THE HINDU EDITORIAL- MARCH, 17, 2022
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Essentially
flawed Karnataka HC ruling on hijab fails to
recognize the need for reasonable accommodation The Karnataka High Court verdict
upholding the ban on the wearing of headscarves by students in educational
institutions is wrong on many levels. The manner in which it framed the
questions arising from the controversy over Muslim girl students wearing the
hijab undermines constitutional principles. The court failed to examine
whether the wearing of the hijab, in addition to the prescribed uniform, but
without any variation in colour, was a ground to refuse entry into a school
or college. The Bench examined verses from the Koran to disagree with the
students’ claim that wearing the hijab was an essential practice in Islam and
that, therefore, it was entitled to constitutional protection as part of
religious freedom under Article 25. But is that the real issue? The court
rejected the argument in favour of ‘reasonable accommodation’, by which a
pluralist society may allow the classroom to reflect social diversity without
undermining the sense of equality among students. Apparel norms may be needed
in “qualified public spaces” such as schools. But there is no reason to not
accommodate the choice of an additional piece of clothing that does not
interfere with the prescribed uniform.
In rejecting the argument based on ‘freedom of conscience’, the court
cited the absence of elaboration in the pleadings. The judgment’s emphasis on
the uniform as an inviolable symbol of equality and homogeneity seems to have
overwhelmed any contention in favour of any sort of accommodation. Another
question to raise is whether it was at all necessary to invoke the ‘essential
practice’ test in this case. If something is egregiously religious, it is
more likely to be kept out of the campus, if uniformity and eliminating any
‘sense of separateness’ are the hallowed goals. The matter could have been
disposed of without entering the theological domain. The ‘essential religious
practice’ test itself is a pointless exercise, as the Supreme Court has
established a nearly unattainable standard to determine it. Something is an
essential practice only if its absence or removal has the effect of
destroying the religion itself. Save for a few fundamentals, no religious
practice will actually survive such scrutiny. It would be far better if a
claim for Article 25 protection is tested against constitutional values such
as equality, dignity and privacy, subject, of course, to health and public
order. In any case, the ‘essentiality’ test should be jettisoned forever if
only because it theoretically allows some defining theological concepts to
override all else. What is abhorrent to constitutional principles will remain
so irrespective of what is considered essential to a religion. Freedom of
religion is important because freedoms are important, and not because
religions are important. A new social core A clear base of ideologically
affiliated voters helped the BJP thwart anti-incumbency effects As the dust settles after the State Assembly
elections, in Goa, Manipur, Punjab, Uttarakhand and Uttar Pradesh, it is
unmistakable that the ruling Bharatiya Janata Party has a firm sway now over
politics in the country. A CSDS-Lokniti Survey in four States (not held in
Manipur) shows a clear picture. Even when the net satisfaction levels of
BJP-led State governments were either low (U.P., Uttarakhand) or negative
(meaning more respondents were dissatisfied than satisfied, as in Goa), the
party managed to win the elections handily. There are clear reasons. The BJP
significantly consolidated sections of the electorate to build a formidable
and durable coalition of base voters. Data from the Loknity survey show that
across four States, while the Opposition parties garnered votes largely among
the religious minorities, a substantial section among Dalits, and a fraction
among the Other Backward Classes, the BJP’s votes were across the upper
castes, politically non-dominant OBCs and a growing section of Dalits This
solidification of the BJP’s voter base, in the Hindi heartland in particular,
is in line with what political scientists call the new dominant party system
akin to the “Congress system” of the 1950s and 1960s, albeit with a social
core bound by a different binding factor – Hindutva. This social core has
ensured that the dissatisfaction with the BJP governments did not translate
directly into votes against the regimes and is expressed in how voters
identified themselves with the party and its leadership, represented in the
Union government.
The net satisfaction levels with the Union government were higher by
17 points in U.P., 46 points in Uttarakhand, 18 in Goa, and eight in Punjab,
where the mood was against both the Union and the State regimes. The battered
economy, the public health crisis during the pandemic, the rising spectre of
joblessness, the farm laws and other agrarian concerns specifically in rural
areas, did weigh on voters’ minds. While welfare measures such as cash
transfers to farmers and the ration scheme helped sway some of the poorest in
support of the regimes, the solidified support for the BJP among the sections
mentioned above reinforces the idea of an expanded base that has an
ideological affinity towards the party. There were regional factors as well –
the presence of a substantial vote-gathering party in an otherwise declining
BSP in U.P., the rise of an alternative in AAP in Punjab, and the
emasculation of the Congress. For the Opposition, the takeaways are stark. It
is necessary for them to take on the BJP by constructing a clear message
which declares that development and economic progress are best possible
through social justice and amity among communities. But electoral success is
not sufficiently guaranteed unless the message is delivered through a
dedicated organization that can at least contest the formidable apparatus of
the Sangh. |
Treating values
of individual freedom as trifles The hijab judgment has struck a blow
against each of these principles – liberty, equality, and fraternity SUHRITH
PARTHASARATHY Our social contract is built on an
edifice that grants preeminence to individual choice. The Constitution’s
Preamble recognizes this when it places an onus on the state to secure to all
citizens, among other things, liberty, equality and fraternity. The last of
those values is fortified by a further commitment. The state, the Preamble
says, with guarantee “fraternity assuring the dignity of the individual and
the unity and integrity of the Nation”.
The chief architect of the Constitution, B.R. Ambedkar, saw the
standards contained in these words as forming a triumvirate of values.
Liberty, equality, and fraternity, he said, were principles of life, “a union
of trinity”. Divorce one from the other and the very purpose of democracy
will be defeated. The Constituent Assembly believed that it was only deep
commitments to these principles that can help usher in a social revolution in
the country. The structures of India’s democracy – the various minutiae of
administration that the Constitution spells out – were each built on the idea
that securing individual happiness required the state to foreground these
standards. Enforcing popular
morality In that picture, independent courts,
the framers thought, would stand as a guardrail against any effort to
undermine social democracy. But far from acting as “sentinels on the qui
vive” – as a former Chief Justice of India once described the Supreme Court
of India’s role – the judiciary has time and again enforced the popular
morality of the day, treating values of individual freedom as dispensable
trifles. Tuesday’s judgment by the Karnataka High Court, in Resham vs State
of Karnataka, is the newest addition to this litany. It upholds a ban imposed
on the use of hijabs by students in classrooms across the State (Karnataka),
and, in doing so, strikes a blow against each of the principles contained in
B.R. Ambedkar’s union of trinity. Court’s use of
precedent The judgment is premised on three
broad conclusions. First, the court holds that the wearing of a hijab is not
essential to the practice of Islam, and, therefore, the petitioners’ right to
freedom of religion is not impinged; second, it finds that there is no
substantive right to free expression and privacy that can be claimed within
the confines of a classroom; and, third, according to it, since the
Government’s order does not by itself ban the use of a hijab and since it is
otherwise neutral, there is no discrimination aimed at Muslim women students.
These conclusions suffer from one flaw or another. In rejecting the
plea that the wearing of a hijab is a legitimate exercise of religious
freedom, the court refers to a plethora of precedent that points to only
“essential religious practices” enjoying constitutional protection. According
to the court, the petitioners failed to produce any evidence to show that the
use of a hijab was essential to Islam. Yet, despite this, it proceeds to
perform a theological study – which one would think it is ill-equipped to do,
especially without conducting a full-fledged trial – and concludes that Islam
does not make the wearing of a hijab mandatory.
This is an extraordinary finding for a secular court to make. No
doubt, similar leaps of judgment have been made by the judiciary in the past
– for example, in 2004, the Supreme Court concluded that the performance of
the Tandava dance was not indispensable to the Ananda Margis faith, even
though the followers of that religion believed it to be so. But if the
Karnataka High Court’s inference is partly based on flawed doctrine, it must
take the blame for posing to itself the question of whether at all a hijab
was essential to religion. Free choice and
State action Unlike many of the cases in which the
doctrine of essential practice is invoked, this was not a case where individual
freedom was at odds with group rights. On the contrary, this was a case where
exercise of free choice was curtailed by state action. The petitioners had
contended that they wore the hijab as a matter of conscience. Article 25 of
the Constitution guarantees to all persons not only an equal right to
profess, practice and propagate religion but also a “freedom of conscience.”
Counsel pointed to the Supreme Court’s judgment in Bijoe Emmanuel (1986),
where the rights of Jehovah’s Witnesses who refused to partake in the singing
of the national anthem was protected. There, the Court ruled that so long as
students conscientiously believed that they must not participate in the
recital, their rights could be abridged only in the interests of public
order, morality or health.
In Resham, the Karnataka High Court draws a facile distinction from
Bijoe Emmanuel. The judgment holds that there is no evidence in this case
that the petitioners conscientiously believed in the necessity of the hijab –
this is anomalous give that once a pleading is made on affidavit, the onus
ought to have been on the state to establish that the petitioners were not,
in fact, wearing the hijab out of a sense of conscience.
The court then proceeds to make an even more astonishing assertion:
all cases where a right of conscience is pleaded, according to it, are ipso
facto cases of religious freedom, and, therefore, ought to be subject to the
test of essentiality. This conclusion ignores the fact that Bijoe Emmanuel
was explicitly decided based on conscience and that conscience need have no
direct relation to religious faith. It is possible, for example that the
hijab might not be essential to Islam, and yet that Muslim women choose to
wear it as an exercise of their own individual beliefs. On the classroom
space That the court was simply unprepared
to grapple with this difference is even more evident in its rejection of
claims based on free expression. The petitioners argued that in choosing to
wear the hijab, they were merely exercising a form of identity relatable to
their rights to freedom of speech and privacy. The court counters this by
holding that classrooms are “qualified public spaces”, where individual
rights cannot be asserted to “the detriment” of “general discipline and
decorum”. In spaces such as these – and the court draws a remarkable analogy
with prisons – substantive rights, the judgment holds, metamorphose into
derivative rights. It is unclear what the ruling means by all this, except
that these apparently derivative rights are incapable of being invoked in
protected environments.
In all of this, the court ignores the classic test for determining
when and how the right to free expression can be legitimately limited: that
is, the test of proportionality. There is, according to the judgment, no need
to dwell on legal doctrine, because “the petitions we are treating do not
involve the right to freedom of speech & expression or right to privacy,
to such an extent as to warrant the employment of these tests for evaluation
of argued restrictions, in the form of schools dress code”. In this manner,
the court also brushes aside requests for “reasonable accommodation”. Many
accommodations Kendriya Vidyalayas, for example, as
the petitioners claimed, allow for hijabs within the contours of the prescribed
uniforms. But the judgment holds that to make such an accommodation would
defeat the very purpose of uniforms. This finding fails to recognize that
even within the existing dress code, many accommodations are, in fact, made.
For instance, religious and cultural marks on the forehead and accessories on
other parts of the body are not disallowed. If the purpose of the uniform is
to allow for no differences, surely every exhibition of faith in the
classroom must be stamped out. Therefore, we can only see the failure to
provide for a reasonable accommodation for the hijab as deliberate
discrimination wrought on Muslim women.
The judgment makes repeated references to constitutional secularism.
But secularism, properly understood, demands precisely what the petitioners
here were pleading for: the rights to agency, choice, and equal treatment,
and, more than anything else, a guarantee of fraternity undergirded, as the
Preamble says, with dignity to every individual. Clean energy must
use the battery of a circular economy An efficient waste management
ecosystem is crucial to manage the huge waste generated in India’s new energy
push AKANKSHA TYAGI In the Budget speech this year, the
Finance Minister, Nirmala Sitharaman, emphasized the role of cleaner technologies
such as solar energy and batteries in India’s future economic growth. In
addition, she mentioned the importance of transitioning to a circular economy
from the existing linear one. Market estimates The call for a creation of a circular
economy is significant since an efficient wast management ecosystem would be
necessary to manage the enormous waste generated by renewable energy projects
in the coming decades. According to the International Renewable Energy Agency
(IRENA) – an intergovernmental organization that supports countries in their
transition to a sustainable energy future – the cumulative waste generated by
India’s total installed solar capacity could be as high as 325 kilotonnes by
2030. A consulting firm, JMK Research and Analytics, estimates that the
market for battery recycling will be around 23 Gigawatt hours (GWh) by 2030.
The prevalence of a circular economy could also partially insulate these
industries from potential supply chain shocks triggered by extraneous
developments.
A study by the Council on Energy, Environment and Water (CEEW) has
estimated that India would need over 5,630 GW of solar and 1,792 GW of wind
energy to achieve its net-zero targets in the year 2070. A robust renewable
waste management and recycling ecosystem could help people and India reduce
environmental harm, provide energy security, and also create new jobs. So,
here are six steps to nurture a circular economy in the Indian renewable
energy industry. A clear framework First, policymakers should revise existing
electronic waste management rules to bring various clean energy components
under their ambit. These rules are based on extended producer responsibility
that identifies component producers as responsible entities to manage their
waste products. The Indian renewable energy industry has a complex structure
that comprises various manufacturers, assemblers, importers and distributors.
Hence, the revised regulations should clearly define the responsibilities of
various stakeholders involved in the renewable energy value chain and provide
annual targets for the collection and the recycling of waste.
Second, dumping and burning of different components should be banned.
Currently, in the absence of any regulation, land filling is the cheapest and
most common practice to manage renewable energy waste. However, it is not
environmentally sustainable All clean energy technologies thrive on metals
and non-metals with different levels of toxicity. If the waste equipment is
dumped in the open, then these elements could leach into the environment and
enter the food chain. Studies show that the leaching of heavy metals such as
lead and cadmium from solar photovoltaic modules could increase by 90% and
40%, respectively, under acidic conditions. Further, burning the polymeric
encapsulant layer in solar photovoltaic modules releases toxic gases such as Sulphur dioxide and some volatile organic compounds. R&D is
essential Third, the renewable energy industry
should invest in the research and development of recycling technologies.
Recycling is a multistep process that includes dismantling, disassembly, and
extraction. Dismantling is largely a manual process that is sometimes
automated. Disassembly can be done mechanically, thermally or chemically.
Besides these traditional methods, investments in research and development
could help discover new ways of recycling that result in higher efficiency
and a less environmentally damaging footprint. Industries should also explore
technology transfers with global recycling firms for establishing domestic
waste recycling facilities. For instance, efficient metal recovery from waste
provides a resilient supply of raw material for the renewable energy
manufacturing industry. Focus on finance, quality Fourth, there has to be a creation of innovative
financing routes for waste management. Access to finance is a major roadblock
for players in the recycling ecosystem. The central government should nudge
public and private sector banks to charge lower interest rates on loans
disbursed for setting up renewable energy waste recycling facilities and
issuing performance-based green certificates to recyclers that could be
traded to raise money for waste management would also help ease the financial
burden. A market for recycled materials could also be created through
mandatory procurement by the renewable energy and other relevant
manufacturing industries.
Fifth, there needs to be an improvement in product design and quality.
Renewable energy component manufacturers should find substitutes for toxic
metals such as cadmium and leads used in their products and simplify product
designs to reduce recycling steps. Such improvements in process efficiencies
could go a long way in curbing waste creation at the source and its
subsequent impact on the environment.
Six, the Union and State governments should set stringent quality
control standards for components used in their tenders. This will prevent
premature end-of-life of components, and consequent waste creation. Substandard
components generate considerable waste due to early life damage that is often
irreplaceable, and the components often have to be discarded. Such quality
enforcement could also position India’s renewable energy industry as a global
supplier of quality products. Largely in the
informal sector The renewable energy recycling
ecosystem has a complex structure where there are multiple actors involved,
but it would be an integral part of our journey toward a sustainable future.
Beyond sustainability, it would also offer quality employment opportunities
for the future generations as new jobs would be created across the entire
value chain of waste management and recycling. Further, workers in the
informal sector could access various socio-economic benefits and look forward
to an improved quality of life. We ought to remember that the majority of
India’s recycling sector is informal and workers have to work in unsafe
environments without standardized wages. Therefore, developing an efficient
renewable energy waste management and circular ecosystem is imperative rather
than a choice. We can ignore this, but only at our own peril. |
