The hijab case and the essential practices doctrine
Context:
A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.
Law and religion:
In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law. But, as transcripts from the hearings have shown us, every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice (ERP). This requires judges to engage not merely in legal analysis but also in theological study — something an education in the law scarcely equips one to perform.
| Essential religious practice (ERP) test is a doctrine evolved by the supreme court (SC) to protect only such religious practices under fundamental rights, which are essential and integral to religion. The doctrine of “essentiality” was invented by the SC in the Shirur Mutt case in 1954. |
The Karnataka Hijab row:
- A dispute pertaining to school uniforms erupted in Karnataka, when some Muslim students of a junior college who wanted to wear hijab to classes were denied entry on the grounds that it was a violation of the college’s uniform policy.
- Over the following weeks, the dispute spread to other schools and colleges across the state, and the Karnataka government issued an order stating that uniforms must be worn compulsorily where policies exist and no exception can be made for the wearing of the hijab.
- Several educational institutions cited this order and denied entry to Muslim girls wearing the hijab. This was challenged in the Karnataka High Court (HC).
The Karnataka HC, while it upheld the restriction on Muslim women wearing a hijab in educational institutions, made three primary findings in its judgment:
- First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated.
- Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here. It held classrooms as “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.
- Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.
To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban.
Constituent Assembly Debate:
- The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly:
- “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. We ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that laws relating to tenancy or laws relating to succession, should be governed by religion.”
- Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.
Judicial verdict in Shirur Mutt case:
- Supreme Court (SC), in the Shirur Mutt case (1954), held that to determine what constituted an ‘essential’ aspect of religion, the Court ought to look towards the religion concerned, and to what its adherents believed was demanded by their faith.
- In a series of cases, the Court has assumed something akin to an ecclesiastical power and determined whether a practice which was religious in nature was also “essential” to that religion.
- The upshot is a conflation of tests through which the Court is now deciding not only when the state could lawfully interfere in the interests of social welfare and reform, but also which practices are deserving of constitutional protection in the first place.
- It has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
- It has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion.
The Sabarimala verdict on ERP:
- The essential practices test is not without alternatives. In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion.
- Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria.
- The anti-exclusion principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution.
Conclusion:
But until such time as the essential practices doctrine is overruled by a Bench of more than seven judges, the Court is bound to apply its tenets. Perhaps that reassessment will happen when a nine-judge Bench constituted in the review petitions filed against the judgment in the Sabarimala case passes judgment. For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.
Scandinavian social democracy
Context:
- In elections held in Sweden recently, the Social Democrats conceded defeat even as Moderates are expected to form the government with other right-wing parties offering support.
- The rise of the Sweden Democrats (SD), a party with origins in the neo-Nazi movement in the country, to the mainstream of the Swedish polity has much to do with the centring of the discourse over immigration in the country.
- This shows a declining popularity of the Nordic model, or “democratic socialism”, as advocated by the new Green Movement and U.S. Senator Bernie Sanders, in the Nordic countries themselves.
Socialism and social democracy
- Terming the political-economic system in the Scandinavian countries, despite its strong welfarist basis and emphasis on collective bargaining as “socialist” would be a misnomer. For one, the term “socialism” is associated with the regimes of the erstwhile Communist bloc, which had a heavy preponderance of the state in not just the ownership of the major means of production but also in political life with a one-party system drawing its ideological basis for rule on behalf of the working class.
- Following the collapse of the Soviet Union, new socialist regimes in recent years have sought to distance themselves from the one-party model in the so-called “second world”, instead focusing on retaining the functioning of market economies, while emphasising redistribution of wealth and a greater preponderance for the state in this process.
- The regimes in Latin America led by ruling parties in Venezuela, Bolivia and recently in Chile, can be termed “democratic socialist” — seeking to achieve socialist goals of redistribution and restructuring of formal democratic and liberal institutions in vastly unequal and elite driven systems.
- Political circles began to associate social democracy with Keynesianism, the Nordic model, the social-liberal paradigm, as well as welfare states in the late 20th century.
Defining features:
Within socialism, social democracy is a left-wing political, social, and economic theory that promotes political and economic democracy. It is defined as a policy regime that supports economic and social interventions to advance social justice inside the framework of a liberal-democratic polity and a mixed economy that is capitalist-oriented.
- A dedication to representative and participatory democracy
- mechanisms for income redistribution
- management of the economy in the public interest
- social welfare policies
The ‘exceptional’ Scandinavian model
In the Scandinavian countries, on the other hand, the systems are more akin to typical “social democracies” —
- reliance on representative and participatory democratic institutions where separation of powers is ensured;
- a comprehensive social welfare schema with emphasis on publicly provided social services and investment in child care, education and research among others, that are funded by progressive taxation;
- presence of strong labour market institutions with active labour unions and employer associations which allow for significant collective bargaining, wage negotiations and coordination besides an active role in governance and policy.
- All these countries also follow a capitalist model of development, allowing for entrepreneurism and funding of welfare policies through a large degree of wage taxation in relation to corporate taxes.
Success of the Nordic countries:
- The commonalities in the Scandinavian countries — Norway, Sweden, Denmark, Finland and Iceland — on many of these counts are measurable. For example, among countries in the Organisation for Economic Cooperation and Development (OECD) (featuring most high-income countries in the world), Iceland, Denmark, Sweden, Finland and Norway have the highest proportion of the workforce belonging to trade unions.
- Education is free in all the Nordic States; health care is free in Denmark and Finland and partially free in Norway, Sweden and Iceland ;
- workers get several benefits — from unemployment insurance to old age pensions, besides effective child care. Therefore, labour participation rates in these countries are among the highest in the world (even among women).
- The five Nordic nations rank in the top 10 among OECD countries in government expenditure on health and education if calculated as percentage of GDP.
- India can take a cue from the Nordic model since the State needs to find employment for its youth as well as provide welfare support to its vast section of vulnerable population.
Key features
- One key reason for the thriving social democratic model in the Nordic countries has been their relatively smaller and more homogenous populations enabling focused governance.
- The “corporatist” model of involving interests of both capital and labour, mediated by the government at many levels, has allowed these countries to transition from agrarian to industrial to post-industrial (in some cases) and knowledge/service economies relatively smoothly.
Conclusion:
The Nordic model of social democracy offers lessons to the developing world, including countries like India despite the myriad complexities of diversities, differential internal development and histories.
