THEME:

TRANSFORMATIVE CONSTITUTIONALISM IN INDIA :

REFLECTIONS ON SHIFTING PARADIGMS
SUB-THEME:
ROLE OF JUDICIARY VIS-À-VIS TRANSFORMATIVE
CONSTITUTIONALISM
TITLE:
TRANSFORMATIVE CONSTITUTIONALISM AND THE
JUDICIAL ROLE: CREATING AN EQULLIBRIUM OF
RELIGIOUS FREEDOM WITH SOCIAL REFORM

NAME OF THE AUTHORS: BIPIN K R

N NANDITA DAS

NAME OF THE

INSTITUTION : KLE SOCIETY’S LAW COLLEGE, BANGALORE

E-MAIL ADDRESS : BIPIN: [email protected]

NANDITA: [email protected]

CONTACT NUMBER : BIPIN: 8075206153

NANDITA: 9483969301

POSTAL ADDRESS :

BIPIN: KOCHUTHUNDIL HOUSE, KANDALLOOR

PATTOLIMARKET PO, ALLEPPEY-690531

NANDITA: E1, AIR STAFF QUARTERS, 7TH CROSS,

5TH MAIN, RMV 2ND STAGE, DOLLARS COLONY,
BANGALORE-560094
 ABSTRACT

The significance and importance of the Constitution are vast. Constitutions are stricto sensu,
documents that contain provisions governing the interrelationship of the various organs of the
state, and provide for checks to intercept abuse of power by them. Nevertheless, the
importance of a constitution is much more than just that. A constitution is a living organic
document embodying the will of the people. Drafting of a Constitution is usually a
Constitutional drafting is often a milestone moment in the history of a nation, predominantly
for a country having a history of being colonized. The constitution in such countries contain
not just restraints on state power, but also provisions that ‘echo the aspirations of the nation’
to bring about a transformation in the order of things as they exist.

The India Constitution originated from the same historical background and is considered a
transformative document. The judiciary has been given the power to create law by
interpreting the constitutional provisions. In recent years, the judiciary in India has come
under attack by many scholars for ‘over-reaching’ or playing an ‘activist’ role. However,
such a criticism proceeds on the assumption that there is a ‘proper role’ of the judiciary which
it has overreached. The proper role of the judiciary in modern times have been a question
with which the scholars have been struggling, while the state itself has transformed from a
police state to a welfare socialist state displaying transformative constitutionalism. We in this
paper focuses on the judicial behaviour in India with respect to religious questions and how
the court has tried to balance religious freedom with the constitutional aspiration of social
reform, that has in effect, led to the dilution of secularism in India due to an interventionist
judiciary which is much beyond the constitutionally permitted limits of intervention.
INTRODUCTION:

Constitution and Constitutionalism have been defined in numerous possibilities and thus it is
taken and adopted by people in different sense. It gets constituted by labours of some people
and processes which gives legality and social legitimating of the labours as stated by social
theorists. As said by eminent scholar Upendra Bakshi, “the imagery of constitution/
constitutionalism varies from the perspective of those who rule and those who are ruled and
of the epistemic communities which develop empirical and normative theories/ images of
constitutions. Also he makes a distinction between three interactive meanings of constitutions
as texts, constitutional law, and theory/ideology.

Constitutionalism is commonly understood as legal restraints on the exercise of power

political authority. The idea puts a limit on the state action thus adherence with the
constitution, becomes a guiding and assisting principle. A constitution, apart from giving
down the interrelationship between the state organs and their scope and powers. It
incorporates the supremes and urge and the values to which the people have committed
themselves. It shows the soul of the nation and the people’s supreme will. Therefore, called
an organic document that helps in moulding democracy1.
Constitution and constitutionalism are different concepts therefore it is not a necessity that a
country having constitution should have constitutionalism as well. The famous scholar
Upendra Bhakshi defined that;
“Constitutionalism, most generally understood, provides for structures, forms, and
apparatuses of governance and modes of legitimation of power. But constitutionalism is not
all about governance; it also provides contested sites for ideas and practices concerning
justice, rights, development, and individual associational autonomy. Constitutionalism
provides narratives of both rule and resistance.”2

1
Alisha Dhingra, Indian Constitutionalism: A Case of Transformative Constitutionalism, ASIAN JOURNAL
OF MULTIDISCIPLINARY STUDIES 2(7), (2014) p. 135.
2
Upendra Baxi, Postcolonial Legality, in Henry Schwarz and Sangeeta Ray, (eds.), A Companion to
Postcolonial Studies 540, 544. Cited in Vrinda Narain, Postcolonial Constitutionalism in India: Complexities &
Contradictions, 25 S. CAL. INTERDISC. L.J. (2016) p. 122
Even “Klare” defines transformative constitutionalism as:

‘A long-term project of constitutional enactment, interpretation, and enforcement committed

to transforming a country's political and social institutions and power relationships in a
democratic, participatory, and egalitarian direction”.3
Therefore, constitutionalism as a concept conveys the legal restraints on the exercise of state
power and adherence to the constitution, to the rule of law and thereby, to the people’s will.
The colonial states which adopted constitutional ideas are should be seen as living bridge
between the past suffering and future. Therefore Indian constitution, originating from the
same historical background, is considered a transformative document4

INDIA AND TRANSFORMATIVE CONSTITUTIONALISM:

India had struggled with not just colonialism, but also social evils namely untouchability,
caste discrimination, gender inequality etc which has been prevailing in India since the
inception. The creation of The Indian constitution was motivated by the need to topple its
colonial past and to bring about a new social and political order, based on democratic values.
The Indian constitution was constructed as a ‘moral autobiography’, which promised a new
and fruitful future. The transformative goal of the Constitution can be witnessed under the
various provisions of the constitution. The Preamble institutes a secular, democratic, socialist
state as it consists the aspirations of the people, with the esteemed goals of liberty, equality,
fraternity and justice. Part III of the Constitution provides Fundamental Rights against the
state, including the ideals of equality, non-discrimination, freedom of speech and expression,
movement, association, freedom of religion and personal liberty. It abolishes untouchability,
feudal titles etc. Therefore, the hunt for the initiation of a new social order through political
power is tacit in the constitution.
Rajeev Bhargava a famous political theorist believes that the Indian constitution was
‘designed to break social hierarchies’ and open up a new chapter of freedom, equality and

3
Klare, E. Karl., Legal Culture and Transformative Constitutionalism, 14 SOUTH AFRICAN JOURNAL ON
HUMAN RIGHTS, (1998) p. 146. Cited in Alisha Dhingra, Indian Constitutionalism: A Case of Transformative
Constitutionalism, ASIAN JOURNAL OF MULTIDISCIPLINARY STUDIES, 2(7), (2014) p. 136.

4
MADHAV KHOSLA, THE INDIAN CONSTITUTION (Oxford University Press, New Delhi, 2012), p. 14.
Cited in Alisha Dhingra, Indian Constitutionalism: A Case of Transformative Constitutionalism, ASIAN
JOURNAL OF MULTIDISCIPLINARY STUDIES 2(7) (2014) p. 135
justice and considered that the creation of the Indian Constitution was a revolutionary
moment.

Transformative Elements in the Indian Constitution:

 We the People: The transformative agenda of the India Constitution is personified in

the Preamble through this phrase. We the People‟ crafts a new kind of selfhood which
equalize the status and opportunity of people whose identities were hitherto
determined by hierarchies of caste, religion and ethnicity. This phrase has immense
legal importance along with the symbolic contention of independence from colonial
rule. The Constitution for the Independent India was constructed by proclamation of
the Cabinet Mission Plan. “We the People” marks a profound break from the legal
hindrances imposed by the Cabinet Mission Plan and the Independence Act of 1947. 5

 Idea of Secularism: The Constitution from the beginning was based on secural
principles even though the word secular was inserted later into the Preamble by 42nd
Amendment in 1976. Rajeev Bhargav points out that the Indian Constitution
visualizes a distinctive form of secularism based on the principle of „principled
distance‟ that presupposes disestablishment but that also enjoins to intervene or
abstain from such interventions depending on whether specific values integral to the
secular ideal advanced. 6

 Abolition of Untouchability: The abolition of untouchability and prohibition of its

practice any form was enforced through Article 17 of the Indian Constitution. This
provision brought an end to the humiliation and insult faced by people from different
castes and this marked a revolution.7

 Right to equality: The Indian Constitution moves afar the principle of formal
equality and gives precise identification to the concept of substantive equality by
making it explicitly clear that special protective legislation advancing the interests of

5
THE CONSTITUTION OF INDIA (PREAMBLE)
6
THE CONSTITUTION OF INDIA (PREAMBLE)
7
THE CONSTITUTION OF INDIA (ART 17)
 disadvantaged group should not be interpreted as impermissible discrimination. This
was also supported by the scholars like Martha Nussbaum.8

 Rights granted to communities: The Constitution of India, not only grants rights to
individuals but also grant rights to communities. Upendra Bakshi points out that
Ambedkar departed from the contemporary liberal paradigm of rights and justice. The
rights granted to the community by the Indian Constitution are not constraints upon
the power of the state, rather they are legal entitlements protected by the state that
constrain other members of society. Thus, the state has the power to redefine the
cultural practices of society. 9

 Directive Principles of State Policy: The Directive Principles of State Policy shows
an explicit statement of social revolution. Austin believes that the aim of these
principles was to make the Indian masses free in the positive sense free from coercion
by society and by nature.10

TRANSFORMATIVE CONSTITUTIONALISM AND THE JUDICIAL ROLE:

LOCATING THE ‘PROPER

Every judicial organ in a state is assigned with law interpretation of law. And it makes sure
that even in the modern society a document which is old as constitution has relevance.
Judicial role in every single post colonial states having transformative constitutionalism is not
only just restricted strictly in interpretation of legal texts but also such interpretations should
be in such a way that it advances perfection and constitutional goals, more over it should be
in accordance with ultra changing modern society. Even though judiciary have such functions
it cannot diverge from the mandate provisions and basic structure of constitution .Thus
Judiciary has multiple role in both validating constitutional values through interpretation
within the ambit and respect of basic structure of constitution.

8
THE CONSTITUTION OF INDIA (ART14)
9
Upendra Baxi, Postcolonial Legality, in Henry Schwarz and Sangeeta Ray, (eds.), A Companion to
Postcolonial Studies 540, 544. Cited in Vrinda Narain, Postcolonial Constitutionalism in India: Complexities &
Contradictions, 25 S. CAL. INTERDISC. L.J. (2016) p. 122
10
THE CONSTITUTION OF INDIA (ART50)
Judiciary becomes an activist when it intrude in the areas or working of another organ’s
jurisdiction such as when it adjudicates polycentric issues that violates doctrine of stare
decisis11, striking out of controversial constitutional laws, interpretation of sensitive issues.
Still, In every case of above puts in a question where the role of the judiciary should be in
such a way that whether it should stick to the law as it is or to tackle the sensitive issues with
creative interpretations as per dynamically changing society which finally puts up a question
where judiciary should it be ‘a transformative actor, a protector of constitutional rights, a
facilitator of the democratic process, an organ of the state that adheres strictly to a separation
of powers, or an institution that is above politics and populism?12. Thus this present scenario
makes it mandatory to find the “proper role” of the judiciary in a democracy.

But when we look in to the theory of Transformative constitutionalism it necessitates judicial

jurisprudence to resonates with the transformative vision and clear understanding of
constitution .Thus Indian judiciary have a mixed record of validating constitutional values
and aspirations. The Supreme court has put forward various mechanisms like PIL, expansion
of Locus standi, suo motto cognizance etc., to reach out common man and through this,
judiciary has expanded the scope of fundamental rights including art 14,15,19 and also 21
and the Directive Principles into Part III. Even writ of mandamus was continued to be in
action to monitor the implementation and enforcement of its orders. Thus this expansion of
judicial role was criticized very immensely and was termed as an imperium imperio13 i.e.;
sovereign power by various jurists. And it may transform from the weakest to the strongest
organ among the others. In effect of this, the Judiciary in India has been inconsistent in the
approach to constitutionalism as it shows transformative approach in some cases and in
others; it simply gives up all its responsibility and adheres to the constitution14.

A controversial issue that we seek to involve in our paper is to analyse is the way the Indian
judiciary has dealt with the conflict between protecting religious freedom on the one hand,
and upholding the constitutional aspiration of social reform on the other. The court has tried
11
Oscar Sang, The Separation of Powers and New Judicial Power: How the South African Constitutional Court
Plotted Its Course, ELSA MALTA LAW REVIEW, Ed III, 2013, p. 99.
12
VILHENA, BAXI AND VILJOEN (EDS.), TRANSFORMATIVE CONSTITUTIONALISM: COMPARING
THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA (Pretoria University Law Press, Pretoria,
2013).
13
Gadbois, Supreme Court Decision Making, (1974) 1 BA NARAS LAW JOURNAL 10.
14
See for example Maneka Gandhi v. Union of India, AIR 1978 SC 597; Vishakha v. State of Rajasthan, AIR
1997 SC; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Bandhua Mukti Morchha v. Union of
India, AIR, 1984 SC 802; NALSA v. Union of India, (2014) SCC538
to balance the two conflicts by entering into the domain of religion, and focussing on the
judgement over what constitutes religion and what a religious text means through the creation
of the controversial Essential Religious Practice Test by the court. This undermined
Secularism and further restricted the constitutional freedom of religion, much beyond what
was constitutionally envisaged.15

RELIGIOUS FREEDOM AND SOCIAL REFORM: A BALANCING ACT

In India there are different religions co-existing and is a faith filled polity. The framers of the
Indian constitution drafted it in the backdrop of Partition keeping in mind the objective of
encouraging trust and respect to all religions. The ‘strict wall of separation’ i.e. the model of
secularism was not followed strictly as the lives of the people are entrenched with faith and
religion. Instead, the principle of ‘equal respect and tolerance for all’ was followed. However
at that point of time the religion especially Hindus was filled with social evils such as sati
,child marriage ,discrimination on the basis of caste untouchability etc. which was necessary
to be abolished for social upliftment, protection of equality and securing social order. Article
25 provides for the freedom to freely profess, practice and propagate religion subject to
public order, morality and health. Article 25(2) (b) however makes an exception to the
general rule – the State can make a law that provides for social reform or which throws open
Hindu religious institutions of public nature to all classes and sections of Hindus. These two
provisions, in practice, have often come into conflict with religious groups opposing
legislations on grounds of violation of Article 25 and the state defending them as being social
reform legislation. So, the Indian constitution maintained three approaches to religion:
‘religious freedom; state neutrality towards all religions; and reformative justice whereby
religious freedom would be curtailed on grounds of public order, health, morality and
religious practices and institutions could be regulated by the state in economic, financial,
political or other secular activities’. The judiciary in India has to balance religious freedom,
social justice and individual liberty16. State intervention was necessary to bring in social
reforms. But with every application of the ERP test by the Supreme Court, the freedom of
15
RAJEEV BHARGAVA (ED.), OUTLINE OF POLITICAL THEORY OF THE INDIAN CONSTITUTION
IN POLITICS AND ETHICS OF THE INDIAN CONSTITUTION, (Oxford University Press, New Delhi,
2008), p. 15. Cited in Alisha Dhingra, Indian Constitutionalism: A Case of Transformative Constitutionalism,
ASIAN JOURNAL OF MULTIDISCIPLINARY STUDIES 2(7), (2014), p. 135
16
VILHENA, BAXI AND VILJOEN (EDS.), TRANSFORMATIVE CONSTITUTIONALISM:
COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA (Pretoria University law
press)
religion gets further undermined; especially in terms of an individual’s right to practice
religion.

THE ‘ESSENTIALLY RELIGIOUS’ AND ‘ESSENTIAL TO RELIGION’

CONUNDRUM

In earlier era the judiciary was in an opinion that the practices which are by very nature an
essential religious practices were under the immunity of the constitution and was absolutely
free from state intervention. But the right to decide whether the practice is essential or not
was subsequently had given to a separate religious denomination. The constitution has given
provision which makes sure that the is no exploitation on the basis of religion and the state
can intervene where there is a case in which the practise is against public order, health,
morality or any provisions of part III of the Indian Constitution which is “Directive principles
of state policy”17. The Supreme Court of a India in the case of Ratilal v. State of Bombay18
held that the state can only regulate or put a limit in the economical, political and commercial
activities associated with religious practices. According to the present understanding of the
ERP test, only those practices are protected under the constitution from state intervention,
which are ‘essential to religion’ and which are so fundamental to it, that any change to those
practices would change the very character of religion itself. It was held in SP Mittal v. UOI
19
and others, only a community being a separate religious denomination can follow this
essential religious practises only if it satisfy the conditions as give in the judgement. It is
submitted that this requirement of the practice having to be ‘essential to religion’ is not one
that is mentioned in the Constitution, nor can the Constitution be reasonably interpreted to
mean so. After assuming the power to decide as to which practices were ‘essential to
religion’, the court further began to expand its powers by giving itself the power to interpret
religious texts and adding additional tests to determine essentiality of religion, thereby
undermining religious freedom, and secularism as a whole. In case of Ram Prasad Seth v.
State of Uttar Pradesh20, the Allahabad High Court wrongly interpreted the ‘essentially
religious’ with ‘essential to religion’ which truly hardened the Essential religious practice
test. This led to the outrage by the religious community and it opened them to the scrutiny of

17
The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Shri
Shirur Mutt, AIR 1954 SC 282.
18
AIR 1954 SC 388
19
AIR 1983 SC ;1983SCR(1)729)
20
AIR 1957 All 411
courts. The subsequent judgements began to interpret essential as not as a qualification to the
nature of practice, i.e., religious or secular, but rather connoted it to mean important to
religion. The string of cases that followed since then is all examples of overreach by the
courts. The courts have ventured into religious questions which the constitution forbids under
Article 25.

INTERPRETING RELIGIOUS TEXTS

In case of Venkataramma Devaru v. State of Mysore21, the active intervention of court was
criticized and scrutinized. Supreme Court actively went into the involvement of religious
texts to hold that untouchability was not an integral part of the Hindu religion. This scrutiny
was especially made since the court could have simply limited itself to holding untouchability
unconstitutional on the basis of Article 17 and Article 14. The court made more rational
approach in Adhitayan v. Travancore Devaswam Board22 where the court held that
appointment of only Brahmin priests was a violation of Article 17. It was repeated in Shah
Bano case23, the court could have easily adjudicated upon the case based on the provisions in
the Criminal Procedure Code rather than going into interpreting Verse 241 of the Quran,
Justice Chandrachud, a non-Muslim, secular jurist trained only in secular law interpreted
significant Islamic law principles, upon which there is no consensus even among trained
Islamic legal scholars.
In Sastri Yagnapurushadji and others v. Muldas Bhudardas Vaishya 24, the petitioners
claimed that they were not Hindus and hence, the temple entry legislations would not apply to
them. The court went into a detailed comprehensive description of the tenets of Hinduism and
concluded that the satsangis were in fact Hindus. It further went on to hold that their views
on temple entry were based on a mistaken and false understanding of the teachings of their
founder Swami Narayan considering them as superstition and ignorant. So, the court
effectively tutored a religious group as to what their religion actually meant, which the judges
were clearly restricted to do, being untrained and ill equipped in religious theology and its
principles. The same was done by the Supreme Court recently, in Nikhil Soni v. Union of
India25, where the Rajasthan HC banned santhara i.e. voluntarily starving to death on the

21
AIR 1958 SC 255
22
AIR 2002 SC
23
AIR 1985 SC 945
24
AIR 1966 SC 1119
25
(2015 ) Cri LJ 4951
ground that it does not constitute an essential religious practice and is hence, not protected
and immuned under Article 25.

 THE TEST OF OBLIGATION:

The same confusion and uncertainty was carried on and followed in the case of “Qureshi
v. State of Bihar” 26, whereby the Supreme Court control that slaughter of cows wasn't an
important observe of Muslims throughout Eid and wasn't ‘obligatory’ as they did have
the option of slaughtering other animals. This case again added the test of obligation
which further humungously reduced the scope of religious freedom. 27

Identically the scenario came up in the case of “Fasi v. SP of

Police” 28, wherever a peace officer challenged a regulation that disallowed him from
keeping a beard as offending of his freedom of faith. The court disregarded the evidence
from Quran provided by the petitioner and instead relied on the argument that there are
many Muslims who do not have beards and the petitioner himself did not have a beard
earlier and thus, it is not essential. The decision of this case shows the absolutely
capricious approach of the judiciary and courts towards the questions that showcases
religion and its practices.

Moreover the in the case of Ismail Faruqui v. Union of India 29, the court was called
upon to adjudicate on the issue as to whether or not the state can acquire a land over
which the Babri Masjid stood. The court went into adjudicating upon whether or not
praying in a mosque is an essential tenet of Islam and held that praying in a mosque was
not essential as it could be done even in the open. Therefore the Supreme Court held
that, it is not protected under freedom of religion. Hence, it can be said that the test of
obligation which states that a practice can be protected only if it is ‘obligatory’ and
‘absolutely essential’ grievously curtails and diminishes the freedom of an individual in
practicing his religion in his own procedure or methods. Thus, freedom to practice
religion should be granted and permitted until and unless the method and procedure of

26
AIR 1958 SC 731
27
M Mohsin Alam, Constructing Secularism: Separating ‘Religion’ and ‘State’ under the Indian Constitution,
ASIAN LAW, Vol. 11, (2009) p. 39.
28
1985 ILLJ 463 Ker
29
AIR 1995 SC 605
practicing the religion by the individual does not hinder the public order, health, morality
etc and is not done in violation of the fundamental rights of other persons.

 THE TEST OF RATIONALITY:

The Test of Rationality is a check accustomed that confirm the constitutionality of a

statute, asking whether or not the law features a cheap association to achieving a
legitimate and constitutional objective.

Under this ancient test of check, a state law should be upheld if it (or the classification it
contains) is rationally associated with any legitimate interest of the state. Moreover, the
legitimate interest of the state needn't be one that really motivated legislators to enact the
legislation. It is enough if the interest is currently advanced which it's "conceivable."

However, for laws involving a fundamental right, courts increase its scrutiny of the
government's action, requiring that the means be necessary to achieve a compelling state
interest.

Justice Gajendragadkar in the “Durgah Committee, Ajmer v. Syed Husssain Ali” 30 said
that some of the practices of the people concerning to the religions may have arised
merely on the basis of superstitions. He also suggested that these types of practices
arising through superstitions be scrutinized carefully and rationally. The test added by
the Supreme Court involved highly subjective values such as ‘rationality’ and ‘morality’.
The judge in a scenario as mentioned in the current matrix will have his own personal
beliefs and an idea as to what is morality and rationality according to his views. But only
because for a particular judge’s idea of ‘morality’ or ‘rationality’ is different from that of
a religious group, does not make the practice of religion by the individuals in their own
mechanisms and procedures, immoral or irrational.

Hence, when judiciary and few judges are given this enormous power of applying their
own perspective about a particular fact, would lead to the imposition of their own ideas
and elitist and majoritarian cultural values on the community, thus will destroy the
diversity present in our country.

 THE TEST OF ANTIQUITY:

30
AIR 1961 SC 1402.
In Acharya Jagdishwaranand v. Commissioner of Police, Calcutta 31, the court held that
tandava was not an essential practice of the Ananda Margi faith as it began in 1966
whereas the faith began in 1955. So, the court effectively added another test of antiquity
to determine essentiality.
In Bal Patil v. Union of India 32, the court held that Jainism is not a separate religion but
merely a “revolutionary movement within Hinduism”, even when the two religions differ
on the very basic principle of belief in God, and yet, the court found this difference to be
insignificant. Many scholars criticised the judgement and held that law has no business in
describing the scope of religion. So, the current position is that it is not enough to merely
prove that a practice is religious, but to also prove that it is obligatory, rational and antique.

CONCLUSION: A NEED FOR RESTRAINT:

The Essential Religious Practice test has been criticized and scrutinized immensely by
various scholars and practitioners alike. The judges are only trained in law and law related
subjects and not in religious principles and theology. They will not be able to deliver a well
informed and educated wordings or judgements about a particular religion which is antique
and unique. There is a great danger when the court uses its arbitrary powers to modernise the
Indian state and then it makes the entire process arbitrary and prejudiced according to the
Judge who adjudicates the matter relating to religious practices .The freedom of religion is a
fundamental right guaranteed to every individual. Such adjudication by judiciary violates the
rights of those individuals who want to practice their religion through varied practices.
Adjudicating these practices may bring down in their own religious ideologies and threaten
the religious diversity. Justice Iacobucci said: “the State is in no position to be, nor should it
become, the arbiter of religious dogma”33. Which includes a secular ideology of a religious
one .The government and courts should not re-educate the believers to show them their
‘errors’ in their practices34. Such practices of courts deciding the content of religions makes
the state an insider into religion. This transformation will give the judiciary a political role in
‘secularism adjudication’ which not only does it legalise state intervention but it also carries
out the internal critique itself. Even the widest and most liberal reading of the constitution

31
AIR 1984 SC 512
32
(2005) 6 S.C.C. at 690
33
Syndicat Northcrest v. Amselem, (2004) (2 SCR 581)
34
ROGER TRIGG, EQUALITY, FREEDOM AND RELIGION, p.45, (Oxford University Press, New York,
2012).
does not allow for the tests of rationality, antiquity or obligation to be applied to define the
scope of religious freedom.

While transformative constitutionalism does require the judiciary to play an active and
creative role to further the constitutional aspirations, and in the Indian case, to bring in social
reform, the ERP test is a clear example of judicial overreach. This is not to say that all kinds
of religious practices must be allowed. The best way would be for the judiciary to bring in
social reform by testing religious practices on secular values such as equality, liberty and
justice rather than becoming an internal critic of religion by itself. This would help in
balancing the preservation of religious freedom on the one hand, and the constitutional
aspiration of social reform on the other.