1. Introduction
On the 5th of February, 2022, the government of Karnataka, a state in the southern part of India passed a government order under the Karnataka Education Act, 1983, which introduced certain clarifications about uniforms in pre-university colleges, with students mostly between the ages of 16 and 18 (Kashyap, Reference Kashyap2022). The circular bans the wearing of any religious clothing in these institutions and calls upon students to behave as one class of persons and maintain and uphold public order. It also seems to suggest that any article of religious clothing, even if worn along with the prescribed uniform would affect equality in such institutions. While the circular makes no reference to any particular religion, the political climate seemed to make it clear that Muslim girls’ headscarves were one of the primary targets of the order and in fact most media outlets have referred to it as the hijab ban.
When the matter was litigated, it first went to a bench of the Karnataka High Court which upheld the ban and the judgment proceeded from an understanding that school and colleges were ‘qualified public spaces’ and hence, individuals could not bring their religion attire into these spaces (Resham v State of Karnataka, 2022). It went in appeal to the Supreme Court of India where the two-judge bench split, and Justice Hemant Gupta upheld the High Court’s decision while Justice Sudhanshu Dhulia struck it down. Justice Gupta and the High Court did not define ‘public space’, except by implication that public in essence meant neutral or equally available to everyone. The problem with such a reading is that it ignores existing social reality and the fact that spaces are not just physical objects governed by labels, but also discursive spaces constituted by power hierarchies. Conflating ‘public’ with ‘neutral’ legitimises discrimination against those marginalised along multiple axes (gender-caste, gender-religion, etc). It allows the debate to shift to nationalism, discipline, and unity when the demand in fact is for education (Alam, Reference Alam2022). In the struggle for meaning making in public institutions, religion (rather than education) becomes the site of adjudication.
The article proceeds with the assumption that courts do not simply interpret social reality, they discursively ‘create’ it. In using terms like ‘public place’ without explanation, the courts seemed to have upheld narratives which aid socially dominant groups reproduce existing power hierarchies in these spaces. One way to understand this is to see how property (in this case the physical space called school) is constitutive of identity and autonomy in society. The law and economics movement, especially the work of Elinor Ostrom on the idea of the ‘commons’ has given us analytical methods to disaggregate the hidden assumptions behind the norms governing property (Ostrom and Hess, Reference Ostrom, Hess, Bouckaert and De Geest2010). The characteristics of a common property regime include community management, equitable access for stakeholders, management rights for stakeholders, non-excludability of community property. The idea is to align the physical space with foundational social norms which undergird it.
The article proposes to analyse the Resham and Aishat judgments in light of learnings about the discursive construction of space from the law and economics movement. It first discusses how terms like ‘public space’ take on meaning from what can be described as a regulatory regime surrounding the physical property in question which includes norms, laws, customs, traditions, urban designs, surveillance, policing, etc (Ruppert, Reference Ruppert2006). Specifically, we discuss how social location affects access and use rights over what we broadly call ‘public’ in law and governance. Then we discuss why the idea of the commons which gives us an analytical method to discuss the connection between people, property, and autonomy (Ostrom and Hess, Reference Ostrom, Hess, Bouckaert and De Geest2010). The article then moves to a brief discussion on the question of practising religion in public spaces in India and the paradoxes of regulating religion through a secular constitution in a deeply religious society. After that there is a discussion of the famous South African nose pin case (Kwa Zulu Natal v Pillay, 2007) where the constitutional court gave us a reading of cultural clothing in public spaces which is sensitive to power dynamics in a multi-racial society with a history of discrimination against non-white races and a secular constitution. It helps to provide some context for the author’s disagreement with the Karnataka High Court’s judgment and Hemant Gupta‘s judgment in the Supreme Court. The final part of the article discusses the Indian judgments in light of the analytical framework proposed and the norms for religious protection discussed in the previous sections.
In terms of its contribution, the article tries to do two things; one is methodological and the other, connected aim, is that it is interdisciplinary. The methodological is that it tries to improve upon the current methods of analysis of religio-cultural issues by adding a materialistic element to it i.e property. To me that is key to shifting the focus from what a practice is to the question of who is allowed to practice what, where and how.
2. The complexities of ‘public’ and ‘space’
While there isn’t one meaning of public in law, there are thematically dominant paradigms which influence who can act in what fashion in public spaces. In other words, while definitionally there cannot be one kind of public and there are always contestations as to who constitutes the public, in different socio-cultural contexts, dominant social groups (for example middle-class vs homeless in cities) may be able to act with far more freedom in such spaces (Mitchell, Reference Mitchell1997, p. 307). The idea of space then is managed by a variety of regulatory techniques and practices which configure liberties of citizens whether in terms of sociability or politics (Ruppert, Reference Ruppert2006, p. 271). While public space consists of physical space, the range of activities allowed or even tolerated in such spaces, is a result of norms, laws, customs, traditions, urban designs, surveillance, policing; in other words a regulatory regime (Ruppert, Reference Ruppert2006, p. 273). While some groups may be able to mobilise better to use these spaces and constitute them into their idea of public, all groups will always do so with reference to other groups as well as state power (Mitchell, Reference Mitchell1995, pp. 113–116). For ease of analysis some propose that we look at property in three ways; physical (referring to location, design, etc), code (laws, customs, norms, etc), and content (use, function, etc); this has the advantage of looking at both the physicality of a particular space as well as its discursive elements (Nemeth, Reference Nemeth2012, p. 7). In that sense we must have a notion of how regulatory practices shape the use of physical space and, perhaps, vice-versa.
There are many ways to understand these contestations that define the public. Habermas’ historical thesis that the bourgeoisie public sphere (consisting of newly formed print media in the 19th century) tried to portray itself as the voice of the people, in opposition to the state was one of the most important contributions to this field (Habermas, Reference Habermas1991). Fraser’s further disaggregates the notion with the idea that social status of an individual and their place in the ‘public’ were inextricably related and that there could be no proper analysis of the term ‘public’ without that acknowledgement (Fraser, Reference Fraser1990). These spaces are to promote sociability (especially in deeply segregated societies), but these are also places for legitimising political demands, be it the suffragette movement in the west or the Mahad Satyagraha for the right to use water tanks for Dalits in India (Samel, Reference Samel1999; Teltumbde, Reference Teltumbde2022).
It is in this (revolutionary) vein that article 15 (2) of the Indian constitution refers to ‘shops, public restaurants, hotels, and places of public entertainment’ as well as ‘wells, tanks, bathing ghats, roads and places of public resort’ (Constitution of India, art.15). According to this provision there can be no discrimination on the basis of ‘religion, race, caser, sex, place of birth or any of them’ when it comes to accessing these spaces. The nature of the regulatory principle in public space becomes clear when we look at the word ‘shops’ in article 15. As Bhatia points out, the Supreme Court in IMA v Union of India (and Ambedkar), seem to have expanded the normal English language usage of the word ‘shop’ in favour of an abstract ‘place’ that allows x to offer services y to any buyer z (Bhatia, Reference Bhatia2016, p. 100, discussing IMA v Union of India, 2011). In recognition of the history of caste discrimination, this expands the scope of state intervention in what otherwise might be considered private spaces. Thus, it tries to fashion a new relationship between liberty and equality in India, a relationship that is often referred to as transformative (Bhatia, Reference Bhatia2019). In the process, it tries to build a new notion of the public, one which is free from the various forms of discrimination which characterised the social in pre-constitutional India.
From a developmental perspective, we can see that the use of the term ‘public purpose’ in land acquisition has been given the widest possible meaning to include as many varieties of developmental projects as possible, a cursory glance at s. 2(1) of the 2013 Act (The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act) and s.3(f) of the repealed 1894 Act (The Land Acquisition Act) is sufficient to underscore this point. The liberalization reforms were ushered in while the colonial era 1894 act was in place, in effect making the industrial development corporations of various states the middlemen who acquired land for private corporations (Gonsalves, Reference Gonsalves2010). At the same time, the hierarchisation of the term ‘public purpose’ and the yielding of humanitarian concerns to the logic of market efficiency remain intact in the new Act of 2013 (Dhingra, Reference Dhingra2022). In the context of slum demolition and beautification of the city, constitutional scholars have often noted the Supreme Court’s role to be that of a slum demolition machine; presumably the poor occupying these governmental spaces do not fulfil the criteria of public by reason of their poverty and precarity (Bhuwania, Reference Bhuwania2016).
But the important thing to understand is that constitutional and legal provisions are only one element of what is being referred to as the regulatory regime. Revisionist social resistance to legal doctrine steeped in liberal traditions may be one more element of the regulatory regime. Thus caste prejudice and social and economic boycotts persist in India in spite of article 15(2), to the extent that, unlike upper-caste Hindus, Dalit grooms may not sit on mares during their wedding processions on public streets even to this day (PTI, 2025). Economic resistance of the masses to neo-liberal policy reforms may be yet another element of the regulatory regime. In 2015, there were amendments proposed to the land acquisition act of 2013, which would have made it easier for states to acquire land for private corporations (for the chimerical public welfare projects); these had to roll back in the face of a united opposition which pitched it as a growth vs welfare/development argument (Verma, Reference Verma2015). Who constitutes the public and who speaks for it have always been questions of access, privilege and social positions.
The question of women accessing and making use of public spaces has always been enmeshed with the question of patriarchy, domination, and violence; this violence is ordinary, everyday, and continuous (Viswanath and Mehrotra, Reference Viswanath and Mehrotra2007, p. 1542). Social class and other forms of intersectional disadvantages play a role here as well with Dalit women, urban poor women, and displaced women, being much more likely (in proportion to their numbers) to have experienced sexual violence in public spaces (Viswanath and Mehrotra, Reference Viswanath and Mehrotra2007). Similarly, women from the north eastern states of India, who reside in Delhi are stereotyped as licentious, experience a mix of racial and sexual harassment on the streets (Puri, Reference Puri2006). It is also violence which is normalised in the sense that police often dismissive and/or apathetic and law enforcement being weak as a result (Dhillon and Bakaya, Reference Dhillon and Bakaya2014). The point is that even as we call these spaces public, they are not available to women in the same way as they are to men. Even as law insists that there is equality, patriarchy as the normative protocol ensures it cannot be so. Even when women are seen in public spaces, they may not do as men do; this pointed out specifically with reference to why men can loiter while women must be seen as going somewhere, doing something (Phadke, Ranade and Khan, Reference Phadke, Ranade, Khan, Butcher and Velayutham2009).
Specifically with respect to Muslims in India, segregation has always been a reality. Religion and nationalism have often been weaponised to blur the boundaries between public and private while ‘‘material’ and ‘metaphorical’ spaces are continually constructed and reconstructed and socio-spatial processes are sustained or altered’(Shaban, Reference Shaban and Shaban2018, p. 210). The ethnographic volume Muslims in Indian Cities traces the ghettoization of Muslims and the need for security which is an ever present context in the daily lives of Muslims of all hues (Gayer and Jaffrelot, Reference Gayer and Jaffrelot2011). The fear and resultant ghettoization results in Muslims being confined to certain parts of the city, mostly the older areas, with limited lack of and access to basic civic amenities like water, electricity, waste disposal, etc (Farhat, Reference Farhat2023, p. 63). This further reinforces negative stereotypes about Muslims not being interested in keeping up with the modern world. Jamil notes that this has direct consequences for property in the sense that people are less willing to let out property or sell property to Muslims because they see this bring down the ‘value’ of the neighbourhood and hence their own property (Jamil, Reference Jamil2014).
Like women, Muslims are also supposed to not engage in certain behaviours in public, which can be as innocuous as praying in the open when mosques aren’t available due to administrative obduracy (Poddar, Reference Poddar2022). This happens even as Hindu religious gatherings far from being proscribed are in fact encouraged. However, constant usage of terms like public streets, public roads, public utilities, etc reinforces the idea that all of these facilities are equally available to us and that there are those who put them to legitimate uses and those who do not. One other way to theorise about such spaces is through the notion of ‘commons’, an idea which has always existed in human communities but was presented as a challenge to modern property rights theory by Elinor Ostrom. In certain ways, it was a challenge to the atomistic abstract individual who is the locus of modern property theory and whose rights of disposal over property are the foundation of all mainstream property systems (Harris, Reference Harris1996, p. 32).
3. Property theory and the constitution of the self
3.1. The commons
If the idea of autonomy is associated with being able to express oneself in society and act politically in spaces which should allow for all kinds of politics, we can conclude from the above discussion that it is important to be able to occupy these spaces as equal citizens. One of the ways in which economists have thought about equitable property rights is through the idea of commons (Ostrom and Hess, Reference Ostrom, Hess, Bouckaert and De Geest2010). The origin of the idea lies in opposition to economic thinking which privileges the modern property rights regime (whose central focus is the idea that one owns a property when one can dispose of it without restrictions) and envisages private property as the optimal way of ensuring sustainable use of resources. This line of thinking was inspired by Garrett Hardin’s famous tragedy of the commons article where he claims that a common resource, not held by any one person in particular (grazing land) gets destroyed because there is increasing over-exploitation as no one has an interest in preserving it because no one owns it privately (Hardin, Reference Hardin1968).
The idea, that free-riders would tend to denude property if not checked by the existence of private property rights, led researchers like Elinor Ostrom (who won the Nobel Memorial Prize in economics for this work) to actually look at empirical examples of commonly held property to figure out how they avoided this trap, that seemed self-evident to mainstream economics (Ostrom, Reference Ostrom, Bouckaert and De Geest2000; Ostrom and Gardner, Reference Ostrom and Gardner2017). The answer really lay in the fact that there were different kinds of access that people have, to communally held property and that the kinds of rights members have creates incentive structures which result in preservation of resources, quite contrary to what mainstream economic theory predicted. For example, in a community where grazing land is held communally, all members may have the right to graze their cattle but only a select few may have the right to decide how many heads of cattle each household gets to graze annually. Even fewer may have the right to decide if new households can be added. And there may be no option to sell community property. The picture that emerges then is of a variety of rights related to the property in question which forces us to think beyond the labels like private and public.
According to Ostrom, modern theories of property have a hard time understanding common property regimes because of various kinds of confusions that have crept into the understanding of how these regimes operate. The major definitional issue that needs clarification relates to the difference between an open access regime, which is essentially what Hardin describes in the article and a common property resource (Hardin, Reference Hardin1968). Open access regime means that there is no one who can be effectively barred from using the resource in question and no one has the right to bar anyone else (Ostrom, Reference Ostrom, Bouckaert and De Geest2000). Common property resources, on the other hand, may be held by a specific group of people who do have the right to exclude others from the resource effectively. That basically means that there are incentives in place to ensure sustainable use. The idea that property is a free-floating thing if it is not owned privately, is a conceptualisation of property made possible by 1) the imagination of property as a ‘physical’ object first, and 2) the implicit assumption that private property is the only form of property that is efficient.
When it comes to common property resources, it is hard to institutionally or physically exclude beneficiaries and at the same time every use reduces what is available for others to use. This means that, unless ways are devised to limit this access and usage in some way, the free rider problem, of the kind that Hardin points out, will arise. In localized communal ownership accountability arises out of the fact that the participants (owners?) must constantly be working with each and are dependent on each other (Ostrom and Gardner, Reference Ostrom and Gardner2017). How and when resource units will be withdrawn is dependent on the governance systems and hence power hierarchies. The bundle of rights that are generally associated with any kind of resource are access, withdrawal, management, exclusion and alienation (Schlager and Ostrom, Reference Schlager and Ostrom1992). Thus, the hierarchy is somewhat like this; owners, proprietors, claimants and authorized users. These kinds of systems exist pretty much everywhere in the world. Essentially it brings home to us the fact that the world of property cannot be naively divided into private, government and common property. All of these rights stated above can exist in any of these systems.
The right question to ask then is not who owns property (which is the focus of labelling), but how equitably can it be accessed. The challenge is to the assumption that labelling the school ‘public’ means access is equitable. Access, as the preceding discussion shows, works best when the power disbalances in society are not too pronounced. In other words, as we discussed in the previous section, even when the property is labelled as public, socio-economic disparities will come to reproduce themselves in these spaces as well. Some of the themes we discussed in the previous section about hierarchies, ideological underpinnings of certain uses of property and the actors allowed to use property in certain ways, converge with this kind of economic theorising about property. The term public is always being constituted and at any given moment consists of a series of actions, actors, and meanings which are interacting in complex ways with the regulatory apparatus which is not limited simply to laws. Thus, rather than imagine or think of property as public or not, we should think of whether the regulatory protocols (judgments being part of the same) around that specific property allow for ‘commoning’. In the next section we shall propose an analytical framework which may help us think through the regulatory protocols surrounding property.
3.2. Property in economic theory and the self
Margaret Jane Radin was amongst the first to speak of the constitution of personhood through property (Radin, Reference Radin1982). She categorises things that one holds for their emotional value as ‘personal’ property and things that one holds for instrumental (exchange) reasons as ‘fungible’ property (Radin, Reference Radin1982, p. 962). How then are we to distinguish between different people’s (communities’) rights over property if our standards are so bound up with subjective notions of personhood? In other words, this seems too subjective a view of property to be useful in a universal sense.
One way of thinking of universal values is the way Gregory Alexander speaks of property and human flourishing; essentially a person flourishes when they live a life of dignity, self-respect, and satisfaction of basic material needs(Alexander, Reference Alexander2013a; Alexander, Reference Alexander2013b; Alexander, Reference Alexander, Zipursky and Dagan2020, p. 204). Dagan speaks of something similar when he speaks of self-authorship or self-determination where a person constructs the narrative arc of one’s life and how access to property is connected to it (Dagan, Reference Dagan, Dagan and Zipursky2020). Even the capacity to be solitary depends on a ‘richly social, cultural, and institutional context’; but for this context, any freedom is meaningless (Alexander, Reference Alexander, Zipursky and Dagan2020, p. 207).
We are dependent on our communities (both freely chosen as well as those were born into) for knowledge and life experiences which lead to the emergence of the free and rational being in us. In this we see property as important to the being and becoming of an individual and we also see property as preventing the being and becoming of individuals. This the autonomy inhibiting characteristic of property i.e, property is both empowering and disempowering (Alexander, Reference Alexander, Zipursky and Dagan2020). In the empowering process, one must have some right to own property; however, the same ownership rights may inhibit someone else’s rights of self-determination. In some ways this is reminiscent of Virginia Woolf’s thesis that a woman must have a room of her own (Woolf, Reference Woolf2020). To ‘have’ is really to have equitable access.
Lisa Austin argues for a similarly objective view of property vis-à-vis something that we all need for self-determination i.e constitution of one’s identity and the associated autonomy required for this (2010). Austin argues that property rights can be so conceived that rather than inquire into actual emotional and psychological ties between people, as Radin proposes, and their possessions, we focus on the capacity of property for identity formation (Austin, Reference Austin2010, p. 446). She lays out how certain rights of access to public spaces are important for development of certain types of communities and why that is tied up to the ‘domination-potential’ of ownership (Austin, Reference Austin2010, p. 446). By focusing on the idea of property as a direct social relationship (rather than indirect) between individuals, she realigns the debate so that the self-constitutive nature of the relationships between people and other people (rather than that between people and things) is illuminated (Austin, Reference Austin2010, p. 448). This allows us to then address questions of power without resorting to debates about aligning social and personal use of property (as we would in person-property account). This also allows us to see how certain uses are seen as inherently more ‘worthy’ than others and hence more in need of protection.
In a similar vein, Pedersen speaks of the mistake people commit when they speak of property as ‘A owning B’ rather than ‘A owning B against C’; the first formulation doesn’t capture the social nature of property while the latter (triadic) formulation makes it clear that the entitlement to property is against someone (Pedersen, Reference Pedersen2010). Like, Austin, this view of property speaks of property as social relations but it expands on this concept delineate some general characteristics of property which can then be arrayed in a multitude of ways to give rise to specific forms of property, like private property or the commons (Pedersen, Reference Pedersen2010). However, these general characteristics are not physical qualities but still social relations; it involves “rights, duties, powers, privileges, forbearances, etc., of certain kinds” which involves possession, use, exclusion, etc with respect to other individuals (Hallowell, Reference Hallowell1942, p. 119). This way of approaching property has the benefit of avoiding ‘provincialisation’ i.e extrapolating only from data regarding property institutions of modern economies. In other words, Ostrom’s empirical findings can be explained by this matrix.
Pedersen proposes that we understand property as a heuristic device which brings into focus certain relations between people with regards to things. In his words;
property, as patterns of conventions structuring social relations with regard to things, always refers to (i) a social group amongst whom the relations hold and are performed (the relating subject), (ii) some resource, object or set of objects with regard to which the relations hold and are performed (the related-to object), and (iii) the way in which the relations are shaped, that is constrained and/or enabled, through normative protocols (the relational modality) (Pedersen, Reference Pedersen2010).
This kind of conceptualisation of property has the advantage of not being about any particular society or time and instead can be used to analyse property systems in any jurisdiction. The social group can be a nation-state, a community, village, corporation, institutions like schools, etc. It is noted here that these categories are not static or fixed, they are constantly being produced, updated and annihilated, through human interaction with respect to the related-to object. These objects may be anything in the material, objects, resources, possessions, etc; they may be trivial or significant, the point is that they are imbued with meaning through human agency and action. This association happens through a relational modality which incorporates some form of control over the object; we refer to this as the pattern of rights, duties, privileges, powers, etc with respect to property (Hohfeld, Reference Hohfeld1913; Hohfeld, Reference Hohfeld1917).
In other words what can be done with respect to property is often dictated by what we can do according to norm and custom (Pedersen, Reference Pedersen2010). Sometimes, the contingent nature of these norms gets mistaken as ‘natural’ features of property in general while they may actually be features of a specific regime of property. Pedersen refers to these as articulated and unarticulated normative protocols (Pedersen, Reference Pedersen2010). This leads him to the conclusion that if there is one feature of property that can be said to emerge from the fact that we are social beings and that property is enjoyed socially, it is the autonomy to self-constitute (Pedersen, Reference Pedersen2010). This is not freedom from state and society that property theorists understand but the freedom to self-constitute (Pedersen, Reference Pedersen2010). Quoting historian Roger Chartier about the origin of the word privacy from the French root word privé which means ‘familiar’ and at home, Austin notes that the privacy of home was primarily defined by the ability to choose freely one’s associations unhindered by both law and custom (Austin, Reference Austin2010; Chartier, Reference Chartier, Chartier and Goldhammer1989).
We can now combine Austin’s idea of property being important to the idea of self-constitution and Pedersen’s scheme of property as a social field, related-to object and relational modality and arrive at some conclusions about the nature of stated and unstated assumptions about these modalities. While Pedersen does not use it in such a way, it might be useful to think of law as one of the stated normative protocols about the relational modality and everything else, including custom and social practice, as unstated normative protocols. This helps us understand why modern regulation is unable to ‘see’ the highly complex structure of the commons and the ways in which commoning i.e the process of collective self-constitution of the commons occurs. The term unarticulated is only used in the sense that these norms were not written down like legislation and formal rules are expected to be in mainstream legal systems.
What connects all these theorists is really the fact that all of them speak to Ostrom’s work and its uncovering of social norms and property relations and their connection to power and hierarchy in society. While we will analyse this in detail in the last section of the article, what this allows is to look at the hijab not as a cultural matter (which often means that it becomes a specifically Muslim issue) but a matter of rights over property (in this case, pre-university colleges). This shift allows us to question the ostensible neutrality of the space and hence understand that Muslim women do not occupy such spaces with the same level of assertion as members of dominant majorities may be able to.
In the next section, we shall take this analysis forward to the question of the judicial process and identity formation. We take a look at Indian jurisprudence on the right to religion and how it has privileged certain practices (generally upper-caste Hindu) over others, in the process creating a bubble of protection for these practices but not others. In the same vein, practices important to other religions have been made extremely difficult to put into practise in deference to Hindu religious sentiments. What the article argues is that these discursive practises create and sustain dominant social identities because they allow and disallow the ‘performance’ of religion in public spaces based on one’s social location.
4. The place of religion in judicial and constitutional discourse
4.1. The constitution’s textual commitment to equality: Paradoxes and contradictions
Secularism in the Indian context has always been a story of paradoxes because it is a deeply religious society where it is hard to expect that people will keep aside their religious beliefs in the public realm; it may be seen as insensitive or worse, hostile to one’s personhood (Bhargava, Reference Bhargava2002, p. 4). To some, this expectation, that seems to come from the experience of secularisation in Europe, is absurd to expect in India (Nandy, Reference Nandy and Das1990). The existence of numerous forms of religions (and specifically the difficulty of defining Hinduism in any monolithic manner) has added to the complexity of understanding the sharp distinction that European theory seems to draw between secular and religious traditions (Thapar, Reference Thapar, Rathore and Mohapatra2010, p. 75). Similarly, the profusion of caste/jati identities and heterodox traditions of protest against dominant Brahmanical traditions add further dimensions to the question of secularism (Thapar, Reference Thapar, Rathore and Mohapatra2010, p. 76). In fact some have pointed out that the lack of theoretical engagement with the connection between caste and religious sectarianism is the specific blind spot of Indian writing on secularism (Menon, Reference Menon, Rathore and Mohapatra2010). Specifically with respect to the Constitution, articles 29 and 30 protect religious and cultural minorities and allow them to protect their distinct scripts, traditions as well as manage their own institutions. This, at least in terms of the western traditions of secularism, seems to contravene the principle of formal equality of religions (Chandhoke, Reference Chandhoke, Jayal and Mehta2010, p. 334). India also has the distinct constitutional promise of reforming Hindu religious institutions which can be seen as a way for the post-colonial state to deal with persistent caste discrimination in Hindu religious spaces.
In this contested realm, fraught with contradictions, the question of Muslims as Indian citizens was always going be a complicated one especially post-Partition. The textual promise of citizenship in India was that it was not dependant on religion. In fact, the initial conversations around citizenship were premised on the idea of extra protection for minorities (Chatterji, Reference Chatterji2012, p. 1052). However, as scholars like Jayal have pointed out, this promise was put to the test right after Partition when administrative regulations made it more difficult for Muslims who had migrated to Pakistan in precarious conditions to come back and claim citizenship (Jayal, Reference Jayal2013, p. 52). While the civic promise was to fashion a secular state, older loyalties were hard to dismantle and the ideal citizen was invariably male, upper-caste, and Hindu (Fazal, Reference Fazal2014). Brahmanical sensibilities would be catered for in the form of prevention of cow slaughter laws (Sarkar and Sarkar, Reference Sarkar and Sarkar2016), the refusal of gender equality to Hindu women while codifying Hindu laws in 1956 (Majumdar, Reference Majumdar2010), and the practical outlawing of proselytising of Christianity, and subsequently Islam, in many states across the country (Kumar and Yadav, Reference Kumar and Yadav2022). In all of these issues, the judicial decisions would eventually amplify the political process. Continuing a similar process, in recent years, the judicial process has been used to great effect by the current regime to legitimise some of its most trenchant demands as Sundar notes (Sundar, Reference Sundar2023). In the next section, we take a look at some of the most famous Indian cases regarding the constitutional right to religion, with a specific focus on religion in public spaces.
4.2. Construction of the ‘legitimate’ through judicial protection
Articles 25 and 26 of the Indian Constitution are concerned with the right to religion in India (1950). According to article 25(1), as long as certain conditions are fulfilled, everyone in India is entitled to “freedom of conscience and the right to freely profess, practice and propagate religion”. The freedom is subject to, inter alia, public order, health and morality; terms which have been imbued with meaning through years of constitutional interpretation. It is also subject to the other provisions of the chapter on fundamental rights i.e part III of the constitution. The right does not bar the state from making laws which seek to reform certain pernicious social practices as well as any secular activity associated with religious practice. It is to be noted that the right to religion is, textually speaking, quite heavily circumscribed and has always been read with these limitations. To these textual qualifications, the judiciary has added the essential religious practices test which has come to play a major in determining what practices are protected from state action to an extent. Article 26 is mainly concerned with the right of religious denominations to maintain their own property and manage their own institutions for charitable and religious purposes. For the most part, this article deals with the question of individual rights, so the following discussion will focus on article 25.
While India has a secular constitution, it is a deeply religious society (Pew Research Center, 2021, pp. 6–7). In such a scenario, it is certain that some aspects of religious observance will come into conflict with the duties of a professedly secular state. It is for these reasons that other fundamental rights have been given priority; if, for example, the right to religion comes into conflict with the norms of equality, it is equality which should take precedence. According to article 25(2)(b) we see that there are provisions for reform and opening up of ‘Hindu religious institutions of a public character to all classes and sections of Hindus’. This is clearly meant to signal that the state has the power to effectuate reform through legal instruments. The first time this happened in independent India was with the Madras Hindu Religious and Charitable Endowments Act, 1951 (HRCE Act), which created a new government department to supervise temples and maths. In response to this the head of Shirur Mutt, filed suit and the judgment would go on to become extremely influential in the years to come whenever the question of regulatory control of religious institutions came up (Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Tiratha Swamiar of Sri Shirur Mutt, 1954). The judgment expanded the concept of religion in India while giving its blessings to the state administering religious institutions for social reform (Sen, Reference Sen, Chaudhry, Mehta and Khosla2016). The court referred to the Australian case, Adelaide Company v Commonwealth, which defined religion not just as the belief or doctrine of the believer but also acts done in pursuance of one’s belief which might include ‘rituals and observances, ceremonies and modes of worship…’ (Adelaide Company v Commonwealth, 1943; Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Tiratha Swamiar of Sri Shirur Mutt, 1954, p. 17). Ostensibly, this would have the effect of placing both belief and practice under constitutional protection. However, this definition offered scant protection to the petitioners as the court upheld most of the HRCE Act as it believed the act did not infringe upon the ‘religious’ aspects of observance but on the ‘secular’ aspects as laid out in article 25 (2) (a).
This broad definition would come under scrutiny in the subsequent Durgah Committee v Syed Hasnain Ali case where the Durgah Saheb Act, 1955 (along similar lines as the HRCE Act) was challenged in the Supreme Court (1961). It was observed by the court in the Durgah case that when there are questions about protection of religious freedom, the court must decide which practices are essential to religion and which are not; ultimately the court must become a gatekeeper as to the question of religious practices (Durgah Committee, Ajmer v Syed Hasnain Ali, 1961, p. 33). In fact, the court went to claim that over the years religions stray from their roots and acquire practices which are best described as superstition (Durgah Committee v Syed Hasnain Ali, 1961, p. 33). This extraordinary claim would be the start of what has been described as India’s secular clergy; in essence the court would now decide what the hierarchy of practices within a religion was going to be (Mustafa and Sohi, Reference Mustafa and Sohi2017). Thus, while the definition remained broad, it would accommodate only what the court understood as religion. Such extraordinary power did not seem apparent from the text of the constitution but nonetheless, it would go on to define the contours of religious freedom in India. Also, to be noted is the fact that there is no theory(ies), classifications, analytical tools, etc that are provided by the court for future guidance as to what constitutes superstition and how one may sift through the claims of various competing sects in a religion. In fact, in a later case, Tilkayat Shri Govindlalji Maharaj v State of Rajasthan, the court remarked on this and said that it is simplistic to assume that community practices are a good indicator for what is essential to religion as communities speak with various voices (Tilkayat Shri Govindlalji Maharaj v State of Rajasthan, 1963, p. 57). As Sen notes, this has resulted in the bureaucracy taking over the management of temples and mutts in India (Sen, Reference Sen, Chaudhry, Mehta and Khosla2016, p. 892).
Another important consequence of this has been the reluctance of the court to accept practices of recent provenance. This was evident in the Acharya Jagdishwaranand v Commissioner of Police, Calcutta judgment where permission was denied by the police to a sect of hindus called Ananda Margis to perform the tandav dance with skulls and tridents (trishuls) (1984). The court upheld it and said that this was a relatively new practice and for the purposes of public order, it could not allow the same. This creates a hierarchy of community practices within religion; it is evident that the more dominant sects (with a richer written record) would be able to impress upon the court that their practices were legitimate and essential as opposed to superstitious. The dichotomy of belief and practice is a crucial one for modern multi-cultural states which must balance between the public space that is allowed to different practises of each religion. For this, one of the mediating institutions became the judiciary and one of the important questions that had to be faced was the question of conversion from the Hindu faith (Acharya, Reference Acharya2022, p. 22). Some of the doubtful historiography that inspired the framers of the constitution of India to be wary of adding the word ‘propagation’ to article 25, has taken hold of judicial and political discourse and has manifested itself in anti-conversion decisions of the court as well as anti-conversion statutes (Acharya, Reference Acharya2022, p. 24).
The definitive judgment with respect to conversion laws and the Supreme Court in India is the Rev Stanislaus v State of Madhya Pradesh judgment which resulted in the word ‘propagation’ being practically struck down from article 25 even if the text retains it (1977). The judgment was concerned with anti-conversion laws passed in the states of Odisha and Madhya Pradesh. While it remains the operative precedent, there is very little explanation in the judgment as to what exactly the problem with conversion is other than to say, quite patronisingly, that propagating one’s religion through allurement, force or fraud, is an affront to someone else’s freedom of conscience (Rev Stanislaus v MP, 1977, p. 29). In these statutes, force is not just a physical threat but also includes the idea of someone converting you with the threat of divine displeasure. They also prescribe more stringent punishments for the conversion of minors, women, and SC/STs; a rather unfortunate conflation of lack of agency and gender and caste/tribe. Pritam Singh points this out as indicative of the fact that social reform in art. 25 was meant to stop conversion of the lower castes from Hinduism, echoing Pratap Bhanu Mehta’s view (Singh, Reference Singh2005, pp. 915–916; Mehta, Reference Mehta2004). The question of allurement was never discussed properly in the case either; indicating an understanding of religion deeply rooted in an economically well-off upper caste logic. The idea that converting for the sake of material or social upliftment, connected to dignity of existence, is one that has been anathema to Indian majoritarian discourse including people like Gandhi, who was famously against conversion which was connected to ‘money, educational facilities and medical services’ (Rao, Reference Rao, Lamb and Bryant1999, pp. 136–150). A spiritual reason for conversion has thus always been favoured over ‘vulgar’ material inducements, ignoring completely the fact that there is very little spirituality in the desperate poverty that lower caste India finds itself in.
Both of these conclusions about religion in India rise from the discourse around right to religion which privileges a certain kind of understanding of religion which then goes on to dictate how one may or may not use spaces identified as public in India with respect to religion. If we use the same Pedersen-Austin idea the connection between the ideological, spiritual, and finally material is obvious. The social group here may be defined as the category of those with contesting ideas of religion, either in an intra-religious fashion (thus practices of Hinduism which are equated to superstition) or inter-religious (thus practices of Christianity and Islam seen as a threat to Hinduism even as it has the potential to emancipate vast swathes of lower caste Hindus and Dalits). The resource that is being fought over is the right to practise religion in public and the relational modality, which decides who gets to control access and how, is seen as legal with overwhelming dominance on the upper-caste Hindu side both when it is arrayed against other Hindus as well as Christians and Muslims. This is the conclusion that Sen comes to in his extensive work on right to religion in India (Sen, Reference Sen2010, Reference Sen, Chaudhry, Mehta and Khosla2016).
The discussion above seems to echo the Foucauldian idea that the rights discourse is less about emancipation and more a stratagem of control used in modern governmentality (Foucault, Reference Foucault2003, p. 27). In fact, it is this problem of the rights discourse that leads to disenchantment and eventually the creation of Critical Legal Studies Movement which insists that liberal paradigms of law are unable to engage sufficiently with the structural nature of power and law’s role in legitimising it (Morrison, Reference Morrison2016). Post-colonial scholar Ratna Kapur also points out this issue with the rights discourse and claims that rights are a governance mechanism rather than an emancipatory measure; these are ‘fully implicated in schemas of power and governance’ (Kapur, Reference Kapur2018, p. 234). We keep these ideas in mind as we proceed to the next section where we see two contrasting approaches to the question of religio-cultural clothing; only one of which seems to be aware of the role historically constituted socio-economic disadvantages play in the present.
A woman’s right to wear a hijab is not just an isolated question of women’s rights, or Muslim women’s rights, or even freedom of speech and expression; it involves understanding the creation of the space called public school, the person called a woman and the identity of a Muslim in India All this is aided in various measures by unequal share of socio-political power emanating from the control over resources. In other words, gendered, sectarian, and casteist reality is sought to be obfuscated through use of language which presents the appearance of neutrality in the political arena and the same gets legitimised in judicial discourse.
5. Religio-cultural clothing as constitution of the self
5.1. How do we protect voluntary practices? The nose-pin case and South African jurisprudence
What then is the place for religious or religio-cultural symbols/expressions in public places in secular states. The South African Constitutional Court in MEC for Education, Kwa-Zulu Natal v Navaneetham Pillay (also called the nose ring case in popular media), answers this question in great detail (2007). It is particularly instructive for us because some of the constitutional and societal contexts in South Africa (a multi-racial society with a long history of discrimination against non-White ethnic groups, multiethnic groups some of whom are marginalised along multiples axes, an activist constitutional court, a constitution which embodies not just civil-political but also socio-economic and cultural rights) are very similar to India even if South African independence was only achieved in 1994. In the instant case, both the High Court and the Constitutional Court of South Africa held that the policy which forbade a Hindu girl from wearing the nose-pin too school, did not take into account the fact that Hindus and people of Indian origin had been vulnerable and marginalised in South African history, and that to prevent her from exercising her cultural rights was tantamount to continuing the discrimination even as the policy was uniformly applied to all students (Kwa Zulu Natal v Pillay,2007, p. 9). The norm embodied by the code was held to place a disproportionate burden on those who had been historically marginalised while it allows mainstream and historically privileged forms of adornment like ear piercings (Kwa Zulu Natal v Pillay, 2007, p. 21).
The first question that confronts the court in a court like this is the idea of the right itself; what kind of right is being asked for and is it being asked for as part of one’s religious and/or cultural identity. The court rejected the argument that Pillay was not part of an identifiable culture with a long shared history and a tradition of its own including family and social customs and manners (Kwa Zulu Natal v Pillay, 2007, pp. 23–24). In effect, the court was rejecting the requirement for something like essential religious practice as a starting point for whether Pillay had a right to wear the nose-ring. If we use the same argument in the Indian context, it will then place a lower burden on the Muslim girls seeking to wear the hijab. Instead of having to show that the hijab is essential to Islam as a whole, they will just have to show that the wearing part of a cultural practice that originates in an identifiable community (not the whole Islamic community) and which is sincerely held. Again, the South African court gives sincerity a subjective meaning (one’s own beliefs) rather than an objective one (determined by community practice). Personal practices have associative meaning in the sense that they stem from community practises (and find meaning in that communal nature of the practice) but cultures cannot be seen as monolithic (Kwa Zulu Natal v Pillay,2007, p. 27).
If we hold that cultures (or religions) are static, we risk amplifying only those voices within a culture which hold power. While we discuss this in the next section, it is important to underline here that this static view is in fact one that the Indian Supreme Court primarily employs when it used the essential practices doctrine. The South Africa categorically rejects this understanding when it finds that the nose-stud is not a mandatory part of the South Indian Hindu culture but that is irrelevant to Pillay’s exercise of the right (Kwa Zulu Natal v Pillay, 2007, pp. 30–31). In fact, the court points out that the protection of voluntary practices is more vital; it is not less central to a person’s dignity simply because no authoritative text can be found (Kwa Zulu Natal v Pillay, 2007, p. 34).
It will be useful here to pause and recap our discussion on the combined Pedersen-Austin idea of property as important to the idea of self-constitution and property as social field from earlier in the article. While Austin emphasises the constitutive role of property in a person’s sense of selfhood and autonomy, Pedersen proposes that property be understood as a heuristic device which consists of a) the relating subject i.e the social group amongst whom the relations are performed (in this case the other students, Pillay herself, and the school administration), b) the related-to object i.e. the resource over which the relations hold (in this case in this case the right to attend it with certain adornments upon one’s body), and c) the normative protocols (in this case the administrative order, the Equality Act, as well as the interpretations of terms like uniformity and discipline, ideas about equality, reasonable accommodation, etc). The South African constitutional court, even though it does not explicitly say so, is operating with a social understanding of space and property theory. In doing so, it is able to effectively contextualise why the school has a responsibility to traditionally marginalised groups which goes beyond legislating uniformity. It is also able to expose the normative protocols as historically contingent and derivative of dominant group norms. Marginalised groups need reasonable accommodation in public spaces for their beliefs and practices primarily because spaces that we now call public were never designed around their needs. For example, in countries with a Judeo-Christian roots, Saturday and Sunday might be the days off while in a state with Muslim roots that day could well be a Friday.
The South African court clarifies that reasonable accommodation is a part of affirmative action and failing to take step to do the same would mean a violation of equality laws (Kwa Zulu Natal v Pillay, 2007, p. 37). The normative protocols it uncovers also includes to a finding that the case for discipline, unity, and uniformity can be overstated, and that uniformity does not imply sameness (Kwa Zulu Natal v Pillay, 2007, p. 50). A nose-ring, as part of a school uniform, was not shown to have a detrimental impact on student discipline, given the same, it could not be said that reasonable accommodation of the same imposed an unreasonable burden on the school.
In the next section we shall see how the Karnataka High Court and the Indian Supreme (one judge in a bench of two) seem to be operating with an idea of equality which is painfully unaware of Indian social reality. In attempting to rationalise the state’s majoritarian notions of uniformity, secularism, discipline and unity, the courts fail to take into account any of the principles that have been so effectively used by the South African court to strike a balance between the needs of the state and the dignity of the individual.
5.2. Hijab in the government order in Karnataka: Summarising the judgments and providing social context
The southern Indian province of Karnataka is the only one in the southern part of the country where the Hindu nationalist Bharatiya Janata Party (BJP) has won state elections. The BJP has been traditionally a based in what is colloquially referred to as the Hindi-heartland i.e a belt in north India consisting Uttar Pradesh, Bihar, Madhya Pradesh, Rajasthan, Chhattisgarh, Jhkarkhand, Himachal Pradesh, Haryana, Uttarakhand, and Delhi, which represent 45% of India’s 543 parliamentary seats (Jaffrelot, Reference Jaffrelot2021, p. 4). However, in the years since 2014, when it won the first federal election on its own, it has been able to build a footprint in other parts including in the oft neglected north-eastern part of India where it currently controls all eight state governments either directly or through coalitions. But, with the exception of Karnataka, southern Indian provinces continue to be a problem for the BJP’s electoral machinery (Shastri and Devi, Reference Shastri, Devi, Shastri, Kumar and Sisodia2022).
While communal politics has never been far from the surface in India’s democracy, things took a rather sharp turn with the introduction of the Karnataka government’s order on the 5th of February, 2022 regarding dress code for students of pre-university colleges in the state (between the ages of 16 and 18 commonly) and noting that wearing religious clothing was a violation of government rules and that previous court orders had made it clear that prohibition of headscarfs or a garment covering the head was not a violation of the right to religion (Kashyap, Reference Kashyap2022). This was in response to some colleges not allowing Muslim women students to come to class in hijabs as it was not a part of the uniform prescribed. As the row escalated, Hindu right wing groups started heckling women students wearing hijabs with slogans of ‘Jai Shri Ram’, a chant that has come to be associated with an aggressive Hindu nationalist political Hinduism called Hindutva (Jaffrelot, Reference Jaffrelot2007, pp. 16–22; Sreeja and Chaturvedi, Reference Sreeja and Chaturvedi2022). Eventually the matter ended up in court and the central questions asked were that of religion and freedom of speech and expression. As we have seen earlier, the individual’s right to religion is rather heavily circumscribed in the Indian constitution and depends on whether courts consider certain practices worthy of the essential practices protection or not. In the Karnataka High Court judgment, that protection was not accorded to the hijab, while in the Supreme Court appeal, one of the judges dismissed it. As noted earlier, there are numerous problems with a ‘secular clergy’ deciding on religious questions and it might be better if certain questions were asked from the perspective of speech and expression than religion as the former enjoys more robust protection. Let us then examine what both the courts had to say about identity and expression.
5.2.1. The court rejects essential practices
After dismissing the essential practices doctrine (discussed in detail in section 4), the other key question that the High Court in Karnataka had to resolve was with respect to the question of freedom of speech and expression; even if the right to wear a hijab was not protected under freedom of religion and conscience, could it be protected under article 19(1)(a) i.e freedom of speech and expression (Resham v Karnataka, 2022, p. 46)? The petitioners in Resham argued that, following on from the KS Puttaswamy case (privacy), the wearing of a hijab would come under right to choose one’s garb (Resham v Karnataka, 2022, p. 47). It seems that in Resham, the Karnataka High court, while seemingly deferent to the precedent set by the Supreme Court, neatly sidestepped the question by claiming that fundamental rights have to be read in the context of the circumstances that they are claimed in (Resham v Karnataka, 2022, p. 48). The court said that schools were ‘qualified public spaces’ which were established primarily for imparting education and that such spaces ‘by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum’ (Resham v Karnataka, 2022, p. 49). Thus, freedom of speech and expression downgrades to a derivative rather than substantive right in colleges and since the dress code is equally applicable to all students, there is no violation of the right to equality. The court’s choice of illustration is noteworthy because it hints at where this idea of decorum and discipline is coming out of. There is a hierarchy between the rights of a free citizen, a trial detenue and a convict; while that is true, one wonders if the court imagines adult students as trial detenues (or indeed convicts) for the time that they are in the college. On a similar note, they compare schools to other ‘qualified public spaces’ like courts, war rooms and defence camps (Resham v Karnataka, 2022, p. 51). They refuse to concede the hijab on the principle of reasonable accommodation because it would engender a sense of ‘social-separateness’ which militates against a secular and uniform society which is trying to inculcate and against the creation of a safe-space stripped bare of sectarianism (Resham v Karnataka, 2022, p. 52).
The matter was reagitated in front of a two-judge bench of the Supreme Court and both of them came to opposite views in the matter. Justice Hemant Gupta makes an extraordinary statement at the end of his opinion that permitting one religious community to wear their religious symbols would be the antithesis of secularism (Aishat Shifa v Karnataka, 2022, p. 114). In coming to this conclusion, he employs rhetoric which sets out terms like unity, secularism and accommodation, in explicit opposition to the cultural and religious rights of Muslim women. He asserts in the same breath that Indian secularism is something different from the western idea of complete separation of church and state while employing a very similar philosophy to claim that the secularism of an educational institution is hampered by the display of religiosity even when it does not hamper or hinder others (Aishat Shifa v State of Karnataka, 2022, p. 44). According to Justice Gupta, the mere presence of religious item of clothing on one’s person (even as all the other requirements of the dress code/uniform are satisfied), militates against the goals of secularism, fraternity and unity (Aishat Shifa v State of Karnataka, 2022, pp. 99–104). He asserts that to allow students to carry religious symbols to classrooms is to give a narrow meaning to fraternity as one which would permit differences in face of the overall goal of providing a homogenous education (Aishat Shifa v State of Karnataka, 2022, p. 103).
While he allows that the hijab may have a cultural rather than a religious meaning and hence the right be governed under the broader category of art. 19(1)(a), which speaks of free speech and expression, and which can only be restricted under the grounds mentioned in art. 19(2). Of all the grounds mentioned the only restriction that is applicable is that of public order and Justice Gupta uses it to brush away any objections about the policy by claiming that the restriction is in aid of uniformity which is one of the purposes of the 1983 Act under which the rules have been drafted (Aishat Shifa v State of Karnataka, 2022, p. 97). As far as the invasion of art.19(1)(a) is concerned, Justice Gupta also says that any interference with free speech and expression is incidental rather than direct especially given the fact that this restriction only operates for a few hours every day (Aishat Shifa v State of Karnataka, 2022, p. 94). What he seems to be suggesting is that it is incidental that one is asked to discard a part of one’s identity for a few hours a day! It is also to be noted that these few hours are not about entertainment or other trivial pursuit, it is about education in a public college. He further says that reasonable accommodation with the hijab would be unreasonable as such because it would mean preference to some over others and would be against the spirit of equality under art. 14 (Aishat Shifa v State of Karnataka, 2022, p. 111). It is to be noted of course that in Indian judicial discourse, equality has never meant formal equality only, and courts have often accommodated religious practices in school, including the right to not sing the national anthem (Bijoe Emmanuel v State of Kerala, 1987 ).
5.2.2. Contextualising the discussion in light of the discussion of property
As discussed above, the Pedersen-Austin combination allows us to look at the political and judicial discourse as one about property primarily. The related to object in this case i.e the resource is access to the college which is described as a public space. The normative protocols include definitions of words like unity, secularism, public, which, as we have seen above, take on definitions which are in line with majoritarian rhetoric. The function of terms such as equality, public, etc is to hide the discursive creation of meaning and see the arbitrary and contested as natural and unquestionable. In the judicial imagination as discussed above, there seems to be no space for non-physical understanding of public space. However, in an issue where the hijab multiple meanings even for the wearers, we can see how Austin’s idea that we do not need to enquire into the actual relationship between people and their possessions; instead, we focus on the capacity of property (and objects) for identity formation. A hijab may be worn for reasons of community compliance, cultural assertion, or religious strictures. If we take Austin into account, it should not matter. What matters is that the woman wearing a hijab in a public place feels more ‘herself’ and also, and this is important, gets to define who she is in spaces which ostensibly belong to all citizens equally.
In this formulation, there is no real competing interest against the hijab being worn, especially in a rather conservative country where the veil is known in some form to women of almost all religions. It is astonishing that in neither judgment could the judges find any harm caused by girls wearing the hijab other than to some vague and woolly ideas of discipline and unity. For a violation of fundamental rights, it seems a rather low threshold for the government to be declared not guilty. In all jurisdictions, including India, it is accepted that fundamental rights are to be restricted only under the conditions of proportionality and in the least restrictive manner possible (Modern Dental College vs State of Madhya Pradesh, 2016). In India, this has long been a tenet of constitutional interpretation. Thus, the state must have a rationale for restricting rights and the method adopted must be the least restrictive method available to the state; this of course means that there must be an attempt to reasonably accommodate rights even while restrictions are being imposed. What the Karnataka High Court has done is increase the transaction costs of those who are least likely to bear it well. While all societies are stratified, the level of inequality in Indian society is often staggering and the abject position of Muslim women with respect to education borne out by census data from 2011 (the last time such data was released) which shows that the percentage of Muslim women who are graduates and above is a shocking 2% (India Today Web Desk, 2016).
Of course, the argument might be that judicial process does not have the mandate to deal with socio-political issues. However, especially in case of the Indian judiciary, this argument cannot be made given the Supreme Court’s history of public interest litigation and its interference in governance issues of hues (Divan, Reference Divan, Chaudhry, Khosla and Mehta2016). Sometimes this has had detrimental effects on the marginalised and poor, as Bhuwania notes, PILs have been variously used for slum demolition, for taking over forest governance while ignoring the indigenous population and for shielding the powerful from criminal justice (Bhuwania, Reference Bhuwania2014; Bhuwania, Reference Bhuwania2016). The point is that the Court has never shied away from controversial socio-political issues, hence one could make a case for building judicial awareness of the constitutive nature of property rights with respect to public spaces like schools. Perhaps we should all heed John Hart Ely’s classic Democracy and Distrust where he lays out what the judiciary should primarily ensure; policing the process of representation, clearing the channels of political change and facilitating representation of minorities (1980). The overall conclusion he arrives at has to with ensuring participation rather than get into the merits of the political choice being made (Ely, Reference Ely1980). If that is indeed the primary job of the judiciary, sensitivity to property as a social construct has to be a fundamental building block of these decisions in the same way that property is the building block of social and political relationships.
This also comes at a politically fraught time in India with the political rhetoric taking a sharp Islamophobic turn in recent years and especially after the election of Hindu nationalist Bharatiya Janata Party (BJP) in 2014 and 2019 to the federal legislature. This has taken extreme forms like Muslims being blamed for corona-jihad i.e deliberately spreading the covid-19 virus among the populace (Jain, Reference Jain2020). While the pandemic was not the beginning of anti-Muslim hatred in modern India, it has probably given rise its most virulent form till date and it is constantly fed by a stream of vicious rhetoric from the mainstream news media (Halarnkar, Reference Halarnkar2020). Matters have devolved to an extent which has an effect on India’s diplomatic relationship with other Islamic nations due to comments from BJP spokespeople that were televised live (Sen, Reference Sen2022). To this mix, state governments have added laws to prevent so-called love-jihad i.e the dubious theory of conversion of Hindu women to Islam by Muslim men by making them fall in love with them (Acharya, Reference Acharya2022; Biswas, Reference Biswas2020; Frøystad, Reference Frøystad2021; Menon, Reference Menon2014; Nielsen and Nilsen, Reference Nielsen and Nilsen2021). This is nothing but yet another set of anti-conversion laws; the objective is to portray Hindu women as vessels of community honour and, through this, make Muslim men bear the consequences of a discriminatory investigative and policing process (Malji and Raza, Reference Malji and Raza2021; Jha, Prasad, and Mittal, Reference Jha, Prasad and Mittal2025, p. 54). Even more egregious is the relatively recent phenomenon of destroying homes of Muslims accused of any crimes under the pretext of ‘illegal construction, otherwise celebrated by the Hindu right as ‘bulldozer justice’ (Jamil, Reference Jamil2023; Behal, Reference Behal2024).
The judiciary’s suspicious attitude to the question of (adult) women converting to Islam is also a part of this milieu. In the now infamous Hadiya judgment, the Kerala High Court infantilised an adult woman, all the while claiming that her parents were her well-wishers; all this in the face of the fact that she had converted to Islam to marry Shafin Jahan (Philip, Reference Philip2018). With respect to the love jihad laws, the political rhetoric from the Chief Ministers and Governors of the state governments of Uttar Pradesh and Gujarat clearly show that the intended population group for these laws are Muslims (specifically Muslim men) (Express Web Desk, 2020; Times News Network, 2021). In certain parts, this had led to vigilante violence increasing as police support local groups targeting Muslims for specifically Islamic ‘crimes’ like love-jihad and cow slaughter (Jaffrelot, Reference Jaffrelot2020).
Specifically in Karnataka (the only state in south India which has a BJP government), the situation quickly escalated into a saffron scarves (the traditional colour of the Hindu right) vs hijab issue eventually resulting in heckling of Muslim girls, protests and counter-protests and polarisation along religious lines (Arya, Reference Arya2022). While the government maintained that this was religion-neutral, the mainstream media continued portray it as hijab vs saffron row (India Today, 2022). In fact, the religious aspect of the government order was evident from the fact that almost all mainstream media channels referred to it as the hijab ban row rather than a more neutral phrase like ‘dress code’ in pre-university colleges. While this is a demonstration of the media’s search for eyeballs, it is also indicative of how the matter was perceived (or pushed to be perceived) in the public sphere. We see that it is not simply a physical space called school that is in question here, it is a socially constructed arena where different groups of citizens interact and the hierarchies in that arena are decided by a combination of factors including, but not limited to, social and political power that people wield as a result of historical processes that may not be immediately apparent (Aloysius, Reference Aloysius1997). Historical disadvantages often align with current political tendencies to create a perfect storm of persecution which can be obfuscated by minimal adherence to legal neutrality.
It is a good demonstration of what Pedersen means when he says that property brings into focus a) a social group amongst whom the relations hold and are performed, b) some resource in question, and c) the normative protocols in play. The social group has various actors, including those who are clearly targeting both Muslim women and men for reasons which have nothing to do with emancipating women from patriarchal norms. The judiciary helps in the creation of a relational modality (normative protocol) which takes its meaning from majoritarian discourse related to terms like unity, secularism, discipline and, indeed, public. In that modality, Muslim women lose control of the resource that they are trying to exercise rights over i.e the physical space of the college and the consequent educational advantages that it might give them. In the absence of any compelling interest to stop them wearing headscarves, new forms of interest for those students not wearing a hijab, have to be created along with the (alleged) harms those wearing hijabs posit for the body politic. That is exactly where the judicial process can legitimise these new interests. It is immaterial whether these new interests have been articulated in the same language as the judiciary; as long as the consequence remains the exclusion of Muslim women from exercising their rights over these resources, the purpose is served.
In terms of Austin’s idea, it is property which is constitutive of the relations between individuals in a direct manner, and hence, constitutive of the self. The fact that Hindu men (and women) can raise threats outside the college with specific reference to the hijab proves the fact that they are asserting a claim over the space which denies the subjectivity of Muslim women who may see the hijab as a constitutive marker of their identity. If take the process of ‘commoning’ (and the idea of the commons) to be something that moves us toward a normative ideal where hierarchies come up to manage resources in a sustainable manner (rather than as an assertion of dominance), then these processes are a step away from them. We must be able to see past the façade of neutrality and understand it as a clear signal of dominance; in other words, the hierarchisation is deliberately malicious towards Muslims even as the court signals that such processes are being carried out on a level playing field.
6. Conclusion
While property rights and property theory often bring to mind material ideas about ownership of things, as we have seen, ownership can mean multiple things and that socially dominant groups can exercise an inordinate amount of influence over public life because of how they are able to exercise control over property labelled ‘public’. Labels tend to ‘freeze’ meanings of words and thus we tend to forget that they derive their meaning from social interactions between groups and also between the state and individuals. In forgetting the social content of property, the Karnataka High Court and Justice Gupta of the Supreme Court add to the long history judicial discourse which takes its meaning from Hindu nationalist impulses. The contentious history of how we occupy space in this country is forgotten the moment ‘public’ is equated with ‘neutral’. The word public cannot be ‘naturally’ equated to the word ‘neutral’ and in doing so, we supress the fact that dominant classes ‘occupy’ space in a manner which makes inequitable for those who have been traditionally marginalised.
The paper suggests that one way to do this is to untangle the skein of relationships that undergird our public spaces. Property theory, especially of the kind discussed in the paper, gives us an analytical method to unravel the hierarchies that have discursively constructed spaces like schools, parks, ponds, and eventually cities and villages. The model discussed allows us to look past labels and conceptualise a public school as a social group, with control over resources, and with normative protocols in place. It is this that allows us to look at the constituent elements of the discursive construction of physical spaces. The space does not ‘exist’ till it is brought into being in the process described above. This method also allows us to historicise both the physical space and the marginalities which result in different identities occupying the space inequitably. Some of the normative protocols can then be exposed as contingent and arbitrary. This then can lead us to a more self-aware creation of such spaces.
The only solution to the dilemma seems to be what has been called ‘commoning’ i.e to collectively self-constitute. Expressed politically, it would mean that everyone has a chance to participate in civic and political life in an equitable manner. For that constitutional courts must start understanding questions of public space as questions of history and sociology rather than mere technicalities. They must resist the urge to construct terms like secular, united, uniform, discipline, etc, in conformity with populist political narratives which intersect with dangerous religio-nationalist impulses. In other words, dominium and imperium are not separate but related doctrines, ‘dominion over things is also imperium over human beings’ (Cohen, Reference Cohen1927, p. 13).
By refusing to countenance Muslim women’s participation in public life in ways which suit them without giving any reason as to why that should not be allowed, Indian courts have abdicated their responsibility to fundamental rights. By its discussion on the question of the commons and the process of ‘commoning’ the paper seeks to point out a normative ideal to strive for. Hierarchies must be carefully analysed to see what administrative role they play in resource management and whether the coercive steps they take prevent any substantive harm. At the same time, through its discussion on judicial process the paper seeks to understand why the judiciary is unable to look past the façade of neutrality when it comes to the disproportionate impact of the hijab order on Muslim women.
