From Shayara Bano to Aishat Shifa, in a catena of judgements, judges have virtually assumed the theological authority to determine what is essential to religion; and discarded it as non-essential, that which is not proved to their satisfaction under the aegis of doctrine of essential religious practice test.
It was the Commissioner, Hindu v. Sri Lakshmindra Thirtha Swamiar (popularly known as the Shirur Matt case) which marks the beginning of judicial papacy in India, here the apex court for the first time, used this doctrine as a touchstone to distinguish practices as religious or secular.
The test can be traced back to the Debates in Constituent Assembly where BR Ambedkar said that “…limit the definition of religion in such a manner that we shall not extend beyond beliefs and rituals as may be connected with ceremonials which are essentially religious.”
In Lakshmindra Swamiar Supreme Court did use “essentially religious” in the sense that Ambedkar had used it. It was only in 1960s when Justice Gajendragadkar who in a row of judgements such as in Sastri Yagnapurushadji, Tilkayat Shri Govindlalji Maharaj, Durgah Committee, Ajmer, etc had held that the state may interfere in “superstitious” practices that are ancillary to a religion. Thus the word “essentially religious” went on from qualifying the nature of the practice i.e. whether it is religious or secular to “essential to the religion”, qualifying it’s importance within the religion.
A textbook example of this is Shayara Bano case, where Justice Rohinton Nariman took recourse to constitutional morality to scrap triple talaq. On the other hand, Justice Kurian Joseph chose to use ‘essential religious practice test’ to judge the theological validity of the practice and concluded that triple talaq is against the Quran, hence it lacks legal sanction.
RAMIFICATION OF ERP AS A CONCEPT
Essential religious practice test, used most recently in Aishat Shifa vs The State Of Karnataka (the hijab case), is antithetical to principle of liberty as it erases the agency of the petitioner. In Hijab case, the petitioner was told that the hijab she’s wearing as an act of faith for years, has nothing to do with her religion. In a similar fashion, the Supreme Court in SP Mittal v. Union of India, while dealing with the validity of the Auroville Act, 1980, told the followers of Aurobindo (-a separate religious group) that his teachings only reflect his philosophy and not a separate religion.
Secondly, ERP test shifts the burden of proof from the state to the Petitioner as he/she is required to show that a practice is an essential practice of his or her religion. However, the burden should be on the state to prove that the restrictions imposed by the state are in accordance with the limitations as provided in Article 25, say for example, in hijab case, state should have shown that what is it about the hijab that is fundamentally incompatible with public/educational spaces such as schools or college.
Thirdly, ERP test freezes the growth of the religion as any reform in it would never be considered essential to it. In Acharya Jagdishwaranand vs Commissioner of Police, Calcutta, it was held that Ananda Marga faith came into existence in 1955 while tandava was introduced only in 1966, hence, tandava dance performed by the Ananda Marga group, is not an essential religious practice, because it had not existed since the foundation of the religion.
Religion is relative in nature, and no test can determine what is essential to it, say for example, Dussehra is celebrated all over the world but not in Mandore, a town in Rajasthan as according to the legends, Mandodari married the demon king, Ravana in Mandore so the natives of the town considered Ravana as their son-in-law. Further, just by proving a practice as non-essential, it cannot be discarded. It sets a wrong precedent and restricts the arena of freedom of practice of religion to the very necessary and essential practices.
Judiciary cannot rationalize religion, the impetus for reform has to come from within the community. Arbitrary decision-making on religious issues on the part of the judiciary and the resultant public disillusionment might lead to the dilution of the institution by undermining its credibility and legitimacy in public opinion. For example, Justice Hemant Gupta’s judgement in the hijab case met with egregious accusations and widespread public dissatisfaction with the judiciary.
Last but not the least, given the political atmosphere of the country, the test is often used to the detriment of minority communities, as it was held that in Islam, mosques (Ismail Faruqui case) or hijab (Aishat Shifa vs State of Karnataka), or even beard (Mohammed Zubair Corporal vs UOI) which the believers keep as an act of faith, is not something essential to their religion as the religion can perfectly exist without that.
CASE OF SOCIAL OSTRACIZATION
Article 25 of the Constitution guarantees freedom of religion to every individual of the country which should never be compromised except in cases where the state’s sense of justice and morals are compromised to an intolerable degree.
One such case is of Dawoodi Bohra community where a leader can excommunicate its members for challenging his authority, an excommunicated member is denied access to the community mosque or any burial in the community. Since it was violative of Article 14, 17 and 21 of the Constitution, Government passed an act called Bombay Prevention of Excommunication Act, 1949 to restrict the said practice.
The Supreme Court in Sardar Syedna Taher Saifuddin Saheb v. the State of Bombay, struck down the 1949 Act, holding that the exercise of the power of excommunication by its religious head formed part of the management of its affairs in matters of religion and making excommunication invalid infringed the right of the community under Article 26(b) of the Constitution.
In his dissenting judgment, Chief Justice Sinha while mentioning the exclusionary ramifications of excommunication held that this power is not protected under Article 25(1) or Article 26(b) of the Constitution of India. He further pointed out the impact of excommunication, and scrutinized it in juxtaposition with untouchability under Article 17 of the Constitution, equating it with societal exclusion.
Following the same reasoning, Justice Chandrachud in Sabarimala case, concurred with the majority opinion. While noting that Article 17 is a powerful guarantee against social exclusion based on notions of purity and pollution, held that the exclusion of women between the ages of 10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the ideals of autonomy, liberty and dignity.
Except for the social exclusion principle under Article 17, judges in cases such as Haji Ali and Sunita Tiwari v. Union of India and Ors rightfully resorted to Article 14, 15 and 21 of the Constitution and not to the contentious ERP test to weed out the discriminatory religious practices to effectuate gender parity and inclusivity.
The courts should avoid violating the sacrosanct principle of limited state interference and must accept a practice as ‘essential’ if a community believes in it and intervene only on the grounds of ‘public order’, ‘morality’ and ‘health’ and of course, ‘social exclusion’.
Judiciary must develop a balanced approach in upcoming judgements in review petition in Sabarimala, Central Board Of Dawoodi Bohra Community v State Of Maharashtra, etc., to do away with religious practices which go against constitutional morality instead of overstepping its mandate in commenting on substantive aspects of religion, and deeming a religious practice, non-essential.
The author is a fourth-year law student from Jamia Milia Islamia, Delhi
Image Credits: Bar and Bench
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