Is the Essential Practices Test Actually Essential?

After having grappled with the burning question of the constitutionality of a government order banning the wearing of hijabs and other scarves by female Muslim students in Indian institutions, the High Court of Karnataka upheld the government order to not be violative of the right to freedom and religion. Among other arguments, those regarding whether wearing hijabs is an “essential religious practice” (ERP), were the biggest bone of contention.

In this letter, I draw attention to the limitations and drawbacks of this doctrine, especially in light of the aforementioned judgment. I argue that this doctrine sits at variance with the objectives of Article 25 of the Constitution, which provides a right to freedom of religion and conscience. I further argue that the dichotomy created by the ERP test is deleterious in two ways: (i) by depriving a non-essential religious practice of its fundamental protection of religion entirely, and (ii) by making essential religious practices secondary to other fundamental rights, which is outright contrary to the text of Article 25.