The Essential Religious Practices Test And The Inversion Of Agency: Notes From The Hijab Hearing

On this blog, I have previously criticised the ERP test. While there are good reasons for jettisoning the test – not least that it has no foundation in the Constitution, has been repeatedly demonstrated to be arbitrary, and that other – better – tests exist, in this post I want to make another point: by its very nature, the ERP test is set up to deny and negate individual agency. And there is no better evidence of that than the ongoing – and now suspended – proceedings before the Karnataka High Court, concerning the exclusion of Muslim women students from certain schools and colleges because they were wearing the hijab.

It is important to start by noting that there exist multiple reasons why someone might wear the hijab, and – as in most cases involving community symbols (especially gendered symbols) – these reasons exist along a spectrum between choice and coercion. For some, it may be a defence of a beleaguered identity; for others, an expression of that same identity; for still others, a deference to tradition, or a modus vivendi with family members; or in still other cases, outright coercion. The point is that unlike certain other social practices (say, for instance, the Nazi salute – or, perhaps a closer analogy, the practice of FGM), in our context, the wearing of the hijab is not subject to one specific meaning or interpretation. And it is obviously impossible for the State to investigate every specific instance of someone wearing the hijab in order to determine just how free or unfree that choice was.

Now, given that there might be a range of reasons why someone might wear the hijab, what – specifically – was the reason that came to the fore in the case before the Karnataka High Court? The very first thing that the Petitioners' counsel invoked was the Quran, and he then proceeded to read from it. Counsel then went on to quote various hadith, according to which "it is not correct for a woman to show her parts other than her hands and face to strangers after she begins to have menstruation" (sic), that women's garments should be "lowered a hand span" (otherwise, punishment would follow), and then a previous Kerala High Court judgment where – on an analysis of these same lines – it had been observed that the practice of leaving the head uncovered (for women) was "haram" in Islam.

We therefore see how, before the High Court, the entire range of complex reasons for why one might wear the hijab was reduced to one overarching claim: that it was a religious command that brooked no disobedience. In other words, a case that – as a matter of fact – was a case about agency and choice (albeit, complex and situated agency and choice) turned into – in law – a case about the absence of choice and the deprivation of agency. The Court was asked to allow the petition because the Muslim women students effectively had no choice in the matter, for the wearing of a headscarf was a compulsory prescription that flowed from religious authority.

Note that this is not meant to be a criticism of either the counsel (for choosing to lead with this argument) or of the judge (for engaging with its on its own terms). The form of the argument was effectively dictated to all the parties by virtue of the long shadow of the ERP. Because the ERP – in the highly perverse manner in which the Indian courts have interpreted it over the years – applies to prohibitions and proscriptions, but not – seemingly – to things that a religion might simply allow – a successful ERP claim literally depends upon first obscuring and erasing the agency of the petitioners before the Court. It needs to be shown to the Court that the petitioners are helpless in the matter, that they have no say or choice in fashioning for themselves the contours of their religious practice, that the possibility of cultural or religious dissent, or pluralism, or heterodoxy simply does not exist.

In the hijab case, it becomes a particular problem, because once the argument is framed this way, it leaves the Court with one of two choices: either to accept the argument and allow the hijab on the basis of a highly dated and expressly misogynistic and patriarchal logic, and create a legal fiction where women have no agency in the matter; or to reject the argument, and in the process, deny the elements of actual agency that are involved here. It is an impossible choice, and – as I have tried to show in this post – it is a choice that is foisted upon the Court because of the ERP test. The ERP test is based upon the fundamental – and anti-constitutional – premise of legitimising the denial of individual agency.

Instead, would it not be better if the argument took the following form?

1. That dress and clothing are aspects of individual and often social expression (especially when it comes to community symbols), and therefore – regardless of whether the motivation to wear them is religious or otherwise – they are protected under the rights to free speech and privacy (as decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.
2. This means that claims of this kind (where the Court is allowed to look into the subjective sincerity of the belief, but not whether it is objectively "essential" to a religion) should be presumptively allowed, subject to the principle of reasonable accommodaiton.
3. That the burden should then be on the authorities to show why reasonable accommodation is not possible in a specific case: i.e., what is it about the hijab (or other aspects of clothing that meet the first prong) that is fundamentally incompatible with public/educational spaces such as schools or colleges.

Rejecting the ERP test for for a test of this kind would allow courts – especially in contentious cases of this kind – to actually respect the agency and choice of the claimants. In that sense, the hijab case presents the quintessentially "good case" before the courts: it is difficult to imagine another case where the problems with the ERP test are so stark and clear, and where the arguments for jettisoning it in favour of a more constitutionally grounded and just approach are so evident. While, for now, the case is in limbo, I'm fairly sure that we haven't heard the last of this one: a full bench of the Karnataka HC will now consider the issue afresh, and in all likelihood, it will travel up to the Supreme Court. It remains to be seen what the judiciary does now.