The judge-centric and purposive use of the Essential Religious Practices test must be checked
In the past two years, with a change in Government, the country has also witnessed significant judicial developments with regards to religious freedom. In July 2014, the Supreme Court in Vishwa lochan Madan vs Union of India held that Shariat courts and fatwas have no legal sanction and any attempt to force their implementation will attract penal action.
In February 2015, in Khursheed Ahmad Khan vs State of Uttar Pradesh, the apex court held that statutory rules, prescribing the termination of service on contracting a second marriage by a Muslim without dissolving the first one as valid. In Nikhil Soni vs Union of India, the Rajasthan High Court held that Santhara (fast till death in Jainism) was unconstitutional, but was stayed by the Supreme Court a month later.
In December 2015, the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam vs Govt of Tamil Nadu put to rest another legislative attempt by the Tamil Nadu Government which sought to permit any person, irrespective of the caste, from becoming a priest.
In March, the Punjab and Haryana High Court in Dilawar Singh vs State of Punjab held that Sikhs can appear in courts with kirpans. The Bombay High Court last month allowed the entry of women inside the Shani Shingnapur temple.
Meanwhile, the Supreme Court is hearing a public interest litigation seeking entry of women in the Sabarimala temple, Kerala. The Bombay High Court which is hearing a similar petition on the Haji Ali dargah has decided to wait for the Supreme Court’s verdict. Meanwhile, on April 26, the Kerala High Court granted permission to Muslim women wearinghijab to appear for the All India Pre-Medical Test.
All these cases effect four major religions in our country and solutions revolve around a judicially-crafted theorem - the Essential Religious Practices test. The test provides for constitutional protection to practices of a religion which are essentially religious and which can be primarily ascertained with reference to the doctrines of that religion itself.
The ERP concept can be traced back to the debates in the Constituent Assembly in December 1948, when while discussing religious freedom clauses, BR Ambedkar observed that ceremonials which are “essentially religious” can be protected by the Constitution. The Bombay High Court inState of Bombay vs Narasu Appa (1952) used this term for the first time which was also approved by the Supreme Court in a number of cases like lakshmindra Swamiar, Shirur Mutt, Ratilal (all 1954) authoritatively.
A major change came through Ram Prasad Seth vs State of Uttar Pradesh (1957) when the Allahabad High Court used the expression ‘essential part of the Hindu religion’ instead of ERP. The shift of interpretation from whether a practice is “essentially religious” to whether it is “essential to the religion” led to confusion. The difference between these two diametrically opposite tests is that while the former approves of practices only which are integrally religious in nature, the latter approves of all practices which can be proved to be necessary to the religion.
The Supreme Court in Hanif Quareshi vs State of Bihar (1958) adopted this major shift while holding that sacrifice of a cow on Eid al-Fitr was not an essential religious practice for the Muslims. The next shift in approach came in the Durgah Committee, Ajmer vs Syed Hussain Ali and others (1961) when Chief Justice PB Gajendragadkar ran the tests together to prove the distinction between religious and superstitious.
Justice Gajendragadkar in Tilkayat Shri Govindlalji Maharaj vs the State of Rajasthan and others (1964) went ahead from equating the two tests to separating them as distinct steps in one unified test. He held that ‘the court may have to enquire whether the practice in question is religious in character, and if it is, whether it can be regarded as essential to the religion’. The two step test was approved in Sastri Yagnapurushadji (1966).
The next few years triggered an era of whimsical ‘pick and choose’ use of doctrines. Notably in Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta (1984) and the Commissioner of Police and Others vs Acharya Jagdishwarananda (2004), the Supreme Court applied the ERP test to reject the claim of Anand Margis to perform tandava dance.
In between, in Ismail Faruqui vs Union of India (1994) it used the ‘essential to religion’ theory to hold that mosque was not an essential part of the practice of the religion of Islam and namaaz by Muslims could be offered anywhere. In N Adithyan vs Travancore Devaswom Board and Others (2002), the two-step test was used to hold that there was no evidence to show on record that only Brahmins were entitled to serve as priests.
Interestingly, the Constitution of India does not mention the term ERP: It grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the ‘essential practices’ of religion. The increased judge-centric use of tests recently proves the confusion. The time has come to check the selective and purposive use of the tests to check religious freedom. The Sabarimala case has given a ray of hope. Nevertheless, the tryst of religious freedoms in India continues.
(The writer is an advocate, Supreme Court)
