By — Shatakshi Sharma

Abstract

There is a unique paradox inherent within the Indian Constitution which grants freedom of religion to citizens through Articles 25 and 26, and at the same time allows the State to interfere in the economic and administrative functioning of the religious institutions. The debate regarding who should have control over the properties of religious institutions has been raging for decades now. This paper will examine the evolution of the doctrine of “Essentiality or Essential Religious Practices” (ERP), devised by the courts to demarcate the essential religious activities of an institution from its administrative functioning. Through the discussion of two cases – one being the prolonged dispute on the management of Hindu temples’ endowments and the other concerning the constitutional validity of the Waqf (Amendment) Act, 2025 – the paper aims to discuss the implications of the ERP doctrine. Can there ever be religious freedom in India?

Introduction

The freedom of religion in India is not one, but a cluster of several freedoms. Article 25 confers upon everyone the freedom of conscience and the right to profess, practice, and propagate religion; Article 26 confers upon each religious denomination the right to establish institutions, manage their religious affairs, and manage their properties. In theory, this appears to be an ironclad bulwark for the protection of religious activity. But in fact, both Articles 25 and 26 qualify, insofar as the former is concerned with public order, morality, and health, and with respect to the latter with the power of the State to regulate secular activities in connection with religious practice and to open up the institutions of Hindus for social reform. 

The constitutional tension becomes apparent, manifesting itself when a state government tries to take control of a temple trust, when there is a challenge to an act regarding religious endowments before the court, or even when a legislative body amends the conditions regarding management of the property owned by a mosque. The 2020 Supreme Court decision in which the Travancore royal family was allowed to reclaim control over the gold-studded Sree Padmanabhaswamy Temple, and the 2025 challenge to the validity of the Waqf Amendment Act are very different cases in terms of religion, geography and subject matter, but they ask the same constitutional question: at what point does the right of a community to control its own religious matters give way to regulation by the state? This article explores that question from three angles.

Part 1 – The Constitutional Architecture of Religious Freedom

The makers of the Constitution consciously made freedom of religion a fundamental right but also subjected it to certain restrictions. While Article 25 confers rights to “all persons” and hence is an individual right that can be enjoyed by both citizens and non-citizens of India, Article 26 confers rights to “religious denominations”, which makes it a collective right applicable only to those religious bodies. The difference among them goes beyond this point. The two rights is required for the reason that one cannot equate the right to worship as per one’s faith with the right to manage one’s religious affairs. There is also a more important point about the nature of Article 25. It has been made expressly subject to the other fundamental rights provided in Part III of the Constitution, while Article 26 has not been so.

Even more problematic, Article 25(2)(b) highlights “Hindu religious institutions of a public character,” allowing for a separate proviso for their reform and making them accessible to all parts of Hindus, which is by extension also applicable to Sikhs, Jains, and Buddhists. Thus, the public Hindu temples become legally situated in a position which requires a higher degree of state interference than that for denominational and other religious institutions, an institutional mismatch that is present in most legal cases concerning religious property. Islamic law defines waqf properties, which are defined as permanently dedicated to God for religious and charitable purposes, with income used to maintain mosques, provide education, and support the poor, as quoted from the Supreme Court Observer in the discussion of the Waqf Amendment case. Whether the legislation concerning these properties constitutes a legal regulation by the state or an unconstitutional intrusion into the denominational administration is exactly the problem that has been discussed by the courts for decades.

Part 2 – The Essentiality Doctrine and the Courts as Arbiters of Faith

In order to give effect to Article 26(b), which guarantees that a denomination shall have the right “to manage its own affairs in matters of religion,” the Supreme Court evolved the doctrine of essentiality, a principle that distinguishes between practices considered “essential” to a religion, which are constitutionally protected, and those considered merely secular or marginal, which are unprotected. This doctrine effectively vests judicial power with theologians. As one commentator notes, the ultimate decision on whether an activity is religious or secular rests with the Court, which considers the theological and cultural context of the activity practised within the denomination for deciding upon essentiality. The implications of the essentiality doctrine are asset-specific and practical. Denominational rights to manage property are distinct from denominational rights to manage “matters of religion”; the former can be regulated by secular law, while the latter are constitutionally protected. However, if a court finds managing temple finances, appointing priests, or keeping track of endowment books a “secular” activity as opposed to a “religious” one, then such an activity falls open to all kinds of state regulation, including full state takeover, without violating Article 26.

This is exactly what happened in the Sree Padmanabhaswamy Temple case. When the Kerala High Court directed the state government to form a trust and take control of the massive assets of the temple in 2011, they were effectively declaring that the management of this temple is a secular activity, which can be regulated despite being done by a family who have been serving the role of shebait, or the custodian of the deity, in a religious capacity for generations. This decision of the Supreme Court in 2020 went against this, holding that the 1949 Covenant between the Travancore-Cochin state and the Union of India established a unique shebaitship relationship that existed independently of and was unconnected to any titles granted to Indian Rulers and thus could not be snuffed out by any regular secular takeover of the temple.

Part 3 – Temples, Trusts, and the Waqf Battle

The practical significance of the doctrine could not be better highlighted than in the pending litigation challenging the validity of the Waqf (Amendment) Act, 2025. The Act amended long-standing criteria pertaining to who is eligible to create a waqf, eligibility for appointment to the Waqf Boards and the Central Waqf Council, and procedures for verification of disputed properties, including the power to a government revenue officer to determine if the land in question is indeed waqf land. The petitioners, which include Asaduddin Owaisi, leader of AIMIM and Jamiat Ulama-i-Hind, challenged the act as an act which violated not only Articles 25 and 26 but also Article 14, Article 15, Article 19, Article 21, Article 29, and Article 300A of the Constitution by asserting that the Act is ultra vires of the Constitution by violating Articles 14, 15, 19, 21, 25, 26, 29, 30, and 300A of the Constitution. The central government’s defence of the Act used the same distinction between the secular and religious functions of the Act that was derived from the essentiality doctrine.

The interim ruling of the Supreme Court in September 2025 shows how uncertain this distinction is despite decades of development of the doctrine. However, the Court decided not to stay the entire Act while staying only some of its provisions, which were that in very rare cases a statute may be struck down. Particularly, the provisions enabling the unilateral decision of the officer to deprive a property of its status as a waqf property were stayed on the grounds of separation of powers while the general restructuring of the board of Waqf was largely left untouched until further adjudication. As per SCC Times, the Court ordered that, to the extent possible, a Muslim member of the community be appointed the CEO of the Board as a form of compromise between the two sides of the constitutional dispute.

The two cases illustrate that, notwithstanding the sophisticated approach of the essentiality doctrine, its outcome depends more on the way a certain court perceives a particular function rather than on some clearly established principles. It seems that temple management could be so secular that it could be assigned to a state-appointed committee in 2011 and so religious that it could be assigned to a royal family in 2020. Moreover, although Waqf property inspection could be considered to be such a secular activity that it could withstand the stay of the whole Act, it does not seem to be so secular as to justify the unilateral decision of the concerned authorities without a judicial order.

Conclusion

By rendering the right to exercise control over religious institutions subject to the determination of whether the activities in question can be separated from “religion” and relegated to “secular administration” through judicial intervention, the Indian Constitution created a unique legal framework whereby courts would determine what was and what was not a matter of religion. In doing so, the Indian Constitution has engendered an approach to religious rights that is flexible and fact-driven, yet unpredictable and even unbalanced in structure, because explicitly and by constitutional design, it places greater weight upon public Hindu institutions than private institutions and because it now begins to explore previously untouched territory when it comes to regulating the Waqfs of India’s Muslim community. Ultimately, in India, religious property is never just religious property; it is also property.

About the author:

This article is written by Shatakshi Sharma (she/her), a final-year student pursuing her undergraduate degree in Global Affairs at JSIA. She has been a Columnist for Nickeled and Dimed since June 2026.

Image Source – https://www.scobserver.in/wp-content/uploads/2017/09/judge-kVzD-621×414@LiveMint.webp