‘Law does not say anything in any way that gives govt power to ban hijab’

As the Karnataka high court hears petitions against the hijab ban, Farrah Ahmed, a professor at Melbourne Law School who specialises in Constitutional law and religious freedom, spoke to HT about the right to practice faith, privacy, and education. Edited excerpts:

What do you make of this issue?

I have been following it relatively closely because I think it does raise very important legal and constitutional issues. The actions here are quite extreme and significant. I have been very interested in what is going on. I would characterise it a little more strongly because of what the state is doing, what the state-funded schools are doing...I think the state is acting through these schools... requiring women to disrobe... take out a part of their clothing to access education. It is making disrobing a precondition for accessing education. It is physically stopping women from accessing education because they are covering their heads. And I think in some of these schools, they are segregating students on the basis of religion. So, I think the legal issues are not that difficult, they are pretty straightforward. But what is actually happening, especially when we consider the fact that this is happening to children trying to access education, is very concerning.

You are saying a college by issuing or reiterating this order, it is the state which is acting?

That is true. ...we cannot say that just because a school or a college is technically independent in some sense... the state is not involved. I understand there is a hearing going on and all that. I actually cannot see even prima facie authority for what is happening. ...I have not been able to access any rule clearly stating anywhere that these young women cannot wear hijab or cover their heads and go to school. I have not seen that. ...they have this government order, and this is in the public realm, yes. And they say that is mandated or that they have the power to pass that order because of the Karnataka Education Act. But what the order actually does is to say that certain private bodies including schools and college development committees have the power to make provisions on uniforms. But we have not actually seen any of these provisions. That is a fundamental problem because India is committed to the Rule of Law. The Rule of Law means that the law has to be accessible. It has to be clear. It has to be certain. It has to be predictable. That is any citizen of India, including these young women, if someone tells them you cannot enter, you cannot wear this, then they have to be able to point to a very clear legal regulation that says why they cannot do this. In this particular case, there is no such regulation. I have looked at the government order...it has a lot of dogma, a lot of rhetoric. It talks about three cases that have nothing to do with this issue whatsoever, including a Supreme Court case and some high court cases. But it actually does not state that these women cannot wear a headscarf and come to college. For me, there are all these constitutional issues that we can get into... it is actually a much more fundamental problem where there is no law whatsoever that validates, empowers the schools and colleges to act in this way.

Can you elaborate?

The initial part of the order...I read a translation. I cannot read Kannada. But I read two different translations...I feel fairly confident that I have understood the meaning. There are seven parts of the order that talk about public order, unity, people... there is this kind of long narrative in the beginning that talks about that. And then there is this section of the order that cites these four cases that maybe have nothing to do with this issue in my view and says that there is no fundamental right to wear a headscarf. But then it does not actually lay down that these women will not be able to wear a headscarf...all they say is that other bodies can make rules and we do not know where those rules are.

So, on the basis of this order, you cannot stop women from wearing hijab...

There is nothing in this order that points to a past regulation or a rule that banned the hijab in these schools. Even if someone accepts that this order bans the hijab, it still has to be justified through an act. The government is claiming that the order is based on the directives of the Karnataka Education Act, which is fairly comprehensive and regulates a lot of schools and colleges and what they can do. But if you look at this Act, it does not say anything in any way that gives the government the power to ban the headscarf. In fact, it says many things that suggest the opposite. For instance, it says that the government has to work to promote the education of weaker sections of the society, of backward classes, and arguably these young women, by virtue of being women if nothing else. The Act talks about promoting education, India’s composite culture, diversity, richness, and heritage of our composite culture. So, it talks about all these things that in my view totally opposite of this order. ...the order cannot...be valid according to the Act... Even before we get to the constitutional issues, this order is what we call ultra-vires that is it is outside the power of the Karnataka Education Act.

Has the issue become murkier because of political groups?

There seems to be an absolute lack of good faith...even if we are putting to side the fact that fundamental rights are being breached, we are putting to one side that what the schools are doing is unlawful. If there is a dispute between the schools and the students, then you would expect the parties to negotiate in good faith with the mindset that there are these students and it is their best interest that we should think about and we should come to some solution so their best interests are promoted.

Is the high court looking at what is essential to Islam?

There has been a lot of focus on the right to religious freedom (Article 25), and that is important. I am not saying it is not important. But I think that in this particular case, there are other fundamental rights that are actually more salient. They have been violated. ...we have to have the Rule of Law. The law has to be clear and so on. Article 14 of the Constitution protects the equality of law and equal protection of the law. ...it has been very well established now that it protects the citizens of India from arbitrary action. What do we mean by arbitrary state action? It is any state action that is not based on reasons...where the conclusion or the outcome is not connected to the reason. That is one example of arbitrary state action. The order has all of this stuff... some of it is absolutely misleading like the characterisation of the case law. It has no connection. ...I think this is a breach of Article 14... The state is acting arbitrarily here... most salient for me for this particular issue is the right to privacy. ...the disturbing images that we have been seeing. ...young women, girls, and teachers as well having to disrobe in the public. This is absolutely a central case of a breach of privacy because of what the Supreme Court has said. This is in a very well-known judgement of Puttaswamy. It made it clear that there is the right to privacy in the Indian Constitution. If you look at the way they characterise the right to privacy, they talk about intimate decisions. They talked about having a sanctuary. They talk specifically about religious dress. So, saying to someone this is your dress, you have to take out one part of your dress in public is an infringement of privacy. ...It is a phenomenal infringement of dignity. ...that is absolutely the key issue and there are also other issues...the right to education, to free expression. Whether we are religious or not...whether we wear some clothing or we do not... We have the right to freely express ourselves. So, I think that is also a really important right that has been infringed here.

An air force official was terminated from work because he kept facial hair. He argued that it was an essential part of his faith and the court ruled against it. What are the precedents essential to understanding which will have a bearing on what the Karnataka high court is looking at?

Given the example you gave, there are precedents that are not actually precedents. That is to say, they are precedents that should be distinguished because these are not like cases. I would suggest that this kind of case where we are talking about the air force or the army or where there is an absolute paramount state interest in the discipline, in people falling under authority, or military ethos. Any decision you make about religion in that situation, I do not think is in any way applicable to a situation of people living in a civil society. Certainly not applicable to a situation where we are talking about young women trying to access education.

In another case, some Muslim girls were not allowed to wear hijab in view of mass cheating, which is a problem in India. Would that be a precedent?

I did read the news about that. But I did not actually read the judgement. So, I would have to go back and read the judgement. The other precedent cited in the government order is one where a girl from Class 6 wanted to wear a headscarf to an all-girls school. ....even though the government is citing it in its favour, it actually goes against it... in this particular situation where you have a girl with only other girls, then it is difficult to argue that covering your hair in that situation is a part of the essential religious practice protected under Article 25. So again yes, that case seems sort of similar. If we had another case where it was an all-girls school and you have a very similar situation, then yes, I think that counts as a precedent. But the court was quite careful in that case to make it clear that they were only seeing this because this was a very young girl in a girl’s only school. So, there are a lot of precedents that are cited that I think should be treated with care and are not really applicable.

In terms of precedents that are important, a really important precedent comes in response to the Biju Emmanuel case. There are other Jehovah’s Witnesses cases that are quite important and tell us something really important about the nature of the right to religion. Because in those cases, you are dealing with Jehovah’s Witnesses’ religious practice. These are cases where for instance children are refusing to sing the national anthem. They are refusing to salute the flag. And it is not just India that has dealt with these cases. Such cases have come up in other jurisdictions as well because of Jehovah’s Witnesses’ practice. Now, those of us who are patriotic might be unsympathetic to these children and to their parents and say that these children are not showing respect to the flag or national anthem. But the court actually protected the rights of these children in these situations. So, when we keep in mind what fundamental rights are for, they are not there to protect things that you agree with, but things that the majority agrees with. If there are things that everyone agrees with then there is no need for protection. The fundamental rights are there to protect those who are vulnerable, those who are weaker, those who might be unpopular, those who might be subject to harassment, those who might be disliked. It is the practice of these people that we have to give the most sacred importance to under the Constitution.

There seems to be an opinion that wearing the hijab is an expression of subjugation and it is not autonomy or agency. As someone who wears a hijab, what would you say about that?

Even though you are asking a general question, it raises further Constitutional issues because the Supreme Court also said that what is forbidden under Article 14 is stereotyping. To me, this is a very common trope about Muslim women. We can talk about prejudices more generally but I think with Muslim women, in particular, there is this trope of being oppressed, being subjugated, not being educated, not having autonomy, not having agency. So, I think that narrative that you have conveyed fits very well with that. In a way, I feel I am not the person to respond because I think the people you should look at are the women who are affected on the ground. I do not know what everyone’s reaction is but when I see those women, they are demanding that they have the right to education. They are asserting themselves. They are not scared. To me, there is nothing much more that needs to be said beyond looking at these women. Can you really deny their autonomy, can you really deny their agency? What those images reminded me of was Malala [Yousafzai] and her bravery against the Taliban to get an education. Are we really going to say that because Malala covers her head with a dupatta, she is not autonomous?

Is the issue similar to what has been happening in France?

There are differences in the social context. But the biggest difference is that there is a fundamental difference between the laws, the Constitutional provisions, the values of the French Republic, and India. When France bans headscarves, those are justified on the grounds of what they called Laïcité, which you might translate into secularism. I have seen people make the argument that ‘France does this in the name of secularism so why should India not do it as well, we are also committed to secularism just as they are.’ But that is actually a very misleading comparison because if you understand what secularism is in India, it is completely different from French secularism. In particular, Laïcité is basically about uniformity, making everyone the same, homogeneity. There are a lot of people who have written about how that is oppressive to anyone who is different.

Indian secularism is absolutely clear. I do not think there is any room for doubt among people who are arguing in good faith. Indian secularism is not about excluding religious practices from the public. It is radically inclusive.