2.
The Essential Religious Practices Doctrine: Birth of a Judicial Tool
~ by Yajush Bhirthare
The Constitution of India guarantees religious freedom through Article 25 and 26, but it
doesn’t specify the scope of religious practices which fall under this religious freedom. To fill
this vacuum the Supreme Court of India invented the Doctrine of Essential Religious
Practices as a principle to protect those religious practices that are considered fundamental
and integral to a particular religion, and which practices are incidental, mutable, or even
inconsistent with the constitutional values.
This story of “Essential Religious Practices” begin with The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954). The
Supreme Court held that the term “religion” in Article 25 covers all the rituals and practices
“integral” to the faith, not mere beliefs. In practice, this meant that state regulations by no
means could not intrude into essential aspects of religious life, but by all means can regulate
the secular and ancillary matters. That word “integral” was the hook, suddenly judges had to
decide what was integral and what was dispensable. The entanglement of theology and law
was very much possible while taking such decisions.
After the Shirur Mutt judgement came the question of who decides the essential? The court
said, in effect, “we do”. That was the hinge, because once the judiciary opened that door
contradictions and occasional outright theological rulings came with it.
ERP Doctrine appeared in Durgah Committee, Ajmer v. Syed Hussain Ali (1961), where the
court held that practices which are “superstitious or extraneous accretions” couldn’t qualify
as essential. In Seshammal v. State of Tamil Nadu (1972), hereditary succession of temple
priests was held to be non-essential.
These cases illustrated two trends. First, how the court gave itself the power to decide on
theological disputes ordinarily left to religious authorities.
Technically, the ERP test is examining a practice through scripture, community
understanding, and history. If it’s “essential”, it’s protected. If not, too bad. There’s no clear
methodology, no checklist. Judges can cherry pick sources, one might emphasize on
scripture, another might stress on community practice. Sometimes both, sometimes neither.
This inconsistency has given birth to a peculiar arbitrariness.
By the late 1950s, ERP Doctrine had already been stretched to an unexpected extent. In
Mohd. Hanif Quareshi v. State of Bihar (1958), the court said “cow slaughter wasn’t essential
to Islam”, justifying bans on cow slaughter. In Ismail Faruqui v. Union of India (1994),
prayers at a mosque were said not to be essential, clearing the way for state acquisition of
Babri Masjid land. These rulings went far beyond “protecting freedom of religion”.
On the other hand Bijoe Emmanuel v. State of Kerala (1986), protected Jehovah’s Witness
kids who refused to sing the national anthem.
Over the period of time, ERP Doctrine became less about minor practices but more about
major ideological showdowns, Sabarimala, triple talaq, temple entry, hijab bans. Courts often
took the shortcut of calling the contested practice non-essential rather than weighing it over
other constitutional rights.
2.1 Problems with the Doctrine:
Being blunt, the central issue or problem is that judges are playing priests. They decide what
is religiously “essential”, even though the tasks belongs to believers and communities. This is
not just about competence but also about legitimacy. Judges are trained in law, not theology.
A judge declaring some religious practice “inessential” might make sense politically, but it
turns judges into arbiters of faith, which they are not meant to be.
The doctrine freezes religion. Religious practices evolve, but ERP treats them like stone
tablets. Something dismissed today as a peripheral practice of a religion might become
central to a community’s identity. That rigidity distorts the dynamic nature of traditions.
ERP Doctrine in some cases can erode religious autonomy under Article 26. The provision
was supposed to let denominations manage their own affairs. Instead, now the state (via
courts) tells them what counts as “own affairs” in the first place.
2.2 Conclusion
The Essential Religious Practices doctrine started as a guardrail but has turned into a steering
wheel, often swerving courts into theological lanes they don’t belong in. It’s messy,
incoherent, sometimes useful, sometimes harmful. But above all, it has outlived its charm as a
constitutional device. If we want religious freedom to actually mean freedom, courts need to
put down the role of priest and pick up the role of constitutional umpire. Anything less is just
theology in legal robes.
REFERENCES
1. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282.
2. Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402.
3. Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11.
4. Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
5. Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
6. Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.
7. Shayara Bano v. Union of India, (2017) 9 SCC 1.
8. Aishat Shifa v. State of Karnataka, (2022) 4 SCC 1.
9. Ronojoy Sen, Articles of Faith: Religion, Secularism, and the Indian Supreme Court
(2010).