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Puzzling To Say Hijab Is Inconsistent With Freedom : Professor Farrah Ahmed On Karnataka High Court's Judgment

Mehal Jain
18 March 2022 9:12 AM GMT
Puzzling To Say Hijab Is Inconsistent With Freedom : Professor Farrah Ahmed On Karnataka High Courts Judgment

It is very puzzling to hold that wearing of hijab is inconsistent with freedom, said Ms.Farrah Ahmed, Professor in Melbourne Law School, Australia, while speaking at an online discussion on the Karnataka High Court's judgment in the hijab case."For me, it is very puzzling for anybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom", she said. ...

It is very puzzling to hold that wearing of hijab is inconsistent with freedom, said Ms.Farrah Ahmed, Professor in Melbourne Law School, Australia, while speaking at an online discussion on the Karnataka High Court's judgment in the hijab case.

"For me, it is very puzzling for anybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom", she said.  

While commenting that she is "skeptical" about the State's argument of emancipation, she added, "If you really thought, okay these students are oppressed, then what you should be doing is, you will make sure that they get a fantastic education so that they have a right to exit".

Professor Ahmed, whose book "Religious Freedom under the Personal Law System" was published by Oxford University Press in 2016,  also said that the High Court has failed to consider the state action in the context of arbitrariness and discrimination and there was no proper enquiry of the State's power to issue the Government Order. "The Court talked about arbitrariness and discrimination in one breath. Discrimination was conflated with arbitrariness, which was a big mistake", Ms.Ahmed said.

Professor Ahmed also said that the approach of the Court is against the new thinking in education which welcomes diversity as a desirable trait.

"There is an analogy in the judgment to classrooms, prisons and war rooms. As an educator, you really wonder, what vision of education is outlayed there. The new vision of education is that diversity is good for cognitive reasoning and for learning. The suggestion of "qualified public places" is also jurisprudentially troubling", she said.

Ms. Shahrukh Alam (Advocate, Supreme Court) and Mr. Gautam Bhatia (Constitutional Scholar) were the co-panelists.

The excerpts from the discussion are given below :

No inquiry into cogent grounds

Shahrukh Alam: Rather than inquiring into whether the cogent grounds are good enough, whether there is a rational nexus, whether there is proportionality, the whole debate has shifted to why I can't just agree to not wear it. The second question is about even if you are insisting on a particular uniform in particular spaces in particular time, what would you accommodate and what would you not accommodate with it. And in this case, this enquiry has again not been done, to my mind.
Farrah Ahmed: "The first question should be by what authority has the government done this, by what authority have they made this decision, by what authority has a state-funded educational institution has taken this action. This is not the question the court focused on. This is actually very common because of the over-representation and over-emphasis on constitutional law issues as compared to administrative law issues because I think administrative law focuses exactly on those questions- by what authority is the State acting, the public body acting.
In this particular case, I think the only way to understand whether the educational institutions actually have authority to do what they are doing, and in this particular case, to create the prohibition of the hijab, is to look very closely at the Karnataka Education Act. What I think is problematic is that that entire enquiry gets very, very little attention. If the framing had been on that particular enquiry, the result had to be different. Because then you ask the government and the colleges by what authority are you undertaking these actions. They say that the government issued this government order and the government order we have authority to issue under the Karnataka education act. But if you look closely at the Karnataka education act , not something that the court in my view did at all, you get a really clear sense of what the purposes of that act are. If you read it closely, if you read it contextually, you have in the act these references to the composite culture of India, there is actually a prohibition not just on religious discrimination but on anything which wounds one's religious feelings, which amounts to religious propaganda. It goes even further than just generally saying that there should not be any discrimination. So when I look at this act, it is very clearly an act that has amongst its purpose the promotion of inclusive, sensitive, tolerant education. An education that is also focused on the needs of the more vulnerable members of the society. There is a section of the act that actually says that the government is obliged to pay particular attention to promote the education of the weaker sections of the society- the students who are affected by this government action probably would fall into that group. So you have these purposes set out under the act and you have administrative law rules saying that any government action has to be in conformity and in furtherance of these kinds of purposes and the power to issue directions that the government is claiming to have under this act is only in so far as those directions confirm with furthering the purposes of the act.
So if the court had framed the issues to ask that fundamental question, before getting into the question of whether we have infringed someone's right and is that infringement justified, if we start with this initial question of how is the state body, public body, government doing something, by what authority are they acting, the result may have been different if that had been the focus. Administrative law is not considered the most fashionable or most exciting area of law but why it is so important in such kind of a situation is that the students who are showing up to their education institutions, who want to study and they are being barred at the gates.
I think that all of us are entitled to clarity about why they can't enter the school wearing what they want and so on. That clarity, which to me is what the rule of law is all about, is exactly why we should care about these administrative law principles that require you to focus on the question of legal my mind, this action is ultra vires the act; their purpose was not proper, it was arbitrary. And the question of arbitrariness has not received more attention in the court.
Circular logic of the Court in rejecting reasonable accommodation
Gautam Bhatia: The argument was that there are things that you can wear accompanying the uniform or along with the uniform that fall well within the scope of what reasonable accommodation entails and the proscribing of that would be denial of any sort of reasonable accommodation. But within the context of uniform, what is the arbitrary State action is what was dealt with in a somewhat circular manner by the court. Because then the court refers to the concept of reasonable accommodation and it says that in this case, the wearing of the hijab does not fall within the scope of reasonable accommodation because that would undermine the uniformity of the uniform. This is circular because the whole point of reasonable accommodation as a doctrine is that there exists a default and there is an understanding that the default- this is true for any society- that the default has always been in a certain way insufficiently attentive to the needs, to the cultural expressions and so on of certain sets of people in the society. And reasonable accommodation basically says that it is inevitable that the default will confirm to certain norms because that follows from the fact that we live in the society where there is a majority and other minorities and that has developed the default, but we must also accommodate certain deviations from it, which is then determined in a case to case basis. The reasoning of the Court is a bit circular because the whole point of reasonable accommodation is that yes, there is a uniform and within that uniform you have a scope for a certain amount of accommodation. It is interesting because later on in the judgment, the court actually shows that it is capable of drawing these distinctions because when it comes to the discussion of a South African case involving the nose stud, the court distinguishes the two cases saying nose stud is actually insignificant and hijab is significant and therefore the nose stud does not disrupt the broader goals of the uniform. I don't think it holds up. But it shows that the court actually can draw this distinction and analyse, and it is surprising that it does not do that.
And one subtext that comes through in this judgment comes through towards the end when the court cites an Ambedkar line- the court doesn't really go into it in much detail but it seems to be an animated feature throughout, that banning of something like a hijab or any kind of head covering seems to be not just for uniformity but also it promotes equality, which sets out some sort of tension between the claims that the State is through this ban basically compelling people to be equal and in a certain sense taking away markers of inequality. The argument actually made is that you are not actually promoting equality because you are taking away choice. The court really tries to avoid this very very messy debate about contexualised choice and to what extent there is a choice or to what extent there is not a choice.
Subtext that hijab is not good present in the judgment
Shahrukh Alam:  have actually looked very carefully at cogent grounds that the State provides to the court. And they say that they are trying to cultivate a scientific and secular outlook but they also say that this is in order to ensure that they cultivate freedom and dignity. So the wearing of the hijab is violative of freedom and dignity? Also harmony and common brotherhood? Then they explicitly say that this is important because wearing of the hijab is derogatory to the dignity of the women? Then the reference is to the role that individual choices of women should play in construction of women's agency. So all this has been submitted by the state. The court has not really dealt with it, the court has completely avoided it. My initial feeling is that it may be a question of choice or lack of choice but there is no discussion around it, there is no objective data, no study. So what has been given to the court is the letter of freedom and dignity and agency of women and the court seems to have endorsed that view without any kind of inquiry. What is also instructive is that of the two instances where during the oral hearing the court draws an example, in the first instance, the court says that what is this whole thing about not being able to ban hijab just because it explicitly doesn't say so anywhere. Have we also not banned firearms? So the court explicitly draws a comparison between wearing a hijab and bringing a firearm to school, indicating that it is obvious, it is a given that we can't do it whether it is written in the rules or not. That to me was very instructive. In the second example, the court draws a comparison with ugliness. Of the hijab and being ugly. The court says that if a girl who is not Muslim wants to wear a covering just to hide her ugliness from some skin disease, we will still not allow her and that is why the wearing of the hijab is not discriminatory to Muslim women alone. But the comparison between ugliness and violence are both very instructive because it also shows how the court is viewing the hijab. So without going into any inquiry, subjective or objective, the subtext seems to be that this is something which is not good, it comes from radicalisation, it comes through indoctrination of women and this is something which is extreme, which violates individual choice. There is no explicit discussion but there is a lot of subtext to work with. And I think we should pick it up and discuss it because it is reflective of what the court is thinking.
Gautam Bhatia: When I was reading the judgment, I came across a quote from a UK house of lords judgment. The court cited the judgement in support of the argument that the importance of uniform is not simply for uniformity but for equality, for egalitarian values. The passage surprised me a little bit. I went and read the actual case. It is very surprising that the Court cites paragraph 97 of this judgment. The very next paragraph, para 98, actually deals with this issue of contextualised choice. The whole case actually is a case where there was a school where, in consultation with the local community, the school allowed the deviation from uniform to the extent that they allowed the hijab. That was reasonable accommodation. And after that there was subsequently a further demand to wear the Jilbab which was then denied by the school and the court then said that reasonable accommodation has already happened with respect to the hijab. The whole discussion is actually about at what point will you say that the public values of equality, of freedom become so overriding that they allow you to negate the demands, the claims which come also based on those rights.

Shahrukh Alam: "The judgment has also come out in a context of the UK where there is a discourse on public spending on education and health. In our context, where there is no discussion on democratic spaces within public education, there is no participation of stakeholders within educational spaces, how do we look at uniforms where uniforms are completely centralised and unilateral. Stakeholders have no use in it apparently. So this could have been an entry point even if we were to talk about uniformity and egalitarianism- To talk about midday meals in school, what gets served, what does not get served, the inclination towards vegetarianism. But we are only talking about a certain opaque line of discipline which is sort of handed down. It is particularly ironical and unselfconscious on the part of the court because the reason for it is that hijab is a controlling kind of garment, the hijab indicates lack of choice and therefore the State will ban it or the school will ban it and replace it by a mandatory uniform without any kind of discussion, without any kind of place to stakeholders to say what they feel. So it is quite contra indicated in that sense. We are talking about freedom and dignity. How will the schools for instance accommodate trans rights, who want to wear genderless clothing to school, if they are going to be so unilateral and not talk about accommodating plurality. What will they do about other self expressions which is also being endorsed by constitutional courts.
Puzzling to say Hijab is inconsistent with freedom
Farrah Ahmed: For me, it is very puzzling for anybody to say that wearing a hijab or wearing a headscarf is inconsistent with your freedom. You care about choice, but you have this general rule. There is something absurd about complaining about lack of choice in hijab in a uniform context. It is important to emphasise the point that nobody has challenged the lawfulness of the uniform policy. What is observed is the complaining about the lack of choice about hijab in a uniform context.
The other point is when you talk about majoritarian norms- what is seen as abnormal and deviant and ostentatious or standing out, those are really minority practises, that they don't identify with themselves, that they don't see as a part of their own practice. When you think of majoritarian practice as the normal, and what is seen as abnormal are minority practice, so if you take this approach to uniform, it basically means all majority practices are normalized and minority practices are abnormalized and not protectedTo my mind, it is the exact opposite a constitutional court should do. The Constitutional Courts should be particularly attentive to the minority practises that are considered bizarre or strange and not the other way around.
As regards this assumption that the students wearing hijabs are somehow less free than the other students, around the world, societies have talked about accommodation and the liberal response to these kinds of worries is that you ought to give people in these situations the right to exit, the right to exit from the community that you are worried is forcing them to do something. The quickest and easiest and absolutely necessary way to get the right of exit is through education. So really what you should be doing is facilitating education if you really thought that 'okay, the students are oppressed, they are not free, so I am going to make sure, come what may, that they get their education, we will give them that right to exit so if they are in a bad situation, they can move'"
Gautam Bhatia: If you look at the crucifix cases in Europe where the issue was whether you can have the crucifix on the wall of a classroom, when the ECHR, the court say that certain kind of religious symbols are allowed because they are not actually that ostentatious, the entire criticism has been that it is a very Christian understanding of religion and it completely ignores cultures which in Europe are a minority, where relationship between individual and God is outward, not inward and therefore it actually constitutes indirect discrimination even though it is facially neutral...In the instant case, there has been a lot of criticism that I have seen around the strategic decision that the petitionersought to lead with the essential religious practises test. Although over the years the ERP test is established and it exists and everybody knows what it is about, the judgment actually shows that we still have a long way to go as a jurisdiction. This is because of the fact that we don't yet have those landmark cases which really establish a constitutional common sense. In the Supreme Court, we do have judgments like Col. Nitisha (permanent commission to women in the armed forces) which actually spell out the idea of indirect discrimination which is that your rule might be facially neutral, it might not be discriminatory on its own face or terms, but if its effect is to actually discriminate or to single out a group of people to their disadvantage...While we do have judgements which have done so, that discussion has been muted and we don't really yet have an indirect discrimination case of the sort like we have the Privacy case in the form of the Puttuswamy judgment, or the Maneka Gandhi case which is the Due Process case or the Vishaka case which is the Sexual Harassment case.
There is a case of direct discrimination in the GO
Farrah Ahmed: I think a lot of people are starting from the assumption that you would have to make out a case of indirect discrimination but some of our academic colleagues are arguing that it is actually a case of direct discrimination. To my mind at least there is some merit to that argument because if you take the G. O. and the language of the G. O., if it is read contextually, it is either aimed at Muslim women or women or people who generally wear head coverings for religious reasons.
Shahrukh Alam: To my understanding, what had happened was that when the women going to college were forced to stop, there were no rules and no orders at all and they were force-stopped randomly on the basis of oral, localised orders. As the thing escalated, they come out with the G. O. of February 5 where for the first time and retrospectively the campus development committees were given the power to prescribe uniforms, and where no uniform is prescribed, they were given the powers to decide what goes with equality and unity and what does not. And this was all in fact questioned in court. And what was also questioned is that under that act which gives them general powers to instill scientific temper and secularism, could this be a part of those general powers-the power to prescribe uniform and also the power to ban certain things or not accommodate certain things as part of the uniform. In this case, the G. O. is specifically proscribing a particular garment, it is direct discrimination. It is not saying anything about any other piece of clothing or any other thing which could be related to any other particular religious identity. It is not stopping turbaned men and turbaned women...One other cogent ground which the state gave was that nobody has submitted before the court for how long these particular women have been wearing the hijab and that it is a new thing which is being practised and it is happening because there is a process of politicisation. So they are saying there are political groups brainwashing the women into wearing these and therefore they deserve to be proscribed. The court picks up on this and in the interim relief, when interim relief was refused by the court, the court draws the equivalence between the hijab and the hecklers- If you have a problem with hijab students and you are coming to campus with saffron flags or a Trident, that is equivalent to these women who have started to wear this hijab in the recent past. Whether you can equate the banning of saffron flags which were only being done to protest the wearing of a hijab with the actual wearing of the hijab?"
Gautam Bhatia: Once you are caught in the trap of the ERP test, automatically it follows that if something is more recent, then it is not essential. It has to be immutable- as in the case of Islam, it has to go back to the 7th century, that is why the Quran became important in this case, what the Quran says about hijab. In many cases, your own sense of identity develops from external stimuli and what goes on around you. If you say a belief is not genuine or a conviction is not genuine because it is recent, that is the trap of the ERP test. The interim order makes a mistake when it draws that equivalence. If you analyse it from the perspective of whether it is direct or indirect discrimination, then for me it is in the indirect discrimination category, if your stated justification as the government is that hijab out, saffron scarf out and the overarching framework is that visible headgear is out.
Shahrukh Alam: The reason here in this particular case was that both are causing public disorder. On that ground, it cannot be direct or indirect, because one is the heckler and the other is not. If your ground for banning both is that it is causing public disorder, then can you say that both are indirect discrimination?
Court cannot rationalize a religious practice
Farrah Ahmed: "This shows the limitation of the ERP test- if it was a recent practice, then it cannot be an essential practice. But again if you look into the reason for why it cannot be an essential practice, they actually accept that it was practised in Islamic times and it has that element of historical authenticity but it is not actually protected because it was a product of a certain socio-cultural context and that context does not exist anymore. This was in the context of when women were not secure, and now- they are saying somehow- that women have a lot of security. So if it is new, it is not essential for that reason and it cannot be protected. If it is old, it is a product of that time and the rationale for it was whatever they thought it was but today that rationale no longer exists. But it is not about what you think the rationale is or whether you think it is a good practice. The judges are thinking, oh we can rationalize the practice and identify its reasons, and if those reasons are not existing now, the practice need not be allowed - it is exactly this rationalization approach which Bijoe Emmanuel case disapproved.
Gautam Bhatia: The G. O. bars all visible headgear. Now the argument is going to be that the turban is essential and therefore it is exempted from the terms of the G. O...
Farrah Ahmed: Even if we were to say that this is not targeting hijab, it is not targeting Muslim women, if we were to say this is targeting everybody who covered their head for religious regions, that is still direct discrimination because you are targeting people based on a protected characteristic that is religion. I have heard a lot of discussion about drawing the equivalence between head scarves and hijabs worn for religious reasons with saffron scarves or saffron flags, that one should be protected and one should have been banned. I am not really convinced that saffron scarves or that kind of dress or accessory should not be protected as well. If it is, for instance, a political statement, protection of political speech is really, really important- if this developed as part of the conversation, as part of the contestation with the headscarf, then it follows from that it is a kind of religious expression as well. I have heard people questioning or people uncomfortable with the idea that the saffron scarf should be protected, but there is, I feel, actually good reason to protect the saffron scarf, except unless we feel it is a kind of hate speech, like we have the burning cross as an expression of hatred for black people in the US.
Gautam Bhatia: Like there was the hammer and sickle case of the ECHR. The question was that they banned the hammer and sickle in post-communist times. The argument was that the hammer and sickle is actually a Soviet symbol, it is a symbol of authoritarianism. The court said that first of all, the symbol can have another meaning of workers' rights. It said that unless you so comprehensively show that the only meaning it can carry is the authoritarian meaning, we cannot ban it, and you have not really shown that. So as long as it is carrying more than one meaning, you cannot ban it. For me, you should actually allow the hijab and the saffron scarf and a range of other religious identity markers...
Shahrukh Alam: The focus of the court is on discipline as an aim in itself, as a cogent ground. At some point, the court also says that nobody has showed us anything that suggests that discipline is not a good thing. I went to Catholic school, missionary school in the 80s, we had uniforms and we were expected to not ask questions in class from our teachers because of discipline. It was considered very bad form to ask questions. We are now able to laugh about it, but they were constituting convent educated brides, to listen to what was said etc. Today I read this very interesting piece of news about Tokyo schools where apparently there was a rule that everybody had to have black hair. If you had brown hair, you were to dye your hair and then go to school. That had something to do with the perception of the Japanese national trait of having black hair, and you are not supposed to deviate. What the judgment does by endorsing the importance of discipline in uniform and then also endorsing the fact that certain visible markers violate freedom and dignity is to constitute citizens which would recognise certain markers as being extreme or being outsiders or as needing correction. You see that in the vigilantism which is happening all around us- they are correcting aberrations. The second point is how do you interpret Explanation (1) of article 25 which explicitly says that the carrying of the 'kirpan' is part of article 25. So why not refer to the more obvious 'Pagdi' and why the 'kirpan'? It is because the 'Pagri' is just a garment, it was given that it is obviously acceptable, what is to say about it, it is the kirpan which is more than the garment. Does this particular judgment collapse that space when it explicitly compares the hijab with the firearm during the oral hearing?.

Farrah Ahmed : There is an analogy in the judgment to classrooms, prisons and war rooms. As an educator, you really wonder, what vision of education is outlayed there. The new vision of education is that diversity is good for cognitive reasoning and for learning. The suggestion of "qualified public places" is also jurisprudentially troubling.

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