In the most basic sense, the law operates by finding the right terms to define rules. Rules, on their part, protect freedom. Lawless societies permit the powerful to target those they do not like while law-abiding governments explain why restrictions on freedom are consistent with rules and not targeted. What is easy to miss, however, is that rules end up getting defined by making the right comparisons and drawing the right analogies. Good rules don’t just solve the problem at hand but account for what would happen if the same approach is applied to other similar situations. The Karnataka High Court’s recent judgment upholding the prohibition of the hijab in certain educational institutions contains errors in constitutional law, some of which it could have avoided and some not. But here, I want to describe how the judgment, at its core, is a failure of imagination at the cost of our freedom.
Also read: Let’s focus on getting women into education, work. Don’t make it conditional on what they wear
An abundance of bad analogies
That the hijab would not be considered as a protected religious practice was first hinted at in questions and arguments raised in the court proceedings. Live reporting of the hearings show that some rather strange situations were considered relevant in trying to understand the boundaries of constitutional liberty in the case. At various points, references were made to carrying weapons into the classroom, carrying a piglet into a mosque, entering trains without tickets, and praying in the middle of the road. Why were these situations considered? Were there any fundamental freedoms involved in them? Would anybody claim that they are free to do these things? How are they comparable in terms of weight or intensity to the wearing of the hijab, which was argued to be a fundamental freedom because of linkages to religion, free speech, and privacy?
One need not really go into remarks made during the hearings, especially since it can be difficult to grasp the context of some of these comparisons. But the final judgment also fails on this count. In an attempt to describe classrooms as a special space where rights can be more limited, the court makes a remarkable comparison to the restrictions placed on the rights of imprisoned undertrials and convicts. Perhaps the rights of students are subject to some limitations in the classroom, but how are classrooms remotely comparable to prisons? And what does this have to do with the specific freedom under consideration: the right to wear the hijab?
Along with this stellar effort of legal imagination, the court also makes references to foreign cases about students smoking, engaging in disruptive behaviour, and wearing immodest clothing as if these activities are akin to students wearing the hijab. References were also made to the legal decisions on triple talaq and women’s access to the Sabarimala temple, but those decisions served to limit the religious freedoms of those who discriminate against women and not the choices of women themselves. They were cases where women themselves came forward to be freed from discrimination and not a case like this one, where freedom is sought to be forced on women in the guise of uniformity and discipline.
Also read: Is hijab a choice? India can’t defend secularism on knife’s edge, like France
A paucity of good analogies
It is no accident that all of these ill-fitting comparisons lower the weight of a person’s interest in wearing the hijab and heighten the significance of society’s interest in imposing uniforms on students. What could the court have done instead? For starters, there could have been consideration of how the practice of wearing the hijab may be comparable to what are arguably fundamental freedoms. Consider this: would you turn away a disabled student, a student with bad eyesight, or a Sikh student at the school gate merely because their crutches, eyeglasses, or turban varies from the uniform? If a student decides to protest injustice by wearing a simple black armband, should that be disallowed? Uniforms as we know them are far from being completely “uniform”, as should be obvious from the fact that there are different uniforms for different genders and the right to choose one’s dress may extend to a transgender or non-binary student’s right to have choice within a broadly defined uniform. It is only by making comparisons like these that the court can arrive at some realisation as to how freedom can be accommodated without compromising social objectives like discipline. Otherwise, one ends up with findings like the one the high court does make: that if any freedom to choose dress is allowed, “the school uniform ceases to be uniform”.
Also read: Indira Gandhi’s ‘Hinduism in danger’ to Karnataka hijab row — This is what jihadists want
Bad poetry, terrible law
Arguably, the high court’s poor analogical reasoning is guided by its finding that wearing the hijab is not a protected religious freedom at all because it does not meet the technical test currently used to identify religious freedoms. While the test has been criticised, the high court was bound by it and the issue can only be resolved by the Supreme Court on appeal. But the high court definitely had other options. For decades, Indian constitutional law has accepted that different fundamental rights are not “watertight compartments”, which means that even if a practice isn’t technically a “religious freedom”, it can still be a case of religious free speech or privacy. Most strikingly, religious discrimination can occur even without any restriction on religious freedom, and the judges failed to realise that neutral rules can discriminate because of differentiated effects. The absence of consideration of these options in the judgment is another symptom of blinkered imagination.
Poor metaphors in poetry can hurt, but poor analogies in law can strip a person of their dignity. One can only hope that the Supreme Court has a better eye for such matters.
Lalit Panda is a Senior Resident Fellow (Constitutional Law) at the Vidhi Centre for Legal Policy. Views are personal.
(Edited by Anurag Chaubey)