Opinion Hands off the hijab, please
Every attempt at exclusion and discrimination must be met by holding on to the Constitution
One ignores that the Muslim women are simply discriminated on account of their religious belief. Article 14 of the Constitution guarantees equality before the laws and Article 15 prohibits discrimination on the basis of several grounds, including religion and sex. (PTI) 
The hijab controversy which began in Karnataka has caught national attention. Several schools have prohibited Muslim girl students from entering classrooms or the premises of institutions wearing the hijab. On February 25, the matter was reserved for judgment by the Karnataka High Court.
Much of the deliberation on the issue — judicial and otherwise — seems to focus on essentiality, a doctrine developed by the Supreme Court in the Shirur Mutt case. The court held that Article 25, which guarantees freedom of religion and conscience, “covers all rituals and practices that are integral to the religion.” The current debate has led many to ask how essential the hijab is to the practice of Muslim faith.
This focus on essentiality is misconceived because of, at least, two reasons. One, this results in mischaracterising an instance of hostile discrimination to that of interpretation of religious texts and rituals. One ignores that the Muslim women are simply discriminated on account of their religious belief. Article 14 of the Constitution guarantees equality before the laws and Article 15 prohibits discrimination on the basis of several grounds, including religion and sex. When Muslim women are kept out of classrooms for wearing the hijab, it is a classic case of discrimination under the equality clauses of the Constitution.
It is pertinent to note that this is also a case of intersectional discrimination, a term credited to Kimberly Crenshaw. Intersectional discrimination recognises that people are not made of monolithic identities, but multiple identities cutting across each other. Muslim women are subjected to the present exclusion because of the intersection of both identities — being Muslim and being women. Discrimination solely on account of these protected grounds is prohibited by the Constitution. As the Supreme Court held in Navtej Singh Johar (2018), the essential content of the anti-discrimination provision is the appreciation of the intersection of “varied identities and characteristics.”
Moreover, the government order which bans clothes violative of “public order” amounts to indirect discrimination. The doctrine was recognised by our Supreme Court in Col. Nitisha (2021) as part of our constitutional jurisprudence. Indirect discrimination occurs when an action is neutral on its face, but disproportionately impacts a protected group.
Secondly, the essentiality test, to ascertain the genuineness and the nature of freedom of religion and belief, is deeply flawed. The courts are simply not theological experts in determining if a practice is “integral” to a religion or not. Faizan Mustafa, scholar on freedom of religion, has argued that the test “impinges on individual freedom and gives too much power to the courts in matters of religion. In effect, it elevates the judiciary to the status of clergy.” (Freedom of Religion in India, 2017). Moreover, the test is of a general character, completely sidelining how important and integral a practice is to one’s belief and conscience. Instead, it looks at how essential the practice is for the religion altogether, with reference to its traditions and texts. Individual autonomy and agency are ignored. This structure is antithetical to how rights must be conceived, by keeping the individual at the centre of the debate. As Charles Fried puts it: “Individuals come first. Whoever says otherwise is trading in metaphors. There are societies, nations, families, teams, but they are all made up of individual persons.” (Modern Liberty, 2007).
In 1954, the US Supreme Court declared segregation between the Black and White students in public education to be illegal in Brown v. Board of Education. However, when nine African-American students reached the gates of Little Rock Central High School in Arkansas, they were faced with an angry White mob and several soldiers sent by the Governor of Arkansas to prevent their entry to the school.
Our Muslim friends are faced with a similar threat of hatred and discrimination. In both cases, children are being deprived of education — a significant social good — for unfounded reasons. We must also be conscious of the false equivalence that the right wing is trying to peddle by comparing the hijab and the saffron shawls. While the first, for many Muslim women, is an innate part of religious identity, the latter is only a symbol of Hindu extremism and a pretext to intimidate. Every attempt at exclusion and discrimination must be met by holding on to the Constitution, close to our hearts. Hands off the hijab, please.
(The author is a lawyer at Supreme Court and the Kerala High Court)
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