Both Judges Of SC Bench Did Not Decide Whether Hijab Is An Essential Religious Practice

Though the Supreme Court delivered a split verdict in Hijab ban case, both the judges of the bench did not decide the question whether the wearing of hijab is considered as an essential religious practice. The Karnataka High Court had held that hijab was not an essential religious practice of Islam and hence the petitioners could not claim protection under Article 25 of the Constitution.

Justice Hemant Gupta observed that the practice of wearing of hijab may be a 'religious practice' or an 'essential religious practice' or it may be social conduct for the women of Islamic faith. According to Justice Sudhanshu Dhulia,the question of ERP was not essential to the determination of the dispute.

Justice Gupta, in his judgment, recorded various submissions made on Quranic and other religious texts and also the judgments on Essesntial Religious Practice test.

"But I would examine the question that if the believers of the faith hold an opinion that wearing of hijab is an essential religious practice, the question is whether the students can seek to carry their religious beliefs and symbols to a secular school", the judge observed. He answered this question against the appellants students.

He noted that the essential religious practice in most of the cases related to (i) right of management of places of worship, (ii) right of individual qua places of worship and (iii) curtailment of fundamental rights of individuals through religious practices. The judge observed:

"The claim of the appellants is not to perform a religious activity in a religious institution but to wear headscarf in public place as a matter of social conduct expected from the believers of the faith. But in the present, the students want to subjugate their freedom of choice of dress to be regulated by religion than by the State while they are in fact students of a state school. The equality before law is to treat all citizens equally, irrespective of caste, creed, sex or place of birth. Such equality cannot be breached by the State on the basis of religious faith."

The practice of wearing of hijab may be a 'religious practice' or an 'essential religious practice' or it may be social conduct for the women of Islamic faith. The interpretations by the believers of the faith about wearing of headscarf is the belief or faith of an individual. The religious belief cannot be carried to a secular school maintained out of State funds. It is open to the students to carry their faith in a school which permits them to wear Hijab or any other mark, may be tilak, which can be identified to a person holding a particular religious belief but the State is within its jurisdiction to direct that the apparent symbols of religious beliefs cannot be carried to school maintained by the State from the State funds

No comparison possible with Sikh practices 

Justice Gupta also noted a judgment of Full Bench of the Punjab & Haryana High Court in Gurleen Kaur v. State of Punjab  which held that the essential religious practice of the followers of Sikh faith includes retaining hair unshorn, which is one of the most important and fundamental tenets of the Sikh religion.

"It appears that no appeal has been filed against the judgment of the Full Bench. Thus, the said judgment is final as on today. The issue in the present appeals is not the essential religious practices of the people following Sikh faith. It would not be proper to discuss the essential religious practices of the followers of the said faith without hearing them. The practices of each of the faith have to be examined on the basis of the tenets of that religion alone. The essential religious practices of the followers of Sikh faith cannot be made basis of wearing of hijab/headscarf by the believers of Islamic faith.", the judge said.

Justice Dhulia also refuses to go into ERP

Justice Dhulia criticised the High Court for going into the issue of ERP.

"In my opinion, the question of Essential Religious Practices, which we have also referred in this judgement as ERP, was not at all relevant in the determination of the dispute before the Court. I say this because when protection is sought under Article 25(1) of the Constitution of India, as is being done in the present case, it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against "public order, morality and health," and of course, it is subject to other provisions of Part III of the Constitution"

"The approach of the High Court could have been different. Instead of straightaway taking the ERP route, as a threshold requirement, the Court could have first examined whether the restriction imposed by the school or the G.O on wearing a hijab, were valid restrictions? Or whether these restrictions are hit by the Doctrine of Proportionality"

According to Justice Dhulia, the Courts should be slow in the matters of determining as to what is an ERP. The judge, in his opinion, observed thus:

In my humble opinion Courts are not the forums to solve theological questions. Courts are not well equipped to do that for various reasons, but most importantly because there will always be more than one viewpoint on a particular religious matter, and therefore nothing gives the authority to the Court to pick one over the other. The Courts, however, must interfere when the boundaries set by the Constitution are broken, or where unjustified restrictions are imposed...It may or may not be a matter of essential religious practice, but it still is, a matter of conscience, belief, and expression. If she wants to wear hijab, even inside her class room, she cannot be stopped, if it is worn as a matter of her choice, as it may be the only way her conservative family will permit her to go to school, and in those cases, her hijab is her ticket to education

The Judge also noted that the Essential Religious Practice, in all its complexities, is a matter which is pending consideration before a Nine Judge Constitutional bench. Therefore in any case it may not be proper for me to go any further into this aspect, he added.