Hijab ban: How courts have weaponised the Essential Religious Practices doctrine

Another year, another controversy involving the Essential Religious Practices doctrine. Today, this judicially-created test lies at the centre of the dispute over hijab restrictions in Karnataka’s classrooms. Less than five years ago, it figured prominently in the Sabarimala litigation.

The Essential Religious Practices doctrine has become so embattled that it is hard to imagine that any judge ever thought the doctrine could be a way to resolve conflicts rather than a way of encouraging them.

But these controversies – and the increasing tendency to weaponise the Essential Religious Practices doctrine – are not the fault of the doctrine itself. Most students of Indian constitutional law will recognise that today’s Essential Religious Practices is not quite the doctrine that was articulated in the 1954 case from which it emerged.

In that case, Shirur Mutt, the court was both unambiguous about its intent and, unfortunately, it laid the groundwork for the confusion we see today.

The most-quoted line in the Shirur Mutt judgment reads as follows:

  “… what constitutes the essential part of a religion is primary to be ascertained with reference to the doctrines of that religion itself.”  

Taken in isolation, this definition of the Essential Religious Practices doctrine is in keeping with current usage: the doctrine directs courts to distinguish between practices that are essential to a religion and practices that are not.

It is worth remembering, of course, that the Essential Religious Practices doctrine was intended as a means of safeguarding religious autonomy rather than as a means of undermining it: courts were meant to draw this distinction “with reference to the doctrines of that religion itself”.

Nevertheless, the very next sentence of the judgement shows why the “essential to” interpretation of the doctrine is mistaken:

  “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day… all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character…”  

In other words, in Shirur Mutt’s articulation of Essential Religious Practices, the doctrine was not meant to distinguish between practices that were essential to religion and those that were not. It was meant to distinguish between practices that were essentially religious and those that were not.

In this original formulation, practices not protected by the doctrine were practices that are deemed non-religious in nature, not those that are religious but insufficiently important.

Since 1954, however, the doctrine has morphed from “essentially religious” to “essential to religion”. Three cases that usually figure in the story of this transformation are:

1. Venkatramana Devaru (1958). In this case, the court asserted an important role for itself in any Essential Religious Practices analysis – meaning that, contrary to what Shirur Mutt intended, essential practices were no longer to be identified only “with respect to the doctrines of that religion itself”.  
2. Mohd Qureshi v. State of Bihar (1958). In this case, the court made the crucial move from “essentially religious” to “essential to religion.” That case concerned an anti-cattle slaughter law that petitioners claimed infringed their Article 25 rights. But the court declared that “[i]t does not appear to be obligatory that a person must sacrifice a cow”, before adding that “[t]he very fact of an option seems to run counter to the notion of an obligatory duty”.  
3. Durgah Committee (1961). In this case, the court doubled down on the re-interpretation of the Essential Religious Practices doctrine that it had articulated in Mohd Qureshi: “… in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part.”  

Again, all of this is well-known in legal circles. In fact, this history – with identical case references – was recounted as recently as the Sabarimala litigation by none other than Justice Chandrachud. “Prior to Devaru,” Justice Chandrachud wrote, “this Court used the word ‘essential’ to distinguish between religious and secular practices in order to circumscribe the extent of state intervention in religious matters.”

He added that “[t]he shift in judicial approach took place when ‘essentially religious (as distinct from the secular) became conflated with ‘essential to religion’”.

Why this matters

So why does this transformation matter? Why does it matter now?

First, it reminds us that the troubles facing the courts, and particularly the Supreme Court, are to a large extent of their own making. The shift from essentially religious to essential to religion has facilitated a weaponisation of the doctrine. Perhaps that weaponisation would have happened anyway.

Nevertheless, the interpretive shift that made it easier – like the Essential Religious Practices doctrine itself – was entirely a product of judicial decision-making. In other words, we need not be measuring the essentiality of the hijab to Islam (or of women’s exclusion to Ayyappan worship) at all.

Second, this history reminds us that the purpose of the doctrine was to grant agency and autonomy to religion – not to curtail religious life. Of course, legal doctrines, like laws themselves, can have relevance outside their original intended application. But that intended purpose remains a valuable source of insight.

Finally, and perhaps counter-intuitively, for those of us who are both invested in the idea of a religiously plural India and who are committed to the fundamental equality of persons, the transformation of the Essential Religious Practices offers hope. Even if the doctrine as currently applied has the potential to restrict religion in ways that sit uneasily with its original articulation, there is potential for a kinder, gentler approach.

To be sure, hard questions are inescapable in the context of religious freedom jurisprudence, and there is no perfect doctrine to help us answer those questions. It is also no simple matter to distinguish between the religious and non-religious, as the earlier version of the doctrine would have had us do.

But that original Essential Religious Practices – should the court find its way back to it –may provide a more promising framework for moderating, and moderate, religion-state relations.

Deepa Das Acevedo is a legal anthropologist and Assistant Professor at the University of Alabama School of Law. Her writing on the Sabarimala litigation has been published in Law & Social Inquiry, the American Journal of Comparative Law, the International Journal of Constitutional Law, and Modern Asian Studies, as well as in Foreign Affairs, The Hindustan Times, and Economic & Political Weekly.