Hijab Row: A libertarian solution

Imagine that a taxpayer-funded college bans its students from wearing shorts on campus and a student approaches the court seeking to overturn the ban.

If this happens in India, the first question the courts may ask the student is: Why do you want to wear shorts, is it part of your religious belief?

If the student produces some holy book that says that he or she must not cover his/her knees while outside, chances are high that the court will overturn the ban for violating his or her religious freedom.

Now imagine that this happens in a truly secular country.

Here, the court will look at the case primarily from the prism of individual rights and the limitations of the state in curtailing the same.

It would then allow the ban to stand only if the state (or its representative in the form of the college management) is able to prove that such a curtailment of the students’ sartorial freedom serves a great purpose — such as preventing the spread of a disease or something similar. The court will take its decision based entirely on what is written in the constitution of the country, without referring any religious texts.

Unfortunately, the second situation continues to exist as an ideal, rather than a reality, in India.

In India, courts often extend special privileges to religious people and allow them to do things — such as pitch a tent in the middle of the road — that non-religious people are prohibited from.

SECULARISM vs PSEUDO-SECULARISM

The reason for this imbalance stems from India’s unique conception of secularism.

While world over, secularism means the ruler or the state shall not make decisions or laws on the basis of religious compulsions or beliefs, in India, it has been given a completely different meaning.

The Indian understanding of secularism does not say that the state shall completely ignore religious stipulations when making laws, but rather that it shall give equal consideration to the stipulations of all religions while making laws.

This concept of secularism, also known as pseudo-secularism, has over time watered down the intended secular character of the Indian state. This is visible all the way from the way local police deals with a tent pitched in the middle of the road to how the top most court in the country deals with questions related to fundamental rights, such as the right to wear clothes or not stand up when the national anthem is sung.

This has had two undesirable results. First, it has led to competition, and complaints, among religions as far as influencing laws are concerned. Given that Indian secularism believes in keeping the sentiments of all religions in mind while making laws, the followers of all religions are constantly anxious as to whether they have got their due influence or not.

Secondly, it has resulted in the non-religious and truly secular people emerging as second-class citizens who posses an abridged set of rights. Religious people, on the other hand, enjoy an expanded set of rights and privileges by virtue of being religious.

An example of such discrimination can be seen in case of COVID vaccination for government employees in states such as Kerala.

While normally, the decision of which drugs to inject into one’s body is left to the individual, government school teachers in Kerala have been denied this privilege in the larger interest of ensuring that the students can learn in a relatively low-risk environment. Hence, the government has asked all of them to get vaccinated or risk getting suspended.

However, this order only applies to secular citizens.

In case one is a religious citizen, he or she can claim exemption from the rule on religious grounds.

In other words, a devout teacher can claim a privilege that a non-religious person cannot.

Similar privileges and concessions are routinely given to religious people in several fields, including in case of uniforms.

In several uniformed government services, an ordinary employee may get fined or suspended for sporting a beard or head-dress, but religious people are allowed to claim exemptions.

HIJAB CONTROVERSY – A WAY OUT?

The hijab, or head-dress, controversy too has its roots in the Indian concept of religious exceptionalism, and cannot be easily solved within the boundaries of current pseudo-secular approach without giving rise to claims of favoritism.

To resolve the controversy, the Indian state will need to abandon the pseudo-secular approach and rely on an approach based on the dual pillars of respect for individual/institutional rights and true secularism. It will also have overcome the totalitarian impulse that often underlies many of its legislative attempts.

Of the two pillars, the first — the doctrine of individual rights, or in this case, institutional rights — says that the state should not intervene or interfere in those aspects of an institution’s operations that impact only those who are willingly part of that institution or community.

In other words, if a school or an institution has a rule saying that students who wear blue clothes will be dismissed, and people join the institution fully agreeing to that rule, then the state should not interfere if the institution dismisses someone for wearing a blue shirt.

Similarly, if an institution has a rule that prohibits shoes and requires all students to walk in barefoot and the students have joined the institution fully aware of the rule, then the state should not try to overturn that rule under normal circumstances.

This is the concept of collective autonomy, an extension of individual autonomy.

The second pillar on which this problem can be solved is secularism in its non-Indian sense — where it means that the laws and the administration must treat everyone the same irrespective of their religious beliefs, or indeed the existence of any.

This means that people do not get special treatment on the basis of religion, and the law is equally applicable to all persons.

If we apply these two concepts in case of someone who joins an institution where a specific accessory or accessories in general are prohibited, the state/court has to keep its hands off.

For example, in case someone joins an institution where wearing shorts or caps or shoes are forbidden, then the person cannot move the court citing religious grounds. The court cannot make any special provision for people belonging to one religion or the other. If a rule applies to a non-religious person, it also applies to a religious person.

If the student wants to continue to wear the accessory or costume, he or she should join another institution that does not have such a rule.

This approach, however, comes with an important caveat. Implied in it is the assumption that the student will have the choice of joining another institution where such accessories are permitted.

In other words, for every institution that has such rules, there should be others that do not.

For example, if a state government passes a law banning head-dresses from all schools or colleges to make them ‘truly secular’, such a law would not be in keeping with the two-pillar approach recommended above, as it would violate the second pillar of institutional autonomy and individual rights.

In other words, a truly secular approach will work only in conjunction with respect for individual and collective autonomy.

It is as important to give institutions the right to have a policy against head-dresses as it is to give them the right not to have such a policy.

Under such a regime, based on institutional autonomy and true secularism, those who want to wear head-dresses or bangles will eventually join those institutions that allow such accessories to be worn, while others who do not want to, will join any.

Unfortunately, the traditional impulse of Indian governments and courts have been to lay down a one-size-fits-all rule that either bans such accessories in all schools and colleges, or allows them in all schools and colleges.

Such an approach will open itself to accusations that the government is either favoring a particular religion or sect or that it is against a particular religion or sect.

On the other hand, an approach rooted in institutional freedom and secularism has the potential to satisfy the greatest number of people while the state/court avoids getting drawn into religious interpretation and mediation.