How judicial intervention shapes the doctrine of Essential Religious Practices

Essential religious practices  

Having been born in the Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954) case, the ERP doctrine is seen as a judicial standard to determine which religious practices are protected under Article 25 and and Article 26 of the Constitution. 

Broadly, the ERP may be defined as core beliefs and practices upon which a religion is founded. Although the term “religious practice” appears in Article 25(2)(a), the prefix ‘essential’ is not there. The Constitution neither employs nor defines the word essential.  

In the Shirur Mutt (1954) case, the court held that a religious denomination or organisation, under Article 26(b), enjoys “complete autonomy” in deciding what constituted “essential” aspects of religion.

However, in Sri Venkataramana Devaru v. State of Mysore (1958), the court moved away from the “complete autonomy” aspect, and firmly established the role of the court in determining the “essential” practice of religion. 

Essential practices and character of religion

Subsequently, in the Durgah Committee, Ajmer v Syed Hussain Ali (1961), the Supreme Court attempted to distinguish between genuine religious practice and “superstitious beliefs”. It held that all practices characterised as “superstitious beliefs” and “extraneous accretions” would not be afforded constitutional protection. 

Furthermore, in the Sardar Syedna Taher Saiffuddin Saheb v State of Bombay (1962) case, the Supreme Court held that essential practices are to be determined through texts and tenets of the religion. It also clarified that Article 25 did not permit the legislature to “reform” a religion “out of existence” entirely.

Similarly, in the Commissioner of Police v Acharya Jagadisharananda Avadhuta (2004), the Supreme Court put forward a test for ERP by asking whether or not the absence of a particular practice would fundamentally alter the character of that religion. 

Applying this test in the landmark Shayara Bano case (2017), the apex court held that triple talaq would not form part of any essential religious practice as its absence would not change the fundamental nature of Islam.

Can court be a theological arbiter? 

The evolution of the ERP doctrine through such judicial interventions shows that only those rituals, observances, beliefs, and practices that are proved to be essential and integral to a religion are protected under Article 25 and 26. At the same time, Article 25(2) of the Constitution places no restraint upon the state intervening in matters of secular activity, social reform, and social welfare. 

However, the judiciary’s role as an arbiter in demarcating boundaries between essential practice and non-essential practice, secular and religious practice, and genuine faith and superstitions remain contentious. The concern regarding the judiciary’s capacity as theological arbiter is also being considered in the Sabarimala review case. 

During the hearing, Solicitor General Tushar Mehta said “a secular court can’t decide a religious practice as mere superstition because you don’t have scholarly competence.” He added that “something which may be religious for Nagaland may be completely superstitious for me…” 

The core question, therefore, is to what extent can courts intervene in matters of religion? Based on the language of Article 25(2), it is argued that determining whether a practice is religious or superstitious lies within the legislative domain. 

Moreover, once a practice is recognised as religious, state’s intervention is permissible only on the grounds of public order, morality, and health. Thus, Article 25(1) of the Constitution sets some limitations even on protected religious practices.  

Scope of morality under Article 25(1)

Article 25(1) of the Constitution provides that the freedom of conscience and right to freely profess, practice, and propagate religion is subject to public order, morality and health. This constitutional restraint upon religious freedom was designed by the makers of the constituent assembly to clearly demarcate between religious and non-religious activities. 

It was evident in the Constituent Assembly debates on Draft Article 19 (later Article 25) where K Santhanam observed on December 6, 1948: “Hitherto it was thought in this country that anything in the name of religion must have the right to unrestricted practice and propagation. But we are now in the new Constitution restricting the right only to that right which is consistent with public order, morality and health.” 

He added with optimism that the implication of these qualifications would grow with the social and moral conscience of people of India. 

In contrast to public order and health, the notion of morality is dynamic and therefore often susceptible to subjective interpretations. Some argue that the term morality in Article 25(1) has to be appositely understood as being synonymous with constitutional morality. 

However, it is conceptually misleading to equate public morality with constitutional morality. While “constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution”, public morality is seen as the governing standard in matters of faith.   

Boundaries of religious freedom 

Thus, despite criticism that the judiciary risks assuming the role of theological arbiter, judicial intervention has played a significant role in determining the genuineness of religious practices seeking constitutional protection. 

However, the subjectivity and fluidity of concepts such as morality, ERP, and religious denomination seem to require case-by-case interpretation. The makers of the Constitution anticipated that the meaning and interpretations of these concepts would grow with the social and moral conscience of people in India.

This allows constitutional interpretation to remain responsive to changing societal values while attempting to balance religious freedom with other constitutional commitments.

Post read questions

What are the constitutional limitations on religious freedom under Article 25(1)? Discuss their significance in a plural society.

Can “public morality” be equated with “constitutional morality”? Discuss in the context of religious freedom in India.

Briefly discuss the role of the judiciary in distinguishing between essential and non-essential religious practices with reference to the Sabarimala review case.

To what extent can the state intervene in religious practices under Article 25(2)? Discuss with suitable examples.

(Dileep P Chandran is an Assistant Professor at the Department of Political Science in P M Government College, Chalakudy, Kerala.) 

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