Essential Religious Practices—The Heart of the Hijab Ban Challenge
DESK BRIEF: The question of whether the hijab is an Essential Religious Practice appears to be at the heart of the hijab ban challenge.
The Hijab Ban hearings at the Karnataka High Court are expected to come to a close this week. In the hearings so far, Muslim students argued that the hijab ban in State educational institutions violated their Rights to Freedom of Expression, Equality, and more importantly, their Right to Religious Expression. At the heart of this claim is the idea that wearing the hijab is an Essential Religious Practice.
Essential Religious Practices or fundamental aspects of a religion, are protected by Articles 25 and 26 of the Constitution. These provisions guarantee the Right to Religious Expression and the Rights of Religious Denominations.
This week, the State countered the Muslim students’ claim, arguing that the Supreme Court’s jurisprudence so far has been unequivocal—only the most vital aspects of a religion are protected by the Constitution. The State argued that the practice of wearing the hijab is not integral to Islam.
The Essential Religious Practices doctrine has not been spared from critique. It is Courts and not the religious denominations themselves that have the power to determine whether a practice is ‘essential’ to a religion. Scholars and in some cases the Courts themselves have raised the question of institutional competence. Determining the integral aspects of a religion requires a deep study of doctrine, which Courts may not have the expertise to conduct.
Scholars argue that the doctrine may have a homogenising impact on religions such as Hinduism that can be practised in diverse ways. Another possible concern is the ability of the doctrine to legitimise oppressive practices on the ground that they are integral, indispensable aspects of a religion.
It remains to be seen how the Karnataka High Court will engage with the Essential Religious Practices doctrine. Will the Court apply the doctrine uncritically, or will the Bench engage with its myriad contradictions, critiques and controversies?
Find our analysis of the Supreme Court’s seminal cases on the Essential Religious Practices doctrine here.