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Rajat Sinha & Stuti Bhargava, Does Your God Satisfy the Constitutional Test? -
Analyzing the 'Essential Religious Practices Doctrine' in Light of the Sabarimala
Verdict, 8 NLIU L. REV. 222 (2019).

ALWD 7th ed.

Rajat Sinha & Stuti Bhargava, Does Your God Satisfy the Constitutional Test? -
Analyzing the 'Essential Religious Practices Doctrine' in Light of the Sabarimala
Verdict, 8 NLIU L. Rev. 222 (2019).

APA 7th ed.

Sinha, R., & Bhargava, S. (2019). Does your god satisfy the constitutional test?
analyzing the 'essential religious practices doctrine' in light of the sabarimala
verdict. NLIU Law Review, 8(2), 222-244.

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Rajat Sinha; Stuti Bhargava, "Does Your God Satisfy the Constitutional Test? -
Analyzing the 'Essential Religious Practices Doctrine' in Light of the Sabarimala
Verdict," NLIU Law Review 8, no. 2 (July 2019): 222-244

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Rajat Sinha & Stuti Bhargava, "Does Your God Satisfy the Constitutional Test? -
Analyzing the 'Essential Religious Practices Doctrine' in Light of the Sabarimala
Verdict" (2019) 8:2 NLIU L Rev 222.

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Rajat Sinha and Stuti Bhargava, 'Does Your God Satisfy the Constitutional Test? -
Analyzing the 'Essential Religious Practices Doctrine' in Light of the Sabarimala
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Sinha, Rajat, and Stuti Bhargava. "Does Your God Satisfy the Constitutional Test? -
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Verdict." NLIU Law Review, vol. 8, no. 2, July 2019, pp. 222-244. HeinOnline.

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RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

DOES YOUR GOD SATISFY THE

CONSTITUTIONAL TEST? - ANALYSING THE
'ESSENTIAL RELIGIOUS PRACTICES DOCTRINE'
IN LIGHT OF THE SABARIMALA VERDICT

Rajat Sinha* & Stuti Bhargava**

Abstract

It is not unknown to us that deciding questions

of theology has always been a brain-wracking
processfor the judiciary. However, are we not
in the first place supposed to question the
capacity and competency of the courts of law
in deciding these questions of religion?
Another million-dollarquestion that has never
been sufficiently acknowledged despite its
relevance in the present-day tussle involving
religious liberties is - Who is the State to
dictate what is religion to man? Innumerable
contemporary judgments are witness to this
act of State interference into a domain that
should be left to the discretion of man and
man alone. Issues concerning religion are not
just countless but centuries old, archaicto the
extent that they were in place even when the
State did not exist, to begin with. Quite a few
verdicts of the courts in the recent past have

*Rajat Sinha is a second-year student at National Law University, Jodhpur. The

author may be reached at [email protected].
**Stuti Bhargava is a second-year student at National Law University, Jodhpur. The
author may be reached at [email protected].

222
VOL VIII NLIU LAW REVIEW ISSUE II

led us to question the foundation of the basic

religious doctrines, principles and tests that
the State employs to dictate and restructure
religion. Assuming for the sake of argument
that the State does to a large extent enjoy the
power to decide the constituents of religion,
the factors on the grounds of which the State
does so should not take away the power of the
people to decide what they want their beliefs
and ideologies to be. This paper seeks to
analyse and critique these religious doctrines
in light of the Sabarimalaverdict and attempts
to provide an alternative to the obsolete and
seemingly redundantways of the court.

I. INTRODUCTION

Religion has been the ethereal bond that has tied human beings
together since time immemorial. Freedom of religion has always been
acknowledged as a fundamental and human right by the liberal and
democratic regimes, with an intent to allow the faithful to carry out
their faith. It is quite often asserted that the struggle for freedom of
religion preceded all other fundamental or human rights originating
during the Greek ages.1 Whether we talk about the treaty of
Westphalia, granting equal rights to Catholics and Protestants in
Rome in 1648 or the mid-1770s Turkey undertaking to protect
Christianity within the Russian Empire, protection of freedom of

1
PAUL SIEGHART, THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS 324 (1983);
Brice Dickson, The United Nations and Freedom of Religion, 44 INT. COMP. L. Q.
327-357 (1995) [hereinafter DICKSON].

223
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

religion has remained an issue of eminence before rulers throughout

ages.2

In the United States, freedom of religion is every so often regarded as

the 'first freedom', not because of its position in the First Amendment
of the States but because it is principal to the operation of its
democracy. 3 If citizens of a democracy cannot live equally, according
to their deepest beliefs about what is right and good, how would they
be able to contribute to the welfare of any democratic society?4

There have been innumerable attempts to convert religious beliefs

into actions which have had consequences for the community as a
whole. It is for this reason that law operates to regulate religion and
prohibits unacceptable forms of behaviour such as Sati, human
sacrifice, female foeticide, etc. 5 Nevertheless, keeping the extremes
aside, there is barely any logic in restricting religious liberties. 6
Usually, no objection should be raised against the practices which
only affect the voluntary adherents of that specific religion. 7 On the
contrary, for the sustenance of a secular, plural and democratic
society, the law ought to be more receptive towards the diversity and
disagreement within the society it operates. 8 However, recent
instances have proven otherwise. For example, the Supreme Court of
India, in the recent Sabarimala verdict, declared the ban on the entry
of women in the temple unconstitutional. 9 Similarly, in the case of
Mohammad Zubair v. Union of India, the Supreme Court declared

2
B. G. RAMCHARAN, THE CONCEPT AND PRESENT STATUS OF THE INTERNATIONAL
PROTECTION OF HUMAN RIGHTS 13 (1989).
3
Roger Trigg, Freedom of Conscience and Freedom of Religion, 99 AN IRISH
QUARTERLY REVIEW 407-414 (Winter ed. 2010).
4
Id.
5
ROGER TRIGG, EQUALITY, FREEDOM, AND RELIGION 16 (2012).
6
DICKSON, supra note 1.
?Satvinder S. Juss, The JusticiabilityofReligion, 32 J. L. & RELIGION 285 (2017).
8
Developments in the Law: Religion and the State, 100 HARV. L. REV. 1606, 1781
(1987).
9
Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC
OnLine SC 1690.

224
VOL VIII NLIU LAW REVIEW ISSUE II

that keeping a beard is not an essential practice of the Islamic

religion.10 As far as the former case is concerned, the majority went
with the so-called popular and rational belief, a belief that supports
and promotes women empowerment. However, in this instance, the
judiciary failed to pay due respect to our religion and cultural
heritage. And instead of being a cause which helps empower women,
this verdict reeks of redundant and conservative ideas and doctrines-
doctrines that fail to acknowledge group reality. We understand that
women's rights are necessary. However, when the society is by and
large patriarchal in its mindset and practices, the reforms must take a
balanced approach. Changing centuries old practices through a court
order is not the right way to go about empowering women. Rather, it
would make the people critical of the court's doings and the judiciary
might lose its own credibility.

However, this conception, that the free exercise of religion is at odds

with the idea of a pluralist state, has steadily gained prominence. It is
for this reason that multiple State judiciaries are now testing the
importance of religious practices within that religion rather than
testing whether the practice is religious at all." Therefore, in order to
practice one's religion, the community must not only prove to the
court that practice is religious in nature but also that such practice is
indispensable as far as the existence of that religion is concerned and
it conforms to the other constitutional requirements. An example of
such a doctrine in India is this test which is referred to as the Essential
Religious Practices Test (hereinafter, "ERPT"), wherein the courts,
and not the religious community, undertake the task of deciding
which practices are essential to the religion.

10
Mohd. Zubair Corporal v. Union of India, 2016 SCC OnLine SC 1472.
"The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar
Thirtha Swamiyar of Shri Shirur Mutt, 1954 AIR 282; Indian Young Lawyers
Association and Ors. v. The State of Kerela, 2018 SCC OnLine SC 1690; Mohd.
Zubair Corporal v. Union of India, 2016 SCC OnLine SC 1472; Syndicat
Northcrest v. Amselem, (2004) 2 SCR (Canada), 576; HJ(Iran) and
HT(Cameroon) v. Secretary of State of the Home Department, (2010) UKSC 31.

225
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

This paper, divided into three parts, discusses at length the validity of
the ERPT in the modern Indian context. In Part I, the need for the
populace to enjoy this liberty to ascertain what should constitute one's
religion has been stressed upon. In Part II, the flaws in the ERPT, as
applied in India, have been brought to light. Lastly, in Part III, new
jurisprudence in place of the redundant ERPT has been proposed as a
possible solution to this problem.

II. THE NEED TO ACKNOWLEDGE: THE SIGNIFICANCE

OF PROTECTION OF RELIGIOUS FREEDOM

The introduction of the article discussed how freedom of religion has

remained important over the ages. However, an important question
that has remained unanswered is, why freedom is important at all.
Why is it not advisable for the State to propose its own State religion,
or remove it in its entirety? The answer is much more complex than
this simple question. If the State tries to remove it, religion would find
its own course and establish itself again as would be discussed in the
course of this part.

The Sabarimala issue is an instance where the interference by the

State violates religious freedom. The question that needs to be asked
is, can a tradition that has lasted for centuries, a tradition that has
formed roots in the heart of these people who out of nothing but pure
devotion to their God have been following a practice, be done away
with, in the blink of an eye? The State, in essence, is trying to mould
public beliefs and ideologies to suit its own idea of morality.
However, religion is not something that changes colours. It is
something that asserts and re-asserts itself time and again.1 2 It is
impossible or at least not a suitable job for the State to step up to the

12
Gabriel Moens, The Action-Belief Dichotomy and Freedom of Religion, 12
SYDNEY L. REV. 195, 217 (1989).

226
VOL VIII NLIU LAW REVIEW ISSUE II

pedestal of the creator of this universe, as believed by many, and

dictate what it wants and how it wants man to think.

In this Part, an attempt has been made towards emphasising the

importance of freedom of religion and the need to allow people to
decide what they want their religion to be. The very fact that religion
even today is a force to be reckoned with, indicates that some
protection is certainly important. It is argued that the freedom of
religion must be protected on four grounds, (a) that religion is a basic
human instinct, (b) that in a pluralist democracy, freedom of religion
is akin to freedom of choice, (c) that freedom of religion is
quintessential to the protection of the diversity of beliefs, and (d) that
the freedom of religion is the right path to go about ensuring religious
reforms in the long run.

A. Religion is a basic human instinct.

Religion can best be understood as a primary element of human

nature, suppression of which would be comparable to suppression of
any other need like air, water or sex. Therefore, the idea of protection
of religion is akin to the protection of our natural rights. Farr, in his
treatise 'World of Faith and Freedom' mentions that the assertion of
religious freedom is the affirmation of the claim of human nature on
behalf of human beings.1 3

An argument in favour of the naturalness of religion emerges from the

cognitive structure of the human mind. Teleology is deeply ingrained
in the human mind.14 Teleology is the explanation of phenomena in
terms of the purpose they serve rather than the cause by which they
arise." Our 'natural' impulses may not be the best guides of truth but
we are in any case most comfortable with them. Psychologists

13
FARR, WORLD OF FAITH AND FREEDOM 21 (2008).
"Teleology, 2 BR. MED. J. 1, 410 (1909).
"Teleology Definition of teleology in English by Oxford Dictionaries, OXFORD
DICTIONARIES (Jan. 9, 2019),
https://en.oxforddictionaries.com/definition/teleology.

227
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

Deborah Keleman and Evelyn Rosset state that human beings, from a
very early age, start making teleological explanations of all the
natural phenomena. 16 They state that "from preschool, children
attribute functions of entities like lions, mountains, and icebergs,
viewing them as made for something."" Thus, teleological
explanations are the default settings of humans as they grow.
Concepts such as an all-knowing God therefore naturally arise in a
human mind. Religion is similarly formed by these basic teleological
impulses.1 8 Since religion is our basic impulse, it must be protected.

B. In a pluralistdemocracy, freedom of religion is akin to freedom

of choice.

Individual choice is the basic tenet of liberty. 19 If a State has a duty to

provide me with liberty, it must extend to all forms of liberty.
Therefore, every individual, in principle, has a choice to align himself
with the faith of his preference. He can even choose to opt out of it.
He must have an individual choice in this regard.

Further, when every religious community would be liberated to assert

and propound its beliefs in the society, there would be a broader
landscape of different religious views and a wider spectrum of
alternatives. As a consequence, every individual would have a greater
occasion to make a choice that is best suited to his aspirations and
desires.

Thus, religious choice, while being a significant end in itself, is also

the cornerstone of self-determination and individual autonomy.

16
Deborah Kelemen & Evelyn Rosset, The Human Function Component:
Teleological Explanation in Adults, 111 COGNITION 138-143 (2009); ROGER
TRIGG, EQUALITY, FREEDOM, AND RELIGION 16 (2012).
"Id.
18
Mark Modak-Truran, Law, Religion, and Human Rights in Global Perspective, 22
MIss. C. L. REV. 165, 172 (2003).
19
Fabio Macioce, Individual Liberty and Self-Determination, 3 LIBERTARIAN
PAPERS 1, 18 (2011).

228
VOL VIII NLIU LAW REVIEW ISSUE II

Choosing something as fundamental as religion therefore promotes

greater liberty. Freedom of religion also leads to the formation of a
more stable society as the freedom to choose a religion which best fits
individual needs will result in a more satisfied society.

C. Freedom of religion is quintessentialto the protection of the

diversity of beliefs.

Freedom of religion, in essence, allows the diversity of faiths and

differential beliefs within a faith to flourish in a conducive
environment. As Heiner Bielefeldt puts it, not only in the modern
world is diversity an irreversible fact, it should also be appreciated as
a manifestation of the potential of human responsibility and therefore
as intrinsically something positive. 20 Human diversity is itself a sign
of moral earnestness. 2 1 The respect that we serve for the beliefs that
we do not find true or reasonable is the normative denominator of our
peaceful co-existence. 22

Bielefeldt states that the respect that we are referring to here is not for
the wrong or unreasonable beliefs of others but for the overarching
ability of the men to have and develop deep beliefs and certitudes in
the first place. 23 The practices that humans undertake in pursuance of
religion are all manifestations of a responsible agency and therefore
they deserve respect. This responsible agency thus forms the basis of
human rights and pluralism that we experience in our everyday life,
which helps us find a common ground for organizing our mutual co-
existence.2 4

20
Heiner Bielefeldt, Freedom of Religion or Belief: A Human Right under Pressure,
1 OXFORD J. L. RELIG. 15 - 35 (2012) [hereinafter BIELEFELDT].
21
Heiner Bielefeldt, Misperceptions of Freedom of Religion or Belief, 35 HUM. RTS.
Q. 33, 68 (2013).
22Id.
23
BIELEFELDT, supra note 20.
24
HEINER BIELEFELDT, SYMBOLIC REPRESENTATION IN KANT'S PRACTICAL
PHILOSOPHY 101-04 (2003).

229
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

D. The freedom of religion is the rightpath to go about ensuring

religious reforms in the long run.

In order to attain progress in the society, one needs to be free to

interact and interpret one's own religious sources and change one's
beliefs in light of the changing social reality. 25 Therefore, religious
freedom is indispensable to society. 26 It is only through the organic
process that religion can be reformed without which its growth would
remain stunted. 27

As Jay Newman puts it, while we may be tempted to assume various

possibilities and ways of religious reforms, it is only religion which
can generate values to alter itself.2 8 It is only through the medium of
thought and consciousness that natural events happening around us
affect us, and it is this experience that is significant in generating and
shaping our values. 29 Even politics and economics are a product of
some form of values generated within us through experience. Then
what are the forms of experience and culture which can change
religion? According to Newman, it is philosophy, as it is the
epiphenomenon of religion growing out of religion itself and has
attained some level of independence from its source. 30 He thus
concludes that in a sense, the impetus to reform religion comes from

2sFaizan Mustafa & Jagteshwar Singh Sohi, Freedom of Religion in India: Current
Issues and Supreme Court Acting as Clergy, 2017 BYU L. REV. 915, 956 (2017)
[hereinafter FAIZAN].
26
DAVID SLOAN WILSON, DARWIN'S CATHEDRAL: EVOLUTION, RELIGION, AND THE
NATURE OF SOCIETY (2002) [hereinafter WILSON]; Michael W. McConnell, Why
Is Religious Liberty the First Freedom, 21 CARDOZO L. REV. 1243, 1266 (2000)
[hereinafter MCCONNELL].
27
FAIZAN, supra note 25.
28
JAY
29
NEWMAN, ON RELIGIOUS FREEDOM 159-60 (1991).
Id.
30
Id.

230
VOL VIII NLIU LAW REVIEW ISSUE II

religion itself.31 Only greater religious autonomy will lead to religious

reform 32 while repression may lead to violence.3 3

Therefore, protection of religion is akin to the protection of

democracy and liberty in the world. Liberty, in the true sense of its
meaning, would only be protected when individuals are allowed to
decide their own beliefs rather than being dictated upon. When we are
capable of establishing a society where each individual is free to
choose his or her beliefs and basic instincts, we would be making a
more satisfied and a tolerant society, which is a hallmark of
democracy.

III. THE PROBLEM

As discussed previously, religion has been an indispensable part of

our lives. 34 It is more so in the case of Indians," who are referred to
as 'essentially religious' by some scholars. 36 Despite religion being of
such importance, India has successfully been able to retain its secular
character.3 7 However, a trend has gained prominence wherein, though
India appears to be secular from the outside where all religions are
freely practised, it is upon the courts of law to decide what practices
constitute religion, and consequently, what is protected. The courts
have named this weapon the ERPT where they interpret the religious
texts to decide which part of religion is essential to the religion and
which is not. It is the best example of how archaic our beliefs and

"Id.;
32
FAIZAN, supra note 25.
BRIAN J. GRIM & ROGER FINKE, THE PRICE OF FREEDOM DENIED: RELIGIOUS
PERSECUTION AND CONFLICT IN THE TWENTY-FIRST CENTURY 2-4, 212-13
(2011).
33Id.
34
WILSON, supra note 26; MCCONNELL, supra note 26.
35
T.N. Madan, Religion in India, 118 DAEDALUS 114, 115-17 (1989).
36
RAJENDRA K. SHARMA, INDIAN SOCIETY, INSTITUTIONS AND CHANGE 186 (2004).
37
Ranbir Singh & Karamvir Singh, Secularism in India: Challenges and Its Future,
69 INDIAN J. POL. SCI. 597, 603 (2008).

231
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

ideologies are. A recent example of the application of this test was

seen in the Sabarimala verdict, as has already been discussed.
Therein, the court went on to apply not just this test, but also set an
example for the State to avail future opportunities of such
impingement on religious liberties.

The test was coined by the Supreme Court in the Shirur Mutt case
way back in 1954.38 The court held that only those beliefs and
practices which are integral to the religion would be protected by
Article 25 of the Constitution.3 9 It would be upon the judiciary to
decide what is integral and what is not. B. Parmeshwara Rao, in his
paper gives the procedure that the courts use in the application of the
essentiality test. 40 First, the matters of religion would be distinguished
from the secular matters, second, the court would decide whether the
practice is integral to the religion or not, third, the court would see
that the practice must not have sprung from a superstitious belief and
last, the Court would scrutinize the claims of religious practices for
the protection of Article 26(b) of the Constitution. 41

Derrett, while discussing relationship of courts and religion in India in

his treatise, states that, "the courts can discard as non-essentials
anything which is not proved to their satisfaction... and they are not
religious leaders or in any relevant fashion qualified in such
matters... to be essential, with the result that it would have no
constitutional protection."42

Similarly, Dhavan and Fali S. Nariman, in their work, give an even

more critical reckoning, stating, "with a power greater than that of a
high priest, Molvi or Dharma-Shastri,judges have virtually assumed

38
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, 1954 SCR 1005, 1021.
39
INDIA CONST. art. 25.
40
B.P. Rao, Matters of Religion, 5 JOURNAL OF INDIAN LAW INSTITUTE 509, 512
(1963).
41
Id.
42J. DUNCAN M. DERRETT, RELIGION, LAw AND THE STATE IN INDIA 447 (1999).

232
VOL VIII NLIU LAW REVIEW ISSUE II

the theological authority to determine which tenets of a faith are

'essential' to any faith and emphatically underscored their
constitutional power to strike down those essential tenets of a faith
that conflict with the dispensation of the Constitution. Few religious
pontiffs possess this kind of power and authority."4 3

The courts hold a significant authority as far as the dispensation of

justice is concerned. The importance of this role increases manifold
when something as integral as religion is in question. In this part of
the Article, the fundamental flaws in the Essential Religious Practices
Doctrine employed by the judiciary are pointed out. It is argued that
the ERPT cannot be an appropriate test for deciding religious matters
on the grounds (a) that the courts of law are incapable of deciding
matters of theology, (b) that religion, in essence, is relative in nature
and therefore, one definition of religion is not possible, (c) that the
ERPT limits the scope of natural reformation of religion, and (d) that
the ERPT attempts to rationalize religion and mould it to the court's
liking.

A. The courts of law are incapable of deciding matters of theology.

"The power of civil government relates only to ... civil interests are
confined to the care of the things of this world, and hath nothing to do
with the world to come." 44

Justice Iacobucci of the Canadian Supreme Court while pronouncing

his judgment in Syndicat Northcrest v. Amselem, observed that "the
State is no position to be, nor should it become, the arbiter of
religious dogma."4 5 The basic premise of this idea is that it would be
very dangerous for the State to start telling a religious community
what their main beliefs are as per their religion or whether their entire

43
R. DHAWAN & FALI S. NARIMAN, SUPREME BUT NOT INFALLIBLE 257, 259
(2000).
44
PHILIP B. KURLAND & R. LERNER, THE FOUNDERS' CONSTITUTION 52 (1987).
45
Syndicat Northcrest v. Amselem, (2004) 2 SCR (Canada) 576.

233
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

faith is correct at all. This may lead to a secular ideology dictating

terms to religious one. It would become quite simple for the State to
dismiss various beliefs by putting them through strict constitutional
tests of equality and liberty. However, what must be understood is
that religion does not function like any other law where strict
constitutional standards can be applied.

Our point of concern here is that we have quite conveniently assigned

the right to the State to determine and decide which action is to be
accorded protection under Article 25 of the Indian Constitution.
However, the scholars of law who sit on the bench are completely
incapable of deciding the intricate religious issues. After all, the texts
and manuscripts of religion do not function like the ordinary statutes
and constitutions. The liberal ideology of the judges is often
inconsistent with the orthodox religious practices, and therefore, one
might witness decisions where radical reforms are attempted. Moving
forward on this line of thought, this test essentially attempts to re-
shape and re-structure the foundation of a religion. By dictating what
is and what is not essential to the religion, this test is controlling the
beliefs of an individual.

Lord Hope of the United Kingdom's Supreme Court, while dealing

with the issue of asylum for homosexuals in Africa started
condemning the beliefs of the community when found disagreeable
with his liberal ideology. 4 6 He claimed that such an action was
"fanned by misguided but vigorous religious doctrine".47 He stated
that this was because of "ultra-conservative interpretation of the
Islamic law" and also because of the rampant "homophobic teaching
that the right-wing evangelical Christians churches indulge in
Africa".4 8 Now, where did Lord Hope go wrong? It was when he

46
HJ(Iran) and HT(Cameroon) v. Secretary of State of the Home Department,
(2010) UKSC 31.
4
7d.
48Id.

234
VOL VIII NLIU LAW REVIEW ISSUE II

started an attack on the religious beliefs and held that they were
wrong interpretations of the religion itself. Recognizing the plight of
homosexuals can be understood, but it goes way beyond the authority
of any court to start deciding how misguided peoples' beliefs are,
which must rather be left to theological examination.

In India, on multiple occasions, the courts have tried to interpret

religions to suit their own whims. In Shastri Yagnapurushdasji v.
Muldas,49 a group claimed recognition as an independent
denomination following the teachings of Swaminarayan. The court, in
this case, stated that this claim was "founded on superstition,
ignorance and a complete misunderstanding of the true teachings of
the Hindu religion and of the real significance of the tenets and
philosophy taught by Swaminarayan himself" 0 No matter how
misguided the followers were, it is not within the scope of the court's
authority to grant or restrict any person's beliefs unless it contradicts
the requirements of Article 25. There have been numerous instances
where the courts have decided matters in a similar fashion, whether it
be the essential practice of keeping the beard for a Muslim man 51 or
whether the Tandava dance merits protection.5 2 The court in such
cases attempts to dictate to a group of people what their religion in
reality propagates. The real problem is with the courts explaining
whether one should believe in something or not, rather than protecting
those beliefs, thus defeating the entire purpose of incorporating
Article 25 in the Constitution of India.

B. Religion, in essence, is relative in nature and therefore, one

definition of religion is not possible.

For the sake of argument, accepting the idea that courts have and
would continue to hold the authority to discuss religion, ERPT still

49
Shastri Yagnapurushdasji v. Muldas, 1966 SCR (3) 242.
so1d.
51
52
Mohd. Zubair Corporal v. Union of India, 2016 SCC OnLine SC 1472.
SP Mittal v. Union of India, 983 SCR (1) 729.

235
RAJAT SINHA & DOES YOUR GOD SATISFY
STUTI BHARGAVA THE CONSTITUTIONAL TEST

cannot be considered to be a good test for legal scrutiny of religion.

An argument in favour of this idea is that religion is a relative
concept. Thus, what might be essential to the religion in one place
may be completely irrelevant in another. For instance, during
Dussehra, an effigy of Ravana is burnt across India, and this act is
considered to be a symbol of victory of 'Dharma' over 'Adharma'.
However, there are certain places such as Mandore in Jodhpur, where
doing so is prohibited by the natives. According to the legends,
Mandore is where Mandodari married Ravana and therefore the
natives of the place believe Ravana to be their son-in-law. It is
because of this reason that instead of burning the effigy, 'Shraadh'
and 'Pind Daan' are performed as per the Hindu customs for the
demon-king Ravana.5 3 Applying the ERPT in such a scenario, we
would find that the burning of this effigy of Ravana is an essential
practice in the rest of India, while in Mandore, the same cannot be
thought of in the worst of nightmares.

One example is the Gram Sabha case,54 where members of a

particular sect claimed that capturing and worshipping a live cobra
during the festival of Nagpanchami was an essential religious practice
of their religion. The plaintiffs relied on the local text, Shrinath
Lilamratin making their claim, while the court, on the contrary, relied
on the Dharam shastras (general Hindu text) in holding that the act
was not an essential religious practice and thus cannot be protected.
Again, the fact is that India is a land of diversity and therefore no
religion, Hinduism in the present case, can be fitted into a single
compartment.

As far as the Sabarimala issue is concerned, women of menstruating

age are not allowed to enter the residing place of Lord Ayappa and

58 places in India where Ravana will not be set on fire, THE STATESMAN (Jan. 9,
2019), https://www.thestatesman.com/india/8-places-in-india-where-ravana-will-
not-be-set-on-fire-1502698429.html.
54
Gram Sabha of Village Battis Shirala v. Union of India, 2014 SCC OnLine Born
1395.

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such belief of the people should be respected. It is said that Ayappa

resides in the Sabarimala temple in the form of Naishtik
Brahamchari,that is, the eternal celibate. The God's vow of celibacy
demands him to refrain from any menstruating woman, meaning,
neither can he touch nor see a woman of such age. If a woman is
allowed to enter the temple, his vow would be broken and his unique
form of Naishtik Brahamcharya would be disturbed." For the
members of the community who believe in this idea of Ayappa's
celibacy, the application of the ERPT would be demeaning their
beliefs. What is more concerning is the assumption of absolute power
by the State. Such concentration of power does not and should not
have any place in a democracy.

The reason behind stating the above situation is that what may be
construed as essential to one place need not be necessarily essential in
another. The Sabarimala case is a unique one. The practices of one
temple in Kerala are different from practices in others. There are
temples where entry of men is not allowed, temples where the God is
offered the lamb in prasadam, but do these unique practices make
such temples anti-Hindu? Certainly not, these practices are respected
despite being relative in nature and so must be the issue in
Sabarimala. It is simply a temple with unique and relative practices.

There is no straight jacket formula to ascertain what is essential to

religion. The judiciary cannot turn a blind eye to the relativity and
subjectivity that comes along with religion. Scrutinizing the
minuscule details of religion from a cold, calculated and objective
approach is not the right way to go about protecting this natural and
fundamental right of the citizens of our country. As soon as we start
attempting to categorize beliefs into compartments of right and
wrong, we start to ignore the grey areas and the possibilities that

"Here's why women are barredfrom Sabarimala; It is not because they are
unclean', FIRST POST (Jan. 9, 2019), https://www.firstpost.com/india/why-
women-are-barred-from-sabarimala-its-not-because-they-are-unclean-
2583694.html.

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come with the diversity that exists in India. The assortment of beliefs,
values and cultures is what makes India a country of such uniqueness.
Simply because there is a group of people who dissent and disagree
with such a belief, the court cannot test specific practices on a general
understanding of religious norms. On the contrary, there would
definitely be a large fraction of people who would be invested in such
a practice for years. The purpose of law is finding equilibrium
between dissent and acceptance and we cannot go on measuring and
testing customs and values by blatantly applying the principles of
equality or fairness in every situation. Thus, everything boils down to
the bottom line that religion is relative. The words, right and wrong,
fair and unfair, have no place where religion is concerned.

C. The ERPT limits the scope of natural reformation of religion.

One of the features of the ERPT is that only those religious practices
are considered to be essential to a religion which have been in
existence since the time of birth of that religion. In the case of
Commissioner of Police v. Avadhut,56 the Calcutta High Court had
held that the Tandava dance was an essential practice of the Ananda
Margi faith. This decision was overturned on appeal, by the Supreme
Court on the pretext that the Ananda Margi faith had come into
existence in the year 1955 while Tandava dance was introduced only
in 1966.57 Therefore, the religion did exist without that practice, and
as such, it cannot be referred to as an essential practice of the religion.
Though the court in the aforementioned case ignored an important
fact that Shri. Anant Murthiji, the head of that faith had provided for
the incorporation of the Tandava dance in the revised version of
Karya, the only religious text on Ananda Margi. The dissenting

56
Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and
Anr., (2004) 12 SCC 770.
57
1d.

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opinion, in this case, did rely on the Karya, to give protection to the
practice under Article 25.58

This case sets a precedent that religious practice can only be

considered integral if it had existed since the foundation of religion.
This regressive logic thus freezes religious growth as any reform in
the religion would never be considered essential to it. 59 Extending this
to major religions such as Islam and Christianity would result in any
practice evolved after the death of Prophet Mohammed and Jesus
Christ respectively to be considered unimportant. Thus, this absurd
reasoning prevents the natural growth of a religion, which is an
important feature of the freedom of religion.

D. The ERPT attempts to rationalize religion and mould it to the

court's liking.

One of the significant drawbacks of the ERPT is that it attempts to

rationalize religion rather than accepting the belief or practice in its
original form. Consequently, it also leads to the suppression of
popular religion in favour of the elite religion, as the texts and
religious literature on which the court mostly relies is often supportive
of the latter. One such case is the Gram Sabha60 case, where feeding
snakes by a specific sect was held to be non-essential as it was not
supported by the general Hindu text of Dharamshastras.

Justice Gajendragadkar in the Durgah Committee case6 1 stated that

"even practices though religious may have sprung from merely
superstitious beliefs and may in that sense be extraneous and
unessential accretions to religion itself." Consequently, the court
differentiated between the real religion and the superstition. What the

58id.
59
FAIZAN, supra note 25.
60
Gram Sabha of Village Battis Shirala v. Union of India, 2014 SCC OnLine Bom
1395.
61
Durgah Committee v. Hussain Ali, AIR 1961 SC 1402.

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court failed to understand was a much-accepted proposition in the

realm of law, as pointed out by Chief Justice Latham in the Jehovah's
witnesses' case- "What is a religion to one is superstition to
another."62

In the case of Shastri Yagnapurushdasji v. Muldas, a group of

Satsangis were claiming protection under the Bombay Harijan
Temple Entry Act. 63 Justice Gajendragadkar in his judgment stated
that "it may be conceded that the genesis of the suit is... founded on
superstition, ignorance and complete misunderstanding of the true
teachings of Hindu religion and of the real significance of the tenets
and philosophy taught by Swaminarayan himself" 64

On analysing the texts and the teachings, it appears that the courts
have relied upon a much reformed and elite form of religion rather
than the popular one. One must understand that religion is a popular
phenomenon and may often derive its sanction not from any virtuous
texts, but from popular practices going on since time immemorial.
Had the religion been all virtuous in itself, a need to protect it would
not have ever arisen in the first place.

Justice Ramaswamy, in the case of A.S. Narayana Deekshitulu v. the

State of A.P.,65 stated that the idea of Dharma, or the core religion is
what is protected by the Constitution, rather than the conventional
religion. According to him, "Dharma is that which approves oneself
or good consciousness or springsfrom due deliberationfor one's own
happiness and also for the 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... The religious freedom
guaranteedby Articles 25 and 26, therefore, is intended to be a guide

62
Adelaide Co of Jehovah's Witnesses Inc v. Commonwealth, (1943) 67 CLR 116.
63
Shastri Yagnapurushdasji v. Muldas, 1966 SCR (3) 242.
64Id.
65A.S. Narayana Deekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.

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to a community-life and ordain every religion to act according to its

cultural and social demands to establish an egalitariansocial order."
Justice Ramaswamy, in essence, stated that the ultimate aim of
religious freedom is not to protect beliefs and practices but rather to
establish a utopian world where religion is brought in consonance
with social and cultural demands. This was certainly not in the minds
of Constitution framers when they inserted a clause for religious
protection.

Further, most of the judges in India are often influenced by the

rationalist Hinduism, as propounded by the Vedic scholars. 66 Most of
the time, reformists such as Vivekananda or Radhakrishna are cited as
authoritative scholars of Hindu religion, whereas in reality, their
works propound a much reformed idea of it. 67 The courts have
methodically been tempted to give rationalist Vedic scholars
legitimacy in the Indian religious discourse. 68 In doing so, the courts
having contracted the 'institutional space for personal faith', and
have also side-lined popular religion by, as Ashis Nandy states,
treating it as "partsof an enormous structure of irrationalityand self-
deceit, and assure markers of an atavistic, regressive way of life".6 9

Justice Indu Malhotra rightly points out in her opinion

-

"Constitutional morality in a pluralistic society and secular polity

would reflect that the followers of various sects have the freedom to
practise theirfaith in accordancewith the tenets of their religion. It is

66
Ronojoy Sen, The Indian Supreme Court and the questfor a 'rational'Hinduism,
6
1 SOUTH ASIAN HISTORY AND CULTURE 86-104 (2009).
7Id.
68Id.
69
Ashis Nandy, The Twilight of Certitudes: Secularism, Hindu Nationalism, and
other Masks of Deculturation, 22 ALTERNATIVES: GLOBAL, LOCAL, POLITICAL
157-176 (1997).

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irrelevant whether the practice is rational or logical. Notions of

rationality cannot be invoked in matters of religion by courts."70

It can therefore be inferred that the ERPT is laden with some

fundamental flaws that are not in consonance with the idea of
religious liberty. Therefore, there is a need to find an alternative to
this doctrine to ensure that a pluralist democracy such India does not
fall prey to the luring trap of impractical and a far-fetched reality of
radical religious reformation, especially by those who do not
understand it in its entirety.

IV. CONCLUSION: DEVELOPING A NEW RELIGIOUS

JURISPRUDENCE

This article has tried to examine the ERPT through a new prism. The
importance of religious freedom and the problems deep-seated in the
given test are seemingly clear now. However, having grasped the
flaws in the stand of the judiciary, it is important that we provide an
alternative to the ways adopted by the courts.

Moving forward, the court must reorient its jurisprudence in the

following manner- Firstly, the courts in usual circumstances should
refrain from deciding religious questions. At most, the courts may
decide whether a practice is religious or not, rather than how religious
the practice is. As Dr. B.R. Ambedkar had put it, the practices which
are 'essentially religious' must be protected, not the 'essential
practices of a religion'.71 The courts must look to the precedent set by
another South-East Asian country, Sri Lanka, where the Supreme
Court held in the case of PremalalPerera v. Weerasuriya, "the Court

70 Indian Young Lawyers Association and Ors. v. The State of Kerela, 2018 SCC
OnLine SC 1690.
71
Constitutional Assembly Debates, Dec. 2, 1946 speech by Dr. B.R. Ambedkar,
http://parliamentofindia.nic.in/Is/debates/vollp5.htm.

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would consider only whether the professed belief is rooted in religion

and whether the claimant honestly and sincerely entertainedand held
such belief." 2

Secondly, whenever there lies a confusion between the religious

protection and government regulation, the benefit of doubt should
always be given to religious protection. In Ananda Margi, the court
did the opposite. It observed that "Ananda Margi as a religious order
is of recent origin and the tandava dance as a part of the religious
rites of that order is still more recent. It is doubtful as to whether in
such circumstances the tandava dance can be taken as an essential
religious rite of the Ananda Margi." This implies that whenever there
has been a doubt with regard to the essentiality of the practice, the
benefit of doubt has been given to the regulation. We propose that the
opposite is what should be followed. Obviously, it is more useful to
grant freedom than take it away in case of doubt.

Thirdly, we propose that the State should be able to regulate religion

only when there exists a legitimate aim, the non-achievement of
which would compromise the State's security or character to an
intolerable degree. Applying the formula given by the jurist Gustav
Radbruch, also known as the Radbruch's formula, where a statutory
law is disregarded only when requirements of justice are
compromised to an intolerable degree, 73 freedom of religion must also
be compromised only when the State's security or character is
threatened to an intolerable degree. What would constitute
'intolerable degree' is a matter of fact. However, cases where a
temple for its own distinct reasons does not allow entry of females
within its premises, or a man because of his religious reasons keeps
on his beard, certainly do not breach this threshold. On the contrary,
cases where a certain section of the society are called 'untouchables'

72
Peremal Perera v. Weerasuriya, (1956) 2 Sri LR 177.
73
Gustav Radbruch, Statutory Lawlessness and Supra-Statutory Law (1946), 26
OXF. J. LEG. STUD. 1-11 (2006).

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throughout the nation and are treated as second class citizens would
be an area where the national character is compromised to an
intolerable degree.

Lastly, we propose that in cases of necessity, the State should be

allowed to regulate religion. For example, in a situation where goats
have become an endangered species or their numbers are seriously
threatened, the State should have the right to prohibit goat sacrifice on
Bakr-id till the required population is restored. Similarly, if the milk
production has seriously taken a setback in the nation, the State
should have the authority to prohibit the presentation of milk to Lord
Shiva on Nagpanchami for a temporary period or allow for a
compulsory milk collection mechanism in all such temples.

While we do not claim that the above suggestions are conclusive in

nature, we have proposed them as the first step towards the making of
a more inclusive religious doctrine. The doctrine that we follow
presently neglects sections and subsections of society whose practices
are not as popular as those of others. While giving importance to the
ideals of the reformists is a positive step taken by the court,
neglecting religious understanding of others places a serious doubt on
the way we see freedom of religion in our pluralist democracy.

244