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. Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.
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. 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.
