20 Sep The Doctrine of Essential Religious Practices: Evolution and challenges

The Doctrine of Essential Religious Practices: Evolution and Challenges

The topic is based on the Indian Constitution. The article tells how the doctrine of essential religious practices has brought the political revolution and what will be the challenges of the doctrine.

Context

The Supreme Court is hearing appeals against the Karnataka High Court verdict in the case of Fathima Bushra vs State of Karnataka which effectively upheld the ban on wearing hijab in government schools and colleges. The Karnataka High Court had upheld Government Order pertaining to uniforms which indirectly led to a ban on wearing hijab. Supreme Court Judge Justice Sudhanshu Dhulia orally remarked in the hearing that the Karnataka High Court should not have gone into the question of essential religious practice. 

The Karnataka HC ruling

• Wearing of Hijab does not form part of essential religious practice in Islam. Hence, the Right to Freedom of Religion under Articles 25-28 of the Constitution is not violated by the ban.
• Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and therefore weaker.
• Classrooms are “qualified public spaces” where individual rights must give way to the interest of general discipline and decorum.
• Ban is not targeting any particular religion as the Government’s order only directed students to wear the uniforms prescribed by their educational institutions.
• The object of prescribing uniforms will be defeated if there is non-uniformity in the  matter of uniforms

Pic: Essential Religious Practices

The evolution of the doctrine of Essential Religious Practices (ERP)

• The doctrine of ERP determines which religious practices would be protected under Articles 25 and 26 of the Constitution.

Article 25 which guarantees the Right to Religion does not prescribe what is protected by it; the courts, over the years, have developed the doctrine of “essential religious practices” to determine which religious practices would be protected under the Constitution. For this purpose, they either rely on religious texts or whether the practice which is under challenge existed when the religion originated.

• Dr. B.R Ambedkar’s speech in the Constituent Assembly

The beginning of the doctrine traces its origin to a speech made by Dr. B.R Ambedkar in the Constituent Assembly where he argued that the definition of religion should be restricted to those beliefs and rituals relating to ceremonies that are essentially religious. The State should be allowed to intervene in matters that touch upon religion or are connected with it but are not intrinsically religious. Such an approach helped to differentiate between what was secular from what was religious.

• State Of Bombay vs Narasu Appa Mali, 1951

 The earlier position was such that Courts refrained from interfering in the question of religious practices. In the Narasu Appa case, the court held personal law, religious customs, usages, and beliefs to be outside of the ambit of fundamental rights of equality, life, and dignity. The judgment made personal law immune from constitutional scrutiny. This position was later changed by the Shirur Mutt case though the Narasu judgment was not explicitly overruled.

• Shri Shirur Mutt Case, 1954

A seven-judge bench of the Supreme Court held that the term “religion” will cover all rituals and practices “integral” to a religion. Article 25(2)(a) allows regulation of the economic, political, or commercial activities which are associated with religious practices. But the responsibility of determining what constitutes integral religious practices was left to the Courts. This was decided based on what practices were considered essential or crucial by religious denominations.

• Ram Prasad Seth vs State Of U.P. And Ors, 1957

The Allahabad High Court ruled bigamy cannot be considered an integral part of the Hindu religion, and hence not an essential religious practice of Hinduism.

• Mohd. Hanif Quarashi & Others vs The State Of Bihar, 1958

The apex court held that the sacrifice of a cow on the occasion of Eid was not an essential religious practice for Muslims.

• Sri Venkataramana Devaru v. State of Mysore, 1958

The court held that the exclusion of some people outside Hindu temples was not an essential religious practice and held the temple in question was to be opened for all Hindus

• Dr. M. Ismail Faruqui Etc, Mohd. v Union Of India And Others, 1994

The court decided on the question of whether praying at the mosque is an essential Islamic practice and held that while offering prayers is an essential practice, the offering of such prayers at the mosque is not and namaz (prayer) by Muslims can be offered anywhere.

• Commissioner of Police v. Acharya Jagadisharananda Avadhuta, 2004

The court applied the doctrine to decide that the Tandava Dance was not an essential religious practice of the Ananda Marga Faith. The dance was not performed till 10 years after the establishment of the Anand Marga faith and hence could not be held to be essential practice. Court further observed that in order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself fundamentally alters the religion.  

• Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra And Ors, 2016

The Bombay High Court permitted women to enter the sanctum sanctorum of the Haji Ali Dargah. The court stated that the exclusion of women from dargahs was not an essential feature of Islam.

• Shayara Bano v Union of India, 2017 (Triple Talaq case)

The Supreme Court rejected the argument that Triple Talaq was an essential practice under Islam. Court refused to give it Constitutional protection under Article 25. It further held that a practice that is merely permitted or not prohibited by religion cannot be termed an essential practice. In the instant case, triple talaq was held to be against the basic tenets of the Quran and thus violative of the Shariat. 

• Indian Young Lawyers’ Association v State of Kerala, 2017 (Sabarimala Case)

Sabarimala case rejected the claim of ‘Ayyappans’ (pilgrims) that the exclusion of women between the age of 10 and 50 from entering the temple constituted an essential practice and allowed all Women from entering the temple. Justice Chandrachud criticized the Narasu Appa judgment stating. “Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature,” and  “the immunity given to personal law customs deviates from the vision of the social transformation of the Constitution”

Issues with the test of essential religious practices(ELP)

• Courts have assumed grave power to decide whether a practice that was religious in nature was also“essential” to that religion. It is alleged in doing so, courts become “ecclesiastical authorities” which was never intended.
• Courts infringe on the autonomy of religious groups to decide what they consider inviolate. This leads to the erosion of Freedom of religion.
• It also prevents social reforms which happen organically in society as once a court holds a practice as essential to the religion, no law can be passed to change it regardless of the fact if it is against social reforms. For example, the Court held ex-communications made by the Dai of the Dawoodi Bohra community as part of essential religious practice. 
• Justice Indu Malhotra, in the dissenting opinion in the Sabarimala case, raised concerns about this. She was of the view that it is not for courts to determine which religious practices are to be struck down. She stated that “Notions of rationality cannot be invoked in matters of religion,” adding: “What constitutes essential religious practice is for the religious community to decide, not for the court” and “Present judgment won’t be limited to Sabarimala, it will have wide ramifications. Issues of deep religious sentiments shouldn’t be ordinarily interfered into.”

Way Forward

There is no clarity in the Constitution regarding what forms part of essential religious practices and the Courts have become the sole authority to decide on this question. Lack of certainty leads to chaos many times. A nine-judge bench will soon re-evaluate the “essential religious practice test” in the review petitions filed against the judgment in the Sabarimala case. It is hoped that the judgment will give some clarity on the doctrine and its interplay with Article 13 and the Right to Freedom of Religion.

Sources

• The Hindu   (The hijab case and the essential practices doctrine)
• SCO   (Supreme Court Observer)
• The Print (What is an ‘essential religious practice’, and why hijab didn’t make the cut for Karnataka HC)
• The Indian Express (Sabarimala verdict: Here’s what Justice Indu Malhotra said in her dissenting opinion)
• Live Law (Hijab Case – Karnataka High Court Should Not Have Gone Into Essential Religious Practice Test: Justice Sudhanshu Dhulia)

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saumya khedwal