SC Delivers Split Verdict On Hijab Issue : Daily Current Affairs

Date: 14/10/2022

Relevance: GS-2: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Key Phrases: Freedom of religion, Essential Religious Practices, Judicial Overreach, reasonable accommodation.

Why in News?

A two-judge Bench of the Supreme Court comprising Justice Hemant Gupta and Justice Sudhanshu Dhulia, has been unable to resolve the conflict between a girl student’s freedom to wear a head-scarf and the state’s interest in keeping schools a place of equality and secularism.

Key Divergences in the verdict:

Justice Dhulia has empasized education as the core issue while Justice Gupta opined that religion is not a central issue in this case.
While Justice Gupta feels that allowing religious symbols in schools can lead to fragmentation, Justice Dhulia thinks that it can sensitise students to diversity and promote tolerance.
Justice Gupta advocates a strict view of discipline, without the slightest of the deviation, which will ensure a collective uniformity. On the other hand, Justice Dhulia advocates reasonable accommodation to balance the individual dignity and privacy. Justice Dhulia says that classrooms need not have the degree of discipline expected in a military camp or a jail.

Background:

On December 27, after Muslim students in the government-run Pre-Government College in Karnataka’s Udupi district were prevented from entering classrooms on account of wearing hijab, the issue assumed communal overtones.
Hijab bans were imposed in other parts of the state. Instead of dousing fires, the state government upheld the ban and directed that colleges ensure that “clothes which disturb, equality, integrity and law and order shouldn’t be worn”.
The Karnataka HC ratified this order on March 15 by invoking the essential practices doctrine. It held that wearing the hijab is not an essential religious practice in Islam and is not, therefore, protected under the right to freedom of religion guaranteed by Article 25.
The High Court bench also upheld the legality of the Karnataka government’s previous order prescribing guidelines for uniforms in schools and pre-university colleges under the provisions of the Karnataka Education Act, 1983.

Constitutional and Legal Provisions:

Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practice and propagate religion”.
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.
However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.

Landmark Judgments:

The Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, 1954
- In this case, the Supreme Court held that the term “religion” would cover all rituals and practices “integral” to a religion. The test to determine what is integral was termed the “essential religious practices” test.

Essential Religious Practice Test (Doctrine of Essentiality):

Essential religious practice test is a doctrine evolved by the Supreme Court (SC) to protect only such religious practices under fundamental rights, which are essential and integral to religion.
The court then took the responsibility of determining the essential practices of a religion upon itself.
What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion.
Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief.
Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice.
If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.
There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution.

Bijoe Emmanuel and others vs. State of Kerala (1986)
- Supreme Court ruled that even if a religious belief or practice does not appeal to anyone’s reason or sentiment it would attract the protection of Article 25 if it is genuinely and conscientiously held as part of profession or practice of religion.
- Justice O. Chinnappa Reddy held in this case, "Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it."
Fathima Tasneem v State of Kerala (2018):
- The case involved two girls who wanted to wear the headscarf. The school refused to allow the headscarf.
- Kerala HC held that collective rights of an institution would be given primacy over the individual rights of the petitioner
- However, the court dismissed the appeal as students were no more in the rolls of the School.
Ayodhya Case 2019:
- The Supreme Court held that offering prayers was an essential practice of Islam, but offering prayers in the mosque was not essential practice.

Criticism of the Essential Features Test:

A judicial determination of religious practices that are considered as essential, has often been criticized by legal experts as Judicial Overreach.
It has been criticized by legal experts as it pushes the court to delve into theological aspects.
Legal experts have asked the courts to use the test to prohibit religious practices for public order rather than determine its essentiality in religion.
There are instances in which the court has applied the test to individual freedoms as well. For example, in 2016, a three-judge Bench of the Supreme Court upheld the discharge of a Muslim airman from the Indian Air Force for keeping a beard.
- It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
- The court essentially held that keeping a beard was not an essential part of Islamic practices.

Conclusion:

It is unfortunate that a clear verdict did not emerge from the elaborate arguments advanced before the Court for and against the Karnataka government’s bar on the wearing of the hijab.
The split verdict perhaps reflects the division in the wider society on issues concerning secularism and the minorities.
The dissonance on the bench speaks of the complex questions raised in arguments presented before the court — the powers of the state to impose reasonable restrictions on the freedom of religion and conscience, the essential practices doctrine, individual choice and community identity.
When a new SC bench adjudicates on the matter, it should keep uppermost the question posed by Justice Dhulia: “Are we making her life any better?”

Source: The Hindu , Indian Express

Mains Question:

Q. When a new SC bench adjudicates on the Hijab Issue , it should keep uppermost the question: “Are we making her life any better?”. Elaborate. (250 words).