Early Formulations: The Shirur Mutt Landmark

The genesis of the ERP doctrine is often traced to the Supreme Court's decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954 AIR SC 282). In this seminal case, the Court observed that "religion" is a matter of faith with individuals or communities and is not necessarily theistic. Crucially, it held that Articles 25 and 26 protect not only matters of doctrine or belief but also acts done in pursuance of religion, including rituals, observances, ceremonies, and modes of worship which are integral parts of religion. The Court stated, "what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion" (Adi Saiva Sivachariyargal Nala Sangam And Others v. Government Of Tamil Nadu And Another, 2016 SCC 2 725, citing Seshammal v. State of T.N, 1972 2 SCC 11, which summarized Shirur Mutt). This expansive interpretation laid the groundwork for judicial inquiry into the nature of religious practices.

The Shirur Mutt case also emphasized the autonomy of religious denominations under Article 26 to manage their own affairs in "matters of religion." This right, however, was made subject to regulation by the State for aspects like administration of property, provided such regulation did not interfere with essential religious practices themselves.

Refinement and Caution: The Durgah Committee Case

A significant refinement and a note of caution were introduced by the Supreme Court in Durgah Committee, Ajmer, And Another v. Syed Hussain Ali And Others (1961 AIR SC 1402). The Court observed:

"in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other." (Durgah Committee, Ajmer, And Another v. Syed Hussain Ali And Others, Supreme Court Of India, 1961, as quoted in various subsequent judgments like Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another, Supreme Court Of India, 2004).

This ruling underscored that not all practices claiming religious sanction would receive constitutional protection. The judiciary asserted its role in scrutinizing claims to ensure that only genuinely essential and integral practices, and not secular activities or superstitious accretions, are shielded. This case highlighted the potential for the doctrine to be used to filter out practices that the court deems non-essential or undesirable, even if claimed as religious by a section of believers.

The "Core Beliefs" and "Fundamental Change" Test

Over time, the Supreme Court has attempted to provide a more concrete test for determining essentiality. In Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another (Supreme Court Of India, 2004), the Court elucidated:

"Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part."

The Court further added, "There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event." This test emphasizes the foundational nature of an ERP and its indispensability to the religion's identity.

Role of Religious Texts and Community Ascertainment

In determining essentiality, courts often look to religious scriptures, doctrines, and the historical practices of the community. In A.S Narayana Deekshitulu v. State Of A.P And Others (Supreme Court Of India, 1996), it was noted that "The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed."

The Sabarimala judgment (Indian Young Lawyers Association And Others Petitioner(S) v. The State Of Kerala And Others (S), Supreme Court Of India, 2018) reiterated that "The ‘essential practises test’ in its application would have to be determined by the tenets of the religion itself. The practises and beliefs which are considered to be integral by the religious community are to be regarded as 'essential', and afforded protection under Article 25. The only way to determine the essential practises test would be with reference to the practises followed since time immemorial, which may have been scripted in the religious texts of this temple." However, the weight given to community perception versus judicial interpretation remains a complex issue.

Judicial Scrutiny versus Denominational Autonomy

A persistent tension exists between the judiciary's role in determining ERP and the autonomy claimed by religious denominations to define their own essential practices. While Article 26 grants denominations the right to manage their own affairs in matters of religion, this is subject to the court's interpretation of what constitutes a "matter of religion" and an "essential practice." The reference to a larger bench in Kantaru Rajeevaru v. Indian Young Lawyers Association Through Its General Secretary Bhakti Pasrija And Others (Supreme Court Of India, 2020) (Sabarimala Review) explicitly includes the question: "The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group." This highlights the ongoing debate about the appropriate scope of judicial review in such matters and a perceived conflict between the approaches in Shirur Mutt and Durgah Committee.

Ananda Marga and the Tandava Dance

The case of the Ananda Marga sect and its Tandava dance illustrates the application of the ERP doctrine. In Acharya Jagdishwaranand Avadhuta And Others v. Commissioner Of Police, Calcutta And Another (1983 SCC 4 522), the Supreme Court held that the Tandava dance, as performed in public processions, was not an essential religious rite of the Ananda Marga faith. The Court reasoned that the practice was a relatively recent addition (introduced in 1966) and not an intrinsic part of the sect's core religious tenets from its inception. This was despite an earlier Calcutta High Court ruling (Acharya Jagadishwarananda Avadhuta And Another v. Commissioner Of Police, Calcutta And Others, 1990 SCC ONLINE CAL 104) which had found the Tandava Dance to be an essential part of Ananda Margis' religious practices. The Supreme Court's 2004 judgment in a related matter (Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another) further elaborated on the test for essentiality, reinforcing that practices must be fundamental and their removal must alter the religion's character.

Excommunication: Sardar Syedna Taher Saifuddin Saheb

In Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay (1962 AIR SC 853), the Supreme Court dealt with the power of excommunication within the Dawoodi Bohra community. The majority held that the Bombay Prevention of Excommunication Act, 1949, which invalidated excommunication, violated Article 26(b) of the Constitution. The Court found that the power of the Dai-ul-Mutlaq (the religious head) to excommunicate members on religious grounds was an essential part of the community's faith and practice, crucial for maintaining discipline and doctrinal purity. This case affirmed that practices related to community discipline, if deemed essential, could receive constitutional protection.

Triple Talaq: Shayara Bano

The constitutional validity of Talaq-e-Biddat (instant triple talaq) was examined in Shayara Bano v. Union Of India And Others (2017 SCC 9 1). The Supreme Court, by a majority, held the practice to be unconstitutional. One of the key findings was that triple talaq was not an essential religious practice in Islam. The Court noted that several Islamic countries had abolished it and that it was considered sinful in Islamic theology. The judgment emphasized that practices that are arbitrary and violative of fundamental rights like equality (Article 14) cannot claim protection as essential religious practices. It also affirmed that personal law, to the extent it is manifested in a statutory form or is otherwise subject to Part III, is not immune from constitutional scrutiny.

Sabarimala Temple Entry: Indian Young Lawyers Association

The exclusion of women of menstruating age (10-50 years) from the Sabarimala temple was challenged in Indian Young Lawyers Association And Others Petitioner(S) v. The State Of Kerala And Others (S) (2018 SCC ONLINE SC 1690). The Supreme Court, by a 4:1 majority, held the practice unconstitutional. The majority found that the exclusion was not an essential religious practice. It was reasoned that the devotees of Lord Ayyappa did not constitute a separate religious denomination, and even if they did, the practice was discriminatory and violative of Articles 14, 15, and 25 of the Constitution. The Court stated, "Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one's religion." Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which supported the exclusion, was struck down as ultra vires the parent Act and violative of the Constitution.

The Hijab Controversy: Aishat Shifa

The case of AISHAT SHIFA v. THE STATE OF KARNATAKA (Supreme Court Of India, 2022) concerning the permissibility of wearing a hijab in educational institutions with prescribed uniforms resulted in a split verdict from a two-judge bench. One judge (Gupta, J.) upheld the government order restricting the hijab, finding that wearing it was not established as an ERP. The judgment noted, "If Essential Religious Practice as a threshold requirement is not satisfied then the case would by extension not travel to the merits surrounding the domain of those Constitutional Values." It was argued by the State that wearing a headscarf may be a religious practice but not essential, as non-following would not render a believer non-Muslim.

However, the other judge (Dhulia, J.) opined that the ERP test was not relevant for determining an individual's right under Article 25(1). Justice Dhulia stated, "when protection is sought under Article 25(1) of the Constitution of India... it is not required for an individual to establish that what he or she asserts is an ERP. It may simply be any religious practice, a matter of faith or conscience! Yes, what is asserted as a Right should not go against 'public order, morality and health,' and of course, it is subject to other provisions of Part III of the Constitution." This dissenting view questioned the necessity of the ERP test as a threshold for individual religious freedom claims, suggesting an alternative approach focusing on the validity of restrictions and the doctrine of proportionality, referencing Bijoe Emmanuel and Ors. vs State of Kerala and Ors (1986 3 SCC 615). This divergence underscores the ongoing debate about the scope and application of the ERP doctrine.

Judicial Overreach v. Social Reform

A primary criticism of the ERP doctrine is that it often requires courts to delve into complex theological interpretations, effectively acting as arbiters of religious doctrine. As noted by the Madhya Pradesh High Court in Aarsh Marg Seva Trust And Another v. State Of M.P. And Others (Madhya Pradesh High Court, 2019), "This Court is not a theological wizard and shall be transgressing its role as a constitutionist authority by interfering with the essential religious practice, which is certainly not at all opposed to public order, morality, health or any other fundamental right." While the state has the power to enact laws for social welfare and reform under Article 25(2)(b), the determination of what constitutes an ERP can significantly impact the scope of such reforms. The judiciary's role in distinguishing essential practices from "superstitious beliefs sans reason or rational basis" (MUBEEN FAROOQI v. STATE OF PUNJAB AND OTHERS, Punjab & Haryana High Court, 2020) is fraught with difficulty and potential for subjective interpretation.

Impact on Minority Rights and Individual Freedoms

The application of the ERP doctrine can have varied impacts on minority religious communities and individual freedoms within religious groups. While cases like Sardar Syedna protected a minority community's internal disciplinary practices, others, like the Ananda Marga cases, saw the Court deeming certain practices non-essential. The doctrine can also be invoked in intra-community disputes, where different factions may have conflicting views on what constitutes an essential practice. The balance between protecting group autonomy and safeguarding individual rights (especially of women and marginalized sections within the religious group, as seen in Shayara Bano and Sabarimala) is a constant challenge.

The "Constitutional Morality" Overlay

The concept of "constitutional morality" has increasingly been invoked by courts when assessing religious practices, particularly in cases like Sabarimala. The argument is that religious practices, even if claimed to be essential, must conform to the overarching values of the Constitution, including equality, dignity, and non-discrimination. The Sabarimala review reference (Kantaru Rajeevaru, 2020) specifically asks for delineation of "morality" or "constitutional morality," questioning whether it is an overarching morality or limited to religious beliefs. This introduces another layer of judicial scrutiny beyond the traditional ERP test.

ERP as a Threshold for Article 25(1) Protection

As highlighted in the split verdict in Aishat Shifa (2022), there is a growing debate on whether establishing a practice as an ERP is a necessary precondition for an individual to claim protection under Article 25(1). If any sincerely held religious belief or practice (not necessarily "essential" to the religion itself) is protected, subject to public order, morality, and health, the scope of religious freedom would be broader, and the judicial inquiry would shift from the essentiality of the practice to the validity and proportionality of the restriction imposed on it.