Treating values of individual freedom as trifles

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News: Recently, The Karnataka high Court has given its judgment in the hijab controversy case (or the Resham v/s State of Karnataka Case (2022), wherein a ban imposed on the use of hijabs by students in classrooms across the State (Karnataka) was upheld. 

What has the High Court said in its judgement?

The High Court’s judgement is based on the following three conclusions:

The wearing of a hijab is not an essential practice of the Islam. Therefore, the right to freedom of religion is not impinged;  

No substantive right to free expression and privacy can be claimed within the confines of a classroom. The court classifies the classroom as “qualified public space”, where individual rights cannot be asserted to “the detriment” of “general discipline and decorum”.   

The government’s order does not by itself ban the use of a hijab, it is neutral, and therefore, there is no discrimination aimed at Muslim women students.  

The judgment holds that any accommodation in the uniforms defeat the very purpose of uniforms. 

The Court ruled that the individual’s rights could be abridged in the interests of public order, morality or health.  

What are the issues with the judgement?

Ideals of the Constitution of India: As per The Preamble, the state has to secure to all citizens, liberty, equality and fraternity which were called as “a union of trinity” by Dr. BR Ambedkar. Divorce one from the other defeats the very purpose of democracy.  

Enforcing popular morality: InResham vs State of Karnataka Case (2022), the Karnataka High Court (HC) has enforced the popular morality of the day. It has given a blow to the B.R. Ambedkar’s union of trinity.  

Court’s use of Precedent: The court referred to only those “essential religious practices” which are enjoying constitutional protection. These did not cover wearing of a hijab as a legitimate exercise of religious freedom. Similarly, the SC did the same Tandav Dance / Ananda Margis faith related case in 2004.  

Free choice and state action: In this case individual freedom was not at odds with group rights. Here, the exercise of free choice has been curtailed by state action.  

In this case, the wearing of the hijab was pleaded to be a matter of “freedom of conscience” guaranteed in Article 25 of the Constitution. Unlike this case, In the Bijoe Emmanuel Case (1986), SC protected the freedom of conscience i.e., right of a student of not singing of the national anthem.   

In the present case, the onus to prove that the petitioners conscientiously believed in the necessity of the hijab was put on the students. However, the onus should have been on the state to establish that students were not wearing the hijab out of a sense of conscience. 

Choosing to wear the hijab is merely exercising a form of identity relatable to the rights to freedom of speech and privacy. 

Ignoring the test of proportionality: Court ignored determining when and how the right to free expression can be legitimately limited 

What is the way forward?

There could have been “reasonable accommodation in this case. For example, Kendriya Vidyalayas(KVs), allow for hijabs within the contours of the prescribed uniforms i.e., even within the existing dress code, many accommodations can be made.  

Judiciary should act as a “sentinels on the qui vive”. It should prevent any effort to undermine social democracy. 

Source: The post is based on an article “Treating values of individual freedom as trifles” published in The Hindu on 17th Mar 22. 

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