Is it time to do away with the essential religious practices doctrine?
The essential practices framework emerges from one of the most basic forms through which modern politics regulates and organises the diversity it is willing to tolerate.
Seventy years ago, the Supreme Court was called to define the constitutional scope of religious freedom in a dispute over the extent to which the Madras Hindu Religious and Charitable Endowments Act of 1951 could control the management of the Shirur Mutt at Udupi. The apex court responded with the essential practices doctrine that has been the touchstone on which religious freedom has been judicially demarcated since. However, the doctrine is vague with different courts expressing starkly opposed opinions on what it should mean.
The Shirur Mutt case and various other early court decisions held that essential practices, the aspect of religious practice that ought to be constitutionally protected, should be determined entirely by the reasonable assertions of those whose religious freedoms were subject to restraint by state action.
However, another line of cases driven by the reforming statist zeal of Justice PB Gajendragadgar, the seventh Chief Justice of India, held that essential practices could not be a matter of communal preference and that an enlightened judiciary could decide if claims about essential practice amounted to rank superstition. This latter position allowed the Supreme Court to assume ecclesiastical authority and preside over the essential character of all manner of religious questions - goading communities to religious doctrines, often at the expense of broader social and cultural practice. This infringement on religious freedom is usefully examined through the controversy over the hijab in schools and pre-university colleges across Karnataka.
The hijab has been ubiquitously present in public life in the Indian subcontinent. As a practice of long standing, it has flowed through Indian streets, defined fashion, provided personal solace to those who choose to wear it, and incidentally has also been a matter on which Islamic doctrine has a pronounced opinion. However, as the hijab has brought coastal Karnataka to a boil, the young women at the centre of the dispute have a limited legal toolkit to defend their preference – legally authorised Islamic doctrine. That is, the legal framework of essential religious practice plucks at the diverse world of disposition and preference in which women adopt the hijab by examining only whether the practice forms a part of Islamic legal doctrine. In turn, the questions that are brought to bear on the dispute are whether the practice is demanded by the Quran, the Hadith and so on. These are peripheral questions if one looks at religion as life worlds that practitioners deem significant and which are almost never tied to the iron cage of text and doctrine.
However, the choice of those who adopt the hijab or even choose not to wear the garment are made irrelevant and brought under the sway of religious doctrine. That is, the law pushes individuals towards doctrinally defined Islam from among a range of identities that were previously available to them. Perceptive legal scholars have recognised this problem and argued that the essential practice doctrine ought to be brushed aside for a presumptive recognition of all forms of individual freedom unless the state can supply reasonable grounds for the restriction of freedom. This is a sound argument and India’s higher judiciary would do well to follow such advice. However, it is equally important to recognise that the battle to remove the hijab from the public sphere is not merely about women’s freedom and the appropriate normative frame of rules adjudicating religious freedom. On the contrary it is equally a matter of constitutional politics within which the essential practices test reiterates and authorises preferred forms of understanding the character of the Indian people.
To cut a long and very complicated history short, the essential practices framework emerges from one of the most basic forms through which modern politics regulates and organises the diversity it is willing to tolerate. This is not difficult to see as the essential practices doctrine is a legal framework that facilitates the accommodation and toleration of religious freedom albeit only when presented as doctrinal truth. More importantly, toleration is equally a model to found political organisation among people divided by religious doctrine – the problem of religious conflict in Europe for which toleration emerged as a solution. This model sank roots in India with the expansion of the colonial state where the toleration of religious freedom was always presented as a key feature of colonial government but one principally actualised by identifying people tied together by legally authorised doctrine.
A classic instance of this way of governing Indians is, of course, our personal law systems which is founded on the idea that they defend scriptural truths of people that personal laws identify as Hindu, Muslim and so on. However, this approach to organising the Indian people goes far beyond personal law and has become a widespread method through which we identify India as a land of people tied together by institutional conceptions of doctrines that are attached to people identified as Hindu, Muslim, Sikh or Christian. The essential practices doctrine is therefore a foundational constitutional doctrine that pulls Indians together as a people, although in extremely impoverished forms, unable to foster the plural forms of life in which Indians find themselves in their daily interactions with each other.
Thus, seventy years on from the Shirur Mutt case, as the spectre of the essential practices test returns to Udupi, the doctrine seems to be doubling down on what it has always done best – reducing the complex world of social and religious choice to one of people divided by identity and dogma. Equally, in casting the hijab as a matter of essential practice, the Karnataka high court continues this patronising tradition of organising the lives of women merely as objects of religious dogma. However, this is also an opportunity to revisit and re-think the divisive and limiting frames that essential practices casts on contemporary constitutional imagination. Alternatives are not so difficult to see if only we break the narrow domestic walls through which essential practice has blinded us to the diverse practices of everyday life that tie us to each other.
Mathew John is a faculty, Jindal Global University.
The views expressed are personal