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The hijab judgment has much to recommend but clearly remiss in reasoning on the point at hand. The high court celebrated secularism as part of the basic structure but failed to accept that wearing of hijab was essential to the practice of Islam.
The problem was in aligning two thoughts: secularism supports hijab or prohibits it. The high court took the latter view. The court cited S.R. Bommai, “Several races have converged in this subcontinent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance….”
Yet the hijab did not get the benefit of accommodation and tolerance. The court underscored developments in the law in Shayara Bano and Indian Young Lawyers Association. Curiously, having rejected hijab as “essential to Islam”, the court equated it with the wearing of visible items of religious identity, not to be encouraged in an educational institution. So the hijab is religious but not essential. If it had been otherwise, as for the five Ks of Sikh religion, an exception would have been allowed.
Interestingly, the Shirur Mutt judgement was cited, “A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observations, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observations might extend even to matters of food and dress…”
For essential religious practice, other than the doctrines of the religion, evidence was needed of the practice and it being tested on the trinity of constitutional values of ‘liberty, dignity and equality’. In other words Article 25 and 26 are subject to the latter rather than being integrated.
In the Indian Young Lawyers Association, the apex court had said, “There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices… the test of essentiality is infused with these necessary limitations.” This goes beyond the doctrines of the religion or another way of saying that constitutional values have an order of preference rather than being an integral whole. A similar analysis in the Kashmir 4G case had placed security above liberty.
For essential practice the court rightly focused on the holy Quran and Hadith to source the tenets of Islam. However, reading of the relevant Quranic verses and Hadith persuaded it that hijab is not an essential practice. In common parlance, full body covering includes the head, particularly where neck and bosom are mentioned. The court noticed that the Quran provides that women need the over garments so as not to be confined to their homes.
Sura xxiv 58-64) (Nur)
And say to the believing women
That they should lower
Their gaze and guard
Their modesty; and they
Should not display their
Beauty and ornaments except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
The court sought support from the commentary of Abdullah Yusuf Ali that mentions jilbab, an outer garment, or veil to cover the body. Does the court realise that it has implicitly endorsed the outer garment as an essential practice?
The high court considered possible other grounds to uphold the hijab in view of the jurisprudence of privacy, dignity and conscience. The latter was rejected for the absence of cogent evidence and Articles 19 and 21 rights (freedom of expression and choice ), for being subject to reasonable restriction. The restriction on grounds of decency, morality and public order was bypassed by the right of society over the individual.
The harm principle was given short shrift, although no harm was shown to be caused by hijab. In the absence of harm, relying on the three reasonable restrictions in Article 19 seems arbitrary. Article 29, which provides the right to preserve the culture of minorities, was not considered. Article 25 guarantees freedom of conscience, subject only to public order, morality and health. Noticing the concept of ‘heckler’s veto’, the court nevertheless did not interfere with the order only because hijab was not an essential practice. But how that negates conscience remains puzzling.
School uniform is the given primacy for education. Uniform being an equaliser for pupils of different backgrounds, creating a sense of shared identity is familiar. But there are other views as well.
In any case, hijab is a marginal addition in compatible school colours. The inclusive practice of Kendriya Vidyalayas left the court unimpressed. Saying hijab-wearing girls stand out ignores that names, as indeed food preferences, do the same. Such personal preferences are respected and accommodated. Why then be rigid about the hijab and reject accommodation seen in other institutions? Interestingly, the court chose to ignore Malaysian judgments but whether hijab is an Islamic practice cannot be confined to Indian data.
It remains unclear whether the restriction on hijab has been upheld as a binding government regulation or as an independent choice of schools. The maximum autonomy of private institutions held in T.M.A. Pai, and also underscored in this judgment, has yet been given a miss.
The court rejected the findings of independent researchers that ‘most Hindu, Muslim and Sikh women cover their heads outside their homes’ as a social reality. This touches an important dimension of our social existence. The court surely knows the practice of covering our heads, both women and men, when in a place of piety. Similarly, the wearing of a tika on the forehead, sporting a ghoongat or keeping a bodhi are established social behaviours.
Is there no place for these in constitutional values or is it that the pockets of ‘qualified public places’ like schools, courts, war rooms, defence camps etc. are subject to a different regime? Will the many lady lawyers who frequent the premises of the Supreme Court too shed the hijab not questioned thus far?
Salman Khurshid is a senior Congress party leader.