The ‘Essentiality’ of the Essential Religious Practice

Test: A Constitutional Paradox?

In my previous article on this blog, I discussed the conflict between the concept
of Right to Religion as well as Right to Equality as enshrined under the
Constitution of India (here). In this article, I will be discussing the ‘Doctrine of
Essential Religious Practices’ and its evolution through the various judgements
of the Supreme Court of India in the last decade. I will also be discussing the
relevance and applicability of the doctrine with respect to Article 13 and Article
17 of the Constitution of India.

UNDERSTANDING THE ESSENTIAL RELIGIOUS PRACTICE TEST

The Essential religious practice test is a contentious doctrine that has been
evolved by the Apex court of our country to protect and preserve only such
religious practices which were essential and integral to the founding beliefs of
any religion. However, it is pertinent to point out that the concept of Essential
Religious Practice Test (“ERP Test”) is not expressly mentioned in the
Constitution of India, but has been developed as a result of
judicial activism which was necessitated by the changing perceptions and
beliefs of the citizens. Irrespective of having a well-defined provision on
freedom of religion under Article 25 of the Constitution of India which is only
subject to the exceptions of public order, health and morality, the judicial
development of the ERP adds a certain amount of subjectivity and ambiguity to
the interpretation of freedom of religion.
Whether a practice is essential to a religion or not must be said about that
religion and not what the Court opines. This is because in a question with
relation to religious practices, it may not be open to the court to resolve the
dispute by blindly applying some religious formula. Even though in certain
cases the Court might be the final authority formalising the said practice as
essential, it has to place a deep enquiry into the very tenets of the religion and
must ensure that the Constitutional Fabric that exists in the country protecting
religions is maintained. In the words of the renowned legal scholar Dr. Ronojoy
Sen,
“The role of the Court in determining what constitutes a religion and essential
religious practice has remained undiminished since the formative years of this
doctrine. Subsequent rulings have built on case law but hardly ever reconsidered
the doctrine of essential practices.”
The doctrine of “essentiality” was primarily invented by a seven-judge Bench
of the Supreme Court of India, in the case of Hindu Religious Endowments
Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt (‘Shirur
Mutt’) in 1954 to clarify the Court’s position in this aspect. The Court, in this
case, held that the term “religion” must cover all rituals and practices that are
“integral” to any religion, and the court went a step further and took upon itself
the responsibility of determining the essential and non-essential practices of the
religion as well as its ambit.  The same year, Justice Mukherjee in the case
of Ratilal Panachand v. State of Bombay, firmly held that the religious groups
that have been given protection under Article 26(b) have autonomy in matters of
religion and that no secular authority, even the Apex Court does not possess the
right to declare a practice as a non-essential part of religion. Interestingly
enough, in 1953 i.e. prior to the Shirur Mutt case and the Ratilal case, the
Supreme Court in Saraswathi Ammal and Another v. Rajgopal Ammal made a
starkly anachronistic comment in this respect,
“To the extent that any purpose is claimed to be a valid one for perpetual
dedication on the ground of religious merit though lacking in public benefit, it
must be shown to have a Shastraic basis so far as Hindus are concerned. The
heads of religious purposes determined by a belief in the acquisition of religious
merit cannot be allowed to be widely enlarged consistently with public policy
and needs of modern society.”
This debate was once again revived after nearly 4 decades, in the public
discourse when the Rajasthan High Court, in a widely criticized and desisted
judgment, pronounced a religious practice of the Jain community as illegal and
immoral, as the Bench strongly believed that the practice amounted to an act of
self-destruction by the followers of the religion. The case, Nikhil Soni vs.
Union of India , examined the Jain practice of Santhara or Sallekhana which
involves a fast until death, traditionally undertaken at a time when the body of
the said individual is unable to serve the purpose of life and is unable to cope
with the responsibilities that come with being alive, in order to attain Moksha or
salvation.

SABARIMALA JUDGMENT AND ERP TEST

After the Judgement in Nikhil Soni by Rajasthan High Court, the Supreme Court
intended to settle the debate once and for all in the case of Indian Young
Lawyers Association v. the State of Kerala, popularly known as the Sabrimala
Judgement, but only confused the citizens further. The ERP Test, in this case,
however, has been consistently applied by the Supreme Court in a very
inconsistent and spurn manner. The phrase “essential religious practice” rather
than being construed objectively,  was determined at the whims and fancies of
the Bench.
However, in this respect, it is pertinent to note that as per Article 13(3) of the
Constitution of India, the term “law” includes “customs and usages having the
force of law”. Justice Chandrachud, while refuting judgement of Narasu Appa
Mali in the Sabrimala judgment, firmly stated that the definition of “law”
under Article 13(3) is an inclusive definition in its true sense and it would be
insensitive to put a rigid and restrictive interpretation upon terms of wider
denotation. The definition of the term “custom” according to Hindu Law has
been “Any rule which, having been continuously and uniformly observed for a
long time, has obtained the force of law…in any local area, tribe, community,
group or family, if it is certain and not unreasonable or opposed to public
policy.” Since a religious practice is essentially one that has to be held in faith,
any restriction placed on religious practice, is primarily not absolute in nature
and is done so to protect the character and nature of the religion therein, due to
continuous practice since times immemorial and thus, the same has gained the
qualities of custom and falls under the Exception given under Article 13.

 It has been noted by this very Court in the case of Durgah Committee, Ajmer v.
Sayed Hussain Ali, that,

“To strike a note of caution, in order that the practice in question should be
treated as part of religion, capable of being protected under Art. 26, it 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
apt to be clothed with a religious form and may make a claim for being treated
as religious practices within the meaning of Art. 26. Similarly, even practises
though religious may have sprung from merely superstitious belief and may in
that sense be extraneous and unessential accretions to religion itself. Unless
such practices are found to constitute an essential and integral part of a religion
their claim for protection under Art. 26 may have to be carefully scrutinised; in
other words, the protection must be confined to such religious practices as are
an essential and an integral part of it and no other.”

On the other hand, Article 17 of the Constitution of India, states that

“‘Untouchability‘ is abolished and its practice is forbidden. The enforcement of
any disability arising out of ‘Untouchability’ shall be an offence punishable in
accordance with law.”  In the book Competing Equalities- Law of backward
classes in India , the learned author states that,

“The courts have indicated that Untouchability does not include all instances in
which a person is treated unclean and is a source of pollution. It does not
include such temporary and explicable states of pollution suffered by e.g.
women on child birth, menstruating women, moaners, persons with contagious
diseases, person who eat forbidden food or violate prescribed cleanliness…Nor
does it refer to situational or relative purity such as that between ordinary
worshipper or priest or temple attendant…Thus, untouchability is confined to
disabilities imposed upon groups commonly regarded as “untouchables” and its
meaning is to be determined by reference to those who have seen no easier
definition for untouchables than to define untouchability.”

However, in the case of Sri Venkataramana Devaru v. State of Mysore, the

Hon’ble court held that a fundamental difference between excluding persons
from temples open for purposes of worship of the Hindu public in general on
the ground that they belong to excluded communities and excluding persons
from denominational temples on the ground that they are not objects within the
benefit of the foundation of the temple. Thus, the former shall be hit by Article
17 and the latter shall be protected by Article 26, which can be construed to
mean that an Essential Religious Practice cannot be brought under the ambit of
the Article 17 of the Constitution of India, unless it’s a glaring violation of the
same. The Hon’ble Supreme Court of India through the course of its judgements
over the past decade seems to have intertwined multiple constitutional values
and concepts to accommodate the facts of each case.
However, this has led to confusion and a lack of uniformity in the application of
the Essential Religious Practices Doctrine. While it was widely contested
whether the court had the mandate to interpret religious practices, the Supreme
Court of India has held that  irrespective of a religious practice being essential
or not, the constitutional values will and should prevail over essential and
certain aspects of religion and the constitutional scheme should remain intact.