The Supreme Court of India was Considering Civil Appeal No. 7095 of 2022 with a number of other cases bunched together. The verdict was split. The matters will now go before a larger bench. Anyone expecting that since the verdict was split there was reason for the State to put matters on hold would have also felt justified in thinking, the political atmosphere being what it is, that this would be a hope against hope. That proved correct as the State’s Education Minister stated the ban (on hijab) remains. From 5 February 2022 when the ban was imposed by the government order till date the affected students have got no relief. Such is the labyrinth of law.
In a different jurisdiction, an internet headline read “Top EU Court allows workplaces to impose headscarf ban”. It was as usual a sensationalised misleading headline. The ruling related to a Belgian case where a Muslim woman wearing a headscarf applied for an internship in a company whose internal rules forbade expression of religious, philosophical or political views through words or clothing. Therefore, firstly the headline ought correctly to have read “Top EU Court Upholds Prohibiting Religious Symbols at Workplace,” not that a headscarf ban was approved, as everything visible, across the spectrum, was covered and the same result would have followed if the woman was wearing a Cross or a Bindi. Second, an important facet is the woman applied to an organisation which already had those rules in place. The result would have been different if after she was employed such a provision was sought to be imposed. Third, the European Union has a Constitution distinct from the Indian Constitution and the consequences of the law that violates the constitutional mandate applicable in India, would hardly apply where the regime in place was entirely differently structured.
There is no doubt that considerations of affiliation or whether a view is supported by a majority or minority are not permitted to be the basis on which a matter is decided by the courts of our country this way or that. Judges are mandated by law to leave the baggage of their religious and political inclinations outside the door of the courts over which they preside. It is expected that they do that. Any decision is necessarily rendered as the most judicious result of the facts and the law as canvassed before the courts, which in one view of the matter is deficient inasmuch as one of the parties may be represented by a legal luminary while the other can afford only a far less qualified professional (the writer of this?), and the best result can only follow if the judges travel beyond what is only argued and apply to the facts of the case their knowledge not only of the letter of the law and the Constitution but the spirit, the values and ideals that saw these become the governing principles to regulate national life. This is not to suggest that the argument on any one side would have been less than the best that was possible but to state the ideal, since there is one disconcerting facet that one finds in some courtrooms and in the premises of the precincts of the court buildings which declare, and repeatedly remind the visitor, the client, the clerk, the lawyers and judges of what we must from considerations of safety born out of a survival instinct refer to as “the predominant prevalent religious orientation”, manifested through pictures and strategically positioned stickers as reminders along the routes judges and others traverse to reach courtrooms. That this might detract from the secular credentials and character of the institution does not seem to bother anyone and, since the judges are the best ones to decide, and they do not object, one must necessarily conclude that this too is “judicially acceptable” and cannot impact decision making any which way: it is safer to deny that with ebb and flow of social regression and strife, intellectual and judicial standards also have their ebb and flow.
The judgement delivered by the judge who held the ban unconstitutional is not and should not be considered the dissenting judgement since it is in consonance with the ideals the values and the spirit of both the Constitution and the law as well as the most modern jurisprudence, consistent with enlightened opinion in all progressive liberal and evolving societies. Reference has been made to various judgements and in a confined space it is not possible to fully dissect a document of hundreds pages reflecting great erudition, profound quotes of great minds and points of view collated from divergent jurisprudential regimes as well as constitutional principles. I will therefore be necessarily brief.
Dharma the Court noted symbolizes absolute and eternal values which can never change, like the laws of nature, and held the word used in the context of duties of individuals and powers of State, means constitutional law (Rajadharma), dharma in the context of the word Rajya means law, and Dharmarajya means rule of law and not rule of religion.
Kesavananda Bharati held fundamental features of the Constitution, i.e., secularism, democracy and freedom of individual would always subsist in the State. Not having Nostradamus to consult, hopes stood belied. In Indira Gandhi v. Raj Narain the Court said secular character of State ensuring it cannot discriminate against citizens on ground of religion cannot be done away with as rights guaranteed by Art. 15 pertain to basic structure of the Constitution.
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors. was quoted as having held secular States, rising above differences of religion, attempt to secure the good of all citizens irrespective of religious beliefs and practices. If a court says something cannot be done, it can be taken as a challenge: “They say I cannot? Okay, I’ll show them I can!”
Nine judges in S.R. Bommai & Ors. v. Union of India & Ors. held the Constitution does not prohibit the practice of any religion either privately or publicly and in para 146 “these provisions by implication prohibit establishment of a theocratic State… prevent the State either identifying itself with or favouring any particular religion … must accord equal treatment to all religions …” They prevent, do they? Enter The Mask: “Sssomebody ssstop me!”
Why The Mask, you ask? Cavalier casual phrasing of the conclusion after “whatever the attitude of the State towards the religions… religion cannot be mixed with any secular activity of the State” is “the encroachment of religion into secular activities is strictly prohibited…” Notice the shift? “Religion cannot be mixed with secular activity of State” controls State action: as operative criterion, is regulatory of the State, but since State per se has no religion, the following part [“the encroachment of religion into secular activities is strictly prohibited…”] can be conveniently misconstrued to suggest restraint on citizens from exercising their religious rights while engaged in secular acts, effectively dismantling the principle!
To be continued