Hijab ban

Hijab ban

Subject: Polity

Section: Fundamental rights

Context:

The Karnataka High Court on Tuesday (March 15) upheld the restriction on Muslim women wearing a hijab in educational institutions. A three-judge bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and Khazi M Jaibunnisa, held that the right to wear a hijab is not constitutionally protected.

Concept:

According to the HC wearing HIJAB is not essential to Islam , therefore not protected under the Fundamental Rights.The HC has used the doctrine of essentiality to reach this conclusion.

What is doctrine of essentiality?

• The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court 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.

Following principles which had to be followed to determine whether any particular practice is an Essential Religious Practice (ERP):

• That practice has to be fundamental in nature for the religion.
• If not followed, the religion would change.
• Not every activity associated with religion can be characterised as an essential religious practice – when it comes to food or dress this has to be conclusively demonstrated to the court.
• The practice in question should be something which has been part of the religion from the start, it should not be a subsequently developed practice.
• The binding nature of the practice – is it optional or compulsory, and will a person face consequences for not following it.
• According to the state of Karnataka, if these principles were applied to the wearing of hijabs, then it was clear that the practice was not an ERP, as, according to them, it was not expressly prescribed in the Quran, and the religion of Islam was not fundamentally affected by not practicing it.

Whether wearing hijab is essential?

• The court held that there is no “Quranic injunction” on wearing the hijab and that wearing the hijab is not “religion-specific”. The court’s inquiry, it said, was to ascertain whether wearing the hijab is so essential that if not followed, one could not practise the religion.

Few Important cases on doctrine of essentiality:

• Shirur Matt case (1954): The ruling of the Supreme Court has been considered as one of the most important decisions in Indian jurisprudence with regard to the definition of religion. The Court invented a doctrine of “essentiality. 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. It further ruled that there is no doubt that religion finds its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or belief.
• M Ismail Faruqi v. Union of India (1994): The Supreme Court in this case held that the mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the Muslims anywhere, in the open as well and it is not necessary to be offered only in a mosque.
• • Church of God v. K.K.R. Majestic Colony Welfare Association: The Supreme Court held that nowhere in any religion, it is mentioned that prayers should be performed through the beating of drums or through voice amplifiers which disturbs the peace and tranquility of others. If there is any such practice, it should be done without adversely affecting the rights of others as well as that of not being disturbed in their activities.
• In re, Noise Pollution case: The Supreme Court has given certain directions to be followed to control noise pollution in the name of religion:

• Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am
• Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies. Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed.

• Sabarimala case: Indian Young Lawyers Association vs. the State of Kerala

The petitioners argued that the ban enforced on menstruating women from entering the Sabarimala shrine does not constitute a core foundation of the religion. In its judgment, SC stated that ‘devotion cannot be subjected to gender discrimination’. It said that exclusion on grounds of biological and physiological features like menstruation was unconstitutional. It amounted to discrimination based on a biological factor exclusive to gender. It was violative of the right to equality and dignity of women. SC said that prohibition founded on the notion that menstruating women are “polluted and impure” is a form of untouchability and the notions of purity and pollution stigmatized women