Hijab Ban – Is wearing Hijab rudimentary or an Essential Religious Practice?
October 10, 2023
The Doctrine of Essential Religious Practices has been the point of detailed consideration and emphasis of many controversial judgments involving the right to religion under Article 25 of the Indian Constitution. This article aims to provide a critical analysis of the use of test of essential religious practices by the Indian Judiciary and explores the relevancy and nature of judicial approach in light of the Hijab Ban row in Karnataka. It relies on reports, case laws and legal texts to determine the jurisprudence involved in the application of the doctrine and is primarily concerned with determining whether wearing a Hijab represents an essential religious activity protected by Article 25.
The findings of the article unveils the heart of the controversy involved in the Hijab ban and emphasizes the need for a balanced approach without assuming the role of authority over theology and reconsideration of the extent and importance of application of the doctrine of essential religious practices to be undertaken by the Indian Judiciary.
The right to freedom of religion is a fundamental and an indispensable facet of the individual and social lives of citizens of a country like India with diverse religious beliefs. The Constitution, under Article 25, guarantees this liberty and safeguards the right to express and propagate the religion. However, just as no right is absolute, the freedom to religion has its own restrictions such as grounds of public order, health and morality. A rudimentary reading of the law leads to having an abstract understanding of the right to freedom of religion resulting in a broad, limitless interpretation. Critical examination helps us understand the essential ingredients required to attract the protection of freedom of religion as guaranteed under Article 25.
One of the doctrines employed by the Judiciary to examine the scope of Article 25 is the test of essential religious practice, according to which, the freedom to practice one’s religion in the public sphere as protected under Article 25 to be outside the domain of State action extends only to those practices that form a significant and indispensable aspect of the religion. There have been many discussions centred on this canon after the student protests in Karnataka in early 2022 over the right of Muslim women students to wear Hijab in educational institution.
This article is mainly focussed on examining whether wearing a Hijab constitutes as an essential religious practice that comes within the ambit of the protection of Article 25. By reviewing the legal texts, case laws and reports that form part of the literature that shape the understanding of what constitutes essential religious practice, this article seeks to gain insight about the Judicial understanding of the test of essential religious practices in light of the practice of wearing a Hijab in India.
Relevance of the Doctrine in the context of Hijab Ban
The Hon’ble High Court of Karnataka and the Hon’ble Supreme Court while dealing with the issue at hand focussed on essentiality of wearing a Hijab as religious practice of Islam. This was determined necessary in order to decide whether the State can interfere with the individual’s right to essential religious practice and curb the right to wear a Hijab in a public place as is an educational institution. In order to understand the various interpretations given by the Judiciary, it is important to understand in essence the test of essential religious practice.
Testing the Doctrine of Essential Religious Practice
The Indian Judiciary had used this doctrine for the first time in Shirur Mutt case to decide that the determination of a practice as essentially religious should be based on the doctrines of the religion. However, the test has moved towards being used to determine whether the practice in question is essential to the religion rather than nature of the practice. It can be seen that despite being against constitutional morality, the Judiciary has upheld in certain cases the right to religion if it is an essential religious practice protected under Article 25 as in the case of Sardar Syedna Taher Saiffuddin Saheb v State of Bombay (dealing with excommunication of members by the head from the community).
The dissenting opinion of Chief Justice B P Sinha highlights the importance of socio-legal analysis required while applying the doctrine. When the practice is not essential to the religion, restrictions and denial of the right under Article 25 is upheld by the Judiciary as in the infamous Sabarimala Temple case (upholding the right of women to enter temple as the restriction was declared non-essential to the religion) and the Triple Talaq case (declaring triple talaq to not be essential practice, but a permitted practice and holding the practice to be unconstitutional).
Hence, it can be understood that at present, this doctrine is employed by the Judiciary to decide on the importance of the religious practice and their inclusion within the ambit of protection under Article 25.
Whether wearing Hijab is essential or rudimentary?
Hjiab refers to the piece of clothing worn as headscarf by Muslim women. This is a practice that has been followed by the women of the community in the public sphere since ages, such that it has come to be recognized as the identity marker of the believer to the society at large. In the petition filed before the Karnataka High Court, the primary issue at hand was the constitutionality of the ban on the practice of wearing a Hijab in educational institution.
To decide whether the order of the Government and actions of the educational institution was constitutional or not, the Courts deliberated whether the practice of wearing a Hijab comes within the ambit of religious practice protected from arbitrary State action under Article 25. The question whether wearing a Hijab constitutes a rudimentary or essential religious practice was considered relevant in the Hijab Ban case as State cannot deny or bar the right to essential religious practice as per the doctrine.
Hence, restriction or bar on the practice is not unconstitutional. It was observed that the order of the State Government is universally applicable to all genders and does not discriminate against any community. A formal institutional set up as is an educational institution can restrict on the right to religious practice not protected under Article 25 to ensure maintenance of discipline and uniformity. The order of the Government on ban on wearing Hijab in educational institution was upheld.
Stressing on the importance of dress code that upholds equality between different religious communities and hence safeguarding secularism, he held that the individual right to freedom of religion, dignity and privacy are not absolute and can be restricted for public order and morality. Opposing the ban, Justice Sudhanshu Dhalia held the view that a harmless sincere belief should not be banned. He considered that the individual rights of young Muslim women asserted in exercise of freedom and dignity should not be curbed to ensure discipline as it would violate Article 19 (1) (a) and Article 21 of the Constitution of India. He stressed on the importance of reasonable accommodation of diverse religious practices and allowing a girl child to wear Hijab if that secures her the right to education.
However, the split verdict has not offered any redressal to the affected parties. The question of right to practice religion, right to privacy, right to live with dignity including the right to dress with dignity as well as right to education of Muslim girls and young women continues to be debated.
The little to no attention paid to the doctrine of essentiality in light of the Hijab Ban by the Apex Court shows that it is not necessary to ruminate on the question whether wearing a Hijab is an essential or rudimentary practice. But rather, the question of exercise of individual right of religion and right to dress with dignity in a secular institution is to be debated.
Through the interpretation of the jurisprudence of Indian judiciary, it can be understood that the use of doctrine of essential religious practice has seen a shift and has resulted in controversial judgments. A new controversy arose focussed on fundamentality of wearing a Hijab causing great public discontent and conflicts and the contentious doctrine of essential religious practice has gained utmost attention once again. The following observations have been made regarding the application of the doctrine in the context of Hijab Ban by the Judiciary as well as scholars.
Strict Doctrinal Interpretation of the Religion
It is important to consider that religious practices are dependent and have their origin not only in the written code but also based on rituals, modes of worship, observations, and acts of faith relevant in the daily life practices of the believer. While employing the doctrine of essential religious practice, it is inopportune to consider only the holy code of the religion and not the relevance of generational, community practices and how it forms and shapes the identity as the follower of the religion. Strict interpretation and literal application based on the theology could lead to societal repercussions of discarding a practice as non-essential as can be observed in the present case.
Authoritative Role of Judiciary
The Judiciary cannot take up the role of authority over theology and dictate the petitioners on whether or not their practice is fundamentally important to the religion. It is the follower of the religion and the heads or theological experts of the religion who can guide in understanding whether a practice is essential to the religion or not and not a mere rational, interpretational reading of the religious text. Moreover, the practice of wearing a Hijab is essentially religious and not a secular act on part of the Muslim women. Hence, wearing a Hijab being an essentially religious act and not a secular or economic act is protected under Article 25 from arbitrary State action.
Veil on the matter in Issue
In the present case, when the focus centres on the application of the essential practices test to the practice of wearing Hijab, the question of whether the restriction imposed falls within the grounds of public order, morality or health provided in the Constitution has not been given the necessary deliberation in various discussions except in the Supreme Court judgment though it does not offer a conclusive decision. The Karnataka High Court has not sufficiently explained as to how expression of religious beliefs as wearing a Hijab has caused public disorder and issues of maintenance of discipline in educational institutions.
The precedent that Hijab is not an essential practice of Islam will be a part of arguments in cases involving social exclusion and would be of high persuasive value. When the Judiciary decides on an issue as socially sensitive and of great public importance as the essential practice of wearing Hijab arbitrarily to declare it as non-essential, given the current political climate of the country, public unrest will increase. The importance given to essential religious practice in the Hijab Ban case has put a veil on the standing of consideration of the constitutionality of the restriction imposed by the educational institution and the Government.
Need for Balanced Approach
Judicial decisions for reform will have no weight and positive outcomes if the community is not ready for reform within itself. When it can be observed that the bar on the religious practice curbs societal progress of the community, it is essential to employ a socio-legal approach instead of a strictly legal interpretation of the theology. Judiciary should not stand by strict interpretations if it will lead to discrimination, humiliation and loss of progress of the Muslim women students. A balanced approach has to be adopted by the Judiciary.
Thus, considering the backdrop of the controversy of the Hijab ban and the impact of the use of essential religious practice test in the case, the Judiciary while employing the doctrine has to undertake a balanced approach of interpreting the text to understand the essentiality of the religion, deliberate on the acts of faith forming part of the religion that is essentially religious and consider the social repercussions of barring the same to make decisions. The disputes that involve the convergence of law and religion have always troubled the public order of our country.
Though it is not easy to balance the interests of public tranquillity and safeguarding religious practices from extinguishment and discrimination, our Judiciary has actively taken up the challenge and have given controversial, progressive, debatable judgments from time to time. Given the current political conditions in our country involving various communal riots based on religious differences and discrimination, it is important to be sensitive to religious practices and not rationalise to the extent that it affects minority sentiments and causes public cynicism.
Submitted by Hassini R., B.A.LL.B. (Hons.) at SASTRA University, Thanjavur, Tamil Nadu.