HIJAB ROW IN KARNATAKA
In a landmark judgment, the Karnataka High Court ruled that wearing of hijab by Muslim women is does not form essential religious practice in the Islamic faith and prescribing uniform is not a violation of fundamental rights guaranteed under Article 19(1)(a) and 25 of the Constitution
WHAT IS ESSENTIAL RELIGIOUS PRACTICE
- Those which are fundamental to the profession and propagation of the religion
- If taking away practice causes a substantial change in the religion
- Practices are protected in Article 25 (1)
WHAT IS ESSENTIAL RELIGIOUS PRACTICE TEST
- Doctrine evolved by the supreme court (SC) to protect essential religious practice
- The doctrine of “essentiality” was invented by a seven-judge Bench of the SC in the ‘Shirur Mutt’ case in 1954.
- The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion
- The Indian model of secularism also provides for state’s intervention in religion to ensure freedom of religion.
- When the exercise of religious practices came in conflict with other fundamental rights guaranteed under the constitution. The doctrine of essentiality was utilized to decide on the constitutionality of such practices.
- In Sri Venkataramana Devaru vs State of Mysore case, 1958, the supreme court had to decide, whether restrictions on entry into temples for some sections, was an “essential part of the Hindu religion”. It held that such practices are unconstitutional and void, and opened the temples for all Hindus.
- In Ayodhya Case, the court held that offering prayers was an essential practice of Islam, but offering prayers in the mosque was not essential practice.
- In Sabarimala case, the SC lifted the ban that prevented women and girls between the age of 10 and 50 (mainly menstruating women) from entering the famous Ayyappa shrine. It held that the centuries-old Hindu religious practice was unconstitutional as it violated article 14.
IS JUDICIAL INTERVENTION NECCESARY
YES, as it Will
- Balance between fundamental rights
- Social justice during the practice of Right to freedom of religion
- Constitutional morality was given primacy over religious morality. To give freedom to people in a multicultural society, example SC struck down section 377
- That there will be primacy of rule of law rather than rule of religion
- In eliminating the possibility of conflict between different sections of society
- Protect the essential practices of religion from interference of state.
It raises a major question, what constitutes an essential practice shall be decided by the judges or members of the community?
- There is no fixed parameter for deciding the essential practices, in some cases they have relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.
- Constitutional law experts have argued that the essentiality/integrality doctrine lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
- The basic idea of the constitution was to create a progressive and just society, which makes higher judiciary duty bound to strike down social evils present in religious practices.
- But while exercising this doctrine the court should keep in mind that religion is also a crucial aspect of human development and social harmony. Hence excessive interference shall be avoided.