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EDITORIAL ANALYSIS : The hijab case and the essential practices doctrine

Source: The Hindu

 

  • Prelims: Supreme Court, Article 25, 26 and Article 14 etc
  • Mains GS Paper I and II: Structure, organization and functioning of judiciary, role of judiciary in furnishing FRs etc

 

ARTICLE HIGHLIGHTS

  • A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka

 

INSIGHTS ON THE ISSUE

Context

The Doctrine of Essentiality

  • Seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
  • Essential religious practice test: It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religio

 

B.R. Ambedkar  on essential practices doctrine:

  • Governing laws: It is not necessary that laws relating to tenancy or laws relating to succession should be governed by religion.
  • State intervention: State should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.

 

Effects of Essential Practice Doctrine:

  • Religious customs: It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves .

 

Rights violated due to ban:

  • Rights of students to freedom of expression
  • Right of conscience and religion.
  • Right to education of Muslim women.

 

How is Religious Freedom Protected under the Constitution?

  • Article 25(1): Freedom of conscience and the right freely to profess, practise and propagate religion”.
  • Negative liberty: It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
  • Restrictions: However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

 

Karnataka High Court findings:

  • No violation of freedom of religion: The use of a hijab is not essential to the practice of Islam.
  • Freedom of expression or privacy: There exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here.
  • Law does not discriminate: The ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees.

 

Principle of anti-exclusions:

  • Proposed by Justice D.Y. Chandrachud in Sabarimala temple entry case.
  • Religious tenets and doctrine: It allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines.
  • Freedom of religion: Where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the overarching values of a liberal constitution.

 

 

Way Forward

  • The essential practice doctrine: It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example,prohibited excommunications made by the Dai of the Dawoodi Bohra community(by High court)
  • Religious sentiments: They should not prevail while taking decisions on such matters but it should be based on the combination of rationality and modern views.
  • Beyond legal: This requires judges to engage not merely in legal analysis but also in theological study, something an education in the law scarcely equips one to perform.
  • Constitutional laws: The Supreme Court should decide these questions based on settled canons of constitutional law.

 

 

QUESTION FOR PRACTICE

  1. Women’s movement in India has not addressed the issues of women of lower social strata.’ Substantiate your view.(UPSC 2018)

                                                                                    (200 WORDS, 10 MARKS)