Hijab ban: How courts have weaponised the Essential Religious Practices doctrine
Another year, another controversy involving the Essential Religious Practices doctrine. Today, this judicially-created test lies at the centre of the dispute over hijab restrictions in Karnataka’s classrooms. Less than five years ago, it also figured prominently in the Sabarimala litigation.
The Essential Religious Practices doctrine has become so embattled that it is hard to imagine that any judge ever thought the doctrine could be a way to resolve conflicts rather than a way of encouraging them.
In this piece, legal anthropologist and assistant professor at the University of Alabama School of Law Deepa Das Acevedo traces the origin of this doctrine and how its meaning has changed over the years.
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What courts around the world have ruled about religious symbols in school
As the Karnataka High Court considers whether women should be allowed into class with hijabs, it is instructive to place the matter in a global context of judicial decisions on wearing religious symbols, write legal academics Pritam Baruah and Satya Prasoon.
They write that In India, where religious symbols such as sacred threads, teekas on the forehead, turbans, crosses, and the hijab are visible in public spaces, sending out a message of uniformity would require banning of all these. This was the logic in some European decisions banning religious symbols in schools.
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Why is Karnataka HC deciding if the hijab is an ‘essential religious practice’ in Islam?
As the Karnataka High Court hears petitions by Muslim women seeking to wear the hijab to college, the case has included debates about whether the headscarf is an essential religious practice of Islam.
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.
In this piece, Scroll.in’s Umang Poddar explains how the essential religious practices test came to be at the centre of the hijab controversy before the Karnataka High Court and how there were other options available before the petitioners.
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Why a Karnataka college’s hijab ban is an assault on the fundamental right to religion
India’s Constitution guarantees a person the freedom to practise their religion as a fundamental right, subject to certain restrictions. In the past, the courts have held that the right to wear a hijab would fall under the protections guaranteed by the Constitution, writes Umang Poddar.
Here is what the courts have said when deciding on similar matters.
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