LL.B. pass Judge: a black robe and not a cassock!

“May it please Your Lordships, the counsel wants to humbly submit that you are wearing a black robe and not a cassock…” a law student candidly urged the bench in a moot court concerning the doctrine of Essential Religious Practice (“ERP Test”) as the moot point. This article takes us to the long unconcluded debate regarding the role of the Judiciary in adjudicating religious issues to satisfy the ERP test manufactured allegedly in the exercise of judicial overreach.

Anniversary Of Sabrimala Reference Judgment

On Nov. 14, a year will end after the Sabrimala case was referred to be reviewed by the larger Bench in the case of Kantaru Rajeevaru. The majority in the Sabrimala case rejected even to consider Sabrimala Shrine of Lord Ayyapa as a denominational religious institute. Further, they did not even accept that the ‘practice to exclude women in the age group of 10 to 50 years’ is essential to religion. The judgment allowed the Women of the menstruating age to enter the temple premises.

Earlier Approach: Flourishing Religious Freedom

The constitution maker Dr. B.R. Ambedkar envisaged protecting the beliefs and ceremonies that are essentially religious. The Supreme Court was very liberal in interpreting the rights that religious organizations are entitled to enjoy. In 1954, a seven Judges Constitution Bench held that religious denominations have complete autonomy to the exclusion of any outside interference to determine the essential part of their religion (Shirur Mutt case). This was affirmed by another five Judges Constitution Bench in Ratilal Panachand Gandhi v. State of Bombay, 1954. These interpretations were in line with the observations of Dr. Ambedkar. This was the era of flourishing religious freedom.

Evolution of Essential Religious Practice Test: An Outcome Of Judicial Overreach

In 1957, the question of whether the practice of bigamy to have a son’ is protected for Hindus under the right to religion was placed before the Allahabad High Court. The Court rejected it by stating that, as per its mind, the impugned practice was not essential to the Hindu religion (Ram Prasad Seth case). This approach was adopted by the Supreme Court in Qureshi case, and hence became the law of the land. This is the shift in the approach of the court vis-à-vis scope of religious freedom, from “essentially religious” to “essential to religion”. This judicial innovation was a blow to religious freedom in India.

Essential religious practice enables the court to delve into the text of the religion concerned to determine whether the impugned practice is an essential part of religion. The court also enquires about the history of such practice, the contemporary relevance, and usage of it. In Commr. of Police v. Acharya Jagadishwarananda Avadhuta, 2004, it was held that:

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 religion is built, without which 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…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…Nobody can say that an essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion… 

Essential Religious Practice: A Need To Reconsider

The judicially manufactured doctrine of ERP has been severely criticized by noted scholars. Mr. Gautam Bhatia wrote:

The judiciary…possesses neither the competence nor the legitimacy to decide what constitutes an “essential practice”; it is not, after all, the Supreme Court of Hinduism (quotes omitted)…The Constitution does not mention the term “essential religious practice”: it grants protection to the right to practice, profess and propagate one’s religion, not just to engage in the “essential practices” of religion.” 

Dr. Manwendra Tiwari sarcastically inquires as to who are LL.B. pass judges (to determine the essentials of a religion). Further, Prof. Faizan Mustafa gave three arguments against the ERP test:

  1. It lays objective criteria for determining what is essential to religion. This is fundamentally wrong because the idea of any religion is very subjective. He quotes from an Australian High Court judgment that “What is religion to one is superstition to another”.
  2. It assumes that one practice of religion is independent of the others wherein certain things are central to it and others are not. This is flawed because it is the summation of various elements and practices that constitute any religion.
  3. It supposes religions as static wherein what was central a long time ago shall be so even today. The assumption is unsustainable because Religions like everything else be allowed to evolve with time.

Glimpses Of Changing Judicial Approach  

The changing approach can be assumed from the dictum of the court in Ayodhya Judgment and Kantaru Rajeevaru cases. It is expected that a change in the interest of religious freedom in the country will take place. In the Ayodhya case, the court observed that:

“We must firmly reject any attempt to lead the court to interpret religious doctrine in an absolute and extreme form and question the faith of worshippers. Nothing would be as destructive of the values underlying Article 25 of the Constitution.” 

This observation of the court is in line with the earlier approach of the Supreme Court. In the Kantaru Rajeevaru case, the court referred the Sabrimala case to a larger bench to determine the scope of religious freedom vis-à-vis the role of the courts to enquire into the religious issue. This was done allegedly violating the established rules for the review to finally settle hordes of issues related to ERP. The dissenting judges in Kantaru i.e. J. R. F. Nariman and J. D.Y. Chnadrachud were the ones who authored the majority judgment in Sabrimala allowing the menstruating women to end the temple premises. These observations together indicate the changing dynamics in favor of religious freedom.

Conclusion

The Chief Justice constituted a numerically prosperous nine judges bench to finally settle this issue concerning religious freedom. This is only the sixteenth time when a bench of such strength is formed in the Constitutional history of seventy years in the Republic of India.  The numerical strength empowers it to overrule any previous judgment delivered by the Hon’ble courts regarding the religious freedom to finally declare the Law in this regard. Eventually, what comes out from the Apex court will determine the scope of religious freedom in India. It is expected that the Court will consider the criticisms of various scholars to finally refrain itself from determining the religious issue. Hopefully, the Court will declare the Law that would be consistent with earlier decisions of the Supreme Court and the views expressed by Dr. Ambedkar as aforementioned.

Aditya Puri is reading Law at National Law University, Jabalpur. It bothers him as to how, socially, the religious claw is gaining violent relevance but, judicially, the scope of religious freedom has been narrowed.  He can be reached at approach.aditya04@gmail.com.

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