Constitutional Law

Aishat Shifa: Jayna Kothari on ERP, Article 15(1), and Intersectional Approach to Religious Freedom

Rakshit Agarwal and Niveditha K Prasad

In the latest episode of Arbitrary, the flagship podcast of Law School Policy Review, Niveditha (Deputy Managing Editor of LSPR) and Rakshit (Editor at LSPR) sit down with Senior Advocate, Ms Jayna Kothari to discuss the Supreme Court verdict in Aishat Shifa (Hijab case). They discuss the non-discrimination test of Article 15(1) and the ERP test under articles 25-26. They also explore the possibility of an intersectional approach to religious freedom in India.


(The following is an edited transcript of the podcast above)

LSPR: Greetings to all our listeners. This is Niveditha and Rakshit from the Law School Policy Review. We are excited to host our guest for today, Ms. Jayna Kothari. Ms Kothari is a Senior Advocate practising at the Supreme Court of India and the executive director at the Center for Law and Policy Research. She has been involved in advocacy and activism around constitutional law, gender and sexuality law, disability rights and discrimination law. More recently, she appeared for the NGO Women’s Voice challenging the hijab ban in the Supreme Court.

Currently, LSPR is taking an in-depth look into Aishat Shifa, the Essential Religious Practice test and other related issues surrounding religious freedom in India. Aishat Shifa vs State of Karnataka delivered a split verdict with Justice Gupta upholding the impugned order that directed the college development committee to disallow the wearing of the hijab to “preserve public order.” Justice Dhulia held the same unconstitutional. As part of this, we recently interviewed Mr. Dushyant Dave who also appeared for the petitioners challenging the ban. The episode is now live on Spotify and on our website. Welcome to the show, ma’am.

Ms. Jayna Kothari: Hello, Niveditha. Hello, Rakshit. Good to be here with you both.

LSPR: Yes, ma’am, if we could start with the questions straight off. Unlike some other lawyers in the case, you took a different approach to the issue by side-lining the Essential Religious Practice question, and instead arguing it as an anti-discrimination issue. What convinced you to take this approach?

Ms. Jayna Kothari: Yes, one is that the essential religious practice test is quite a slippery slope. That was not really the angle that we wanted to take, both on behalf of Women’s Voice and what I felt as a counsel would work. And this was not, I think, even what the girls were arguing for – to wear the hijab. It was not necessarily on the grounds of the hijab being an essential religious practice in Islam, but not to be discriminated on the grounds of their decision to wear a hijab. So, I saw equality and non-discrimination as the central aspect of this case, which was not actually argued even at the Karnataka High Court stage. And therefore, I really felt that it was very important to bring it up. And why is this a central issue? Because while the government order is seemingly made out to be quite neutral, or general, to state that no religious items of clothing would be allowed and therefore pre-University colleges are free to make their policies of uniforms, the impact of it is felt only on Muslim girls. And that is because students of other religious faiths were not precluded from wearing any item of clothing, or jewellery or any other item which denotes their religious beliefs, and nor were Muslim men barred from it. And this was a restriction that was experienced only by Muslim girls, where they were prohibited from entering and attending college if they chose to wear the hijab. Therefore, discrimination was the central element of this question where it was Muslim girls who were facing the negative result of this government order and it was specifically meant to be like that.

LSPR: Thank you, ma’am. Drawing from your previous response, is it inevitable that we fall back on the essential religious practices test or some sort of test to determine religion-related matters or for that fact, the extent of religious freedom?

Ms. Jayna Kothari: Well, I think it is time for some evolution of these tests. I would give a two-part response to this.

My first response is that if you take the Article 15 (1) test of non-discrimination on the grounds of religion, that test would not require us to go down the essential religious practice test route. The 15(1) test is a test of whether there has been discrimination on the grounds of religion. And that has a much lower threshold than examining whether any practice which is prohibited is an essential religious practice of that faith. It is enough to show that someone has been discriminated on the grounds of not being allowed to follow their religion in any way, and doesn’t have to have a high threshold of ERP. That is my first response and therefore, we should use an Article 15(1) “discrimination on the grounds of religion” test.

My second response is that in many other jurisdictions where there have been very similar cases to the hijab case, whether it is permitting girls to wear the hijab, in public schools, or in South Africa to wear a nose ring or in some of the other countries to have rasta hair, which are all revolving around questions of religious belief, Courts have evolved a test, which is quite different from the essential religious practice tests. The courts are saying that the courts do not need to go into this fact-finding attempt to determine whether that practice is an essential part of that religious faith, but only to test that this is an important aspect of the faith for that person, for the student, and that it is a bona fide held belief. That’s enough. And that is a much lower threshold. And I think that is the test we should use as long as the person is not saying that I want to wear the hijab or any other item of clothing or jewellery. As long as this claim is made genuinely – that this person believes that this is a part of their religious practice, that is enough. The court does not have to embark on this independent inquiry based on religious sources, that this is an essential religious practice, because that’s extremely difficult and we don’t need to go down that route.

LSPR: Thank you, ma’am for your very insightful response and I completely agree with what you said. Moving on to the next question, as students of constitutional law, we studied the judicial reasoning at various levels of our judiciary deeply entrenched in ERP test if consider matters of religious freedom. Keeping this in mind, how do you suggest we move towards a framework that interprets religious freedom on another ground?

Ms. Jayna Kothari: Yes, I think in this case itself, just as Justice Dhulia rightly pointed out, that there was no need to go into an essential religious practice test. We don’t need to embark on this test in every case.

My second response is that some of these tests are evolving in other jurisdictions. One of the ways it is evolved is that we don’t need our courts to approach the essential religious practice with a kind of objective criterion – that this particular practice is an essential part of that faith, but only to be satisfied that these beliefs are genuinely held by the petitioners. I think that would be a better test for the courts to evolve.

The third argument is that in many cases, where there is an aspect of religious discrimination and gender, our courts are not using Article 15(1) – the test of discrimination on the grounds of religion. They are embarking instead on an ERP test, which, which I would strongly argue against. We can see this in the hijab case, which is what the Karnataka High Court did. We can see this in other cases, for example, the Sabarimala case where the arguments were rather on the fact that it was an essential religious practice, and not on an argument of discrimination against women. We can also see it in the Triple Talaq case, where the argument of essential religious practice was made, rather than a 15(1) argument. So, I would say that we are under-utilizing Article 15(1) test of discrimination, and over-subscribing to the ERP test.

LSPR: Thank you ma’am. Branching out from the ERP discussion that we’ve already seen, do you believe that the issue of freedom of expression, as opposed to religious freedom also has a role to play in this case?

Ms. Jayna Kothari: Yes, of course. In this case, freedom of expression was a very important aspect of the argument of petitioners wanting to wear the hijab, and that is in addition to religious freedom. We’ve had decisions which have protected freedom of expression to include expressing oneself by way of clothing, hair, or any other form of self-expression, and that has been recognized very well as a part of Article 19(1)(a). Freedom of expression in this case took a took a very important position. So yes, that would be in addition to religious freedom.

LSPR: Thank you, ma’am. Moving on to the next question – Justice Chandrachud, on whom you relied on in your submissions as well, in Patan Jamal Vali spoke about the intersectional nature of discrimination. Here, we can see the same thing by drawing on the grounds of both religion and gender. In your opinion, what is the scope for a gendered approach to religious freedom in the Indian territory?

Ms. Jayna Kothari: I argued this in my written submissions and I feel that this case is really interesting because it gives us the opportunity to use the concept of intersectionality in such a meaningful way. We can see that Muslim girls have been discriminated against by not being allowed to wear the hijab and enter their place of study. This is a unique discriminatory impact on Muslim girls where they are at the intersection of gender and faith. We don’t see this kind of impact of the same government order, either on people of other faiths, castes or genders. And therefore, the understanding of intersectionality would have strengthened this argument. We’ve seen that in a few recent decisions where Justice Chandrachud has used the intersectionality argument. He’s used it in the Navtej Johar case, where briefly, not in a very substantive way, but for the first time, recognized that intersectionality needs to be addressed. This is because people are not unidimensional beings. We experience discrimination based on multiple identities that we may simultaneously have – be it gender, religion, race, caste, disability, etc. People at the intersections would experience discrimination in a far more aggravated and complex way. Justice Chandrachud raised this issue again in the Patan Jamal Wali case, which was a criminal appeal concerning a case where a girl who was from a scheduled caste and had a disability was the victim of rape. There the question was which legislation would be used to find the accused guilty? While the court ultimately did not agree to uphold the charges on the grounds of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Justice Chandrachud elaborated on the concept of intersectionality to argue that the victim in this case – being a girl, gender coming into play and being from a Scheduled caste, caste coming into play, she also had a disability – would experience the act of sexual violence would be far more aggravated than someone who would not be at these intersections. And therefore, I think that this argument needs to be used in the hijab case. It’s a unique situation that Muslim women in our country have been facing, and have been speaking about. Therefore, this case actually gives us that opportunity to look at it from an intersectional perspective – to look at indirect discrimination. It is the chance to explore all these concepts within the framework of equality.

LSPR: Thank you, ma’am. So, if we could go back a little bit, we understand that well established precedent does state that the test for public order is that the act in question must have some sort of rational nexus with violence that is so incited. This is something that was argued quite extensively by the government in this case. In your opinion, what are the implications and ramifications of watering down the standard to such a level where even a piece of cloth is said to disrupt public order?

Ms. Jayna Kothari: The public order argument was made, but it was not really substantiated. We should not encourage a situation where a public order argument is made very loosely. Courts have held up to the requirement that public order arguments are not made very loosely. It is defined in many judgements to mean a situation where there is unrest, where there is a disturbance of quite a serious level. There have been many decisions which have distinguished public order as different from a law-and-order situation, where law and order is definitely at a lower level of intensity or disturbance than public order. Since public order is the ground is one of the grounds for restrictions of certain freedoms, we have to take that ground seriously. And yes, in this case, no evidence or no material was produced to show that there was any disturbance to public order by the students were wearing the hijab. So yes, one can ask whether a piece of cloth could have the potential to bring about a public order justification to prohibit it. It could – every situation is different, but in this particular case, no such facts were made out. There was no basis to show that there was a disturbance or threat to public order. At least one of the judges rightly held that this justification does not hold good, and therefore referred it to a larger bench. So, we must take that public order test quite seriously, which our courts have taken, because it is one of the grounds on which you can restrain fundamental rights. Therefore, there has to be a much higher threshold.

LSPR: Thank you, ma’am. If we look at the case of the Bijoe Emmanuel, which was even cited by this Court and emphasised by Justice Dhulia, as a matter of fact, this case placed the Fundamental Rights of the Jehovah’s Witnesses who did not sing the national anthem on a far higher pedestal than Fundamental Duties, which were emphasized upon. Looking at it from a policy perspective and socio-politically, to what extent are we seeing obligations to the state being placed at a higher pedestrian than liberties in general?

Ms. Jayna Kothari: In the last couple of years, there’s been a kind of reemphasizing of fundamental duties. Public discourse is trying to emphasize fundamental duties rather than fundamental rights. In many contexts, fundamental rights are being fought for, the response from the authorities, or many government institutions or sometimes even in the public domain is – what about fundamental duties and people’s equal obligation to uphold fundamental duties? I don’t think it’s a competition. Our Constitution requires respect for both. It requires the upholding of Fundamental Rights, and it also requires Fundamental Duties to be followed by all. If we were to do that – our Fundamental Duties mandate every individual to respect the Fundamental Rights of others. In fact, there is one of the Fundamental Duties which also seeks to ensure that the rights of women are upheld. So, if that is a fundamental duty, then I don’t see any conflict. These duties are obligations on every person to respect the Fundamental Rights of all. And so, if we take the Fundamental Duties argument, it will mean that fundamental rights should be respected horizontally by private persons against other private persons, or qua private persons. So, in fact, that’s an even stronger argument for an application of fundamental rights vis-à-vis each other. It’s an even stronger argument for ensuring that the rights of women are not violated, because that’s there in the fundamental duties as well. So, I would say that they go hand in hand, and there’s really no conflict. And this does not take away the importance of fundamental rights in any way. In fact, it only strengthens it.

LSPR: Thank you, ma’am. I completely agree with that take on the issue. But do you believe that the judiciary in any way is close to approaching that sort of balance between fundamental duties and rights? Or have they been leaning one way rather than the other?

Ms. Jayna Kothari: I don’t think that the judiciary is leaning one way or the other. The Fundamental Duties argument is really being made only in the public sphere. I don’t think there is such a conflict in any of the recent decisions in a very strong way. So, I don’t think the judiciary is leaning one way or the other, but I think there’s an effort, generally, to put more emphasis on fundamental duties, and to downplay fundamental rights. I think we can counter that by showing the balance and interdependence [between the two]. I think that would be the perfect argument against it. I don’t think the judiciary is leaning one way or the other, so I’m not too concerned by that.

LSPR: Thank you, ma’am. On a slightly tangential note, I would ask you about the principle of reasonable accommodation. So, the principle was laid down in the case of Vikash Kumar as a means to the equality and dignity of the differently abled. In one of our class discussions, we were discussing the principle of reasonable accommodation and the manner in which it should be applied to those wishing to wear the hijab in schools and why they should be accommodated for their education and larger benefits. As a matter of fact, is wearing the hijab a matter of right or is it something that needs to be specially accommodated within society?

Ms. Jayna Kothari: The concept of reasonable accommodation evolved from the disability rights movement as being a measure that should be provided for people with disabilities, where they need any additional accommodation or any additional benefit, which would not be unreasonable or which would not impose an undue burden on someone to provide. This is to ensure that they enjoy their rights equally with others. So, whether it is providing some additional accommodation in terms of any software or access or any other form of instruction in school or college, etc., those will be forms of reasonable accommodation. Now, this has been extended to many other situations, which are not only disability related – this could be gender related, or in any other situation as well, because ultimately, reasonable accommodation is a principle to combat discrimination, and is a measure to ensure equality. This can definitely be applied even in this context, where one could argue that if there is a policy in schools or colleges to ask students to wear a prescribed uniform, I think you can certainly use the argument of reasonable accommodation to say that on the grounds of faith and gender, or on the grounds of faith alone, if someone needs an alteration to the uniform, such to wear a hijab or a scarf in addition to the uniform, or in many of the cases in the UK, where the uniforms were skirts, Muslim girls wanted permission to wear trousers or a salwar underneath their skirts. The principle of reasonable accommodation could be used to say yes. Over and above the uniform, if you need permission on the grounds of religion to wear an additional article of clothing, that could be an accommodation that the school can easily provide. It’s not going to cost the school anything, it’s not going to create any undue burden. It will just enable them to enjoy their rights to education and learning equally with others. So definitely, it is a principle that can assist in this case.

LSPR: Thank you, ma’am. So, we have one final question, which actually is more of a two-part question. Firstly, do you see the hijab case as a symptom of a larger tendency of intolerance towards the expression of religion in schools and other educational institutions? And second, do you think that there is a need for a larger conversation around this to secure younger citizens’ free speech and religious rights?

Ms. Jayna Kothari: I do not think that in schools and colleges on education institutions, there is a rising, necessarily a rising intolerance, on the grounds of religious beliefs. I think what we should be concerned by is the rising intolerance of religious beliefs, and not just religious beliefs, but so many other forms of living. Certainly, religious belief is a strong is one area of rising intolerance which we are seeing in our country today and that is of concern. The hijab case may be a case which manifested in, in education institutions, but I think the real concern is rising intolerance, on the grounds of faith in our public and private lives. And we’re seeing this in so many instances. For example, in this case of the hijab, we’re seeing it in the rise of violence against people in inter-faith marriages, inter-caste marriages, in so many other contexts, where there are some state legislations prohibiting religious conversions for marriage. So, this is what we should be concerned by, and, and we’re seeing this rise of intolerance on the grounds of religion, which is very interspersed or intersected with gender. It’s very intertwined. We’re seeing how gender and religion are so connected. Unless we address this in a deeper, nuanced way, we’re not going to be able to have a situation where we respect much different faiths, where we respect gender equality, and those are the questions I think we need to really address – have bigger debates, address them in schools and in our education system. I feel like that’s the real challenge.

LSPR: Thank you, ma’am. We’ve come to the end of the conversation. This was an excellent and very insightful conversation. Thank you for taking time out of your schedule to spend your time with us.

Ms. Jayna Kothari: Thank you very much. I enjoyed it as well.

Prem Parwani and Smriti Jaiswal provided technical and scripting assistance for this podcast.