Hijab Judgment: More Questions Than Answers – Published in LiveLaw

In my view the consequence of Hijab Judgment is of making a song and dance about nothing. It will be read and celebrated by many who have been campaigning for ‘homogeneous’ identity of Indian citizens forgetting its diversity in public space.

It was a thin issue where some girls who had chosen to cover their hair and neck along with the uniform of the School. It is not an issue where these girls insisted not to wear normal uniform which others did. Did this additional piece of cloth covering her head and neck, while keeping face open, adversely impact the public order, civility and decency in the school system requiring reasonable restriction by the State? On the contrary we have examples where followers of other religious beliefs are permitted to cover their head with turban in the classrooms while others being permitted to keep their head and hair open. Here, Muslim girls practicing Hijab were hackled by non-state actors around the school in a manner as if the girls had abandoned school uniform. Sadly, reading of the High Court judgment also gives the same impression.

The High Court judgment, one portion of TMA Pai judgment of the Supreme Court is cited to say that ‘it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed’ but the other part of the same judgment stating that “each person has individual identity which has to be preserved so that when pieced together it goes to form a depiction with different geographical features of India” has no mention.

The judgment records, rightly so, that Indian secularism is different from American idea of secularism after 1791, for which many Indian judgments are cited. But this judgment starts with a quote from a term paper written by a very little known person whose credentials are missing, wrote an 11 pages research paper to be submitted in an American University whereas credentials of Pew Research Centre have been doubted to reject the ground report submitted by the Hijabis.

Ours is a quasi-federal structure where normally, on overlapping subjects, the Centre’s rule will supersede on the State rules. Girls cited permissibility of Hijab in Kendriya Vidyalayas but the Court rejected this argument by relying upon the analysis of Professor K C Wheare, stating that ‘the Federal Units, need not toe the line of Centre’. Largely, Professor Wheare  is known for his works on federalism in Australia, Canada, Switzerland and Unites States. We all accept that these federal systems are different from ours. However, Wheare also analyzed newborn Constitution of Indian in 1950 and called it a ‘quasi-federal’ system, where Centre is strong with many concurrent superseding powers over the Centre. One needs to find out in which context the relied upon statement was made by Wheare.

The Court laid emphasis upon the principle flowing from Quinn v Leathem, a judgment of the House of Lords to reject pro-Hijab judgments by stating that ‘a decision is an authority for the proposition that is laid down in a given fact matrix, and not for all that which logically follows from what has been so laid down’. Then it cites the US SC Judgement in Tinker v Des Moines for one aspect to reject the case but another relevant portion of this judgement is missing where it says that neither student nor the teachers shed their ‘constitutional rights to freedom of speech and expression at the school house gate’ when the students wanted to wear black arm bands to show their protest inside the school against the Vietnam war.

The Court rejects the concept of ‘reasonable accommodation’ by observing that ‘the object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms’. I believe, the court feels the unit to observe such ‘uniformity’ is a single class room that too with exception when we talk Sikh turban within that minimized ‘unit’. Secondly, at one place, the High Court has understood ‘uniform’ and ‘dress code’ to be the same [Pg. 107] but at the other place “dress code” and “uniform” have been acknowledged differently [Pg. 113].  It says that the Governments G.O. does not give power to prescribe a “dress code” but uniform. Again, it says [Pg. 114] that State powers obviously include authority to prescribe a “school dress code”. It again says that [Pg. 117] “the G.O. does not prescribe any uniform but only provides for prescription in a structured way”. In this prescription of structured way; why Hijab could not be permitted? The court gives the reason; because it is not essential in religion. Hence the result is, the G.O. does not stop practice of Hijab but, as understood by the High Court, Islam does not make it an essential practice; so the High Court will permit the School to stop such practice. This is erroneous.

If we trace out the history of the doctrine of Essential Religious Practice in Supreme Court’s judgments, it is evident that in the Shirur Mutt Case, 1954 it was the then Attorney General who coined this concept of “Essential Religious Practice” stating that all secular activities, which may be associated with religion but not really constitute an “essential part” of it are amenable to state regulations. The same judgment appears to have indicated that the idea of determination of essential religious practice fallen within ‘complete autonomy’ of the religious denomination in the matter of deciding as to what rites and ceremonies are essential according to tenets of a religion. In subsequent judgments it was recorded that practices though not religious may have sprung from superstitious beliefs and unessential accretion to religion itself. In that case, unless such practice is found to constitute an essential and integral part of religion, the claim of protection by religious denomination may have to be carefully scrutinized. It cannot be said, by any process of examination or imagination that the practice of hijab is ‘superstitious’ accretion of Islamic belief. In any case, unessential accretions to a religion are a very vague and subjective term which is subject to misuse by the administrative and legislative mechanism. Hence courts need to be cautious while making such observations.

Abdullah Yusuf Ali’s Translation only fits into the scheme of judgment but there are equally credible ten more translations, including that of Moulana Wahiduddine Khan’s, which state otherwise. In that background, requirement of an affidavit of a Moulana is not understandable.

 In recent past the Supreme Court has invoked ‘essential religious practice’ doctrine to stop a Muslim man from sporting beard in public services and say that Masjid is not essential for Namaz. Again, the effect of Hijab judgment is selective exclusion of a normal practice of a girl which does not impact any of the parameters requiring state regulation under Articles 19 (1) (a), 21, 25, 26 of the Constitution of India. The judgment does not reflect the ground reality of our country. 

This article was published in LiveLaw on March 28th, 2022

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