“It is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future.”
– Justice D.Y. Chandrachud
Introduction
The Essential Religious Practices test (hereinafter ‘the ERP Test’) has been deliberated upon strongly in Indian Jurisprudence through recent landmark judgments including the Karnataka Hijab Case, the Sabrimala Temple Case, and the Triple Talaq Case. The ERP test finds its origin in a speech given by Dr B.R Ambedkar in the Constituent Assembly regarding how Article 25 of the Constitution was to be interpreted. He acknowledged that in India, religion and its practices regulate almost every aspect of life, however, there should be limitations on such influence and these religious practices should be able to withstand the test of Constitutional Morality in order to continue.[1] However, the interpretation and usage of this test has evolved considerably throughout the years and has brought along with it a plethora of problems which pose a threat to Indian secularism and unity.
Interpretation by the Courts
The ERP test places a huge onus on the judiciary to decide whether a practice is essential/sufficiently important to a religion or not.
This test, which was created to distinguish between practices that were essentially religious and those that were not, evolved in such a manner that it began to distinguish between practices that were essential to the religion and those that were not. To put it simply, the test was not meant to distinguish between practices that were essential to a particular religion or not. It was meant to differentiate between practices that were in essence religious, and those that were secular. The protection provided under this test was not meant to be extended to practices that were declared non-religious, i.e., secular in nature. Instead, they are not being extended to practices that are religious but have been deemed insufficiently important in comparison to other practices. It poses a serious question as to whether deeming a practice as non-essential is an extraordinary overreach of the Judiciary’s powers.
Articles 25 and 26 guarantee constitutional protection in matters related to one’s doctrines, beliefs, and acts which form an integral practice of a religion. The ERP test applies to essential practices that are integral to a religion and taking away such practice should potentially change the fundamental characteristics of the religion. These practices are determined based on the historical backgrounds, principles, doctrines, and other essential religious practices.[2]
The use of this test demonstrates a high level of judicial involvement in religious affairs. In India, secularism is seen as a fundamental feature of our society. It has been described by Rajeev Bhargava, a political theorist, as a model of ‘principled distance’, which permits state intervention in religious affairs only if it remains neutral and follows the principles of constitutional morality.[3] A strict separation of the state from religion will result in rampant misuse of religion to continue with unconstitutional practices. The enjoyment of one’s religious rights does not allow them the liberty to violate another person’s fundamental rights.
The western model of secularism, especially that of the US, wishes for the state to remain detached from religion, so much so that it believes in total non-interference. Indian secularism, however, wishes to maintain a positive relation with religion, not being biased to any one religion. It is impossible for the state to maintain religion as differentiated from societal life, hence there is a need to bridge the gap between the two extremes of religious intervention and secularism.[4] By deeming a religious practice as non-essential, the courts may harbor distrust and hostility from that community. The restriction on expression of religious sentiments and forms of practices, subject to public order, morality and health, goes against the ideals of secularism enshrined in our constitution and the courts should take cognizance of the same.
The Use of ERP Test by Indian Judiciary
This test was first used in 1954 in the case of the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt[5] wherein, the Court emphasized the importance of religious doctrines in order to ascertain what constitutes as an essential religious practice. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay,[6] the Court emphasized that the Essential Religious Practices are to be determined according to the texts and tenets of the religion.
The transformation of the test from dealing with ‘essentially religious’ to ‘essential to religion’ can be traced through three cases. The first being that of Venkatramana Devaru,[7] where the Court asserted the importance of the courts in determining what essential practices were, contrary to the principle laid down in Shirur Mutt case. In Mohd Qureshi v. State of Bihar,[8] the distinction between ‘essentially religious’ and ‘essential to religion’ becomes clearer. The petitioners claimed that an anti-cattle slaughter law infringed their right to freedom of religion. The Court opined that “it does not appear to be obligatory that a person must sacrifice a cow” and that “the very fact of an option seems to run counter to the notion of an obligatory duty.” The final step was the Durgah Committee case[9] wherein the Court reiterated the interpretation of the test laid down in the Mohd. Qureshi case.
The Supreme Court also rejected the claim of the ‘Ayyappans’ in the famous Sabrimala case by allowing women between the age of 10 and 50 to enter the Sabrimala Temple.[10] However, a review petition has been filed and this case, coupled with cases such as entry of women to mosques and Female Genital Mutilation in Dawoodi Community, are pending before the Supreme Court.
Hijab Ban Hearing – Case Analysis
Certain discrepancies were observed when the Karnataka HC applied the ERP test in the Hijab Ban Judgment. The application of the ERP test led the Bench to focus on determining whether the hijab was an essential practice of Islam, rather than directly considering the constitutionality of the practices based on the fundamental rights of freedom of speech and expression as well as equality.
The importance given to proving the essentiality of hijab in Islam was observed in the arguments presented by the petitioners as well. The petitioner’s counsel focused on how various hadiths promulgated that wearing a hijab was mandatory for women rather than it being a choice, giving an impression of those wearing the hijab to have done so under the influence of the existing patriarchal norms. This completely negated the aspect of wearing a hijab by choice and the varying sentimental values attached to it such as a sense of belonging or identity or simply to connect with one’s family. The petitioners also did not bring to the court’s notice, the issue of denial of education to women because of exercising their individual agency by wearing a hijab as well as the religious bias the students may have to face. Due to the nature of the arguments presented, it was natural for the judges to engage on these terms, where the ban on hijab sounded more reasonable and liberating for those who wear it. The plethora of reasons for which one may wear a hijab had been reduced to a mandatory obligation prescribed by the hadiths, which are not binding in nature under Muslim personal law and hold only persuasive value.[11]
The hijab, a headdress commonly worn by Muslim women, has been given a religious dimension and hence been brought under the purview of the courts to decide its legality. The test curtails individual agency rather than protecting religious practices. The rejection of the petitioner’s claim is a testament to the damage that has been dealt by the test, where fundamental constitutional provisions such as freedom of speech and expression could have been applied. A better line of argumentation could have been that wearing a hijab is an aspect of individual expression, whether the motive behind it be religious or otherwise, hence protecting them under the right to free speech and privacy. A claim of this kind would be subject to the principles of reasonable accommodation, which would have posed the question as to what aspect of the hijab would hamper education in public schools or colleges. Rejecting the ERP test for a test of this kind would allow the courts to protect the individual agency and choice of the claimants.
Critical Analysis
The ERP test has often been criticized for its arbitrary judge centric approach and inconsistent nature.[12] This test poses a serious question before the Indian courts. If a religious practice was to be found essential, would it also be outside the purview of law as something essential is inviolable, no matter how constitutionally immoral it may be. Recently in 2017, the Apex Court receded the constitutional validity of Triple Talaq on the basis of it not being as essential religious practice of Islam rather than rejecting it on the grounds of violating the right to equality of Muslim women. [13]
The subjectivity of opinions, in these matters, narrows the religious freedom guaranteed by the constitution. Justice D. Y. Chandrachud, in Indian Young Lawyers’ Association v State of Kerala, observed that “these compulsions, nonetheless, have led the Court to don a theological mantle.” He further opined that Judges lack the required competence and legitimacy to decide whether a practice is essential to a religion.
Courts need to interpret the religious texts subjected to facts and circumstances of any given case rather than deciding on the practices directly on the rationale of constitutionality. This narrows the scope of the Court down to the religious grounds. In 2016, the High Court of Bombay ruled that women were allowed to enter the Haji Ali Dargah on the basis that the Dargah’s Trust had failed to provide any evidence that the exclusion of women from dargahs was an essential to Islam. In 2004, the Apex Court applied the ERP test in order to determine whether the Tandava dance was an essential rite of the Ananda Marga Faith.[14]
Justice Indu Malhotra, in her dissenting opinion observed that “Notions of rationality cannot be invoked in matters of religion.” She emphasized that the Court should not ordinarily interfere in matters of religious sentiments except in cases of aggrieved sections of a religion because of social evils like Sati. This further raised the dialectical dichotomy between tenets of religion and constitutional mechanics. Even though having a dissenting opinion, the notions, raised by Justice Indu Malhotra, received widespread validation in the mindset of general public and academicians.
Respecting the autonomy of a religious community in deciding an Essential Religious Practice is imperative owing to the vast religious diversity in India. Further, notions of rationality should not be extensively applied in cases of religious practices because of constitutional morality.
Conclusion
The ERP test has received a lot of criticism in the recent past due to its arbitrary nature. Having gone through multiple interpretations, the test seems to have lost track of its initial objective. Other than that, it places a huge burden on the judges as they assume powers to decide whether a practice is essential to a religion or not, which may result in certain sects feeling alienated as a religious practice may have multiple sentiments and interpretations attached to them. The need is for the judiciary to evolve a new test for weeding out religious practices which go against constitutional morality. This new test, instead of deeming a practice non-essential, should declare practices unconstitutional on the grounds of violating fundamental constitutional provisions. The Court seems determined to tackle the problems created by this test in the upcoming appeal to the Sabarimala case. As for the issue of banning hijab, an appeal has been made to the supreme Court and it is yet to be seen what the Apex Court’s stance will be on the subject matter and the applicability of the test in the future.
[1] Constituent Assembly Debates, Vol. ii 781, Thursday, 2nd December 1948, available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C02121948.html.
[2] Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, (2004) 12 SCC 808.
[3] Bhargava, Rajeev (2013). Secular States and Religious Diversity. Vancouver: UBC Press. p. 84. ISBN 978-0-7748-2514-6.
[4] PURI, B. N. “Secularism – Western and Eastern – A Study.” World Affairs: The Journal of International Issues, vol. 1, 1990, pp. 109–11, http://www.jstor.org/stable/45083447.
[5] Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt 1954 SCR 1005.
[6] Sardar Syedna Taher Saifuddin Saheb v. the State of Bombay, AIR 1962 SC 853.
[7] Sri Venkataramana Devaruand v. The State of Mysore, 1958 SCR 895.
[8] Mohd. Hanif Quareshi & Others v. The State of Bihar, 1959 SCR 629.
[9] The Durgah Committee, Ajmer v. Syed Hussain Ali and Others, (1962) 1 SCR 383.
[10] Indian Young Lawyers Association & Ors. v. The State of Kerela & Ors., 2018 SCC OnLine SC 1690.
[11] Paras Nath Singh, Ban on hijab flies in the face of legal precedents, The Leaflet, available at https://theleaflet.in/ban-on-hijab-flies-in-the-face-of-legal-precedents/.
[12] Anubhav Raj Shekhar, Essential Religious Practices: The Supreme Court needs to urgently reconsider its jurisprudence on religious freedom, Bar and Bench, available at https://www.barandbench.com/columns/the-supreme-court-urgently-reconsider-jurisprudence-religious-freedom.
[13] Shayara Bano v. Union of India, (2017) 9 SCC 1.
[14] Acharya Jagdishwaranand Avadhuta and Ors v. Commissioner of Police, (1983) 4 SCC 522.
This article has been authored by Pranav Sharma, Junior Editor, and Jugaad Singh, Online Content Editor at RSRR. This blog is a part of the RSRR Editor’s Column Series.