Minority Issues – SC, ST, Dalits, OBC, Reservations, etc.

Debate over Freedom of Religion and Attire

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of Religion

Mains level : Read the attached story

A row over whether educational institutions can impose a strict dress code that could interfere with the rights of students has spilled in the Udupi district of Karnataka.

Don’t you think that such instances incite fear among the politically destitute minorities?

 

Religious Freedom in India

  • Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
  • It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.

Restrictions on religious freedom

  • Like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.
  • Over the years, the Supreme Court has evolved a practical test of sorts to determine what religious practices can be constitutionally protected and what can be ignored.
  • 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” test.

What is the essential religious practices test?

  • While these issues are largely understood to be community-based, there are instances in which the court has applied the test to individual freedoms as well.
  • In a 2004 ruling, the Supreme Court held that the Ananda Marga sect had no fundamental right to perform the Tandava dance in public streets since it did not constitute an essential religious practice of the sect.
  • For example, in 2016, the Supreme Court upheld the discharge of an airman from the Indian Air Force for keeping a beard.
  • It distinguished the case of a Muslim airman from that of Sikhs who are allowed to keep a beard.
  • In 2015, the Supreme Court restored the Jain religious practice of Santhara/Sallekhana (a ritualistic fast unto death) by staying an order of the Rajasthan HC.

Issues with this Test

  • In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself, the SC had held in the Shirur Mutt case.
  • So the test, a judicial determination of religious practices, has often been criticized by legal experts as it pushes the court to delve into theological spaces.
  • In criticism of the test, scholars agree that it is better for the court to prohibit religious practices for public order rather than determine what is so essential to a religion that it needs to be protected.
  • In several instances, the court has applied the test to keep certain practices out.

Precursors related to Hijab

  • Two set of rulings of the Kerala High Court, particularly on the right of Muslim women hold dressing according to the tenets of Islam.
  • In 2015, Kerala HC ruled the prescription of dress code for AIPMT exam which prescribed wearing light clothes with half sleeves not having big buttons, brooch/badge, flower, etc. with Salwar/Trouser and slippers and not shoes.
  • In 2016, it examined the issue more closely. It held that the practice of wearing a hijab constitutes an essential religious practice but did not quash the CBSE rule.
  • The court once again allowed for the “additional measures” and safeguards put in place the previous year.

 

 

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