Vidhi Writes: Religion in Classrooms, Towards a Curriculum of Tolerance?

As a result of the controversy, the denial of access has reportedly spread from a handful of educational institutions to a wide range of others, including minority institutions. It is also apparently being applied to teachers and not just students. A petition challenging this “hijab ban” is being heard at the Karnataka High Court and it raises a range of constitutional issues related to the validity of the measure.

One part of the challenge is that the requirement has been imposed by bodies without valid powers or without following proper procedure, but a further burning question under debate is whether it violates the fundamental rights of the petitioners.

Five rights: privacy, speech, religion, equality, and education

The requirement of uniforms may violate no less than five fundamental rights. Various commentators (and lawyers before the High Court) have focussed on different rights in arguing that the denial of access is unconstitutional, but it is worthwhile to consider all of them together to understand the scope of each and consider the conditions under which a challenge relying on anyone or some together may succeed.

1. Privacy: The right to privacy not only protects an individual’s control over their personal information but also their ability to make certain personal and intimate choices. A challenge on the basis of the right to privacy focuses on the fact that choice over one’s clothing is a personal aspect of an individual’s life and is not a concern of any public authority. What a person wears, like who a person loves or what gender a person identifies with, has little to no effect on the welfare of other persons and is thus not something that should be interfered with.
2. Freedom of speech and expression: Freedom of speech and expression not only protects verbal expressions, but also non-verbal aspects like the expression of one’s gender identity and sexual orientation. Similarly, the right may be understood to include the expression of religious identity, faith, or solidarity with religious compatriots through the clothes one wears.
3. Freedom to practice religion: Article 25 of the Constitution protects the right to freely practice one’s religion and courts have evolved methods by which to determine when a particular practice should be protected under this right and when it should be treated as not being “religious” or otherwise undeserving of protection.
4. Non-discrimination: If a measure imposes a disadvantage on an individual as a result of their religion, then the imposition violates the right against discrimination under Article 15. This would be the case if a measure actively targets the hijab alone and doesn’t touch other religious clothing. However, a common misunderstanding regarding the right against discrimination is that it requires persons to be treated exactly the same. A more modern understanding is that, even if a religion isn’t actively targeted, a neutral measure applied to all persons alike (like a common dress code) can discriminate by disproportionately impacting members of some religions more than others (because some religions do not prescribe fixed dress codes).
5. Education: If the requirement of a uniform is made a strict condition to access educational services, it effectively takes the right to education hostage to achieve the aim. Adequately respecting the right to education should surely involve removing barriers instead of creating them, for example by accommodating needs and compulsions where possible. The alternative is to run the risk of segregating members of certain religions or pushing them to drop out of the educational system.

Constitutional complications

Some objections against the protection of these rights, in this case, maybe raised. To start with, the current controversy over banning the hijab is not comparable to other issues of social reform that this country has engaged with in the past. Unlike in the 1985 Shah Bano case on maintenance and the 2017 Shayara Bano case on triple talaq, the present measure is simply not directed at gender equality.

The aim is to impose uniforms in educational institutions, and this may at best be argued to promote ambiguous or weak values like unity, cohesion, assimilation, or formal equality. These are not weighty enough justifications for the restriction of fundamental rights. Uniformity has no automatic relation to security, social reform, or gender equality, and we should not trip over ourselves in a rush to equate them.

The government may argue that individual rights like those protecting privacy or free speech cannot be recognised in this case because the automatic result of recognising them would be to entirely abandon uniforms in educational institutions. Some may find this outcome attractive, but the fact still remains that this is not what the petitioners are asking for.

Instead, what they are asking for is far simpler: an accommodation of their requirements in the same way that uniforms can accommodate health-related requirements like eyeglasses or political speech-related demands such as wearing black armbands. It is only that the fundamental need or choice deserving protection here is a religious one.

The fact that it might be difficult to separate the hijab from its religious connotations means that the litigation on the question has come to gravitate towards the freedom to practice religion. The protection of religious freedoms in India has been complicated by the fact that our courts identify which religious practices are protected by asking whether a particular practice is “essential” to the religion in question. They often do this by examining the religion’s scriptures and doctrine and deciding for the religion what constitutes an important part of it.

For example, the Supreme Court found mosques not to be essential to Islam by suggesting that Muslims can pray anywhere, including in the open. On the other hand, it also found the practice of denying menstruating women access to the Sabarimala temple to not be protected because it violated the rights of these women. Something similar may be argued to suggest that the hijab is not a protected religious freedom at all because it is against constitutional morality and gender equality.

Constitutional combinations

These issues can seem persuasive until one considers the simple fact that the current hijab ban is very different from other instances of social reform that this country has witnessed. Even if one considers the hijab as incompatible with gender equality, there are no petitioners here demanding such equality. What is more, unlike in previous reform initiatives, here the restrictions are being placed on those supposedly suffering from discrimination, and not on those engaging in it.

Unless our constitutional law is to abandon liberalism entirely for some form of paternalism, concern for gender equality should not prevent courts from examining whether the hijab is an instance of free practice of religion. That too, in a country that has for many decades afforded a wider scope for religious freedoms under its model of secularism than most others.

Importantly though, complications related to the technical test for religious freedoms do not need to restrict the scope of the four other rights mentioned above. Each of these rights can protect religious interests distinct from the right to practice religion.

Lastly, it is worth noting that public policy doesn’t come about by accident or political convenience but on the basis of a clear identification of aims and anticipation of obvious outcomes. Applying a measure aimed at uniformity by justifying it on the basis of gender equality and holding education hostage does not meet these standards. It is difficult to understand why classrooms, in particular, should be entirely sanitised of religion when they could instead be places where a young citizen can learn the logic of religious freedom, meaningful equality, and tolerance.

Lalit Panda is Senior Resident Fellow at the Vidhi Centre for Legal Policy. All views in the piece are personal.