Brain Booster Articles
COLOURING RELIGION ON LAW: ERP TEST, A JUDICIAL OUTREACH?
Author: Komal Chhajer, IV year of B.A.,LL.B. from Indore Institute of Law
The Constitution of India 1950 provides for freedom to profess, practice and propagate one’s respective religion. Although the ‘religious practices’ are nowhere defined in Constitution. The Constitution, however, restricts any such freedom of religion unless it hampers the public order, morality, public harmony, etc. In the working of Supreme Court ever after independence have have faced major challenges regarding the conflicts of law and religion. Where the petitions addressing the issues of religious practices as constitutional or not, the Supreme Court of India evolved with the doctrine of ‘Essential Religious Practice Test’ to judge the matters relating to religion and religious fundamental rights and its reasonable restrictions. This doctrine is applied plethora of times in last seven decadesfor example in Sabarimala Temple Case, in Triple Talaq Case, in Cow Slaughter case, etc. Since law and religion are two separate subjects and that even the Apex Court has no explicit power to decide the essentiality of religious practices. This research paper will endeavour to highlight the fundamental outreach of power of interpretation by the Supreme Court and colouring the law with the religion.
The ERP test is once again highlighted, especially for jurists, in ongoing ‘Karnataka PU Hijab Controversy’ and the research question that the researcher would be addressing in this research paper is that, whether the ERP Test is necessary to address in all matters touching the edge of religion or not? Whether is it an example of judicial outreach?
Keywords: Supreme Court, Fundamental Rights, Religious Freedom, Law and Religion, Hijab Controversy, etc.
How Law and Religion are separate in India?: Introduction
India was formed on its own after the colonial rule by voluntary amalgamation of many princely states and other island states of Indian Subcontinent. Due to India’s dynamic and diverse existing religious followers, the framers of draft Constitution of India were very well aware of following disputes: religious-law, religion-state, religion-philosophy, religion-court, etc. Hence the supreme ruling draft of our country was already embodied with Fundamental Rights protecting the freedom of religion in part III from Article 25 to 28. Broadly these provisions says that State must be neutral in addressing religious matters, which means that the Government cannot make any negative discrimination against any religion or religious community. This was reconfirmed by 42nd Amendmentto Constitution with inserted the word ‘secular’ in the preamble of Constitution.
But this secularism word depicts the positive secularism because it restricts the State to form any policy, law, regulation, guidelines, etc. that resists the individuals from freely exercising their Freedom of Religion. The above-mentioned reasoning clearly infers that state and its laws cannot restrict the religion unless the public order and morality is questioned.
On the other hand, religion, is a way of life and is practiced in diverse ways in India. Every religion is based of general holy book or principles and are ostensibly considered as grundnorm of that religion. However, we need to understand that every religion is further sub-divided into many sects which might (not necessarily) have different concept of their ultimate religion and those sects might believe and practice some different religious practice but ultimately are followers of the teachings of the ultimate religion.
In other simple words we can say that religion is general in domain and its sects are its special domain. Similarly secular domain (state cannot favour any religion and has to be neutral) and religious domain (In which Indian people may follow any religion of their choice freely within the territories of India) are different concepts. Where secular domain puts a liability on state for being religious neutral in political nature and religious domain gives freedom of religion in India. Hence religion cannot be controlled or favoured by any law or policy and inconsonance with that law and religion are completely non-parallel concepts in India.
Statement of Problem
Since India is known for its unity in diversity, the co-existence religious disputes were predictable. Hereby the legislature has a negative restriction on interference in religious matters and that no legislative body can form any statute addressing a pure religious matter and nothing beyond, creating a void for judiciary, as there is absence of law for religious disputes in consonance with Fundamental Rights. The existing of multiple religion and their various sects with different religious practices challenged the Apex Court in dealing with conclusion. The problem aroused when the court ostensibly ignored the practices of sects and just referred the granths, holy books of that religion. The problem also came as the court were least interested in addressing the religious beliefs on the community but were dealing with the general idea of that religion. Further on that general basis endeavoured to codify the essential religious practices. This doctrine narrowed the concept of freedom of religion, which is in itself in inconsonance with Fundamental Rights enshrined in our Constitution.
Doctrine of Essential Religious Practice: History and its Application by Apex Court
The entanglement of law and religion reached the court but there was no straight jacket formula to conclude the cases. The inability of state to enter into the personal religious matters pushed the Apex Court to use its power of Judicial Activismand hence developed a doctrine called Essential Religious Practice Test aka ERP Test to demarcate the essential and non-essential religious practices to be embodied into the ambit of constitutional validity. The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the Shirur Mutt Case in 1954. The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
Essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
The ERP test was applied several times by Apex Court such as in Shayara Bano Case which was addressing the issue of triple talaq, the Apex court instead of applying the theory of discrimination on the basis of sex applied the talaq as essential practice or not, the similar theory of equality could have been applied in Sabarimala case but the Apex Court applied mansturating women entering a temple will not hamper the essential religious practice of Hinduism. The court simply outreached its power of interpretation, and applied the test of ERP in non-essential legal matters, and certainly gave it religious colours.
The Supreme Court in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police held that courts have power to determine the essential and non-essential practices of a religion by using the principles of that particular religion. In this case the Supreme Court did not consider ‘tandava dance’ to be an essential practice of Hinduism. The Bombay High Court in the case of Gram Sabha of Village BattisShirala v. Union of India held that capturing and worshiping a live cobra during Nagpanchami is not an essential religious practice of the petitioner’s religion. The Court relied upon the Dharma Shastras while the petitioners relied upon their local religious text ShrinathLilamrut. The Courts should keep in conscience that every religion in India have diversity. There are various sects and practices within every religion in India. Therefore, the courts should not adhere to a general religious texts of any religion to justify the practices of any heterogeneous sect of that religion. The Calcutta High Court in the case of Acharya Jagdishwaranand Avadhuta v. Commissioner of Police stated that the court by deciding the essentiality of a religious practice, creating confusion among the people of that religion. This infers that the Court has arbitrary powers since every time a practice comes into the test of essentiality the approach would be judge centric and not community centric. The ERP Test ultimately created vagueness within and amongst the religion. So now the approach of addressing law and religion is completely defined by the Apex Court based of the experiences and view point of Judges rather than the followers of that religion or sect or community whose practice is into the test. If we take the USA Supreme Court view, it rather defines religion on the basis of believer’s perspective.
USA Supreme Court’s Approach in addressing law and religion matters If we take the USA Supreme Court view, it rather defines religion on the basis of believer’s perspective and not the general
Hijab Controversy: Next to give ERP Test
Recently MGM Pre-University college of Udupi’s internal committee discarded the wearing of hijab (a head covering scalf wore by Islam follower women) in college classes but not in college premises. This step was taken to avoid any kind of non-uniformity amongst students in an education institution. However the aggrieved girls filed a petition claiming violation of Fundamental Right to freedom of expression of religious identity.According to researcher the matter can be resolved by Doctrine of Equality also enshrined in Right of Equality to be protected by state. However, the Karnataka High Court will certainly look into the matter of whether hijab is essential religious practice in Islam or not. This question to be addressed by the High Judiciary is per se judicial outreach as the court will look into the general aspects of that religion and not the religious beliefs of petitioners. In this way the Courts are unintentionally setting a principal of discarding the religious beliefs of different sects.
The legal question that the court must keep into consideration is whether uniformity amongst students in educational institution is within the ambit of fundamental right of freedom of speech and expression or not.
But on the other hand, the courts are trying to build an unnecessary nexus between essentiality in religious practice to the practices followed by custom which ultimately has tendency to narrow down the concept of freedom of expression and freedom of religion.
The Karnataka High Court is addressing the matter on ERP Test rather than addressing it with Freedom of Speech and Expression protected to citizens in Fundamental Rights. The matter is now concerned towards whether hijab is essential religious practice or not. The issue can be resolved by the constitutional and legal basis but is certainly given and added religious colours which further hampers the communal disorder in society at large.
The Constitution of India empowers the fundamental rights of freedom of religion, freedom of speech and expression, freedom of equality and non-discrimination, etc. The Judiciary has been given the huge responsibility in interpretating the question of law and societal issue at large where the law has been silent. But this power is massively misused by the Apex Court.
Judicial activism when turned to judicial outreach result in following:- It destroys the spirit of the constitution as the democracy stands on the separation of powers between the organs, it creates a conflict between the legislative and the judicial system, it diminish trust of the people in public institutions which can be dangerous for democracy, results in tyranny of unelected as Judges assumes central role in day to day decision making, entertaining all PILs results in over burdening the Judiciary, which can otherwise be utilized for clearing the pending cases before courts.
In the recent times, the judiciary has been seen as overreaching and intruding in the space of the legislature and the executive.This can create unhealthy asymmetry in the delicate balance among institutions in the country as envisaged in the Constitution. Judiciary, for all purposes must act the guardian and interpreter of the Constitution and must observe judicial restraint wherever necessary, especially to avoid face off either with the legislature or the executive.
Krishnadas Rajagopal, Supreme Court not to review Sabarimala case, to examine ‘larger issues’, The Hindu, January 13, 2020.
Ranbir Singh &Karamvir Singh, Secularism in India: Challenges and Its Future, 69 INDIAN J. POL. SCI. 597, 603 (2008).
Ronojoy Sen, Legalizing Religion: The Indian Supreme Court and Secularism, Policy Studies 30, 10 (2007).
SanghamitraPadhy, Secularism and Justice: A Review of Indian Supreme Court Judgments, 39 Economic and Political Weekly 5027, 5027 (2004).
Suvam Kumar, The Essentiality of Essential Religious Practice Test in Light of Recent Supreme Court Decisions, RMLNLU Constitutional Law and Public Policy Blog, https://seclpp.wordpress.com/2019/03/14/the-essentiality-of-essential-religiouspractice-test-in-light-of-recent-supreme-courts-decisions/ (Accessed on May 10, 2020).
Udit Singh, Essential Religious Practices Test and the Supreme Court of India: A Critical Analysis, International Journal of Law Management & Humanities, [ISSN 2581-5369] Volume 4 | Issue 3 2021, pg. no. 1857 – 1865.
Constitution of India, 1950.
 Art. 142 COI Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt,1954 SCR 1005. https://www.drishtiias.com/daily-news-editorials/supreme-court-on-religious-practices ShayaraBano v. Union of India, AIR 2017 SC 4609. Youngh Lawyers Association v. State of Kerela, 2018 SCC OnLine SC 1690.  (1983) 4 SCC 522. (2003) 133 PLR 537.  Udit Singh, Essential Religious Practices Test and the Supreme Court of India: A Critical Analysis, International Journal of Law Management & Humanities, [ISSN 2581-5369] Volume 4 | Issue 3 2021, pg. no. 1857 - 1865 https://www.ijlmh.com/wp-content/uploads/Essential-Religious-Practices-Test-and-the-Supreme-Court-of-India.pdf  AIR 1990 Cal 336. Supra note 6. Anonymous, Hijab Controversy spreads to two more Colleges in Udupi, THE HINDU (7 Feb. 2022) https://www.thehindu.com/news/cities/Mangalore/hijab-row-spreads-to-two-more-colleges-in-udupi-updated-copy-for-print/article65044239.ece Art. 19(1)(a) Constitution of India, 1950. Art. 14 Constitution of India, 1950. Supra Note 13. Anonymous, Judicial Review Judicial Activism Judicial Overreach, RauIAS, (May 15, 2021) https://www.rauias.com/daily-current-affairs-for-upsc-ias/judicial-review-judicial-activism-judicial-overreach-upsc/