The story so far: The action of some pre-university colleges in Karnataka refusing entry to Muslim girl students wearing hijabs, or head-scarves, has now become a national controversy. While the girls have been protesting against being denied access to education, the counter-protests by a section of Hindu students wearing saffron shawls and turbans have led to a tense situation outside some campuses. The action of the college where the row broke out in Udupi is now being questioned in the Karnataka High Court. The court, by an interim order, has directed that students should not wear attire linked to any religion until it resolves the legal questions arising from the issue.
What are the issues?
The main question that arises is whether students can be kept out of educational institutions merely because they are wearing a piece of clothing indicating their religion. Is the denial of entry a violation of their freedom of conscience and freedom to practise their religion under Article 25?
While students are arguing in favour of their freedom, the Government is of the view that compelling a student to remove the head-scarf is not a violation of Article 25.
Going by the Government’s stand, the issue can also be framed differently: whether the wearing of head-scarves will have an adverse impact on law and order by pitting two communities against one another, and thereby, enable the Government to prohibit religious attire in the interest of public order – one of the grounds on which a right under Article 25 can be curbed.
The question whether educational institutions can bar religious attire as part of their power to prescribe uniforms for students is also linked to the constitutional question whether the ban on such attire will come within the power to restrict freedom of religion in the interest of public order, health, and morality.
Yet another question is whether the denial of entry into schools amounts to violation of the students’ right to education under Article 21A.
From the Muslim students’ point of view, they have a fundamental right to wear a hijab as part of their right to practise their religion. Going by precedent on a right asserted in contrast to the general rule, as well as arguments advanced in court on their behalf, the issue may boil down to a finding on whether the wearing of hijab is essential to the practice of their faith.
What is the constitutional position?
Bijoe Emmanuel vs. State of Kerala (1986) pertained to three children belonging to the Jehovah’s Witnesses sect refusing to sing the national anthem during the morning assembly. The Supreme Court ruled in the students’ favour, holding that their expulsion violated their freedom of expression under Article 19(1)(a) as well as their right to freely practise and profess their faith under Article 25(1).
The freedom of conscience and to profess, practise and propagate religion is guaranteed by Article 25. This freedom is subject to ‘public order, morality and health’. It also makes it clear that there can be a law regulating any economic, financial, political, or other secular activity which may be associated with religious practice or to provide for social welfare and reform, including throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.
Justice O. Chinnappa Reddy, who authored the judgment, observed that “the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein.”
The test in this approach is to find out whether a student who asserts religious freedom for a course of action that the authorities find objectionable genuinely and conscientiously holds that belief or not. Such a belief is constitutionally protected.
As for the wearing of hijab, the students are relying on a Kerala High Court judgment that had in 2016 allowed two Muslim students to take the All India Pre-Medical Test while wearing a hijab, after holding that it was an essential part of Islam. In a different case, the Kerala High Court declined to intervene in favour of a Muslim student who was not allowed to wear a head-scarf by a school.
They have also cited a Madras High Court order in which the Election Commission’s decision to include photographs of electors in the electoral rolls was challenged on the ground it violated the right of Muslim women who are in purdah. The court ruled that there is unanimity among Muslim scholars that the purdah is not essential but covering the head by a scarf was obligatory.
How do we draw the line between matters of religion and matters other than religion?
The ‘essential practice’ doctrine can be traced to a 1954 decision of the Supreme Court in Commissioner, Hindu Religious and Charitable Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, commonly known as the ‘Shirur Mutt’ case. This litigation involved action sought to be taken by the Madras government against a mutt over some disputes over the handling of financial affairs. The madathipathi’s contention was that the Government could not interfere in the mutt’s right to manage its own affairs under Article 26. Under this Article, what was protected was the right “to manage its own affairs in matters of religion”. This led to the Bench noting that the presence of this clause indicates that there could be affairs that were not matters of religion. How does one draw the line between matters of religion and matters other than religion? It was in this context that the court said: “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
However, this attempt to differentiate what distinguishes a religious matter from other matters was taken up in subsequent judgments to mean that courts are required to distil the essence of a religion to see whether a particular practice or act fell under the category of religion or not.
Hence, some acts obtained constitutional protection by being declared “essential” to the practice of that religion and some were denied protection on the ground that they were not essential to it.
In 1983, the Supreme Court upheld the police decision to disallow ‘Tandava’, a ritual dance performed with a skull and a knife, in public places as part of a procession by Ananda Margis, holding that the ‘Tandava’ was not an essential religious practice among those in the sect.
In Sardar Syedna Taher Saifuddin Saheb vs. Bombay (1962), the Supreme Court struck down a law that prohibited the head of the Dawoodi Bohra community from excommunicating members. The majority ruled that the power of excommunication exercised by the religious head on religious grounds was part of the management of affairs on religious matters, and the Act infringed on the community’s rights. However, in a dissenting judgment, Chief Justice B. P. Sinha said the law was valid because it sought to uphold the freedom of conscience of individual members as well as their civil rights.
In the Sabarimala case (2018), the majority ruled that the bar on entry of women in the age-group of 10 to 50 was not an essential or integral part of the religion, and denied the status of a separate religious denomination of devotees of Lord Ayyappa. However, in a dissenting judgment, Justice Indu Malhotra, said they constituted a distinct denomination and that the restriction on women of a particular age group is an essential part of their faith and is constitutionally protected.
What is the criticism against the essential practice test?
Jurists have criticised the continuing emphasis on applying the essential practice test to determine the constitutionality of state action against any religious practice that claims protection despite being either discriminatory or exclusionary.
The first criticism is that it was never intended to be a test to find out if a particular practice is essential to the practice of the religion but was only made to distinguish a matter of religion from a matter other than religion. However, a long line of judicial decisions seem to endorse the applying of this test to dispose of cases.
The second criticism is that the doctrine of essentiality appears to allow courts to go deeply into the scriptures and tenets of a religion or a religious denomination to find out if the practice or norm that is at the heart of the issue is essential. This is seen as a theological or ecclesiastical exercise, which courts are forced to wade into.
A more reasonable approach will be to apply the test of constitutional morality and legitimacy to the issue at hand. Applying the principles of equality, dignity and civil rights to a particular practice may be better to decide the constitutionality of a practice than a theological enquiry.
- The action of some pre-university colleges in Karnataka refusing entry to Muslim girl students wearing hijabs, or head-scarves, has now become a national controversy
- From the Muslim students’ point of view, they have a fundamental right to wear a hijab as part of their right to practise their religion
- The freedom of conscience and to profess, practise and propagate religion is guaranteed by Article 25