Crossroads With Religion And Power Of Law- Analysis Of The Erp Test By- Abhimanyu Sharma, Riham Varma & Spraha Srivastava

Crossroads With Religion And Power Of Law- Analysis Of The Erp Test

Authored By- Abhimanyu Sharma,
Riham Varma &

Spraha Srivastava

Abstract:

This paper analyses the trajectory and relevance of the Essential Religious Practices Doctrine. Through a study of the judicial backdrop and contemporary debates, it scrutinizes the existence of the ERP Doctrine. It focuses on the advancement led by the ERP in interpretation of religious practices to ensure the rights and freedom of people. Furthermore, it evaluates its impact on protecting the constitutional safeguards, while also giving the courts unreasonable autonomy concerning its discretion. This paper focuses on the constructive and counteractive impacts of ERP in the modern age. The authors provide a breakdown by acknowledging the need to implement recommendations and suggestive measures for the doctrine to be applicable in terms of the Indian Constitution.

Keywords: Essential Religious Practice, Religion, Supreme Court, Test of Essentiality.

Introduction

​​The Indian Judiciary and the Supreme Court are the representatives of the rights of the citizens. In a country like India, the people are guaranteed rights on an individual and a community level. The complex structures in which rights exist and their intermingling with religion can pose challenges leading to the creation of conflicts. At this juncture, the Supreme Court exercises its interpretative power to ensure the protection of the fundamental structure of the Constitution. The rights pertaining to religion and its attributes are described under Articles 25 and 26 of the Indian Constitution.[1] Article 25 protects the freedom to practice and profess any religion.[2] Article 25 (1) provides for equal entitlement to freedom while Article 25 (2) confers the power on the State to regulate any political, economic, or financial activities with any religion.[3] The freedom to manage religious affairs by a religious denomination is guaranteed under Article 26.[4] The rights provided under these two articles are interlinked creating conflicts that lead to the interpretation by the Supreme Court.

In order to address this, the Doctrine of Essential Religious Practices was established. The primary purpose of the doctrine was to help the courts to interpret the rights and freedom of citizens when a conflict arises between an individual and the community's rights.[5] The basic concept of the Essential Religious Practices Doctrine (ERP) was established by the Supreme Court in the case of Shirur Mutt.[6] The “Essentiality Test” was established in this case to ensure that any religious activity implemented does not go against the constitutional values and infringe any rights of the citizens. In order to ensure uniformity across all religions, the test involved examining the foundation of the religion to determine if the practices were termed essential to the faith.[7] For this, the Supreme Court provided guidelines to look into the evidence found in religious texts as well as examine the empirical evidence determined through the number of followers.[8] Based on this a practice could be termed as essential for it to be implemented with the condition that it does not inflict Articles 25 and 26 of the Indian Constitution. This paper critically analyses the test of essential religious practices in light of the right to profess and practice religion, enshrined in the Indian Constitution. It discusses the judicial evolution of the doctrine with emphasis on contemporary cases to analyse its impact.

Evolution of the Doctrine

The origin of the Essentiality test in Religious Practices or the Doctrine of Essentiality can be traced back to 1954 in The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Sri Shirur Mutt.[9] The court ruled that the term "religion" encompasses all "integral" religious rituals and practices, and it assumed responsibility for assessing which behaviours are fundamental and which are not. The test came to be developed due to several reasons, one of them being the clothing of purely secular practices which were not essential practices of religion through which a claim could be made that they are a part of the religion and need to be followed. Had the test not been established, such clothing would not have been easily possible.[10] In Seshammal v State of Tamil Nadu,[11] it was held that the appointment of an Archaka from a particular denomination only would not amount to caste discrimination as the appointment is based on the Agamas, which constitute essential practices and can therefore not be circumvented.[12]

Further, in Commissioner of Police v Acharya Jagadisharananda Avadhuta,[13] the doctrine of essentiality was put to test. The issue at hand was whether or not the performance of Tandava dance could be perceived as an essential practice of the Ananda Marga Faith. The court came up with a judgment far away from rigidity, where the court pointed out that the essentiality is based on whether the religion is substantially altered by the lack of that specific practice or not.[14] The formation of such a guideline rules out the possibility of ambiguity in terms of religious practices. This was a quintessential example of several practices being done under a particular faith or religion but not being an essential practice. The importance of the test is to draw a line so that the exemptions that are to be provided for essential practices are not taken advantage of by putting every practice in that category itself.

It was through these precedents that the Essentiality test in Religious Practices was established. It is noteworthy that had such a test not been there, several different acts with wide-ranging impacts, like social discrimination, could have been committed in the name of religion which would be unjust and unfair to the people of the country. More importantly, ostracization or ex-communication is not unregulated. Any such practice on that basis would be countered with constitutional safeguards and if they are deemed to be against the constitutional principles of the country, such practices will be struck down.

The contemporary relevance of the ERP doctrine and the recent debates

The Test of Essentiality asserts that an action recognized as essential should be crucial to implement to that particular religion, rather than just being mentioned in the religious texts or having been practiced for a long period. Furthermore, these essentiality standards must be designed in accordance with the constitution's individual rights as well as the peoples' rights to dignity, liberty, and equality. Over time, the courts have evolved a process for extensively deconstructing the practice in question and thereby coming at a discourse that should be applied.

Recently in 2017, the apex court in the case of Shayara Bano v the Union of India [15] the court held that the practice of triple talaq was in fact against the theology and the laws of Muslim ideologies. The court based its decision upon the analysis of the practice based on the Essential Religious Practice’s doctrine, and delved deeper into the perception of the practice. The court ruled that despite the prevalent use of the practice, the tradition is in fact is against the ideas of the Islam. The court rightly stepped in the situation and separated the rights of individuals from religion. It was a defining moment in the judiciary because it was a courageous, bold, unbiased, and one-of-a-kind ruling that struck the right balance between religion and the power of law.

The case of the Young Lawyers Association v the State of Kerala[16] in the year 2019, is a prime example of how the court demonstrates its power and the importance of taking into account the essential practice doctrine. The court in the case had to resolve the issue at the Sabarimala temple in Kerala, where women have been denied entry for centuries. The court in the case had to dig deeper into the question of what constitutes the essentials of this religion. And for this case, the court took into account the mythology of Lord Ayyappa, and it was then held that the “celibacy” vow of Ayyappa was the reason women were denied entry into the temple. The judges understood this was a method employed by the patriarchal society as an attempt to keep women insubordination. The intervention of the judiciary led to an equilibrium being maintained yet again between the fundamental rights of women and religious morality.

In a recent 2022 judgement of Reshma v the State of Karnataka,[17] the court had to examine the sources of the regulations for Muslims, and for legitimacy and dependability, the court relied on different surahs and verses of the Holy Quran, as well as Abdullah Yusuf Ali's Holy Quran: Text, Translation, and Commentary.  The Court stated that the Holy Quran does not require women to wear hijab and that it is only a recommendation because there is no punishment or penance for non-compliance. It is just a technique of getting into public areas and has no religious purpose. Following that, the Indian Young Lawyers Association's statement that for a religious activity to be necessary, it must be mandated in the religion and the court further examined the impact of religion of the social sphere. The new precedent the court has set is likely to be the foundation of future cases wherein a sense of uniformity can be ensured and the idea that the power of the law supersedes the power of religion can be promoted more widely.

Finally, some difficulties in the context of religious freedom jurisprudence are unavoidable owing to the diversity of our society, and there is no ideal doctrine to aid us in handling them. Essential Religious Practices, on the other hand, provide a more promising framework for controlling and managing religion-state relations. The doctrine has evolved and will continue to do so in the future, but courts have consistently tried to maintain it carefully, justly, and judiciously, taking into account and balancing the interests of all citizens as well as the interests of the religion at issue.

Analyzing the reliability and applicability of the doctrine

The advancing impact:

The Essentiality Test had been essential in establishing clarity and conduct of religious practices and ensuring a systematic approach to its applicability. The establishment of the ERP doctrine in the Shirur Mutt case was important to ensure that a system was set by the judiciary to keep checks and balances in the religious domain of the country. The Essentiality Test allowed for examining and basing religious practices on a uniform level. The test has also ensured that the inequalities in religious practices are removed as provided in the triple talaq case of Shayara Bano v Union of India[18] where the court used the Essentiality test on the unequal access that was provided in the name of religion. The same reasoning was also used in the case of Young Lawyers Association vs. the State of Kerala[19] wherein the court held the discrimination being done towards women accountable and allowed entry of women into the temple on the grounds of the practice being non-essential to the faith. These cases provided backing to the Fundamental Rights of Articles 14, 15, and 21 in ensuring equality, freedom from discrimination, and protection of personal liberty respectively.[20] The test has, therefore, provided multiple grounds to exercise its interpretative power to give a just decision in the matters of religion. Moreover, it ensures examination of the excessive power of religious denominations under Article 26 (b) of the Indian Constitution.

The Critique:

Upon a critical overview and judicial analysis, the doctrine needs ramifications concerning its applicability. As discussed in the case of the Young Lawyers Association vs. the State of Kerala[21], the ERP doctrine needed to be examined from the perspective of a larger bench. This becomes essential as with time the courts and judges have seemed to exercise the power of directly interpreting religions.[22] The judiciary does not have the expert ability to interpret the texts and principles of different religions making this aspect problematic. This compromises on maintaining the balance between the judiciary’s role of mere interpretation of the practices with a legal mindset. Another reason highlighted has been the inconsistency in the application of the doctrine as even in the Shirur Mutt case there were no concrete guidelines given making the application of doctrine altering with every case and decision.[23] The overarching discretionary power in the hands of judges can lead to irregularity in interpreting religions, especially in contemporary times.

In the Ismail Faruqui v Union of India [24] case the arbitrary and the rigid characteristics of this doctrine can be viewed. The Court went on to say that a mosque is not an "essential aspect of the practice of Islam," and that namaz can be performed anywhere, therefore "its acquisition (by the state) is not barred by the provisions of the Indian Constitution."[25] ERP is therefore irregular in its approach and hence isn’t a straitjacket formula that can be applied to all cases.

Conclusion

With an analysis of the contemporary debates on the Essentiality Test and the judicial overview of the cases, it is our opinion the ERP doctrine needs some suggestive and structural changes to make its application impactful. There is a need to ensure a larger bench while interpreting cases based on the Essentiality Test as it would allow for wider representation of the particular religion in question.[26] Another suggestive recommendation could be for courts to develop committees of scholars and experts that are well versed with the historical texts and understanding of the practices of religion to provide an analytical stance. Additionally, consistent application of laws in the ERP doctrine is crucial in maintaining a balance between the individual and community rights of the citizens. Therefore, even though the Essentiality Test has been useful in setting a structure in place for interpreting religious laws, it is necessary to review and reform this system in the contemporary setting.

[1] INDIA CONST.

[2] INDIA CONST. art. 25.

[3] Id.

[4] INDIA CONST. art. 26.

[5] Niharika Maurya, Essential Religious Practices Test: A Critical Analysis, 20 Supremo Amicus 382 (2020).

[6] The Commissioner, Hindu Religious Endowments, Madras vs. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

[7] Dixit, P.M., 2021. The Doctrine of Essential Religious Practice: How Essential It Is?. Available at SSRN 3885897.

[8] Id.

[9] The Commissioner, Hindu Religious Endowments, Madras vs. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

[10] Durgah Committee, Ajmer v Syed Hussain Ali, 1962 SCR (1) 383.

[11] Seshammal v State of Tamil Nadu, (1972) 2 SCC 11.

[12] Id.

[13] Commissioner Of Police v Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770.

[14] Id.

[15] Shayara Bano v Union of India, [2017] 9 SCC 1. 

[16] Indian Young Lawyer’s Association v. The State of Kerala, MANU/SC/1094/2018.

[17] Reshma v.State of Karnataka2022 LiveLaw (Kar)75.

[18] Supra Note 15. 

[19] Supra Note 16

[20] INDIA CONST.

[21] Supra Note 16.

[22] Nishad, A.K., 2022. Essential Religious Practice Test: A Critique. Supremo Amicus, 28, p.129.

[23] The Commissioner, Hindu Religious Endowments, Madras vs. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

[24] Ismail Faruqui v. Union of India, (1994) 6 SCC 360

[25] Niharika Maurya, Essential Religious Practices Test: A Critical Analysis, 20 Supremo Amicus 382 (2020)

[26] Deb, A., 2019. Religion v. Reform: Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test. Army Institute of Law Journal, 12.