This gives rise to the feminist question: how do you determine essentiality, and based on whose belief? That of the community or the individual? If the State is allowed to interfere for the “reform” of a religion, then whose voices should be centred? The ERP test invariably centres the voices of religious patriarchs who are often men, inspired by notions of community honour. The test takes away women’s complex relationship with agency allowing religious patriarchs to be the final arbitrators who decide what is and is not an essential religious practice.
Constitutional law scholar Gautam Bhatia argues that in a rather agency-denying fashion, the ERP test argues that if a practice is an essential to a religion, then a person has no choice but to follow the practice. This ignores the multiple negotiations women make within and outside their religion. Women wear the hijab for multiple reasons — for a sincerely held belief, to assert their right to religion, as a means to negotiate with their families the right to access public spaces.
Constitutional law scholar Megha Mehta points out that from triple talaq to Sabarimala and now the hijab, the voices of women worshippers themselves are often not cited in judgements.
In the hijab case, both the Karnataka High Court and the Supreme Court (speaking through Justice Gupta) fell into this binary of agency-force, religion-equality. Thus, Justice Gupta held that if the women are not allowed to enter their classrooms, it is the result of their voluntary action of not wearing the uniform. He said:
“The State has not denied admission to the students from attending classes. If they choose not to attend classes due to the uniform that has been prescribed, it is a voluntary act of such students and cannot be said to be in violation of Article 29 by the State. It is not a denial of rights by the State but a voluntary act of the students. It would thus not amount to denial of [the] right to education if a student, by choice, does not attend the school.”
Justice Dhulia however attempts to move away from the binary in two ways. First, he holds that the ERP test is only applicable to the rights of a community or a sect and State interference with it. In the case of individual rights, as in the current case, the ERP test is ‘not at all relevant’. He held that if a belief is sincerely held, and it harms no one else, then there can be no justifiable reason for banning it – in this case, the wearing of a hijab in the classroom.
This view potentially recognises women’s relationship with religion beyond the narratives of adversary and victimhood. Instead it creates room for their voices in the debate by asking them what their sincerely held beliefs are. He also warned courts against being quick in deciding questions of theology as these are always more than one viewpoint and courts are not equipped enough to decide which voice should prevail.
Second, he declared that the question the court should ask is if the government order was proportional. It is by asking this question that he concluded that asking a schoolgirl to remove her hijab at her school gate so that she can attend the class is an invasion of her privacy and dignity. He locates women’s lived reality by declaring that the case has to be seen from the perspective of the challenges already faced by a girl child in accessing education. He wrote:
“The question this Court would therefore put before itself is also whether we are making the life of a girl child any better by denying her education, merely because she wears a hijab!”
The judgement of Justice Dhulia thus recognises the complex terrain of negotiations and bargains, where women’s beliefs and socio-economic hurdles are also heard.
And this is the first lesson of the case: to centre the voices of women beyond the easy binaries of agency and force, religion and equality.