By Maleeha Fatima
Hyderabad: It is indeed tempting to label the Karnataka high court’s ruling that favored a ban on the Hijab, imposed by colleges in Karnataka, as an unlawful act or something that is not legally sound. However, when using this approach, one must remember that the legality of an action carried out by the state is a poor measure to judge whether that action is infringing upon the rights of the citizens of that state.
Marginalization of communities in modern nation states is rarely carried out through arbitrary force. It is most often committed through a well established state machinery and within such a machinery, is often a fully legal act.
Whether you study the genocide of Jews in the Holocaust in the 20th century, or atrocities against Palestinians in the apartheid state of Israel now — what has been quite consistent since the emergence of modern nation states is that the acts of committing violence against oppressed groups within a nation state has more often than not been legal.
In India, there is nothing new about the fact that discrimiation against Muslims is often carried out through the legal framework. The concern regarding the Karnataka high court’s ruling therefore, is not that the Indian Judiciary has failed to protect the rights and dignity of a marginalized group.
The concern, or question, is whether the Judiciary was ever designed in a manner that would enable it to be an upholder of equitable justice at a time when radicalization against a particular community is rapidly increasing in India.
It is important to understand that in our quest for justice, we cannot rely on established frameworks of Justice that may never be malleable enough to accommodate the rights of all — especially the rights of minority groups. This means that seeking legal justice in a case of discrimination may be a dead end because the act of discrimination may itself very well be legal.
In accordance with the guidelines within India’s legal framework, there may not be much that is unlawful about the decision of Karnataka High Court to uphold the ban that has been imposed on the Hijab by some colleges in Karnataka. Many aspects of law, including constitutional law, in their imposition are heavily reliant on the interpretations of the judiciary.
How discrmination is routed through legal frameworks
Let us understand how that works in case of the Hijab ban. It is true that under Article 25, the right to wear the Hijab should be protected because for those wearing it, it is an essential religious practice. The right can also be protected through Article 19(1)(a) of the Indian constitution, which provides the right to freedom and expression, and through Article 21, which provides the right to privacy.
However, despite all these measures to protect the right of Muslim women being in place, the interpretation of the judiciary still plays a key role in such judgements because under Article 25, it is the bench which decides whether some practice is essential to the religion or not. It does not matter if the bench is not trained in religious jurisprudence and interpretation.
It is of course possible for them to misconstrue both religious principles and constitutional law, and endless debates about that can take place. But the fact remains, their misconstruing will not make their judgment directly illegal.
It is naive to expect everyone in the judiciary to be well versed with theoretical knowledge about concepts of justice and work with pure legal rationality and legal logic. Moreover, it is naive to expect the judiciary to represent the interests of everyone within the society that it serves. While the institution may not be a direct representative body of people like the legislative, in what is now a majoritarian democracy, it is still indirectly representative of the choices of the majority.
In a democracy — particularly a democracy within a majoritarian one— an understanding of the majority and about what they want their representatives to do is an important factor to consider when evaluating the performance of representatives.
Even if one keeps aside the sheer lack of representation of Muslims in the Judiciary, and assumes that this lack of representation is not necessarily caused by the inherent biases of the institution, there still exists other flaws within the functioning of the Indian Judiciary that have proven time and again that the institution is not a bias free dispenser of equitable justice.
For example, one important way to ensure bias free justice is by ensuring that the judiciary as an institution functions entirely independently of the executive. In principle, the Indian judiciary does follow this. In practice, however, the situation is different. Emerging literature suggests that some judicial bias can be attributed to the fact that there exists various means through which judges can enter the executive, primarily post their retirement but also during their tenure.
There have been several Judges who have been appointed as governors, both acting and permanent. A recent study revealed that the temptation of post-retirement government posts influences the decisions of Supreme Court Judges, providing them with the incentive to author judgements in favor of the government. Naturally, if the ruling government intends to marginalize a group then it is very likely for the judiciary to become a tool that enables this process.
Apart from potential influence due to the temptation of post-retirement executive posts, in cases of discrimination against minorities and backward classes, the justice meted out is not simply influenced by political ideologies but is also a product of deep-rooted socio-psychological biases. The judiciary is situated in what is now an overwhelmingly Islamobhopic context.
While one cannot conclude that this prevents the judiciary from being just towards Muslims, one also cannot write-off the possibility of this. In all, one thing that can be concluded about inequitable and unsatisfactory quality of justice meted out by the Indian judiciary is that the factors which lead to this phenomenon are multifarious.
These factors are situated within the nexus of institutional inconsistency (through possibility of post-retirement executive jobs for judges), political biases and influences of the discriminatory nature of the very socio-psychological context within which litigations take place. Consequently, the judiciary is not as independent of the executive as it claims to be.
Therefore, while it is easy to claim that the judiciary has failed, it is more important to ask whether in the current socio-political ethos of increasing hatred, can a justice system that protects vulnerable groups even exist as part of the state machinery? If not, then what alternate approaches can a vulnerable minority take to protect their rights and safety?
(Maleeha Fatima is a Research Fellow at Trivedi Centre for Political Data, Ashoka University. Views are personal.)
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