Prof Satya Narayan Misra* in Bhubaneswar, October 17, 2022: In a milieu where the communal divide is being politically encouraged, the sharp split in the Supreme Court verdict on banning the wearing of hijab by the Supreme Court could not have been more ill-timed. This was clearly avoidable, as it was a substantial question of law that needed a constitution of a five-judge bench in terms of Article 145(3) of the Indian Constitution.

Be that as it may, the sharply contradictory viewpoint of Justice Hemant Gupta, who has supported the ban, and Justice Sudhansu Dhulia who has hauled it over the coals make interesting reading.

The impugned order of the Karnataka government dated 5th February 2022 states that in the event that the management does mandate a uniform, students should wear clothes that are in the interests of unity, equality, and public order.’ The substantial questions that the two judges addressed were (a) if the wearing of the hijab was an essential religious practice, (b) it offends freedom of conscience and religion under article 25, (c) it is contrary to the right to privacy under article 21, right to education under article 21 A and (d) if it impinges on fraternity and dignity as ordained in the Preamble and fundamental duties under Article 51A.

Justice Gupta is of the view that adherence to the uniform was a reasonable restriction to freedom of expression. The ban in his opinion did not violate freedom under Art 19 (1) (a) but reinforced the right to equality under Article 14. Fraternity is a noble goal but cannot be seen from the prism of one community alone. The order promotes an equal environment where such fraternal values can be imbibed and nurtured. Justice Gupta quoted Mohd Zubair vs UOI (2016) case where the Court upheld not permitting keeping a beard in IAF as a reasonable restriction. Permitting one religious community to wear its religious symbol would be the antithesis to secularism.

Quite clearly Justice Gupta is a vocal advocate of enforced equality & homogenization over respect for religious diversity, which is the life breath of liberal democracy.

For Justice Dhulia, the precedent to be relied upon to decide on the hijab ban is the Bijoe Emmanuel Case (1986) where the court granted protection to children of the Jehovah’s Witness sect from singing the national anthem in their school. ‘The real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.’

For justice Dhulia the girls in Karnataka have the same predicament as children of the Jehovah’s Witness sect. He strongly deplores the verdict of the Karnataka high court that the fundamental rights inside a classroom were ‘qualified public places ‘and that their rights inside are only derivative rights. Justice Dhulia writes ‘A girl child carries her dignity and privacy when she is inside the school gates in her classroom.

To say that these rights become derivative rights inside a classroom is wholly incorrect. ‘As Prof Frances Raday, who is a crusader against discrimination writes “A prohibition of veiling risks violating the liberal principles and respect of individual autonomy and cultural diversity of parents as well as students.’

Justice Dhulia also addresses a very contentious issue as to what constitutes essential religious practice to get protection under Article 25. He suggests that the courts should be slow in matters of determination as to what is an essential religious practice. Courts for him are not forums to solve theological questions. In practice, however, there have been several cases where the supreme court has given its verdict on essential religious practice.in 1954 in the case of Commissioner vs S Lakshmindra the court held that what constitutes an essential part of a religion is to be ascertained with respect to the doctrines of that religion itself.’

In its theological deep diving, the court ruled in the COP vs Avadhuta case (2004) that the Tandav dance was an essential rite of the Ananda Margis. However, in the Shayara Bano Vs UOI (2017) case the Supreme Court held that triple talaq was not an essential practice under the Shariat. Justice Nariman wrote’ practice does not acquire the sanction of religion simply because it is permitted ‘.

The other contentious issue is what constitutes a religious denomination to get protection under Article 26 to establish and manage religious affairs. In the Sabarimala case (2018), while the majority of judges did not consider devotees of Ayyappa a separate religious denomination, Justice Indu Malhotra, the dissenter, considered it otherwise. Quite clearly the incursion of the Supreme Court to determine essential religious practice & religious denomination is not free from subjectivity and is prone to criticism.

Freedom of religious practice is subject to public order, morality, and health. Quite clearly wearing of hijab in no way attracts such eventuality. Under the constitutional scheme of things, wearing a hijab should be a matter of choice. It may or may not be a matter of essential religious practice but is still a matter of conscience and belief. The unfair fallout of the hijab fall out would be that we would deny education to a girl child.

In a just society, the liberties of equal citizenship are taken as settled. Invasion of privacy will affect the dignity of the Muslim girl child and clear denial to them the fundamental right to secular public education. Minority rights cannot be purloined by the calculus of majoritarian social or political interest.

Secularism has been thumb nailed by the Supreme Court in several cases as a basic structure of the Constitution that cannot be defaced or desecrated. Congress has often been criticized for its policy of minority appeasement. The BJP’s ideology is how to keep the minority subservient through cultural homogenization. Either tendency strikes at the very roots of the concept of cultural diversity and respect for differential practice & practice of liberal democracy and constitutional morality.

It’s time that a Constitutional bench puts a stop to the sinister design of saffronisation under the garb of promoting equality and discipline.

*Prof Misra teaches Constitutional Law