ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Discarding or Limiting the Essential Religious Practices Test

Why the Supreme Court Must Be Cautious?

The essential religious practices test is employed by the Indian judiciary for the adjudication of matters of freedom of religion. While there is long-standing criticism of this test by legal scholars, it has its own utilities in the unique Indian social and legal context. Justice Sudhanshu Dhulia’s opinion in the split verdict of the Supreme Court over the issue of wearing hijab by Muslim girl students strikes a balance between its demerits and its utilities. However, such a balancing approach raises its own social and legal concerns which must be addressed by the courts if it seeks to adopt Justice Dhulia’s approach.

 

The author acknowledges the valuable comments and suggestions provided by the anonymous reviewer of EPW for the betterment of this paper.

In October 2022, in Aishat Shifa v State of Karnataka,1 a division bench of the Indian Supreme Court has come up with a split verdict in the matter relating to the right to wear hijab in state-funded academic institutes by girl students belonging to the Muslim community. The impugned order from the state government directed schools and pre-university colleges to adhere strictly to uniform as prescribed in the order, without any scope of religious observances by the girl students in the schools and colleges. Based on this order, various institutes prevented girl students—of the Muslim community—from wearing headscarves or hijab and asked them to take those off before entering the campus (Times of India 2022). In the Karnataka High Court—which upheld the validity of the order—the order was challenged for being violative of freedom of religion of the affected students. On appeal, the Supreme Court came out with a split verdict—Justice Hemant Gupta upheld the validity of the order while Justice Sudhanshu Dhulia declared the impugned order as unconstitutional.

Interestingly, neither of them used the essential religious practices (ERP) test to arrive at their respective opinions, which is the established legal standard in matters relating to freedom of religion. That means, neither of the divergent opinions were based upon determining if wearing a hijab is an “essential or integral” part of Islam, so that it may be worthy of constitutional protection. A more significant departure from the established jurisprudence is Justice Dhulia’s opinion, in which he has specifically done away with the ERP test whenever an individual’s rights is curtailed by a state regulation. Now that the matter has been referred to a larger bench, it gives the Supreme Court a fresh opportunity to discard or limit the applicability of the ERP test, which has been criticised by legal scholars, time and again, on multiple grounds. It is pertinent to note that a nine-judge bench has already been constituted separately, which, among other issues, has been entrusted to determine the scope of the ERP test (Mathur 2020).

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