What Constitutes an Essential Religious Practice?

Introduction

Since its freedom in 1948, India is known as a Secular Country. The concept of Secularism is covered under the preamble of Indian Constitution which secures all its citizens right to ‘liberty to thought, belief, faith, and worship “. The word secular was first brought in through the 42^ndAmendment of the Indian Constitution. So, the Indian Constitution gives freedom to all religions by preamble or by its basic structure. In India, all people have the right to practice their prescribed religious duties, rites and rituals, and to exhibit their religious beliefs and ideas by such acts as prescribed by the religious order in which they believe. However a question arises in our mind that, are all the religious practices which are prescribed in their religion, or by their belief or rituals, are valid or to be performed in public?

First of all, Let’s understand the word ‘essential religious practice’. The ‘essential religious practice’ test means that any religious practices that are so essential to religion will fall under the protection of Articles 25 and 26 and should be protected as such. Any other activities related to it with the exceptions to those already mentioned in the Constitution will be covered in the exceptions to the right to religion. Essential religious practice is those which are fundamental to the profession and propagation of the religion if taking away of a practice can be called as ‘an essential religious practice’.

In this time, when we see so many conflicts between the Dharma Samiti or the courtroom. This conflicts gave rise to different answers pertaining to essential practice of religion given by courts through various judgments and rulings. Are these answers correct which is based on the decision of a court which is a neutral or secular body? For example, recently we have seen many cases like triple talaq, sabarimala case and many more such cases which have occurred in the last several years but the point is that who has the power to constitute the necessary religious practices?  And what constitutes an essential religious practice?

Article 25: Essential or Restriction  

In our Indian Constitution, Article 25 gives two-fold freedom to a person that is the freedomto conscience, and freedom to profess, practice and propagate religion. Where we see the word practice means a person has the right or freedom to practice their religious duties, rites and rituals. And propagate means to spread and publicize his/her religious views for the edification of others. The protection of Article 25 is thus not limited to matters of doctrine of belief; it extends also to the act done in pursuance of the religion and, therefore, contains a guarantee for rituals and observances, ceremonies and modes of worship which are an integral part of religion. What constitutes an essential part of religious practice has to be decided by the court with reference to a doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.[1]

There are some restrictions or essentialities on the freedom of religion in the Indian Constitution:

Religious liberty subject to public order, morality and health

As per the Indian Constitution, no act can be done against the public order, morality and health of the public. There are health consists of physical or mental health. For example, in the name of essential of religion, act like untouchability, dewdasi, sati pratha cannot be tolerated. So the freedom to practice religion cannot affect the exercise of other fundamental rights or freedom of the Indian Constitution. In the matter of Tandava dance in procession by Ananda Margis, the Supreme Court held that Tandava dance in procession or at public places by Anand Margis carrying lethal weapons and human skulls was not an essential religious rite of the followers of Anand Marga and hence the order under Section 144, Cr.P.C. Prohibiting such precession in the interest of ‘public’ order and ‘morality’ was not violative of the right of  petitioner under Article 25 of the Indian Constitution.[2]

Regulation of economic, financial, political and secular activities associated with religious practices

The freedom to practice extends only to those activities which are the essence of religion. It does not cover secular activities that do not form the essence of religion. It is tough to say that which activities fall under the religious practice or which are of secular, commercial or political nature associated with religious practice.

In the Forbidding slaughter of cow case, the petitioner claimed that the sacrifice of a cow on the occasion of Bakrid was an essential part of his religion and therefore the State law forbidding the slaughter of cows was violatedhis right to practice religion. The Hon’ble court rejected this argument and held that the sacrifice of a cow on the Bakrid day was not an essential part of Mohammedan religion and hence could be prohibited by the state under Article 25.[3]

Social welfare and social reforms

Under Article 25, the state has the power to make laws for social welfare and social reforms. In prohibition of bigamy, an Act which prohibited bigamy was held valid under Article 25, Polygamy is not an essential part of the Hindu religion, and therefore it can be regulated by law.[4]

Now we know that the Court has the power to constitute or distinct the essential or non-essential religion practice. But the question is when the court has the power to decide it?

Essential Religious Practice Test (ERP Test)

The Supreme Court has developed the ‘Essential Religious Practices’ test to identify those religious practices which it deems as essential to the religion and candidates for constitutional protection. This is also in the eye of the current scenario where the court is deciding several ERP test cases. So if we say what is essentially religious practice? Then we can say it depends on the background, history and tenets of the religion

The doctrine has developed in three judgments of the Supreme Court:

• The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt[5] :- The test of Essential Religious Practices was firstly introduced by the Supreme Court in 1954 in this case. A 7 Judge Bench of the Supreme 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.
• Sri Venkataramana Devaru v. State of Mysore[6] :- The Court set a precedent, reflecting a change in judicial approach, in which the role of the court in determining whether a practice is necessary.  Thus, a test to determine which practice is essentially religious’ (different from secular) became conflated with ‘essential to religion’.
• Dargah Committee, Ajmer v. Syed Hussain Ali[7] :- In this matter, the Act, it was argued, took away the fundamental rights of Muslims belonging to the Soofi Chisti Order, for it was to them alone who were the sole custodians and caretakers of the shrine at Ajmer. The impugned Act, however, permitted all Hanafi Muslims, even those not belonging to the Soofi Chisti Order to partake in the maintenance and affairs of the Dargah. The Court rejected the challenge to the Dargah Act and considered that a distinction should be made to distinguish between religious and religious practices, although it is religious superstition, which has only sprung from superstitions.  Thus, the protection of Art.25 and Art.26 was confined to only such religious practices which were essential and integral to the religion in the light of the aforesaid formulations.

Conclusively, court has the power to decide what is essential or what is not essential to practice the freedom of religion. The essentiality doctrine of the Supreme Court has been criticized by several constitutional experts. Jurists or experts of constitutional law have argued that the essential doctrine has tended to set the court into an area that is beyond its capacity, and empowers judges to decide purely religious questions.

Recent Judgments­

• Dr. M Ismail Faruqui and Ors v. Union Of India and Ors[8] :- The Constitution Bench held 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.” so the court held that in the view of ‘essential religious practice’ doctrine, the mosque is not an essential or integral part of the Muslim religion. A practice may be a religious practice but not an essential part of religion.
• Shayara Bano v. Union of India[9] :- In this matter the 5 Judge Bench of the Supreme Court makes reference to the test of essential religious practice, rejecting the argument that the practice of Talaq-e-Biddat or Triple Talaq was the essential practice under Islam. The Court held that the triple talaq was not an essential practice and could not be offered constitutional protection under article 25 of the Constitution. It is against the basic tenets of the Indian Constitution as well as the Quran and thus violation of the Shariat. A practice that is merely permitted or not prohibited by religion cannot be considered an essential or positive tenet sanctioned by that particular religion.
• The Indian Young Lawyers Association & Ors. v. The State of Kerala and Ors. (popularly known as Sabarimala Judgment)[10] :- The PIL was filed by The Indian Young Lawyers Association on the issue that whether the complete exclusion of women (aged 10-50) based on a biological phenomenon from the temple, constituted an essential part of a religion or as in this case, Hinduism.The Court held that there is no scriptural or textual evidence that supports this discriminatory practice. Therefore, the practice of prohibiting women from entering the temple cannot be given the status of an essential religious practice of Hinduism. It is an essential aspect of Hinduism to allow Hindu women as a devotee and followers of Hinduism to enter a temple and pray for the deity.
• Goolrukh Gupta v.. Burjor Pardiwala, (Parsi Excommunication case)[11] :- A five-judge Constitution bench is deciding the question of whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith. The complainant, Goolrokh M Gupta, was barred by her community from offering prayers for her dead parents because she had married a Hindu. The Supreme Court overruled the verdict of the High Court of Gujarat which stated the denial of the Parsi woman to enter the fire temple. And held that A Parsi woman marrying a non-parsi is allowed to enter the fire temple and tower of silence and participate in other religious activities.

These are some cases that are in the light of landmarks but during that time many more cases were decided by the court on the doctrine of essential religious practice.

Discussion on the given study

The confusion revolving around the legal industry since years is the same i.e. what is the main concern in the doctrine of essential religious practice, either religious rituals or the Indian Constitution? So here the Supreme Court in these given cases uniformly decides that the person has right to freedom of religion but at the same time he has no right to violate anyone’s right like we see in shayra bano, sabrimala case and other judgments, and he also has no right to breach the public morality, order and regulation or rights which is decided by the Indian Constitution or court. For example, we can see the anand margins and other landmark cases.

Conclusion 

After the given study, we can say that India is a secular country where all citizen or non-citizen has the right to freedom of religion by Article 25 of the Indian Constitution. But at the same time all the acts or rituals whether it is an integral part or not, have to pass the ‘Essential Religious Practices’ test. When the question arises on this, the Supreme Court has the power to check the essentiality of these questionable rituals or acts with the doctrine of ‘Essential Religious Practices’. But many times the question arises on the position of the Supreme Court for that matter which is beyond its power like the ERP test for religion rituals, also sometimes the query is asked by many religion committees on the intention of Supreme Court judges. But these questions are pointless because the court is Supreme and a neutral body and has the power to decide all the matters which affect the Indian citizen.

Therefore, when we ask the question what is essentially religious practice? Then we can infer that it depends on the background, history and tenets of the religion. If some practice is not prohibited then it does not necessarily mean that such practice is an essential religious practice. If taking away of a practice can be called as ‘an Essential Religious Practice’. This test or this type of doctrine is valid because in the current scenario we can see many types of religious rituals that are against the validity of the constitution and questionable that these rituals are essential for any religion. So the answer is simple the Court has the power to constitute the ‘Essential Religious Practices’ to examine the inevitability, essentiality or validity of any religious practice whether it is integral or not.

REFERENCES

• 1. Constitutional Law of India by Dr. J.N. Pandey (CENTRAL LAW AGENCY)
• 2.ANALYSIS OF THE ESSENTIAL RELIGIOUS PRACTICE TEST VIS-A-VIS THE SABARIMALA JUDGEMENT – RGNUL Student Research Review (RSRR).
• 3. Sabarimala order: What is the ‘essentiality’ test in religious practice? | Explained News, The Indian Express.
• 4.https://www.drishtiias.com/daily-updates/daily-news-editorials/supreme-court-on-religious-practices.
• 5.https://en.wikipedia.org/wiki/Women_in_Zoroastrianism.

• [1] Commr.,Hindu religious Endowments, Madras v. L.T. Swamiar, AIR 1956 SC 282; Tilkayat Sri Govindalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638; F.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1585; Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Culcutta, (1984) 4 SCC 522.
• [2] In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Culcutta, (1984) 4 SCC 522.
• [3] In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
• [4] In State of Bombay v. Varasu Bapamali, AIR 1953 Bom 84.
• [5]AIR 282, 1954 SCR 1005.
• [6] AIR 255, 1958 SCR 895.
• [7] AIR 1402, 1962 SCR (1) 383.
• [8] AIR 1995 SC 605 A.
• [9] (2017) 9 SCC 1.
• [10] (2019) 11 SCC 1; 2018 (8) SCJ 609.
• [11] SLP (C) 18889/202.

This article is authored by Mayank Dube, Student at Vidhyasthali Law College, Jaipur.

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