The undue emphasis on uniformity and false equivalence of homogeneity with secularism may negatively affect the State-society relations in India.
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THE judgment of the High Court of Karnataka in Resham vs. State of Karnataka declaring that wearing hijab or head scarfs by women is not an essential religious practice in Islam has received much criticism. Most of the discussions on the judgment revolve around the question if hijab fulfils the 'essential religious practice' test, and its impact on the right to freedom of conscience and religious practice.
However, the judgment also gives an exposition of fundamental rights which unduly limits the exercise of the same at particular locations or contexts, which has long-lasting implications. This demands a closer reading of this judgment beyond the questions of essential religious practice.
The judgment puts forth a narrow and unusual reading of fundamental rights. The court creates a hierarchy of fundamental rights which is unprecedented. It makes a classification of substantive rights and derivative rights within the fundamental rights, and positions derivative rights at a lower pedestal than substantive rights. The court declares that the protection available to substantive rights cannot be stretched too far to cover the derivative rights. It further states that when it comes to derivative rights, courts are not required to look into questions of reasonableness of the restrictions as in the case of substantive rights. Such gradation within fundamental rights is a novel approach within the fundamental rights jurisprudence. Such loose framing of fundamental rights makes us question if fundamental rights are 'fundamental' enough.
“Such gradation within fundamental rights is a novel approach within the fundamental rights jurisprudence. Such loose framing of fundamental rights makes us question if fundamental rights are 'fundamental' enough.
In this case, the court declares that the case of the petitioners — that the State action banning hijab through dress code is violative of freedom of speech and expression, and the right to privacy — is an issue of derivative rights, and therefore the court is not required to delve into the questions if such restriction is reasonable.
What is a derivative right? How did the court come to the conclusion that the petitioners' case falls within the terrain of derivative rights? Where is the constitutional backing for the proposition that the courts need not look into the question of restrictions imposed on a fundamental right, if the question is in relation to a derivative right? These are questions for which we cannot find an answer from the judgment.
Also read: Dissecting the Karnataka HC's hijab judgment
Qualified public space
Another dangerous proposition is the introduction of a concept 'qualified public space'. The High Court, in its exposition on hijab vis-à-vis Articles 14, 19 and 21 of the Constitution makes a statement that the school is a 'qualified public space'. This terminology is used six times in the judgment. While this term is not clearly defined in the judgment, the court explains that just like a detenu or a convict do not have absolute fundamental rights in specific settings, a school is a qualified public space where the operation of fundamental rights is limited. According to the court, these are spaces where "substantive rights metamorphose into derivative rights". This is a dangerous proposition at several levels. Other examples of qualified spaces as given in the judgment include a court, a prison, a war room and a defense camp.
Firstly, the judgment portrays a school along the same lines as a court, prison, or a war room – how appropriate such portrayal is, is for educationists to answer.
“The Constitution did not envisage fundamental rights in such a flimsy manner so as to get washed away in the interest of 'general discipline and decorum'. Fundamental rights can only be restricted in a manner provided by the Constitution.
Secondly, the introduction of this concept of 'qualified public space' is problematic within and beyond the school settings. A concept or a sentence used in a judgment has the potential to stretch way beyond its original intent, and Constitutional courts having precedential value for their judgements should be cautious in this regard. The way in which undefined concepts like 'basic structure of the constitution', 'constitutional morality' and 'essential religious practice' have evolved over time, what other settings would be deemed as qualified public space by the courts in the future is concerning. Would a college or university be a qualified public space? Is a public office qualified public space? Is your workplace, whether private or public, a qualified public space? We cannot let our fundamental rights tread this dangerous path.
Thirdly, while the court does not define a qualified public space, it elaborates what happens to a fundamental right in a qualified space. "Such 'qualified spaces' by their very nature repel the assertion of individual rights to the detriment of their general discipline & decorum". The Constitution did not envisage fundamental rights in such a flimsy manner so as to get washed away in the interest of 'general discipline and decorum'. The fundamental rights can only be restricted in a manner provided by the Constitution. The restrictions on fundamental rights are not universal. For example, grounds on which an infringement of right to equality can be justified, is different from the reasonable restrictions that may be imposed on the freedom of speech and expression or the freedom of movement, which is different from the grounds on which an infringement of the freedom of conscience or religious practice may be justifiable. While there are different grounds under which an infringement of fundamental right may be justifiable, general decorum or discipline is not one of them. For example, a non-violent speech in the form of a placard, arm band, or slogan, or any such expression, can be easily covered as violative of general discipline or decorum; if that is a valid ground for restriction of a fundamental right, in whichever setting it may be, that would be the end of an era of peaceful protests.
Fourthly, the court held that the content and scope of a right is dependent on circumstances. Freedom of an individual is circumscribed by their position, placement and the like. The liberty and autonomy of an individual may be maximum within the confines of their home. This stands automatically curtailed in a qualified public space, where the exercise of freedom is limited by their function and purpose, consistent with their discipline and decorum. This is the response of the court to the averment of the State that "schools are 'qualified public places' and therefore exclusion of religious symbols is justified in light of 1995 Curricula Regulation that are premised on the objective of secular education, uniformity and standardization".
As we see above, the court determines a question on the exercise of a fundamental right by examining the character of the location of the citizen, without examining the reasonableness of the restriction. For every State action allegedly violative of a fundamental right, the court should assess a) whether the infringement is based on a valid ground, and b) if such infringement is justifiable/reasonable. A blanket classification that a fundamental right is ipso facto diluted at specific locations is not constitutional.
"[T]he prescription of dress code for the students that too within the four walls of the class room as distinguished from rest of the school premises does not offend constitutionally protected category of rights, when they are 'religion-neutral' and 'universally applicable' to all the students". (The emphasis is given in the judgment).
Here, there are two issues. Firstly, the court makes a distinction between a class room and the rest of the school premises. How such a classification helps the case is not clear. The requirement of a head-scarf of a person does not or cannot be distinguished from 'inside the class', 'within the school premises' or 'outside the school premises'.
Secondly, the court, giving special emphasis to the terms 'religion neutral' and 'universally applicable', says that a particular rule enforced in classroom does not offend the constitutionally protected rights when they are religion-neutral or universally applicable to all students. The court does not consider the fact that neutrality or universal applicability of rules might infringe the self-expression, choice or religious freedom of the parties, which is the core of the present case. Here, the court tries to create a separate category of 'class room' which is immune from constitutional protections.
The court goes into long detail about the quasi-parental authority of the schools and teachers. The court even quotes Rex vs. Newport (1929) wherein the caning of students smoking in public was held to be a reasonable punishment by the English Court of King's Bench, which noted that the authority of school extends to not just the school premises, but on the way to and from school.
The court has expounded the parental or quasi-parental authority of school and teachers, and the duty of care upon teachers at multiple places in the judgment gives an impression that children are subservient citizens and devoid of constitutional rights.
It may be wondered whether these positions can stand in this era of child rights jurisprudence, and more importantly, again, the relevance of the same to the present case is unclear. But one thing is clear: the court has expounded the parental or quasi-parental authority of school and teachers, and the duty of care upon teachers at multiple places in the judgment gives an impression that children are subservient citizens and devoid of constitutional rights.
To substantiate its claim on qualified public spaces and limited rights of children in school, the court relies on the US Supreme Court judgment in Tinker v. Des Moines Independent Community School District (1966). It would be useful to quote the following paragraph from the high court's judgment.
"In US, the Fourteenth Amendment is held to protect the First Amendment rights of school children against unreasonable rules or regulations vide Burnside v. Byars. Therefore, a prohibition by the school officials, of a particular expression of opinion is held unsustainable where there is no showing that the exercise of the forbidden right would materially interfere with the requirements of a school's positive discipline. However, conduct by a student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior-materially disrupts class work or involves substantial disorder or invasion of the rights of others, is not immunized by the constitutional guaranty of freedom of speech vide John F. Tinker v. Des Moines Independent Community School. In a country wherein right to speech & expression is held to heart, if school restrictions are sustainable on the ground of positive discipline & decorum, there is no reason as to why it should be otherwise in our land." (Emphasis supplied).
In Tinker vs. Des Moines, the facts of the case and the journey of the case are both material for our discussion in the present context. In 1966, a group of citizens decided to wear black armbands in protest against the hostilities of America troops in Vietnam, and in support of a truce before Christmas. Pre-empting the arrival of students with black armbands, the school adopted a policy prohibiting the use of armbands in school. Three students went to school wearing the black armbands knowing about the new rule, and these students were suspended. The students went to court challenging the rule and sought compensation against their suspension.
The case was decided against the students in the District Court (1966) and Court of Appeals (1967). This decision was overruled by the US Supreme Court in 1969 by a majority of 7:2. However, the high court conveniently cited the extract from the District Court judgement in 1966 to suit its conclusion. Tinker vs. Des. Moines (1969) is a celebrated decision in students' rights jurisprudence. The court's famous quote in its judgment reads: "…the students and teachers shall not be expected to shed their constitutional rights of expression at the schoolgate".
There is no quote better suited to describe the instant case. To the Karnataka high court's proposition on limited exercise of fundamental rights in qualified spaces, Justice Foster's concluding statement in the majority opinion in Tinker vs. Des Moines gives a befitting reply.
"Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom".
Also read: Hijab ban in classroom: SC to hear pleas against Karnataka HC verdict after Holi vacation
The judgment incorporates long passages on the need for uniform for discipline in schools. The court goes as far as Dharmashastras to show that the practice of school uniforms is an ancient construct, way beyond Mughals or British. The judgment creates a narrative by carefully treading the concept of uniform, uniformity and homogeneity. The court creates an unholy nexus between secularism and homogeneity by holding that "[t]the school regulations prescribing dress code for all the students as one homogenous class, serve constitutional secularism".
The petitioners contended that the goal of education shall be plurality and not uniformity or homogeneity, and that classrooms should be a place for recognition and reflection of diversity of society; however, the court responded to these averments stating that they are just "hollow rhetoric", like 'unity in diversity'.
“The court equates difference with divisiveness – by doing so, it at once calls for elimination of diversity as well as terrorization of difference.
The court creates several questionable concepts. It states that a reasonable accommodation allowing the students to wear hijabs of the same colour as the uniform would amount to creating a sense of 'social separateness'. It holds that the accommodation asked for by the petitioners is not reasonable. It goes on to say that these regulations are with the object of creating 'safe spaces' where divisive lines would have no place. The way in which concepts of uniformity, social separateness, 'divisiveness and 'safe spaces' are tied in create a rather uncomfortable story. It equates difference with divisiveness – by doing so, it at once calls for elimination of diversity as well as terrorization of difference.
The conceptions of qualified public space, and derivative and substantive rights have the potential to limit the exercise of fundamental rights. The undue emphasis on uniformity and false equivalence of homogeneity with secularism may negatively affect the State-society relations in India. Unless challenged before the Supreme Court, and critiqued by the legal community, the seeds sown by this judgment may result in diminution of civil rights in future.