The hijab case and the essential practices doctrine

Syllabus: General Studies Paper 2

A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.

The Karnataka Hijab row:

• A dispute pertaining to school uniforms erupted in Karnataka, when some Muslim students of a college who wanted to wear hijab to classes were denied entry on the grounds that it was a violation of the college’s uniform policy.
• Several educational institutions Karnataka government’s compulsory uniform order and denied entry to Muslim girls wearing the hijab. This was challenged in the Karnataka High Court (HC).

Possible actions by the Bench

The Karnataka High Court made three primary findings in its judgment. 

• First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated. 
• Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here. 
• Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.

To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban. 

Law and Religion

• In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law.
• But, as transcripts from the hearings have shown us, every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice (ERP).

Essential religious practice (ERP) test is a doctrine evolved by the supreme court (SC) to protect only such religious practices under fundamental rights, which are essential and integral to religion. The doctrine of “essentiality” was invented by the SC in the Shirur Mutt case in 1954.

As a kind of inquiry

• The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly. 
• Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.

Judicial Verdict

• Indeed, it was in this vein that the Supreme Court, in the case concerning the Shirur Mutt (1954), held that to determine what constituted an ‘essential’ aspect of religion, the Court ought to look towards the religion concerned, and to what its adherents believed was demanded by their faith. 
• But since then, the Court has, with a view to determining the kinds of circumstances in which the state could legitimately intervene, transformed this doctrine into an altogether different form of inquiry.
• In a series of cases, the Court has assumed something akin to an ecclesiastical power and determined whether a practice which was religious in nature was also “essential” to that religion. 
• It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.

The essential practices test is not without alternatives. In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion. 

The anti-exclusion principal postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution.

But until such time as the essential practices doctrine is overruled by a Bench of more than seven judges, the Court is bound to apply its tenets. Perhaps that reassessment will happen when a nine-judge Bench constituted in the review petitions filed against the judgment in the Sabarimala case passes judgment. For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion