Hijab Case and Essential Behavior Theory

A two-judge bench of the Supreme Court of India is currently hearing arguments on the correctness of the Karnataka High Court ruling, which upheld the ban on its use. Hijab In the past few days by the students of Karnataka, the counsel for the petitioners has addressed a bundle of different issues, ranging from student rights to freedom of expression, conscience and religion to restrictions on Muslim women’s right to education. effects are included. ,

Theoretically, the issues emerging from these submissions should enable easy resolution through the application of general principles of constitutional law. But, as the transcripts of the hearings have shown us, whenever an argument is made on religious freedom in India, it inevitably gets bogged down in the principle of essential practice as formulated by the court. This requires judges to engage not only in legal analysis but also in religious studies – an education in law rarely prepares one to perform.

Possible action by the Bench

The Karnataka High Court in its judgment made three primary findings. First, it was assumed that a . use of Hijab Not necessary for the practice of Islam. Thus, the right to freedom of religion was not violated. Second, it ruled that no real right to freedom of expression or privacy existed within the classroom and, therefore, these rights were not at stake here. Third, it held that the ban did not arise directly from a government order that only called for a uniform dress code set by state or school management committees, and therefore, the law did not directly or indirectly discriminate. used to do. against Muslim students.

In order to decide on the veracity of this judgment, the Supreme Court need not answer all the questions placed before it. The ban should be set aside as a result of the reversal of any one of the three findings made by the High Court. If the petitioners can establish that the seemingly neutral language of the law does not negate the ringfencing of most forms of expression. Hijab, and for this reason if they can show that Muslim women have been discriminated against, the Bench should overturn the High Court’s decision. Similarly, if the petitioners can establish that there is nothing to suggest that there is no right to freedom of expression within the boundaries of an educational institution, it is up to the State to show that the restriction is proportionate. and is valid. This analysis was never done by the High Court because in its belief, classrooms are “worthy public places” where individual rights must give way to the interests of “common discipline and dignity”.

The Supreme Court should be able to decide these questions on the basis of established principles of constitutional law. And if the Bench finds that the Karnataka High Court has made a mistake in deciding either of these issues against the petitioners – and there is sufficient merit for the petitioners’ arguments here – it may perhaps ignore the question altogether. One may be curious whether the restriction applies to the right to freedom of religion. For that analysis, on the law as it is today, it is necessary to engage in the study of scriptures and traditions, and then to determine how essential the practice is to the faith.

as a kind of inquiry

The principle of essential practices is in existence because of the speech given by BR Ambedkar in the Constituent Assembly. “The religious concepts in this country are so vast that they cover every aspect of life from birth to death,” he said. “… I do not think it is possible to accept such a position … We should then try to limit the definition of religion in such a way that we will not proceed from beliefs and rituals that are formally May be related. Religious in origin. It is not necessary that… Laws relating to tenancy or laws relating to inheritance should be governed by religion.”

Ambedkar was trying to separate the religious from the secular by arguing that the state should be allowed to intervene in matters which are related to religion but are not intrinsically religious.

In fact, in this connection, the Supreme Court in this case Shirur Muto (1954), said that in order to determine what is an ‘essential’ aspect of religion, the Court must look to the religion concerned, and its adherents to the belief that their belief was sought . But since then, the Court has changed this principle to an entirely different form of inquiry with a view to determining what kinds of circumstances the state can legitimately intervene in.

In a series of cases, the Court has assumed something akin to an ecclesiastical power and determined whether a practice that was religious in nature was also “essential” to that religion. The result is a combination of tests through which the Court is now deciding not only whether the state can legally interfere in the interests of social welfare and reform, but also which practices deserve constitutional protection.

effect

The inclusion of this test in the jurisprudence of the Court has achieved at least two things, neither of which is particularly desirable. First, it has allowed the Court to reduce the range of safeguards available to religious customs by directly giving groups the autonomy to decide for themselves what they consider valuable, in the process. violate their right to moral liberty.

Second, it has also rejected legislation that might otherwise extend to the cause of social justice, holding that such laws cannot under any circumstances encroach upon matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited boycotts by Dai of the Dawoodi Bohra community, when it held that the power to disfellowship was an essential aspect of faith and social No measure for the purpose of welfare can improve. religion out of existence

The required practice test is not without options. In the case relating to the ban on entry of women into the Sabarimala temple, Justice DY Chandrachud with his concurrence proposed one such principle: the principle of anti-exclusion. Its application would require the Court to believe that a practice claimed by a religious group is, in fact, essential to the supporters of its faith. But regardless of such grounds, the Constitution will not provide protection to this practice if it excludes people on the basis of caste, gender or other discriminatory criteria. As Justice Chandrachud observed, “The anti-exclusion doctrine allows due respect for a religion’s ability to determine its own religious principles and doctrines. Also, the anti-exclusion doctrine holds that where a religious practice excludes individuals. which undermines their dignity or impedes their access to basic goods, freedom of religion must give way to the highly valued values ​​of a liberal constitution”.

But unless the principle of essential practices is overruled by a bench of not more than seven judges, the court is bound to apply its principles. Perhaps that re-evaluation will happen when the nine-judge bench constituted in the review petitions filed against the verdict in the Sabarimala case delivers the verdict. For now, the task of hearing a matter touching a matter of faith in any court is to act not only as an expert in law but also as an expert in religion.

Suhrith Parthasarathy is an advocate practicing in Madras High Court.