Doctrine of essential practice with the help

of judicial pronouncement

Assignment submitted in fulfilment of the requirement of

submitting one assignment for the assessment of core course:
“Constitution Law-I” in the first semester of the degree of 3-year
LLB, Indian Institute of Legal Studies, Darjeeling

Submitted by

Name: Avirup Roy

Roll no.: 117
Semester: 1st
Course name: Constitution Law-I
Under supervision of: Asst. Prof. Rituraj Bhowal
 Acknowledgement

At first I would like to thank my guide Asst. Prof. Rituraj Bhowal for helping me
implement the information with the necessary guidance in my assignment titled “Doctrine of
essential practice with the help of judicial pronouncement”. My guide has used his
experience that he has gathered from his teaching career to help me write this assignment. I
would like to thank further the principal of my college Prof. (Dr.) Pradeepta Kishore Sahoo
and other teaching and non-teaching staff who have lent me their valuable time and assistance
and inspired me to complete my assignment. Without their valuable inputs and help I would
not have been able to complete this task within the given time.
 Table of contents
1. Introduction…………………………………………………………………………Page 1-2
2. Conceptual context…………………………………………………………………Page 3-4
3. Analysis………………………………………………………………………….....Page 5-6
4. Conclusion and suggestion…………………………………………………….……Page 7-8
5. Bibliography…………………………………………………………………………..Page 9
 Introduction

The Indian Constitution, a tapestry woven with the threads of fundamental rights, guarantees
the freedom of religion under Article 25. This seemingly straightforward proposition
becomes entangled in the complex realities of a diverse nation, where myriad religious faiths
co-exist, each with its own unique traditions and practices. This complexity is where the
Doctrine of Essential Practices emerges, a judicial tightrope walk aimed at balancing
religious autonomy with public morality and constitutional principles.

The Doctrine's roots lie in the colonial era, where courts applied the principle of "justice,
equity and good conscience" to adjudicate inter-religious disputes. This evolved into the
notion of "essential practices," a practice being deemed crucial to the core of a religion,
deserving greater protection. Post-independence, the Supreme Court embraced this doctrine,
finding its first articulation in the 1954 case of Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindhira Swamyar. Here, the Court differentiated between essential and
non-essential practices, acknowledging the state's authority to regulate the latter.

But what constitutes an "essential practice"? The Court has grappled with this question,
offering some guiding principles. In Commissioner, HRE v. Swamiar, it held that the
definition depends on the "doctrines of that religion itself." Subsequent cases like Mohd.
Habib Hassan v. State of Bombay emphasized the centrality of the practice to the religion's
"core beliefs and tenets." However, the lack of a definitive test leaves the determination open
to judicial interpretation, creating potential for subjectivity and inconsistency.

The application of the Doctrine has yielded landmark pronouncements. In Sabarimala Shrine
Devaswom v. Trupti Desai, the Court upheld the exclusion of women of menstruating age
from the Sabarimala Temple, deeming it an essential practice based on its historical and
textual context. Yet, in Shayara Bano v. Union of India, the practice of triple talaq was
deemed unessential and unconstitutional, despite arguments of its religious sanction. These
contrasting decisions highlight the nuanced application of the Doctrine, driven by context-
specific analysis of religious texts, historical practices, and the potential clash with
fundamental rights and public order.
The Doctrine faces its share of critiques. Critics argue that it empowers the courts to delve
into the internal complexities of religion, potentially misinterpreting or privileging certain
interpretations. Further, concerns abound about the lack of transparency and procedural
safeguards in determining essentiality, leaving the process vulnerable to bias and
manipulation. Additionally, the Doctrine's potential to marginalize minority religious
practices within dominant narratives raises concerns about its equitable application in a
diverse society.

Moving forward, engaging in open dialogue with religious communities, scholars, and legal
experts is crucial. Employing diverse perspectives in the determination of essentiality can
minimize bias and ensure inclusivity. Furthermore, prioritizing the voice of the affected
religious communities can bring greater legitimacy and acceptance to the process. Perhaps,
developing objective criteria for assessing essentiality, grounded in principles of non-
discrimination and human rights, could offer a more stable framework for adjudication.

The Doctrine of Essential Practices remains a work in progress, a constant negotiation

between the sanctity of religious freedom and the fundamental rights of all citizens.
Navigating this complex terrain requires careful consideration, sensitivity to diverse religious
nuances, and a commitment to objective, transparent procedures. Only then can this Doctrine
truly fulfill its purpose: safeguarding the essence of faith while upholding the core values of a
pluralistic, democratic India.

This essay aims to scratch the surface of this intricate legal and societal issue. The Doctrine
of Essential Practices continues to evolve, presenting challenges and opportunities as India
strives to balance religious freedom with other fundamental rights. In conclusion, the road
ahead demands a delicate balance: one that respects the diverse tapestry of faith while
ensuring equality and justice for all.
 Conceptual context
The interplay between religious freedom and societal well-being poses a complex quandary
for legal systems. At the heart of this conundrum lies the Doctrine of Essential Practice, a
judicial construct balancing fundamental rights with potential harms within the realm of
religion. This essay delves into the conceptual context of this doctrine, drawing upon key
judicial pronouncements to illuminate its evolution and application.

Emergence and Rationale:

The Doctrine of Essential Practice emerged in India, where Article 25 of the Constitution
guarantees freedom of religion, subject to "public order, morality and health." This caveat
necessitated defining which religious practices fell under the ambit of this protection. Thus,
the courts began distinguishing between essential and non-essential practices, granting
constitutional protection only to the former.
The rationale behind this differentiation rests on the premise that the state holds a legitimate
interest in safeguarding public order, morality, and health. Practices deemed detrimental to
these interests, even if religiously motivated, could be restricted or regulated. However,
essential practices, considered the core tenets of a faith, would warrant absolute protection to
uphold religious freedom.

Defining the "Essential": A Herculean Task:

Determining what constitutes an essential practice presents a critical challenge. The courts
have grappled with establishing objective criteria, avoiding undue interference in religious
matters. In Commissioner of Police v Acharya Jagadisharananda Avadhuta (1985), the
Supreme Court formulated a test – if the absence of a practice fundamentally alters the
religion, it is deemed essential. This test, while aiming for objectivity, has been criticized for
its inherent subjectivity and potential for judicial overreach in interpreting religious doctrines.

Landmark Pronouncements and Shifting Sands:

Landmark cases have shaped the application of the Doctrine. In Shayara Bano v Union of
India (2017), the Supreme Court declared the practice of triple talaq unconstitutional,
deeming it not essential to Islam due to its detrimental impact on gender equality.
Conversely, in Sabarimala Shrinetrust v State of Kerala (2018), the Court upheld the
exclusion of women of menstruating age from the Sabarimala temple, reasoning that it
formed an essential part of the temple's religious practice.
These divergent rulings highlight the evolving nature of the Doctrine and the ongoing debate
surrounding its application. Critics argue that judicial intervention risks undermining
religious autonomy and can be arbitrary. Others defend the Doctrine's role in curbing harmful
practices and upholding fundamental rights.

Moving Forward: Concerns and Considerations:

Several concerns accompany the Doctrine's application. Firstly, the subjective nature of
"essential" leaves room for judicial bias and misinterpretations, potentially infringing upon
religious minorities. Secondly, the doctrine can be weaponized by dominant religious groups
to suppress practices of marginalized communities. Finally, the focus on essentiality might
overshadow broader notions of religious freedom, limiting the scope of protected practices.
Addressing these concerns necessitates a cautious approach. Courts should prioritize robust
dialogue with religious communities to understand the context and significance of practices.
Emphasis should shift towards protecting the "core" of a religion rather than rigidly
dissecting practices into essential and non-essential categories. Additionally, incorporating
the principles of proportionality and non-discrimination in applying the Doctrine can ensure a
more balanced approach.

Conclusion
The Doctrine of Essential Practice remains a work in progress, navigating the delicate lines
between religious freedom and public good. While ensuring societal well-being is crucial,
respecting the autonomy and diversity of religious practices is equally important. As legal
systems grapple with this intricate balance, fostering open dialogue, upholding due process,
and prioritizing the core values of both religious freedom and societal well-being will be key
to navigating the complex terrain of the Doctrine of Essential Practice.
 Analysis

The Doctrine of Essential Practice occupies a precarious space in legal systems, attempting to
reconcile the fundamental right to religious freedom with the state's legitimate interest in
safeguarding public order, morality, and health. This essay delves into the analytical
complexities of this doctrine, scrutinizing key judicial pronouncements to illuminate its
application, limitations, and ongoing controversies.

Origins and Rationale

Born in the Indian legal landscape, the Doctrine emerged as a judicial tool to navigate the
ambiguity within Article 25 of the Indian Constitution, which guarantees religious freedom
while simultaneously empowering the state to restrict practices contravening "public order,
morality and health." By distinguishing between essential and non-essential practices, courts
sought to delineate protected religious expression from actions detrimental to fundamental
public interests.

This differentiation rests on a crucial premise: certain practices, deemed core to a faith,
require absolute protection to uphold religious freedom. However, practices deemed non-
essential, although religiously motivated, can be regulated or even prohibited if they
demonstrably harm public welfare.

Defining the Essentiality: A Labyrinthine Quest

Determining what constitutes an essential practice presents a formidable challenge. The very
notion of essentiality, laden with subjectivity and religious diversity, necessitates a cautious
approach. Early attempts, such as the "fundamental tenets" test in Commissioner, Hindu
Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar (1951), proved
inadequate for their ambiguity and potential for misjudging diverse religious traditions.

The Supreme Court later refined the test in Commissioner of Police v Acharya
Jagadisharananda Avadhuta (1985), proposing that a practice is essential if its absence
"fundamentally alters the religion." While seemingly objective, this test remains susceptible
to criticism. Can the absence of any practice truly "alter" a complex religion? Does such
analysis empower judges to essentially define the core tenets of diverse faiths? These
concerns highlight the inherent tensions between judicial objectivity and religious autonomy
within the Doctrine's application.

Landmark Pronouncements: Shifting Sands and Unresolved Contradictions

Landmark cases like Shayara Bano v Union of India (2017) and Sabarimala Shrinetrust v
State of Kerala (2018) showcase the Doctrine's evolution and its inherent contradictions. In
Shayara Bano, the Court, invoking the Doctrine, deemed the practice of triple talaq
unconstitutional, arguing that it was not essential to Islam and demonstrably harmed gender
equality. Conversely, in Sabarimala, the Court upheld the exclusion of women of
menstruating age, reasoning that it constituted an essential part of the temple's religious
practice.

These contrasting rulings reveal the Doctrine's potential for inconsistency and subjectivity.
While both judgments invoke public welfare concerns, the application in each case deviates
significantly. While one protects a fundamental right (gender equality), the other reinforces a
seemingly discriminatory practice based on the essentiality rationale. This raises critical
questions about whether the Doctrine adequately balances societal interests with religious
autonomy, particularly for marginalized communities.

Moving Forward: Refining the Balance, Embracing Plurality

Several concerns necessitate a closer examination of the Doctrine's application. Firstly, the
inherent subjectivity of "essentiality" leaves room for judicial bias and can potentially
suppress the religious practices of minority communities. Secondly, the rigid categorization
of practices can overshadow the broad spectrum of religious expression, potentially
restricting protected religious conduct. Finally, the Doctrine's focus on state intervention,
while crucial in certain instances, might overshadow the vital role of fostering interfaith
dialogue and promoting tolerance towards diverse religious practices.

Moving forward, legal systems must prioritize a more nuanced approach. Robust dialogue
with religious communities, particularly marginalized groups, can enhance understanding of
the context and significance of various practices. Additionally, incorporating principles of
proportionality and non-discrimination into the application of the Doctrine can ensure fairer
and more balanced outcomes. Finally, recognizing the limitations of judicial intervention and
prioritizing interfaith understanding can create a more inclusive legal landscape that respects
religious diversity while safeguarding fundamental public interests.

Conclusion and suggestion

The delicate interplay between religious freedom and societal well-being necessitates a
nuanced legal approach. In India, the Doctrine of Essential Practice has emerged as a
framework for navigating this complex terrain. This doctrine seeks to reconcile the
fundamental right to religious expression with the state's legitimate interest in safeguarding
public order, morality, and health. However, its application presents significant challenges,
demanding careful consideration and ongoing dialogue.

At the heart of the Doctrine lies the distinction between essential and non-essential religious
practices. Essential practices, considered the core tenets of a faith, warrant absolute
protection under the Constitution. Non-essential practices, on the other hand, can be restricted
or even prohibited if they demonstrably harm public welfare. But defining what constitutes an
essential practice is far from straightforward.

The courts have grappled with this challenge, developing various tests to determine
essentiality. One such test, articulated in the landmark case of Commissioner of Police v
Acharya Jagadisharananda Avadhuta (1985), posits that a practice is essential if its absence
fundamentally alters the religion. While seemingly objective, this test has been criticized for
its inherent subjectivity and potential for judicial overreach. Can the absence of any practice
truly "alter" a complex and diverse faith tradition? Does such analysis empower judges to
essentially define the core tenets of various religions? These concerns highlight the ongoing
tension between judicial objectivity and religious autonomy within the application of the
Doctrine.

Landmark cases like Shayara Bano v Union of India (2017) and Sabarimala Shrinetrust v
State of Kerala (2018) illustrate both the potential and the limitations of the Doctrine. In
Shayara Bano, the Court invoked the Doctrine to strike down the practice of triple talaq,
arguing that it was not essential to Islam and demonstrably harmed gender equality.
Conversely, in Sabarimala, the Court upheld the exclusion of women of menstruating age
from the Sabarimala temple, reasoning that it formed an essential part of the temple's
religious practice.

These contrasting rulings expose the potential for inconsistency and subjectivity within the
Doctrine's application. While both judgments invoke public welfare concerns, the outcomes
diverge significantly. One protects a fundamental right (gender equality), while the other
seemingly reinforces a discriminatory practice based on the essentiality rationale. This raises
critical questions about whether the Doctrine adequately balances societal interests with
religious autonomy, particularly for marginalized communities.

Several concerns call for a closer examination of the Doctrine's application. Firstly, the
inherent subjectivity of "essentiality" leaves room for judicial bias and can potentially
suppress the religious practices of minority communities. Secondly, the rigid categorization
of practices can overshadow the broad spectrum of religious expression, potentially
restricting protected religious conduct. Finally, the Doctrine's focus on state intervention,
while crucial in certain instances, might overshadow the vital role of fostering interfaith
dialogue and promoting tolerance towards diverse religious practices.

Moving forward, legal systems must prioritize a more nuanced approach. Robust dialogue
with religious communities, particularly marginalized groups, can enhance understanding of
the context and significance of various practices. Additionally, incorporating principles of
proportionality and non-discrimination into the application of the Doctrine can ensure fairer
and more balanced outcomes. Finally, recognizing the limitations of judicial intervention and
prioritizing interfaith understanding can create a more inclusive legal landscape that respects
religious diversity while safeguarding fundamental public interests.

The Doctrine of Essential Practice remains an evolving concept, constantly grappling with
the intricate dynamics between religious freedom and societal well-being. While its
application has yielded both positive and concerning outcomes, a critical analysis reveals the
need for a more refined approach. By embracing judicial humility, prioritizing dialogue, and
upholding the principles of equality and non-discrimination, legal systems can strive towards
a more balanced and inclusive application of this complex doctrine, ensuring that the sacred
sphere of religious freedom coexists harmoniously with the secular imperatives of public
good.

Bibliography
1. Commissioner of Police v Acharya Jagadisharananda Avadhuta 1984 AIR 512