Doctrine of Essential Practice of Religion – A Critique

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Abstract

The Constitution of India guarantees the right to free practice of religion. This is, however, also subject to several restrictions including public order, morality, health, and social reform. Despite the textual limitations in the Constitution itself, the Supreme Court of India has tested the validity of religious practices not based on these limitations, but based on whether they are ‘essential to a religion’ or not. This has led judges to engage with questions of theology.

Even though India has considerably benefited from the distinction between what is essential to religion and what is not, the “essential religious practices” test has always remained a debatable issue regarding its legality in a secular state. Very recently, the Supreme Court resorted to the said test while deliberating upon the issue of entry of women into the Sabrimala temple in the Indian Young Lawyer Association v State of Kerala case, where it could have easily taken the gender-based reasoning to reach its final judgment. However, not only in this case but in many others also, the Supreme Court has preferred to declare something as not essentially religious, rather than subjecting it to other secular tests like public order or morality and more so, avoiding to adopt an approach towards the horizontal application of fundamental rights. In this context, the present paper seeks to delve into the question of competency of the Courts in transforming itself into a theological authority by tracing the evolution of the test and analyzing its legitimacy in a nation like India.

Introduction

The Constitution of India is a vibrant document that confers a very distinctive character to the nation. The Preamble of the Constitutions contains the text “constitute India into a Sovereign, Socialist, Secular, Democratic, Republic.”  The conferring of the title “Secular” is one of the most distinctive features of the Constitution.  The Supreme court in the landmark judgment of S.R Bommai v. Union of India held that “Secularism is a positive concept of equal treatment of all religion”. The contention between the constitutional promise of religious expression and the freedom of the individual to pursue life, as one deems right is one that shapes the fabric of the country. Article 25 recognizes a right to freedom of conscience and a right to freely profess, practise, and propagate religion, subject to common community exceptions of public order, morality, and health, and also, crucially, to the guarantee of other fundamental rights. Article 25(2)(b) creates a further exception to the right. It accords to the state the power to make legislation, in the interests of social welfare and reform.

Article 26, on the other hand, which is also subject to limitations imposed on grounds of public order, morality, and health, accords to every religious denomination the right, among other things, to establish and maintain institutions for religious purposes and to manage their affairs in matters of religion.

During the Constituent Assembly Debates, Dr B.R Ambedkar, the Chairperson of the drafting Committee on the proposal of saving of the personal law within the ambit of religious freedom remarked: “The religious conception in this country is so vast that they cover every aspect of life, from birth to death. There is nothing which is not a religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill…… There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion… I personally do not understand why religion should be given this vast expensive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon the field”

Essential religious practices are those on which the religion is founded upon. Essential practices are those which are fundamental to the profession and propagation of the religion. If taking away practice causes a substantial change in the religion then such practice can be called ‘an essential religious practice.’ Only such practices are protected in Article 25(1). The usurpation of religious practices through state intervention will result in the violation of rights mentioned in Article 25(1) & not with the usurpation of circumstantial and non-essential practices.

The dichotomy between the pluralism and Constitutional morality cannot be resolved by an inconsistent tool of interpretation. Religious liberty and autonomy are an intrinsic part of the belief system of an individual. With the determination of the Constitutional validity of practice on the touchstones of the ERP test, the religious liberty of an individual is at stake.  A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies, and modes of worship & imposing the court’s morality on religion would negate the freedom to practice one’s religion according to one’s faith and beliefs. It would amount to rationalizing religion, faith, and beliefs, which is outside the ken of Courts. The essential practices test has been used by the Court to decide a variety of cases. According to this test, the judiciary determines whether a practice is so intrinsic and rooted in the religion that changing or modifying it causes a substantial change in the way that religion is practised and propagated These can broadly be classified under a few heads. First, the Court has taken recourse to this test to decide which religious practices are eligible for constitutional protection. Second, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations.

This paper is an analysis of several judgments of the Constitutional Courts from the post-independence era up to the present day, to discuss, the entanglement between law and religion, and the disputed limits of judicial intervention therein.

The landmark cases concerning the Essential Religious Practice Test are analyzed below:

Ratilal Gandhi v. State of Bombay (1954 SCR 1035)

The first case that came in front of the Indian judiciary was when the Bombay High Court had to adjudicate the case of Ratilal v. the State of Bombay, wherein the provisions of the Bombay Public Trusts Act was challenged on the ground that it contravenes Article 25 & 28 of the Constitution.

The Bombay High Court while deciding the issue observed that “he religious freedom which has been safeguarded by the Constitution is religious freedom which must be envisaged in the context of a secular State. It is not every aspect of religion that has been safeguarded, nor has the Constitution provided that every religious activity cannot be interfered with. “religion” as used in Articles 25 and 26 must be construed in its strict and etymological sense.”

The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt (1954 AIR 282, 1954 SCR 1005)

The judgment rendered by the 7 Judge Bench in the case was the first case in post-independence India wherein the question of what constitutes a religion was a fact-in-issue. The Hon’ble Supreme Court rejected the definition of religion offered by the US Supreme Court in Davis v. Beason: ‘The term religion has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.’ The court instead drew on the Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth judgment in Australia where the Court said the Constitution not only protected ‘liberty of opinion’ but also ‘acts done in pursuance of religious belief as part of religion’. Collapsing the belief-practice dichotomy, the Apex Court stated “ ‘A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but it might also prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion”.

With this the Court it impliedly rejected the “assertion test” as used by the US judiciary whereby a [plaintiff] could assert that a particular practice was a religious practice” and courts would not probe any further. Finally, Shirur Mutt is a landmark case because it contained a contradictory trend – though the judgment is celebrated for widening the definition of religion to include rituals and practices, at the same time it sanctioned an elaborate regulatory regime for religious institutions.

Mohd. Hanif Qureshi v. State of Bihar (AIR 1958 SC 731)

In the case of Mohd. Hanif Qureshi the case was wherein the Bihar Preservation and Improvement of Animals Act, 1955, put a total ban on the slaughter of all categories of animal, of the species of bovine cattle & The U. P. Prevention of Cow Slaughter Act, 1955, put a total ban on the slaughter of cows and her progeny which included bulls, bullocks, heifers, and calves. The petitioners, who were engaged in the butcher’s trade and its subsidiary undertakings, challenged the constitutional validity of the Acts on the grounds that they infringed their fundamental rights guaranteed under Arts. 14, 19(1)(g) and 25 of the Constitution. The Hon’ble Supreme Court upheld the validity of the acts and laid down that “ The  ban on the slaughter of cows even on the slaughter day did  not violate the fundamental rights of  the petitioners under Article 25 as it had not been established that the sacrifice  of a cow on that day was an obligatory overt act for a Mussalman to exhibit his religious belief and idea.”

Sri Venkataramana Devaruand Others v.The State of Mysore and Ors ( AIR 1958 SC 255)

In this case, trustees of the temple of Shri Venkataramana of Moolky Petta challenged the Madras Temple Entry Authorisation Act, which allowed entry of Harijans in the temple, as breaching the right to manage its affairs. appeal to the HC decision was filed by the trustees of the temple of Sri Venkataramana of Moolky Petta demanding to uphold the ban of entry Harijan into the temple premises. The Temple of claimed to be a religious denomination having an absolute right to manage its affairs concerning its religious practice and outside the purview of governmental control. The High court maintained the prohibition only certain instances of special ceremonies but upheld the public right to worship.   The Supreme Court when dismissing the appeal reasoned that Article 25(2) (b) must be read harmoniously with Article 26 i.e. it must be given a liberal interpretation to benefit the public. It also declared that Article 26 is not an absolute right and yields to the restrictions found in Article 25. The scheme in Article 26 was further read down by extending the application of the essentiality principle to clause (b) ‘matters of religion.’ The judgment rendered by the Supreme Court is of paramount importance to legal jurisprudence as the Court laid down a crucial precedent that marked a shift in judicial approach wherein the Court’s role became determinative in determining whether a practice qualified as essential. Thus, the test of determining what is ‘essentially religious’ (as distinct from the secular) became conflated with ‘essential to religion.’.

Durgah Committee, Ajmer & Anr. vs. Syed Hussain Ali & Ors (AIR 1961 SC 1402)

In this case, the challenge was to the vires of the Dargah Khwaja Saheb Act, 1955 provided the Court with another opportunity to apply the test of essential religious practices. The Act, it was argued, took away the fundamental rights of Muslims belonging to the Soofi Chishti Order, for it was to they alone who were the sole custodians and caretakers of the shrine at Ajmer. The impugned Act, however, permitted all Hanafi Muslims, even those not belonging to the Soofi Chistia Order to partake in the maintenance and affairs of the Dargah. The Court rejected the challenge to the Dargah Act observing that the pilgrims travelling to the tomb included persons from all walks and religions who visited the tomb out of devotion for the memory of the departed saint and had at no point in time been confined to members of the Soofi Chistia Order. The Court further held that so that the practices in question should be treated as a part of the religion they must be regarded by the said religion as its essential and integral part; otherwise, even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may claim being treated as religious practices within the meaning of Article 26. Similarly, even practises though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. The protection must be confined to such religious practices as are an essential and integral part of it and no other.

Shayara Bano v Union of India & Ors (2017) 9 SCC 1

This is a landmark judgment in which the Hon’ble Supreme Court by a majority of 3:2, set aside the practice of talaq-e-bidat, which allowed certain Muslim men to divorce their wives instantaneously and irrevocably, on the basis that it violated the Constitution of India.

The main issue in the case was whether the act of Triple Talaq is an essential religious practice in Islam or not. As per the majority, the said practice is not an essential element of the Islamic religion. The court justified its point of view in the sense that although it is practised by the Hanafi School it is considered sinful in it. Triple Talaq is against the basic tenets of the Quran(Source of Law)  and whatever is against the Quran is contrary to Shariat & therefore, what is bad in theology cannot be good in law. The majority bench relied on its earlier decision Shamim Ara which held that this practice of Triple Talaq is against both theology and law and just because it is followed by a large number of people it cannot be validated. Therefore, such practice is declared unconstitutional and set aside.

Indian Young Lawyers Association & Ors. v The State of Kerala & Ors – writ petition (civil) no. 373 of 2006

The Sabarimala temple case was a landmark judgment rendered by the Constitution Bench Supreme Court in a 4:1 verdict wherein it was held that the exclusion of women between the menstrual age of 10-50 is an exclusionary practice and it does not pass the essential religious practice test. The Apex Court found the practice prejudicial and that it violates women ‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion.

Criticism Of Doctrine Of Essentiality

The Doctrine of Essential Religious Practice has been criticized over the past years by several legal luminaries and jurists. As early as 1968. The test was criticized by jurists and legal theorists for the subjective authority of the court as well as its incompetence in conducting the test. Several researchers also pointed out that the test practically divests all substantive protection activities. They further claim that the Court is unqualified to adjudicate on questions of religious doctrine. They highlight the ambiguity of the Court’s findings by reviewing the main judgments relevant to the study. They also reject the “invocation of blurry past” by the Court and the “overt reliance on experience” associated with the review of important activities.

Conclusion

The use of the essential practices test has remained largely undiminished in the long span from its development. Current judicial opinion shows that a reconsideration of the test as a practicable road to jurisprudence may be inevitable. In the past 15 years, in particular, there has been growing cynicism towards the examination, and its use by judges is becoming more inconsistent. Particularly troubling is the fact that Supreme Court Justices quoted criticisms of the test in their decisions.

Authors advocate the ‘ anti-exclusion principle ‘ as a substitute for the doctrine of essential religious practices which stipulates that ‘ Social freedoms and social dignity are protected to the degree-and only to the extent-that religious groups do not obstruct individuals ‘ access to the basic public resources needed to sustain a dignified life.

Finally, the author would like to conclude by stating that an inconsistent instrument of interpretation cannot resolve the dichotomy between pluralism and constitutional morality. Religious freedom and autonomy form an intrinsic part of an individual’s belief system. A person’s religious freedom is at stake, with the determination of constitutional validity of practice on the touchstones of the ERP test. While creating a contextual test for determining a person’s religious freedom, the author is struggling to understand the need for judicial over excitement. With the Constitution establishing the objective and rational test of determination per Article 25, judicial overreaching is certainly an act of transgression and unnecessary intervention in a person’s religious liberty. It is therefore urged that the Court abolish the Essential Religious Practise test, as it does nothing but create a conundrum of subjectivity and ambiguity in determining fundamental rights.


Parikshit K. is an alumnus of School of Law, Christ University. He graduated in the year 2020. He can be reached at [email protected]


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