Context

• 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.
• Thus is concerning as it 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.

Background

• 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 impact that the ban has had on the right to education of Muslim women.

About Essential Practice doctrine

• Evolution: The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly.
  • He stressed the need 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.

Views Supporting The Ban

• SC in Hindu Religious Endowment Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri Shishur Mutt (1954) case states that term “religion” will cover all rituals and practices integral to a religion. It also said that “essentiality test” will determine the definition of core religious practices entitled to protection by freedom of religion. The essentiality test was followed many times by honourable Court.
  • In a 2004 ruling, SC held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect
  • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well. For example, in 2016, the SC upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard.
  • Armed Force Regulations, 1964, prohibits the growth of hair by Armed Forces personnel, except for “personnel whose religion prohibits cutting of hair or shaving of face”. The court essentially held that keeping a beard was not an essential part of Islamic practices.

Primary findings of Karnataka HC

• Hijab not indispensable to Islam: 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. The order takes refuge in the cases decided by different High Courts to hold that banning the headscarf is not violative of fundamental rights, particularly freedom of religion.
  • In Fathima Tasneem vs State of Kerala 2018, another Bench of HC ruled differently and held that collective rights of an institution would be given primacy over individual rights of the petitioner.
  • In Fathema Hussain Sayed v Bharat Education Society 2003, the Bombay High Court ruled against allowing hijab, despite the argument that wearing a headscarf is an essential religious practice which must be protected under the Constitution. The High Court referred to relevant verses from the Quran and held that the book did not prescribe wearing of a headscarf before other women.
• No significant right: 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.
• Indistinguishable legislation: 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.

Possible actions by the SC Bench

• 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 above three findings made by the High Court ought to result in a nullification of the ban.
• Liberal view: The SC Bench must reverse the High Court’s judgment, 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 Muslim women have been discriminated against by ban.
• State accountability: Similarly, if the petitioners can establish that nothing significant indicates 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.
  • This analysis has never been 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”.
• Switch discourse: Also SC Bench may ignore the question of whether the ban impinges on the right to freedom of religion if it concludes the following:
  • The Karnataka High Court erred in deciding against the petitioners
  • There is substantial merit to the petitioners’ arguments
• The Supreme Court should be able to decide these questions based on settled canons of constitutional law. However, 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.

The effects

• The embedding of Essential Practices Test in the Court’s jurisprudence has achieved at least two things, as follows:
• Limit guard: First, it has allowed the Court to narrow the extent of safeguards available to religious customs
• Revoked law: 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.

A Principle of anti-exclusion

• An alternative to essential practices test was proposed by Justice D.Y. Chandrachud, in the case concerning temple entry ban in the Sabarimala temple called as “A Principle of anti-exclusion”.
• About the doctrine: The application of “A Principle of anti-exclusion” 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.
  • 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”.
• Justification: As Justice Chandrachud put it, “the anti-exclusion principle allows for due- respect to the ability of a religion to determine its own religious tenets and doctrines.

Conclusion

• 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. The reassessment may 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 difficult task of acting not merely as an expert on law but also as an expert on religion.