The issue of essential religious practice must veer towards gender equality, personal choice
Why is it that the responsibility of a cohesive Indian society always falls on the delicate shoulders of women? And why should the judiciary intervene every time to restore or protect their rights and iterate that they be treated equal to men? Are women and girls now the proverbial guinea pigs to decide on contentious religious issues as well? Can they wonder aloud if patriarchal, societal and religious rules supersede constitutional guarantees about women’s equality, freedoms and choices? The Supreme Court is besieged with applications to review the latest judgment of the Karnataka High Court that said hijab is not an essential religious practice of the Islamic faith. The apex court faces a dilemma while taking up these petitions. It has many petitions filed against its 2018 order allowing women and girls of menstruating age to enter Kerala’s Sabarimala temple. They are pending a larger constitutional Bench examining questions related to essential religious practices. The court apprehended that cases involving determination of essential religious practice in other religions may object to the apex court’s reasoning in the 2018 order and order a referral. Sounds entirely logical except that in the meantime, women and children of menstruating age are unable to enter the Ayyappa temple and perform duties as devotees just like Muslim girls are unable to enter classes wearing hijabs. Perhaps the Supreme Court may first examine the question of essential religious practice before it takes up the hijab review petitions.
The Karnataka and Kerala HC judgments differing on hijab being an essential religious practice demand its attention. Two, in the context of Sabarimala, a question arises why a ban on entry of menstruating women should be essential religious practice when it is the demand of only the Hindu community. A basic counter-question is whether the right of a Hindu devotee for unrestricted temple entry and prayer is an essential religious practice in Hinduism (which, constitutionally, is also a legal right of choice). There cannot be a greater example of essential religious practice. Hinduism is not organised by a book. Over the centuries, various factors, including caste, patriarchy and divisions among Hindu communities, influenced practices that are today considered “ancient” traditions. How can essential religious practice be determined if the time and date of the origin of Hinduism and written traditions are unknown? Also, Hinduism is the only major religion that worships Shakti, god in female form. Gender equality could therefore be argued to also have spiritual, or religious, sanction, apart from being a constitutional necessity. The right to religious freedom, like any other constitutional freedom, without exception, means an equal entitlement of all people. Should courts deal with essential religious practice when relations between a devotee and god are constitutionally deemed personal and by choice? With essential religious practice hardly a fool-proof mechanism to determine religious issues, the Constitution should be allowed to prevail as proof of “positive secularism”.