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The hijab case and the essential practices doctrine
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When it comes to an issue concerning a matter of faith, courts have the unenviable task of acting as an expert — on law and on religion

September 20, 2022 12:16 am | Updated 01:46 pm IST

‘Every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice’

‘Every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice’ | Photo Credit: Getty Images

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. Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.

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. This requires judges to engage not merely in legal analysis but also in theological study — something an education in the law scarcely equips one to perform.

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. If the petitioners can establish that the law’s seemingly neutral language does not negate the ringfencing of most forms of expression against the singling out of the hijab, and for that reason if they can show that Muslim women have been discriminated against, the Bench must reverse the High Court’s judgment. Similarly, if the petitioners can establish that there is nothing to suggest that there exists no right to freedom of expression within the confines of an educational institution, then the onus shifts to the State to show that the ban is proportionate and legitimate. That analysis was never conducted by the High Court because in its belief, classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.

Watch | Karnataka’s hijab controversy explained

The Supreme Court should be able to decide these questions based on settled canons of constitutional law. And if the Bench were to find that the Karnataka High Court erred in deciding either of these issues against the petitioners — and there is substantial merit here to the petitioners’ arguments — perhaps it might be keen on ignoring altogether the question of whether the ban impinges on the right to freedom of religion. For that analysis, on the law as it stands today, requires it to engage in a study of scriptures and conventions, and to then determine how indispensable the practice is to faith.

As a kind of inquiry

The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he said. “…I do not think it is possible to accept a position of that sort… we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that… laws relating to tenancy or laws relating to succession, should be governed by religion.”

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.

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. The upshot is a conflation of tests through which the Court is now deciding not only when the state could lawfully interfere in the interests of social welfare and reform, but also which practices are deserving of constitutional protection in the first place.

The effects

The embedding of this test in the Court’s jurisprudence has achieved at least two things, neither of which is particularly desirable. First, 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.

Second, it has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.

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. Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria. As Justice Chandrachud put it, “the anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the anti-exclusion principle 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.

Suhrith Parthasarathy is an advocate practising in the Madras High Court

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