Constitutional Law

Aishat Shifa: Aditya Sondhi on the ERP test, when it should be pressed into service, the Sabarimala dissent and more

Parv Tyagi and Kartik Kalra

In the last episode of our series on Aishat Shifa, Parv Tyagi (Managing Editor, LSPR) and Kartik Kalra (Editor, LSPR) sit down with Senior Advocate Dr. Aditya Sondhi to discuss the Supreme Court ruling in the case. They discuss the origins of the ERP test, how far the test has drifted away from its original intent, Justice Malhotra’s dissent in Sabarimala, and the intersection of Articles 25, 19, and 15.

LISTEN TO THE PODCAST

LSPR: Greetings to all our listeners, this is Parv and Kartik. Today, our guest is Senior Advocate Dr. Aditya Sondhi. Not that he needs any introduction, but for our non-lawyer, non-legal listeners, Dr Sondhi has been practising law for about two decades now. He has been a Senior Advocate in the High Court of Karnataka since 2014, and has also served as the additional Advocate General for the Karnataka government. Mr. Sondhi has been a part of many important constitutional cases recently, including the very recent Aishat Shifa or the Hijab case. Currently, LSPR is taking an in-depth look into Aisha Shifat, the essential religious practice test and other related issues surrounding religious freedom in India. We have also interviewed Senior Advocates Mr. Dushyant Dave and Ms. Jayna Kothari as part of our series on Aisha Shifat. A brief background before we begin, Aisha Shifat v State of Karnataka was a split verdict with Justice Gupta upholding the impugned order that directed college development authorities to disallow wearing of the hijab to “preserve public order”, while Justice Dhulia held the same unconstitutional. Considering your prominent role in the case, Mr. Sondhi, we are honoured to interview you and hear about your experience with the case and your views more generally on religious freedom and Articles’ 25 & 26 jurisprudence. Welcome to the show, sir.

Dr Aditya Sondhi: Thank you for having me.

LSPR: Yes, again, thank you so much for being here. So let’s start with the very basics, we know that you’ve had an integral role to play in the argumentation of the case before the court. For our listeners, could you summarize the arguments that you made before the Court proposing the unconstitutionality of the Government Order?

Dr Aditya Sondhi: I don’t think it would be appropriate for me to replicate what I’ve already argued. And I believe it’s been covered extensively in certainly, media websites, but the sum and substance of the submission was that regardless of the ERP test, or the religious basis of the hijab, the wearing of the hijab by a girl student ought not to have been prohibited considering it was part of the expression, autonomy and right to dress of a student, intrinsically linked with her faith, belief and identity. And if that was how the wearing of the Hijab was seen historically, and by these girls, and it was linked to their right to education and the right to attend college, many of them being first generation learners, then there was really no larger public order aspect, which required the state to prevent them from abruptly wearing it now all of a sudden. That was the broad square within which the submission was made.

LSPR: Given that your submission was primarily oriented towards examining the historical view that the hijab possesses for persons who have been adversely affected by the Order, in your evaluation, what role did the court accord in its ultimate analysis to the essential religious practices test? Do you think it was integral to the judgments of both justices Dhulia and Gupta? Or do you think that it was somewhat secondary to their Article 19(1)(a) analyses?

Dr Aditya Sondhi: No, as you’re aware, there is a difference of opinion before between the two learned judges and while Justice Gupta’s finding is obviously in support of the action of the state and the fact that the wearing of the hijab does not necessarily meet the ERP test, in fact, he goes on to hold that the right of the state to prohibit hijab in these circumstances is, in any case, valid, considering the fact that a uniform has been prescribed, and there is no prevention or prohibition on the right to attend classes, and that it is a reasonable restriction. Justice Dhulia’s view it is more along the lines of what I tried to point out in our submission. He, in fact, found that the requirement to raise ERP itself was quite unnecessary. Perhaps the petitioners in the original petition before the Karnataka High Court need not even have gone that far. That said, there was perhaps no need for the High Court to have gone into the question of ERP per se, because the validity of the government order could have been decided on several other principles. And if those tests themselves were not met at the threshold, then the more vexed question of ERP really need not have been gone into. But as you’re aware, it is a difference of opinion between the two judges. So the final judgment, of course, will depend upon the view that the larger bench takes upon it being constituted.

LSPR: In your submissions, you cited a Nigerian judgment on the rights of Muslim women to wear the hijab in schools. This judgment also used some form of an ERP-like test to determine the extent of communities’ religious freedoms. Is it inevitable that we fall back on ERP or some variant of ERP itself to judge religion-based matters?

Dr Aditya Sondhi: I don’t think it’s inevitable. And I don’t even think it’s advisable to fall back on a test such as ERP, because ERP is a vague doctrine. Judges have differed on ERP, as you know, in Sabarimala and in Triple Talaq, the dissenting views have viewed the very same practice completely differently. Theorists differ on it and theologists differ on it. So that said, how do you possibly conclude as to what is essential when there is a difference of opinion, in the literature itself? How can you possibly describe something as essential when there is no hard and fast definition of it? Even within scripture, even on the matter of hijab, there are different views. There are different authors that have different interpretations. If you look at the judgment of the Karnataka High Court, one scholar is referred to, who holds a different view on hijab. Whereas, I have come across scripture where it could certainly be argued that the Hijab is intrinsic to the faith and is present in the Quran. My point is, these are not necessarily areas that courts need to go into. And once courts choose to go into them, there is going to be a likelihood of a difference of opinion based on ideology, based on understanding of scripture, based on personal philosophy, and possibly – I’m afraid to say – on the adequacy of the material that is placed before them. In the Karnataka high court’s judgment on the hijab’s matter, it  is clear that the finding on the hijab being ERP is based on the limited material that the petitioners placed before the court. Now, can we fairly decide something that is essential to a religion that is practiced by millions on the basis of the efforts of the counsel or the parties in a case? I don’t think that’s fair at all. If that is the case, I have said this elsewhere, then there is a pressing need then for courts to appoint amicus curiae in such cases to have experts deposed before them by way of affidavit or otherwise, and only then enter into this domain. It can’t be treated as a simple suit or a writ between two parties, and based on the pleadings and the literature placed or the independent research of the judges – that something this crucial can be adjudicated upon. So, I have a twofold discomfort with this doctrine of ERP. As I said, when judges and theorists and philosophers and theologists themselves differ, how are you possibly going to even outline what is essential, much less conclude, in the given set of circumstances, it’s even more complex. When certain religious practices are not codified in scripture, as I’ve already told you, there are different views. Even where they are codified in scripture, there are different views, since practices that may have been essential 500 years ago may not be essential now. Practices that were never essential at some point, perhaps by custom, usage, faith and belief may have over time become essential to a certain sector or community. Therefore, I think this is a slippery slope. The other thing that I said is the other discomfort is that on what basis do you determine it? You can’t possibly confine the adjudication to the pleadings, and the material placed by the parties, because that may be limited, then there could be some cases where there are bad faith petitions raising issues of essential religious practice, but not brought in good faith. And here, I want to draw a parallel on the principle of res judicata as applicable in public interest litigation. As you know, the dismissal of a PIL operates as res judicata in other cases, because it is decided in rem. But the caveat there is that the earlier PIL ought to have been a good-faith PIL. And as we know, PILs are often abused. Sometimes PILs files are filed only to be dismissed, and then use res judicata to prevent other bona fide PILs. So, we have to be extremely careful there that that sort of thing does not happen in cases involving matters of such sensitivity. And from that perspective, also, I am uncomfortable with the ERP test being deployed easily, and think it should be a last resort. If it is an essential religious practice test, I think it should be applied when it is required in a case. If it is not, and a case can be decided dehors that principle, I think courts should prefer to go down that route instead.

LSPR: Given that you’ve highlighted that judges can go any which way they want in undertaking an ERP analysis, given the abundance of material available and sometimes very limited material available that compels them to go towards the direction that the material before them is suggesting. You had argued in very diverse ways before the court as is reported in media,  along the lines of indirect discrimination and privacy. Do you think the court did justice to the diverse arguments that you had presented given that there is no engagement with the concept of indirect discrimination in either of the judgments? Justice Dhulia, for example, he does refer to the Sonali case of another country where the factual situation was perhaps a bit familiar, but that there is no direct engagement with concepts such as indirect discrimination. What’s your take on that?

Dr Aditya Sondhi: Look, it’s not my sense of justice or injustice. The justice of the case, is the larger question involved. And since there are differing opinions here, both sides may feel justice is done or not done depending on which order is read. But yes, there is certainly an indirect discrimination argument that was put forth. Before that, since you asked me about the Nigerian judgment- in fact, that is a direct illustration of the fact as to how different views can be taken on the same point. You see, the Nigerian judgment is not deciding a point of Nigerian law per se, or of Indian law for that matter, or of international law. It is deciding the question of whether hijab is essential to Islam. And in that sense, it’s a universal question. And the material that the Nigerian Supreme Court looked at could very well be the material that the Indian Supreme Court also looked at, it took a different view. But the point is, Islam is a global religion. For that matter, many religions are global in nature, they transcend national boundaries. And if that is the case, you ended up in a slightly peculiar position where one jurisdiction basis, Islamic material, and scripture holds the hijab to be very integral to the practice of the religion, while another doesn’t. So, in that sense, the Nigerian judgment also illustrates my point. But returning to the indirect discrimination point, I think that’s a crucial point because one has to look at the effects test, as the Supreme Court has laid down. The effect of a regulation, what on the surface appears to be neutral and uniform may in effect, be discriminatory to one group and if that is the case, then it falls foul of Article 14, whether the intent was that or not is beside the point.  You may intend to prescribe a uniform for everyone, but by prescribing the uniform if the discrimination indirectly or in effect is upon a particular group, then Article 14 stands violated. This could even be with Sikh students. And this is a point that has been raised according to me, it is a fair analogy to make. Sikhs wear a turban – is it essential? I would think it is essential simply from practice. I don’t know – I have not studied the scriptures deeply enough to know that but my limited understanding of the Sikh religion tells me that the five essentials include the turban. Now, the Constitution speaks of the right to carry a Kirpan. But it does not speak of the turban per se, but that does not undermine or dilute the status of the turban to a Sikh student or to the believer of the Sikh faith. Now, if in prescribing a religion, a uniform, in an institution, you indirectly prevent a Sikh student from wearing a turban, there is discrimination there in effect, and I would like to believe the same analogy would apply to a girl student wearing the hijab. And we also need to keep in mind the difference between prescribing a uniform and proscribing the wearing of the hijab, you could wear a uniform and also wear a hijab. You could say that a Sikh student will wear a turban in the colour of the uniform, let us say khaki or blue. Similarly, if the Hijab’s colour would match that of the uniform, it is still a uniform in my opinion. But if you’re proscribing it, then you’re trampling upon the rights. This may be indirect. I’m not necessarily saying that is the intent. But that’s a separate question. But you are indirectly then trampling upon rights that I mentioned earlier, which take you into cultural rights and into matters of autonomy, expression, gender, right to education, etc. And that is where then the essential religious practices test becomes less important. Let’s take an example of this effects test. Supposing one belongs to a tribe where tattooing is part of the culture. I know that’s the case with Aboriginals in New Zealand, for example, or in Australia, where full body tattoos, facial tattoos or tattoos in general, are a very important part of their culture and identity. And at many times, these tattoos are ones that you get when you’re just about an adult. Now, supposing a school or a university, let’s say the National Law School had a uniform prescription – that tattoos will not be allowed. It may be uniform, in a sense, but it may indirectly then prevent a student from this community or this group from being admitted. And it would then have to be looked at very differently. I know that in Japan, visible tattoos are frowned upon in some public spaces. You’re not permitted to be seen in a tattoo. But I think the law becomes more nuanced. The challenge is greater when it begins to intersect with what are cultural rights matters of faith, not just matters of expression, the hijab is not simpliciter a matter of expression. If you and I get a tattoo, it’s possibly a matter of expression and may not be a matter of culture and faith. But when it begins to transcend into those areas, I think the law becomes more intricate; the challenge and the test become more intricate necessarily, and then the principles become more intricate. And that is where this indirect discrimination principle can be pressed into service.

LSPR: Connected to the idea of there being indirect discrimination – you had cited the judgment in Nitisha v. Union of India before the court, which laid down two standards to assess indirect discrimination: first, that there must be a disproportionate impact on a particular group, and second, that impact must be to their disadvantage. Now, the presence of indirect discrimination, however, as the Court held does not result in an automatic conclusion that the law is unconstitutional. Rather, the State is given an opportunity to justify it on the basis of the four-pronged proportionality test. The state has to prove that the restriction that it is imposing on your rights via the discrimination that it’s undertaking – it is proportionate in nature. And on that, Justice Dhulia cited the judgment of the Constitutional Court of South Africa; that of Sonali. This was a case where a girl who was prohibited by her school from wearing a nose stud. The court used principles akin to those of proportionality, and to quote from the judgment, they say that “allowing the stud would not have imposed an undue burden on the school. The reasonable accommodation could have been achieved by allowing Sonali to wear the nose stud. I would therefore confirm the court’s finding of unfair discrimination.”

Sir, given that courts have also used the standards, such as these – that even though a uniform serves a purpose, your proscribing wearing of the hijab in toto is disproportionate to the advantages that you been able to derive via the imposition of a uniform. What would be your take on the substitution of the ERP test with analyses like the reasonable accommodation or the proportionality test?

Dr Aditya Sondhi: I don’t know if that would be a substitution, but that could be a position short of going into ERP. I will have to further elaborate a little as to why I’m uncomfortable with ERP. Courts are not expected to rationalize religion. There may be many practices arising out of spiritual and religious faith which may not necessarily be rational or acceptable to liberal thinking. That’s beside the point. The question is whether a certain practice in a faith is overtly violative of the rights of another, which is where the anti-exclusion test applied by Justice Chandrachud comes in. But can courts go into this question of article 14 from a jurisprudential point of view and try to rationalize religion? Now, there are many practices which one may not find acceptable from an equality test. But the question is whether those tests apply at all in the religious sphere? For example, certain Catholic churches do not permit non Catholics to partake in certain services. Can someone not belonging to the Catholic faith, then complain that there is a violation of article 14? Or there may be a Hindu temple- I believe the Jagannath temple, I’m not sure – does not permit entry to non-Hindus. Is that an article 14 violation? That is then getting into rationalizing religion. I don’t think that is where the Constitution comes in. I think the question is whether there is an overt violation of some sort. Now, obviously, you cannot use religious faith and dogma to say that female genital mutilation should be justified, because there is a very obvious violation there. You cannot use religious practice to justify some other exclusionary practice. You cannot use religion for example to justify caste discrimination. But the test will still have to be borne in mind and we saw that even with the Triple Talaq, you saw that there was a dissenting view, and even with Sabarimala, there was a dissenting view. And that dissenting view, interestingly came from Justice Indu Malhotra, the lady judge on the bench. So, we need to carefully tread here. We need to find this middle ground. You need to find ground where it is possible to decide a question without going into ERP. If so, decide it on that. Secondly, go into ERP in such cases where there is an overt violation of some sort, which shocks constitutional morality and shocks the conscience of the court, expressly or otherwise excludes the exercise of rights of individuals. Otherwise, my concern is, we’re already seeing the ERP being stretched. My concern is it’s going to be taken to some irrational levels. And if you go down that route, then this very distinction between secular practices and non-secular practices will come under scrutiny. And we must bear in mind that along with article 14, 19 and 21, there is also the code relating to the rights to religion. The larger community rights – Articles 25, 26 providing religious rights and Articles 29 and 30 providing cultural rights  are also crucial. And we’re moving towards the jurisprudence where rights have to be balanced. We don’t look at rights in silos any longer thankfully, we look at them as intersectional. And that is where I think we need to rethink this doctrine of ERP and only press it into service where it is absolutely essential.

LSPR: Thank you for that answer. Since you mentioned Sabarimala and Justice Indu Malhotra’s dissent in the context of religious freedom – there’s a school of thought which is perhaps more prominent in the US than in India. It’s called value pluralism, which argues that constitutionalism, understood as the commitment to constitutional values, is not eroded when the state enforces the right of private persons to act in accordance with values that conflict with those of the constitution – a very classical liberal libertarian idea. And in fact, they say that pluralism can flourish only when the State is prepared to enforce this freedom. And Justice Malhotra’s dissent, in my limited understanding, vaguely reflected this view when she remarked that religion is a matter of faith and not logic and that every religious practice need not satisfy the overarching constitutional goal of gender equality or dignity, etc. Both in the context of this case and more generally, what is your take on this idea that constitutional law cannot be an unalterable bar to the pursuit of private values?

Dr Aditya Sondhi: I think you have to look at each case, on its facts. It so happens that Sabarimala brought into focus a sharp question regarding gender. But had it not been a gender issue, how would you look at it? Supposing Sabarimala says that non-followers of the Hindu religion shall not be allowed in Sabarimala – would you look at it differently? Would your jurisprudence change? Would you then say it’s intrinsic to your right to faith and religion to say that you will preserve your religion in a matter of your understanding? And if that means that only followers and believers of your faith will be allowed, then there is no constitutional violation. How is it then that the gender principle is higher? One could easily argue, , based on the majority view that the broader libertarian jurisprudence that we follow – now perhaps creates a hierarchy. And in that hierarchy, possibly then gender rights stand tall or taller than others. But in principle, is there a difference? So, one has to think about it. Because otherwise you’re going down this route where you’re going to make religion equal in a sense. When I say equal, I mean equally applicable or scientifically rational. Surely religion is not that – it’s not meant to be. There is no one size fits all, which is why perhaps every religion believes that that religion is the best. Many scriptures say that.  Can you say that your scripture, which positions a religion and is absolutist, is constitutionally unacceptable? If you are going to go down that route, then I would say that the Bible is unconstitutional. This worries me because this is all in the realm of faith. It need not be rational at all. I return to my point that it will be easier for the court to decide those cases where there is some obvious overt violation. I’m thinking of the abortion judgment in the Supreme Court. It is disgraceful to overrule Roe vs. Wade and that too on the basis of religious doctrine. I think that is where the courts have slipped to the other end of giving too much latitude to religious faith. According to me, if your religious faith prevents an abortion, there is an overt violation. Of course, one school of thought will argue that their religious faith which protects the foetus, and is therefore life enabling. However, on the basis of empirical and scientific data, one can be convinced that preventing abortions leads to loss of life. With pregnant mothers, and more often than not with pregnant mothers belonging to the black community, of a particular socio -economic strata is when the plot thickens. That is where the intersection comes in and then the courts start to get into these new judge-made doctrines. After all, the ERP is a judge-made doctrine, just as the basic structure is. And that is where you start furthering constitutionalism. But if you’re not getting into those areas of some apparent violation, and you’re deciding questions simpliciter on principle, then there is a problem because you don’t know how it is going to be applied. Principles laid down in Sabarimala can be extended to illogical ends. It is possible, maybe not today, but you might see that happening in time to come. Then how do you roll back? This takes me back to the analogy of the basic structure and I had done a talk recently at the Kerala Bar Association about the future of the basic structure. I said that it is the strength and also the threat from judge-made doctrines that you do not know how they are going to be applied or questioned in times to come. They are always prone to differing views. The basic structure doctrine itself arose from a seven is to six. So, there is nothing absolute. If the matter gets referred to a bench of 15 judges, one can never be sure as to what is basic structure or not which becomes a matter of perception. What part of the Constitution is basic? Terms like basic structure, essential religious practice are interchangeable in essence. So, from a larger juridical point of view, it begins and ends with judicial interpretation. And therefore, there are bound to be matters of religious faith and practice arising before the courts that are complex. We need to be able to formulate those questions and decide them only if they are essentially important in the given circumstances. If not, then the play in the joints has to be there. That is the accommodation in our Constitution. If one looks at speeches on the floor of the Constituent Assembly, they provided for this accommodation. Moreover, a reality check of the issues that arise must be done. In my analogy of the National Law School, the Muslim girls in my class in the National Law School did not wear a hijab. Perhaps they had a progressive view on it and felt that wearing the hijab, regardless of religious faith, is a retrograde practice. But we cannot lose sight of the fact that the girls in question belong to very different socio-economic strata. They are probably first-generation learners. For them, it was Hobson’s choice between wearing the hijab and going to college and not going to college at all. If there is an access to education concern, the Sachar Committee report said that for girls belonging to a particular socio-economic strata from the Muslim community, we have to make room for tolerance and liberty in our jurisprudence. What is the concern or the violation that occurs from someone wearing the hijab, or wearing the turban? Who is getting offended by it? If you don’t like it then tolerate it. You may not like the fact that you are in a classroom where some others are wearing gear that represents their religious faith, maybe you would not do it. You then just tolerate it so long as it is not affecting you.

LSPR: Sir, your response brings forth the conflict between constitutional values on one side, and religion on the other. There are also some scholars who have written on the ERP. They propose that in the early days of the Constitution, where there were a series of judgments delivered by Justice Gajendragadkar in evolving religious freedoms that led to the inception of ERP, the intent with which the ERP was proposed was to show that there is actually no conflict between constitutional values and religion. If the ERP was absent, judges would have to conclude that religious values present in the country are in absolute contravention with constitutional values, and on that basis, the religion to the extent that it is in contravention of the Constitution that that part of it would be taken away. Thus, in order to avoid this statement of the incompatibility of the Constitution with the religion, the ERP was proposed. So, do you think that is a logic with which the ERP was born and it should be perhaps confined to those days only and should have no application now, given that the discomfort we have with religion and the Constitution at odds with each other which may not be as discernible presently? Or do you think it still has some space to show that there is actually no conflict between religion and the Constitution?

Dr Aditya Sondhi: No, it is certainly arguable that this doctrine was developed more in the context of community rights and not so much in the context of individual rights. The second thing is that the ERP test in any case is not a license. Let us assume a petitioner is able to justify before a court that certain practices such as Sati are essential to its religion. Supposing, I bring material before a court to justify that a practice is essential to Hinduism. What follows from it? How does it matter? You are then intersecting with the penal law of the land, you are intersecting with constitutional prohibition. So, it is important to note that the ERP test is not also a carte blanche. As of now, we are looking at it as some kind of a line. If you are on the right side of ERP, you are all clear, if you’re on the wrong side of ERP, you’re unconstitutional.  I’m afraid that’s not how it works at all. You can be on the wrong side of ERP and still be entitled to that practice. In fact, that in a way is the substance of the Hijab case. On the other hand, you may be on the right side of the ERP, that is, you may be able to buttress your case and establish that certain practices are indeed essential but it may still not be acceptable or constitutional. Then where does the ERP principle stand is the question. So, I think the scholars are right in saying that one has to see the context in which it was born. We have to see the change in the socio- economic realities with which we are concerned. It may be argued that euthanasia is an essential religious practice in some community, it may be right, we do not know. It may be in some case, that female infanticide has been practiced with such fervour that it suddenly becomes essential. This is where I’m saying religion need not always be logical. And also, religion is not to be confused only with the main religions with which we are familiar. We are now getting into anthropological questions. Religion is very specific to geographies, to communities, to tribes, to districts. The manner in which even the Hindu religion is understood and practiced in our environment may be entirely different from how it is practiced in a different geography in a village, or in a tribe or in a forested area. So, let us not look at the ERP as some kind of carte blanche either way. Because its ramifications are more important. If you can decide a question without going into ERP, please do that. On the other hand, even if you find some practice to be an ERP, but there is an overt violation, please do not use the ERP then as a buffer or an insulation to not go down that route. Because then that is where the larger constitutional principles come in. The Constitution is a living document. It is a fluid document. There can never be a jurisprudence where other heavy-duty rights-based segments of the Constitution can be shut out. I’m coming back to the basic structure doctrine. That is where the Supreme Court has created the scope for judicial review. The state’s position is that if I insulate an act, by parking it in a schedule in the Constitution, no court can look at it. Even the ERP can be regarded as a form of insulation, in a sense.  But the court denied by saying that judicial review transcends all of this. So that that is my response to the question that ERP is neither an absolute sort of buffer if you’re on the right side of it, nor is it a complete embargo if you’re on the wrong side of it. It has to interface with the larger questions that arise in a particular case.

LSPR: To go back to the various different perspectives with which this case could possibly be seen, if the order was being perceived from an article 19 (1) (a) perspective, there was a burden on the state to justify the reasonableness of the restriction it wanted to levy. Were the state’s lawyers put to this justification exercise in the Court, as per your experience of the hearing?

Dr Aditya Sondhi: Not from the perspective of the burden of proof point of view. But obviously, the state was heard on the matter though not pointedly from this perspective. It might possibly happen when the matter now gets referred to the larger bench. In fact, one of the initial submissions in the case made was that this is a matter of larger constitutional significance and to begin with, should go to a constitution bench. That is the prescription of our Constitution. However, the bench chose to hear it, which is its discretion. But this element of the burden of proof shifting to the state, when there is a violation of Article 19 is possibly going to be something that is still at large and may come up in the next round.

LSPR: Do you consider that when simultaneous rights under Articles 19 and 25 are in question, an ERP analysis should be absolutely precluded? Or do you think that certain questions could arise over here as well? For example, like there might not be a very bright line determining criteria to tell which religious practices are such that they are only religious practices under Article 25 and not ones that involve free expression. For example, the Ananda Marga community could also very well have claimed that they have a right to do the Tandava dances, which is free expression. For example, in Muhammad Hanif Quareshi, the butchers could have claimed that butchering buffaloes is also a part of his expression, a form of religious expression. So, do you consider that the way of circumventing the ERP in this manner by holding that it has no place when rights under both Articles 19 and 25 are in question is a sound way jurisprudentially?

Dr. Aditya Sondhi: Okay, it is a difficult question. It will again come down to the practice involved. A vegetarian judge may not like the analogy of butchering buffaloes. And as you know, one of the US Supreme Court Justices famously said that, if we do not like a law, we will find a way to strike it down. So, whether you deploy the ERP or not deploy the ERP will really come down to the effect that the particular practice has on the conscience of the bench. But that said, in this Hijab case, there was another interesting element that had sprung up, which was wearing of the orange shawl. The bhagwa I think it is called. I am not familiar with that being worn essentially or worn generally, but what I associate with the wearing of the turban, or the hijab, I do not associate with the bhagwa. I may be wrong but in the interim order passed by the High Court, the High Court said that no religious garments shall be worn to the classroom, and it expressly mentioned bhagwa, hijab etc. In fact, it did not talk about the turban. Perhaps there were no Sikh students in that college. But it would have been an interesting question. Now, where do you locate this wearing of the bhagwa? Supposing it is shown that the wearing of the orange shawl is not a matter of religious practice and it is not essential. Those students could still argue that it is a matter of expression. They also have that right to argue it just as a hijab wearing student does. Then do you create a new calibration? If you create that new calibration, do you say the expression of a girl student wearing the hijab is higher? Or do you say the wearing of the hijab by Muslim student enjoys a higher expression than non-Muslim student? Again, a difficult question to answer. So, I do not think Article 19 per se will shut out the essential religious practice test. These questions are going to intersect. But I do believe still that a prioritization has to take place. And getting into the ERP question is something the court should defer till such time you can adjudicate the other elements of the case. I say this because there is a much greater complexity in adjudicating what is essential religious. It may be easy to formulate that question. But it is far, far more difficult to answer it. And if you are answering it, and especially if you are answering it as the Supreme Court, the law you lay down becomes then binding upon all courts.  Judgments are cited internationally. Just as we have cited the Nigerian judgments, Turkish judgments American judgments and, South African judgments, the Indian judgments on hijab will also be cited. And therefore, caution needs to be exercised. As I have already mentioned, the scripture in Nigeria tells you the Hijab is essential. There are two high court judgments in India which take a different view based on the same scripture. How is it then you are going to easily answer questions of what is essential? Moreover, what happens when you get into essential religious practices which are not even in the Scripture? The Hindu religion is not essentially scripture-based. There are certainly parts of Hinduism that are based on scripture, but there is a huge body of work and practice and custom and faith which is not written in stone. Does it make it less essential? The customs you follow in a temple, to those who believe in them, they are certainly essential. If it is essential to perform an Arti for a Hindu worshiper, it is essential based on faith and tradition. Nobody is going to check in the Scripture whether it is prescribed or not. It can be offensive, then.  Supposing a court says a long-standing practice of a religion is not essential, is it not then going to be offensive to your view? I think these questions need to be gone into only if absolutely necessary. And I can talk about those two high court judgments as well.

LSPR: Yes, sir. Definitely.

Dr. Aditya Sondhi: The Bombay High Court and the Kerala High Court have taken a different view on the matter. They are both judgments delivered by learned single judges. In fact, the Bombay High Court judgement is interesting because it dealt with the case of an all-girls school. And the learned judge, in fact, cites the Scripture. And while citing the Scripture does not say that the Quran does not prescribe the hijab, but makes an interesting distinction to say that the hijab is essentially a sign of modesty. It is sign of privacy. It is a sign in a sense of sexual privacy and therefore it is irrelevant in an all-girls school. But then after the decriminalization of section 377, will that ratio still hold? Is it to say that there cannot be a sexual relationship between within the same gender? If you are using that test, then the Bombay High Court judgment has to be dissected from that point of view also. Now, the Quran may not have foreseen a same sex relationship. But how will you apply it today in this context? I think that it opens up the discussion on the Bombay High Court judgment itself. And the reason I am saying this is that it impliedly suggests that the hijab is provided for. It is  just that it is understood to be a matter of gender or sexual modesty and therefore inapplicable in an all-girls school. The Kerala view goes to the next step to say that it is within the scripture and therefore it is essential. In fact, neither of those judgments necessarily go into the larger questions of the more subtle rights. They do directly deal with the religious prescription. And in the context of the CBSE’s uniform prescription, the Kerala high court finds that it does not stand because it precludes a Muslim girl from wearing the hijab. So, I think to cut a long story short, the point is that within our own jurisprudence how will you harmonize different judgments? Will you have judgments from different states on the same scripture dealing with the same community? When you get into interpretation of religion, religion does not begin and end with a particular state or a particular dispute, it transcends it. But then can you have anomalous outcomes with different high courts hold different judgments with respect to the same religion and with respect to the same practice, which is pan India?  It will lead to chaos and increases the pressure on the Supreme Court. The Supreme Court has to lay down a view. And that is where perhaps the introspection will come in to see whether you really want to go down that line at all.

LSPR: We realize we’ve taken quite a lot of your time, and thanks for being so generous. Just last question on a slightly personal note, and a lighter note. What have you been reading and watching lately? Any books that you’d like to suggest or any movies or shows perhaps?

Dr. Aditya Sondhi: That is an interesting question. I recently picked up Savita Ambedkar’s book ‘Babasaheb’. I have recently read Ronald Horwood’s The Dresser, which is a fantastic play. I just started Samuel Beckett’s biography, which is also a very, very interesting piece of writing. I’m off to Paris shortly. So maybe that is why I’m reading it. Beckett, he was Irish, but he lived and worked in Paris. In terms of watching, I have not been able to make much time to watch stuff these days. I’ve been watching the World Cup when I can stay awake.

LSPR: Thank you, sir, for being so generous with your time. It was an absolute pleasure talking to you. Thank you very much.

Dr. Aditya Sondhi: Thank you. Thank you for having me.

(Prem Parwani and Oorja Newatia provided technical and scripting assistance for this podcast.)

2 replies »