How the essential religious practice test has been used to marginalise Muslims

The courts have maintained that they will only protect religious practices that are essential in nature. However, this has been extrapolated to further an insidious project of Muslim subjugation.
Hijab row
Hijab row
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The Karnataka High Court last week upheld the hijab ban in educational institutions, and deemed the wearing of the headscarf as an unessential religious practice. In this context, it is necessary to interrogate the very nature of the ‘Essential Religious Practice test’ and how it has been perpetuated to further marginalise Muslims into the periphery. 

This test was formulated in the 1950s for overseeing disputes over religion, leading to the tacit norm of parties arguing on the grounds of whether a practice is essential to a religion or not. The courts devised this test to ensure that guarantees of the freedom of religion provision would only apply to practices that are essential to that religion. 

Over the years, the courts have maintained that they would only protect religious practices that are essential in nature, however, this has been extrapolated to further an insidious project of Muslim subjugation. We have seen this time and again -- for instance, take the Supreme Court’s decision to ban cattle slaughter under the pretext of cow slaughter not being an essential religious practice for Muslims on Eid in 1959. Similarly, in 1994, the Supreme Court decided upon the case of the illegitimate demolition of the Babri masjid, concluding that the mosque is not an essential part of Islam as prayers can be offered anywhere. Now, similar arguments have been upheld by the Karnataka High court to ban the hijab in educational institutions. It would be naive and insincere to look at this chain of judicial misgivings and not decipher the deliberate misappropriation of the judicial test. 

The question we need to be asking is why is it of any consequence to decide if a practice is essential to religion when the matter at hand is about the right to life and dignity of the Muslim woman in the public sphere. The conscious legal diversion from the indispensable rights of the Indian Muslim is an extension of the larger Hindutva project determined on the criminalisation of the Muslim Identity. It was impertinent as to whether mosques were essential for Muslims to offer prayers as the fundamental cause of the matter was the violent displacement and vandalism of Babri on fictitious grounds, something that was neither considered nor addressed. Similarly, the ban on cow slaughter being argued on the grounds of it being an essential religious practice falls flat when the pivotal cause of concern was on the infringement of the right to freedom and the blatant saffronisation, Savarna homogenising and forced ‘cleansing’ of the Indian palette at the cost of a minority identity. 

These precedents seem to be devious attempts at legally justifying the criminalisation of Muslims. By dismissing the state of humiliation and ostracisation that Muslim women have faced recently, the High Court is dispelling their right to recourse and fundamental rights. Why is it a matter of substance if the hijab is an essential religious practice or not? It is upon the Muslim woman to make the choice for herself, regardless of whether the practice is essential. In stripping away her agency to do so, the judiciary has not protected the very provisions it so claims to uphold. 

One of the criticisms of the essential religious practice test, as voiced by Justice DY Chandrachud is that the courts are not equipped to deal with matters of theology and base critical judgments off of theological discourse. He also argues that there are better tests and devices to replace this test with. Ruling on matters of faith in the context of a religious practice being harmful is not the same as the abrupt decisions that involve telling the followers of religion what is essential to their faith and what isn’t, especially when the practice does not infringe or impose upon the rights of anybody else. 

The essential religious practice test, at best, is a hit-and-miss one. A stark contrast in how it has been used, when compared to the hijab case, is the Sabarimala judgment. In the latter, the court upheld the right of the women entering the temple based on the essential religious practice test. Had barring women of menstruating age from entering a place of worship been an essential religious practice, would it justify the curtailment of the rights of women? In this case, the court used the test to uphold the fundamental rights of movement and practicing religion for women, however, it left the choice of actually entering the temple to women. The hijab verdict, on the other hand, compels Muslim girls to choose between the fundamental rights to practice religion and access education. It is tantamount to understand that a test such as this, when arbitrarily employed to decide the fate of women, is gambling with the fundamental rights of its citizens. When the Indian judiciary bases its verdicts on theological grounds, it risks diluting the Constitution’s written word, which deems fundamental rights as unconditional.

Further, an order which aims for 'emancipating women' by deciding on what is integral to the practice of Islam could lead to devastating obstructions to the education of Muslim girls and women. To discard the agency and the right to choose at a time when Muslim women are met with saffron vitriol under the guise of uniformity could have far-reaching impact on discrimination against Muslims. 

The ruling for the hijab ban is an expansion of the right-wing majoritarian project’s objective to purge the Muslim identity by establishing legal legitimacy to its Hindutva cause. What reaction would the judiciary elicit if it were to test the essentialness of the janeu (a sacred thread worn by men from some Hindu upper castes, mainly Brahmins), or the use of firecrackers on Deepavali? The invalidity of this test lies in its exceptional use of side-lining Muslim visibility exclusively to placate the majoritarian sentiment. The verdict is only a stepping stone towards the erasure of the Muslim identity; If this perverse judicial project of dismissal isn’t severed at its roots, every symbol of the Muslim identity remains to be under attack. There is no end to pacifying the majoritarian Hindu sentiment, it is the very objective of the Hindutva Project to eradicate each and every semblance of Muslim-ness from the public sphere, an inadvertent step in the process of intentional and unavoidable apartheid and large-scale ethnic cleansing of the Muslim polity.

Rida Fathima is a 19-year-old literature major writing about gender, caste, policy, and more through a Marxist-feminist lens. 

Views expressed are author’s own. 

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