Archit Sinha
INTRODUCTION
It has been five years since the fallacy of Sabarimala occupied the judicial discourse. The judgment has been given the go-ahead to be taken to a 7-judge bench to be constituted to hear the matter. This offers a crucial opportunity for the Supreme Court to correct its course by getting rid of the Essential Religious Practices test (ERP). The current approach of Indian jurisprudence regarding religious rights (Articles 25 and 26) has been marred in controversy, to say the least.
Ever since Shirur Mutt in 1954, there has been anything but a clear ratio regarding the interpretation of Articles 25 and 26. The only explicit development has been the creation of the Essential Religious Practices ERP test, the interpretation of which has been inconsistent. Consequently, the Court has adjudged religious practices using epithets like ‘Superstition,’ ‘Constitutional Morality’, etc., without laying down any discernible principles. Thus, the contemporary standard of judicial review in religious practices is unprincipled and its scope, obscure.
I aim to delineate the scope of judicial intervention in religious rights adjudication. I argue that the nature of judicial scrutiny in this regard must be strictly procedural and of substantive non-interference. I trace the evolution of the ERP and its resulting fallacy regarding restrictions on religious rights. Further, I reconstruct a principled judicial standard for religious rights adjudication, using Ambedkar’s ideas as a base, that will be in line with the non-reformative role of the courts concerning religion. Lastly, I look at the limitations of my approach and conclude thereafter.
I. ESSENTIAL[LY] RELIGIOUS PRACTICES: THE TWISTS & TURNS OVER THE YEARS
The Supreme Court formulated ERP in Shirur Mutt (1954) while interpreting the scope of Articles 25 and 26. It was examining the extent of state interference into the Mutt’s affairs under the concerned Act and in doing so, it acknowledged a dichotomy between essential and non-essential parts of religion (para 10). Further, regarding these essential ‘parts’, the court gave primacy to religious doctrines (para 20), consequently, restricting the scope of scrutiny of essentially religious practices by nature. In doing so, Shirur Mutt affirmed Ambedkar’s conception of religious rights, with emphasis on the protection of essentially religious practices (assembly debates).
Subsequently, the ERP has been re-interpreted countless times. Comparing Sardar Syedna to Hanif Quareshi to Durgah Committee, ERP becomes even more convoluted. The Supreme Court, in Sardar Syedna, delineated the scope of Article 25(2) while adjudging the validity of the Bombay Excommunication Act, 1949. It was argued to be violative of Article 26(b) for prohibiting ex-communication. The majority (4:1) struck down the law and on state intervention, held only those laws to be valid that did “not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1) (para 60).
This marks a distortion of the ERP as envisioned in Shirur Mutt. Subsequently, this distorted ERP was re-interpreted by the Court in Hanif Quareshi, (1958). Herein, while upholding the constitutionality of cow slaughter bans on Id, the Court reasoned cow sacrifices do not constitute an essential requirement for “a Mussalman to exhibit his religious belief[s]” (para 20) The emphasis was further shifted onto the essentiality of the practice to exhibit his/her religious beliefs. So, not only was ‘essentiality’ distorted but a further requirement was added to the ERP, significantly raising the burden for practices to be protected under Articles 25 and 26.
To illustrate, assume ‘offering prayers’ is an essentially religious practice but religious tenets are silent regarding its nature. A law is passed prohibiting this practice in public spaces. Going by Shirur Mutt or Syedna, this law will be struck down, but by considering Quareshi, it is plausible for the court to hold this practice to be essentially religious/essential to the religion but not essential to exhibit religion in public as the tenets do not advocate for it. Further, Durgah Committee conflates the whole point of ERP by bringing in “superstition”.
Consequently, the judiciary has been conferred with a tacit discretion regarding ‘essentiality,’ and religious practices. This inconsistency has allowed courts since Shirur Mutt with too much interference with religion as the distorted ERPs empower the judges to cherry-pick a version of ERP and resultantly impose their sense of understanding onto religious practices.
Considering ERP in the context of Sabarimala, especially considering the fact that its review is coming up, a startling implication can be made regarding the standard of restrictions for religious rights which is clearly in need of rectification/erasure.
A. Standard of Restrictions – Reasonableness in Religion
In Sabarimala, the Court held ‘Constitutional Morality’ as a standard to read ‘morality’ in Article 26. The rationale behind this was simply that because the Constitution was not forced upon anyone, “public morality has to be understood as being synonymous with constitutional morality” (para 110).
Though the foundations of the term are laudable for emphasizing the use of principles of constitutionalism (etc.) for rights adjudication, it fails to capture the essence of religious freedom. When it comes to religious rights, this is inappropriate as it imposes a uniform standard of morality across religions. By imposing this standard, the courts end up ‘judging’ the substance of the belief and not the relationship between the group and the belief. Courts, because they are not religious institutions, would always extrapolate a sense of uniform rationality and reason to something that is not uniform either in practice or expression. For religious rights, this is a very high standard and grossly inappropriate as it falls foul of the very notion of religious freedom.
Moreover, with the courts being external authorities, adjudging the questions of essentiality of practices departs from the very idea of Article 26(b), which recognizes the right to manage religious affairs.There remains no value in this right if “own affairs” are determined by the court using its principles of rationality, etc.
Therefore, the imposition of Constitutional Morality onto religious practices places a higher constraint than that under the Constitution. It is not for the courts to adjudge the rationality, logic, importance, or morality of any religion simply because they have no authority to do so. For them, the only pertinent question that remains is that of the nature of the practice and the sincerity of the belief.
II. THE PROPOSED APPROACH – ADDING PRONGS TO THE SINCERITY TEST
Based on the idea that the role of courts in the sphere of religion is strictly non-reformative, I propose a restructured alternative by laying down 3 conditions to assess the fulfilment of the Sincerity Test (assessing the sincerity of the claimant’s religious belief). I use the Ambedkarite view of essentiality and religions as a base and build from there.
A. Nature of the Practice – Defining ‘Religion’ and ‘Religious Practices’
Starting from Sinha, C.J.’s dissent in Syedna, the nature of the practice would define the extent of the court’s scrutiny of the practice (para 18). If essentially religious by nature, then Articles 25 and 26 would apply. Regarding what constitutes ‘essentially religious’ practices, it has to take colour from the word ‘religion.’ So, this would be wider in scope than what Ambedkar envisioned.
As put forward by Khaitan, ‘religion’ is an intersubjective phenomenon, implying its existence to be contingent on a shared acceptance in the perception of a group of people – a communitarian acceptance. So, a collective acceptance of the beliefs will be the starting point. The quantum of this group is deliberately undefined to account for the dissenting, heterodox, and minority views. Moreover, this ‘group’ need not be overtly cohesive – a collective of people, united in their belief in spirituality/ideology (or the lack thereof) would constitute a group.
The group needs to have a set of practices and expression of their beliefs, distinct from other similarly placed groups, to differentiate them from culture (etc.). ‘Expression’ of belief is crucial to distinguish from, say, culture, and it can be through overt practices like pilgrimage, abstinence, etc.
Thirdly, the ‘group’ must have an earnest belief in at least one core thought (to be determined by the doctrines) of the ‘religion.’ ‘Sincerity,’ I envision, as a belief held to be so crucial by the collective that it drives their conduct, way of life, and interactions with others, forming a basis of its identity as a group. For example, the belief in the ‘words’ of the Prophet, for the Muslims, or the crucifixion of Christ for the Christians. This sincerity is so crucial that non-adherence would lead to exclusion from the communion.
B. Scope and Nature of Intervention
A group satisfying the above-mentioned conditions would be a ‘religion.’ Its practices and adherents/any sections (denominations, etc.) will have the rights under Articles 25 and 26. Now, this is where I diverge from the ERPs in practice.
Upon satisfying the first condition, all practices/expressions (etc.) of the religion would be accorded the protection of Articles 25 and 26 and not just the essential beliefs. So, ideally ERP should have been following Shirur Mutt. However, unlike Ambedkar’s views, these practices, though essentially religious, would not be untouchable by the law as the limitations of Articles 25 and 26 would apply to all of them.
Only regarding “other secular activit[ies],” the Shirur Mutt and the Ambedkarite view would apply. To illustrate, offering prayers is essentially religious, so the state cannot prohibit ‘offering prayers,’ but it can restrict/regulate offering prayers using a speaker as it is not a religious practice by nature.
Lastly, if a practice is ‘essentially religious’ as per Articles 25(1) and 25(1)(a), then the nature of the court’s scrutiny would only be procedural. Presuming restrictions under Articles 25 and 26 to have been met, the court would only check if the impugned law distorts/alters the procedure of the practice or interferes with it in any way. The procedure is to be deduced from the religious texts only (para 20). The substance of the practice, however illogical/irrational (etc.,) if it passes the requirements under this test along with Articles 25 and 26, would fall out of the scope of judicial scrutiny.
III. LIMITATIONS & CONCLUDING REMARKS
It may be contended that under the Nature of the Practice test in Part II, on the notion of ‘sincerity,’ a rigid conception of religion is being advocated for by holding non-adherence to be akin to exclusion. So, the fluidity of religions is, overlooked.
In response, I argue that this requirement actually acknowledges the fluid nature of religions, as opposed to disregarding it. Non-adherence to practices of this nature would imply a disagreement regarding one of the core beliefs, so, with each instance of non-adherence, there is a possibility of the existence of sub-sects or denominations within a religion, provided other essentials of this test are fulfilled. The non-adherents and their views are not cast aside but acknowledged as separate entities, affirming their identity.
The absence of a ratio has severely hampered the significance of rights under Articles 25 and 26 because the courts have been able to interfere with such practices at whim. Precisely to keep a check on judicial intervention in this regard, a principled approach is needed. There is no better time to set the record straight than the 7-judge hearing of the Sabarimala appeal. The Court must put an end to this ERP debacle and only interpret that which it is capable of. The Sincerity Test is a viable alternative and it falls in line with the judiciary’s role in the interpretation of Religious Rights – strictly procedural and of substantive non-interference.
The author is a second-year student from National Law School of India University, Bangalore
Image Credits: The Quint
Constitutional Law Society 
Leave a Reply