Recently, six students were banned from entering a college in Karnataka’s Udupi district for wearing a hijab. The action of some pre-university colleges in Karnataka refusing entry to Muslim girl students wearing hijabs, or head-scarves, has now become a national controversy.

While the girls have been protesting against being denied entry to education, the counter-protests by a section of Hindu students wearing saffron shawls and turbans have led to a tense situation outside some campuses.

Why protest going on this issue?

The main issue that occurs is whether students can be kept out of educational institutions just because they are wearing a piece of clothing reflecting their religion. Is the denial of entry a violation of their freedom of conscience and freedom to practice their religion under Article 25?

Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”. However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

While students are arguing in favor of their freedom, the Government is of the view that constraining a student to remove the headscarf is not a violation of Article 25.

Essential Religious Practises Test

• In 1954, the Supreme Court held in the Shirur Mutt case that the term “religion” will cover all rituals and practices integral to a religion.
• The test to determine what is integral is termed the essential religious practices (ERP) test.
• What constitutes the essential part of a religion is to be determined with reference to the doctrines of that religion itself.
• In Sri Venkataramana Devaru vs State of Mysore, the court held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship.

In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform Tandava dance in public streets, since it did not constitute an essential religious practice of the sect.

In 2016, the Supreme Court approved the discharge of a Muslim airman from the Indian Air Force for keeping a beard, contradicting the case from that of Sikhs who are allowed to keep a beard. The court held that keeping a beard was not an essential part of Islamic practices.

In Bijoe Emmanuel vs State of Kerala (1986), students belonging to the sect of Jehovah’s Witnesses were allowed to abstain from singing the national anthem that they claimed to contradict their religious faith.

The Supreme Court of Canada in the Multani case (2006) upheld the right of a Sikh student to wear a Kirpan while attending the class, without harming others.

What are the objections against the essential practice test?

Jurists have criticized the continuing priority on applying the essential practice test to determine the constitutionality of state action against any religious practice that claims protection despite being either discriminatory or exclusionary.

The first objection is that it was never planned to be a test to find out if a particular practice is essential to the practice of the religion but was only made to differentiate a matter of religion from a matter other than religion.

However, a long line of judicial decisions seems to approve the application of this test to remove cases.

The second criticism is that the doctrine of essentiality appears to allow courts to go deeply into the scriptures and principles of a religion or a religious sect to find out if the practice or norm that is at the heart of the issue is essential. This is seen as a theological or ecclesiastical exercise, which courts are forced to stumble into.

A more satisfactory approach will be to apply the test of constitutional morality and legitimacy to the issue at hand. Applying the principles of equality, dignity, and civil rights to a particular practice may be better to decide the constitutionality of a practice than a theological inquiry.

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.

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