Jaibunnisa Mohiuddin Khazi is a High Court Judge in Karnataka. She, along with two other judges, decided that wearing hijab is not an essential part of Islam for a woman. Suppose the Bench had decided otherwise. Then it would be right and proper to say that Justice J.M Khazi was not a good Muslim She was violating an essential pillar of the faith she professed to follow.
On March 15, the Karnataka High Court upheld a hijab ban for educational institutions. The court argued that wearing the hijab was not an essential religious practice in Islam and therefore would not be protected by the Constitution.
In this way, the vast majority of Indian Muslim women were released from the imputation that they were disobedient to Islam by refusing to follow what some silly schoolgirls said was an essential Islamic practice.
The case has thrown into sharp relief how courts use the essential religious practices test. In effect, a secular court decides what is “essential” to a complainant’s faith and then, on that basis, does or does not award Constitutional protection to her beliefs.
No. A court decides a case in conformity with the Law and its judgments are of a purely legal nature, being based only on legally admissible evidence. Thus, a court may decide that, from the legal point of view, x is innocent of the murder of y even though everybody knows x is guilty. However the criminal charge is defeated for a purely legal reason though a civil claim may be upheld- as in the case of O.J Simpson.
In this case, it is known that wearing hijab is not essential to be recognized as a practicing Muslim for Indian women. In particular, taking of hijab while attending school has been perfectly acceptable for many decades. Clearly there was no 'constitutional protection' for a practice which secular India considers to be disadvantageous to Muslim girls.
Speaking to Scroll.in, Tarunabh Khaitan, professor of public law and legal theory at the Faculty of Law at Oxford University argues that a secular court should not attempt to objectively interpret faith.
That is an argument for complete laicism- i.e. no mention of religion in any law or administrative context. This would mean Muslim and Christian institutions would lose minority status. Hindus would be cool with that.
The judiciary would be much better off subjectively approaching religion, taking into account what adherents themselves believe in, subject to logical tests.
Why bother? No religious person needs a certificate from some secular court as to whether she is or isn't observing the essential precepts of her religion.
On the other hand, I feel the judiciary would be much better off subjectively approaching the question of whether or not I am a cat. Judges should take into account my own beliefs in this respect. Cats don't have to pay Income tax. Miaow!
This would prevent the state from arbitrarily taking away religious freedoms, argues Khaitan. This approach would have seen the hijab ban struck down.
No it wouldn't. The Court could 'subjectively' have decided that the girls in question were actually cats. Cats don't wear hijab. They wander around naked. Miaow!
What problems do you find with the essential religious practices test as it stands right now given that it is criticised so much? Is there a different way to protect religious freedom which will also allow for a progressive interpretation of faith?
There are two dimensions to whether your freedom of religion has been breached.
But, speaking subjectively, two could actually be the number 47. Thus there could be 47 dimensions to this question. Moreover, 47 dimensions could, subjectively speaking, be the color purple. Moreover, the color purple may actually be my neighbor's cat which has disappeared. Thus your religious freedom has been breached because I say miaow subjectively while thinking or the neighbor's cat.
We first need to ask what is the scope of the right and whether the state’s act in question has infringed that scope,
The right is linked to a remedy under a bond of law. Does the obligation holder have a superior immunity in that respect? In this case, the Court was of that opinion.
and then we can come to whether the infringement is justified because of public order, morality or health.
No. The Court has not decided that any and every educational institution must, on grounds of public order, morality or health, ban the wearing of hijab. However, some may do so. They have a Hohfeldian immunity in this respect which overrides that of the girls who want to wear hijab because the Court considers that the requirement to wear a uniform is part and parcel of the proper running of an educational institution. Moreover school regulations prescribing dress code for all the students as one homogenous class serve(s) constitutional secularism
The broader you draw the scope of the right, more the number of acts of the state the right will catch.
Unless it has a superior Hohfeldian immunity.
So the first issue is how broadly do you understand this scope.
A petitioner may understand it in any way they please. Defeasibility is the essence of the law and this means that rights which prima facie are limited in scope may turn out to be highly elastic.
With respect to religious freedom, there are two broad approaches to defining this scope: one is the subjective approach and the second is the objective approach.
Advocacy can be highly subjective. However, if judgment is not objective then it is not protocol bound. It is arbitrary or capricious.
Let us understand the subjective approach first. Because religion is so complicated, adherents tend to take a personalised approach to religion.
This could be said of anything at all. People take a personalized approach to their work and their relationships and their obligations.
And this has been well established by several social science studies: that religious adherence shows enormous diversity and pluralism, not only between religions but also within religions. In fact, my supervisee Radhika Agarwal is working on a thesis that claims that in multi-faith contexts like India, people not only pick and choose from within a particular religious context, but frequently pick beliefs and practices from across religions.
Also they may pick their noses.
Now, if you are serious about protecting freedom of religion, then your understanding of what religion means will have to be subjective.
Our understanding of religion and relationships and all sorts of things may be wholly subjective. But objectivity is required of any protocol bound system of adjudication. This means that there should be a high probability that the decision would have been the same had the composition of the Bench been different.
This does not mean anything goes, there will still have to be some evidentiary benchmarks:
So there have to be 'objective' determinations of fact
we will still need to know that the claim is being made sincerely and that the adherent is making a plausible claim.
No. It is sufficient that no prima facie objection re. bona fides or plausibility arises.
Your religious claim cannot be so outlandish that it would seem implausible to a reasonable person who is similarly situated as you are. For example, some people in the United States called themselves Pastafarians, worshipping the Flying Spaghetti Monster who apparently created the universe after getting drunk. Their purpose was to mock religion generally. They would fail the sincerity test, and probably the plausibility test as well.
Only if such an objection were actually made. The fact is New Zealand recognizes marriages carried out by this church but the Dutch won't allow you wear a colander on your head for your passport of driving license photograph.
The Dutch council of state decided that “It may be the case that the colander is considered a holy object for Pastafarians, worn in honour of the Flying Spaghetti Monster but there is no obligation to do so,” it said in its ruling.“In fact, Pastafarianism has no obligations or restrictions. De Wilde has said she wears her colander because she sees it as duty but it is an individual choice.”
The subjective approach does not allow the court to sit in judgment over what this individual claimant’s religion is. It demands that it should take their word for it, subject to the plausibility and sincerity tests.
But the test here was 'essential belief'. It was not plausible that a person who states that her religion grants her perfect liberty also believes that she can't appear in a passport photo without a colander on her head for fear of provoking the wrath of the Great Spaghetti Monster.
But that subjective approach casts the scope of religious freedom extremely wide. Because of this exact worry, the Supreme Court has taken an objective approach. Instead of asking how the claimant adheres to her religion, the objective approach instead conducts two distinct inquiries: first, the theological inquiry asks what the official doctrine of the religion says (determined by courts using evidence of experts or by interpreting texts), second, the sociological inquiry looks into what most of the claimant’s co-religionists believe or practice.
So, the objective approach is sensible. The subjective approach is just silly. It will lead to crazy people talking about Spaghetti monsters.
So, if a particular practice or belief is either determined to be unsupported by theological doctrine or not widespread amongst the claimant’s co-religionists, the court will find that it does not fall within the scope of religious freedom, even though the claimant sincerely and plausibly thinks it does. Her subjective understanding of her own religion is irrelevant under the objective approach. The objective test significantly narrows the scope of the right to religious freedom.
It significantly narrows the amount of nonsense Courts have to put up with.
But the court does not stop here. It narrows the right even further by asking whether this belief or practice is also essential to that religion.
This is needful to establish a Hohfeldian immunity which can override that of others. Currently, in Holland, the passport authority can refuse to accept a photo in which the person has a colander on her head. However, a yarmulke or turban or hijab is permitted.
This is also determined objectively by reference to both the prevalence of the practice and the official doctrine. Thus the essential religious practices test casts the scope of the right to freedom of religion extraordinarily narrowly.
Only if the other party has a superior immunity.
The essential religious practices test is also problematic because it is disrespectful to people whose rights are supposedly being defended here. The court takes upon itself to tell religious people that they are wrong in their interpretation of their own religion.
Such is not the case. The Court merely decides which party has a superior entitlement or immunity.
This is simply not what secular courts can or should do.
But it doesn't do so in its ratio no matter what obiter dicta are uttered.
It is much better for the court to adopt the subjective approach and accept a sincere and plausible religious claim at face value and shift the bulk of the inquiry to the justification stage.
What would this imply for India? All Hindus would be able to secure minority status for any educational or other institutions they set up. People would be able to elect which type of personal and inheritance law they think should apply in their case. The result would be endless litigation.
An example should clarify: assume if somebody says “I do not want to pay taxes, because my religion says I should not pay taxes to the state, but only to God”. In that case,
the Court grants the Government a garnishing order or permits it to sell the assets of the person concerned so as to meet the tax demand.
At that point the claim may be made that religious freedom has been violated. Suppose members of other religions who are in the same financial position are not subject to tax, then there may be merit to this plea.
what the Supreme Court’s objective essential religious practices approach will either say that is just your subjective interpretation of religion, but objectively your religion does not forbid payment of tax.
This is not required. It may feature in obiter dicta but it can't be the ratio unless religious discrimination is constitutional. In other words, the case is decided on the basis that no superior right or entitlement obtains by reason of adherence to a particular sect.
Or it might say that most of your co-religionists happily pay taxes so it cannot be against your religion. Or it will say, even if it is forbidden by your religion, this prohibition is not essential to your religion.
Basically, applying the objective approach, the claim will be dismissed at the scope stage, and the question of justification will not even arise as the court will not find any infringement with the right to begin with.
That is not necessarily the case. An unsound claim may be upheld because of some greater injury received discovered by the Court.
However, if the claim is a sincere and plausible one, what the court should do is accept that the claimant’s religious freedom is engaged simply because she sincerely and plausibly believes this.
Again, this does not follow. What matters is whether the obligation holder has a superior immunity.
However, the court will tell the claimant that whether this will exempt you from taxes will depend on the state’s justification of the infringement of her religious freedom.
Not necessarily. This is jurisdiction dependent. The State may have an immunity to proceed absent justification. This may or may not be itself a justiciable matter.
As part of this justification inquiry, the court will weigh the pros and cons of the public interest in everybody paying their taxes and the public interest in defending the claimant’s religious freedom. It is highly likely that a wise court would conclude that the restriction on religious freedom imposed by taxes is a justified infringement on religious freedom.
This may be the case in some jurisdictions. It depends.
So, in this case at least, the outcome of the case under the objective as well as the subjective approach is likely to be the same, but the latter is a lot more respectful of religious freedom.
In this guy's subjective judgment. But the fact that Judges don't address the defendant as 'murderous scumbag' doesn't mean they feel any great respect or veneration for them.
It is very different from the insulting claim that the objective approach requires: that you do not really know what your religion is, and we, as judges of a secular court, will tell you. That’s essentially what the court told the hijabi women in the Karnataka case.
No. The obiter dicta may, subjectively, be interpreted that way but cretins are welcome to interpret anything any which way. Objectively, there is a ratio based on the superior immunity of the educational institutions in question.
It is not wise for secular courts to get into the business of interpreting anybody’s religion, majority or minority.
Yet, they do so all the time to decide which inheritance law will apply or whether an institution really deserves minority status.
Wisdom is expediency when it comes to a Service industry- which is all that the Justice system is.
The state certainly does not know best when it comes to religion.
Nor does anybody, save God.
This extreme kind of paternalism in matters of religion is infantilising.
Going to school is infantilizing. Teaching adolescents has infantilized the fuck out of this fucker's brain.
It is one of the key reasons why we have not completed a transition in our jurisprudence from thinking of people as citizens rather than subjects.
In the subjective opinion of an infantilized cretin who has made sure to get the fuck away from India.
How does a subjective approach change the court’s interpretation of religious freedoms? Would it change the outcome of the hijab case?
Under the subjective approach, where you cast the net wide, most of the jurisprudential heavy lifting is done at the justification stage, rather than the scope stage. The scope is very permissive, it is a very low threshold, most sincere claimants should be able to jump over it.
Which is why the subjective approach is a pile of shite. Any idler can launch any sort of court case against any hard working and useful citizen. I can claim that Shahrukh Khan is my cat. He should return to me and sit on my lap and purr. All the money he has earned should be mine. This is my subjective belief which 'sickular' Judges should not question. Instead they should let me cross-examine Shahrukh Khan for as long as I please so that the Court can find out exactly constitutes his 'justification' for not coming and sitting on my lap and making purring noises.
The real issue is whether the restriction on my religious freedom is justified.
Which is an objective matter. However, the scope of that freedom should also be objective so that hardworking people aren't constantly being dragged into Court to justify every little thing they do. Prima facie, my petition should be dismissed because objectively speaking Shahrukh is not a cat.
And for that, the court has to use what is called the proportionality test, which is: is the restriction proportionate? Here is what it means.
All of us occasionally face a dilemma when we have conflicting things that we want. Since we cannot have everything, we need to find the right balance. So, an example would be: say your family’s income is limited and you have to make a choice between sending your child to an excellent but expensive school but not being able to afford any health insurance for the family. Or sending your child to a cheap school but getting the best health coverage available. Or sending your child to a reasonably good school and getting a reasonable level of health insurance for the family.
We should have a Hohfeldian immunity to spend our money as we please. We ought not to be dragged into court to justify our actions.
Most of us would think that the third choice strikes the right balance. This is the reality of human existence: we cannot have everything we want or need. What we can do is optimise based on what’s possible.
Furthermore, there is information asymmetry and 'uncorrelated asymmetries' such that any attempt by a third part to apply a test of proportionality would be mischievous unless there was evidence we were of unsound mind and a danger to ourselves or others.
Proportionality is a test to determine whether things that are in conflict are indeed things worth having, and if so, whether the state is striking the right balance between them. To explain, let me change my example a bit: Say the choice was between having a very expensive foreign holiday and what kind of school your child should go to. I think most people would think that even putting the holiday on the scales vis-a-vis education is illegitimate. So, unlike health, where balancing health against education seems reasonable, balancing what is a luxury with what is a necessity seems unreasonable.
You don't go on holiday. You then die of a fucking heart-attack. Everybody is worse off. Tell people who think you are being unreasonable to go fuck themselves. They have no right to interfere in your affairs.
So here is the first stage of the proportionality inquiry: as soon as you have satisfied the scope test, you are already assuming that there is something valuable, at least on one side of the equation.
So, scope is just a Hohfedlian immunity to do what you think is best for you using your own resources. This is purely objective. The moment you make it subjective, you get nuisance lawsuits from people claiming Shahrukh is their cat.
Because freedom of religion is important as a fundamental right, a person who is claiming her subjective right to freedom of religion is asking for something valuable and we want to be the kind of society where we respect people’s decisional autonomy in religious matters.
No we don't. We couldn't care less. Are you seriously getting worked up about the atrocity that has been inflicted on me by reason of nobody respecting my decisional autonomy to be the owner of the cat who is Shahrukh Khan?
This is where we need to get into a deeper inquiry.
No it isn't. Justice should be swift and sensible. Law Professors can talk worthless Amartya Sen type shite till the cows come home but pedants don't matter. Their job is try to keep adolescents from masturbating incessantly.
What is the value or good on the other side? Are there also legitimate items that should be put on the balancing scale of proportionality against a valuable fundamental right?
Not if it is fundamental. The question here was whether girls not allowed to wear the hijab at College would thereby lose the right to be Muslim and to be recognized as Muslim. In Afghanistan the answer might be- yes! Wrap them up in burqas immediately! In India the answer is different. We can see that female High Court Judges not wearing hijab are accepted as Muslim.
I will explore some possibilities, without doing an exhaustive summary of the hijab case.
A clearly illegitimate aim behind the hijab policy would be a prejudice-motivated goal of disadvantaging Muslims.
If there were evidence of this, then that institution would face far more serious legal problems.
Such a goal is so thoroughly illegitimate that it is even worse than the holiday analogy, which is illegitimate as a goal only in relation to a fundamental necessity. It is not wrong per se. But the goal of disadvantaging a community due to rank prejudice is illegitimate on its own. It has no redeeming feature.
Yet it may be perfectly legal. Politicians who cater to minority vote banks may cynically reveal that they do so in order to disadvantage them further by saddling them with burqas and whatnot. Yet there may be no legal redress against them.
Another conflicting goal is uniform policy. On the one hand, we have a fundamental right to religion. On the other hand, we have a uniform policy, and there may be some good reasons for schools to have one. In this case, the purpose of the uniform policy is inclusion, a legitimate goal. But is a uniform policy that is being used for an exclusionary purpose useful, if its consequence is some girls not coming to school at all? This part of the inquiry will be taken up in the subsequent steps of the proportionality test.
It may be or it may not be. That depends on what arguments advocates have actually made. It is not the case that Courts are obliged to consider all possible arguments or to conduct a Cost Benefit Analysis of a substantive type.
Gender equality comes up next. Now, gender equality is a very important good in our constitutional framework. So if there is a genuine conflict between religious freedom and gender equality, it would be a case like education versus health rather than education versus holiday.
A Utilitarian school of jurisprudence may hold this view. But India is not committed to utilitarian jurisprudence. In any case, it is impossible to know whether religious freedom enhances or reduces 'gender equality' because Religion looks to costs and benefits in the life to come- of which judges have no means of getting accurate information.
In gender equality, the first step is clear.
No it isn't. Nobody knows whether statistical adjustment of Exam results helps or harms girl students.
Religious freedom and gender equality are legitimate objectives, nobody can fight that.
This guy has clearly never heard of the Taliban.
Then you ask: does the measure in question actually serve gender equality, the thing that you say you are achieving through this uniform policy?
How the fuck can wearing a uniform make girls equal to boys?
Is the measure in question actually suitable to serve that policy?
Gender equality is not relevant to this case.
First, let us go back to our education and health example. Suppose with the money that you saved from sending your child to a second-rate school, instead of buying quality health insurance, you used it to reconstruct your house to align with some sort of supernatural astrological principle which you believe keeps your family healthy.
Now, while both education and health are legitimate objectives, the mechanism you are using to take from education and enhance health is unsuitable. In the sense that, yes, you are taking away from education, but what you are giving to health is not actually going to health. That is unreasonable and unsuitable.
It is also irrelevant. The question before the Court was whether there had been proper 'application of mind' by concerned officials. That's a much smaller and more tractable question which could be decided expeditiously. What this cretin wants is for the Courts to turn into omniscient Benthamite Social Planners able to decide on matters of architecture and geomancy and other such esoteric subjects.
That is where the gender equality argument falls in our current example.
The thing is wholly irrelevant.
Gender equality cannot be achieved by coercing women to not get educated. You cannot make women equal by reducing their freedom. You can only make women equal by expanding their options and autonomy.
And getting them out of hijabs and burqas and so forth and into lab coats or soldier's uniforms.
There was a very good case called Anuj Garg v Union of India where a law prohibited women from serving as bartenders. That law was challenged as breaching gender equality. The state tried to justify it saying we are actually protecting gender equality because drunk men sexually harass women in bars.
But the court said that is not a good enough justification because the mechanism is unsuitable to achieve gender equality. If you really want gender equality, you do not do that by restricting women’s choices. You achieve it by ensuring the safety of women.
This is misleading. The Case was about employment of men aged under 25 and any women in places where alcohol was served- including 5 star hotels! The law in question dated from 1914 and was struck down as constitutionally ex facie ultra vires both for sex discrimination and right to livelihood for men under 25.
Exactly the same argument will apply here. What the state is trying to do here in the name of equality is reducing the option of hijabi women rather than expanding them.
That may be this cretin's subjective opinion. Alternatively he may simply be a virtue signaler. No doubt he thinks that French Muslim women are suffering grievously because of the hijab ban.
After the legitimacy and the suitability stage, the third is the necessity stage: do you actually need to infringe this right in order to achieve your purposes? Maybe your family has a stash of money sitting somewhere, which you can use to make sure that you will provide both a first-class education and a first-class health care to your family.
Government of India must be sitting on pots and pots of cash. Why can't it use that money to send all Hijabi women on a tour of the Cosmos where they can learn all sorts of nice things and still get back home in time for dinner?
So is there another way of doing this, which in this case, will translate that is there a way of both ensuring that the religious freedom of the girls is not violated and the uniform policy is respected? Here it would obviously be to make some kind of reasonable adjustment. We can ask: are there exceptions being made to the uniform policy elsewhere? If there are, for example, turbans being allowed for Sikh men, then that already suggests that whatever the value of the uniform policy is, the value is not disserved by making some minor adjustments.
Nor is it disserved by girls making some minor adjustments.
Thus, adjustments, like wearing the same colour hijab as the uniform etc., serve the purpose of inclusion better as students can also see both the sameness and the differences between them. In other words, refusing to make minor adjustments to the uniform policy is not necessary to achieve the relevant purpose of inclusion – to the contrary, a uniform policy that allows minor adjustments is more inclusive.
In the context of other girls wearing saffron scarves? Muslims are only 13 per cent of the population. They stand to lose much more than the majority community if these hijab hartals continue. Already, Muslim traders are being turned away from Temple property- in accordance with the law- and other Muslim businesses are facing a boycott. If hijab wearing Muslim girls come to be seen as PFI or ISIS supporters, does it really improve their life-chances? Suppose they want to emigrate to the UAE. They may find themselves discriminated against for fear that they have been radicalized.
And the final stage in the proportionality test is balancing. Once you have the legitimacy, suitability and necessity question, you will then ask: is this too much interference for too little gain? Is the cost you are paying in denying these women quality education too high a cost for a very small gain in maintaining uniform policy, even if it is a legitimate policy.
The wider context is that China is 're-educating' Muslims. UAE and Saudi are making friends with Israel and encouraging women to come into the work place. Will the Muslims of Karnataka keep up or will they go in the opposite direction?
Had the court carefully drawn to each of these elements, there was only one possible outcome: the exclusion of hijab-wearing students from educational institutions is clearly disproportionate.
Not in the opinion of female Muslim High Court judge. Why should we listen to a pedant who lives five thousand miles away? In any case, the fellow is merely virtue-signalling.
How do you deal with situations like what happened in Karnataka, where students started wearing saffron scarfs, stoles and turbans in school saying that if hijab is allowed, their religious clothes should be as well?
At least on the basis of media reports, it seems to me that what some of these students were doing was weaponising the saffron scarfs, and that to my mind, would clearly fail the sincerity test.
But this cretin's mind is full of shit. If saffron is 'weaponization' so is black. What happened to his vaunted 'subjective' acceptance of claims regarding religious identity? It is pure bigotry to say Muslim girls are always sincere. Hindu girls never are.
That context would also have raised grave doubts in the court’s mind about the legitimacy of the college’s claims as well, i.e. whether the weaponisation of the restriction on religious freedom is beginning to look a lot like the persecution of a minority.
As opposed to Congress's apparent persecution of the majority. The truth is, India can ban the hijab in the same way that France did.
If the actions are motivated by prejudice, then we are in very easy territory, because then the state is clearly breaching the non-discrimination guarantee and the equality guarantee and is acting on prejudice and hostility.
But we could say this equally of Khaitan himself. He has a prejudice against Hindus. This vitiates his argument.
Of course, that will turn on evidence the claimants can present. I think speeches given by ministers, members of the ruling party, the timing of this move close to elections – all of those things will be relevant in determining what is motivating them.
We may equally question what is motivating Khaitan. He wants to appear pro-Muslim and anti-Modi. But he is doing so from a safe distance.
Note however that proving malice on the part of public authorities is one of the hardest things to do in constitutional law.
But it is easy to make that allegation- which is what Khaitan is doing here.
But in this case, it is at least within the realm of plausibility that the colleges have not been acting on bona fides.
Or that the entire agitation was mala fide.
In this present case, how can you also make arguments based on expression, privacy, autonomy and non-discrimination based on Articles 19, 21, 15 and 14?
How do you understand these rights which you get as an individual along with rights, such as religious rights, which you get as parts of a group, but both seem to be working together? A common argument is that this kind of claim will open floodgates of litigations? How do you tackle that?
Let us start with the right to freedom of expression. Humans give meaning to a variety of activities, including actions, which are called speech acts, that convey meaning. It can include gestures, like the act of putting red vermillion within a ritualise setting on a woman’s forehead is a speech-act that signals the finalisation of a marriage.
We express ourselves through the food we eat, the dress we wear, the gods and goddesses we pray to or do not pray to, etc. So it is, without doubt, the case that wearing or not wearing the hijab is an expressive act.
As is wearing saffron.
Now, it may be that your interest in a particular expressive act is stronger or weaker. If it’s related to religion, you may have a very strong interest.
You can have a strong expressive interest even if it is individual to you. If you are really concerned about climate change and you want to wear a t-shirt to school saying do not burn coal, that may perhaps have a very strong emphasis, even though it does not have a group dimension.
But just as we talked about in the religious case, this bogeyman about floodgates should not arise: the wide scope of a right can still be contained at the justification stage.
But all sorts of suits would already have been filed before that stage can be reached! I claim Shahrukh is my cat, you claim he is an elephant who was illegally removed from a designated forest area- where will the madness end? Everybody can PIL everybody else for anything they please.
In the first step, you may want to wear a particular t-shirt to school since it is a part of your expression of freedom. While that claim may be true, that is the beginning of the inquiry, that is not the end of it.
But inquiry costs money. Clogging up the courts with stupid law-suits is bad for the country.
You then get to the justification stage. You ask: well if we do not permit this, what do we get? If we permit it, what do we lose? So, the justification analysis is a way of making sure that you do a proper cost-benefit analysis.
But proper cost-benefit analyses are costly and difficult to do. You'd need guys with PhDs in a range of subjects to figure out the right model to use.
You justify a breach of rights if there is sufficient value to be gained. You cannot say what you like. You cannot shout fire in a crowded place. People may die.
This is what it all boils down to. Do you want to live in a country where the state needs to give reasons to take away your freedoms or live in a country where the state can take away your freedoms arbitrarily.
We want to live in a sensible country where cretins like Khaitan are ignored. India is very very fucking poor. It needs to get a lot less poor pretty damn quickly. That means telling Rights to go fuck themselves. Arbitrary solutions to coordination problems are better than endless arguing the toss about shite which does not matter in the least.
You have also written that an indirect discrimination claim is better suited here. How can an indirect discrimination claim be made in this case? And how likely was it to stand in a court of law?
Very unlikely indeed. Look at Essop v Home Office. A biased test was used to promote younger whites over older BAME people. Indirect discrimination was occurring but the Supreme Court required an explanation of how the thing worked in this way. Finally the case collapsed under cross-examination when it was found that the Home Office had been alerted to the discriminatory result of the test. Their action was mala fide.
In other jurisdictions, proof of statistical discrimination may suffice. But it would take top ranked Quantitative Economists using the latest data mining techniques to produce such evidence. The problem is that no two top ranked economists would agree that the others methodology was sound. There simply isn't a big enough data-set to do what was done in Pigford v Glickman. But that was a suit worth billions of dollars! Does Khaitan really think India can afford anything of that sort?
Indirect discrimination was argued in the case,
No evidence was produced to support any such argument. The Court can't decide matters on the basis of what evidence would have been produced in an ideal world. The fact is, the econometrics behind this type of argument has moved on a lot in the last 20 years. People who can do that sort of thing are paid millions by Amazon or Google etc. But, even if they worked pro bono, it would be easy to tear into them for p-hacking or whatever.
but the court dismisses it in two sentences. The court says there is no discrimination here, because the initial policy is the same as applied to everyone. But the entire point of indirect discrimination is you apply a facially neutral policy to everybody, but the burden of the policy falls differently on different groups of people.
But this evidence has to be presented before the Court. The advocate doing so would herself need pretty high level econometric nous. Still, as I said, it is easy to tear down such models. Pigford had a plethora of evidence but it only got before the Court because Congress tolled the relevant statute of limitations. What would be needed for the hijabi case to come under the rubric would be an economist of the stature of Roland Fryer working with a team of dedicated Statisticians. That's a big ask. Off hand, I'd say the data set is too small. Still, there may be some very clever way of getting round this problem which is only known to a handful of future Clark Medalists.
The idea of indirect discrimination can be explained through the famous parable of the stork and the fox. The fox invites the stork for dinner and offers a meal on a shallow plate, which the stork is unable to eat given its long beak. And then the stork returns the favour by inviting the fox to dine from a tall pitcher with a very narrow mouth.
This is irrelevant because there is no 'protected characteristic'. You'd need a law specifically mentioning hijab wearers. The question is whether there is statistical evidence of discrimination. My guess is that some orthodox families are very successful at getting their girls to qualify as Doctors or whatever. This will skew the results.
But, in the real world, not all storks can reply in kind, because there are power differentials. Here, foxes decide the rules and the storks often lose out.
There is no legal remedy unless having a long beak becomes a protected characteristic.
A classic example is having stepped access to buildings, without any ramps: this is indirectly discriminatory against disabled people.
Only if the relevant disability is a protected characteristic.
So in this case, a uniform policy that bans the wearing of anything on your head is indirectly discriminatory not just against Muslims but also against Sikhs. If the policy only bans the wearing of the hijab, then that’s not even indirect discrimination, but direct discrimination because it will only affect Muslims.
Yet the European Court of Human Rights has been cool with France's hijab ban and German employer's banning headscarves even though only Muslims were affected. Clearly whatever shite is bubbling away in Khaitan's brain, it has nothing to do with European law.
Direct discrimination will be based on the evidence that is available to establish an intention to discriminate. If the petitioners can show that there is singling out of hijab-wearing women, based on circumstantial evidence, they may succeed in establishing direct discrimination. But this can often be hard for claimants to prove in courts.
But even if its is proved, the other party may have a superior immunity.
The beauty of indirect discrimination is that it has nothing to do with intention. All it requires is to show who is the policy affecting the most. If the group being disproportionately hurt by this policy is a protected group, then that is indirect discrimination irrespective of intentions.
At last, Khaitan comes to the crux of the matter. Hijabi girls aren't a protected group. They could become so but that requires a change in the Law.
Thus, indirect distribution is an easier case to make because it is very clear, whatever your intentions might have been, that the group that has been hurt here is hijabi Muslim women.
But gathering statistical evidence and analyzing it properly is difficult.
And because religion is a ground for non-discrimination, they are a protected group.
No. Muslims are a protected group. Muslims wearing hijab at all times are not. Why? It is not an essential practice of the religion.
Which claim do you think was the most likely to stand in court? Should the petitioners have relied on other claims than primarily relying on the essential religious practices?
I think the indirect discrimination claim should be the most likely to succeed because it is so blatantly obvious about what is going on, who has been affected.
It was only obvious to the cretin Khaitan. It wasn't obvious to the female Muslim judge deciding the case. She knows more about her religion than Khaitan does.
But I think under current Indian jurisprudence claims under Articles 14 [equality], 15 [prohibition of discrimination], 19 [freedom of speech] and 21 [life and liberty] were all likely claims to stand in court because the proportionality analysis will fail in each of those cases.
The proportionality test cuts both ways. The hijabi girls must sacrifice a whimsical, not a religious, scruple in order to rise up educationally.
The Indian constitution recognizes the need for Society to amend laws so as to permit the bondage of superstition and irrationality to be removed from people disadvantaged by reason of youth, gender, stupidity, religion, caste etc. It is clear that people who don't wear hijab are accepted as Muslim even if they are High Court Judges, Ambassadors, Governors, etc. It is also clear that the vast majority of women wearing hijab are not doing well economically and educationally. Only a cretin like Khaitan could claim that 'proportionality' requires Article 14 to keep such girls in bondage to a medieval custom.
But the religious freedom (Article 25) claim, under the current jurisprudence, could go either way.
No. Either Justice Khazi is a bad Muslim because she is not wearing hijab or, in India, wearing hijab is not an essential part of Islam for a woman.
That is because the current jurisprudence is faulty and the court should revisit the essential practices test and adopt a more subjective approach.
Khaitan's brain is faulty. But he is safe in Oxford. What does he care what happens to Muslims in Karnataka? So long as he gets to virtue-signal, he is a happy camper.
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