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An Overview on Doctrine of Essentiality in light of the Essential Religious Practice Test

Yet another year, another controversy encompassing the doctrine of Essential Religious Practices. This judicially levied test was now in news in the debate over the hijab restrictions in Karnataka's classrooms. However, the High Court of Karnataka dismissed petitions filed by a group of Muslim girls seeking permission to wear hijab (headscarf) in classrooms on March 15, 2022. The petitioners unsuccessfully argued that wearing a hijab is an "essential religious practice" in Islam and thus protected under Article 25 of the Constitution. Lastly, it was prominently featured in the Sabarimala litigation five years ago.

The Essential Religious Practices doctrine has become so tainted that it's difficult to believe any judge ever thought it could be used to resolve conflicts rather than encourage them. Such various controversies and the growing tendency to defang the Essential Religious Practices doctrine are not the doctrine's fault. Most people having knowledge of Indian constitutional law will recognize that today's Essential Religious Practices doctrine is not exactly the doctrine articulated in the 1954 case from which it arose.

ERP Test and Past instances:
Essential religious practices are those that are vital or fundamental to religion and if they are not followed, the religion itself will change. The Essential Religious Practices doctrine was intended to protect religious autonomy rather than undermine it: courts were supposed to draw this distinction, "with reference to the doctrines of that religion itself." Furthermore, denying essential religious practices would be a violation of Article 25, which addresses the freedom of conscience as well as the free profession, practice, and propagation of religion.

The Doctrine has evolved significantly as a result of various judicial precedents. The Doctrine was originally conceived in The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmidar Thirtha Swamiyar of Shri Shirur Mutt, also known as The Shirur Mutt Case, in which the Court made a distinction between 'religious' and 'secular' practices, where religious practices were considered to be those of the utmost importance to the religion and secular activities were defined as practices associated with religion but do not really constitute an essential part of it, such as economic, financial, and political activities, and thus only religious practices were considered essential and integral and could benefit from constitutional protection.

The Court stated:
What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year, or that there should be a daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve the expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).

In other words, Shirur Mutt's articulation of Essential Religious Practices was not intended to distinguish between religious practices that were essential and those that were not. It was intended to differentiate between practices that were fundamentally religious and those that were not. However, the Indian Court in Shirur Mutt was clear in its intent but, unfortunately, laid the groundwork for the confusion we see today.

The following is the most-quoted line from the Shirur Mutt decision:
What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.

If the above lines are solely interpreted, this definition of the Essential Religious Practices doctrine is consistent with current usage: the doctrine instructs courts to distinguish between practices that are essential to religion and practices that are not.

In the initial conception, practices were not protected by the doctrine which was deemed to be non-religious in nature, rather than those deemed religious but insufficiently important. However, the doctrine has evolved from "essentially religious" to "essential to religion" since 1954.

The Court established another critical precedent in Sri Venkatarmana Devaru v. State of Mysore, signaling a shift in judicial approach in which the Court's role became determinative in determining whether a practice qualified as essential. As a result, the test for determining what is "essentially religious" became conflated with "essential to religion."

In Dargah Committee, Ajmer v. Syed Hussain Ali, the Court stated that a clear difference must be made between religious practices that are essential and integral to religion and religious practices that are merely superstitious. Thus, the protection of Articles 25 and 26 was limited to religious practices that were essential and integral to the religion.

It should also be noted that the Court's subsequent use of the doctrine to determine what is 'essential' to religion and what is not has resulted in many contradictory viewpoints. This is due to the distinctiveness of each case. Each case has different facts and is unique in its own way, which the Court recognizes, and thus there can be no fixed precedent for the same. In the case of The Indian Young Lawyers Association & Others. V. The State of Kerala and Others (Sabarimala Case), the decision to allow women to enter the temple is specific to that temple and not to all temples in the country that do not allow women entry.

Further, the Supreme Court ruled that Tandava dance was not required by the Ananda Marga faith. It was stated once more that whether the absence of a practice fundamentally alters the religion determines whether it is an essential part of the religion. And in Shayra Bano Case, Supreme Court ruled that Triple Talaq violated the basic tenets of Islam and violated Shariat. It stated that a practice that is simply permitted or not prohibited by religion cannot be considered an essential or positive tenet sanctioned by religion.

The court's changed opinion on the question of essential religious practices?
Justice D Y Chandrachud in the Sabarimala case made a very rational point and stated that "Due to the essentiality doctrine, Judges are now assuming a theological mantle which we are not expected to do."

And in the same case, Justice D Y Chandrachud opined that there should be an alteration to the doctrine i.e "The test should be whether a practice subscribes to the Constitution irrespective of whether it is essential or not." In the same judgment, Justice Chandrachud also criticized the essential religious practice test calling it a problem. He said " There is a problem with our jurisprudence. Essentiality aspect has taken charge of Article 25 but it should not be so, because if something is essential it becomes inviolable."

Hearing review petitions in the Sabarimala case in 2019, a five-judge bench referred seven different issues to a larger bench, those issues were including the questioning of the extent to which the court can inquire whether a particular practice is an integral part of the religion or religious practices of a particular religious denomination, or whether that should be left solely to the head of the religious group's section; or whether the essential religious practices of a religious denomination, or even a section thereof, have constitutional protection under Article 26. Though a nine-judge bench was formed in 2020 to investigate these issues, no hearings have yet taken place.

Way forward:
At last, it can be said that some difficult questions are unavoidable in the context of religious freedom jurisprudence due to the diversity of our country and there is no perfect doctrine to assist us in answering them. However, if the court returns to the original Essential Religious Practices, it may provide a more promising framework for moderating and moderate religion-state relations.

The doctrine has already seen several variations throughout history and will see many more in the future, but courts time and again have always ensured that it is always careful, just, and prudent, and has always kept in mind and balanced the interests of the citizens as a whole and the interests of the religion concerned. As long as the Supreme Court, which is the guardian of our rights, continues to do so, the future of our great nation and religions will be secure.

End-Notes:

  1. https://indiankanoon.org/doc/1430396/
  2. https://indiankanoon.org/doc/1896039/
  3. https://indiankanoon.org/doc/1262157/
  4. https://indiankanoon.org/doc/163639357/
  5. https://indiankanoon.org/doc/1612501/
  6. https://indiankanoon.org/doc/115701246/

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