SCO Weekly: The Battle of Arguments in the Hijab Ban Case

Transcript

This week, Justice Sudhanshu Dhulia, while hearing the Hijab Ban case, said “(The Karnataka High Court) should not have gone into the essential religious practices test”. However, extensive arguments on the ERP test ate into a large share of the Court’s time. At the end of the week, Justices Hemant Gupta and Dhulia reserved Judgment in the case. 

But What is the ERP Test, and why is it Contentious?

The ERP doctrine, developed over years of SC jurisprudence, governs which religious practices are protected under Articles 25 & 26 of the Constitution. Religious beliefs cover many facets of life and society. The ERP test allows Courts to recognise beliefs and practices that are so ‘essential’ to a religion that doing away with them would change the very nature of that religion. Only these essential practices are protected from government interference by the Constitution. 

Justice Dhulia noted the unique problem that the ERP test poses in the Hijab Ban case—who decides what is essential to a religion? Different interpreters of a religious text, and different members of a religious community, say different practices are essential. Scholars, and in some cases the Courts themselves, have questioned if a secular Judiciary is competent to wade through the religious texts and determine its essentiality. The fate of the ERP test, and whether it is an appropriate way to govern religious rights, remains pending before a 9-Judge Bench in the Sabarimala Review. 

Strikingly, at the Supreme Court, supporters and opposers of the Hijab ban agreed that the High Court’s focus on the ERP test was misplaced. Students opposing the ban argued that violations of personal liberties needed closer attention. The State government, which supported the ban, admitted that the focus of the Court was on ERP only because the High Court had considered it. As this chart shows, despite the general consensus, both parties argued on the ERP test for 59% of the time spent arguing the Hijab Ban.

Solicitor General Tushar Mehta, representing the Karnataka government, explained—the petitioners argued that the Hijab is protected as an essential practice before the High Court. What choice did the High Court have but to answer? As the Supreme Court is specifically hearing an appeal against the High Court’s Judgment, it is bound to address the ERP problem. However, the arguments made at Court point to a host of other fundamental rights concerns as well. 

So what questions does this case raise, other than ERP? 

Muslim students argued that the ban violated the Right to Equality by specifically targeting Muslim women. They pointed out that, Governments must be more inclusive while imposing restrictions that affect religious practices. The Karnataka government saw things differently. They argued that they were actually furthering the cause of equality by imposing the ban. Different laws for different religious groups, they said, would violate the Right to Equality.

Next, petitioners pointed out that the right to dress as one pleases, is part of the Right to Dignity under Article 21. They said that only an individual holds this right, not a place or an institution, in this case, a school. So, any restrictions on the right must have a reasonable basis. The government responded stating it respects all religious symbols, but schools were not the place to display religious identity. 

The students then argued that the right to dress, as a form of individual expression, was also protected by the Freedom of Speech and Expression. They clearly stated that Muslim students were not refusing to wear uniform. They simply wanted to wear a headscarf along with it. Karnataka responded to this stating that Hijab is not protected under the right to dress and the right cannot simply be asserted because it is mentioned in Quran. 

Justices Gupta and Dhulia have three weeks to write their Judgment on the Hijab ban, before Justice Gupta retires on October 16th. Will the Judges follow in the High Court’s footsteps and base their decision on the ERP test? Will they refer the case to a Constitution Bench to consider the validity of ERP? Or  will the Court choose to focus on the arguments of equality, right to education, dignity and freedom of expression instead? Keep an eye on SCO’s case archive to find out.

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