01 Dec The hijab case and the essential practices doctrine

The hijab case and the essential practices doctrine

The topic is based on The hijab case and the essential practices doctrine. The article talks about how The Hijab Case impacts Indian Polity and Governance.  

The doctrine of essential practice requires judges to engage in legal as well as theological study i.e. study of scriptures and conventions.

Origin of the essential practices doctrine: B.R. Ambedkar’s speech in the Constituent Assembly. Through this doctrine, Ambedkar tried to distinguish the religious from the secular through the argument that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.

Supreme Court in Shirur Mutt’s (1954) case: To determine an ‘essential’ aspect of religion, the Court ought to look towards the concerned religion and to what its adherents believed was demanded by their faith. But the Court transformed this doctrine into an altogether different form of inquiry in order to determine the circumstances of the state‘s legitimate intervention. 

SC’s decision in cases related to essential practices is mostly based on vagueness. Now, the court started deciding when the state could lawfully interfere in the religion for social welfare and reform, and the nature of practices deserving constitutional protection.

Pic: The Hijab Case and The Essential Practices Doctrine

Effect of essential practices test:

• It restricted the extent of safeguards available to religious customs and tradition by the Court as it directly impinges on the autonomy of groups to decide valuable customs and traditions for themselves, hence violating their right to ethical independence.
• Test negated legislation related to social justice by holding that laws related to religion should not encroach on matters integral to the practice of religion under any circumstances. For example: In 1962, when the Dawoodi Bohra community held that the power to excommunicate is an essential facet of their faith, the Court struck down a law prohibiting ex-communications made by the Dai of the Dawoodi Bohra community.  
• Absence of theological study in law education which is the foremost requirement of essential practices test.
• Vagueness arises due to the doctrine of essential practices: Karnataka High Court Judgment in the Hijab case can be nullified just by reversal of any of the three findings made by the High Court.

Primary findings of Karnataka High Court in its Hijab judgment:

• The use of a hijab is not an essential Islamic practice. Hence, there is no violation of the right to freedom of religion.
• No substantive right to freedom of expression or privacy inside a classroom.
• No direct or indirect discrimination through the ban or law: As government order, only called for a uniform dress code to be prescribed by the State or school management committees.

Way forward:

• The court should try for alternatives of essential practices test such as the principle of anti-exclusion doctrine. In this doctrine, even if religious practices are essential to the proponents of its faith, they will not be protected by the constitution if it excludes people on grounds of caste, gender, or other discriminatory criteria. Justice D.Y. Chandrachud proposed this doctrine in his concurring opinion in the Sabarimala temple case.
• A more favorable solution should be overruling essential practices doctrine by a Constitution bench of more than seven judges.

Source:

• The Hindu 

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