Social conduct, right to choose – why SC ignored essential religious practices endorsement in Hijab case

New Delhi: The two Supreme Court justices who delivered a split verdict in the hijab controversy chose not to consider whether wearing the headscarf amounts to an essential religious practice (ERP) in Islam.

In their dissenting opinions on the hijab ban, while Judge Hemant Gupta dismissed petitions filed by Muslim female students, Judge Sudhanshu Dhulia upheld them and quashed the Karnataka government order dated February 5 which amounted a headscarf ban in educational establishments.

But neither has clarified whether wearing the hijab is a core religious practice in Islam, although the petitioners claim it is. Incidentally, the Karnataka HC had, in its March 15 verdict, declared the ban valid on the grounds that it was not an essential religious practice.

Although both petitioners and the state government made extensive arguments about the ERP in the Supreme Court, the bench chose not to consider the matter.


Read also : Discriminatory to non-essential religious practice – what the appellants and the state told SC in the hijab case


ERP test, doctrine

The ERP is a doctrine developed over the years by the Supreme Court and governs religious practices protected by Articles 25 and 26 (fundamental rights to practise, profess, propagate religion and manage religious affairs).

However, Section 25(2) empowers a state to notify a law to regulate any economic, financial, political, or other secular activity that may be associated with religious practice to secure welfare and social reform.

The ERP test allows courts to determine which practices are essential to a religion and whether their removal would alter the very nature of that religion. ERP doctrine states that only essential religious practices are protected from government interference.

Before the Supreme Court, the petitioners argued that wearing the headscarf is an ERP followed by Muslim women since time immemorial. It has been argued that the practice was provided for in the religious scriptures of Islam and is therefore essential to the religion.

The government order, they argued, infringed on their right to wear a headscarf as an LES and was therefore a violation of their rights under Section 25.

Some petitioners have also argued that it is not for the court to decide what constitutes an LES.

The Karnataka government, on the other hand, has argued that wearing the hijab may be an ideal or permissible practice or practice, but not an LES. The state’s attorney argued that more litigation was needed and that it needed to be shown that not wearing a headscarf would compromise a person’s identity as a believer of that religion.

“Fundamental beliefs, ticket to education”

After reviewing several high-level court decisions and interpretations of Quranic verses, Judge Gupta found that the ERP doctrine was developed when the state interfered with certain practices relating to religious places or religious festivities or the performing religious rituals in public or when such practices restricted fundamental rights.

But in this case, observed the judge, the applicants did not want to exercise a religious activity in an institution but to wear the headscarf in a public place as a social conduct, expected of believers of the faith. Here, he says, the students “want to submit their freedom of choice of dress to be regulated by religion rather than by the state.”

He rejected the applicants’ attempt to draw a comparison with Sikh practices in support of their case.

The judge noted that the PRA of followers of the Sikh faith cannot be based on the wearing of hijab/headscarf by believers of Islam. “The practices of each of the religions must be examined on the basis of the tenets of that single religion,” Judge Gupta said, without offering a conclusive finding on the PRA.

According to Judge Dhulia’s interpretation, essential test of religious practice was not essential to decide this dispute and the courts have, over the years, used this criterion come to the conclusion that the right to religion under the Constitution would only protect the ERP and not all religious practices.

Such practices, he said, include the “fundamental beliefs” on which a religion is based.

However, this case was about an individual’s right to choose and it is not necessary for an individual to establish that the practice he invokes is an essential religious practice.

Judge Dhulia held that “it can simply be any religious practice, a matter of faith or conscience” and asserted that the test only comes into play when the court is dealing with cases involving a community right(rights of a community as a whole).

“It may or may not be a matter of essential religious practice, but it is always a matter of conscience, belief and expression. If she wants to wear the hijab, even inside her class, she can’t be stopped, if he wears it of his choice, because that may be the only way for his conservative family to get him. allow to go to school, and in these cases, her hijab is her education ticketwrote Judge Dhulia.

With the two justices differing from each other on the remaining legal issues, the case will now go before a three-judge bench of the Supreme Court. It remains to be seen whether the larger bank will address the ERP issue.

(Editing by Amrtansh Arora)


Read also : “Government of Karnataka ordinance on hijab promotes equality”: Justice SC Gupta’s opinion in split judgment


Earnest L. Veasey