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Hijab Case and Doctrine of Essential Practices

Context

A two-judge Bench of the Supreme Court of India is currently hearing arguments on the correctness of a Karnataka High Court judgement that upheld the ban on students wearing the hijab in Karnataka. This is concerning because it requires judges to engage in not only legal analysis but also theological study, which a legal education does not prepare one for.

Relevance

GS Paper – 1, GS Paper – 2: Fundamental Rights, Judiciary, Government Policies & Interventions, Women’s Issues

Mains Question

Discuss the significance of religious freedom in the Indian Constitution. What does the essential religious practises test mean? (250 Words)


Background

Over the last few days, counsel for the petitioners has addressed a variety of issues, ranging from student rights to freedom of expression, conscience, and religion to the impact of the ban on Muslim women’s right to education.

Concerning the doctrine of Essential Practice

  • Evolution: The essential practises doctrine arose from a speech delivered by B.R. Ambedkar in the Constituent Assembly.
    • He emphasised the importance of limiting the definition of religion so that it does not extend beyond beliefs and rituals associated with essentially religious ceremonies.

Views in Favor of the Ban

  • The Supreme Court stated in the case of Hindu Religious Endowment Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shishur Mutt (1954) that the term “religion” will cover all rituals and practises integral to a religion. It also stated that the “essentiality test” will determine the definition of core religious practises protected by religious freedom. The essentiality test was repeatedly applied by the Court.
    • The Supreme Court ruled in 2004 that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets because it was not an essential religious practise of the sect.
    • While these issues are generally understood to be community-based, the court has applied the test to individual freedoms as well. In 2016, for example, the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for wearing a beard.
    • The Armed Forces Regulations, 1964, prohibit Armed Forces personnel from growing hair, except for “personnel whose religion prohibits cutting of hair or shaving of face.” The court basically ruled that having a beard was not a necessary part of Islamic practises.

Karnataka HC’s primary findings

  • Hijab is not required for Islamic practise: First, it held that wearing a hijab is not required for Islamic practise. As a result, the right to religious freedom was not violated. The order takes refuge in cases decided by various High Courts to hold that prohibiting the wearing of a headscarf does not violate fundamental rights, particularly freedom of religion.
    • In Fathima Tasneem vs State of Kerala 2018, a different HC Bench ruled that collective rights of an institution would take precedence over individual rights of the petitioner.
    • In Fathema Hussain Sayed v Bharat Education Society 2003, the Bombay High Court rejected the argument that wearing a headscarf is an essential religious practise that must be protected under the Constitution. The High Court cited relevant Quranic verses and concluded that the book did not mandate the wearing of a headscarf in front of other women.
  • No substantive right: Second, it ruled that there is no substantive right to free expression or privacy inside a classroom, and thus these rights were not at issue here.
  • Indistinguishable legislation: Third, it held that the ban did not directly result from the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and thus the law did not discriminate against Muslim students, either directly or indirectly.

Possible actions by the Supreme Court

  • The Supreme Court does not have to answer all of the questions posed to it in order to determine the correctness of this verdict. A reversal of any of the three High Court findings listed above should result in the ban being lifted.
  • Liberal viewpoint: If the petitioners can establish that the law’s seemingly neutral language does not nullify the limits of most forms of expression against the singling out of the hijab, and that the ban discriminates against Muslim women, the SC Bench must reverse the High Court’s judgement.
  • State accountability: Similarly, if the petitioners can demonstrate that nothing significant indicates that there is no right to free expression within the confines of an educational institution, the burden shifts to the State to demonstrate that the ban is proportionate and legitimate.
    • The High Court has never conducted this analysis because it believes that classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum.”
  • Switch discourse: The Supreme Court may also disregard the question of whether the ban violates the right to religious freedom if it concludes the following:
    • The Karnataka High Court made an error in ruling against the petitioners.
    • The petitioners’ arguments have significant merit.
  • The Supreme Court should be able to resolve these issues using established constitutional law canons. However, an examination of the law as it currently stands necessitates a study of scriptures and conventions, followed by a determination of how essential the practise is to faith

The consequences

  • The incorporation of the Essential Practices Test into the Court’s jurisprudence accomplished at least two things:
  • Limit guard: For starters, it has enabled the Court to limit the scope of safeguards available to religious customs.
  • Revoked law: Second, it has ruled that legislation that would otherwise advance the cause of social justice cannot, under any circumstances, infringe on matters essential to religious practise.

An Anti-Exclusion Principle

  • In the case of the Sabarimala temple entry ban, Justice D.Y. Chandrachud proposed an alternative to the essential practises test, dubbed “A Principle of anti-exclusion.”
  • About the doctrine: Applying “A Principle of Anti-Exclusion” would require the Court to assume that a practise asserted by a religious group is, in fact, essential to its adherents.
    • However, regardless of such justification, the Constitution will not protect the practise if it excludes people based on caste, gender, or other discriminatory criteria.
    • At the same time, the anti-exclusion principle holds that “where a religious practise causes the exclusion of individuals in a way that impairs their dignity or impedes their access to basic goods, religious freedom must yield to the overarching values of a liberal constitution.”
  • Justification: As Justice Chandrachud put it, “the anti-exclusion principle recognises a religion’s right to determine its own religious tenets and doctrines.”

Conclusion

  • The Court is bound to apply its tenets until the essential practises doctrine is overruled by a Bench of more than seven judges. The reassessment could occur if a nine-judge Bench formed in the review petitions filed against the Sabarimala case issues a decision.
  • For the time being, any Court hearing a case involving a religious issue must act not only as a legal expert but also as a religious expert.

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September 2022
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