‘Resham Fails Both the Test of Reasoning as well as the Test of Empathy’, says Author and Scholar, Arvind Narrain
ARVIND Narrain is the well-known author of the recent book, ‘India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance’ (Westland), which has received critical acclaim among scholars and the reading public across the world. A visiting faculty at the School of Policy and Governance, Azim Premji University, Narrain has been involved with research, writing and practice related to law and social concerns. He has attained a Bachelor’s degree in law from the National Law School of India University [NLSIU] followed by a Master’s degree at the University of Warwick on a Chevening scholarship. He is currently in the process of doing his Ph.D on ‘Mapping the elements of an Ambedkarite jurisprudence’ at NLSIU. Narrain co-edited with lawyers and queer rights activitist Alok Gupta the book, ‘Law Like Love: Queer Perspectives on Law’ (2010), and co-authored with academic Dr. Saumya Uma, ‘Breathing Life into the Constitution: Human Rights Lawyering in India’ (2016).
Narrain recently wrote an article, “Hijab row verdict: a grave constitutional wrong” in Deccan Herald, in light of the judgment in Resham & Ors. vs. State of Karnataka & Ors., delivered by the Karnataka High Court, which upheld the state government’s ban on wearing of hijab in the classroom by the students in the guise of imposing uniformity. In response to questions posed by The Leaflet’s Editor, V.Venkatesan, Narrain articulates here his detailed thoughts on why the High Court’s verdict is egregiously wrong on several grounds.
Excerpts from the interview:
Q: You have excoriated the recent Resham judgment as one of cold-blooded legalism. Some will say judges have to be concerned with legal reasoning, rather than succumb to their emotions. Is there a place for commiseration for suffering, as you put it, in a judgment based on legal reasoning?
A: Actually, I would revise that statement a bit and say that Resham fails even the test of cold blooded legalism. Some of the petitioners argued that the action of banning students from wearing the hijab (in Kundapura) and the notification were issued without giving notice, adequate consultations, etc. The court did not engage with this argument. The court should have first scrutinized if there was a threshold-level bare compliance with the law, and if that was not there, there was no need expend ink on whether ‘hijab is an essential practice of Islam’.
Once the threshold of legalism is crossed, and we enter the frontiers of a constitutional jurisprudence, we realize that emotion is not alien to the law. Resham fails both the test of reasoning as well as the test of empathy. Judicial decisions at their best are not cold and unfeeling but display a profound empathy for human suffering. A court which is moved by human suffering produces judgments like the pavement dwellers judgment (Olga Tellis) and bonded labourers judgment (Bandhua Mukti Morcha). A Court which is unfeeling legitimizes the rape of a tribal girl, Mathura (Tukaram vs. State of Maharashtra), or the criminalization of the intimate lives of LGBT persons (Suresh Kumar Koushal).
“Clearly, constitutional functionaries like the judges of the Supreme Court are enjoined to keep in mind the idea that they have a high constitutional responsibility to redress the causes of ‘tears and suffering’.”
Also read: Dissecting the Karnataka HC’s hijab judgment
One can argue that by responding to human suffering, judges embody a form of humanism which is constitutionally mandated. This idea of humanism as central to the very purpose of the Constitution finds a place in the famous ‘Tryst with Destiny’ speech welcoming India’s independence by Jawaharlal Nehru in the Constituent Assembly. Nehru said, referring to Gandhi that, “The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but as long as there are tears and suffering, so long our work will not be over.”
Clearly, constitutional functionaries like the judges of the Supreme Court are enjoined to keep in mind the idea that they have a high constitutional responsibility to redress the causes of ‘tears and suffering’. In Resham, some of the petitioners before it including the young girls from the Government Pre-University College in Kundapura had the gates shut on their faces, when they were attempting to enter their college, by their own teachers. Why did not the court respond in a spirit of constitutional humanism to what was an action which was not only without legal sanction but antithetical to the humanistic values of respect for dignity and a concern for fraternity which is at the core of Dr. B.R. Ambedkar’s vision of the Constitution? (Philosopher Akash Singh Rathore argues that both dignity and fraternity find their place in the Constitution due to Ambedkar’s insistence)
Q: How will you distinguish a dispute involving balancing the rights of the individual over the rights of the community from Resham? Do you think the court might have been justified if one of the petitioners also included someone who felt aggrieved by those wearing hijab, saying their freedom to wear hijab came in the way of their group rights to maintain uniformity in the college? Granted that no Muslim woman wanting not to wear Hijab was before the court. Can there be a justification for the court to intervene on their behalf, because they are silent? Did any respondents justify such intervention in these terms? Did anyone allege that these girls were under compulsion to wear hijab?
A: The justification for the respondents intervening on behalf of the girls was particularly egregious. The government in its oral arguments repeatedly made the claim that the hijab was oppressive to Muslim women and they were forced to wear it. There was no evidence of the respondents having in any way held consultations or meetings with Muslim girls to ascertain their views on the hijab, much less that they were forced to wear the hijab. How does one accept the prima facie illegitimate claim of the government claiming to emancipate Muslim girls from the hijab? Even if one goes by ‘cold blooded legalism’, the government, beyond hyperbolically asserting the terrible state of Muslim girls, has not shown any material to establish that it has consulted with Muslim girls, and since they are scared to speak out, the government will be their voice.
Can the paternalistic claim of the government be accepted, especially when there are girls before the court saying clearly that they want to wear the hijab? The government claim of representing the concerns of the Muslim girls who don’t want to wear the hijab has no factual, ethical, moral or philosophical or legal basis, and should never have been accepted by the court.
The other question the court shies away from answering is this: How is allowing the wearing of the headscarf more detrimental than other forms of religious expression, such as bindi, kumkuma, cross etc. to the concept of uniform? If the object is to erase religious symbols, why is only one religious symbol being restricted while others are being allowed? This remained unanswered by the Court.
Q: You are critical of Resham because the court ignored the principle of reasonable accommodation. Can you explain this? Did the counsel for the petitioners specifically invoke this? Did they cite any case law? Are there any precedents for this for us to understand this better?
A: Reasonable accommodation is a principle from disability law which the petitioners argued before the court, which the Court unfortunately rejected in this context. Even while the term may be new in this context, it only signifies the court’s interest in problem solving and balancing various interests to arrive at a viable solution. In this case, the ‘reasonable accommodation’ the petitioners were asking for was a simple one of saying we will wear the uniform (comply with the rule). What we are claiming is that you reasonably accommodate our right to express our culture and faith by allowing us to wear a headscarf in the colour of the uniform. This is not a rejection of the uniform rule, but rather for allowing the wearing of the uniform plus scarf so as to accommodate the core constitutional rights under Articles 21, 25 and 19. The best precedent is the one the court cites, namely the Kendriya Vidyalaya, which allows the wearing of turbans and hijabs in the colour of the uniform.(the court goes on to say that a federal polity allows states to decide otherwise).
The legal precedent the court cites (only to distinguish it from the facts in this case) is the South African judgment in Mec For Education: Kwazulu-Natal vs. Navaneethum Pillay (2007). In this case, the South African Constitutional Court held that a Tamil Hindu girl had a right to wear a nose stud as it was part of her religion and culture and prohibiting the same would hit at her right to religious and cultural expression which should be reasonably accommodated. Why should the right to religious and cultural expression be reasonably accommodated? As the South African case puts it, this is because they are ‘central to human identity’ and hence to ‘dignity’ and ‘equality’. By reasonably accommodating the wearing of the nose stud you are affirming the ‘right to be different and celebrating the ‘diversity of the nation’. The South African court understands that there are grave constitutional interests which underlie the principle of ‘reasonable accommodation’. As the court put it:
“But what is the content of the principle? At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms.”
The rejection of the principle indicates the High Court’s failure to understand that there are grave constitutional interests (of the right to religious expression, the right to dignity and privacy) involved. In a constitutional democracy, these interests should not have been brushed aside so casually.
Q: Does this ruling also apply to the turban worn by Sikh students? If a turban of a Sikh student is exempted under Article 25 because it is a religious practice, has there been any previous ruling which binds the court on this?
A: The court does not allude to either the right to wear turban or carry kirpan in its judgment. The right to carry a kirpan finds mention in Article 25 as part of the ‘profession of religion’. The other aspects of the Sikh faith, including the wearing of the turban, have not been mentioned in the Constitution as presumably the framers did not think that it could result in any controversy.
“With respect to prisoners while they may not have the right to move freely, they do not lose all other human rights such as the right to life and dignity. In this case the Court is talking about ‘qualified public places’ as a way to restrict what are rights protected under Article 21, namely the right to privacy and dignity’, ignoring the existing law on the point on how fundamental rights can be restricted.”
The judgment seems to take a hard secular line but nowhere does it speak about prohibiting bindis, crosses or other forms of religious expression. Since the Court is at pains to describe the notification under challenge as not ‘sectarian’, if the logic of Resham is allowed to follow through, all other forms of religious expression will have to yield to the school uniform. The logical end point of the court’s version of secularism is a bland uniformity which will not reflect the diversity of India.
However, that is not what the government intends to do as can be seen by a reading of the notification which in its de facto operation is really only about targeting Muslim girls. The court too seems untroubled by Hindu expressions of faith, as seen by the discussion on the South African ‘nose stud’ judgment, holding that allowing the use of the nose stud was ‘ocularly insignificant.’ One can only conclude that what is ‘ocularly significant’ and hence to be prohibited seems to turn on the religion one is talking about.
Q: Your view is that the idea of a derivative right has no Constitutional sanction. Can you explain this? What exactly is a derivative right? Has there been any legal justification for such a notion, even if there is no constitutional sanction?
A: In the excellent research brief prepared by academic Farrah Ahmed and other constitutional law scholars, they specifically note that in People’s Union for Civil Liberties vs. Union of India (2003) the State sought to argue that the ‘right to know’ under Article 19(1)(a) is a derivative right and can therefore be restricted to a greater extent by the legislature. The Supreme Court, however, stated that: “[T]his submission requires to be rejected as there is no such concept of derivative fundamental rights.”
I would argue that after the adoption of the Vienna Declaration and Programme of Action, it is well established in international law that human rights are ‘universal, indivisible and interdependent and interrelated’. The idea of derivative rights seems to put some rights on a lesser pedestal than others. We saw during the arguments before the nine judge bench in Puttaswamy that there was an argument that privacy was a second order right. However, post Puttaswamy and the unequivocal rejection of the idea of privacy as a second order right, the idea of derivative rights has no constitutional sanction.
Q: The language of a ‘qualified public place’, used by the court, has also come under attack in your piece. Practically speaking, is not the court right in saying that the prisoner’s rights are circumscribed, in view of the sentence imposed, as compared to non-prisoners? Though the comparison appears odd, when uniforms are mandatory in schools, the students’ freedom is equally circumscribed in view of the rule, right? Legally, how will you explain that the court is wrong, though one can say the court did not exercise its burden of explaining why it is right? The idea that rights melt away in qualified public spaces may not have any legal precedent, but practically speaking, can one say that in these qualified public spaces, rights don’t melt, and that individuals can still exercise their rights, whatever the rules say? Will there not be confusion and chaos, if prisoners begin to exercise their rights as non-prisoners, for example?
A: Ahmed and the other authors of the research brief draw our attention to the Puttaswamy judgment and the finding that ‘privacy is about persons and not places’. The argument that being in a ‘qualified public place’ means you lose fundamental rights such as the right to dignity and privacy is rejected by the Supreme Court.
With respect to prisoners, while they may not have the right to move freely, they do not lose all other human rights such as the right to life and dignity. In this case, the Court is talking about ‘qualified public places’ as a way to restrict what are the rights protected under Article 21, namely the right to privacy and dignity’, ignoring the existing law on the point on how fundamental rights can be restricted.
Rights can be restricted, but in accordance with the law laid down by the Supreme Court, not because it is a ‘derivative right’ or because it is sought to be exercised in a ‘qualified public place’.
Q: You compare Resham with Suresh Kumar Koushal, saying that the Karnataka High Court is as outrageously wrong as the Supreme Court in the latter case, when it described LGBT persons as minuscule minorities, and therefore, their rights could be ignored. No doubt, the rights of the persons in qualified public spaces should not and cannot be ignored. But some will say that the restrictions on their rights are reasonable, in view of the rules governing them. Will we not be suggesting that the rules governing the use of these qualified public spaces are themselves wrong, as they impose such restrictions? In the case of schools, it is uniformity. In the case of prisons, it may be because these prisoners, because their offences have either been investigated or under investigation, they need to face restrictions in prisons.
A: Again the point being that this is not a debate between uniform and no uniform, but rather a way in which the core interest of privacy, dignity and equality can be accommodated in the uniform plus rule. We should not fall into the Resham trap of seeing this as a uniform versus no uniform situation.
Q: According to you, the Karnataka ban on Hijab would have been proportionate if the government and the school managements had consultations with Muslim parents and students, and taken them into confidence, before imposing the ban. Can we say that? But the High Court did discuss the argument on proportionality. Why do you think it is inadequate?
A: I think this is a threshold level argument. Why should we be even discussing the constitutionality of the notification when it has not been passed after proper consultation? If it had been passed after proper consultation, then it is still vulnerable to constitutional challenge. Both the South African case involving the nose stud as well as the UK case involving the jilbab were cases in which the schools had carried out consultations before they passed the impugned regulation. However, the regulations were still challenged and struck down in the South African case.
The High Court mentions Puttaswamy and proportionality but comes up with the unique proposition that it will not test the notification on the Puttaswamy grounds as this is a case involving ‘derivative rights’. Thus, the court bypassed the need to test the notification using the four pronged test of Legality, Rational Nexus, Necessity and Balancing as laid down in Puttaswamy.
Q: How does it misapply the Supreme Court’s judgment in the Sabarimala case? Can you explain?
A: Sabrimala is a case of conflict between the custodians of religion who claimed that the rule in the Sabrimala temple prohibiting women from entering the temple between the age of 10 and 50 was an ‘essential religious practice’ and women who claim the right to worship at the temple. The argument of the respondents was that the ‘essential religious practice’ prohibiting women from worshipping at Sabarimala was entitled to protection under Article 25. The Court rightly held that, essential religious practices cannot claim constitutional protection if they “militate against the constitutional protection of dignity and individual freedom” and struck down the offending rules.
The Sabrimala judgment was a classic case of weighing the rights of the individual woman versus the rights of the community, and finally coming down on the side of the right of individual women to dignity and privacy. In Resham, there are no two parties and the limitation of the freedom of religion does not aim to protect any fundamental rights. The finding that the hijab is not a part of ‘essential religious practices’, serves not to protect women’s rights to privacy and dignity, but rather to curtail it. Sabarimala is instrumentalised to deprive women of rights, and that is fundamentally to misunderstand and misapply the rights enhancing charter of women’s emancipation, that is the Sabarimala judgment. Sabarimala is a choice and freedom enhancing judgment, while this judgment is a choice-limiting judgment.
Q: Lastly, you say that the High Court misinterpreted Babasaheb Ambedkar to deprive women of their rights. Can you elaborate?
A: I think there is something to be said about the use of quotations in the judgment. If we see the quotation with which Resham begins – it is a quotation from American history teacher Sara Slininger which makes the point that the “hijab’s history is a complex one”, influenced by the ‘intersection of religion and culture’ and there is a ‘complexity’ to understanding why women wear the veil. After making this profound point, the rest of the judgment never engages with the ‘complexity’ of the hijab, implicitly treating it as an imposition on women which can be prohibited without impairing the constitutional values of religious expression, equality, dignity and privacy.
It is similar with respect to the references to Ambedkar. They are quotations picked up at random and instrumentalised to serve the purposes of the judgment, doing injustice to Babasaheb’s philosophy and thinking.
There are three references to Ambedkar in Resham. Firstly, the court references Ambedkar’s supposed ‘clarification in the Constituent Assembly regarding the mutual exclusivity of the freedom of conscience and the freedom of religion. I was not able to find the reference, but the point the Court seems to be making (regardless of whether Ambedkar made the point or not) is that there is a distinction between the sphere of conscience and the sphere of religion.
This seems to connect to the next quotation from Ambedkar which is a statement made in the Constituent Assembly in reference to the debate on the need for the uniform civil code:
“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.
The court uses this quotation to speculate that the essential religious practice doctrine can be “plausibly…traced to the Chief Architect of our Constitution, Dr. B.R. Ambedkar”. What the court omits to do is to read the quotation in full. A few lines later, Dr. Ambedkar goes on to clarify that the purpose of limiting this “vast, expansive jurisdiction of religion over the whole of life” is to ensure that we have the “liberty in order to reform our social system”. We get back to the point that the purpose behind limiting religious rights for Dr. Ambedkar is to ensure that social reform is not hindered. This is not the case here, and there is no justification for restricting the right to wear the hijab using the logic of ‘essential religious practices’. The quote misleadingly traces the legitimation of restricting religious rights to Ambedkar, forgetting that for Ambedkar, restricting religious rights was for the purposes of social reform.
It is true that in his speech, Ambedkar is supportive of the idea of the uniform civil code [UCC] finding a place in the DPSP [Directive Principles of State Policy]. However he goes on to allay the fears of the minorities noting that, “no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other Community in India … No Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad Government if it did so.”
“The finding that the hijab is not a part of ‘essential religious practices’, serves not to protect women’s rights to privacy and dignity but rather to curtail it. Sabarimala is instrumentalised to deprive women of rights and that is fundamentally to misunderstand and misapply the rights enhancing charter of women’s emancipation, that is the Sabarimala judgment.”
Regardless of his own personal opinion on the UCC, he was opposed to the government legislating in a “manner found objectionable by the Muslims or Christians”. If this principle of democracy put forward by Ambedkar is applied to the context of the hijab debate, similarly Muslim women need to accept the ban on hijab before the government enacts it.
The final reference from Ambedkar is from his book, ‘Pakistan or the Partition of India’. It comes from a chapter called ‘Social Stagnation’, and the part extracted in the judgment is a strong critique of the custom of purdah. The judgment cites the critique and goes on to conclude, “What the Chief Architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing of hijab’ and concludes that ‘insistence on wearing of purdah, veil, or headgear in any community may hinder the process of emancipation of woman in general and Muslim woman in particular.” It bears noting that Ambedkar made no comments on the hijab or on ‘headgear’ with his remarks being confined to the purdah, but the judgment uses the comment on purdah as a justification for the prohibition on the hijab. To make a connection between the hijab, which is nothing but a covering over the head, to the ‘hindering of the process of emancipation’, seems a bit far-fetched. Resham chooses to twist Ambedkar’s words to arrive at this untenable conclusion.
Ambedkar was a critic of both Hindu and Muslim religious practices which affected the rights of women. The quotation from Ambedkar makes it seem that he was a critic of stagnation among Muslims, eliding the significant critique of Hinduism. In the same ‘Case for Pakistan’, he also makes the point that, “if Hindu Raj does become a fact, it will, no doubt, be the greatest calamity for this country. No matter what the Hindus say, Hinduism is a menace to liberty, equality and fraternity. On that account it is incompatible with democracy. Hindu Raj must be prevented at any cost.”
If the values at the heart of Ambedkar’s Constitution, namely liberty, equality, fraternity and dignity were at the core of its decision making, the Court could not have come to the conclusion that it came to.
V.Venkatesan is Editor, The Leaflet.
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