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What is an ‘essential religious practice’, and why hijab didn’t make the cut for Karnataka HC

Courts have applied ‘essential religious practice’ test over the decades to decide which practices are protected by the Constitution, and which ones the state can regulate.

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New Delhi: In its judgment upholding restrictions on Muslim women wearing hijabs in educational institutions, the Karnataka High Court held that wearing the headscarf is not an “essential religious practice” in Islam. 

This was the first question the court answered, and its answer formed the basis for the rest of the judgment. The court dismissed the petitions challenging an order on school uniforms by the Government Pre-University (PU) College for Girls in Udupi that banned the hijab, as well as the Karnataka government’s 5 February order that extended its support to the restriction.

Once it ruled that wearing the hijab isn’t an essential religious practice, the bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S. Dixit and J.M. Khazi then asserted that the restriction on the hijab was a “reasonable” and constitutionally permissible one that students could not object to.

But what’s meant by ‘essential religious practice’, and how have Indian courts come to apply such a test? How did it evolve over the years, and why did the court finally hold that the hijab didn’t make the cut? ThePrint explains. 

What does the test mean?

Article 25 of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”. However, this right isn’t absolute and is subject to public order, morality, health, and other fundamental rights. 

While Article 25 itself does not read any other condition into the protection of this right, courts, over the years, have ruled that the right would protect only “essential religious practices” and not all religious practices. So, this test decides which religious practices are protected under the Constitution.

Courts have adopted varied approaches to the test over the years. In some cases , they relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in a few, on whether the practice in question existed at the time the religion originated.

Court judgments on this test usually trace its origins to the debates of the Constituent Assembly, and attribute it to a speech given by Dr B.R. Ambedkar.

On 2 December 1948, Dr Ambedkar acknowledged that religious conceptions in India “cover every aspect of life, from birth to death”. However, he added, “There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.” 

He then asserted that “it is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.” Ambedkar’s use of the term “essentially religious” was cited by courts to introduce the essential religious practice test.


Also read: Delhi election & Sabarimala: Why Article 25 is now caught between Constitution and religion


‘Essentially religious’ and the Shirur Mutt case

One of the first such instances of a court adopting these words of Ambedkar was by a seven-judge bench of the Supreme Court in the Shirur Mutt case in 1954. In this case, the court was called on to define the constitutional scope of religious freedom in a dispute over the extent to which the Madras Hindu Religious and Charitable Endowments Act, 1951, could control the management of the Shirur Mutt, a monastery in Udupi.

The court observed that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself”. 

“If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious,” it further said. 

While several people regard this as the origin of the test, other scholars have pointed out that the intent of the Supreme Court up until this point was to draw a line between religious and secular. In other words, the test was not meant to distinguish between practices that were essential to a religion and those that were not. It was meant to distinguish between practices that were essentially religious and those that were secular. The latter practices could be restricted through law, but the former couldn’t.

From Shirur Mutt to Sabarimala

However, ‘essentially religious’ slowly turned into the ‘essential religious practice test’ with the Allahabad High Court ruling in 1957 that bigamy cannot be considered an integral part of the Hindu religion, and another Supreme Court judgment in 1958 holding that the sacrifice of a cow on the occasion of Id was not an essential religious practice for Muslims.

In 2004, the Supreme Court applied the test of essential religious practices in deciding whether the Tandava dance was an essential rite of the Ananda Marga Faith. It ruled that the faith had come into existence in 1955, while the Tandava dance was adopted only in 1966. The court, therefore, ruled that since the faith had existed before the adoption of the dance, the latter cannot be considered an essential feature of the faith. 

In 2016, the Bombay High Court permitted women to enter the sanctum sanctorum of the Haji Ali Dargah, ruling that the Haji Ali Dargah Trust’s decision to exclude them was illegal and unconstitutional. In its judgment, the court ruled that the Trust had failed to place any material on record to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. 

More recently, in 2017, the Supreme Court ruled that triple talaq was not an essential practice of Islam and could not be offered constitutional protection under Article 25. 

A year later in 2018, the Supreme Court in the Sabarimala case rejected the claim of ‘Ayyappans’ (pilgrims) that the exclusion of women between the age of 10 and 50 from entering the temple constituted an essential practice. A review petition against this decision is, however, pending in the Supreme Court. 


Also read: Restriction on wearing hijab ‘reasonable’: Full text of Karnataka HC judgement upholding ban


Why hijab ‘isn’t an essential part of Islam’

As for the Karnataka High Court judgment, it has held that wearing the hijab does not constitute an essential religious practice under Islam — which means it can be regulated by the state. 

To reach this conclusion, the court referred to a commentary on the Quran and held that there is no “Quranic injunction” or mandate on wearing the hijab. It found that “there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is”.

“It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion,” the court said, adding that “at the most the practice of wearing this apparel may have something to do with culture but certainly not with religion”.

It then asserted that “what is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts”.

The court therefore concluded that “wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith”.

Future of the test uncertain

The test has, however, faced criticism on several occasions. Critics have often pointed out that it forces judges into becoming “ecclesiastical authorities (often for religions that are not even their own)”. Justice D.Y. Chandrachud in the Sabarimala case had lamented that “compulsions nonetheless have led the court to don a theological mantle”. 

The future of the test is also uncertain at the moment. This is after the Supreme Court,  while considering review petitions in the Sabarimala case, referred seven questions to a larger bench. A nine-judge bench is set to re-evaluate the “essential religious practice test”, among other issues related to Constitutional morality, and the interplay between freedom of religion under the Constitution and other fundamental rights.

(Edited by Rohan Manoj)


Also read: Why a Muslim women’s group is pro triple talaq ban, but doesn’t support Uniform Civil Code


 

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