The burden of proving faith

In August 2026, a schoolgirl from Prayagraj asked the Allahabad High Court for permission to wear a headscarf as part of her uniform in a private school. The court rejected her request.In Sukaina Rizvi v. State of U.P. (2026), the High Court noted that the student had not produced sufficient pleadings or authoritative religious material to establish that wearing the headscarf in the classroom was obligatory in Islam. It also recognised the authority of a private school to enforce a bona fide and non-discriminatory uniform in order to maintain discipline and institutional identity.A poorly pleaded claim can fail, and a private institution possesses legitimate autonomy. Whether constitutional rights can require a private school to alter its internal rules raises a separate public-law question. But the judgment illustrates a more pervasive imbalance: where religious essentiality operates as a threshold, the individual may first have to prove that her faith leaves her with no choice before a court fully examines whether the restriction is legally justified in that institutional setting.That imbalance extends beyond the hijab. It concerns who must explain their way of life, which practices appear naturally compatible with public institutions, and why some expressions of faith enter court already marked as departures from a facially neutral norm. Article 25 of the Constitution makes all persons “equally entitled to freedom of conscience” and to the right to freely profess, practise, and propagate religion. It subjects those freedoms to public order, morality, health, and the other fundamental rights. It also permits the state to regulate secular activities associated with religion and enact measures of social welfare and reform.The constitutional text therefore contains both a freedom and the grounds for limiting it. It does not say that only conduct indispensable to a religion deserves constitutional consideration.The essential religious practices (ERP) test has frequently required claimants to establish that a practice is essential or integral to their faith before granting it protection. The available case record shows that essentiality pleas have rarely succeeded as a route to constitutional protection.In a 2024 study published in The Journal of Asian Studies, a scholar of National Law School of India University, Pranav Verma, surveyed 43 Supreme Court and High Court decisions delivered between 1954 and August 2022 in which essentiality was pleaded. Courts rejected the plea in 36 cases, accepted it in six, and avoided deciding in one—an approximately 84 per cent failure rate.The failures crossed religious boundaries. Hindu, Muslim, Sikh, Jain, and other claimants have all failed the ERP test. The record therefore does not sustain the simplistic accusation that each practice of one religion is accepted while each practice of another is rejected.But formal universality does not guarantee equal operation. Verma’s study argues that the socio-religious context influenced judicial outcomes and identifies a post-2014 period in which Muslim litigants found little to no success in raising essentiality claims. It also argues that demands for religious reform were applied inconsistently across communities. Those conclusions may be debated. They nevertheless arise from a mapped body of decisions and require engagement as an empirical argument.For Muslims, the decisions create a cumulative constitutional anxiety larger than that created by any single judgment. In Mohd. Hanif Quareshi & Others v. State of Bihar (1958), the Supreme Court held that sacrificing a cow on Bakr-Eid was not obligatory. In Dr. M. Ismail Faruqui v. Union of India (1994), while considering the acquisition of the disputed Ayodhya land, it observed that namaz could be offered outside a mosque. The 2:1 majority in M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors (2019) later confined that observation to the acquisition context and cautioned against reading it to mean that a mosque could never be essential to Islam. In Resham v. State of Karnataka (2022), the Karnataka High Court held that wearing hijab had not been established as an essential religious practice.These decisions arose from different facts, laws, and institutional settings. They cannot responsibly be presented as a single judicial prohibition on Muslim religious life. Their cumulative vocabulary nevertheless describes Muslim freedom repeatedly through judicial conclusions about what Islam can do without.The advantage of familiarityThe constitutional burden is not limited to losing an essentiality claim. A minority practice enters court as a conspicuous religious demand requiring pleadings, scripture, and theological authority. The norm surrounding it may appear merely administrative, cultural, or neutral. The claimant must prove religious necessity; the restriction may be defended through more abstract concepts such as uniformity, institutional identity, or public order.In a majoritarian society, majority practices often enjoy the advantage of familiarity. They can merge with custom, culture, and the ordinary rhythms of public life. Minority practices may remain more readily visible as religion because they differ from what institutions and society have already normalised. A rule may therefore speak in universal terms while asking different people to surrender different things.Indian equality law recognises this underlying problem. In Lieutenant Colonel Nitisha and Ors v. Union of India (2021), the Supreme Court explained that apparently neutral criteria can constitute indirect discrimination when their underlying effects further impede members of a disadvantaged group. This judgment concerned women Army officers, not religious dress. It does not determine the constitutionality of a school uniform. But its understanding of substantive equality supplies an important constitutional insight: equal language can produce unequal burdens.A uniform may require one student merely to change her clothing. It may confront another with a choice between education and conscience. The fact that every student receives the same instruction does not answer whether its consequences are constitutionally equal.

Students of a government high school and pre-university college for women enter the premises of the educational institute in Bangalore on February 16, 2022, after schools reopened in southern India under tight security after authorities banned public gatherings following protests over Muslim girls wearing the hijab in classrooms. | Photo Credit: Manjunath Kiran/AFP This is where the usual criticism against ERP—that judges lack theological expertise—must be taken further. The problem is not only that secular courts interpret scripture. It is also what this inquiry does to the allocation of constitutional burdens.The doctrinal vocabulary from which ERP developed is generally traced to the Supreme Court’s 1954 decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt. The court distinguished religious affairs from secular administration and recognised that religion extended beyond belief to rituals, observances, even “matters of food and dress”. The doctrine acquired a stricter form in Durgah Committee, Ajmer v. Syed Hussain Ali and Others (1961), where the court warned that practices arising from “superstitious beliefs” could be extraneous and inessential accretions. A doctrine developed partly to distinguish religion from secular administration thus evolved into a means of separating authentic faith from superstition, foundational observance from later development, and indispensable practice from dispensable custom.When essentiality becomes the gateway to protection, the court may dispose of the freedom by defining the religion before requiring the restriction to defend itself.From theological necessity to constitutional justificationThe strongest argument for retaining that gateway is serious: if essentiality is abandoned, could every religious preference become a constitutional entitlement? Courts must distinguish genuine claims of conscience from convenient assertions. Schools, employers, and public institutions cannot function if every common rule automatically yields to an individual demand. But rejecting essentiality as the sole gateway does not require automatic exemptions. Indian constitutional law already contains a more disciplined sequence.In Bijoe Emmanuel & Ors v. State of Kerala & ors(1986), three Jehovah’s Witness children respectfully stood during the national anthem but declined to sing it because of their religious convictions. They were expelled from school.The Supreme Court did not require proof that refusing to sing was indispensable to every Jehovah’s Witness. It asked whether the belief was genuinely and conscientiously held. The personal views of judges about that belief were irrelevant. The court then examined whether the restriction could be sustained under Article 25’s specified limitations. That approach begins with sincerity rather than with theological necessity. It recognises the religious character of the claim without making it immune from constitutional scrutiny.Violence, coercion, and conduct harming others may still be prohibited. A practice excluding Dalit persons from a public temple confronts Article 17, the equality clause, and Article 25’s express reform power. Conduct violating bodily integrity, dignity, or the rights of children remains subject to the Constitution. Recognising conduct as religious does not require a court to protect it.This distinction matters. Courts need not declare a harmful practice religiously false before constitutionally regulating it. Even a practice accepted as essential cannot override the rights of others or Article 25’s express limitations.The appropriate inquiry should therefore ask: Is the belief genuinely and conscientiously held, and is the conduct connected to its exercise? What legitimate objective does the restriction pursue? Is it authorised, necessary, and proportionate? Could reasonable accommodation or a less restrictive measure protect the claimant without materially compromising that objective?The claimant would establish the genuineness and religious character of the belief. The restriction would then be tested for legal and constitutional justification appropriate to the actor and institutional setting. Neither side would receive an automatic victory.Justice Sudhanshu Dhulia followed a comparable path in his opinion in Aishat Shifa v. The State of Karnataka (2022), arising from the Karnataka hijab litigation. Treating Bijoe Emmanuel v. State of Kerala as the guiding authority, he considered the ERP inquiry unnecessary and approached the dispute through conscience, individual choice, and access to education. Justice Hemant Gupta reached the opposite conclusion and upheld the uniform restriction. Because the two judges disagreed, neither opinion became binding law.The disagreement demonstrates that moving beyond ERP does not predetermine the result. It changes the question from whether a religion can survive without the practice to whether the Constitution permits the particular restriction. Questions concerning the scope and future of ERP are now before a nine-judge Constitution Bench. During the April 2026 hearings in Kantaru Rajeevaru v. Indian Young Lawyers Association, Chief Justice Surya Kant observed that the word “essential” does not appear in Article 25. The Bench reserved judgment in May.The pending judgment presents an opportunity to reconsider not only who decides what counts as religion, but also who carries the burden when religious freedom is restricted. A formally universal test that fails across religions can still operate unequally when some practices enjoy cultural familiarity and others must enter court as conspicuous demands for exception.For seven decades, essentiality has asked believers to demonstrate what their religion cannot do without. The Constitution begins elsewhere—with persons equally entitled to freedom of conscience. The question should not be whether a minority practice is indispensable to faith before it deserves constitutional consideration, but whether the restriction imposed upon conscience can be legally and constitutionally justified.Sahil Hussain Choudhury is an advocate and constitutional law researcher from Assam.Also Read | The hijab ban threatens Muslim women’s access to education Also Read | Judicial letdown: Karnataka High Court upholds ban on hijab in classrooms