect Discrimination
Professor Tarunabh Khaitan, the Professor of Public Law and Legal Theory at the Faculty of Law at Oxford and a specialist in discrimination law, has extensively dealt with various facets of Article 15.
By placing reliance on a catena of judgments, Professor Khaitan argues that any state action, whether executive or legislative, which restricts rights under Article 15 has to be made subject to a higher ‘scrutiny standard’ and not the ‘differential scrutiny’, which is applied in case of claims under Article 14.
As the name itself suggests, the ‘strict scrutiny’ standard requires a thorough examination of the impugned state action and requires the court to presume that the action in question is unconstitutional, unless the state is able to substantiate that the said action was enacted in the pursuit of (a) a compelling state interest, (b) with the least possible interference with the fundamental right, (c) in the absence of any alternative; and (d) was not disproportionate.
Needless to say, this demanding standard of review was hardly applied by the court in its examination of the government order dated 05.02.2022, which facilitated proscription of hijab for Muslim students.
Professor Khaitan also makes out a case for Article 15 acting against indirect discrimination. He characterises indirect administration as “an apparently neutral practice or policy, which puts members of a protected group at a disproportionate disadvantage compared with members of a cognate group (say, men), and which fails to satisfy a means–end justification test”.
Such discrimination occurs when an ostensibly non-discriminatory action leads to a disproportionate adverse impact on a minority group. As per Professor Khaitan, recognition of indirect discrimination is a “more substantive protection of personal autonomy”, as it secures protection from even the unintended consequences of a state action.
With respect, the Karnataka High Court failed to appreciate that the government order dated 05.02.2022, even though seemingly neutral and equal, puts women wearing hijab in a disadvantageous position by excluding them from classrooms and denying them access to education.
Another significant aspect of the protection under Article 15 is that it applies ‘horizontally’ to private actors also: as a result, one citizen is shielded from discrimination at the hands of another citizen in so far as access to public spaces is concerned.
This horizontal effect is nothing but a guarantee against bigotry and prejudice. The Article 15 jurisprudence holds out as a promise that no Indian citizen will be heckled or harassed for espousing ideas or holding beliefs that are different from the majority. Even though there was clear evidence of heckling and harassment of hijab-clad girls by an unruly mob in Karnataka, the court refused to rule that such heckling is a blatant transgression of Article 15.
The high court’s refusal to acknowledge the illegal bullying of hijab-clad girls by private parties is a cause of serious concern. If judicial cognizance of such actions are not taken, intimidation of individuals holding unpopular beliefs at the hands of vigilante groups will enjoy an implied legitimacy. Our courts are to act as counter-majoritarian institutions; their silence in the face of majoritarian aggression should make us all worried.
(Harshit Anand is an advocate and currently practices at the Patna High Court. He specialises in property and Constitutional law. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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