Siddharth Johar and Sarthak Virdi
Recently, the Supreme Court rendered a split verdict in AishatShifa v. State of Karnataka, which concerned the constitutionality of a Karnataka Government Order (GO) that mandated an official uniform across government schools in the State.
This piece analyzes the judgment given by Hemant Gupta J. and critiques his reasoning. It does so by showing that he fundamentally misunderstands the Indian model of secularism and by doing so, he circumvents the application of the ERP doctrine and restricts the scope of Article 25. Further, we submit that the issue of religious attire as in the present case needs to be accompanied by an equality analysis, which has not been done by Hemant Gupta J. Lastly, we show that the current case highlights why the question of religious freedom and equality needs to be accompanied by a focus on reasonable accommodation.
ON ESSENTIAL RELIGIOUS PRACTICES – MAKING THE UGLY UGLIER
Hemant J., in his opinion, frames the question of ERP as one of an individual’s choice of subjecting themselves to either religious law or secular law. While the ERP test requires proving the essentiality of a practice to a religion, in paragraph 108, he writes –
“But I would examine the question that if the believers of the faith hold an opinion that wearing of hijab is an essential religious practice, the question is whether the students can seek to carry their religious beliefs and symbols to a secular school.”
It is important to note that the test requires proving that the practice is essential to the religion, but he takes the belief of the community as a given and then proceeds to see if the belief can be carried to a secular place. This is a circumvention of the question at hand since the issue was not whether the ERP can be practiced in secular spaces, but rather whether the belief is essential in the first place. Here, we are putting aside the demerits of a court determining the essentiality of practice, to show the incorrect application of doctrine, no matter the doctrine’s drawbacks.
Secondly, on an analysis of the cases on the ERP test, he arrives at the conclusion that:
“Thus, to sum up, the essential religious practice doctrine was developed when the State interfered with certain practices qua religious places or religious festivities or performance of religious rituals in public or where such practices curtailed fundamental rights… ”
He differentiates the present case from these cases on the basis that here, “The claim of the appellants is not to perform a religious activity in a religious institution but to wear a headscarf in a public place as a matter of social conduct expected from the believers of the faith. But in the present, the students want to subjugate their freedom of choice of dress to be regulated by religion rather than by the State while they are in fact students of a state school.” 
This is where he gets the question on ERP wrong and makes the ugly uglier. First, there is no principled reason to limit the application of the doctrine to cases involving a public performance of religious activity. The right to religious freedom is not spatially differentiated. Second, even if his word is taken as given, his premises do not support his conclusions. In the present case, there are accompanying rights that are being affected, which is a woman’s right to choose under Article 19 and her privacy. Third, by categorizing religious attire as something different from religious practice, he confines the latter to overt, public performances, taking out religious attire from the scope of Article 25. Fourth, he conceptualizes secularism as incompatible with the expression of religion in secular spaces while the Indian model of secularism and the ERP are not barriers to the expression of religion in public and secular spaces. He ends up framing the question as one’s choice between being subject to religious law or secular laws and if a person chooses the former, they must excuse themselves from public spaces. This, it is submitted, makes Article 25 redundant. Even if the ERP is taken on its face, his reasoning cannot be supported since he misses out on the equality/agency analysis in the present case and ends up misconstruing secularism.
This is what leads us to our next point, which is that the Indian model of secularism, which entails the protection of religious identity, necessarily requires reasonable accommodation. This is primarily because of two reasons; first, in the presence of multiple religions, the right to religious freedom requires accommodating the claims of each and second, in the absence of reasonable accommodation, there can be a disproportionate impact on religious minorities which, as in the present case, can further make things worse for minorities within the religion, for instance, along the lines of sex.
CENTERING THE EQUALITY DEBATE IN AISHAT SHIFA
Gupta J., in engaging with this model of secularism, highlights his conception of the relationship between secularism and equality and writes:
“Constitutional goals such as secularism, fraternity, dignity mean equality for all, preference to none.”
This conceptualization is thereby used by Gupta J. to wedge a gap between the application of reasonable accommodation and the analysis of claims on equality in the present case – where the former, would dissuade the existence of the latter. However, this conception of equality that centralizes focus on creating sameness, articulated as ‘formal equality’, runs contrary to the established theoretical and judicial outlines of equality in two fundamental ways, first, against the model of secularism in India envisages religious equality and second, against the underlying values that equality inherently contains.
The former is evidenced from the articulations of Rajeev Bhargava regarding the Indian model of secularism which is not narrowly conceptualized and is perceptive to the unique socio-religious dimensions of society, and seeks to redress intra-religious and inter-religious group and individual domination. The latter is highlighted by Bhatia, who highlights how fundamental decisions such as Navtej Singh Johar v. Union of India, Joseph Shine v. Union of India, and Lt.Col. Nitisha v. Union of India have shifted the perception of equality from a formal to a multi-dimensional perspective. This is expansively discussed by Sandra Fredman as substantive equality (SE) that aims to remedy structural disadvantages of marginalized groups by providing them with equality of opportunity, participation and accommodation.
This section analyzes the relationship between equality and secularism within the Indian context, highlighting necessity of the equality analysis in this debate. This need for centralisation of debate on equality is shown, first, by highlighting the shortcomings of applying a liberty analysis solely, second, by highlighting the necessity of intersectionality in constitutional tussles involving Muslim women and third, by the necessity for ensuring ‘positive actions’ in these constitutional tussles.
The first concern evident from AG Kokott’s reasoning is the United Kingdom’s cases of Achbita v. G4 S Secure Solutions NV and Bougnaoui v. Micropole SA. Here, as refined by Cara Donegan, the primary evaluation in liberty analysis shifts onto understanding the proportionality of the policy – and takes the ‘neutrality’ of the policy as it is. The implication of this failure to critically analyze the ‘neutrality’ itself – creates difficulty in highlighting the structural implications of this policy across varied groups.
This identification of varied groups is necessary in a much more holistic sense, as highlighted here, since the concern at hand was not merely about religious or gender groups but rather an implication of converging social identity markers for Muslim women. The question, therefore, by centralizing on what is mandated by the religion for women or not shirks away from considering the multiple values Hijab holds for a woman or a girl in a Muslim household, raising fundamental questions on whose conception of dignity and liberty is then being peddled forward. The equality debate on the other hand, aims to analyze the implications of state orders, irrespective of the purpose that the state order holds or the purpose that Hijab holds.
This brings us to our third point which is, the case for positive state obligations. By taking the SE model, the neutrality of a State policy cannot be taken for a given and it demands an examination of State actions to understand their impact along prohibited markers of discrimination. If the case seems to be tilted against certain groups, the State has an obligation to remedy the disadvantage caused. This aspect of a positive obligation is what is captured by reasonable accommodation which is what the next section highlights.
REALIZING THE CONSTITUTIONAL VALUE OF REASONABLE ACCOMMODATION
The theory of reasonable accommodation arises from two essential theoretical standpoints, the accommodationist and discrimination perspectives. This theory has been outlined in Indian jurisprudence from three particular cases, Jeeja Ghosh v. Union of India, Vikash Kumar v. UPSC and Ravinder Kumar Dhariwal & Anr. v. Union of India & Ors. Gupta J., having arisen prominently in cases of disability rights. However, the concern that Gupta J. primarily attaches importance to is the question of ‘uniformity’.
This ‘uniformity’, according to Gupta J. shall achieve sameness amongst the school students, in furtherance of the constitutional goal of secularism according to ‘preference to none’ and therefore, there is no scope for ‘reasonable accommodation’ which would violate this order. In doing so, as highlighted by Bhatia – Gupta J., first, centralizes on a principle of ‘uniformity’ that stands far from how the jurisprudence on Article 14 has developed, and second, fails to realize the substantive value of reasonable accommodation and its application. Reasonable accommodation requires the court to ask whether, in a setting where a certain default exists, a particular claim for departing from that default, founded in constitutional rights, can be reasonably accommodated by the state (or private party), without the activity in question losing its character.
The substantive value of this principle is realized through three essential elements: first, reasonable accommodation is individual-centric in nature and concerns itself with remedying individual discrimination rather than group discrimination as is focused by other constitutional tools under Article 14 such as indirect discrimination and reasonable classification. The implication of this focus is the evaluation of the lived experience and identity of the individual, falling within the intellectual scaffolding of Intersectionality established by Kimberly Crenshaw – as highlighted by Donegan.
Second, as highlighted by Prof. Katayoun Alidadi, reasonable accommodation is deliberative in nature and instead of focusing on what the state or the judiciary deems to be reasonable, obligates them to evaluate reasonability in consultation with the individual impacted. The impact of this deliberative strategy is to reduce the costs of conflict resolution by creating a space for negotiation and framing the conflict in a positive language – through terminologies and issue-framing that is solution-oriented. Third, reasonable accommodation has been highlighted as a ‘substantive equality facilitator’ by Chandrachud J. in Vikash Kumar – with the principle finding its ground within the constitutional scheme as a measure of affirmative and positive action. These positive actions, by their nature, not only attempt to remove the scope for discriminatory practices but also attempts to undertake actions by itself to do structural changes.
These benefits are essential in this case, since the primary question of this case is not the adjudication of an essential constitutional principle and the test to achieve that, rather as Dhulia J. articulated succinctly as the question of allowing Muslim girls into their educational institutions. The concern is girded in practical reality, the necessary corollary thus also requiring the courts to talk to practical ground reality. The centralisation of equality allows that conversation in this case, which Gupta J. fell silent upon.
Through this paper, we have aimed to show that the way secularism was understood in the present case makes Article 25 redundant for it understands religious freedom to be spatial. This was accompanied by making the gender question a non-issue and missing out on equality concerns. Both these concerns can be met by an approach that takes reasonable accommodation into account, for it takes multiple axes of domination into account.
The authors are second-year students from National Law School of India University Bangalore
Image Credits: HERSTORY
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