The essential practices doctrine was articulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt[1] , where the mathadipati challenged the Madras HRCE Act,1951.
The central question here was: ‘Where is the line to be drawn between what are matters of religion and what are not?[2] It was the first ever case in which there was an attempt to define religion. The court relied on Adelaide Company v Commonwealth[3] and observed that a religion may not only lay down a code of ethical rules for its followers to accept, it might ‘pre scribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion … ‘ This definition overruled the narrow one in Ratilal Panachand v State of Bombay[4][5]. It also laid down guidelines as to who qualified as a religious denominations.
It was observed that what constitutes an essential practice for a religion has to be decided by looking the religion and its doctrines, and that A.26b gave complete autonomy to denominations to decide what their essential ceremonies and practices would be, and no outside authority had the power to decide for them. These essential practices would be protected by the State. The state could only regulate the secular practices of the religion, and those against public order, health, and morality.
The Court also stated that ‘protection under Articles 25 and 26 was not limited to matters of doctrine or belief only but extended to acts done in pursuance of religion and therefore contained guarantees for rituals, observances, ceremonies and modes of worship’ , and sanctioned an elaborate regulatory regime for religious institutions.
In Saraswathi Ammal v. Rajagopal Ammal[6] instead of making the essential versus non-essential argument made in Shirur Mutt, Justice Jagannadhadas preferred to refer to the Hindu scriptures. Here, the Court was making certain points which were of enormous significance to the future judicial discourse on religion- reference to religious texts, unacceptance of claims of the religion, and judging religious practices by the rules of modern society.
However, in Durgah Committee v Syed Hussain Ali[7], where the khadims contended that the Dargah Khwaja Sahib Act,1955 abridged their rights as Muslims belonging to the Sufi Chishtia order the essential practices doctrine was reformulated, by constructing a secular history instead of falling back on scriptures. The Court concluded that the administration of the shrine ‘had always been in the hands of the official appointed by the State’. It distinguished between religious practices and superstitious beliefs for the first time, and stated that they had the authority to decide what would constitute an essential practice for a religion. Therefore, the Court would act as a gatekeeper and first decide whether the practice was religious or stemmed from superstitions; if it was religious- then whether or not it was essential to the religion.[8] Only essential religious practices would enjoy constitutional protection. This was a clear statement of the Court’s role—which had not been so overt until now—in rationalising religion and marginalising practices that did not meet the Court’s test.
In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan[9], the petitioners claimed that the temple was a private one owned and managed by the Tilkayat as head of the Vallabha denomination. However, the Court held that the Tilkayat was ‘merely a custodian, manager and trustee of the temple’ The Court reiterated that they would be the final judge to decide whether or not a practice was essential to a religion. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would therefore break down.
The question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. They also stated that the claims of a community regarding what is secular and what is religious might not always be accepted.
The series of rulings in the early 1960s firmly established the principle that it was the Court’s task to ascertain what constituted religious doctrine and practice.[10]
Another significant effect of the essential practices doctrines has been the marked disinclination of the Court to accept the practices of religious groups of recent origin. In a case involving the Ananda Margis, the Court decided that the Ananda Margis were a religious denomination. However, in Acharya Jagdishwaranand v Commissioner of Police[11], the Court refused to accept the tandava dance as an essential practice of the Ananda Margis, reasoning that the ‘Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite. The Court further narrowed the scope of essential practices to mean the foundational ‘core’ of a religion.
In Sastri Yagnapurushadji v Muldas Bhudardas Vaishya[12], the Court rejected recent religious practices and laid down a three step enquiry to determine:
- Whether a claim was religious or not;
- Whether it was essential to the faith;
- Even if it was essential, it had to comply with public interest and the reformist requirements of the constitution.
The current model of the doctrine is:
- It includes ceremonies
- Includes practices foundational to the religion
- The religion has no authority to decide what are essential practices, they would be decided by the Court.
- Religious practices need to be differentiated from superstitious beliefs
- Religious practices need to be differentiated from secular ones.
- Recent religions with recent religious practices are discarded.
Instances of intervention have also been noted recently, for instance in the Ayodhya Case. However, as Rajeev Dhawan and Fali Nariman have pointed out, With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed 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. [13]
[1] Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt 1954 AIR 282
[2] Sen R, “The Doctrine of Essential Practices,” Articles of Faith: Religion, Secularism, and the Indian Supreme Court(OUP INDIA 2019) <https://jguedu-my.sharepoint.com/personal/apagedar_jgu_edu_in/Documents/Consti%20Sec%20D/Article%2025-28%20Religion/Essential/Ronojoy%20Sen%20-%20Articles%20of%20Faith_%20Religion,%20Secularism,%20and%20the%20Indian%20Supreme%20Court-Oxford%20University%20Press%20(2018).pdf?CT=1623624447217&OR=ItemsView>
[3]Adelaide Company v Commonwealth (1943) 67 CLR 116
[4] Ratilal Panachand v State of Bombay 1954 SCR 1035
[5] Secularism and Religious Freedom” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford handbook of the Indian Constitution (Oxford University Press 2016) <https://jguedu-my.sharepoint.com/personal/apagedar_jgu_edu_in/Documents/Consti%20Sec%20D/Article%2025-28%20Religion/Essential/Secularism%20and%20Religious%20Freedom.pdf?CT=1623944855886&OR=ItemsView> accessed June 24, 2021
[6] Saraswathi Ammal v. Rajagopal Ammal 1954 SCR 277
[7] Durgah Committee v Syed Hussain Ali 1962 SCR (1) 383
[8] Secularism and Religious Freedom” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford handbook of the Indian Constitution (Oxford University Press 2016) <https://jguedu-my.sharepoint.com/personal/apagedar_jgu_edu_in/Documents/Consti%20Sec%20D/Article%2025-28%20Religion/Essential/Secularism%20and%20Religious%20Freedom.pdf?CT=1623944855886&OR=ItemsView> accessed June 24, 2021
[9] Tilkayat Shri Govindlalji Maharaj v State of Rajasthan 1964 SCR (1) 561
[10] Secularism and Religious Freedom” in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford handbook of the Indian Constitution (Oxford University Press 2016) <https://jguedu-my.sharepoint.com/personal/apagedar_jgu_edu_in/Documents/Consti%20Sec%20D/Article%2025-28%20Religion/Essential/Secularism%20and%20Religious%20Freedom.pdf?CT=1623944855886&OR=ItemsView> accessed June 24, 2021
[11] Acharya Jagdishwaranand v Commissioner of Police 1984 SCR (1) 447
[12]Sastri Yagnapurushadji v Muldas Bhudardas Vaishya 1966 SCR (3) 242
[13] Sen R, “The Doctrine of Essential Practices,” Articles of Faith: Religion, Secularism, and the Indian Supreme Court(OUP INDIA 2019) <https://jguedu-my.sharepoint.com/personal/apagedar_jgu_edu_in/Documents/Consti%20Sec%20D/Article%2025-28%20Religion/Essential/Ronojoy%20Sen%20-%20Articles%20of%20Faith_%20Religion,%20Secularism,%20and%20the%20Indian%20Supreme%20Court-Oxford%20University%20Press%20(2018).pdf?CT=1623624447217&OR=ItemsView>
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