Hijaab: Let the liberty of individual conscience prevail

Under Article 25(1), persons are entitled to freedom of conscience and the right to freely profess, practise and propagate religion, subject to public order, morality, health and the fundamental rights of other persons. Under Article 25(2), economic, financial, political or secular activities relating to religious practice can be regulated, and in particular social welfare and reform measures are permissible. Article 26(b) grants the right to religious denominations to manage their affairs in matters of religion, subject to public order, morality and health. Thus 25(1) protects an individual’s rights while 26(b) and 25(2) deal with community rights. Naturally then, the considerations that apply when courts are faced with a claim of individual conscience are quite different from a community claim about what a religion says. When a court has to consider which practices can be ameliorated by social reform legislation or can be regulated by secular law, it may need to examine religious doctrines to see if the practice is “essential” or not, the logic being that an essential feature of a religion cannot be legislated away. The same logic cannot apply when the court is faced with individual claims of conscience. Simply put, freedom of conscience means that no authority sits in judgement on an individual’s beliefs to decide what is worthy of protection and what is not. How would this apply in the hijaab case? When the court examines a case of girls who wish to wear a hijaab as a matter of conscience, it is not for the court to check the theological or Quranic basis for it. The only issue is how the conscience right to wear one can be reconciled with the uniform policy of a school.

Unlike France, India has always made reasonable accommodation for religious or cultural practices. Girl students, for example, are frequently permitted to choose between skirts and salwar kameez, just as boys are permitted turbans or sacred threads. If a school girl is allowed a traditional dupatta, what disciplinary problem is caused if this garment is wrapped around the head instead?

The judgement of Justice Hemant Gupta is a paean to the noble school uniform, meant to treat students as equals, with any breach taken as a discipline issue. But this frame is difficult to accept per se, considering that Sikh turbans are acceptable under the uniform policy. Accordingly, the judgement tries to distinguish between the claims of various denominations of faith in order to show how the hijaab alone can be banned. Turbans are fine as they are an essential religious practice for Sikhs, the rudraksh is fine as it is worn beneath the uniform (thus isn’t part of policy). The hijaab alone violates discipline. That this policy disproportionately impacts Muslims is not considered, as the policy is secular on the face of it. This is a victory of form over substance that belies innumerable court precedents. The principle of reasonable accommodation finds no purchase in this ruling and foreign precedents are not dealt with because India is different. This would surprise judges of the SC who laid down the law on religious rights in the celebrated 1954 Shirur matth case judgement.

The other half of the split verdict, Justice Sudhanshu Dhulia’s judgement correctly identifies the issue as one of a conscience right, and a part of free expression, to which the essential practice test does not apply. This judgement goes on correctly to view this case as being covered by the National Anthem case, where Jehovah’s Witnesses were permitted to be exempt from singing the anthem as a reasonable accommodation. The judgement talks about dignity, freedom and privacy, and holds that these values are not surrendered at the altar of discipline at the school gate. The ruling recognizes the fact that the issue must be seen in the light of girls’ struggle to make it to school at all and whether such a policy makes it harder. It also talks about fraternity and diversity, and the idea of constitutional trust that minorities place in the majority.

In the end, the issue is quite simple, as the Justice Dhulia judgement makes clear. The most important thing is that children should be educated. Uniform policies should accommodate religious and conscience-related exceptions for all faiths because that would advance the cause of education and because respect for all religions and individual conscience is the hallmark of our constitutional tradition. Allowing the hijaab is not an issue of discipline, but about according equal respect to all religions. The essential religious practices test is irrelevant to the issue at hand.

Justice Dhulia’s judgement is a victory for constitutionalism and should be applauded as such. It merits being reaffirmed whenever a larger bench of the SC settles the issue.

Rahul Narayan is advocate on record, Supreme Court of India, and solicitor, England and Wales