Wearing Hijab Not Established as an ‘Essential Religious Practice

Context:

Recently, the Allahabad High Court declined to recognise the wearing of a headscarf or hijab as an “Essential Religious Practice” (ERP) of Islam based on the material presented before it. The observation came while hearing a petition filed by a Class 11 Muslim student seeking permission to wear a hijab with her school uniform.

About the Court’s Observation:

• • • The student argued that wearing a headscarf or hijab was an essential religious practice and was constitutionally protected under her fundamental rights, particularly Articles 14 and 19(1)(a).
    • The student had been wearing a headscarf or hijab at the school since Class 6. However, the Court held that prior permission did not create any enforceable right to seek an exemption from the dress code. In the absence of sufficient evidence, the wearing of hijab could also not be established as an Essential Religious Practice. The Court observed that the matter primarily concerned the school’s dress code and institutional discipline.

What is the Essential Religious Practices Doctrine?

• • • The Essential Religious Practices (ERP) doctrine is a judicially developed principle used to determine which religious practices receive constitutional protection under Articles 25 and 26.
    • Article 25 guarantees freedom of conscience and the freedom to profess, practise and propagate religion, subject to constitutional limitations.
    • Article 26 provides religious denominations the right to manage their own religious affairs, subject to public order, morality and health.
    • The doctrine is generally traced to the Shirur Mutt Case (1954), where the Supreme Court held that practices integral and essential to a religion could receive constitutional protection.

Judicial Intervention:

• • • The ERP (Essential Religious Practices) doctrine has been applied in several important cases:
      • Sabarimala Case (2018): Women’s entry into the temple was upheld in the context of religious freedom and equality.
      • Triple Talaq Case (2017): The Supreme Court invalidated instant triple talaq, stating that it is not an essential religious practice.
      • Karnataka Hijab Case: The Court examined whether wearing the hijab is an essential religious practice in Islam.
    • Courts have also examined religious practices involving religious denominations and animal sacrifice.

Major Criticisms:

• • • Judicial Theological Intervention: Courts may lack the theological expertise required to determine which practices are essential to a religion.
    • Subjectivity: There is no completely uniform test for determining what constitutes an essential religious practice.
    • Religious Freedom vs Social Reform: The doctrine raises questions about how far the State and judiciary should intervene in religious practices to protect equality and dignity.

Constitutional Significance:

The hijab issue highlights the need to balance religious freedom, equality, individual dignity and institutional discipline. It involves Articles 14, 19 and 25 and raises wider questions about constitutional morality and Indian secularism.

Conclusion:

The Allahabad High Court judgment highlights the continuing relevance and controversy surrounding the Essential Religious Practices doctrine. The broader constitutional challenge is to maintain a balance between religious freedom, equality, dignity, social reform and constitutional morality.