Karnataka Hijab Ban Part 2: The Irrelevant Relevance of Essential Religious Practices Test

by | Feb 28, 2023

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About Almas Shaikh and Anjali Rawat

Almas Shaikh is a human rights lawyer from India. She is currently reading as a DPhil candidate at the University of Oxford and is a Barbara Mills Graduate Scholar in Law. She focuses on the role of intersectionality in Indian discrimination law, under the supervision of Professor Sandra Fredman. Anjali Rawat is a DPhil candidate at the Faculty of Law under the supervision of Professor Rachel Taylor and Professor Sandra Fredman. Her academic interests lie at the intersection of family law and constitutional rights. Her DPhil research focuses on the rights of women in the context of polygyny using the framework of substantive equality in a comparative study of India and South Africa. She is an Ambriti Salve Scholar at Exeter College and a Law Faculty Scholar. 

This blog continues Part 1 of the exploration of the Karnataka hijab case. The question of whether the wearing of hijabs is an essential religious practice (ERP) for Muslim women dominated recent proceedings before the Hight Court (HC) and the Supreme Court of India (SCI), as the ERP test serves as the threshold to admit claims of violation of the right to freedom of religion (Art. 25). This part of the blog investigates contesting claims made on this issue of essentiality.

In a positive move, both judges in the SCI split judgment found the ERP doctrine to be irrelevant to the issue of deciding the constitutionality of the Government Order (GO) prescribing a uniform dress-code [125G, 17D, 34D]. Freedom of religion is subject to public order, morality and health, and other fundamental rights in the Constitution. The State thus has the power to regulate a religious practice and to enact laws limiting religious freedom for social welfare and reform under Art. 25(2) and to impose reasonable restrictions on fundamental rights.

Justice Gupta jumped to the defence of the GO as promoting equality, uniformity, and a secular environment [89G]. He stated that even if the hijab is an ERP, religious beliefs and symbols have no place in a secular public place such as a state school [125G]. He reframed the issue as one of equality before the law but used a highly formalistic vision of equality [118G]. Justice Gupta employed the false dichotomy of secular-religious as equal-unequal, holding that accommodating hijab wearing girls is contrary to the spirit of Art. 14 by leading to differential treatment of students based on their religious beliefs [185G]. This reliance on uniformity and sameness as equality and fairness conceals the intersectional and systemic discrimination the court is perpetrating by keeping Muslim girls out of the state schools. In a problematic turning of logic, Justice Gupta found no breach or denial of rights on the grounds that they are (ostensibly) voluntarily choosing to not attend classes due to the ban [169G].

Justice Dhulia distinguished ERP precedents by holding that an individual is not required to prove the essentiality of the practice in order to claim the right to religion under Art. 25(1) [28D]. Thus, ERP doctrine only apllies while dealing with Art. 25(2), Art. 26 or the interplay between the two clauses [33D]: ‘If the belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a classroom’ [34D]. He criticised the tendency of the courts to get entangled with solving theological questions in determining what constitutes an ERP and noting they should only ‘interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed’ [36D]. The HC had also failed to consider how wearing a hijab inside the classroom was against public order, morality, health, decency or any other fundamental rights [67D]. Contesting the positive characterisation of uniformity and erasure of differences as ‘fraternity’, Justice Dhulia instead conceptualised fraternity as requiring tolerance and reasonable accommodation of the beliefs and religious practices of others [79D].

The conflation of the distinct rights protecting against religious discrimination and ensuring religious freedom, though they conceptually overlap in important ways, has led to an overt reliance on the ERP test. Instead, the focus should have been to demonstrate that the actions of government colleges and the GO discriminated against Muslim girls by denying them entry if they donned hijabs, a marker of their religious and cultural identity. By centring what Islam requires of these girls in order to grant them constitutional protection over their own bodies, rather than listening to their rights claims, the discussion strips the petitioners of agency. As Bhatia highlights, this is an inevitable function of ERP test. In this light, the irrelevance of ERP in both the SC judgments is a step forward, helping to focus the attention on whether the state is justified in restricting a right given the constitutional parameters.

However, Justice Gupta’s endorsement of uniformity and formal equality between different religious symbols at the cost of plurality, Muslim girls’ choice, agency, and substantive equality highlights the dangers of a low justificatory standard. While the non-reliance on ERP is a welcome move, the fault lines around the concept and meaning of Indian secularism are clearly visible. The HC and Justice Gupta have endorsed uniformity and sameness as a marker of secularism even though the Indian state has embraced the ‘equidistant’ or ‘principled’ secularism, in which the state actively engages with religion in its public exercise of functions. The state cannot claim one version of secularism justifying the presence/promotion of majority religious practices while claiming another version banning the wearing of hijab by willing students for being antithetical to uniformity, unity, and equality. Part 3 of this series continues this conversation through the lens of intersectionality and equality.

*In this article, paragraph numbers are marked as follows: D= Justice Dhulia’s judgment; G= Justice Gupta’s judgment

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