What is the issue?
The Karnataka High Court’s ban on the use of the hijab by students quoting the doctrine of essential practice needs a theological study beyond legal analysis.
What is the hijab case about?
The dispute erupted in Karnataka when some Muslim students who wanted to wear hijab to classes were denied entry on the grounds that it was a violation of the college’s uniform policy.
The Karnataka government issued an order stating that uniforms must be worn compulsorily where policies exist and no exception can be made for the wearing of the hijab.
Several educational institutions cited this order and denied entry to Muslim girls wearing the hijab.
Petitions were filed in the Karnataka High Court on behalf of the aggrieved students.
What is the High Court judgment?
The Karnataka High Court made three primary findings in its judgment.
Essential practice- It held that the use of a hijab is not essential to the practice of Islam.
Thus, the right to freedom of religion was not violated.
Right to freedom- It ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were not at stake here.
In High Court’s belief, classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.
State discrimination- It held that the ban did not stem directly from the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees.
Hence, the law did not discriminate, either directly or indirectly, against Muslim students.
What is the essential practices doctrine?
The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly.
Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.
In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices integral to religion.
The test to determine what is integral is termed the “essential religious practices” test.
What constitutes the essential part of a religion is to be determined with reference to the doctrines of that religion itself.
How has the court interpreted the essential religious practices to test in the past?
In Bijoe Emmanuel vs State of Kerala (1986), students belonging to the denomination of Jehovah’s Witnesses were allowed to abstain from singing the national anthem that they claimed to contradict their religious faith.
In 2004, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
The Supreme Court of Canada in the Multani case (2006) upheld the right of a Sikh student to wear a Kirpan while attending class, without harming others.
In 2016, the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard, distinguishing the case from that of Sikhs who are allowed to keep a beard.
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The doctrine of essential religious practices,The doctrine of essential religious practices