The ERP Doctrine In India - A Barrier Or Protection For Religious Freedom
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Category: General Law
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THE ERP DOCTRINE IN INDIA: A BARRIER OR
PROTECTION FOR RELIGIOUS FREEDOM
Gayatri M Nambiar, LL.B., Symbiosis Law School, Pune
ABSTRACT
Religion is an indispensable part of human existence.1 The doctrine of Essential Religious Practices, in recent times, grants protection to practices or ideas that the judiciary has determined to be “essential” to a religion. The Supreme Court of India has made an effort to reform religion by restricting the extent of religious freedom with the implementation and frequent use of the essentiality test. This means that the Courts determine which religious practices are mandatory and which ones are not. However, the Courts have been inconsistent in its application of the essentiality test, gravely affecting religious freedom by frequently altering the procedure for assessing essentiality. This paper discusses the evolution of the ERP test, which has led to lack of objectivity, judicial overreach, and extensive rationalisation of religion by the judiciary. It also examines an array of judgements that illustrate how the essentiality test has had an adverse impact on religious freedom. The paper also explores the question of whether ERP stands the test of time or it has led to state/judicial intervention in religion and if it can still be considered a viable framework for protecting religious freedom in India. Keywords: Religion, Essential Religious Practices (ERP) Test, Religious Freedom, Article 25, Article 26. 1 Faizan Mustafa & Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, Vol. 2017 BYU Law Review 915 (2018).
I.
INTRODUCTION
Religion has always been an integral part of India’s cultural fabric, with a diverse range of faiths and beliefs coexisting for centuries. Essential Religious Practices (“ERP”) are those that are crucial to the beliefs and faith of a particular religion and are therefore given constitutional protection. However, determining what constitutes an essential religious practice can be complex and contentious. The ERP test pertains to integral religious practices, therefore eliminating a religious practice could potentially alter the religion’s core tenets. The historical contexts, guiding principles, core religious concepts, and other fundamental religious practices are used to determine these practices. The best way to determine what constitutes an essential element of a religion is by delving into its tenets and principles.2 This test evolved in such a way that it started to differentiate between practices that were fundamental to the religion and those that weren’t, even though it was originally intended to distinguish between practices that were essentially religious as opposed to those which were secular. II.
JUDICIAL PRONOUNCEMENTS
The evolvement of the ERP Test began when the Supreme Court first used this test in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt3. In this case, it was established that all rituals and practices that are essential to a religion are included under the definition of religion in Article 25. In this way, the judiciary established by itself what constitutes an essential element of religion. By doing so, it implicitly rejected the “assertion test” which was applied in the US, where an individual could assert that a particular practice was a religious practice, and Courts would not inquire further and developed the “essentiality test” to determine which essential religious practices are covered by the Indian Constitution’s guarantee of religious freedom. A significant precedent was established by the Court in Sri Venkataramana Devaru v. State of Mysore4, which signalled a change in the judicial paradigm and made the Court’s role decisive in evaluating whether a practice qualified as essential. As a result, the criteria for defining what is “essentially religious” (as opposed to secular) were mixed up with what is “essential to religion.” In Durgah Committee, Ajmer v. Syed Hussain Ali5, the Court ruled that there
2 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496.
3 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri
Shirur Mutt, AIR 1954 SC 282.
4 Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895.
5 Durgah Committee, Ajmer v Syed Hussain Ali, AIR 1961 SC 1402.
should be a distinction made between religious practices that are fundamental to religion and those that, while religious, are only the result of superstitious beliefs. It is important to highlight that the Courts have exhibited a multitude of inconsistent stances over time when applying the essentiality concept to decide what qualifies as a vital aspect of religion. This can be attributed to the fact that each situation is distinct in nature. The Court recognizes that every case involves particular facts and circumstances, and therefore, there cannot be a fixed precedent for all cases. The case of Sabarimala6 serves as an illustration of this point. The verdict that permitted women to enter the temple pertained only to that particular temple and did not extend to all other temples across the country that bar women from entering. The framers of the Indian Constitution had envisioned the freedom of religion as a safeguard for individuals to follow their personal religious beliefs, based on the concept of the inherent connection between man and God. The Supreme Court recognized this by affirming that every individual has the fundamental right to hold religious beliefs that align with their conscience or judgement. The Constitution’s creators intended to ensure that everyone had the liberty to practice their religion without any hindrance. However, the essentiality test undermines this autonomy by granting judges the power to decide which aspects of religious practices are essential or not. The fundamental tenet of religious freedom in the country has been undermined as well as the religious autonomy of a person and their religious group independent of the fundamental text appears to have no value as a result of the Courts’ fixation on using the essentiality test. The judiciary now has a latent discretionary power over essentiality and religious practices. Due to this discrepancy, Courts have been interfering excessively with religious traditions ever since the Shirur Mutt7 case. III.
COMPARATIVE ANALYSIS
The ERP test, used by the Supreme Court of India, involves examining whether a religious practice is essential and integral to a religion. If it is, it is protected under Article 268 of the Indian Constitution. This approach gives the Court the power to determine what constitutes an essential religious practice, which some argue can be problematic and infringe upon personal freedom. On the other hand, the assertion test used in USA, which is based on the First Amendment’s Free Exercise Clause9 entails accepting the religious beliefs of a person or
6 Indian Young Lawyers Assn. and Ors. v. State of Kerala and Ors., (2019) 11 SCC 1.
7 The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri
Shirur Mutt, AIR 1954 SC 282.
8 INDIA CONST. art. 26.
9 U.S. CONST. amend. 1.
group at face value and prohibits the government from interfering with the free exercise of religion. The legitimacy or importance of a specific religious practice or belief is not called into question by the Courts. This approach is seen as being more protective of religious freedom and autonomy, as it does not grant external authorities the power to decide what constitutes an essential religious practice. The assertion test, in contrast, seems to be more tolerant to various religious practices and beliefs. It enables individuals and groups to practice their own interpretation of religious beliefs without interference from external forces. Contrarily, it could be argued that the essential religious practices test violates religious autonomy by giving the Courts more authority to examine religious practices and beliefs. IV.
CRITICAL ANALYSIS
The ERP Test’s Judge-Centred Approach & Inherent Subjectivity The doctrine is flawed on both theoretical as well as practical grounds. The fact that the test is not mandated or enforced by the Constitution is the test’s primary flaw. Its application is arbitrary and subjective, and there are no set standards for identifying what might be referred to as essential religious practices. The protection should only apply to religious practices that are essential and integral to the religion. Other practices claiming protection under Article 26 should be carefully examined unless they are considered to be a fundamental part of the religion. However, this approach can be problematic as it limits religious freedom and autonomy by excluding practices deemed non-essential. In the Triple Talaq10 case, it was observed that the Courts’ approach to determining the validity of a religious practice is not consistent. Additionally, it was highlighted that different Courts take different approaches when deciding whether a religious practice is legal. There is a lack of a specific and impartial standard for deciding whether a religious practice is acceptable under the ERP Test. The most recent Supreme Court ruling regarding Sabarimala11 is praised for putting a stop to the prejudice that was practiced under the guise of devotion. However, identifying legal neutrality and linking religion and law also become crucial issues raised by Justice Indu Malhotra in her dissent about the role of Courts in religious concerns.12
10 Shayara Bano v. UOI, (2017) 9 SCC 1.
11 The Indian Young Lawyers Assn. & Ors. v. State of Kerala and Ors., (2019) 11 SCC 1.
12 Pranav Sharma & Jugaad Singh, The Test of Essential Religious Practices: A Huge Burden on the Backs of our Judiciary, https://www.rsrr.in/post/the-test-of-essential-religious-practices-a-huge-burden-on-the-backs-ofour-judiciary .
Outmoded Nature of ERP Test The ERP test has received significant criticism lately because of its unpredictable nature. It seems that the test has strayed from its original purpose due to various interpretations. Moreover, it puts a considerable burden on judges to determine whether a practice is a vital part of a religion or not. This can cause some religious groups to feel excluded because a single religious practice may have multiple meanings and interpretations. There are three reasons why the notion of granting constitutional protection solely to the aspects of a religion deemed essential by the Court is problematic. Firstly, it presumes there are and can be objective standards for determining what is and is not fundamental to a religion. This is essentially incorrect because religion itself is subjective. Secondly, this method is based on the erroneous premise that each component or practice of religion exists independently of the others. This method makes the assumption that some aspects of religion are fundamental while others are merely incidental. This is incorrect because religions are made up of a variety of ideas, beliefs, and practices. The final assumption made by this kind of approach is that religions are unaltered or unchanged and that what was important a few decades ago will continue to be relevant presently. Like everything else, religions must also be given room to develop over the course of time. An inconsistent instrument of interpretation cannot reconcile the conflict between plurality and constitutional morality. An individual’s beliefs are inextricably linked to their right to religious freedom and autonomy. The right to exercise one’s religion is in jeopardy when the constitutional legitimacy of practice is determined using the benchmarks of the ERP test. Subsequent Gateway for State/Judicial Interference in Religion Fundamentally, the Court should provide exceptions to protect these rights based on how the law is understood. According to Article 25 of the Indian Constitution, such freedoms were meant to be protected from excessive State interference. It was established in order to protect people’s rights to practice their religion.13 Morality was to be interpreted as constitutional morality in Article 25.14 The term’s origins are admirable in that they stress the use of constitutionalist principles in rights adjudication, but they fall short of encapsulating the fundamental meaning of religious freedom. This approach does not adequately protect religious freedom because it imposes a uniform moral standard on all religions. By doing so, the Courts
13 INDIA CONST. art. 25.
14 The Indian Young Lawyers Assn. & Ors. v. State of Kerala and Ors., (2019) 11 SCC 1.
end up scrutinizing the content of religious beliefs rather than the affiliation of the group with those beliefs. Since the Courts are not religious institutions, they are always inclined to infer a sense of uniform rationality and reason in religious matters, regardless of the actual diversity in conduct or expression. This is a very high bar for religious rights and goes against the very idea of religious freedom. Furthermore, the Courts’ role in deciding on the necessity of a religious practice conflicts with the fundamental spirit of Article 26(b)15, which recognizes the right to manage religious affairs. This right becomes meaningless if the Court decides what constitutes a person’s “personal affairs” based on its own moral standards. V.
SUGGESTIONS
There is a lack of a comprehensive and impartial test to determine whether a religious practice is permissible under the ERP Test. In addition, the judiciary has not uniformly determined what is essential. The Court has looked at historical documents16 in some cases, empirical data17 in others, and whether the practise has been prevalent perpetually18 or not. It doesn’t have any significance whether these choices were advantageous or disadvantageous in the aforementioned situations. The primary focus must be on the fact that the Court wasn’t relying on these rulings on constitutional principles. The Courts could adopt a subjective test that concentrates on an individual’s personal views rather than relying on an objective test to evaluate the necessity of a religious practice, similar to how it is done in the US, this would permit people to practise their religion in a way that is compatible with their own beliefs and values, free from State or judicial interference. This could be done within the confines of public order, morality & health which are laid out under Article 25. In order to assess whether a religious practice is essential, the Courts may also apply a public interest test. Religious organisations would need to pass this test by proving that their practices are ethical and are not harmful to anyone. This would guarantee that religious beliefs are not invoked to support harmful or discriminatory behaviour. Justice D.Y. Chandrachud in the case of Sabarimala clearly observed that, “judges are now adopting a theological mantle, which they are not supposed to do, due to this essentiality theory. As a result of this, the decision made by the judge is more influential than the entire religion.”19
15 INDIA CONST. art. 26 cl. b.
16 Gram Sabha of Village Battis Shirala v. UOI, (2003) 133 PLR 537.
17 Fasi v. Superintendent of Police, 1985 ILLJ Ker 463.
18 Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Ors., (2004) 12 SCC 808.
19 The Indian Young Lawyers Assn. & Ors. v. State of Kerala and Ors., (2019) 11 SCC 1.
Consequently, Justice Chandrachud proposed that the theory be modified, arguing that the test could establish if a practice complies with the Constitution irrespective of whether the practice is necessary or not. VI.
CONCLUSION
While religion and spirituality have historically played significant roles in Indian society, they have always been internalised associations. This was taken into consideration when the Indian Constitution was drafted; the State was not to meddle, but the opportunity for reform was left inside the Constitution itself. Although religion is an essential part of human existence, the test implemented by the judiciary to determine what practices are essential has had a detrimental effect on religious freedom. Although the test has been used to protect certain religious practices, due to inconsistent application and inherent subjectivity, it has led to State and judicial intervention in religious matters. Therefore, it is crucial to explore alternative frameworks that protect religious freedom without impinging on the individual rights of religious communities. The Indian Supreme Court’s essentiality concept restricts personal freedom and gives the judiciary excessive control over religious affairs. Instead of going beyond the scope of its authority by making judgements on the substantive components of religion and declaring a religious practise to be not essential, the judiciary must create an equitable framework for subsequent pronouncements to eliminate religious practices that violate constitutional morals.
VII.
REFERENCES
- Faizan Mustafa & Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, Vol. 2017 BYU Law Review 915 (2018). - Udit Singh, Essential Religious Practices Test and the Supreme Court of India: A Critical Analysis, Vol. 4 International Journal of Law Management & Humanities 1857 (2021). - Mary Kavita Dominic, Essential Religious Practices Doctrine as a Cautionary Tale: Adopting Efficient Modalities of Socio-Cultural Fact-Finding, Vol. 16 Socio-Legal Review 46 (2020). - Niharika Maurya, Essential Religious Practices Test: A Critical Analysis, Vol. 20 Supremo Amicus 382 (2020). - Pranav Sharma & Jugaad Singh, The Test of Essential Religious Practices: A Huge Burden on the Backs of our Judiciary, https://www.rsrr.in/post/the-test-of-essentialreligious-practices-a-huge-burden-on-the-backs-of-our-judiciary . - Sadaf Rajput, Essential Religious Practice Test: A Tale of Interventionist Judiciary, Inversion of Agency and Invisibilisation of Freedom of Religion, https://clsnluo.com/2023/03/06/essential-religious-practice-test-a-tale-ofinterventionist-judiciary-inversion-of-agency-and-invisiblisation-of-freedom-ofreligion/ .