Religion is incapable of definition but the Indian courts have endeavoured to define what constitutes the essential practices in a religion. The controversies around the Karnataka High Court judgement approving the state’s order of banning the Headscarves (hijab) in classrooms have given rise to an important question of law, Should Judges have power to decide what practices can be considered the essential religious practices? There is no distinct definition of essential religious practice, and it is not any concept mentioned in the Constitution.
Be it Shirur mutt case or ban on animal sacrifice for religious purposes or Sabarimala Case or Anand margis case or formation of pyramids (dahi-handi) during Janmashtami case or the current Hijab Case [1]. Essential Religious Practices are used as the first and most important defence whenever a religious practice is contested on the grounds that it is inconsistent with fundamental rights or any other ground. No person is a stranger to the hijab controversy that came into sight in our country which started from a small village called Udupi in Karnataka where six female hijab clad were prohibited from entering into class.
What is the ‘doctrine of essentiality’?
In the Shirur Mutt case of 1954 [2], the doctrine of essential religious practice was first conceived. The court ruled that the term “religion” will include all rites and practices that are “integral” to a religion [3]. Any practice which is imperative to maintain the essence of that religion will be considered as an essential practice. The doctrine of essentiality has been used in several cases since 1954 and the judges have taken upon themselves to come to a conclusion about the nature of the practice after reading the holy scriptures of that particular religion. According to this doctrine, only those practices which are supported in scripture, can change the nature of the religion and are deemed as central to a particular institution are worthy of protection under article 25 of the Constitution. In the present case a full bench of the High Court ruled that “the holy Quran does not mandate wearing of hijab or headgear for Muslim women” and that wearing a headscarf is not a stipulation in the Quran as a fundamental requirement of Islamic faith [4].
Article 25
The fundamental article of the Indian constitution that advocates secularism in our country is Article 25 [5]. Article 25 of the Indian Constitution strives to shelter Four aspects to the freedom of religion which are,
- Freedom of conscience
- Freedom of free profession
- Freedom to practice
- Freedom to propagate
Same as all the fundamental rights, the right to Freedom of religion is not an absolute one. The rights given under Article 25 can be restricted in the matters of public disorder, immortality, predicament of public and individual health and for violation of any other provisions of part three of the constitution.
The school authorities and the Karnataka govt are demanding to prohibit the girls from wearing hijab in the classrooms which comes under their right to freedom of free profession and practice on the basis of restriction under article 25. Now the open end question before us is, can wearing of hijab by school students undermine morality, public order, or public health?
Is it a legitimate restriction or a Motivated Intrusion?
India is a beautiful land of diverseness. This diversity can also be seen in clothes, if you are a Hindu you can associate yourself with the saffron colour, muslims have different cloth pieces, etc. In 1969, in the landmark case of Tinker vs Des Moines [6], it was given by the Supreme court of the United States that clothing is a form of expression. The main arguments against the order given by the Karnataka High court is that it violates the Students right to Freedom of expression guaranteed under Article 19 [7] and Freedom to Profess, practice and propagate religion under 25. The hijab is not just any piece of cloth but their way of expressing and professing their religion. Nobody can imagine how wearing hijab can harm public disorder. The flaw in the judgement is that it was entirely based on the contention that the school authorities had the right to regulate the uniform of the students and ensure uniformity among different sects of students according to Karnataka education Act, 1983 [8].
The judiciary often fails to appreciate the fact that India is a very secular country and we follow the Positive Ideal of secularism. The positive ideal of secularism instils the concept of Religious freedom as a hallmark for pluralism and inclusivity, advancing harmony and diversity against Uniformity. India’s idea of secularism allows the exhibition of religion in public spaces. Before prohibiting any activity or ritual in a religion, it must be ensured that this restriction is a legitimate one and not just any motivated intrusion to benefit the interests of the majority sect of the population. The Constitution teaches us the value of reasonable accommodation. The concept of fundamental rights aims to strengthen the degrees of tolerance and mutual respect among the people. Secularism is a belief where nobody tries to force their faith and belief on other people. In a diverse country like India, we don’t need this much uniformity and in fact we should embrace the diversity and learn to live with it at all times. The highest court of Canada in 2016, allowed six students the wearing of kirpan in the school premises [9]. The Canadian judiciary gave a strong endorsement to the freedom of religion by this judgement and us as a country with an extremely liberal judiciary cannot corroborate freedom of free profession and practice of a religion. As much as possible there is no need for intrusion if nobody is getting harmed by the acts and practices of a religion
A better judgement
The learned judges of the High Court have failed in applying the essentiality rule that was given in the Shirur Mutt judgement in 1954. Issues like Dress or food in the religion is not a thing upon the judges to adjudicate. If the community practising believes it to be an essential practice then there is no scope of doubt that it is essential. If sikhs are free to embrace the Dastar (turban) and Aghoris are free to wander naked and Hindu wives are allowed to wear a ghoonghat then a young Muslim girl ought to be able to wear a hijab wherever she wants. According to Muslim scholars, the Quran urges both men and women to “cover up and be modest”[10]. As with many other religious writings, the reference to clothing is open to interpretation and has been shaped by the cultures of different nations over the centuries. Some scholars argue that this is a religious obligation, especially for the more conservative factions of the Muslim world. Even if it is not an essential religious practice it is not affecting the rights of any other person. Any practice which is against the fundamental rights of the people should be under the consideration of the law as was in the triple talaq case. The cover up of headscarves should not have been restricted in its entirety but the authorities could have issued regulations to confirm the colour combination of the scarfs with the uniform.
According to the girls, they were allowed to wear the hijab as per the school discipline and the authority’s decisions for a very long time. This sudden unreasonable restriction is a setback for Muslim women’s right to education.The wearing of hijab is a liberating practice for Muslim girls because of it their family allows them to step outside of their houses, by interfering with that the state will be hindering with their education and further worsing the situation of girl education in our country. In contemporary world, Hijab is not associated with the islamist groups that are conservative. We see examples of many influential and strong women wearing hijab from innumerable backgrounds in different parts of the world, it is because this identity gives them strength and they want to be recognised in a certain manner and the government cannot take that away from them solely on the ground of uniformity. The authorities in the name uniformity are seeking homogeneity, which will sooner or later turn our world into a dystopia.
Problems with Essential religious practice test
The primary fault in the Essential religious practice test is that it does not acknowledge any of the activities or rituals which were not there before or at the time of formation of that particular religion, which means that anything which is not in the Scriptures or in the initial practices will not be considered an essential practice. To limit or freeze any religion at a particular point will not allow any revolution and will curb the freedom of the religion. Taking account of some of the recent controversial judgments we can say that Ideological leaning of the Indian judiciary is becoming conservative and orthodox. Instead of looking at the aspects of life which puts us together we are focusing on the aspects which divide us such as clothing. The basic condemnation boils down to the point that the concept of essential practice in a religion is very volatile. The judges have no objectivity in deciding the essential practices in a religion nor do they have any guidelines, the doctrine gives them undue discretionary powers to decide each case under article 25 on its own merits. Judgments in similar cases take contrary views because there’s no objective rules to guide the judges. E.g. The Supreme Court in 2014 upheld the Himachal Pradesh High Court banning animal sacrifice during the festival of Kullu Dussehra. The very next year, the same Supreme Court, refused to entertain a public interest litigation that wanted a ban on the practice of killing of animals in the name of religion, and held that “it cannot close its eyes to centuries old traditions”! [11]. Progressive republicans should form judgement based on the constitutional values independent of the essential practice test and religion. Judges should not rely upon the ethics of the religion but should adjudicate the matter by interpreting and understanding the Constitution. The law cannot allow a practice which is though essential in a religion is against fundamental values of the constitution. If the limitations and laws on the religion will be entirely left upon the preachers of that religion it will only lead to the most extremist form. Nobody is advocating the fact that the law should be made by or in accordance with the religious gurus but essence of that particular religion should be given a broad spectrum to understand what constitutes the essential practices in their religion. The test of the essential practice must be supervised by a higher bench of the Supreme court and should be carried forward under their guidance and objectivity. The general principles of equity, justice and good conscience must replace the essentiality test.
Author: Garima Wadhwa from UILS, Panjab University
Juris Centre 