Constitutional Law

Aishat Shifa: Decoding Justice Gupta’s Opinion in the SC’s Hijab Decision

Anmol Jain

The Supreme Court recently delivered a split verdict on the constitutionality of the Karnataka Government’s Order proscribing the use of religious identities as part of the school uniform. Justice Gupta decided in favour of the Government. In this post, I analyze his opinion and argue that it misapplies several fundamental constitutional norms and sidelines legal analysis in favour of State paternalism.

Recently, in Aishat Shifa v. State of Karnataka, a two-judge bench of the Supreme Court delivered a split opinion on an appeal against a Karnataka High Court decision upholding a state order that mandated a uniform for educational institutions, consequently banning the hijab. Writing for the Court, Justice Gupta affirmed the High Court’s decision, while Justice Dhulia decided in favor of the appellants. In this piece, I analyze Justice Gupta’s opinion and argue that it revolves around the notions of discipline and ‘uniformity’ (perhaps even control), and fails to undertake any reasoned constitutional analysis of critical questions of law involved. It sidelines legal analysis in favour of State paternalism and misapplies fundamental constitutional norms.

A Compartmental Approach to Secularism 

Justice Gupta begins his opinion with the idea of secularism and tries to define it in a manner that sets the course of his decision. While he rightly mentions that the idea of secularism as adopted in the Indian Constitution is different from the Western notion, which strictly separates religion from the activities of the State, and that it encompasses ‘treating all religions equally, respecting all religion and protecting the practices of all religions’ (¶13), he prefaces this with his own idea of secularism:

“Secularism, as adopted under our Constitution, is that religion cannot be intertwined with any of the secular activities of the State. Any encroachment of religion in the secular activities is not permissible.” (¶13)

Focus on the repeated use of the phrase ‘secular activities’, which Justice Gupta transforms into ‘secular institution’ and ‘secular school’ later in his opinion. While this phrasing may seem very similar to the idea of separation of the State and the Church at first blush, the manner in which Justice Gupta adopts this formulation makes it quite different. Though Justice Gupta failed to define his idea of ‘secular activities’, he presumes that it means ‘non-religious activities’, thus allowing him to entirely throw religion away from every non-religious activity of and in the state. For Justice Gupta, religion has no role to play (in fact, it must be totally removed in the name of uniformity) anywhere in the State, except for matters involving overtly religious activities.

In such a formulation, it is therefore unclear what activity could be presumably non-secular, and how and when Article 25 comes into the picture. For instance, how would this play out with respect to legislators and politicians adorning religious costumes in the Parliament? Or, under this, how would we understand celebrating different festivals (based on both religious and regional diversity) in schools, and having holidays on Diwali or Christmas? It is unclear where the line is drawn (if any at all) between religious expressionism and secularism, and how Justice Gupta reconciles these two ideas. The purpose of carefully developing constitutional law doctrines is to ensure certainty in the understanding of the law, and consistency in its application to future cases. However, as one can observe, Justice Gupta’s approach raises many more questions than it answers.

Such a framing of secularism also goes against how it was originally conceived in the Indian Constitution, by the drafters. As Dr. Ambedkar noted in the Parliament while debating on the Hindu Code Bill,

“[Secular State] does not mean that we shall not take into consideration the religious sentiments of the people. All that a secular State means is that this Parliament shall not be competent to impose any particular religion upon the rest of the people. That is the only limitation that the Constitution recognizes.”  

Accepting and celebrating religion could be a way to teach students diverse values and inculcate in them tolerance and even appreciation for diversity.  Justice Dhulia’s separate opinion understands and encourages this facet of secularism, as is highlighted below:

“Reasonable accommodation in this case would be a sign of a mature society which has learnt to live and adjust with its differences … Our schools, in particular our Pre-University colleges are the prefect institutions where our children, who are not at an impressionable age, and are just waking up to the rich diversity of this nation, need to be counselled and guided, so that they imbibe our constitutional values of tolerance and accommodation, towards those who may speak a different language, eat different foods, or even wear different clothes or apparels! This is the time to foster in them sensitivity, empathy and understanding towards different religions, languages and cultures. This is the time when they should learn not to be alarmed by our diversity but to rejoice and celebrate this diversity. This is the time when they must realise that in diversity is our strength.” (¶67, 71)

Moreover, Justice Gupta’s formulation of secularism also challenges certain common practices of other religions. Ideally, if one were to apply his idea of secularism consistently, then all such forms of religious identities and symbols, when carried to educational institutions, should be held as violative of the impugned Government Order. Perhaps, in a bid to save other religious practices and exclude only the practice of wearing a Hijab, Justice Gupta defines uniform as a ‘dress’ (¶53), and something that is ‘visible to naked eye’ (¶56). This allows him to conclude that ‘anything worn by the students under his/her shirt cannot be said to be objectionable in terms of the Government Order issued.’ (¶56) How do we square this logic with Justice Gupta’s overemphasis on discipline, order, and the need to leave religion out of secular activities? If uniformity among students trumps the freedom to express religious identity, Justice Gupta fails to answer what difference is uniquely created when the same expression of identity is carried out covertly. Reading the rules in this manner suggests that they are not targeting the presence of religious symbols in schools, but only the assertion of one’s Muslim identity. Thus, the entire argument that only those religious symbols visible to the naked eye violate the rules runs on the tunes of indirect discrimination, which may be defined as a practice that may appear neutral but has discriminatory impacts on certain individuals or a group of individuals. As the Supreme Court noted in Lt. Col. Nitisha & Ors. v. Union of India & Ors., ‘indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion.’ (¶48).

Misapplication of Article 14 to Restrict Freedom of Religion

This brings us now to the freedom of religion argument. Justice Gupta anchors the discussion on the idea that students should ‘wear clothes which are in the interest of unity, equality and public order’ (focus on the conscious choice to exclude freedom in the Government Order as well as in Justice Gupta’s decision).[1] He concludes the argument in one paragraph, with no further nor concrete reasoning provided. He notes,

“The object of the Government Order was to ensure that there is parity amongst the students in terms of uniform. It was only to promote uniformity and encourage a secular environment in the schools. This is in tune with the right guaranteed under Article 14 of the Constitution. Hence, restrictions on freedom of religion and conscience have to be read conjointly along with other provisions of Part III as laid down under the restrictions of Article 25(1).” (¶89)

As Gautam Bhatia notes, the right to equality under Article 14 is not about uniformity. It cannot be. The way Justice Gupta has deployed Article 14 in his defense has turned the entire logic of Article 14 on its head – instead of protecting one from discriminatory and unequal treatment by the State, Justice Gupta has utilized Article 14 to further the discriminatory outlook of the State itself, which comes to life by utilizing neutral uniform-related regulation to proscribe the religious practices of an identified religion.  Moreover, the use of Article 14 to restrict the freedom of religion under Article 25 must be intra-religion. It is wrong to make an inter-religion equality argument for restricting Article 25 rights. For instance, if after undertaking an independent analysis of some practice A of a religion Z, the Court agrees with the State that A is offensive to constitutional morality or poses a danger to the health or public order, it can uphold the restrictions on A. But the State cannot say that because A is different from some practice B of religion Y, or that there is no corresponding practice in religion Y, therefore we are restricting A under Article 14.

Justice Gupta seems to be confusing differences that come with diversity, with unequal treatment. Even later, he notes that ‘the Preambular goal of justice, liberty, equality or fraternity would be better served by removing any religious differences, inequalities and treating students alike before they attain the age of adulthood.’ (¶155). Similarly, he notes

“the abstract idea of fraternity, …, has to be applied to the ground realities wherein some students wearing headscarf in a secular school run by the State Government would stand out and overtly appear differently. The concept of fraternity will stand fragmented as the apparent distinction of some students wearing headscarf would not form a homogenous group of students in a school where education is to be imparted homogenously and equally, irrespective of any religious identification mark. The constitutional goal of fraternity would be defeated if the students are permitted to carry their apparent religious symbols with them to the classroom.” (¶159)

If slight diversity in clothing based on one’s religious identity could result in such drastic consequences, one would expect Justice Gupta to analyze how a religious practice, if it is an essential religious practice, could be tolerated. Alas, he sidelines that question by merely observing that ‘the essential practices of the followers of Sikh faith cannot be made basis of wearing of hijab/headscarf by the believers of Islamic faith’ (¶123). If constitutionally permitting the ERP of the Sikh faith does not challenge the idea of constitutional fraternity and poses no harm to the delivery of homogenous education, how does the possession of religious symbols by a different faith lead to such results? Justice Gupta provides no answer.  

If we were to break down Justice Gupta’s opinion paragraph by paragraph, several gaps in his reasoning come to light. There are instances where paternalistic reasoning trumps constitutionally grounded reasoning. At one point, Justice Gupta asserts, ‘If, the norms of uniform in the school are permitted to be breached, then what kind of discipline is sought to [be] imparted to the students.’ He also compares the case of Ajmal Khan v. The Election Commission of India, wherein the Madras High Court held that the direction of the Election Commission to have clear photographs of registered voters on electoral rolls does not violate the Constitution and the rights of Muslim women (¶168). But if one were to apply the principle of proportionality, it becomes apparent that, unlike the present case, the Election Commission’s direction was issued in pursuance of a rightful government purpose and was the least restrictive way to fulfill its purposes. The Court cannot pluck the concept of a ‘non-discriminatory’ attitude shown by the Election Commission in Ajmal Khan and apply it to the present setting, wherein, if my above arguments are correct, the government lacks any constitutionally-sound purpose to restrict the Article 25 rights.

Concluding remarks

A larger bench would now hear this case. Given the complex questions around the right to practice religion, freedom, choice, and privacy involved in this case, it is hoped that the decision by the larger bench would address these issues by undertaking constitutional analysis and without sidestepping or incoherent reasoning.  This case, along with the Sabarimala Temple review, is an important opportunity for the Supreme Court to carefully develop the values of Articles 19, 21, and 25 and how they all are imagined to co-exist under the Indian constitutional framework. The court must be cautious in developing these values and ensure that they are not colored by the specific factual situation of this case. This will help not only to answer the questions presented in this case but lay down important guiding values for the organic development of law in the future.   

Anmol Jain is an LL.M. candidate at Yale Law School