As the Karnataka High Court hears petitions by Muslim women seeking wear the hijab to college, the case has included debates about whether the headscarf is an essential religious practice of Islam.

Senior advocate Devdatt Kamat, who is representing a petitioner, has argued that the hijab is indeed an essential religious practice. But the Karnataka Advocate General, Prabhuling Navadgi has contested the claim.

While the Constitution does not draw a distinction between “essential” and “non-essential” practices of a religion, courts have formulated this test starting from the 1950s in cases involving disputes over religion. They have held that the constitutional guarantee of the freedom of religion applies only to practices that are essential to that religion, conventions without which the nature of the faith would be transformed.

As a result of this emphasis, in cases involving the freedom of religion, parties often argue on whether a practice is essential to a religion or not.

What is the essential religious practices test?

Article 25(1) of the Constitution of India guarantees freedom of conscience and the right to practise religion. Article 26(b) also gives religious denominations the right to manage their “own affairs in the matters of religion”.

Over the years, the courts have held that only the practices that are essential to a religion will be protected under these provisions. Thus courts are often called to test whether something is an essential religious practice or not.

While there is no precise definition of what constitutes essential religious practice, courts have laid down some principles. The Supreme Court has held that the essential part of a religion refers to the “core beliefs upon which a religion is founded”. The test for essential religious practice is to see if the “nature of the religion will be changed without that” practice.

The Supreme Court has said that if taking away that practice results in a “fundamental change in the character of that religion”, then that practice is an essential practice.

The Supreme Court has also said that the determination of what qualifies as essential has to be made “according to its tenets, historical background and change in evolved process etc”.

Officials at a college in Shivamogga putting a prinout of an interim order by the Karnataka High Court banning religious clothing in certain institutions. Credit: PTI.

How did the essential religious practice test start?

Initially, essential religious practices were bought in by courts in order to distinguish between what is secular and what is religious. Since Article 25(2)(a) gives the government power to enact a law to regulate or restrict “any economic, financial, political or other secular activities which may be associated with religious practice” this distinction was important.

As a result, in 1954, when the Supreme Court first used the term “essential part of a religion” it was to separate an “essentially religious” activity from a secular activity in a case that involved government control over temples. Here the court gave the power to the religious denomination to decide what would constitute an essential practice.

However, the courts went beyond this in the next few years.

A 1958 Supreme Court judgment looked into ancient texts to determine if temples had the right to determine which ceremonies and rituals were essential in a case relating to the entry of Dalits. This was a shift in the court’s approach in dealing with religious cases, as noted in later judgments as well.

Thus from differentiating religious practices from secular ones, the essential religious practices test morphed into determining what practices are “essential to a religion”. With this, the courts also started looking into texts and the practices themselves to determine if a religious practice was essential.

What are some examples of essential practices?

The doctrine of essential religious practices has since been used in multiple instances, often with major consequences. The first instance of the Supreme Court deciding on a ban on cattle slaughter, in 1959, was tested on whether it was essential for Muslims to sacrifice cows on Bakr-Id. If it passed the essential religious practises test, it could then be protected under Article 25. The court looked at various scriptures and texts and decided that cow slaughter was not a compulsory practice in Islam.

In 1994, while deciding on the acquisition of property in and around the site of the Babri Masjid, the Supreme Court said that a mosque is not an essential part of Islam and prayers could be offered anywhere, even in the open. It also said that the government could acquire the site on which the mosque stood and that would not be prohibited by the Constitution.

In 2017, the Supreme Court held that instant triple talaq is not an essential practice of Islam.

In the Sabarimala case from 2018, where women between the ages of 10 and 50 were prohibited from entering the Sabarimala temple, the judges held that this was not an essential religious practice and thus women could be allowed to enter.

In 1962, the court held that the religious head of the Dawoodi Bohra sect of Islam has the power to excommunicate members while in 1983, it ruled that the tandava dance was not essential to the Ananda Margi sect of Hinduism.

Currently, the essentiality of different religious practices such as female genital mutilation and entry of Muslim women in mosques is pending before the Supreme Court.

Activists belonging to the Delhi University Muslim Students Federation protest against the ban of wearing hijab in a Karnataka college, in New Delhi on Tuesday. Credit: Vijay Verma/PTI.

What are the criticisms of the essential religious practices test?

The essential religious practices test developed by the Supreme Court has come under significant criticism. In the Sabarimala verdict, Justice DY Chandrachud spent an entire section talking about why this test is problematic and could be replaced with better tests given that courts don’t have the competence to rule on faith.

He pointed out that the essentiality test is a “judicial creation” and the court’s legitimacy to decide on the faith of people “may be questionable”. Other authors have pointed out that our judicial system exists to adjudicate on “secular constitutional statutory and common law issues” and not on theology.

Criticism has also revolved around the allegations that courts apply the test arbitrarily. For instance, Chandrachud said that the tandava dance in public was “prescribed in a religious text by the founder of the sect [Ananda Margis]”. Yet the Supreme Court disregarded that to rule that the practice was not essential since the practice did not date to the founding of the sect and the founder had not provided justification for it.

Currently, a review of the Sabarimala verdict from 2018 is pending before the Supreme Court. In that case, it will reconsider the legality of the essential religious practices test, amongst other issues.

How has essential religious practices been used in the hijab case?

The essential religious practices test has taken the centre stage in the hijab case. Although the petitioners have also argued that disallowing the hijab is discriminatory and affects freedom of speech, the primary argument from their side is based on the essentiality of the hijab to Islam.

This, in turn, has been challenged by the government. They have said that such a declaration would force other Muslim women to wear the hijab. “In a case like this, where you want to bind every Muslim woman, and which can give rise to religious sentiments and division, you should have shown more circumspection to lay a foundation,” the advocate general said.

He also added that the government has left the choice to institutions on what uniform they want to prescribe. The advocate general has further pointed out that the petitioners should have framed this issue not as a denial of a “religious symbol” but as a denial of a “head scarf”.

The government has also said that the burden is on the petitioners to show why the hijab is an essential religious practice. As part of its arguments, the government drew attention to instances where the court held certain Islamic practices to not be essential – such as cow slaughter, triple talaq and praying at a mosque.

Earlier, lawyers like Gautam Bhatia had also pointed out that framing the hijab as an essential religious practice takes away the individual agency of the woman to decide if they wish to wear the hijab. Rather, arguments along the lines of freedom of speech, right to privacy and freedom of conscience would respect individual agency better in this case.