The Karnataka High Court's judgment in Resham vs. State of Karnataka suffers from serious flaws, some of which have evaded the scrutiny of scholars so far.
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I must confess that an article in Indian Express dated March 21 by a Professor of English has provoked this thought process in relation to the hijab judgment. "Karnataka High Court judgment frames hijab in binaries", writes the author. My endeavour is mainly to assess this statement on the anvil of the Constitution and the Rule of law.
It is true that the judgment overwhelmingly believes in the binary that hijab is meant for covering the beauty and the sexuality of women for her own protection against violence or molestation, and that it was envisioned to protect female modesty and dignity. The reliance on religious texts is primarily on these aspects to show that hijab does not satisfy the requirements of "essential religious practice", a necessary prerequisite for invalidity. The petitioners' arguments were primarily based on the breach of Article 25 (freedom of religion) of the Constitution.
Article 25 is subject only to "public order, morality and health". It was therefore needed to check whether the prescription of dress code could reasonably fit into any of the above three grounds. Evidently, it did not because the reason given for banning hijab was "discipline" only, which is neither health, nor morality, nor public order. Unfortunately, this aspect is completely overlooked by both the lawyers and the judges.
In fairness, the high court bench tried to subsume this in the phrase "subject to other provisions of this part". This is another patent error that has crept in. "This part" means Part III of the Constitution, which is titled 'Fundamental Rights'. Through this process, Article 14 was invoked by the judges, which is difficult to understand. It is true that the right under Article 25 is subject to other rights in Part III, but there was no issue of clash of right under Article 25 of the claimants with the rights of others. This phrase relied upon by the court was hardly relevant.
Also read: Dissecting the Karnataka HC's hijab judgment
Now, coming to the main argument of breach of right to "freely practice, preach and profess religion", it can be argued that the pleadings and the evidence to show that hijab is an essential religious practice in Islam, were unsatisfactory and debatable. Therefore, I shall accept that High Court could be right there. But what is perhaps curious and interesting to note is that the State did not rely on the exception enumerated in Article 25(2)(b) – the "social welfare and reform" – a legitimate ground.
“Culture has to be unhinged from religion, which is also clear from Articles 25, 26 and 29 of the Constitution. Unfortunately, the lawyers and the judges failed to notice this unhinging in our Constitution. The result was that an important aspect of cultural identity and its correlation with the women's dignity under Article 21, went unnoticed.
The High Court judges were overtly occupied with the binary that wearing hijab was recommended for the women as a measure of social security to facilitate their safe access to public domain. This preoccupation led them to believe that the hijab wearing did not become a predominantly religious and essential practice and that was only recommendatory.
This unfortunate pre-occupation led them to err for two Constitutional reasons: firstly, the court omitted to notice the cultural aspect, and secondly, the decision of the court is also suspect on the anvil of Articles 19(1)(a) and 21 of the Constitution.
Article 29(1) is also important because in this case, the cultural aspect is ingrained in the issue faced. Article 29 provides for the "right of any section of citizens who have a distinct culture, to preserve and conserve it". It is called by the Constitution itself as a "cultural right". Hijab is a clear cultural marker, mostly carried by women. It may have had its origin in religion, yet due to continued existence over a long period of time, it was imbibed as part of cultural identity in a multi-religious and multi-cultural society.
Article 29(1) seeks to restrain demographically more powerful groups/communities, who by the share of their political representation, begin to authorise and legitimise a particular mode of being, identity and display of such cultural markers. In other words it prevents cultural encroachments in a multicultural nation.
If the essence of our being is multi dimensional, Article 29(1) definitively steps in to forbid any attempt to legitimise a particular mode of being, as conforming to an imagined national unity or identity, with the help of State power. That, in essence. is Article 29(1) and its right to conserve culture.
It is quaint that the Judges notice Article 29(1) and refer to it. They also notice that there are numerous visual, spatial, ethical, and moral dimensions to the understanding of the "usage of hijab". This way, hijab not only hides but also "marks the difference" and "affirms the religious identity".
The court accepts that the practice of hijab pre-dates Islam and that there were other cultures that practiced veiling. Women wore the veil to distinguish. As I said earlier, the practice of wearing hijab may have been derived from religion yet it bears a definitive socio-cultural relation to regions. Culture has to be unhinged from religion, which is also clear from Articles 25, 26 and 29. Unfortunately the lawyers and the judges failed to notice this unhinging in our Constitution. The result was that an important aspect of cultural identity and its correlation with the women's dignity under Article 21, went unnoticed.
The second mistake in the judgment relates to the omission to consider hijab as being part of choice and expression of the women to dress. The High Court observed that "dressing" too is an expression, relying upon the Supreme Court's NALSA judgment of 2014. It is protected under Article 19(1)(a), and therefore, ordinarily no restriction on one's personal appearance or choice of apparel can be imposed. Restrictions can only be imposed under Article 19(2).
“Terming the right to wear hijab as derivative right is like deviating from the right path. Either it is, or it is not freedom of expression; that has to be specifically decided. To adopt a loop line of derivative rights is unjustified.
It also notes that since wearing hijab as a facet of expression under Article 19(1)(a) is being debated, it may be necessary to refer to free speech jurisprudence. Ultimately it concludes, relying upon American jurisprudence, that these are decisions for schools to take based on the need for discipline. The freedom to choose attire will lead to indiscipline and chaos in campus and later in society, and is therefore undesirable, the court decides. Where does this come from is difficult to understand.
This understanding of the High Court is flawed for two reasons.
Firstly, if breach of the fundamental right under Article 19(1)(a) is undisputed, then the American Jurisprudence in this regard is hardly relevant. There is no mandate in the American Constitution quite like Article 19(2). Our Constitution grants rights as a limitation on the State's power, both legislative and executive. But this restriction on the States powers is balanced by an expressly enabling power to impose restrictions on these rights.
Freedom of expression guaranteed under Article 19(1)(a) is not an absolute right, unlike in America. It has expressly been made subject to reasonable restrictions, which the State can impose in exercise of its power under Article 19(2). This provision contemplates eight grounds for imposing restrictions, but none of those permit the abridgment of the freedom of expression on the ground of school discipline, which is more akin to police power or public interest. The High Court has completely failed to notice, or to delve on this aspect of great importance. Discipline in school or public interest relied upon cannot seek life support from Article 19(2).
The court also called in aid the principle of 'derivative rights'. This is again untenable logic, as the Constitution does not recognize 'derivative rights'. This has long been rejected. This is despite the fact that hijab was clearly projected as part of freedom of expression under Article 19(1)(a), and the court accepted it. Terming the right to wear hijab as a derivative right is akin to deviating from the right path. Either it is, or it is not freedom of expression; that has to be specifically decided. To adopt a loop line of derivative rights is unjustified.
Secondly, the finding of the court that fundamental rights have a relative content and efficiency levels depending on circumstances, is difficult to understand. There is no class among the fundamental rights in Part III. All are equal and create the same impact. Article 19(1)(a) is a precious right which has not been made subject to other rights. Therefore, the concept of relative efficiency of fundamental rights is by itself misplaced and unconstitutional.
“The Court seems to believe that the freedom of expression has not been breached to such an extent that the test of reasonable restriction may be applied. This is a gross misunderstanding. A breach, however small, of fundamental right can only be justified on permissible grounds.
There is another serious mistake. The court seems to believe that the freedom of expression has not been breached to such an extent that test of reasonable restriction may be applied. This is a gross misunderstanding. A breach, however small, of fundamental right can only be justified on permissible grounds.
The State, when it prescribes a dress code and bars the wearing of hijab, a cultural symbol, clearly restricts freedom to wear as per one`s choice. Therefore, the restriction, howsoever small, has to heed Article 19(2), or perish. The object may be laudable, but our Constitution does not work on the principle that every means to achieve a laudable objective is permissible. Not only should the end be laudable, but the means to achieve the end too have to be legal. This aspect is seriously overlooked.
It is also significant to highlight that the claimants were not opposing the prescription of a dress code. Their grievance was against the imposition of a ban on wearing of hijab in schools upon pain of getting barred from entering the school for education.
There is no grouse of discrimination, as the dress code was not being opposed. The grouse of the claimants is that they are being denied their right to education only because they chose to obey their peers and their culture. This is arbitrary, and in breach of their rights under Article 19, 21 and 29.
(The views expressed are personal.)