Lifting the veil on essentiality
With so many sections of society approaching the judiciary for redress of grievances, the concept of essentiality of a religious practice will be put to the ultimate test in the days to come. The hijab verdict may have
just lifted the veil on the shape of things to come.
boycotted the practical examination as they were not permitted to take the examination clad in the hijab. Their action followed that of 13 Muslim girls who had boycotted exams in Shivamogga district in Karnataka when they were asked to remove their hijab. Similarly, in Bidar, hijab-clad girls were not allowed to appear for the BSC nursing exam on February 10.
Even as the debate rages and the All India Muslim Personal Law Board (AIMPLB) has approached the Supreme Court on the subject, it is important to recall what exactly the High Court stated while upholding the State government’s ban on the hijab. Terming it as not an essential part of Islam, the court stated: “We are of the considered opinion that wearing of the hijab by Muslim women does not form a part of essential religious practice in Islam.” It held, too, that the freedom of religion guaranteed under Article 25 of the
Constitution was placed on a relatively lower rank in comparison to other fundamental rights guaranteed to individuals.
CONCEPT OF SECULARISM
It is a verdict that many feel runs counter to Indian ethos of secularism wherein different communities are allowed to use symbols of their faith in public. For instance, the majority of Sikhs wear a turban in public life. As the AIMPLB insists, the hijab is merely a shade bigger than the headgear used by Sikh men. The concept of secularism in India is different from that in the West in the sense that the Indian state does not intervene in religious practices and does not discriminate between citizens on the basis of religion. It is not opposed to religion; it maintains equidistance.
Says veteran legal expert Anil Nauriya: “The essential practices debate is a separate debate that has been running for a while now. Here in the hijab matter, what had initially to be seen was what was the practice prevalent in that school in Karnataka before the controversy erupted. The prior position ought to have been maintained by the initial interim order. Ordinarily, an interim order ought not to anticipate or in a sense pre-empt a final judgment. In France, there is a concept of laicite, which is a French version of secularism. Under this, religious symbols are avoided in public places. In a multi-religious society like India we have not adopted this idea and have been relatively relaxed about religious symbols and attire.”
According to Nauriya, even in France, certain communities have sought exemptions from the disallowance of any religious symbols. “The Sikh community, for example, had made the point that certain things are not mere symbols of their faith but part of the faith itself. Sikhs
sought turbans to be allowed in schools. In Canada, turbans have been permitted in the Canadian armed forces even where ordinarily there was a prescribed uniform. Here, we are perhaps trying to borrow ideas like laicite out of their context.”
In India, on the other hand, courts have tended to limit the scope of the right under essential practice of religion. For instance, in Ismail Faruqui vs the Union of India, a Supreme Court bench by a 2:1 majority refused to refer to reconsideration by a larger bench the judgment of the five-judge Constitution Bench, which upheld the law under which the Centre acquired the disputed land in Ayodhya on which the Babri Masjid stood until December 6, 1992, when it was demolished by kar sevaks. In 1994, the bench ruled: “A mosque is not an essential part of the practice of the religion of Islam and namaz by Muslims can be offered anywhere in the open.” The final judgment in the Babri Masjid case came in November 2019.
Nauriya cautions against picking up ideas and theories and applying them out of their context. For example, he says, the theoretical or theological question whether a mosque is essential to a religion is distinct from the question whether a stranger may be permitted to demolish it. “A mosque may or may not be an essential part of a religion but that does not create a right in a third party to deal with it as they please. First the rights of the parties have to be determined. The essentiality question cannot always precede or be privileged over or entirely overtake that determination. For that can sometimes result in placing the cart before the horse.”
INSTANT TRIPLE TALAQ
Earlier, the court had held that instant triple talaq was also not an essential part of Islam, thereby open to legislation and judicial intervention. Giving a judgment in Shayara Bano vs the Union of India in August 2017, the five-judge bench of Chief Justice J.S. Khehar, and Justices R.F. Nariman, Kurian Joseph, U.U. Lalit and Syed Abdul Nazeer, held that instant triple talaq was against the basic tenets of the Quran and violative of the Shariat. Setting it aside, the court felt that a practice merely permitted or not prohibited by religion cannot be considered an essential or positive tenet sanctioned by religion. So, be it the mosque or the hijab or divorce provisions, nothing seems to be an essential part of Islam, though congregational namaz cannot be offered without a mosque and no woman can offer namaz without the hijab.
Says noted advocate Mansoor Ali: “Essential tenets according to Islam are five, including, besides the declaration of faith, daily namaz or prayers, roza, or fast in the month of Ramzan, zakat and Hajj. The girls in Karnataka should not have approached the High Court. It could have been resolved without it. Now, again, people have moved the Supreme Court in a tearing hurry. It is my fundamental right to wear what I want, eat what I want, go where I want. Why should a court have to intervene in this? As far as the argument of the school dress code goes, hijab does not violate the dress code. It is merely an addition to it. But people have got into the habit of approaching courts, despite numerous flop shows.”
In the oft-quoted Sabarimala judgment of 2018, the Supreme Court had rejected the claims of pilgrims that the exclusion of women between the ages of 10 and 50 from entering the temple constituted an essential practice. It had then allowed women of menstruating age to offer worship at the temple, rejecting the contention that as the deity was celibate menstruating women should not be allowed inside the premises. A review petition was promptly filed before the court. The larger bench will re-evaluate the essential religious practice test, a doctrine under which the court must examine whether a particular practice is essential to a faith or merely a tradition, or one of the lesser followed actions of individuals.
HAJI ALI DARGAH CASE
The judiciary had maintained a similar stance in the Haji Ali Dargah case in 2016 when the Bombay High Court permitted women to enter the sanctum sanctorum of the widely popular Haji Ali dargah in Mumbai, holding that the decision of the dargah’s Trust was untenable and unconstitutional. In its verdict, the court held that the Trust had filed to place before it any material to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. Encouraged by the verdict, some Muslim women petitioned the Supreme Court for permission to enter mosques and offer prayers there. Around the same time, a special leave petition was moved before the Supreme Court on behalf of Parsi women married to Hindu men, seeking permission for such women to enter the Tower of Silence. The contention was that marriage with a partner of another faith did not necessarily mean conversion.
The apex court held in 2017 that by marrying a person of some other religion, the girl did not surrender her father’s religion. It then clubbed the review petition on the Sabarim
ala case and those of Parsi women seeking entry into the Tower of Silence, Muslim women seeking entry into mosques, and Bohra women petitioning against compulsory circumcision In 2018, there was a petition before the Supreme Court against female gender mutilation among Dawoodi Bohras. In Sunita Tiwari vs the Union of India, it was pointed out that all women of the Dawoodi Bohra community had to compulsorily undergo gender mutilation of khatna. The constitutional validity of the action was challenged through a writ petition. In all cases, the essentiality doctrine will be the touchstone.
While there have been a number of prayers in recent years before the court by women of various faiths, the doctrine of essentiality of a particular action or tenet was devised by the Supreme Court in 1954 when a seven-judge bench of the Supreme
Court in the Shirur Mutt case held that the term “religion” would cover all rituals and practices “integral” to a religion. The court took it upon itself to determine the essentiality of a particular action or tradition.
Nauriya says there is an increasing ad hocism in jurisprudence on issues touching on the interests of various communities. Ad hocism, by its very nature, favours the more, rather than less, powerful interests. Accordingly, it tends to tilt the balance towards the ruling constellation of forces. Says Nauriya: “Sometimes concepts are picked up like rabbits out of a hat. Whatever concept that is thought to suit a particular outcome is randomly brought in. For example, the idea of the National Register of Citizens was pursued in a judicial forum with a zeal that did not seem judicial in character. Later, when it appeared that the demographic outcome on the ground was not as had been expected, the enthusiasm tended to weaken.”
Jurisprudence on questions concerning secularism and related matters requires an overall and coherent theory, which must then be implemented without regard to favouring or disfavouring any particular religion. Nauriya points out that the concept of secularism is based not merely on the introduction of the word in the Constitution by the 42nd Amendment in 1976 but on the Karachi Resolution of March 1931.
He says: “So far as India is concerned, the Karachi Resolution of March 1931 is historically fundamental to the making of Indian secularism. There is a commitment in that Resolution that the state would be religiously neutral. Mahatma Gandhi, Jawaharlal Nehru, Sardar Patel, Maulana Azad, and Acharya Narendra Dev are all parties to this Resolution. Mahatma Gandhi stuck to that position till the end of his life. So far as the state is concerned, Gandhi insisted only on this [Karachi Resolution] understanding of secularism. It is at the social level that the concept of sarva dharma sabhava or equal respect for all religions was promoted. It is clear that the state has to be religiously neutral. The introduction of the word Secular in the Constitution in 1976 only fortifies the Karachi Resolution of 1931. If it is now sought to introduce the French concept of laicite even at the social level, by denying education to students for the mere wearing of a particular harmless article of dress, the outcome in a multi-religious society could be far-reaching and many practices of various religions, including the majority religion, may also be up for question and have to be abandoned. I do not think these matters have been thought through with the depth and consistency that they require.”
With so many sections of society approaching the judiciary for redress of grievances, the concept of essentiality of a religious practice in a secular country will be put to the ultimate test in the days to come. The hijab verdict may have just lifted the veil on the shape of things to come. m