The SC’s final ruling in the hijab case will have broader implications

Published on Sep 21, 2022 07:58 PM IST

The hijab case raises several issues about Muslim women students’ right to education, the meanings of secularism, tolerance, and accommodation under the Constitution, fostering diversity and pluralism in classrooms, and the limits of State power

Thus, the final judgment of the SC will be important, not only for what it holds but also for how it holds. (Amit Sharma)
Thus, the final judgment of the SC will be important, not only for what it holds but also for how it holds. (Amit Sharma)

Over the last few weeks, the Supreme Court (SC) has been hearing challenges to a ban on the hijab in certain State-run educational institutions in Karnataka. Earlier this year, the Karnataka high court (HC) held that the state was entitled to ban the hijab, as part of its prerogative to prescribe uniforms in classrooms. The judgment led to significant debate, and was immediately appealed. It is this appeal that is presently being argued, and a judgment is expected in the coming weeks.

The hijab case raises several issues about Muslim women students’ right to education, the meanings of secularism, tolerance, and accommodation under the Constitution, fostering diversity and pluralism in classrooms, and the limits of State power. However, an additional and important issue has come to the fore, ie, the cleavage in the case of the appellants. While the lawyers representing the appellants are all asking for the same outcome — that hijab be allowed — it has become clear that there are two different, and irreconcilable, arguments for why it should be allowed.

One set of appellants pegged their arguments on what is popularly known as the “essential religious practices” (ERP) test. According to the ERP test, the SC must accord a high degree of deference to practices that are “essential” to a religion (or without which, religion would lose its character). Appellants cited verses from the Quran, and other sources of Islamic law, to argue that the wearing of the hijab is a religious prescription in Islam — mandatory and non-optional, with non-compliance met with (religious) penalties. In other words, the argument is that the claim to the hijab should be allowed because, in essence, the women students have no choice in the matter. They are following the mandatory commands of their religion.

Another set of appellants, however, made a different argument. They grounded their case not in religious prescriptions but the constitutional values of autonomy, dignity, and choice. As Nisha Susan pointed out in a detailed article, the reasons why a student might want to wear the hijab are manifold. It could be an exercise of free choice, a form of cultural identification, a complicated negotiation with family where the hijab is the price for being allowed to go to school, and yes, a form of religious identity. The point, however, is that in each of these cases, although agency is never entirely free, it is, still, a recognisable exercise of agency, and a choice. And, it is this choice that the State and SC ought to respect if it is consistent with the values that a uniform is meant to serve.

It is evident that these two arguments are not only distinct, but fundamentally at odds. One denies choice, the other celebrates it; one is founded on compulsion, the other on agency; and one insists that the dictates of religion must be accepted from on high, whereas the other allows the possibility that adherents of a religion ought to be able to shape their sense of what it means to belong to that religion, and to exercise religious freedom.

Thus, the final judgment of the SC will be important, not only for what it holds but also for how it holds. The SC may do one of two things. It may prioritise the ERP test, dismiss the arguments from choice, agency, and freedom, and turn the case into a clash between religious diktats and State law. This is largely the approach the Karnataka HC took, and it is an unfortunate one. It treats women students as passive, as victims before the SC, caught between two sets of conflicting commands, and with no choice in the matter.

Alternatively, the SC could depart from the judgment of the Karnataka HC, go beyond the ERP test, and engage seriously with the real issue in this case. That is, the human beings before it, their rights (to education, privacy, and freedom of expression), and how to balance these rights with State claims in the public sphere. Which path the court takes will have significant repercussions on the ongoing tussles between gender equality, gender freedom, and religion across the board.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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