A 3 Judge bench of the Karnataka High Court recently upheld the ban on hijab in educational institutions of the state by holding that wearing of hijab by Muslim women is not an essential religious practice in Islam.
Whether wearing a hijab or headscarf is a part of ‘essential religious practice’ in Islamic Faith protected under Article 25 of the Constitution was one of the major questions for consideration before the court.
In the words of the court, “whether the wearing of hijab is a part of essential religious practice in Islam is the jugular vein” of all these matters pertaining to the case.
What is the essential religious practice doctrine in the Indian context and how it is to be ascertained? Read this on till the end to learn more.
Essential Religious Practice Doctrine
Essential religious practice doctrine is a method of interpretation adopted by Indian constitutional courts to determine the core and essential aspects of a religion that should be protected under the freedom of religion guaranteed by the Indian constitution.
The Indian Supreme Court first laid down the principles for determining what is an ‘essential religious practice’ vide Commissioner of Hindu Religious Endowments Madras v Sri Lakshmindra Thirtha Swamira of Sri Shirur Mutt 1954 case popularly known as the Shirur Mutt case.
History of Essential Religious Practice
The essential religious practice doctrine can plausibly be traced to the Chief Architect of the Indian Constitution, Dr. BR Ambedkar.
While addressing the Constituent Assembly during debates on the Codification of Hindu Law he said-
“The religious conception in this country is so vast that they cover every aspect of life from birth to death…there is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious“.
Taking a cue from the ideas of Dr. Ambedkar, the Supreme Court later came up with the essential religious practice doctrine.
Shirur Mutt Case 1954
The apex court held that to be an essential religious practice that merits protection under Article 25, it has to be shown to be essential to the religion concerned, in the sense that if the practice is renounced, the religion in question ceases to be that religion.
One must note here that limitations imposed on religious practices on the ground of public order, morality and health having already been saved by the opening words of Article 25(1), the saving would cover beliefs and practices even though considered essential or vital by those professing the religion.
The essential religious practice doctrine laid down by the apex court, in this case, was subsequently upheld in several later judgments.
Some noteworthy mentions include cases like Durgah Committee Ajmer v Syed Hussain Ali, Javed v State of Haryana, Shayara Bano, and Indian Young Lawyers Association, etc.
Acharya Jagadishwarananda Avaduta Case 1983
In Acharya Jagadishwarananda Avaduta v Commissioner Of Police Calcutta 1983 case, the apex court observed that the protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies, and modes of worship which are essential or integral part of religion.
The court held that “what constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion”
“What is meant by “an essential part or practices of a religion” is now the matter for elucidation. The essential part of religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to following a religious belief.
It is upon the cornerstone of essential parts or practices that the superstructure of religion is built, without which religion will be no religion.”
Test to determine Essential Religious Practice
In the Acharya Jagadishwarananda Avaduta case, the apex court held that the test to determine whether a part of the practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice.
In the words of the court, “if the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part”.
“There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution.”
“Nobody can say that an essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.”
Shayara Bano v UOI 2017 (Tripple Talaq Case)
Since Shayara Bano Case on triple talaq, there has been a paradigm shift in the approach to the concept of essential religious practice.
Here the court held that religious practices that militate against fundamental values and liberties provided by the constitution cannot be accorded protection under freedom of religion even if they are essential religious practices.
In the wordings of the court, “while the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty, and equality constitute the trinity which defines the faith of the Constitution.”
“Together, these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy”, the court held further.
Indian Young Lawyers Association 2018 (Sabarimala Case)
In the Indian Young Lawyers Association v The State Of Kerala 2018 case, the supreme court laid the following characteristics to determine the essential religious practice doctrine.
The court said that ordinarily, a religious practice in order to be called an ‘essential religious practice’ should have the following indicia:
- Not every activity associated with the religion is essential to such religion.
- Practice should be fundamental to religion and
- It should be from the time immemorial.
- Foundation of the practice must precede the religion itself or should be co-founded at the origin of the religion.
- Such practice must form the cornerstone of religion itself.
- If that practice is not observed or followed, it would result in the change of religion itself and,
- Such practice must be binding nature of the religion itself and it must be compelling.
The court also said that that a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution.
Conclusion
In Conclusion, a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values that are illustratively mentioned in the Shayara Bano case.
To put it differently one has to prove that impugned religious practice is not only a fundamental and essential religious practice of that particular religion but also that the practice concerned is not violative of the broad constitutional values especially the fundamental rights and constitutional morality.
It’s a matter of concurrent requirement. It hardly needs to be stated, if essential religious practice as a threshold requirement is not satisfied, the case does not travel to the domain of those constitutional values.
