Essential Religious Practices

Articles 25 and 26 guarantee religious freedom, but they don't define the *scope* of that freedom. The ERP doctrine exists to determine which specific religious practices deserve constitutional protection. Without it, *any* practice, no matter how trivial or harmful, could be claimed as essential and thus shielded from state regulation. The ERP provides a framework (though imperfect) for courts to distinguish between core religious tenets and practices that are merely incidental.

The biggest criticism is that it requires courts to act as theological arbiters, deciding what is 'essential' to a religion. This is seen as problematic for a secular state. Critics argue that judges lack the expertise to interpret religious texts and traditions, and that their decisions can be subjective and biased. Proponents argue that *some* mechanism is needed to prevent abuse of religious freedom, and that while imperfect, the ERP provides a necessary safeguard. They also point out that courts often rely on expert testimony and historical evidence when making these determinations.

The most common trap is to present a statement that implies religious freedom under Articles 25 and 26 is absolute and unrestricted. In reality, these articles are subject to public order, morality, health, and other provisions of Part III of the Constitution. Examiners will try to trick you into thinking that *any* religious practice is protected, regardless of its impact on society.

The ERP test focuses on whether a practice is *essential* to a religion. The anti-exclusion test, on the other hand, focuses on whether a religious practice *excludes* individuals or groups in a way that violates constitutional principles of equality, liberty, and dignity. Instead of asking whether a practice is theologically necessary, it asks whether its consequences are discriminatory or unjust. The anti-exclusion test prioritizes individual rights and social justice over religious tradition.

In the Sabarimala case (Indian Young Lawyers Association vs. State of Kerala), the Supreme Court lifted the ban on women of menstruating age entering the Sabarimala temple. The majority held that the ban was not an essential religious practice and violated the constitutional rights of women. Key arguments included the right to equality (Article 14), freedom from discrimination (Article 15), and freedom of religion (Article 25). Justice Indu Malhotra dissented, arguing that courts should not interfere with long-standing religious customs deemed essential by the community.

Students confuse them because both deal with limitations on religious freedom. However, 'reasonable restrictions' (mentioned in Articles 25 and 26) are general limitations applicable to *all* religious practices (e.g., public order, morality, health). The ERP doctrine is a *test* used to determine which practices *qualify* for protection *in the first place*. Reasonable restrictions then apply to those qualified practices.

Examples include: The ban on women of menstruating age entering the Sabarimala temple (Indian Young Lawyers Association vs. State of Kerala) - deemed not integral to the temple's core religious character. The Ananda Marga sect's claim that performing Tandava dance in public is an essential religious practice - rejected because it was not a fundamental tenet of the religion from its inception. The Supreme Court has generally taken a restrictive view, requiring practices to be foundational and integral to the religion since its origin.

Initially, as seen in the Sastri Yagnapurushadji case, the court delved deeply into religious texts to ascertain essential elements. Over time, the Court has become more cautious, recognizing the limitations of judicial inquiry into religious matters. There's been a shift towards considering whether a practice is fundamental to the religion's identity and has been consistently observed over a long period. Recent judgments, like in the Sabarimala case, also factor in constitutional principles of equality and non-discrimination.

Article 25(1) guarantees individual freedom of conscience and the right to freely profess, practice, and propagate religion, while Article 25(2) allows the State to make laws regulating or restricting economic, financial, political or other secular activity associated with religious practice and for social welfare and reform.

Several approaches could be considered: 1. Adopt the 'anti-exclusion test' as a primary criterion, focusing on the impact of religious practices on marginalized groups. 2. Establish a multi-disciplinary expert body (including religious scholars, legal experts, and social scientists) to advise courts on complex religious matters. 3. Promote greater public dialogue and awareness about religious freedom and its limitations. 4. Codify the ERP principles into law to provide greater clarity and predictability. Each approach has its own challenges and trade-offs, and the optimal solution may involve a combination of these strategies.

The core structural flaw is the inherent subjectivity in determining what constitutes an 'essential' religious practice. Critics argue that this determination is often based on the judges' own understanding and biases, rather than a genuine understanding of the religion itself. This leads to inconsistent application of the doctrine and a perception that the courts are overstepping their boundaries.

Article 25(2)(b) which refers to 'social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus' is frequently tested. The error arises because students often forget that this clause *specifically* mentions Hindu religious institutions, leading them to incorrectly assume it applies to all religions equally. Examiners exploit this by presenting scenarios involving non-Hindu religious institutions.