Article 25 of the Indian Constitution reads, subject to public order, morality and health and other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Freedom of religion in India, like in many other jurisdictions, is not an absolute right, it is qualified by a limiting clause that grants discretion to state authorities when they can limit the exercise of the right to freedom of religion, namely public order, health, and morality.
There is no mention of the ‘essential religious practice test’ in the text of the constitution, which was recently used by the High Court of Karnataka in its decision upholding the ban on hijab in classrooms. The Supreme Court established this doctrine (essential religious test) in the case of Shirur Mutt in 1954, which states that the term religion concerning Article 25 will cover rituals and practices that are integral to religion. One of the many questions framed by the Karnataka High Court in the Hijab case was whether the hijab is an essential Islamic practice protected by Article 25 of the Indian Constitution.
One assumption of the essentiality doctrine is that only religious practices that are essential to religion are protected under article 25, thereby drawing a line between essential and non-essential practices and excluding non-essential religious practices from the protection of Article 25. However, as previously stated, nowhere in the text of the constitution is it mentioned that only essential religious practices are protected. Rather, it refers to the protection of religious freedom and freedom of conscience, subject to the limitations stated in the article.
In the past, constitutional scholars have criticized the essentiality test. Faizan Mustafa contends that secular courts should not assume the role of clergy and should refrain from deciding what is essential to religion because courts, in his opinion, are not competent to decide purely religious matters. According to Gautam Bhatia, one of the enduring burdens of Indian constitutional law is the essential religious practice test.
ERP shifts the burden of proof from the state to the citizen (claimant of a fundamental right). With the implementation of the ERP test, a claimant is required to demonstrate that a practice is an essential practice of his or her religion. It is humbly submitted that the burden should be on the state to prove that the restrictions imposed by the state are in accordance with the limitations as provided in Article 25 because, as a matter of good governance policy, citizens should be free to practice their religion freely unless and until it becomes a nuisance to a third person or society at large.
Another contention regarding the ERP test is that it forces the claimant to accept a particular interpretation of religion (in most cases, the majority interpretation). It precludes the claimant from defining what religion means to her/him. Because, at the end of the day, what should matter is how important a specific religious practice is to that individual.
The claimant’s understanding of religion should be the focal point (personal autonomy). To resolve the issue of religion, an ‘assertion test’ can be used, in which a petitioner simply asserts that a particular practice is a religious practice. As Jaclyn L. Neo argues, the emphasis should be on the sincerity of religious belief.
The second question that HC framed was whether the prescription of a school uniform by educational institutions violates freedom of expression and privacy. It should be noted that the petitioners never questioned the legitimacy of the uniform itself, their only request was that they be permitted to wear a hijab of the same color as the uniform. Article 19 (1) (a) of the Constitution guarantees citizens the right to free speech and expression, subject to reasonable limitations as specified in subclause ‘2’ of the same article.
The Supreme Court ruled in the case of NALSA v Union of India that gender identity can be expressed through dress and that this right is protected under Article 19. In this case, the court acknowledged that dress can be used as a form of expression in certain circumstances.
According to Gautam Bhatia, in multiple jurisdictions around the world in cases involving issues of dress, courts have generally adopted the principle of reasonable accommodation, which fundamentally states that wherever possible, the state should make arrangements for diverse populations, based on need, so that the larger purpose of governance is served in the best possible manner. Court should have accommodated the practice of wearing hijab within the broader framework of school uniforms.
In the hijab case, the High Court should have considered the petitioners’ interests, the majority of whom are students, and how banning hijab is affecting their education. Furthermore, I believe that prohibiting the wearing of a hijab does not qualify as a reasonable restriction under Article 19. (2). In its order prohibiting the wearing of the hijab, the State mentioned public order as one of the reasonable restrictions.
In Supt. Central Prison v Ram Manohar Lohia, the Supreme Court defined “public order” as “the expression (public order) is synonymous with public peace, safety, and tranquillity.” It’s difficult to see how a piece of cloth worn around the head (just like a normal headscarf) could be a threat to public order. There are numerous schools and colleges in India where students wear religious symbols like hijab and turbans in classrooms and there has been no issue of public disorder.
The Supreme Court ruled in the same case (Ram Manohar Lohia) that the restriction should not be hypothetical. However, it appears that the Karnataka High Court used hypothetical reasoning in its decision. ‘An extreme argument that the students should be free to choose their attire in the school individually if countenanced would only breed indiscipline that may eventually degenerate into chaos in the campus and later society in large,’ the judgement states on pages 105 and 106.
As previously stated, petitioners did not ask for the right to wear whatever they wants in school. The entire case was adjudicated by the high court on the importance of school uniforms when it should have focused more on the question of agency. Surprisingly, the court compared school spaces to prisons in classifying them as ‘quasi-public space.’ In such spaces, the fundamental right, according to the court, does not have the same effect as in other public spaces.
This analogy is interesting because it resonates with Foucault’s comparison of schools and prisons. This case will almost certainly be appealed to the Supreme Court, it is hoped that the Court will overturn the judgement due to its flawed reasoning, and justice will be served to thousands of students protesting against the State’s discriminatory practices.
