The ‘Essentiality’ of the Essential Religious Practice Test: A Constitutional Paradox?

[This is a post by Panya Mathur, Contributing Editor]

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. 

Gender Equality or Religious Beliefs: Conflicting Rights?

[This is a post by Panya Mathur, Contributing Member]

“Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful.” -Lucius Annaeus Seneca

Through this article, I intend to introduce the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India. I will be discussing the scope of these rights in detail and will be commenting briefly on the case of Indian Young Lawyers Association v. State of Kerala, popularly known as the Sabrimala Judgement, which is a landmark judgement that shines some light on the conflict between these fundamental rights.

Right to religious freedom

Articles 25 to 28 of the Constitution of India provide the right to freedom of religion. The right to practice any religion freely is provided under Article 25 of the Constitution of India.

Under Article 25, two distinct terms namely religion and conscience have been conceptualized. While the bare constitution makes no mention of these aforementioned terms, the jurisprudence of the courts has laid down comprehensively the meaning and boundaries of the term ‘religion’. In one of its earliest cases, Comm., Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court has laid down extensively the meaning and ambit of ‘religion’,

“…religion is certainly a matter of faith with individuals or communities and not necessarily theistic… a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well- being, but it would not be correct to say that religion is nothing else but a doctrine of belief…it may prescribe rituals and observances, and modes of worship…might even extend to matters of food and dress.”

On the other hand, Article 26 of the Constitution of India guarantees to every independent religious denomination the right to manage its affairs and maintain institutions for religious purposes and to manage and maintain the same. The interpretation of the term ‘religion’ for the purposes of Article 26 of the Constitution is a set of practices that have its belief in a basic set of doctrines and beliefs that the followers of such religion base their very spiritual well-being depend upon. The case of S.P. Mittal v. Union of India laid down a three-part test to determine whether a said group of religious worshippers can be construed to be a religious denomination for the purposes of Article 26 of the Constitution of India:

1.  Must be a collection of individuals who have a set of beliefs or doctrines which they regard as conducive to their spiritual well-being;

2.  A common organisation;

3. A distinctive name;

These two articles form the very basis of the fundamental right to practice a religion of choice to every citizen of the country. However, the rights enshrined under Article 25 are subject to public order, morality and health. Morality, in itself a very ambiguous and broad term, which gives rise to a plethora of interpretations across the population. Even the courts have failed to clarify the scope of the term ‘morality’ through its judgements and have resorted to an approach that differs from case to case.

Right to Equality

Article 14 of the Constitution of India mandates that the State shall not deny to any person equality before the law or equal protection of laws. It reads as:  “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The permissible classification must satisfy the twin sets, namely:

(i) the classification must be founded on an intelligible differential which distinguishes persons or things grouped together from others left out of the class, and;

(ii) such differentia must have a rational relation with the object sought to be achieved by the legislation.  

In the case of Budhan v. State of Bihar, the Hon’ble Court stated that the validity of the Act depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the objects coming under the purview of the enactment. The court further stated that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It has been a well-settled principle by the Supreme Court in the case of FN Balsara v. State of Bombay that in every form of classification, there would exist some form of inequality, and the mere existence of such inequality is not enough to violate Article 14 of the Constitution.

It can be very well conferred from the various judgements pronounced by the Supreme Court that if a particular belief is deeply rooted in the various practices of the worshippers of a particular religion, then there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the religious practice valid, and not arbitrary.

However, it is pertinent to note that Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. (Constitutional Morality viz-a-viz will be discussed later on this blog)

Sabarimala Judgment

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

Concluding Remarks

The philosophy of testing religious practices under the ambit of only Article 14, and the principles of rationality that it engages in, is in primary derogation of the Constitution in itself. By only applying the twin test laid down in Article 14 of the Constitution i.e. the fact that there should be a reasonable nexus between the object of the law and the very concept of intelligible differentia, the fundamental right protected under Article 25 of the Constitution of India is left untouched and undiscussed.  Furthermore, as discussed in the case of Bijoe Emanuel & Ors. v. State of Kerala & Ors, this Hon’ble Court laid down that the personal view of judges are irrelevant in ascertaining whether a particular religion or a belief followed therein should be protected under Article 25(1) of the Constitution of India. Unlike the Article 25 of the Constitution of India, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution of India. And as a result, the Fundamental Rights of the religious denominations are not subject to either Articles 14 or 15 of the Constitution. And thus, the principles of equality and non-discrimination as enunciated by Articles 14 and 15 are grossly inadequate in limiting the freedom to manage religious affairs under Article 26. The characterization of age may form a reasonable basis for the object of specific legislation. On satisfying both the parts of the twin test aforementioned, the statute must be held to be valid legislation. As already proved that the decision of the temple board is deeply based in the beliefs of the worshippers of the temple therein, there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the classification valid, and not arbitrary.

(Note: In my next article, I will be focussing more on the aspect of essential religious practices as defined under Article 25 and its scope with special reference to Article 13 and 17 of the Constitution of India, in the light of the principles established by the Supreme Court in the Sabrimala Judgement. Access the Article here.)