It is an old adage that the manner in which you choose to frame a question will decide the answer that you will choose to give yourself.
It is a fact that Judges respond to arguments made by advocates. They chose the framing of the question that they consider is better supported by law.
In today’s judgment by the Karnataka High Court upholding a ban on the wearing of the hijab within classrooms,
so the question was framed with respect to classrooms. What specific sorts of classrooms? Those under the minority wing of the State Government. This State had a law re. school uniforms. Thus the question was framed by the circumstances of the case itself as having to do with classrooms where school uniforms were worn.
that giveaway can be seen at page 39 of the judgment, where the Full Bench frames four questions for consideration. The second question reads: “Whether prescription of school uniform is not legally permissible, as being violative of petitioners Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e., privacy) of the Constitution?“
If the answer to this question is 'not permissible' the ban could be immediately struck down.
It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody could ask, given how absurd it is: whether a school uniform is itself unconstitutional.
There is nothing absurd about it. Can a kid be forced to wear a school uniform? Suppose he identifies as female. Can he come to school in a skirt? These are perfectly proper questions to ask.
But that framing allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab alongside a school uniform is consistent with the broader goals of constitutionalism and education
it may be 'consistent' but that is not germane. What is germane is whether Schools can enforce a dress-code. If not, the ban must be struck down.
– with the sanctity of the uniform itself.
Uniforms don't confer sanctity. Priestly vestments might but not stuff kids wear to school.
A close reading of the judgment reveals how the uniform haunts the Court’s imagination on every page,
because that is what the case is about. Would Bhatia be happier if the Court was haunted by Easter bunnies?
topped off by the extraordinary remark on page 88, where the Court says that “no reasonable mind can imagine a school without a uniform.”
I can. However, what was meant might be- 'no reasonable mind can imagine some schools without a uniform dress code'. The meaning is that we are all familiar with schools where all the kids are dressed in an identical manner. I recall being shocked, when I came to England, to find Sixth Form students were not obliged to wear a uniform. They could dress like Punks or Hells Angels. Middle class Indians of my generation think good schools have strict policies regarding uniforms.
The unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very idea of a school uniform,
This is not the premise. It is that everybody in class looks the same and thus would tend to act the same and, ceteris paribus, make equal progress in their studies. If some kids are dressed in expensive garments while others are in rags, a quite different atmosphere would prevail. This is the plotline of numerous films about American High Schools where the 'mean-girls' are all dressed in designer outfits and speak offensively to 'trailer trash' girls.
and that allowing the former would destroy the latter. Respectfully, this elision leads the Court into misconstruing and misapplying a range of settled constitutional principles, and for those reasons, the judgment ought to be overturned on appeal.
There is no elision. This crazy fellow has got it into his head that 'hijab goes against the very idea of school uniform'. The fact is most Hindus would imagine that a school in Saudi Arabia would have integrated hijab into school uniform. Apparently this is not the case because Islam considers it very silly to wear hijab within a single-sex classroom or campus.
Introduction
First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential religious practice” under Islam,
which is why the Muslim judge was not wearing hijab while deciding this case. It is obvious that if Islamic Republics like Pakistan and Bangladesh have had non hijab wearing Heads of Government, then the thing is not an 'essential religious practice' at all.
and is therefor not insulated from the regulatory power of the State (pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those rights (pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against Muslim women students (pg. 96).
Essential Religious Practices
I do not want to spend too much time on the first argument. I have written before why framing the argument in terms of the essential religious practices test is unsatisfactory, both in general, but also specifically in this case, not least because it strips Muslim women of any agency in the matter,
Muslim women- and men- have no agency in deciding what God chose to reveal to the Holy Prophet or what hadith he uttered or any thing else which has issued from Divine inspiration or command.
and essentially argues that the wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy the context of that choice may be), but is objectively compelled by the tenets of Islam.
Bhatia is mad. The Court says 'you don't have to wear Hijab to be a good Muslim woman'. He says wearing Hijab is 'objectively compelled by the tenets of Islam.
Additionally, there is nothing particularly noteworthy about the Court’s analysis of this point, either way: surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that Islam would lose its identity if women did not wear the hijab.
A Religion's identity is established by God. It can't be lost by what somebody decides to wear.
Under the essential religious practices doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have pointed out – that neither the Court, nor external commentators, are particularly well-placed to conduct this analysis).
Very true. The girls should not have gone to court. They should have made their appeal to a hospital.
Having established this, the Court is therefore able to hold that, as a matter of religious freedom, the right to wear the hijab is not insulated from State regulation.
There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the language of religious compulsion.
This is not the case. The girls could have said 'burqa is not essential to the Religion but it is essential to our expression of Religion'. The outcome would have been the same. The School would have a superior right to enforce its dress-code.
This is particularly ironic when we think of the right as the “right to religious freedom”;
which does not trump superior rights others possess. My right to religious freedom does not permit me to baptize Bhatia with my urine.
the blame there, however, lies squarely with the essential religious practices test, as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of mirrors until that test is overruled.
Goody! Then Muslims could be forced to eat pork and pray to Chairman Xi even though both actions violate essential elements of the Islamic faith.
Freedom of Expression and Privacy
Let us now come to the argument where, in my respectful submission, the Court’s analysis is mistaken. Previously, on this blog, it has been argued that the freedom of expression and the right to privacy are important rights implicated by this case. To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India,
this concerned transgender people
dress can, on certain occasions, and depending upon the context, be a form of “symbolic expression” that is protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been argued in the linked posts).
I am not obliged to admit a naked man into my house even if he is, as he claims, a 'Sky-clad' monk. Bhatia does not grasp that the School has a superior right which, moreover, serves the public interest.
The application of the right to privacy – in terms of decisional autonomy – is also evident. Note that the freedom of expression and privacy arguments are not cleanly separable from the religious freedom arguments:
Yes they are. Both freedoms subsist regardless of any other freedoms.
indeed, it could well be – in certain cases – that the very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence of a beleaguered identity.
Rapists qua rapists represent a beleaguered identity. They are beaten and jailed. Should they be allowed to enter Bhatia's house wearing T-shirts inscribed with vivid descriptions of what they will do to his rectum? Surely they have a right to education from him? How will they learn the proper way to rape and beat him if they are not allowed to experiment in the privacy of his own home?
Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions, where the test of proportionality applies. Proportionality requires, among other things, that the State adopt the least restrictive method in order to achieve its goals.
Thus it should affirm the superior right of dress-code enforcement of the College.
Thus, where something less than a ban would suffice, a ban is disproportionate.
It is disproportionate to interfere with the rights of an institution because of a stupid law suit brought by cretins.
The proportionality framework provides the broad intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted the test of reasonable accommodation.
In this case the vast majority of students were non-Muslim. These students had expressed their hostility to these budding terrorists. It is they who will be 'accommodated' one way or another.
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 Court could certainly have twiddled its thumbs until a sufficient number of the hijab wearers had been beaten and raped. The sad fact is Courts have never been able to prevent ethnic cleansing in India. They have turned a blind eye to extra-judicial killing on a massive scale. Bhatia belongs to the majority religion. He has no skin in this game.
In case of the hijab, the claim for reasonable accommodation is straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the uniform, without damaging or in other ways vitiating the overall public goal of education.
But the Hindu girls had taken to wearing Saffron scarfs. Things could easily escalate. Minorities don't fare well when the killing begins.
How does the Court respond to the argument? The reasoning is somewhat scattered in different parts of the judgment, but drawing it all together, this is how the Court’s argument goes: Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker (page 99).
The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription of the hijab is reasonable.
The judgment was certainly of much higher quality than some others which have made headlines for their barbarous mangling of the English language.
With respect, this analysis is flawed. It is true
it is irrelevant
that in US jurisprudence – such as the O’Brien judgment – visible manifestations of expression (such as clothing) can be regulated by the State; however, that is in the context of the American First Amendment, which in cases of State restriction upon speech, is more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation, that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours, whether speech is verbal or a visible manifestation, the test remains the same.
and has been properly applied.
This flows from the Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a) of the Constitution.
No. An organ of state was, by mandamus, prevented from seeking to impose an illegal restriction on the activity of the petitioner on his own premises.
Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not undertake a genealogy of the phrase.
Much is unclear to Bhatia- that much, at least, is clear.
At one point, it lists “schools, courts, war rooms, and defence camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth unites a classroom and a defence camp;
they are characterized by discipline and hierarchy and distinctions in what must or can be worn.
but in my view, it is in any event a misreading of the NALSA judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”.
Very true! Hijras are constantly barging into 'war rooms' and dancing around. Generals have to pay them money to go away.
Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a right to symbolic expression – as manifested through dress – is to recognise that our “public” is diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights) is to be affirmed and not censored.
Why go go dancers are not being allowed into Court? How come, naked prostitutes are not being given police protection so that they can dance in mosques? The answer is that the 'purpose of recognizing rights' is not to create chaos. There is plenty of censorship in India. It is perfectly constitutional.
But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to the reasonable accommodation claim is that the hijab cannot be accommodated because it would deprive the uniform of its uniformity. At page 107, it notes that:
The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.
This is certainly true. If the class room is divided between some girls in Hijabs and others in saffron scarves, there will be tears before bedtime. Soon girls will be inviting in their brothers or local hoodlums to beat and rape those of the rival gang. The purpose of the College will be defeated.
But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the existence of a default uniformity, and argues that the default is insufficiently accommodating of a diverse and plural society;
But Karnataka is not diverse. It is 85% Hindu. The Law will always have to accommodate the majority more particularly because it is richer and more cohesive. It is foolish to pretend that any great 'accommodation' will be shown to a fractious and reviled minority.
what the reasonable accommodation (and proportionality) analysis requires of the Court is to ask whether accommodation is such that it would undermine or otherwise destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of education.
Hijabs are not associated with better than average educational outcomes. They are associated with ignorance and poverty.
The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying education;
No. What it gets right is that getting an education is not compatible with doing stupid shit- like insisting on wearing hijab inside a girl's school.
instead of looking at the uniform as instrumental to achieving the goal of an inclusive and egalitarian right to education (and which would, therefore, require accommodation where accommodation would better serve that goal),
It is the Hindus who have to be 'accommodated' because it is they who have the capacity to do ethnic cleansing. Complacency in this matter is mischievous. Mahatma pretended Congress would never do anything violent. Then, in Bihar, he said that he knew which Congressmen had killed innocent Muslims. Of course, he didn't actually suspend them from the party or anything of that sort. He just collected money and decamped to Delhi where some other Hindu shot him.
it treats the uniform (and its associated values of sameness, homogeneity etc) as the goal itself.
No. It, quite reasonably, holds that kids in school should not get distracted by what other kids are wearing. They should all come up in studies together by concentrating on what teacher is saying.
Thus, by mixing up levels of analysis, the Court’s proportionality and reasonable accommodation analysis is constitutionally incorrect.
Bhatia mixes things up. The Court made a sensible decision though, no doubt, the judgment could have been better drafted. Nevertheless, it is regarded as much better than average.
And the root of this error – as I have pointed out above – is the Court’s assumption that education is uniform – that “no reasonable mind can imagine a school without a uniform.”
There is no such assumption. Furthermore it is true that Schools are depicted in Indian films and on TV as containing kids who are all dressed alike. American High Schools are a different story.
Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves constitutional secularism.”
That is true enough. People of different faiths are treated equally. Bhatia would prefer the girls in hijab being beaten and chased away by girls wearing saffron. But that is not the outcome the constitution aims for.
But this is inconsistent with the Court’s own analysis in a previous part of its judgment, where it notes that the Indian concept of “positive secularism” does not require the proverbial “wall of separation” between religion and State, but is much more accommodating towards religious pluralism within the overarching public sphere.
Which is why there is no real constitutional bar to any State turning into a full blown theocracy in all but name.
On page 97, the Court holds that the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly misconceived.”
Bhatia thinks the goal of chemistry education should be to promote hijra dancing as well as goat milking. It ought not to aim at creating Chemists.
But the Court provides no citation or source that the goal of education – note, not the goal of a uniform, but the goal of education – is uniformity at the cost of pluralism.
Because the thing is obvious. Bhatia may sometimes wonder why so many people who studied law with him are now lawyers. Why are not more of them hirjras dancing in the street? How come so few of them have taken to milking goats? Why is none of them as stupid as he is himself? Is it because Constitution is not 'accommodationist' enough?
On page 101, the Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of “unity in diversity”.
Because wearing Hijab or dancing like a Hijra is not the type of diversity a School should be encouraging.
Ironically, after ridiculing this as a platitude, the Court immediately afterwards cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!
For a reason Indians well understand. Interference in minority educational institutions is a touchy subject. The Kerala Government was dismissed for this reason.
Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in Regina v Governors of Denbigh High School,
which is pertinent because, as in Karnataka, the existing uniform was modest and had always been previously accepted by Muslim parents till some silly girl decided she wanted to wear 'jilbab'. This was refused. Britain introduced stringent laws by which teachers had to report on students like this who were showing signs of terrorist brainwashing. This is the so called 'Prevent Duty'.
where, in paragraph 97 of her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic, religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes on to note in paragraph 98, which is this:
It seems to me that that was exactly what this school was trying to do when it devised the school uniform policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt, trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.
How is this relevant? Bhatia lives in England. He knows that Britain is racially diverse. Karnataka isn't. There had been no sudden influx such that the policy on uniforms needed to be changed to satisfy parents.
The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment: Denbigh involves an extensive discussion about how schools in plural and diverse societies should accommodate difference instead of insisting upon uniformity;and the correct question to ask – which is always a contextual question – is at what point does reasonable accommodation tip over into a demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a school was a good example of reasonable accommodation!
The School had the right to make that accommodation. But it was also right to refuse to go any further down that road to bedlam. I need hardly say that as Muslims in Britain get more affluent, they are willing to pay a lot of money to get their daughters into posh schools where there is no nonsense about hijabs and jilbabs.
In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating the Court’s judgment is no fear at all.
Does Bhatia really not know of the 'Prevent Duty'? A girl who tries this sort of trick now gets immediately reported along with her crazy brother. The entire family will be under surveillance.
On page 105, the Court notes:
An extreme argument that the students should be free to choose their attire in the school individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later, in the society at large.
Hindus turning up with trishuls and Muslims with scimitars represent 'unity in diversity'. They are joined by dancing hijras and go on to earn big bucks milking goats.
But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is actually fairly straightforward – and well within the domain of judicial competence – to examine cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical parade of horribles to deny a constitutional right is not good judicial practice.
Good enough for India at any rate. The country is very poor.
Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is made abundantly clear by the next case that it discusses: the South African judgment in MEC for Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p. 108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not the point I want to make here: the point I want to make is that the “extreme argument” that the Court articulates – where everyone would ask to choose their own attire, and there would be general chaos – is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it distinguishes between the hijab and the nose-stud.
Bhatia's argument is facile. He does not inquire into the role 'ocular significance' might play in the ratio. A good lawyer would discuss this. Is there relevant case law which might open a gate here?
Non-Discrimination
Earlier on this blog, detailed arguments were made about how the hijab ban violates the constitutional guarantee of non-discrimination. The Court addresses this argument very briefly, noting only that the proscription – based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately, while this argument applies to direct discrimination, it does not apply to indirect discrimination, where facially neutral rules and regulations have a disproportionate impact on different people. The doctrine of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of Indian jurisprudence.
Indirect discrimination can't arise by reason of per se illegal acts. Thus if we find x percentage of a particular class are incarcerated though they represent much less than x percentage of the population, we can't claim indirect discrimination if that population commits more than x percentage of all serious crimes. There is direct discrimination against criminals. They are incarcerated at a higher rate than the innocent. But there is no prima facie case of indirect discrimination here.
Crazy girls who want to wear hijab inside a girl's school are being directly discriminated against on the grounds that they are breaking a rule for a crazy reason. There is nothing indirect about it.
In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that shows how indirect discrimination is squarely applicable to the present case.
We may easily overlook a nose stud, if small and 'ocularly insignificant'. It is difficult to ignore a burqa clad girl sitting among other girls who are dressed in school uniform.
The Court’s distinction between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example, in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate impact, in this case, grounded at the intersection of religion and burden.
How so? Saffron scarves too were banned.
In my respectful view, the Court’s failure to consider this ground at all provides another compelling reason for why this judgment should be set aside on appeal.
Bhatia's view may be respectful but it is foolish.
Addendum: A Case of Conscience
From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case, where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a claim based on the freedom of conscience, then it needs to be specifically pleaded, with the acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out, perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience – an argument that, of course, overlaps with the argument from symbolic expression.
So Bhatia admits that the Court had to judge the case as it was represented not as he thinks it ought to be represented. The problem with the 'conscience' claim is that those putting it forward would have to show that they exhibited similar behavior in other areas of their life. The solution might be a Tribunal which examines those with conscientious objections and grants them an immunity. Something similar might happen for those who by reason of a medical or psychological problem deserve different treatment.
What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses the phrase “matters of conscience.”
Jehovah's Witnesses are a separate religious sect. They may gain an immunity on those grounds alone- as I believe happened in the case referred to above. However, a particular person may have some qualm of conscience, arising perhaps out of a personal communication by an angel, and that person may be granted a specific immunity by a Court or Tribunal.
It is important to note that conscience might flow from religious convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way, the clean-cut separation that the Court attempts between conscience and religious freedom is, in my respectful view, unsustainable – and might materially have altered the outcome of this case.
This is not the view of Islam. The promptings of your inner voice are either consistent with what has been Revealed, or they are delusive but Allah knows best.
Conclusion
There are two important things to note, by way of conclusion.
The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school premises, but classrooms). It notes this specifically on page 124, after some rather (in my view) unfortunate remarks about how banning the headgear is emancipatory “for women in general, and Muslim women in particular”: it notes that:
It hardly needs to be stated that this does not rob off the autonomy of women or their right to education inasmuch as they can wear any apparel of their choice outside the classroom.
The scope, thus, is limited to classrooms.
Because there had been reports of hijab wearing girls sitting outside classrooms.
Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights to freedom of expression and to privacy are diminished, or derivative, in this case;
They are certainly not absolute because College authorities have a superior right.
secondly, it misapplies the reasonable accommodation test,
But Bhatia is not a 'reasonable man'. He thinks Karnataka, at the present time, is a place where Muslims will be accommodated. This simply isn't the case.
and does not show how allowing the hijab for those who choose to wear it, as a uniform accessory, is incompatible with the goal of education;
It isn't. It is merely incompatible with receiving an education in certain classrooms.
thirdly, it fails to consider that the ban amounts to indirect discrimination against Muslim women;
because the discrimination is direct and affects all who violate the dress code.
and fourthly, it wrongly elides freedom of conscience and religious freedom.
The cretin means 'conflates'.
This creates an overarching framework of reasoning where the sanctity of the uniform is placed above both the goals of education, and the exercise of constitutional rights.
This is nonsense. The uniform is held to contribute to the goal of education. There is no constitutional right to do stupid shit. Girls wearing hijab in a class full of other girls are being very very silly.
I submit that a correct calibration calls upon us to recognise that educational spaces in a plural and diverse society ought to reflect its plurality and diversity,
Hijras should dance while Hindus with trishuls march around. Majorities can be very plural- some are hijras other are Hitlerites. All should be welcomed into girls' schools.
and facilitating the freedom of choice and expression is one crucial way to achieve that.
Sadly the freedom of choice of 84 percent of the population may well interfere with the freedom of choice of the rest. Still, if Courts do stupid shit- as Bhatia would like them to do- the issue will be settled in a manner which will brook no appeal.
Such an approach is more consistent with our Constitution.
But that would be an approach where people could assert their religious right to baptize Bhatia with their urine.
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