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Saturday, December 14, 2019

Sabarimala order: What is the ‘essentiality’ test in religious practice?

The doctrine of "essentiality" was invented by a seven-judge Bench of the Supreme Court in the 'Shirur Mutt' case in 1954. The court held that the term "religion" will cover all rituals and practices "integral" to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

By: Explained Desk | New Delhi | Updated: November 15, 2019 8:57:43 am
Explained: Supreme Court's Sabarimala order and the 'essentiality' test in religious practice The head priest opens the sanctum sanctorum of the Sabarimala temple in Kerala. (AP Photo: Manish Swarup)

The Supreme Court’s decision to refer the Sabarimala temple case to a larger 7-judge Bench reopens not only the debate on allowing women of menstruating age into the Ayyappa temple but the larger issue of whether any religion can bar women from entering places of worship.

The larger Bench reference will also re-evaluate the “essential religious practice test”, a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.

The court clubbed two cases — a decade old challenge by two Parsi women who married outside the community to enter the Tower of Silence and other religious places, and a plea seeking entry of Muslim women into mosques.

The majority opinion in the 2018 Sabarimala verdict had said that women have a fundamental right to equality in accessing public places which includes places of worship.

However, since the Sabarimala verdict will essentially be heard afresh, the constitutional debate on gender equality will open up once again.

The review gives the ‘devotees’ and the Sabarimala temple authorities who have battled the Supreme Court verdict a foot in the door to have the verdict potentially overturned.

What is the Supreme Court’s doctrine of essentiality?

The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.

Last year, a Supreme Court Bench by a 2-1 majority declined to refer for reconsideration by a larger Bench the five-judge Constitution Bench judgment in ‘Dr M Ismail Faruqui and Ors vs Union Of India and Ors’ (October 24, 1994), which upheld the law under which the Centre acquired the disputed land in Ayodhya on which the Babri Masjid had stood.

The Constitution Bench had ruled in 1994 that “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.”

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How has the doctrine been used in subsequent years?

The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.

Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.

As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

In an article written earlier for The Indian Express, the noted expert of the Constitution, Prof Faizan Mustafa, pointed out the following instances:

* In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”. After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.

* Writing the five-judge verdict in ‘The Durgah Committee, Ajmer and Anr vs Syed Hussain Ali and Ors’ (March 17, 1961), Justice P B Gajendragadkar added the ‘secular’ requirement of rationality to the essentiality test. Durgah Committee denied validity to “practices (which) though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself”.

* In ‘Gramsabha of Village Battis Shirala vs Union of India and Ors’ (2014), a particular sect relied on the Shrinath Lilamrut to claim before the Bombay High Court that capturing and worshipping a live cobra during the Nagpanchami festival was an essential part of their religion. The court, however, put reliance on Dr P V Kane’s Dharmashastracha Ithihas, which referred to the general Hindu practice, to reject this contention.

* In a case where a Muslim police officer challenged in Kerala High Court a regulation that did not permit him to grow a beard, the court, rather than looking at the question of essentiality of beard in Islam, rejected the petitioner’s plea by simply relying on the fact that certain Muslim dignitaries do not sport beards, and that the petitioner did not have a beard in his previous years of service. The court looked at empirical evidence of the practice, rather than at religious texts. However, despite empirical evidence to the contrary, courts have denied protection to the animal sacrifice among Hindus, terming the practice as barbaric.

* In the First Ananda Margi case, the apex court relied on the doctrine of precedent to hold that tandava dance was not an essential practice of the Ananda Margi faith. It also said that the faith had come into existence in 1955, while the tandava dance was adopted only in 1966 — therefore, as the faith had existed without the practice, the practice could not be accepted as an essential feature of the faith.

Prof Mustafa pointed out that the idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic in so far as it assumes that one element or practice of religion is independent of other elements or practices.

So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

How does essentiality square up against religious freedom?

Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.

The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”. The framers of the Constitution wanted to give this autonomy to each individual.

Scholars such as Prof Mustafa have argued that the essentiality test impinges on this autonomy. The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

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