Author: Parijat Karan, III year of B.A.,LL.B. from Bihar Institute of Law, Patna
The complexity of the hijab controversy
To start with, let’s talk about the decades old “Essential Religious Practice” (ERP) test which was formulated in the Shirur Math case of 1954. This test has been the basis for a lot of cases which involved questions about following religious practices against the general scheme of things. Time and again, the courts have taken the task of being the religious authority in deciding what constitutes an essential practice for a religion. There have been no consistent guidelines formulated by the courts to perform the ERP test. This test has been criticized by judges and scholars across the country as being a burden on the Indian constitutional law because most of the cases invoking the ERP test could be handled by following the constitutional text. This test denies individual agency as there could be multiple reasons why someone follows a certain practice and why someone does not follow it. By making something essential to the religion, the courts ignore individual freedom to follow their conscience and adds a burden upon individuals who deny the practice for their own beliefs.
Now comes the question as to what should be done if not follow the ERP test. In the current scenario, the question is whether someone has the right to follow their religious conscience and wear a hijab in school or whether the collective will of the institution would prevail over individual rights. To answer this we should look upon two concepts, namely, the subjective sincerity of the belief and the principle of reasonable accommodation. In India, we follow the positive approach of secularism, which allows individual rights to express their religious beliefs subject to certain provisions. Now comes the question whether the practice of wearing hijab violates any statutory restriction placed on the right to follow religious conscience under Article 25. The answer would be no. It does not go against any parameter of public morality, neither does it discriminate or incite violence in society. The complex question that arises after this is what if everyone who follows the Hindu religion comes to school wearing saffron towels. To answer this, we must look upon the principle of subjective sincerity. According to the principle, what constitutes an essential practice to the religion for someone would be ignored by some other person both believing willingly in their choices protected under Article 25 to Article 28 of the Indian constitution.
So the question that the courts must deal with is whether, for the specific instance, the practice sought after by the individual is followed by him/her from the foundational years or is it something that is deliberately pursued for some ulterior motive. The question of wearing hijab or saffron towel or turban is an aspect of individual and often social expression and, therefore, these are protected under the rights to free speech and expression (Article 19), the right to privacy as formulated in the Puttaswamy case (Article 21) and the part of Article 25 that speaks of freedom of conscience.
The question should be whether, after assessing the question of the essentiality of wearing a hijab in this present case, the student should be granted permission to attend school following the principle of reasonable accommodation, which was thoroughly discussed in Vikash Kumar v. UPSC. The question must be whether, in this particular case, the choice of wearing a hijab violates any fundamental question of public morality in schools and therefore should not be allowed regardless of being essential to the specific individual if it is not following some ulterior motive.
The notion of applying uniformity of appearance in educational institutions to ingrain the idea of equality would violate the principle of positive secularism in India. It would also violate the idea of equality itself if wearing a turban, sacred thread or tilak is not banned under the same notion, because only after doing so, the state could hold the ground of social reform by not using it as a tool to selectively impose certain restrictions only on a particular section of our country. It also negates the very individualistic rights provided by our constitution which were talked about in the Sabarimala Judgment.
In my opinion, in these types of cases, the authorities must show why reasonable accommodation is not possible if the individual is not doing anything to achieve a motive that goes against public morality. The burden should also be on the concerned individual to show the essential nature of following the practice and whether he/she follows it willingly for a considerable long time. The state must not curtail someone’s right to education merely because it goes against community rights. , By allowing the majority’s rights in every case, not taking into account the nuanced facts of the concerned case would lead to majoritarianism and will go against the principles enshrined in our constitution. The facts, circumstances, motives and greater disservice to the motives of society as large must be taken into account, otherwise the question will only be repeated again and again. Some practices can be allowed even without following the ERP test, because those practices are very subjective and making them essential or non-essential is only going to deny individual choice and agency. The other way of solving the question would be to achieve a negative concept of secularism, as is the case with France where display of religious things is strictly restricted in public or imparting a uniform code and, losing the beautiful diversity of our country in the process which is closely resonated with our identity across the globe.