Introduction
Most jurisdictions, today, recognise freedom of consciousness of religious identity as an integral and inalienable right of every individual. In India, these rights are enshrined within Articles 25-28 of the Constitution. The question of what should be considered “religious”, however, in the legal sense, still remains unsolved. As a result, many jurisdictions have derived different methods to interpret the term. As settled by the Supreme Court of India, the Essential Religious Practices (ERP) doctrine is one such method. The doctrine postulates that only the religious practices that are an essential part of the religion are protected under the Constitution and hence, cannot be restricted or regulated by the government. The doctrine has become an important criterion in determining which religious practices are protected under the Constitution, meriting analysis.
The Evolution of the Doctrine
The doctrine was first used in the The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt where the Court decided that it was only the essential practices of a religion that could be protected under the Constitution. It was held that the essential practices ought to be determined based on the basic tenets of the religion. Further, each religious denomination enjoys complete autonomy to determine what practices should be considered essential and no external authority has any right to meddle in their choices regarding such affairs.
Through subsequent judgments, the meaning and scope of the doctrine have expanded. For instance, in The Durgah Committee, Ajmer v. Syed Hussain Ali, And Others the Court observed that while determining whether a particular practice is essential, the Court must also check if it is a ‘superstitious’ or an ‘unessential accretion’ to the religion. If the answer, is in the affirmative, then the practice cannot be considered essential.
In Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, the Court went further and held that it was up to the Court to determine if a practice is an essential practice of a given religion and that it will create problems if the religion were permitted to “circumvent the decision of the Court by altering its doctrine.” In the recent Sabarimala judgment, the Court traced the history of the doctrine and defined the test for essentiality. The Court had to ask “whether the practice is prescribed to be of an obligatory nature within that religion” and if in the absence of such a practice, the fundamental nature of the religion would be altered.
The broadened interpretation of the doctrine has allowed the Court to scrutinize the substantive principles of religion. Consequently, the Court has assumed the mantle of a ‘high priest’, asserting its authority to determine what elements should be regarded as essential and non-superstition within a religion.
The Problematic Implications of the Doctrine
In deciding these matters, there has been a tendency towards arbitrariness and inconsistency, leaving the Court open to criticism. For example, in Sri Venkataramana Devaru and Others v. The State Of Mysore And Others, Gowda Saraswath Brahmins, a Hindu sect, was allowed to restrict non-caste Hindus from certain practices, while claims by Muslim sects to restrict other sects from their place of worship were denied.
Further, legal scholars frequently raise concerns about the Court’s legitimacy in deciding such matters, as individuals’ faith is often subject to judges’ rulings rather than their discretion. In the Ismail Farouqui case, the Court ruled that praying namaz at the mosque is not an essential practice. In Ghulam Abbas v. State of UP, the Court interpreted the Quran to restrict the shifting of the graves. In Acharya Jagdishwaranand Avadhuta, Etc v. Commissioner Of Police, Calcutta & Anr, the Court told the Ananda Margis sect that their ritual of Tandava dance was not integral to their religion. The main contention here has not been the outcome of these cases but the very authority of the Court to adjudge on what practices are integral to the religion.
The doctrine has also served as a tool for Courts to enact social reforms. In cases such as the Shayaro Bano, Devaru, or Sabarimala, the Court used the doctrine to discard, what it considered, discriminatory practices such as triple talaq and restrictive entry to temples based on caste and sex, respectively. Though a noble initiative at first sight, it, by no means, makes the doctrine indispensable as the Court could have given the same judgments while relying upon the constitutional restriction of public policy, morality, and health on religious rights.
The reason for the Court’s approach is that, in a country like India, rejecting something because it is not part of the religion itself, rather than saying it is immoral or against public policy, is more convenient for a Court trying to maintain people’s faith in the judiciary.
However, the practice of the Court to enter the domain of religious interpretation has not always gone down well with the public. For example, in the Shah Bano case; though the case did not concern the essential religious practices doctrine; when the Court relied upon the verses of the Quran to hold that Muslim women are entitled to receive maintenance under the Code of Criminal Procedure, 1973, there was an immense public outcry. Similarly, after the Hijab Case, when the Karnataka High Court decided that the Hijab was not an essential part of the Islamic faith, the judiciary received stern criticism for its interpretation.
The judges, despite their prescience and legal acumen, and it does not take a legal expert to realise this, are not religious scholars.[i] Their opinions on religious matters should not be considered a final ruling on the tenets of a religion.
It has also been said that the doctrine leads to a homogenization of religions, perpetuating an outdated perception of singularity, homogeneity, literary traditions, inalterability, or historical continuity. It risks sidelining the minority denominations within religious groups. This phenomenon occurs because Courts often favour mainstream religious texts, what Ronojoy Sen described as ‘high culture texts’[ii], over local texts and popular customs.
This iniquity was on display in the Gramsabha case, where the Bombay High Court preferred to rely upon the Dharma Sastra rather than Srinath Liltamath, a local religious text, for its judgment. Article 25 of the Indian Constitution is for the protection of the individual’s right to decide what they believe in and free expression of that belief. This right becomes a dead letter if the Court decides which of the individual’s practices is fundamental to their belief.
Is there an Alternative?
The Court must establish some criterion for determining the practices that merit constitutional protection. However, better alternatives than the ERP doctrine exist.
Justice Dhulia, for instance, in Aishat Shifa, supported the “assertion test”, where if a party asserts a custom as religious, the Court won’t inquire further and will protect it constitutionally. The burden is on the state to prove that regulations conflicting with such customs are justifiable on specified grounds. held that when a state action restricts an individual’s freedom of religion, the ERP test doesn’t apply.
In a similar line of reasoning, J.E. Neo prescribes a two-stage approach to adjudicating religious freedom claims, emphasizing a deferential stance towards the self-definition of religious groups. In the first stage, Courts should generally accept a group’s self-definition, unless there are clear indications of insincerity or fraud. The second stage involves balancing religious freedom against competing state interests, shifting the legal burden from citizens to the government.
While dealing with issues such as discrimination within religious denominations, the Court could ascribe to what has been described as the anti-exclusion principle. This approach postulates that if there is a conflict between a group, or community, and an individual of that particular group, the Court should protect the right of the individual from the group’s actions which exclude them from the economic, social, and cultural life of the group.
Conclusion
Initially, the doctrine was intended as an inclusive formula for protecting religious practices that might possess economic and secular elements. Instead, it has become the exclusionary threshold for determining which religious practices should be barred from protection under the Constitution.[iii] It seemed to have empowered the Court to decide what constitutes essential practices of a religion. This power enables the Court to decide the religious which of the religious practices and beliefs can be protected by the Constitution, turning the gavels of the judges into the Papal Ferula of the pope.
The ERP doctrine has birthed a quasi-theologian judiciary that decides for its citizens what constitutes an essential part of their faith and deserves constitutional protection. This has not been appreciated by the public and has been subjected to criticism by several legal scholars. As dissent grows louder, it becomes increasingly evident that the doctrine requires a thorough reassessment. Considering the drawbacks, various alternatives have been put forth. The Court must move toward a more balanced approach that honors religious beliefs and traditions within society. It is high time that the court drops its self-acquired clerical robe.
Endnotes:
[i] R. Dhavan and Fali S. Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’ in B.N Kirpal, Ashok H. Desai, et.al. (eds.), Supreme But Not Infallible: Essays in the Honour of the Supreme Court (OUP 1997).
[ii] Ronojoy Sen, Articles Of Faith: Religion, Secularism, And The Indian Supreme Court (OUP 2019).
[iii] Nariman, supra note i, at 256.
The Authors are students of Rajiv Gandhi National University of Law.
Image Credit: Justice Mirror
Constitutional Law Society 
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