Yet another year, another controversy encompassing the doctrine of Essential
Religious Practices. This judicially levied test was now in news in the debate
over the hijab restrictions in Karnataka's classrooms. However, the High Court
of Karnataka dismissed petitions filed by a group of Muslim girls seeking
permission to wear hijab (headscarf) in classrooms on March 15, 2022. The
petitioners unsuccessfully argued that wearing a hijab is an "essential
religious practice" in Islam and thus protected under Article 25 of the
Constitution. Lastly, it was prominently featured in the Sabarimala litigation
five years ago.
The Essential Religious Practices doctrine has become so tainted that it's
difficult to believe any judge ever thought it could be used to resolve
conflicts rather than encourage them. Such various controversies and the
growing tendency to defang the Essential Religious Practices doctrine are not
the doctrine's fault. Most people having knowledge of Indian constitutional law
will recognize that today's Essential Religious Practices doctrine is not
exactly the doctrine articulated in the 1954 case from which it arose.
ERP Test and Past instances:
Essential religious practices are those that are vital or fundamental to
religion and if they are not followed, the religion itself will change. The
Essential Religious Practices doctrine was intended to protect religious
autonomy rather than undermine it: courts were supposed to draw this
distinction, "with reference to the doctrines of that religion
itself." Furthermore, denying essential religious practices would be a violation
of Article 25, which addresses the freedom of conscience as well as the free
profession, practice, and propagation of religion.
The Doctrine has evolved significantly as a result of various judicial
precedents. The Doctrine was originally conceived in The Commissioner, Hindu
Religious Endowments, Madras v. Shri Lakshmidar Thirtha Swamiyar of Shri Shirur
Mutt, also known as The Shirur Mutt Case
, in which the Court made a distinction
between 'religious' and 'secular' practices, where religious practices were
considered to be those of the utmost importance to the religion and secular
activities were defined as practices associated with religion but do not really
constitute an essential part of it, such as economic, financial, and political
activities, and thus only religious practices were considered essential and
integral and could benefit from constitutional protection.
The Court stated:
What constitutes the essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself. If the tenets of any
religious sect of the Hindus prescribe that offerings of food should be given to
the idol at particular hours of the day, that periodical ceremonies should be
performed in a certain way at certain periods of the year, or that there should
be a daily recital of sacred texts or ablations to the sacred fire, all these
would be regarded as parts of religion and the mere fact that they involve the
expenditure of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities partaking of a
commercial or economic character; all of them are religious practices and should
be regarded as matters of religion within the meaning of Article 26(b).
In other words, Shirur Mutt's articulation of Essential Religious Practices was
not intended to distinguish between religious practices that were essential and
those that were not. It was intended to differentiate between practices that
were fundamentally religious and those that were not. However, the Indian Court
in Shirur Mutt was clear in its intent but, unfortunately, laid the groundwork
for the confusion we see today.
The following is the most-quoted line from the Shirur Mutt decision:
What constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of that religion
If the above lines are solely interpreted, this definition of the
Essential Religious Practices doctrine is consistent with current usage: the
doctrine instructs courts to distinguish between practices that are essential to
religion and practices that are not.
In the initial conception, practices were
not protected by the doctrine which was deemed to be non-religious in nature,
rather than those deemed religious but insufficiently important. However, the
doctrine has evolved from "essentially religious" to "essential to religion"
The Court established another critical precedent in Sri Venkatarmana Devaru v.
State of Mysore
, signaling a shift in judicial approach in which the Court's
role became determinative in determining whether a practice qualified as
essential. As a result, the test for determining what is "essentially religious"
became conflated with "essential to religion."
In Dargah Committee, Ajmer v. Syed Hussain Ali,
the Court stated that a clear
difference must be made between religious practices that are essential and
integral to religion and religious practices that are merely superstitious.
Thus, the protection of Articles 25 and 26 was limited to religious practices
that were essential and integral to the religion.
It should also be noted that the Court's subsequent use of the doctrine to
determine what is 'essential' to religion and what is not has resulted in many
contradictory viewpoints. This is due to the distinctiveness of each case. Each
case has different facts and is unique in its own way, which the Court
recognizes, and thus there can be no fixed precedent for the same. In the case
of The Indian Young Lawyers Association & Others. V. The State of Kerala and
(Sabarimala Case), the decision to allow women to enter the temple is
specific to that temple and not to all temples in the country that do not allow
Further, the Supreme Court ruled that Tandava dance was not required by the
Ananda Marga faith. It was stated once more that whether the absence of a
practice fundamentally alters the religion determines whether it is an essential
part of the religion. And in Shayra Bano Case
, Supreme Court ruled that Triple Talaq violated the basic tenets of Islam and violated Shariat. It stated that a
practice that is simply permitted or not prohibited by religion cannot be
considered an essential or positive tenet sanctioned by religion.
The court's changed opinion on the question of essential religious practices?
Justice D Y Chandrachud in the Sabarimala case made a very rational point and
stated that "Due to the essentiality doctrine, Judges are now assuming a
theological mantle which we are not expected to do."
And in the same case, Justice D Y Chandrachud opined that there should be an
alteration to the doctrine i.e "The test should be whether a practice subscribes
to the Constitution irrespective of whether it is essential or not." In the same
judgment, Justice Chandrachud also criticized the essential religious practice
test calling it a problem. He said " There is a problem with our jurisprudence.
Essentiality aspect has taken charge of Article 25 but it should not be so,
because if something is essential it becomes inviolable."
Hearing review petitions in the Sabarimala case
in 2019, a five-judge bench
referred seven different issues to a larger bench, those issues were including
the questioning of the extent to which the court can inquire whether a
particular practice is an integral part of the religion or religious practices
of a particular religious denomination, or whether that should be left solely to
the head of the religious group's section; or whether the essential religious
practices of a religious denomination, or even a section thereof, have
constitutional protection under Article 26. Though a nine-judge bench was formed
in 2020 to investigate these issues, no hearings have yet taken place.
At last, it can be said that some difficult questions are unavoidable in the
context of religious freedom jurisprudence due to the diversity of our country
and there is no perfect doctrine to assist us in answering them. However, if the
court returns to the original Essential Religious Practices, it may provide a
more promising framework for moderating and moderate religion-state relations.
The doctrine has already seen several variations throughout history and will see
many more in the future, but courts time and again have always ensured that it
is always careful, just, and prudent, and has always kept in mind and balanced
the interests of the citizens as a whole and the interests of the religion
concerned. As long as the Supreme Court, which is the guardian of our rights,
continues to do so, the future of our great nation and religions will be secure.