The Essential Religious Practices Doctrine
Chapter Nineteen
Syllabus topic 2, "Religion and the Law".
Pages 83 to 87 of 768
In one line
Before a court can decide whether the State may regulate a religious practice, it decides whether the practice is religious at all, and the test it uses is one the Constitution never mentions.
In the wording a student can write in an exam: the essential religious practices doctrine holds that the protection of articles 25 and 26 extends only to those practices which the religion itself regards as an essential and integral part of it, and not to practices which are secular activities clothed in religious form or which are merely superstitious accretions. It originates in the Shirur Mutt case, where the Supreme Court said that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself, and it was qualified in the Durgah Committee case, where the Court added that practices though religious may have sprung from merely superstitious beliefs and may be extraneous and unessential accretions. The standing criticism is that the doctrine requires a secular court to determine the content of a religion.
Why a test was needed at all
Because article 25(2)(a) permits the State to regulate secular activity associated with religious practice. To apply that clause a court must know which activity is religious and which is secular, and the Constitution supplies no definition.
Because article 26(b) protects a denomination's own affairs in matters of religion. Again the words "matters of religion" have to be given a boundary.
And because otherwise anything could be made immune. If a claimant's own assertion that a practice is religious were conclusive, a commercial activity conducted by a temple, or a rule excluding a group, could be placed beyond the reach of every law by describing it as religion.
The doctrine as first stated
Facts. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, decided 16 April 1954 by Mukherjea J with a Bench of seven. The Madras Hindu Religious and Charitable Endowments Act 1951 gave the Commissioner extensive powers over the Shirur Mutt, and the mathadhipati, the head of the mutt, challenged them under articles 19(1)(f), 25 and 26.
Held. The Attorney-General's contention that all secular activities associated with religion but not an essential part of it are amenable to State regulation could not be supported in such broad terms. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. The Court gave examples: offerings of food to the idol at particular hours, periodical ceremonies performed in a certain way at certain periods of the year, the daily recital of sacred texts or oblations to the sacred fire, are all parts of religion, and the fact that they involve expenditure of money or the employment of priests and servants or the use of marketable commodities does not make them secular activities of a commercial or economic character. Sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Act were declared invalid, and section 76(1) void as beyond the State legislature's competence; the rest was valid.
The Essential Religious Practices Doctrine
Why it matters. Read that holding carefully and notice what it is: a test that DEFERS to the religion. The court asks what this religion says about itself. On that version the doctrine protects a community against a court's own view of what religion ought to require.
The doctrine as qualified
Facts. The Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402, decided 17 March 1961 by Gajendragadkar J with four others. The Durgah Khwaja Saheb Act 1955 reorganised the administration of the Ajmer dargah after a committee of enquiry had reported on the management of the endowment. The Khadims, claiming to be a section of the Chishtia Soofies, challenged it under article 26.
Held. The Act was upheld. For practices to be treated as part of religion they must be regarded by that religion as its essential and integral part; otherwise purely secular practices which are not an essential or integral part of religion are apt to be clothed with a religious form and to claim protection under article 26. Similarly, 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 constitute an essential and integral part of a religion, their claim to protection must be carefully scrutinised, and the protection must be confined to religious practices that are an essential and integral part of it and no other.
Why it matters. This is where the doctrine turns. Shirur Mutt asked what the religion says; Durgah Committee permits the court to say that what the religion says is a superstitious accretion. The second question can only be answered by the court itself, and that is the whole of the criticism.
The alternative test: is the belief genuinely held?
Facts. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748, (1986) 3 SCC 615, decided 11 August 1986 by Chinnappa Reddy and M.M. Dutt JJ. Three children of Jehovah's Witnesses in a Kerala school stood respectfully when the national anthem was sung but did not join in the singing, because their faith forbade them to sing any anthem. They were expelled.
Held. The expulsion violated articles 19(1)(a) and 25. The question is not whether a particular religious belief or practice appeals to the court's reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion; personal views and reactions are irrelevant. The children had not been disrespectful, and no provision of law obliged anyone to sing.
The Essential Religious Practices Doctrine
Why it matters. It is a different test, and a better one for a minority. It asks about the sincerity of the believer rather than the centrality of the practice in the religion, so a practice observed by one small group is protected as fully as one observed by a majority. Indian law has never chosen finally between the two tests, and an answer that shows both is stronger than one that gives only the first.
The four criticisms
One: it makes a secular court a theologian. To decide whether the exclusion of women from a shrine is essential to a faith, a judge must read that faith's texts and decide what they require. That is precisely the exercise a secular State is supposed to avoid.
Two: it privileges the textual and the organised. A religion with written doctrine and an established hierarchy can prove what is essential. An oral tradition, a tribal faith or a small sect cannot, and the doctrine therefore protects the well-documented.
Three: "superstitious accretion" has no legal content. Nothing distinguishes a superstitious accretion from a religious practice except the court's own view, which is the objection stated at its shortest.
Four: it decides the case at the threshold. Once a practice is held not to be essential, no balancing happens at all: the claimant simply has no right to weigh. The whole contest is settled by a characterisation.
And the answer to all four. Without some threshold test, article 25(2)(a) and article 26(b) cannot be applied, and any practice could be immunised by assertion. The doctrine is criticised because it is necessary and because no better test has been settled.
A worked example
A State law requires that a person appointed to perform worship in a temple must have a prescribed qualification, and a denomination says that its tradition requires the priest to be from a particular hereditary line.
Step one. Is the appointment of the priest a matter of religion under article 26(b), or is it the administration of the institution, which the State may regulate?
Step two. If it is a matter of religion, is the hereditary requirement an essential and integral part of the religion as that religion regards it, on Shirur Mutt, or is it an accretion, on Durgah Committee?
Step three. If it is essential, article 26(b) protects it; if it is not, the State may regulate.
Step four, which is the point of the example. The whole case has been decided at step two, by a court reading a religion's own materials, and neither party's constitutional rights have been weighed against each other at all. That is criticism four in a single case.
The Essential Religious Practices Doctrine
What this does NOT mean
It does not mean an inessential practice is unlawful. It means only that it does not attract the protection of articles 25 and 26, so an ordinary law may regulate it.
It does not mean the court decides what a religion ought to be. It decides what the religion regards as essential, which is why the material relied on is the religion's own texts and practice.
And it does not mean the doctrine is settled. It has been referred to larger Benches, and the alternative test in Bijoe Emmanuel has never been overruled.
Quick revision
The doctrine: articles 25 and 26 protect only practices which the religion itself regards as essential and integral. Shirur Mutt 1954: what is essential is to be ascertained primarily with reference to the doctrines of that religion itself, and expenditure or the employment of priests does not make a practice secular. Durgah Committee 1961: purely secular practices may be clothed in religious form, and practices though religious may be superstitious accretions, extraneous and unessential; protection is confined to what is essential and integral. Bijoe Emmanuel 1986: the alternative test, whether the belief is genuinely and conscientiously held. Four criticisms: the court as theologian, the privileging of textual and organised religion, the emptiness of "superstitious accretion", and disposal at the threshold without any balancing.
Test yourself
1. State the doctrine and its source. That articles 25 and 26 protect only those practices which the religion concerned regards as an essential and integral part of it. It comes from Shirur Mutt, AIR 1954 SC 282, where the Court said that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
2. What did Durgah Committee add, and why is the addition controversial? That practices, though religious, may have sprung from merely superstitious beliefs and may be extraneous and unessential accretions, whose claim to protection must be carefully scrutinised. It is controversial because deciding that a practice is a superstitious accretion is something only the court can do, and it converts a deferential test into a judicial one.
3. What is the alternative test, and which case states it? Whether the belief is genuinely and conscientiously held as part of the profession or practice of religion, personal views and reactions being irrelevant. Bijoe Emmanuel v. State of Kerala states it.
4. Why is the doctrine necessary at all? Because article 25(2)(a) allows the State to regulate secular activity associated with religious practice and article 26(b) protects only matters of religion, so a boundary between the religious and the secular has to be drawn; and because without a threshold test any activity could be immunised from law by being described as religious.
The Essential Religious Practices Doctrine
5. Give the criticism that a minority religion would make. That the doctrine favours religions with written doctrine and an established hierarchy, which can prove what is essential, and disadvantages oral traditions, tribal faiths and small sects which cannot, so the protection is distributed according to how well documented a faith is rather than how sincerely it is held.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.