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EXAMINING THE DOCTRINE OF THE ESSENTIAL RELIGIOUS PRACTICES TEST: A CASE FOR ITS LIMITATION.
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EXAMINING THE DOCTRINE OF THE
ESSENTIAL RELIGIOUS PRACTICES TEST: A CASE FOR ITS LIMITATION.
AUTHORED BY - CVP RISHIK
Abstract
The focus of this paper is on how the Supreme Court of India has engaged
in a delicate task of determining
whether a specific religious practice warrants constitutional protection under
Article 25(1) through the use of the
judicial doctrine of 'essential religious practices.' By examining a series of
court rulings, it highlights how the
courts have made unwarranted assessments about the validity of religious practices, leading to adverse consequences
for religious communities and minorities. Consequently, the question of 'what is essentially
religious' has transformed into a consideration of 'what is essential in religion.' The court lacks the authority
and expertise to ascertain whether a religious practice is genuinely 'essential.' State interference
is only justified based on constitutionally prescribed limitations such as 'public
order,' 'morality,' and 'health.' The primary principle should be minimal
state intervention but maximum protection.
Keywords- essential religious practice, religion,
secularism, constitution of india
Introduction
In
Aishat Shifa v State of Karnataka1
in October 2022, the Supreme Court came up with a split ruling concerning the right of Muslim female students in state-funded educational institutions to wear the hijab. A
notification from the state government had mandated schools and pre-university
colleges to enforce a strict uniform
policy without allowing for any religious practices to be observed by female
Muslim students. Consequently,
several institutions prohibited Muslim girls from wearing headscarves or
hijabs, prompting a legal challenge
on the grounds of religious freedom. The Karnataka High Court upheld the order, leading to a split verdict by the
division bench in the Supreme Court, with Justice Hemant Gupta supporting its validity and Justice Sudhanshu
Dhulia deeming it unconstitutional.
Notably, both justices refrained from employing the essential religious
practices (ERP) test, the established legal benchmark for matters related
to religious freedom,
to support their stances. This implies that neither opinion was founded on
whether wearing a hijab constitutes an essential or integral aspect of Islam deserving constitutional protection.
Particularly significant is Justice Dhulia's departure from established jurisprudence, as he
explicitly disregarded the ERP test in cases where an individual's rights are curtailed by state regulations. With
the case now referred to a larger nine judge bench, the Supreme Court has an opportunity to reassess or
restrict the applicability of the ERP test, which has faced recurrent criticism from legal scholars
on multiple fronts.
This paper aims to initially outline the content
and development of the ERP test. Subsequently, it will look at
how it has been applied in various cases post independence.Thirdly, it will lay
arguments in favor of abandoning the test. It will then discuss how Justice Dhulia's opinion strikes a balance by limiting
the ERP test's application
while preserving its utility. The paper will conclude by proposing alternative approaches for consideration as a nine-judge bench scrutinizes the ERP test,
among other issues.
1 Aishat Shifa v State of Karnataka,(2022) SCC OnLine SC 1394
Emergence and evolution
The Supreme
Court's establishment of the Essential
Religious Practices (ERP) doctrine as a mechanism to confine religious
freedom to essential matters is well-documented. Nevertheless, a bare reading
of the Constitution reveals the
absence of the term "essential" within it. The right to profess,
practice, and propagate religion is
granted broadly under article 25. So, how did the concept of ERP come into existence? Insight can be gleaned from the
Constituent Assembly Debates, wherein a speech delivered by Ambedkar
provides clarification.2
Ambedkar's discourse indicated that the religious fabric in India is so
pervasive that it permeates every facet of life, posing
a potential obstacle
to social progress
if all religious aspects were safeguarded without
distinction. In order to enable social legislation, he advocated for a clear differentiation between
inherently religious activities and those that have superficial
religious overtones. In essence, the term "essential"
was utilized to segregate the religious from the secular, initially aligned
with the Supreme Court's interpretation of the ERP doctrine.
In its initial rulings on the validity of state intervention in religious
endowments3, the Court emphasized
that secular activities associated with religion
but not constituting an essential part of it could be subject to state
regulation. However, the Court underscored the need to respect a religion's
internal doctrines when determining
whether a matter was inherently religious or secular. For instance, if a sect's
tenets mandated specific ceremonies
with secular components, these were considered inherently religious, even if
they involved monetary transactions or the employment of religious officials.
This system elucidates the unique model of Indian secularism. While respecting the relative autonomy
of religious communities, the
state's authority to legislate on religious endowments remained unchallenged. However, subsequent judgments eroded this
understanding. Contrary to Ambedkar's premise, the term "essential" underwent a notable transformation, as
evident in the Supreme Court's ruling on cow
slaughter.
The Court ruled that the practice of sacrificing cows during Bakrid was
not an ERP, as it was deemed optional
based on an interpretation of Islamic religious texts. This signaled a shift
from analyzing the nature of a practice
to assessing its significance within
the religion. This shift necessitated the Court to delve
into substantive interpretations of religious doctrines, assuming the role of a
"theologian." This interpretation
of ERP was subsequently applied to numerous cases, serving as a tool for
initiating religious reforms
in line with overarching state laws.
An exemplary instance of this was seen in the Shayara Bano case4,
where the Court assessed the constitutionality
of triple talaq, determining it to be non-essential based on an analysis of
Islamic jurisprudence. This
re-interpretation of what constitutes an essential practice aimed at promoting gender-based reforms within the religion. Moreover, the Court extended
its authority to rationalize and
2 Constituent Assembly Debates,
2 December 1948,
vol 7 doc 65.
3 Shirur Mutt, In re., [1954]
SCR 1005.
4 Shayara Bano v. Union of India and Ors., Writ Petition
(C) No. 118 of 2016
purge religious practices
deemed superstitious or extraneous, as seen in the Durgah
Committee case5 and subsequent instances where practices were dismissed as "unessential" or "superstitious."
These reformative initiatives
led the Court to ban animal
sacrifice in temples, allow non-Brahmins
to serve as temple priests, and most
notably, overturn a religious prohibition on the entry of women in Sabarimala. Consequently, the Court
assumed the power to dismiss practices it deemed non-essential or superstitious, signaling a substantial expansion of its authority. The following sections
seeks to understand the transformation of the Supreme
court’s powers.
What
is erp, how is it being used
The ERP (Essential Religious
Practices) test, employed
by the Indian judiciary, serves as a measure to ascertain whether
a specific religious practice or custom
qualifies as an "essential or integral part" of a religion, warranting protection under
Article 25 of the Indian Constitution, which enshrines the fundamental freedom of religion.
Essentially, this means that even if a practice is religious in nature,
it may not receive constitutional protection if it fails to meet the criteria
of being an "essential or integral part" of the religion.
The ERP test has become ingrained in Indian jurisprudence over time,
evolving into a two-step process that the judiciary follows
in cases related
to religious freedom.
Initially, the Court examined whether
the alleged violation
of religious freedom
pertains to a religious or secular
practice or custom. If the practice is deemed to be secular, involving
financial or administrative aspects,
it falls outside the protection of Article 25. This was established in the
Shirur Mutt case6, where the
Supreme Court ruled that the state could regulate the administration of a
religious institution to address
financial mismanagement, as such matters were considered secular and thus
subject to state intervention.
Subsequently, if the practice under consideration was found to be
religious, the Court proceeded to determine
whether it constitutes an "essential or integral part" of the
religion. Notably, this stage of inquiry
involves the Court's interpretation of religious doctrines to establish the
essentiality of the practice. In the
Shirur Mutt case, Justice Mukherjea7 emphasized that the
determination of what constitutes an essential part of a religion must be derived
from the religion's own doctrines. This marked a crucial
juncture that enabled the courts to delve into religious matters and assume the
role of arbiters in religious affairs.
In contrast, the "assertion" test employed in the United
States, a plaintiff could simply assert the religious nature of a practice without further scrutiny, the Indian
courts employ the concept of "essentiality" to scrutinize religious practices, often by examining religious
texts or the historical context of a religion or religious organization. For instance, in the Indian Young
Lawyers Association v The State
of Kerala8 case, the Court delved into the legend of Lord Ayyappa and the history
of the Sabarimala temple, concluding that the restriction on women of menstruating age from entering
the temple did not constitute an essential
5 Dr. Noorjehan Safia Niaz &
Ors. v. State of Maharashtra & Ors., Writ Petition (L) No. 2732 of 2014
6 Shirur Mutt, In re., [1954] SCR 1005
7 Supra
8 Indian Young Lawyers
Association v. The State of Kerala, (2018)
11 SCC 1
religious
practice and therefore was not protected. Similarly, in the case of Shayara
Bano v Union of India, the Court determined, after examining the Hanafi school of Islamic
jurisprudence, that the practice of triple talaq was not an essential
religious practice and hence lacked constitutional protection. Justices Nariman and Joseph based their legal
opinions on religious texts,highlighting that while triple talaq may be permissible in law, it was considered sinful
by certain scholars, rendering it non-essential to the religion9.The ERP Test essentially entails the
judiciary interpreting the theological aspects of religious practices
to assess their essential nature
within the scope of constitutional protection.
Criticisms
The ERP (Essential Religious Practices) test has faced significant criticism
for its implications on the interpretation of religious customs
and practices by the courts.
One primary critique
revolves around the courts assuming
the authority to rationalize or sanitize religious
beliefs, essentially shaping religion to align with modernist state
ideals rather than acknowledging it as professed
by its adherents. This stance of the courts could lead to deeming certain
religious practices as non-essential
and thus not deserving of constitutional protection. Notably, this approach has
been challenged for its perceived
overreach and lack of legitimacy, as the judiciary's expertise in theological matters has been questioned, and concerns
have been raised about whether the Constitution grants the judiciary
the mandate for internal reinterpretation or reformulation of religious practices.10
The ERP test's tendency to prioritize mainstream religious texts over
local texts and customs has raised concerns about
potentially sidelining marginalized traditions within a religion, resulting in a portrayal of the religion
devoid of its internal diversity. Critics argue that the contextual
interpretation of religious conduct,
which takes into account the lived experiences of adherents within specific
contexts, is often overlooked by the
courts. Furthermore, the doctrine of separation of powers comes into play,
suggesting that the judiciary's
assumption of power in this domain encroaches upon the domain of the Parliament, which is constitutionally empowered to bring about social reforms.11
It is observed that the ERP test has led to increased state regulation
over Hinduism, with the judiciary treating
the Constitution as a charter for reforming Hinduism. This reformative approach
has been criticized for its tendency
to cleanse Hinduism of perceived superstitions and to define "religious
error" and "religious truth" in a modern and rational manner,
thereby delegitimizing popular
Hindu practices as mere
superstitions. The courts' validation of an extensive regulatory framework for
Hindu religious institutions has led
to the government taking over the management of various Hindu institutions and placing them under statutory boards in the
name of regulatory control, essentially "nationalizing" religious
endowments on a large scale.12
9 Shayara Bano v. Union
of India and Ors., Writ Petition (C) No. 118 of 2016.
10 Bhatia, Gautam (2016):
“Freedom from Community: Individual Rights, Group Life, State Authority and Religious Freedom
under the Indian Constitution,” Global Constitutionalism, Vol 5, No 3, pp 352–82.
11 Supra
12 Shirur Mutt, In re., [1954]
SCR 1005
Additionally, state regulation is evident in the temple entry laws made
under Article 25(b) of the Constitution,
allowing the state to open temples to all sections of Hindus. The courts have
favored such laws, even if they infringe on the rights
of religious denominations to manage their own religious affairs under Article
26(b). Moreover, the courts have rejected the self-identification of certain sects as
"non-Hindu" by interpreting them as part of the broader Hindu
scripture.13 This approach has been
criticized for its tendency to impose a specific vision of Hinduism,
considering it a rational and progressive religion,
and to impose this vision
on Hindu organizations and sects that may not align with this interpretation.14
Although initially cautious in applying a reformative approach to Islam
or Islamic organizations, the courts,
under the Chief Justice Gajendragadkar, have used the essentiality test to rule
against practices considered essential
to Islam. This trend has culminated in the courts
deeming practices such as "praying at a mosque," "keeping a beard," and "triple talaq" as non-essential to Islam.
Why
the erp test must be discarded Judicial
control of religion
The legal discussion surrounding the ERP (Essential Religious
Practices) has been presented as a rational
approach allowing the court to define the essence of a religion.
However, in practice, it has enabled a manipulated
"reform" of religion that aligns it with prevailing state norms,It
has established a standardized
criterion of regulation to align it with state norms. While it may seem that
such a discourse has yielded positive
results in specific instances, such as addressing issues of caste or gender discrimination, the court's involvement in
doctrinal matters and the imposition of its vision of what religions
should embody has undermined the diversity of religions.15
While India's unique secular traditions permit some degree of state involvement in religious affairs,
this must be balanced with the
autonomy of religions. Governing religions through the selective view of age-old
customs through a judicial lens, can exacerbate conflicts between different religious groups and internal rivalries
within religious communities.
Thus, in a context where
the religious and the secular
are intricately intertwined, it is crucial
to recognize the authority and impact of religions in both tangible
and theoretical terms.16
UNIVERSALIZATION OF
DOMINANT CULTURAL NORMS
ERP Doctrine
has universalized certain
dominant values of religions. This universalization has hindered the appreciation of unique cultural norms
within different religious communities. The court is incapable of appreciating the cultural values
within a religion. When it defines an essential religious practice, the cultural
sensibilities of the judges and the parties
may significantly differ.
The Sabrimala judgment
is a
13 Indian Young Lawyers
Association v. The State of Kerala, (2018)
11 SCC 1
14 Chakraborty, Nilanjana
(2016): “The Toxic Waters of Religion,” DNA, 15 December,
15 Supra
16 Chatterjee, Partha (1998): “Secularism and Tolerance,” Secularism and Its Critics,
New Delhi: Oxford University Press, pp 345–79
classic example,
where the dominant
cultural sensibilities prevailed over the practices of culturally specific
religious groups.17
Justice dhulia’s opinion
While
scholars criticize the ERP test, the Constitution's potential for reform is
recognized, prompting the question of whether a balance can be struck
to preserve religious freedom while upholding the ERP test's
reformative function.
The ERP test proves effective
in cases where the court protects individuals within a religious
community from their own community's rights violations, as seen in instances like triple talaq and Sabarimala.
However, when a state action is deemed
violative of an individual's or a community's religious freedom, the ERP test may not suffice. The
subjective nature of religious practices makes it challenging to determine
their essentiality, as observed in past cases where the court's interpretations have led to
non-essential practices being subject to state regulation. In light of this, Justice
Dhulia's perspective in
Aishat Shifa gains prominence for safeguarding religious
freedom against state
actions.
Justice Dhulia argues that when an individual's religious freedom is
restricted by the state, the ERP test should
not be applied. The Constitution allows the state to interfere with religious
practices only on specific grounds
such as public order, health, morality, or violation of fundamental rights,
regardless of the practice's essentiality. Justice Dhulia
advocates the "assertion" test,
whereby the court
must protect a religious
custom the moment an aggrieved party asserts its religious nature, placing the
burden on the state to justify any regulations conflicting with such customs.18
Citing the Bijoe Emmanuel case,19 Justice Dhulia emphasizes
that the state must provide valid justifications for any action
that curtails religious customs. Furthermore, he underscores the importance of "fraternity"
in accommodating pluralism within the constitutional framework. Although his
observations focus on individual rights, they can be extended
to protect the religious
rights of communities against state actions.
Justice Dhulia's viewpoint contrasts with previous
judgments where the ERP test was used not only for individual rights against the community
but also against state actions. Despite his legal limitations, his perspective may find support
as similar issues
await consideration by a larger
Supreme Court bench.
Notably, Justice Dhulia's approach does not diminish the reformative
power of the ERP test, which is often invoked
by individuals or groups seeking
to eliminate discriminatory or abusive religious practices within their community.20
17Indian Young Lawyers Association v. The State of Kerala,
(2018) 11 SCC 1
18 Aishat Shifa v State of Karnataka,(2022)
SCC OnLine SC 1394
19 Bijoe Emmanuel
& Ors v. State of Kerala &
Ors, 1986 AIR 946, 1986 SCR (2) 518
20 Aishat Shifa v State of Karnataka,(2022)
SCC OnLine SC 1394
Justice Dhulia's application of the ERP test modifies the existing
framework without undermining it, ensuring legal stability and aligning with legitimate judicial
lawmaking. Despite his position on a smaller
bench, his perspective may pave the way for the Supreme Court to
effectively protect religious freedom from unwarranted state regulation without
compromising its role in bringing
about necessary reforms.
Conclusion and way forward
Eliminating
the ERP test entirely or constraining it based on Justice Dhulia's rationale
both present distinct sets of
concerns. Considering the significant role of religion in Indian societies and
the reformative mission of the
Constitution, it appears improbable that the courts would completely abolish the ERP test. Nevertheless, given the
criticisms leveled against the ERP test, constraining its scope appears to be a more legally prudent
approach for the Court. This prompts the question of how the Court can restrict the application of the ERP
test. Justice Dhulia offers a balanced alternative. However, Justice Dhulia's balanced approach is not the sole
means to restrict the ERP test. For instance, Jaclyn Neo (2018) has suggested four "qualities"
that the ERP test must integrate to address its shortcomings. Although Neo's observations pertain to courts in
Singapore and Malaysia where the ERP test is utilized in cases involving
freedom of religion, there is no reason why the Indian
courts cannot benefit
from these insights. This paper aims not to propose an ideal formula for limiting the
ERP test while preserving its functionality,
but to provide a general overview of the options within the realm of Indian
jurisprudence available to the Court
to tackle the issues arising from the ERP test. Whether the Court should adopt Justice Dhulia's approach remains to be
seen, but one thing is clear: the Court must thoroughly reconsider the scope of the ERP test's application,
while remaining mindful of the potential ramifications of any approach
it might undertake.
Article Information
EXAMINING THE DOCTRINE OF THE ESSENTIAL RELIGIOUS PRACTICES TEST: A CASE FOR ITS LIMITATION.
Authors: CVP RISHIK
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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