Ananaya Agrawal

This article critically analyses the contradictory origins and application of the essential religious practices doctrine vis-a-vis Hinduism and argues for a more contextualised and sensitive understanding of the issues surrounding it, so as to uphold religious freedom and harmonise the same with India’s constitutional commitment to individual rights.

Introduction: The Wide Ambit of ERP

Under the Indian Constitution, Articles 25 and 26 primarily decide the grounds for claiming protection of religious beliefs, the extent of permissible state intervention and overriding exceptions to the right to freedom of religion. The Essential Religious Practices (‘ERP’) test, which holds that Articles 25 and 26 only protects religious practices that are essential or integral to the religion, has developed from the courts’ interpretation of the distinction between secular and religious activities arising from Article 25(2)(a).

Although the test is generally traced back to Justice Mukherjea’s judgment in Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math, it often escapes scrutiny that the court in Shirur Math had actually rejected the Attorney-General’s contention that all secular activities which may associated with religion but do not form an essential part of it would be amenable to regulation by the State. Rather, it was unequivocal in holding that the distinction between secular and religious “cannot be formulated in such broad terms” as construed by the Attorney General, and arguably constituted an initial rejection of the ERP test. The same is placed in more definite terms if we read it along with the court’s ruling that essential parts of a religion are to be ascertained from the doctrines of the religion itself and that a religious denomination enjoys complete autonomy in deciding what rites and ceremonies are essential as per their religious tenets with no outside authority having any jurisdiction to interfere in such matters.

Notably, the same understanding was reiterated by Justice Mukherjea in Ratilal Panachand Gandhi v State of Bombay:

“Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines … No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”

Thus, in both Shirur Math and Ratilal Justice Mukherjea rejects the premise of judicially determined essentiality of religious practices. The context of this formulation as being in response to the Attorney-General’s contention has primarily been forgotten and, over time, the holding in Shirur Math has been refined to the present formulation creating two categories within the sphere of religious practices: first, requiring that the religious belief or practice sought to be protected be separated from secular matters as per Article 25(2)(a), and second, that it then further be established as essential and integral to the religion as per the ERP test. Furthermore, in contrast to Justice Mukherjea’s original holding, it presently is also not sufficient that the believers genuinely consider a practice as essential to the religion, rather essentiality is understood a question of fact to be decided by the courts after scrutinising materials such as religious texts, tenets of the religion, historical context, continuity of the practice and other evidence.

Many argue that the underlying cause for the court arrogating such extensive powers of theological interpretation to itself was to prevent a complete surrender to religious aspirations in the public sphere that would serve as a legal impediment to long-drawn struggles for social reform as well as other norms of a liberal constitution such as equality, dignity, individual liberty, etc. This is also evident from Justice Gajendragadkar’s observations on the need of the ERP test in Durgah Committee to exclude superstitions and unessential practices from the scope of constitutional protection, which arguably was the initial conceptualisation of the doctrine in its present form and a deviation from the Shirur Math ruling.

This article shall argue that despite the benign intentions of advancing constitutional values, the ERP today, in many ways, manifests as a mostly inadequate and sometimes even antithetical test for the protection of religious freedom.

Treating Religion as Capable of Judicial Interpretation

The ERP test’s suitability for determining the contours of religious freedom is suspect for many reasons, one of the most important being that the judiciary as an institution is prima facie unsuited for deciding on matters of theology as it lacks the training, interdisciplinary knowledge and time to contextualise the epistemic nuances of religious beliefs and practices from within the religion itself. As Dhavan and Nariman argue, since judges are not religious leaders qualified to interpret faith, it is paradoxical to arrogate such vast authority such as the power to unilaterally strike down tenets of a religious belief, that is beyond the reach of most religious priests, to constitutional courts under provisions which are fundamentally meant to protect religious freedom.

Many decisions on essentiality use religious manuscripts that do not function like modern legal texts such as ordinary statutes or even the Constitution. For instance, Hindu religious texts are known for multitudes of amendments, interpolations and contextual refinements from time to time. These modifications are very rarely cited as such and are in fact attributed back to the original author of the text due to the religion’s concept of a “unified whole”. This is true even for a primary canonical text like the Rig Veda; tracing its chronological history and interrelationships between the epochs of its ten mandalas forms the task of an entire discipline in itself. Compare the same with judicial texts, amendments to which are precisely noted with date and authorship, and interpreted with knowledge of such contextualisation. It is thus possible to understand and treat judicial texts as “set in stone” with requisite precedent value because we are aware of the particular worldview they existed within. The same is not always possible with religious texts, which exist in multiple versions and function on various planes of life.

Furthermore, unlike legal texts (Constitution, statutes, delegated legislation),  religious texts in Hinduism do not have a institutionally sanctioned universal hierarchy. Some are more broadly accepted in all aspects of religious belief, such as the Vedas and Upanishads (śruti); others are more contextual and assume significance in particular matters such as the smṛtis or codes of law, the itihāsas or historical epics, the purāṇas or chronicles, the āgamas or manuals of worship and the darśanas or schools of philosophy. Works of saints and scholars like Ramakrishna, Aurobindo and Vivekananda (who are frequently cited in court decisions applying the ERP test) are part of an internal churning within Hinduism and do not claim to be the final interpretative authority on the religion, much less any presumed core of the religion.

The court often resorts to the śrutis or works of saints in order to understand Hindu religion and decide matters of essentiality for cases regarding the protection of local or popular practices, beliefs relating to temple administration, and denominational status of sects (sampradayas). The context of all these types of cases is however very particular and resorting to more dominant scriptures over local texts and practices in such situations imposes upon the religion textual and temporal rigidity in contexts where it was never meant to possess the same.

Indeterminate Core of Religion

In both Commissioner of Police v Acharya Jagadishwarananda Avadhuta and Haji Ali Dargah Trust v Noorjehan Safia Niaz, the court sought to determine whether a religious practice in question forms part of the religion’s core or whether it is merely a peripheral custom or superstition. However, there is no defined jurisprudence on what constitutes core of a religion and what is extraneous. In fact, on multiple occasions the court has struggled to define Hinduism itself. In the Sastri Yagnapurushadji v Muldas Brudardas Vaishya, Justice Gajendragadkar illustrated this difficulty:

“When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.”

Later in Commissioner of Wealth Tax, Madras v R Sridharan as well, the court remarked:

“It is a matter of common knowledge that Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term ‘Hindu’ with precision.”

It is worth asking, when there is no fixed definition for Hinduism by the courts, how can there then be a core, legitimately determined within this floating view of the religion, as ‘nothing more than a way of life’? There is no attempt within Hindu philosophy or practice itself to permanently determine its core nor does Article 25 of the Constitution read as the right to “freely to profess, practise and propagate the essentials of religion”.

In this regard, Lon Fuller’s critique to HLA Hart’s Open Texture is especially becoming, wherein Fuller points out that a core of certainty does not exist in abstract, but is a judicially determined understanding of ‘what it ought to be’ by looking at its overarching purpose. By treating religious doctrines and practice akin to legal texts which can be reduced to their purposive core understanding, the court risks contradicting itself when it applies the ERP test as per the overarching purpose of the state’s official laws.

Foisting an Etic Framework

Unlike Shirur Math’s original formulation, today the framework for determining this core of essentiality is secular and liberal, rather than being rooted in the theology of the religion itself. Religions such as Hinduism do not have the ecclesiastical construct of demarcating realms for the religion and state and therefore when the court seeks to differentiate the ‘secular’ activities associated with religion but not essential to it, it incorrectly assumes that there is an idea of a dichotomous secular existing within the religion’s philosophy itself.

Thus, in Shri Jagannath Temple Puri Management Committee v Chintamani Khuntia the apex court separated the ritual of offering (daan) from the act of collecting such offering and upheld laws mandating the installation of collection boxes or hundis in temples while simultaneously ruling that temple attendants or sevaks have no share in such collections. It has also held the sevaks to be employees of the government subject to its disciplinary power and regulations for remuneration, by drawing the conclusion that temple management is a secular act. In both cases, the court has glossed over the primary religious and spiritual purposes of rendering seva or daan for the benefit of the deity and the temple, and the fact that there is no emic understanding of a religious and non-religious or secular dichotomy with respect to temple management or prayer.

Justice Ramaswamy in AS Narayana Deekshitulu v State of Andhra Pradesh had observed:

“Temple has become the most important center of activities – religious, cultural and social among the people, in particular rural India…Obviously, therefore, religious people endow their property for upkeep of temples or propagation of religion.”

Yet, in the same judgment, Justice Ramaswamy attempted to reach to a ‘higher’ or ‘core’ understanding of the Hindu religion by equating it to the concept of dharma. He thus held dharma rather than conventional religion to be protected by the Constitution under Articles 25 and 26. Yet, this very understanding of dharma and its purpose is particularised in terms of the Constitution:

“Dharma is that which approves oneself or good consciousness or springs from due deliberation for one’s own happiness and also for welfare of all beings free from fear, desire, cherishing good feelings and sense of brotherhood, unity and friendship for integration of Bharat. This is the core religion which the Constitution accords protection.”

While Justice Ramaswamy finds congruence between the ‘secularization’ of religion and the fundamental right to religious freedom, it can surely be no one’s argument that this definition of religion and religious freedom is understood as complete to the exclusion of all other characteristics by the religion itself.

Such judicial reinterpretation of the religious doctrines legitimises certain religious practices as constituting ‘pure’ or ‘true’ religion while subordinating the others as ‘superstitious’ or ‘regressive’. It marginalizes flexibility and pluralism within religion, and limits religious freedom to protection of an abstract, fossilized core over the lived experiences of people. The court is then acting as a gatekeeper to what qualifies as valid religious belief and, in doing so, it is implicitly assuming that it will always be more progressive than the religious community.

In spite of its noble aims, this etic framework actually denies protection of religious beliefs to minority sects which have coexisted with more dominant understandings of Hinduism for hundreds of years. The most recent example comes from Justices Nariman and Chandrachud’s dissent in the order regarding the Sabarimala review petitions where they noted that the essentiality of Sabarimala temple’s practice of excluding menstruating women needs to be examined by inquiring “whether such practice is an essential practice relatable to the Hindu religion, and not the practice of one particular temple.” As such this demand treats religion as a monolithic structure and completely ignores Hinduism’s understanding of different manifestations of the divine, which extends not only to the prevalence of various gods but also to the various forms of the same god who may be worshipped differently in different temples as a child, as a married person, as a menstruating woman or, as was the issue in Sabarimala, as a celibate. In such cases, the temple itself may have a particular form of worship stemming from its distinctive history which may not be followed by larger group of the community’s temples, but the ERP test would require it to conform to the popular practice or alternatively prove that its devotees constitute a separate religious denomination under Article 26, which arguably is another thorny path.

Conclusion

In a Westphalian democratic setup, the judiciary’s mandate is one of rationalising religion in context of the Constitution and not vice-versa. Thus, in carving out the essential core of a religion, the court has included only those norms that align with the overarching norms of the state. In doing so, it has ventured to the extent of dictating a religious community as to its main religious beliefs and/or the genuineness of its faith and used the ERP test to push open the door for greater state control over religious endowments and trusts as well as permitted constitutional courts to become the foreground for adjudicating between religious tensions.

The test’s application is no longer limited to social reform and extends to other everyday aspects of people’s lives, such as the functioning of temples and protection of local beliefs. To an extent, these ramifications have also been recognised by the Supreme Court in their order on the Sabarimala review petitions which noted the contradicting observations of Justice Mukherjea in Shirur Math and Justice Gajendragadkar in Durgah Committee and referred the scope of the ERP test for reconsideration by a larger bench. As we await the court’s decision on this matter, it is hoped that the ERP test is gradually relegated to the backstage and a more contextual balancing within Part III emerges. This will uphold religious freedom and pluralism as well as afford internal evolution of religion.

Ananaya Agrawal is a current undergraduate student at the National Law University (NLU), Delhi.