DH Deciphers | What is the essential religious practices test?

On March 15, 2022, the High Court of Karnataka dismissed petitions filed by a group of Muslim girls seeking permission to wear hijab (headscarf) in classrooms. The petitioners argued, unsuccessfully, that the wearing of hijab is a part of the "essential religious practice" in Islam and therefore protected under Article 25 of the Constitution. Here's a closer look at the essential religious practices test and how it is linked to Article 25:

How did the essential religious practices test come about?

Essential religious practices mean all those practices that are fundamental to a religion and not following them would result in the change of religion itself. Further, denying the essential religious practices would violate Article 25, which talks about the freedom of conscience and free profession, practice and propagation of religion.

Also Read | A timeline of the hijab row in Karnataka

In Tuesday's judgement, the high court said that the doctrine of essential religious practices can plausibly be traced to Dr B R Ambedkar's famous statement in the Constituent Assembly during the debates on the codification of Hindu Law: "The religious conceptions in this country are 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..."

Can the government curtail essential religious practices?

The government can impinge upon essential religious practices on three grounds under Article 25(1): public order, morality or health. For example, during the pandemic, the government shut down mosques, temples and other places of worship.

Additionally, Article 25 (2) says "nothing in this article shall affect the operation of any existing law or prevent the state from making any law,

a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus...

The judicial view of Article 25 (2) has been that whatever law the state might make regulating economic, financial, political, secular activity with religious practice or law for social welfare or reform of that religious practice, it cannot keep the religion out of its existence.

How have courts dealt with the question of essential religious practices?

Some of the cases dealt with by the Supreme Court on the question of the essential religious practices include:

1) The Shirur Mutt case, 1954: A seven-judge bench held that the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.

2) Sardar Syedna Taher Saifuddin Saheb vs the State of Bombay, 1962: A five-judge, with a majority of 4:1, upheld the right and power of the head priest of the Dawoodi Bohra community to excommunicate members. The court reiterated that essential practice is to be gathered from the texts and tenets of the religion.

3) Acharya Jagadisharananda (Tandava Dance), 2004: The Supreme Court ruled that Tandava dance was not an essential practice of the Ananda Marga faith. It again said that what determines if a practice forms an essential part of the religion is whether the absence of the practice fundamentally alters the religion.

4) Shayara Bano (Triple Talaq), 2017: The Supreme Court held that Triple Talaq was against the basic tenets of the Qur'an and violative of the Shariat. A practice merely permitted or not prohibited by religion cannot be considered an essential or positive tenet sanctioned by religion, it said.

5) Sabarimala, 2018: A five-bench bench ruled that the ban on women aged 10-50 from entering the Sabarimala Temple was not an essential religious practice.

What has the high court said in the hijab case?

Citing different rulings of the Supreme Court and various high courts and drawing upon from the Qur'an and other sources of Islamic law, a three-judge bench of the High Court of Karnataka was of the "considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith".

It said: "The Holy Quran does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the above sūras, we say, is only directory, because of absence of prescription of penalty or penance for not wearing hijab, the linguistic structure of verses supports this view."

The court also said: "It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion."

What's the way forward?

In 2019, hearing review petitions in the Sabarimala case, a five-judge bench, by a 3-2 majority, referred to a larger bench seven different issues. Among them are:

a) The extent to which the court can enquire into whether a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left to be determined by the head of the section of the religious group alone.

b) Whether the essential religious practices of a religious denomination or even a section thereof have constitutional protection under Article 26.

In 2020, a nine-judge bench was set up to examine these issues but a hearing is yet to take place.

(With inputs from Ashish Tripathi in New Delhi)

Check out latest DH videos here