Hijab and the Doctrine of Reasonable Accommodation

 

                                                                   Just a Couple

Aishat Shifa Vs. State of Karnataka &Othrs (Civil Appeal No.7095 of 2022)

Charted Course for Future.

• "Finality is a good thing, but Justice is better" the dissenting judge quoted Lord Atkin at the outset.

• All the petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? Or even decency or against any other provision of Part – III of the Constitution.

• It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a class room is a public order problem or even a law-and-order problem. To the contrary, reasonable accommodation in this case would be a sign of a mature society which has learned to live and adjust with its differences.

• Article 25 protects  "Any Religious Practice" not "Essential Religious Practice (ERP)".

• Individual Rights are different from Community rights. Individual rights are protected under Article 25(1) and Community Rights are protected under Article 25(2) & 26 of the Constitution of India.

• We have before us two children, two girl students, asserting their identity by wearing hijab, and claim protection under Article 19 and Article 25 of the Constitution of India. Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute. If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in classroom.

• Practice of Religion, Islam being no exception, varies according to the culture and social context.

• Courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other.

• "There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond the reach of the Constitution..." Justice Jackson in West Virginia State Board of Education v. Barnette

• The girls before us todays face the same predicament as the Jehovah's Witnesses.

• Comparison of a school with a war room or defense camp seems odd.

• We must be a judge of fact as well as a judge of law.

• School is a public place, yet drawing a parallel between a school and a jail or a military camp, is not correct. Again, if the point which was being made by the High Court was regarding discipline in a school, then that must be accepted. It is necessary to have discipline in schools. But discipline not at the cost of freedom, not at the cost of dignity. Asking a pre university schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It is clearly violative of the Fundamental Right given to her under Article 19 (1)(a) and 21 of the Constitution of India.

• An individual may perceive that the best form of expression is to remain silent.

• The essence of "reasonable accommodation" is an "exercise of proportionality".

• Question which the School administration and the State must answer in the present case is as to what is more important to them: Education of a girl child or enforcement of a Dress Code!...This is for a girl child, for whom it was never easy, in the first place, to reach her school gate.

• One of the best sites in India today, is of a girl child leaving for her school in the morning, with her school bag on her back. She is our hope, our future. But it is also a fact, that it is much more difficult for a girl child to get education, as compared to a brother.

 

• This case therefore as also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this court would therefore put before itself is also whether we are making the life of a girl child any better by denying her education, merely because she wears a hijab!

 

• A girl child has a right to wear hijab in her house or outside her house and that right does not stop at her school date. The child carries her dignity and privacy even when she is inside the school gates, in her class room. She retains her fundamental rights. To say that these rights become derivative rights inside a class room, is wholly incorrect.

 

• Our constitution is also a document of trust. It is the trust the minorities have reposed upon the majority.

 

• Our ability to recognize others who are different is a sign of our own evolution.

 

• Our tradition teaches us tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it – Justice O. Chinnappa Reddy in Bijoe Emmanuel Case.

 

• Under our constitutional scheme, wearing a hijab should be simply a matter of choice. It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression.

 

• If she wants to wear hijab even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to School, and in those cases, her hijab is her ticket to education.

 

• This case here, therefore, has also to be seen in the perspective of the challenges already faced by a girl child in reaching her school. The question this Court would put before itself is also whether we are making the life of a girl child any better by denying her education merely because she wears a hijab!

 

• By asking a girl to take off their hijab before they enter school gates, is first an invasion of their privacy, then it is an attack on their dignity and then ultimately it is a denial to them of secular education. These are clearly violative of Article – 19 (1) (a), Article – 21 and Article – 25 (1) of the Constitution of India. 

Kartikey