What’s in the news?
- 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.
- 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 order that extended its support to the restriction.
What does the ‘essential religious practice’ 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.
- 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.
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.
- 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. 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.