The debate on wearing of hijab (headscarf) by Muslim students in educational institutions in the State of Karnataka has become a raging controversy across India.
On February 9, a single-judge bench of the Karnataka High Court referred the matter to a larger bench. In the proceedings, the petitioners claimed that wearing hijab is ‘essential’ to their religion. Consequently, the High Court ordered for a copy of Quran to be brought from the High Court library to ascertain whether wearing hijab is an ‘essential’ part of Islam. This is in line with the Essential Religious Practices (ERP) doctrine as adopted by the Supreme Court in the case of Durgah Committee, Ajmer v. Syed Hussain Ali, which prescribes constitutional courts to actively interpret religious texts to find the significance of a religious practice within the concerned religion.
Without going into the merits of the case, in this article, I want to highlight the urgent need for the Supreme Court to reconsider the use of the ERP doctrine. ERP is used as a standard for adjudicating constitutionally permissible religious practices. In the early years of the Supreme Court, to decide whether a practice deserved constitutional protection under Article 25 and 26 of the Constitution, the Court would consider whether the practice in question was religious i.e., if it was ‘essentially’ religious in contrast to a secular practice. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Court made three important contributions. Firstly, complete autonomy was granted to religious denomination to decide the importance of a religious practice for them. Secondly, religion was seen to be beyond God i.e. non-theistic religion was recognised, and lastly, the Court accepted that religion under Article 25 and 26 was not limited to beliefs and extended to practices done in pursuance of those beliefs. Further, in Ratilal Panachand Gandhi v. State of Bombay, the Supreme Court held that "no outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like..."
However, a major departure from this deferential approach was found in Durgah Committee where Justice Gajendragadkar wrote,
"...practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
The position as it stands today is that even if the court is convinced that the practice is essentially religious, it goes on to determine whether the practice is essential to the religion. Only the ‘core beliefs’ of a religion are deemed essential. A practice shall be essential if without it, a religion shall not remain religion. Such exercise requires the judges to interpret religious texts to find out whether the practice in question forms part of its core. Only if this preliminary barrier is crossed, will the court then go on to consider whether the practice offends the explicit restrictions given under Article 25 and 26 of the Indian Constitution.
Such application by constitutional courts has resulted in narrowing the scope of religious freedom in India, in addition to throwing up inconsistent results. To give examples, while employing ERP, the Supreme Court declared the functions of an Archaka (traditional helper) in a temple to belong to the domain of the secular, and therefore subject to statutory abolition. Anand Margis were informed that the Tandava dance is not essential to their faith. While Pinda and Shradh were deserving of constitutional protection, the Court in Ismail Faruqui v. Union of India entered into comparative significance of religious places of worship and observed that a mosque is not integral to Islam. The Rajasthan High Court declared that the practice of Santhara is not integral to Jainism.
In his article Essential Practices Doctrine: Towards an Inevitable Constitutional Burial, Anup Surendranath writes, "the sheer subjectivity of requiring judges to evaluate religious texts emerges from decisions of the Kerala and Bombay High Courts on the issue of headscarves in Muslim dress." In Fathema Hussain Sayed v. Bharat Education Society and Amnah Bint Basheer v. Central Board of Secondary Education the High Courts of Bombay and Kerala respectively relied on the same verse of the Quran to reach diametrically opposite conclusions. The Bombay High Court held that wearing hijab was not essential in Islam, whereas the Kerala High Court found wearing hijab to be among the highest tier of obligations in Islam.
However, this is not a problem which is peculiar to India. In many Constitutions of the world, religious freedom guarantees are protected, albeit with qualifications. The restrictions manifest themselves through a limitation clause explicitly delineating the grounds which would justify the regulation of religion on part of State. While the limitations are explicit, most Constitutions have a religious freedom clause without the definition of ‘religion’. We are faced with a situation where we have important provisions guaranteeing the fundamental right to religion without any clarity over what constitutes religion. Consequently, since religion is a more complicated right in comparison to other rights, it is difficult to point with certainty on what is and what is not protected. Such ambiguity contributes to additional restrictions being levied to the freedom of religion beyond the explicit restrictions. Interpretive exercises like ERP are employed to provide definition, content and meaning to religion which consequently reduces the scope of religious freedom.
Justice DY Chandrachud in Indian Young Lawyers Association and Ors v. State of Kerala expressed his dissatisfaction with the ERP in its current form. He recognized that judges "lack both the competence and legitimacy to pronounce on the importance of specific doctrines or beliefs internal to religion" and any attempts at interpreting religious texts by judges lead to imposition of an external viewpoint. Serious engagement is required with Justice Chandrachud’s opinion to appreciate how ERP contributes to the narrowing of religious freedom.
However, the Supreme Court has given itself a chance to address these concerns. The Court in Kantaru Rajeevaru v. Young Indian Lawyers Association, also known as the Sabarimala Review Petition, has framed seven questions including one on "the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India." I expect the Supreme Court to seriously engage with ERP and its impact on religious freedom while answering this question.
Anubhav Raj Shekhar is an Assistant Professor of Law at the BML Munjal University, Gurgaon. He tweets @anubhavraj92.