Accommodating the Hijab with Uniforms: Through the Lens of Justice as Minimising Domination

Authored by Adil Ameen, an LLM student at NALSAR University of Law, Hyderabad, & Former Senior Associate Editor at The Society For Constitutional Law Discussion

Representational Image | Source: India Today

Introduction

In a recent pronouncement, the Allahabad High Court found that wearing the Hijab is not an essential part of Islam and, accordingly, dismissed the claim of female students seeking permission to wear the Hijab with their school uniform. A similar issue arising from Karnataka in 2022 is still pending consideration by a larger bench of the Supreme Court (SC), following a split judgment by a two-judge bench in Aisha Shifa v. Union of India, where Hemant J. upheld the government order banning all religious symbols, while Dhulia J. declared such an order unconstitutional.

While there has been extensive academic discussion and criticism surrounding the Essential Religious Practices (ERP) test as an effective method for evaluating religious practices, and the test is currently under consideration by the Supreme Court in the Sabarimala review case, the normative basis for accommodating cultural and religious practices remains imperative. Theories of freedom as non-domination and justice as minimising domination, particularly Philip Pettit and Frank Lovett’s account of justice as minimising domination (JMD), provide a useful framework for examining the issue of the Hijab.

This work, through Lovett’s JMD framework, seeks to analyse whether the non-accommodation of the Hijab actually reduces domination. This question becomes particularly relevant when examined in the socio-economic context of girls’ education in India.

Republican Theory of Multiculturalism: Freedom as Non-Domination

Frank Lovett, basing upon Philip Pettit's republican theory, conceptualises multiculturalism through the framework of freedom as non-domination. Multiculturalism as an idea explains how different cultural and religious groups can be accommodated in a society. The four conditions below operationalise Pettit's conception of domination, which consists of the capacity to interfere arbitrarily in choices that another person is in a position to make: 

1. a dependency relation exists between two parties;

2. one party (the dominating party) has the capacity to impose costs on the other;

3. that capacity is not effectively regulated by rules, procedures, or norms that the dependent party can invoke; and

4. as a consequence, the dependent party is vulnerable to having their choices arbitrarily interfered with, regardless of whether interference actually occurs.[i]

In his conception of Justice As Minimising Domination (JMD), Lovett on line of Mill, emphasised that tolerating diversity allows “experiments in living” which become beneficial for society, producing knowledge, creativity, welfare, and individual fulfilment.[ii] However, rejecting accommodation of practices that contribute to domination made minimising domination the priority rather than promoting diversity. Further, he does not make it an absolute rule; instead, he argues that a small amount of non-domination could be exchanged for a much larger benefit in diversity. He identified three kinds of practice and responses of JMD in dealing with them:

Sl. No.	Kinds of Practice	Feature of the Practice	Response of JMD
1.	Independent of domination	Does not involve domination	Tolerate; sometimes accommodate
2.	Involves domination	Directly or indirectly creates domination	Eliminate/prohibit where feasible
3.	By-product of domination	Does not itself involve domination but may disappear when domination is reduced	May tolerate; cannot preserve domination to sustain it

Further, he emphasised that the intrinsic value of diversity, howsoever attractive, cannot justify accommodation of harmful practices or dominating practices. Instead, he focuses on the instrumental value of diversity that produces other benefits such as personal freedom, or it may also contribute to ethical knowledge as a stronger argument for toleration of social practice. Discussing the aspect of people's "choice" about a social practice, Lovett points toward the ‘composition fallacy’ [iii], which means simply belonging to the same culture does not mean that participation in all cultural practices is voluntary.

Pointing toward the distinction between subjective and objective value associated with the social practice acknowledges that A practice can be subjectively valuable to its participants without being objectively morally valuable. Subjective value does not automatically justify accommodation.[iv] In other words, practices that directly involve domination should NOT be accommodated merely because their participants value them.

Moreover, it is not always necessary to attack dominating practice directly; instead, making group exit easier or promoting democracy within the group, but these are not really accommodation. Further, Lovett warns against any such state intervention in cultural and religious practice that is not causing dominance, as it may lead to alienation of the community and strengthen adherence to stringent practices. In his view, exerting unnecessary external force upon a group would lead to a regressive response, as the group may react to external suppression by attaching themselves more strongly to their internal practices, including those involving domination.[v] In such a scenario, Lovett argues it might actually be easier to eliminate those dominating practices if we reduce the external burden on the group's other practices. Such an approach satisfies JMD's own goal of reducing domination overall; however, it might lead to toleration of dominating practice. Therefor Scenario where accommodating the practice is consistent with promoting freedom from domination should be allowed.[vi]

He further lays down grounds for toleration or accommodation. Firstly, Internal grounds which arise from within the objective of reducing domination itself.[vii] It means accommodating a practice that appears to involve domination in one place could actually prevent greater domination somewhere else. In such a scenario, JMD would make an exception to such a practice. Secondly, External grounds that come from outside concerns of justice which produce an enormous benefit in human welfare, cultural diversity, autonomy, or some other value.[viii] Accordingly, these non-justice benefits may also require sufficient consideration, and they can outweigh the goal of minimising domination.

His key argument is that Accommodation is justified because of its effect on domination, not because a particular minority culture deserves special protection; rather, the assessment also extends to majority practices. Through these considration Lovet took a holistic analysis of the human costs associated with eliminating practices.

Hence, in Lovett's formulation, accommodating a social practice is required when people are vulnerable to domination because they cannot easily abandon their existing social practices, and accommodation helps them overcome that vulnerability. Accommodation is required only when failing to accommodate the practice would create new opportunities for domination. Lovett then gives a qualification that there is no single accommodation that will work in every situation; rather, it would require empirical study of the scenario.[ix]

Therefore, Lovett's framework can be formulated to answer these questions to decide whether to accommodate any practice: Does the practice itself create domination? Does prohibiting the practice actually reduce domination? Does accommodation of the practice reduce domination? Does state intervention create a new form of domination?

Hijab Ban in School Through Lovett's Framework

In the present case, where the issue before the court was whether the prohibition of the hijab in school uniform reduces or instead intensifies domination, particularly in relation to Muslim women's educational access, agency, and constitutional equality, Lovett's analysis becomes relevant.

Firstly, on the question of the practice of Hijab creating domination, one line of thought, based on liberal feminist critiques of religious patriarchy, could be that the norm of mandatory hijab, which would be enforced by family or community authority, may amount to domination in Lovett's sense. Since a woman must wear the hijab or face social, familial or even physical costs from her father, brother, community elder, etc., and she has no mechanism to argue against it but must simply obey, then she is a victim of domination. The practice, on this understanding, meets the four Pettit conditions for domination with respect to the individual girl, if it is coercively imposed on her and not a freely chosen one.

The alternative argument line, however, maintained that this analysis falsely assumes that there is no consent as a starting point. Many of the petitioners in the litigation in Karnataka expressed an affirmative religious and constitutional identity as hijabs and not an external burden. Where a student is wearing the hijab as a personal expression of faith, the pertinent relation is between her and her own system of beliefs, not a domination relation to another external party. Therefore, the "dependency on another's arbitrary will" condition is simply not present. This is a social relation which must be traced, not inferred, from the mere existence of a religious dress norm. In the present fact, both explanations appear to work: for some girls, including the petitioner, observing hijab might be a choice, while for many others it would have been dominance.

Secondly, A prohibition framed as "liberating" girls from patriarchal control faces an internal difficulty under Lovett's own test as banning the hijab in classrooms does not remove the girl from dependency on the family or community authority that under the domination compelled her to wear it in the first place, but only puts her into a second dependency relation, that of the state and school administration, who now have uncontested power to determine whether she may attend class at all. A ban leaves her vulnerable, not eliminated. It throws her into the folds of the many who can arbitrarily deny her access to a public good such as education based on her appearance. Worse, for the many students who wear hijab autonomously, prohibition does not "remove" domination; rather, it simply adds it where it did not exist, because there is really no rule-based process of exemption. It is only the state authorities' arbitrary decision, and students wearing hijabs have to leave the school.  Therefore, the policy that is justified as anti-domination itself fails the test, as it substitutes one uncontrolled power, family or community, for another, the state, without a choice to contest the issue.

Thirdly, Accommodation of allowing hijab-wearing students into classrooms would lead these girls to continue quality education, which in turn helps them to reduce domination caused by society, community and family through gaining the power to question any such arbitrary dominating practice. Such accommodation also directly targets the arbitrary gatekeeping power of school administrators over a student's access to education based on attire. It restores rule-governed, non-conditional access to a public good regardless of religious dress, which is precisely what non-domination requires: predictable, contestable, non-arbitrary treatment.

However, the mere provision of accommodation is not enough to solve the issue of domination within the group as set out in the "minorities within minorities" critique. If a woman's hijab is actually forced upon her by family or community members, the state's response of accommodation does not stop that private domination, and may even reinforce it because of the lack of any state authority to regulate or even monitor that community power. A truly non-dominating framework, on Lovett's reasoning, would require both the abolition of state-imposed conditions attached to educational accommodation and independent, rules-based systems which ensure viable exit options, counselling, and complaint redressal that would allow an individual girl to challenge coercion in her family or community, but not through the imposition of state rules. In other words, merely accommodating the practice is not enough in Lovett's version, but there needs to be removal of private domination through separate mechanisms. Therefore, accommodation of the practice helps in reducing domination through empowerment of girls, removal of condition-based entry with unconditional entry into educational institutions, and creating alternative mechanisms of dealing with domination in the private sphere.

Furthermore, in the social condition of India which J. Dhulia also considers that girls' education is still filled with many roadblocks owing to adherence to patriarchal and regressive social ideas, coupled with economic pressure. Additionally, economic pressure faced by the girl child in education cannot be ignored. Keeping them out of educational institutions by policy of banning religious symbols in turn reinforces the claim of family, religious and group conservatism through strong attachment to regressive practice, as noted by Lovett with respect to the response of group owing to external pressure. On Lovett's terms, this is domination twice over: first by an unaccountable eligibility gate, and second by the vulnerability the ban creates to pre-existing domestic domination once the neutral, protective space of the school is withdrawn.

Fourthly, state intervention may itself inflict a new form of domination where it reverses the conditions required for freedom as non-domination. If a regulatory measure imposes arbitrary constraints, disproportionately burdens a vulnerable minority among minorities, diminishes individual agency, and undermines equal access to public goods such as education, it fails to secure freedom as non-domination. The “neutral” school Uniform Policy has turned out to be a powerful mechanism of exclusion, especially as it did not accommodate the hijab in the prescribed uniform and caused girls observing Hijab to either leave education or compromise the standard of education through alternative means of education. Therefore, pushing hijab-observant girls out of school altogether, in reality, is handing effective domination not to the state's stated secular rationale but to whichever social forces, such as family conservatism, are waiting to reabsorb her back into dominating social space once she is denied classroom access. Therefore, state intervention in such practice aims to reduce domination, in turn increasing domination through new means.

Conclusion

Analysing through the lens of republican theory of multiculturalism, the observance of Hijab in schools for girl children ought to have been accommodated as a means to reduce domination. This accommodation actually allows reducing domination, as it allows girls to continue accessing education and, in turn, their empowerment and further helps in reducing their dependency upon family, community, and society, which is consistent with the objective of JMD. However, banning the practice of hijab would keep girls out of schools, which would either result in leaving education or compromise the quality of education and would reinforce the societal and conservative practice that would be regressive for the girls' education and their emancipation. Lovett explains that, in such a scenario, it might actually be easier to eliminate those dominating practices if we reduce the external burden on the group's other practices. Hence, a policy of a ban is in itself against the idea of reducing domination.

Endnotes

[i] Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press 1997) 52.

[ii] Frank Lovett, A General Theory of Domination and Justice (Oxford University Press 2012) 204.

[iii] Frank Lovett, ‘Cultural Accommodation and Domination’ (2010) 38 Political Theory 243, 252. 

[iv] Ibid at 256.

[v] Ibid at 258.

[vi] Ibid at 261.

[vii] Frank Lovett, A General Theory of Domination and Justice  (Oxford University Press, 2012)p. 206.

[viii] Ibid at 207.

[ix] Lovett (n 3) 261.