High Court’s Verdict on Hijab Controversy
• Some pre-university colleges in Karnataka refused entry to Muslim girl students wearing hijabs, or headscarves.
What the contenders pleaded –
• Religious Freedom Protected under the Constitution – Article 25(1) of the Constitution guarantees the “freedom of conscience and the right to freely profess, practise and propagate religion”.
• However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
Karnataka HC Verdict
• Whether wearing of hijab is an essential religious practice in Islam protected under Article 25 of the Indian Constitution.
• Whether prescription of school uniform violates constitutional rights.
• Whether the government order issued on February 5 violates Articles 14 and 15, apart from being incompetent and manifestly arbitrary.
• Whether any case is made out for issuance of disciplinary inquiry against college authorities.
Does prescription of school uniform violates constitutional rights
• Prescription of school uniform does not violate either right to freedom of speech and expression under Article 19(1) (a) or right to privacy under Article 21.
Does it violates Articles 14 and 15
• This was asked as wearing Hijab is allowed in Kendriye vidyalayas which are central institution.
• Court answered this in the negative.
Essential religious practice
• ERPT doctrine was evolved by Supreme Court (SC) in ‘Shirur Mutt’ case (1954) to protect only such religious practices which were essential and integral to the religion.
• Court held that term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining essential and non-essential practices of a religion.
• This attempt to differentiate essential and non-essential practices was taken up in various judgments.
• In 1983, SC upheld Tandava was not an essential religious practice among those in Ananda Margis sect.
• In Sabarimala case (2018), SC ruled that bar on entry of women in the age-group of 10 to 50 was not an essential part of the religion.
• According to the Court, wearing of hijab (head scarf) by Muslim women does not form a part of essential religious practicesin Islamic faith and is not protected under right to freedom of religion under Article 25 of Constitution.
Criticism against ERPT
• Doctrine has tended to lead court into an area that is beyond its competence, and given judges power to decide purely religious questions.
• Essentiality test impinges on the autonomy of an individual to practice one’s religious beliefs as provided by freedom of religion