An Analysis Of Right To Religion With Special Reference To Doctrine Of Essentiality

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T17:51:25.83016+00:00

Updated: 2026-08-26T17:12:17.909+00:00

AN ANALYSIS OF RIGHT TO RELIGION WITH SPECIAL

REFERENCE TO DOCTRINE OF ESSENTIALITY

Amandeep Kaur (Assistant Professor of Law, UIL, Sant Baba Bhag Singh University, Jalandhar, Punjab) Navdeep Kaur (Assistant Professor of Law, UIL, Sant Baba Bhag Singh University, Jalandhar, Punjab)

ABSTRACT

In India, religion has been inseparable part of human existence. Religion persisted even before the persistence of human race. However, in recent times religion is not only confined to individual’s spirituality’s sake but it has also entered the arena of one’s political life and become a debatable matter. The bone of contention is whether the individual’s right to freedom of religion is absolute or it may be curtailed by the state. Secondly whether the individual’s right to freedom of religion can be defended on the basis of essential religious practices. Lastly what are the parameters basing upon which the essential religious practices can be differentiated from nonessential religious practices? The honorable courts have answered such questions from time to time in order to guarantee it’s citizens open air to breathe religion freely.

Here we tries to analyze varied approaches of courts through its decisions where it dwell deeper into the religious matter and give different shades to “principle of essentiality” enshrined in Indian Constitution. The study also revolves around recent judicial pronouncements where the court has applied the “principle of essentiality” and what could be the possible impact of such decision on secular state like ours. The study suggests on essential religious practices the concentration should on ideas of equality, liberty and conscience rather than on circumscribing religion and essential religious practices into tight circle.

INTRODUCTION

India is a secular state. It has been “secular” state even before 42nd Amendment. The word secular has not been defined anywhere in the Indian Constitution. However if we have to give the gist of what really the word “secular” means is that the state will not have its own religion. It neither means that state is Anti- religion, nor does this means that the state is irreligious. It simply means that the state cannot promote or practice any specific religion. If we talk about its interference with any specific religion or religious practices then also the state is not allowed to interfere in such matters. The bottom line is that state will have no religion. “Secularism”, the Apex Court in St. Xavier’s College v.

State of Gujarat (AIR 1974 SC 1389) held that secularism means someone in pro god or anti god, it treats one who believe in god and one who do not believe in god alike and it is duty of the court to see that there is no discrimination on the basis of religion. 1 Our Constitution guarantees all its citizens right to “freedom of religion” enshrined under Articles 25-28. Again, the word “religion” is not defined in our constitution. However, in Commissioner, H. R. E v. L. T. Swamiar (AIR 1954 SC 282), the court explains that Religion is connected to faith of single person or groups and it is not compulsorily theistic2. Similarly, In Aruna Roy v. U. O. I, (AIR 2002 SC 3176), the court held that the word religion has varied meaning and shades. The important shade is one’s duty towards the society and the soul and this is known as dharma.

3 Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all its citizens, except in the matter of public order, morality, health, and other provisions: • Every citizen is entitled to freedom of conscience, and • Every citizen is entitled to fundamental right to freely profess, practice and propagate religion. It further provides that this article shall not prevail in conflict of any existing law at the

1 Narender Kumar, Constitutional Law Of India 414(Allahabad Law Agency, Haryana,9th edn., 2015)

2 ibid

3 ibid

time being in force and shall not stand contrary to the state from establishing law relating to: • Regulation or restriction of any economic, financial, political, or any secular activity associated with religious practice. • Providing social welfare and reform. • Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus. 4 Does this mean that right to choose one’s religion freely is absolute? Of course not the state can curtail it on three basis: • Public order • Morality • Health Therefore, the word “religion” cannot be put into tight containers rather it is dynamic in nature to satisfy the changing needs of changing society. It is worthy to note here that protection of Articles 25 & 26 is not limited to religion only but also to the performance of acts or religious practices in pursuance of religion.

Here comes into play the famous doctrine, “Doctrine of essential religious practices”. What is Doctrine of Essential Religious Practices? Doctrine of Essential Practices means that any practices which is essential to maintain the heart and soul of the religion could not be parted away from the religion and disobedience or not following such practices would alter the nature religion itself. Also denying these essential practices to any would be violation of Articles 25 of the Indian Constitution which guarantees its citizens freedom of conscience and right to profess, practice and propagate religion. 4Retrieved from

The test provides shelter to only those practices which are core beliefs of the religion and devoid of which the religion would not be same. Why this doctrine is relevant in our society? With the society like ours there various cultures, castes, creeds, religion, beliefs system and faith. It is important for us to look after such practices which are necessary to practice religion freely. This would not only aid in maintaining the harmony in the society. But also helps us to upkeep the vision of our constitution makers who aimed at ensuring all its citizens spiritual well-being. The integral or essential part of a religion can be viewed in synchronization with religion itself.5

HISTORICAL BACKGROUND

The Doctrine has been brought into limelight in one of the most significant judgements of the apex court. The Doctrine was originally established in The Commissioner, Hindu Religious Endowments, Madras v.

Shri Lakshmidar Thirtha Swamiyar of Shri Shirur Mutt or popularly known as The Shirur Mutt Case6, in this present case the Court draw differentiating lines between practicing ‘religious’ and ‘secular’ practices where ‘religious’ practices were the one of mandates of the religion, thus has to be followed by the person and ‘secular’ activities defined as practices which were supplementary to the religion and are connected in such a way that became part and parcel of the religion however these do not necessarily make an essential part of religion, for example activities related to social, financial and political facet of religion and thus, particularly ‘religious practices’ were considered to be essential and part & parcel and could ask for constitutional shelter.

In this case, the State found that supplementary practices can be involved in the day to day work and management of the religious institution, the Court also declared that it can interfere in the activities bearing secular character but not activities of religious nature. In the Shirur Mutt case the Court stated what makes the essential and integral part of a religion is basically and necessarily forms the part of religion and are fundamentally protected. If any religious group of people especially in this case hindus, prescribe that offerings of food should be offered to deity at particular periods of the time, that ceremonies are performed should be performed in a particular manner at prescribed time

5 Commissioner, H.R.E. v. L.T. Swamiar, AIR 1996 SC 1765

6 AIR 1996 SC 1765

intervals of the year or that there should be chanting of sacred hymns on daily basis or ablations to the poise fire, all these practices can be referred to as appendages of religion and the mere fact that they require spending of financial resources such as employment of priests and servants, commodities bought from market would not make them secular activities leaving behind its original colors of mere market commodities; all of the above mentioned activities are called religious practices and shall be considered within the sphere of religion as enumerated under article 26(b) of the Indian constitution. ” The Court in this case even went beyond by stating that a religious denomination or an organization have full control in taking decision as to what rites and ceremonies can be considered as essential practices.

Moreover, the tenets of religion are the sole decider no other or outsider has the right and jurisdiction to decide on the behalf of religious tenet whether the particular religious practice is essential or not. 7

RESEARCH QUESTIONS

Whether the individual’s right to freedom of religion is absolute or it may be curtailed by the state. • Secondly whether the individual’s right to freedom of religion can be defended on the basis of essential religious practices. • Lastly what are the parameters basing upon which the essential religious practices can be differentiated from non-essential religious practices?

RESEARCH METHODOLOGY

The research is based on secondary data available. The data is organised into different time period for the purpose of drawing analysis .With the help of various judicial pronouncements the study attempts to answer different research questions. The study also tries to inquire into alternating facets of the Doctrine of Essentiality and present critical analysis of the same. It also intends to establish the relevancy and significance of the study in our daily lives.

7 Retrieved from

JUDICIAL TRENDS TOWARDS DOCTRINE OF ESSENTIALITY

Ø State of Bombay v. Narasu Appa Mali, in this case the Bombay High Court held forbidding bigamy among Hindus is valid. This case was highlights in the court to decided the question of validity of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 and the act was challenged on the point that, this act is contrary to part III of Fundamental Rights, Article14, 15 and 25 in specific. it was argued that Hindu marriage is a union of two souls thus a sacrament and marriage under Hindu religion is for the reproduction of the legal heir of male, which is fundamentally considered as religious practice or belief, and curbing this practice by the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 is violation of one’s freedom to profess, practice and propagate religion as per Article25(1).

8 The Bombay High Court said that the giving birth to son naturally is not circumscribed within the domain of essential hindu religious practices9. Ø The Commissioner, Hindu Religious Endowments, Madras v.

Shri Lakshmidar Thirtha Swamiyar of Shri Shirur Mutt or popularly known as The Shirur Mutt Case in this present case the Court draw differentiating lines between practicing ‘religious’ and ‘secular’ practices where ‘religious’ practices were the one of mandates of the religion, thus has to be followed by the person and ‘secular’ activities defined as practices which were supplementary to the religion and are connected in such a way that became part and parcel of the religion however these do not necessarily make an essential part of religion, for example activities related to social, financial and political facet of religion and thus, particularly ‘religious practices’ were considered to be essential and part & parcel and could ask for constitutional shelter.

9 Narender Kumar, Constitutional Law Of India 418(Allahabad Law Agency, Haryana,9th edn., 2015)

integral part of a religion is basically and necessarily forms the part of religion and are fundamentally protected.

If any religious group of people especially in this case hindus, prescribe that offerings of food should be offered to deity at particular periods of the time, that ceremonies are performed should be performed in a particular manner at prescribed time intervals of the year or that there should be chanting of sacred hymns on daily basis or ablations to the poise fire, all these practices can be referred to as appendages of religion and the mere fact that they require spending of financial resources such as employment of priests and servants, commodities bought from market would not make them secular activities leaving behind its original colors of mere market commodities; all of the above mentioned activities are called religious practices and shall be considered within the sphere of religion as enumerated under article 26(b) of the Indian constitution.

” The Court in this case even went beyond by stating that a religious denomination or an organization have full control in taking decision as to what rites and ceremonies can be considered as essential practices. Moreover, the tenets of religion are the sole decider no other or outsider has the right and jurisdiction to decide on the behalf of religious tenet whether the particular religious practice is essential or not. Ø In Ratilal v. State of Bombay, The court explained the term “religious practices” or practices based on believes, faiths, which are essentially part of a religion, doctrine of essentiality. It was also said that no outer and supreme authority has the right to earmark essential practices, whether they form essential part of the religion, and that it does not come under state’s jurisdiction to restrict or prohibit them at its discretion.

10 Ø In the case of Sri Venkataramana Devaru v. State of Mysore, an important doctrine of essentiality comes in question again. The legal point in this case was whether the excluding individual from entering the temple for worshipping is a essential practice. In this case, ancient writings were taken into account on the bench to decide which practices were an essential part of the religion and which were not. The difficult question to answer here whether the matter comes in

10 Narender Kumar, Constitutional Law Of India 415(Allahabad Law Agency, Haryana,9th edn., 2015)

scope of article 17or article 25. After going through the practices necessary for Hindus, the court said that no one can be restricted to enter into temples. However, according to the Puranic literature which indicated that there are some rtiuals and practices supposed to be performed only by particular strata of society. Further, the court said that the those very individuals can continue to perform those ceremonies, in which they owns the discretion of choosing the assistants as to who can perform such ritual with the Brahmins of the temple. 11 Ø Durgah Committee, Ajmer v. Syed Hussain Ali, Khwaja Syed Fukhuruddin and Sheikh Mohammad Yadgar, were devotees who basically come along with Khwaja Saheb Syed to India. Post saint’s death, his both disciple took care of the graves and spiritual needs of the pilgrims. The descendants of these two disciples were gradually called Khadim.

Khadim were responsible to take care of the tomb thus it became their profession. The accused belong to that sect or section of Khadims. They claim to belong to a religious sect or section called Chishtia Soofies. They further argued that for around centuries the Khadims held the responsibility of look after the tomb, also they were given the keys to the tomb and taken care of the crowds of believers who came to the tomb and acted as spiritual guides in fulfilling their religious obligations. Furthermore, the khadims earned livelihood by performing fatehaga from which earned nazare and natsars. Accordingly, the defendants challenged the Act on the unjust grounds that its substantive provisions nullify and/or voilate their fundamental rights as a class and also the fundamental rights guaranteed by the Islamic Arts belonging to the Soofi Chishtia Order.

14, Article 19(1)(f) and (g), 25, 26, Article 31(1) and (2) and 32. Therefore, the Supreme Court considered that the challenge to S. 5 and the sub-paragraphs regarding the powers of the commission on the basis that the said section stands as violation of the fundamental right guaranteed to the nominal value represented by the defendants under the section. 26(c) and (d) fail. And kept it; The order of the Court of Appeal is set aside and the defendants' suit dismissed with costs. 12 11Retrieved from 12Retrieved from

Ø In Commissioner of Police v. Acharya Jagdeshwarananda, The Supreme Court found that the Ananda Marg community existed even before the existence of their native dance, the Tandava dance, so the court denied it as their essential practice in the practice of their religion. Ø In Commissioner of Police vs. Acharya J. Avadhuta, the question of whether Tandav is essential part of religion came before the Supreme Court of India again. Most believed that since Tandav is just a form of dance, it cannot form the core of that religion, it should not be labelled as important religious practice. However, a popular opinion believed that if the practice is considered by followers to be most important to spiritual elevation, then it is an indispensable essential practice. According to this logic, tandav was an indispensable religious practice.

It is significant point here that in all these cases mentioned above, the Supreme Court's move to ancient manuscripts, rather taking into account its constitutionality, and to decide whether it is related to the religious significance or constitutionally wrong. 13 Ø In A. S Narayana v. State of Andhra Pradesh, The judicial decision on the issue of appointment of a temple head on the basis of heredity is not an essential religious practice and therefore does not conflict with the article.

MOST RECENT CASES

• SABRIMALA CASE

In this case the women who were in menstruating age were not allowed to enter to the Ayyapa Temple and offer prayer for the reasons that the deity revered there was a celibate. It was on 28th September 2018, the Supreme Court lifted the ban and tries to strike balance between right to equality and right to freedom of religion. • YASMEEN ZUBER AHMAD PEERZAD v. U.O.I Entry of Muslim women into mosque case. Women knocked the door of Supreme Court 13 Retrieved from

to seek right to enter into mosque through front door. • SUNITA TIWARI v. U.O.I and Ors The petitioner has challenged the constitutionality of Female Genital Mutilation or Khatna which petitioner said that was carried out upon every Dawoodi Bohra Community and the matter was referred to the larger bench.

• HIJAB CASE

In December 2021, six hijab-wearing Muslim students of Government school Girls' College, Udupi, were prohibited to sit in the class. The institute's stated reason: "religious activities are not allowed in a university town. " The girls were not allowed to sit in the class for atleast three weeks before protesting the 31st ban. in December, saying, "Even though it's our fundamental right, the school authorities don't let girls to sit in the class because they wear the hijab. " Later, the students knocked the doors of High Court of Karnatka and also brought the matter in front the National Human Rights Commission. Meanwhile, amid growing opposition, Hindu students wore saffron to demonstrate their resistance to the hijab, while the number of institutions banning the hijab grew across Karnataka.

On January 4, around 50 students of a government-run college in Chikmagalur district wore saffron scarves and raised slogans outside their institution. This led to both headscarves and hijabs being banned from the institute's classrooms. As Muslim students' resistance against the oppressive ban on religious dress spread across the state, right-wing Hindu groups vehemently promoted the saffron headscarf protests. The high court of karnatka, remained with their earlier decision of the hijab ban, ruling that wearing a headscarf is not a necessary religious practice. State police issued orders banning demonstrations in several cities, anticipating potential unrest over the final ruling by a special three-judge court. Meanwhile, Dakshina Kannada schools, some of which were rocked by protests last month, were closed for the day. 14 14 Retrieved from

CRITICAL ANALYSIS

From the above mentioned judicial pronouncements one thing is very clear that court has played active role in answering the questions related to religion and essential religious practices. In series of cases the court has applied the doctrine to give different shades to essential religious practices. However the justice giving machinery could not accomplish its aim to satisfy people’s religious urge. This led to lots of criticism for court by general people and scholars. These are: • The courts have been answering questions related to religion over a period of time and such questions are beyond the competency of court as it purely dependent on sacred texts to lead to conclusions • Next the court has to see the relationship between man and the state, or between man and man, it has nothing to do with relationship between man and God.

Its solely individual’s conscience which dictates his relation with God not the courts. • Another hurdle is that courts have been inconsistent in deciding such cases. They constantly relied upon spiritual texts to determine as to what essential practices are and what are not included in essential practices. • The court has also based its decision on number of the followers who follow religious practices so as to constitute essential religious practices. However this could not be treated as concrete basis as it would validate malpractices such as triple talak, adultery, untouchability etc. • The essentiality principle has encroached upon individual’s freedom of conscience. And courts decision on such matters leads to great confusion and conflict. • Recent judgment by Karnatka High Court upon Hijab row set forth that doctrine has upper hand over freedom of conscience.

In addition to this many school going girls now would not be able to go to school as their Hijab is not considered a part of their school uniform nor it is considered to be essential practice of their religion. Therefore violating their right to education.

It narrows down the concept of justice.

SUGGESTIONS

The courts can overcome such loopholes or criticism by adopting following measures: • The courts should definitely seek some expertise upon such matters rather solely relying upon sacred texts. • The court should focus on facts of case rather than propounding mega theory assuming to fit all cases. • The court should not go deeper into matters of religion as it likely to create conflict among different sects of society. • Further the court should restrain itself to confer the case to larger benches. • The court should see that a religious matter does not shadow other fundamental rights.

CONCLUSION

From the above discussion we see that courts have applied the doctrine of essential practices in different cases. In each of the case it is very much evident that doctrine shows us different shades. In some cases it satisfactorily settled the law relating to religion and religious practices and in others it fails miserably. However after going through different judicial decisions it may be noted that individual’s right to freedom of religion is not absolute, it can be curtailed by state on appropriate grounds. Next, the right of individual of freedom of religion can be defended on the basis of essential religious practices but the burden lies upon petitioner to prove that the practice in question is an essential practice of religion. If we talk about the parameters of deciding what really constitutes essential practices are vague and ambiguous.

This is because the bases upon which these are decided are not concrete. These lacunae can be filled if the judiciary takes some firm steps towards removing the clouds of ambiguity.

REFERENCES

i. Narender Kumar, Constitutional Law Of India, (Allahabad Law Agency, Haryana, 9th edn, 2015) ii. https://www. thequint. com/news/law/hc-verdict-due-in-hijab-case-what-didpetitioners-argue-what-did-state-say-explainer (Visited on March 20, 2022) iii. https://www. deccanherald. com/national/hijab-row-live-ban-controversy-karnatakabengaluru-headscarf-udupi-huballi-essential-religious-practices-muslims-hc-bjpcongress-elections-colleges-basavaraj-bommai-sec-144-1091406. html#3 (Visited on March20, 2022) iv. lexforti. com/legal-news/articles-25-and-26-vest-the-right-to-exhibit-a-persons-beliefin-his-conduct-by-such-outward-acts-as-may-appear-to-him-proper-in-order-tospread-his-ideas-for-the-benefit-of-others (Visited on March19,2022) v. https://blog. ipleaders. in/essential-religious-practices-and-their-scope-under-article- 13/( Visited on March 19, 2022) vi. http://www. penacclaims.

com/wp-content/uploads/2020/07/Kartik-Panchal. pdf (Visited on March 18,2022) vii. https://www. lawyersclubindia. com/articles/state-of-bombay-v-narsu-appa-mali-air- 1952-bom-84--7855. asp (Visited on March 18, 2022)