In the hijab ban matter being heard by the Karnataka High Court, the focus of the arguments has been what rights, if any, the government's restrictions might breach and whether those rights are appropriate in the first place. SHAHRUKH ALAM explains why this approach is improper.
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I remember an incident from when I was a child. Our cook was relating the story of how her grandson had gone to the village tehsildar with a complaint about the headman's oppressive ways: sometimes he would make the young men work in his fields without wages; at other times he would unfairly appropriate their possessions. The grandson was piqued and he marched into the tehsildar's office. The tehsildar looked at him and muttered "these people from the criminal tribes, always creating trouble."
"Saheb …" the grandson began, "Mukhiya ji has passed an order that we must first work his fields before doing anything else. My school suffers …"
"Rascal! Don't I know you! School suffers, is it? Before mukhiya ji asked you to come and work in his field, you were so conscientious in your work that you were winning medals everyday, no? Get out before I kick you. I know you lot bunk school and thieve around in peoples' orchards."
"I never stole anything."
"I have had so many complaints against you."
The cook sighed. "Tehsildar saheb didn't even listen to the present complaint. He made my grandson sit there the whole day and finally his mother had to go and beg for his release and swear that he will mend his behaviour."
"Arrey!" I said.
She looked surprised at my indignance. "Nobody sees the injustices. They just say you're unruly and you invite trouble upon yourselves."
"Arrey!" I said again.
The educational institutions involved in the present controversy in Karnataka decided to disallow hijabs (both headscarves and face coverings, but evidently allowed face masks worn to protect against COVID) on their campuses. It would also seem that such orders were passed without due notice, causing hijab-clad students to arrive at their college gates and be unceremoniously stopped from entering. It was alleged that such oral orders by the college committees were not based in any law, since there were no prescribed uniforms at these colleges. Belatedly, the state government passed an order allowing college committees to proscribe clothes that have an effect on unity, equality and public order, apparently with retrospective effect. Some of the students who wear hijab and who had been disallowed from entering their campus impugned the actions of their institutions and the subsequent government order that belatedly granted them the power to act in such a manner in a writ petition before the High Court of Karnataka.
“Any such fiat of suspect legal basis is susceptible to judicial review in itself and of its own standing without even having to rely on arguments about fundamental rights that it might violate.
Any such fiat of suspect legal basis is susceptible to judicial review in itself and of its own standing without even having to rely on arguments about fundamental rights that it might violate. However, in the present case, the focus has shifted to what rights, if any, such restrictions might breach and whether those rights are appropriate in the first place.
Also read: Karnataka hijab ban: by ignoring religious concerns, the State has violated many fundamental rights
If midway through an academic session, the college development committees passed an order changing the grading system, for instance, allocating 50 marks for class participation, 10 for attendance, 20 for field-based projects and only 20 for written tests, it is likely that many students, and parents, would rush to court. Perhaps, the first ground of challenge would be jurisdictional incompetency (the college development committees do not have the power to tinker with the grading system), or procedural arbitrariness (that there was no discussion or notice to students). It would also certainly be asked whether this abrupt change in grading had any legitimate objective, or whether it was 'manifestly arbitrary'.
In the case of Shayara Bano vs. Union of India (2017), Justice R.F. Nariman, speaking for himself and Justice U.U. Lalit, laid down the test for "arbitrariness":
"The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle." [emphasis supplied]
Of course, the bar of acceptance for executive action, or administrative actions of college development committees taken without proper authority, or done in the pursuance of no clear and reasonable objective is much lower.
"Conventionally, judicial review is not much concerned with the merits of an administrative decision, but rather, with the process of arriving at it, and with the question of jurisdiction. The question of procedure can be categorised under three principal heads – illegality, procedural impropriety and irrationality. Illegality occurs when the decision-maker acts in excess of his powers such as when he acts ultra vires or in error of law and/or fact, unauthorisedly delegates his power, acts for improper purpose or in bad faith or fails to act, considers irrelevant factors, imposes onerous conditions etc. Procedural impropriety may be due to failure to comply with the mandatory procedure of law or breach of principles of natural justice such as audi alteram partem, rule against bias, duty to act fairly, duty to give reasons, respecting legitimate expectation, etc. Irrationality takes into its umbrella Wednesbury unreasonableness, which considers a decision as unreasonable if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person, applying his mind to the question, could have arrived at it." – Justice Sanjiv Khanna's dissenting judgement in the 'Central Vista Case' (Rajeev Suri vs. Delhi Development Authority & Anr. (2021))
“Only if an order passes the first test of legitimacy need it be measured against potential breaches to fundamental rights. A restrictive order must not be assumed to be legitimate in its own right.
In the present case, however, the opening arguments have made the array of rights available to the petitioners who wish to wear the hijab the focus of their claim. In the event, the alternative case that the order itself must first be examined for it only carries the notion of authority, even though it is mala fide and not in pursuance of any lawful function, has lost its primacy.
I would argue that only if an order passes the first test of legitimacy need it be measured against potential breaches to fundamental rights. A restrictive order must not be assumed to be legitimate in its own right.
Also read: The Karnataka hijab ban makes central the very thing that is constitutionally shunned
In law, there is a presumption that all restrictions in the public or private domain must serve a cogent purpose. The Karnataka High Courts' view that discipline in itself might be a cogent purpose is quite the Foucauldian reality ("why cannot uniform be related to maintaining academic standards, or to maintain student discipline?", the court has asked), but it does not sit well with the principles of constitutionalism.
A restriction that does not even violate any fundamental freedom may still be arbitrary if enforced for no reason except to test the limits of State power and the corresponding subservience of its citizens. I am thinking of Resident Welfare Association Rules.
Also read: Is 'unity in diversity' a farce when it comes to housing in India?
What the inversion of framing does is to start from a position where restrictive orders are taken as the default position, and then exceptions are sought to be carved out in cases where there is a breach of a fundamental freedom. On the other hand, if each restrictive order were to be considered vulnerable to scrutiny for arbitrariness, then the Court would not have found itself asking why if we can disallow ticketless traveling, or why if we can disallow guns, can we similarly not disallow hijabs? Here, in the court's reasoning, 'to disallow' is the default position and you have to show good reasons for being allowed in. While in the former case that examines all restrictive orders in their own right, the State has to give cogent reasons for each act of barring something. It would become evident to the court from the stated reasons for restricting firearms, or imposing traveling tickets, what the legitimate aims were in those cases, and how they were different from the present case, were it to examine each act of barring as a standalone executive/administrative order worthy of independent scrutiny.
In the event, we have ended up examining everyday acts of clothing, or eating, on a roster of rights and arguing that they deserve an exemption from being restricted.
On that note, the popular sentiment against the hijab being a controlling sort of garment, which polices women's bodies, is sought to be replaced by State-prescribed 'uniforms' in order to inculcate discipline.
Of course, there is an argument for the uniform being an equalizer, but in the absence of well-funded public education systems, with differential learning opportunities and access to resources, the uniform, as equalizer, is mere symbolism. Outside of the imagination of law, political theorists like the Italian philosopher Giorgio Agamben have written about biopolitics, or the playing of politics on human bodies, in order to manage populations.
Thus, such an inverted framing creates a particular worldview: where restrictive orders are deemed acceptable unless they are shown to violate a fundamental right.
Also read: The legitimacy of hijab in public institutions: an explainer
Counsel for Petitioners Y.H. Muchhala and Professor Ravivarma Kumar did indeed make submissions that the actions of the educational institutions and the state were manifestly arbitrary. They were led by extraneous circumstances like hostility to certain visible markers and demands to bar it on campuses.
“Here, in the court's reasoning, 'to disallow' is the default position and you have to show good reasons for being allowed in. While in the former case that examines all restrictive orders in their own right, the State has to give cogent reasons for each act of barring something.
Senior advocates Y.H. Muchhala and Sanjay Hegde also argued that any change must evolve through democratic discussions, by involving the PTA [parent–teacher association]. I find that herein also lies the answer to polemical debates on the subject: if you allow hijab, would you also allow naked students? Standards of sartorial choices and restrictions must surely be a subject to be decided democratically by stakeholders in PTA meetings, involving students, their reasons and their experiences. Perhaps, democratic discussions are best able to accommodate certain sartorial expressions, and reject others for being merely polemical, which are not based in actual ground realities.
In the Central Vista case, Justice Khanna, in his dissenting judgment, held that the "[d]uty to consult, though not a general common law duty, can exist in circumstances where there is legitimate expectation of such consultation, which is founded on an expectation, or from a practice of consultation."
I was talking to my closest friend a few days back who was telling me about how her son's school treats him like a young adult and takes his views on issues very seriously. Parents are not called in, as they used to be, in earlier times at a bad report card, or a misdemeanour in school. Rather, students are taught to take responsibility, resolve issues and defend their choices. It is also true that there has always been a wide gap between teaching methods at the best private schools and those at public funded ones. While the former can afford democratic decision-making, and critical thinking, the latter still speaks of 'discipline as a standard of academic brilliance'.
Also read: Support to ban on Hijab stems from lack of empathy with minorities
The popular objection to the veil is that it is a product of social conditioning, and not always an informed choice. We, of course, do recognize that social life itself is conditioned but perhaps give more leeway to conditioning that seem less stark.
Judicial reasoning is subjective too. It emanates from social and historical understanding of an issue.
There is a fascinating show on TV, by the English 'mentalist' Derren Brown, who is able to accurately gauge what his subjects are thinking by following their subconscious chain of thought. I would argue that both examples that fell from the high court in drawing analogies with the hijab are revealing: the first had to do with extremism/violence (should firearms also be allowed?) and the second had to do with ugliness (if a girl wants to cover her ugliness …) Psychologists refer to it as the subconscious mind that draws associations between ideas.
The drawing of an analogy between hijab and firearms is also located in a particular time and space, which is entirely different from the moment in which Article 25 of the Constitution was framed. The article promises freedom of conscience and also the right to freely practice, profess and propagate one's religion, subject to public order, morality and health.
Explanation I of Article 25 then clarifies that the wearing and carrying of 'kirpans' shall be deemed to be included in the profession of the Sikh religion. Why does the explanation mention the 'kirpan' and not the more obvious turban? One interpretation could be that the Indian secular public space at that time was easily able to accommodate innocuous garments that were recognized markers of identity. The 'kirpan' was mentioned probably because it is strictly not a garment. At the time, even kirpans were not considered a threat to others in the public space. In this time, garments arouse hostility and cause ruptures in unity. The court's question equating hijab with firearms also exhausts the expanded space for identity markers that Explanation I sought to create.
During arguments, senior advocate Devadutt Kamat, counsel for the petitioners, also cited a judgment from South Africa, where the Constitutional Court of South Africa upheld the right of a Hindu girl to wear a nose ring to school as an articulation of her cultural identity. The court held that "the protection of voluntary as well as obligatory practices also conforms to the Constitution's commitment to affirming diversity"; and also "the symbolic effect of denying her right to wear it for even a short period [would] send a message that Sunali, her religion and her culture are not welcome."
“Islam is particularly constructed in the image of the authoritarian, non-bending and universal sharia. Courts turn to commentaries of the Quran, or compilations of the Hadees, and ignore the rich lived experiences of the community, its everyday negotiations with scripture and with faith. The image of the maulvi, or the personal law board, as the patriarch, is reproduced in every judicial interpretation of ERP. It seems to suit both the State and the community patriarchs.
The South African Constitution is inspired by our own; it relies on Indian constitutional law as precedence. Both countries have the same legal tradition. What then explains the difference in the reasoning in the judgment and our own line of judicial reasoning as displayed in the Karnataka High Court's interim order, or through questions in court?
Also read: Udupi college hijab ban: the uniform of uniformity
The essential religious practice [ERP] test essentializes religious practices that might have one or more motivations and puts them into one intractable bracket. Several authors have written about all that the ERP does not capture; however, I am also concerned by the manner in which the principle of ERP constitutes religious communities.
Islam is particularly constructed in the image of the authoritarian, non-bending and universal sharia. Courts turn to commentaries of the Quran, or compilations of the Hadees, and ignore the rich lived experiences of the community, its everyday negotiations with scripture and with faith. The image of the maulvi, or the personal law board, as the patriarch, is reproduced in every judicial interpretation of ERP. It seems to suit both the State and the community patriarchs. On the other hand, religion as experienced by other communities, especially the 'eclectic Hindu faith' is constituted very differently: if some are carrying saffron shawls and saffron flags to school, then that might become an essential practice for those sets of Hindus. The actual basis of organization of Hinduism – caste- and cultural practices emanating from it, often escape scrutiny.
(Shahrukh Alam read Law and Sociology and now practices at the Supreme Court. The views expressed are personal.)