A Question of Faith, and Questioning Faith

A Critique of the Essential Religious Practices Doctrine in India

Secularism in India has developed into a unique variant of the concept. The large number and variety of religions in India makes religion a very important aspect of the daily life of people. A majority of such religions in India are community oriented[1], and therefore certain elements of religions spill over into social or political life, implying that religion or belief is not necessarily restricted to the personal sphere. Apart from the fundamental importance that religion has in India, religious practices also form an integral part of the cumulative freedom of religion and belief. Since practices are inherently social, religion finds itself an overtly public space in India.[2] The result of this is that India has developed a public sphere where religion holds considerable influence and importance. In this context, the Indian Constitution seeks to find a middle ground between regulation of religious affairs and the notion of secularism. Accordingly, the Constitution does not adhere strictly to the notions of complete State neutrality or church-state separation, as is seen in Western nations.[3] With the aim of reassuring minority religious communities, the Indian Constitution formulates certain rights which can be enjoyed by individuals by virtue of their membership in religious communities. Along with the freedom of religion and belief, the Indian Constitution also guarantees the autonomy of religious institutions.[4] State intervention is also tweaked, and the State is permitted to draft laws which provide for social welfare or reform, and can also regulate the economic, financial, political, and secular activities associated with a religion.[5] This balancing exercise adopted by the Indian Constitution has created a framework of what Rajeev Bhargava calls ‘Contextual Secularism”; wherein there was a ‘principled distance’ maintained between the Indian State and religions.[6]

The Essential Religious Practices Doctrine (ERPD)

Having established the contours of religious freedom and State intervention in India, it is now pertinent to focus on the ERPD as applied by the Indian judiciary in this context. The origins of the ERPD can be traced back to the framing of the Indian Constitution itself. The drafting of the Constitution acknowledged that there was no aspect of life in India which was untouched by religion, unlike other nations with a clear demarcation between church and State. Therefore, providing protection to every aspect of religion would seriously cripple the power of the State to pass social legislation. Keeping this in mind, the framers of the Constitution laid down that there should be a distinction between activities which are ‘essentially religious,’ and those which are secular, but associated with religion; so that the latter may be subject to State intervention.  While the Indian judiciary followed this interpretation of what is essentially religious in its early cases[7], a considerable shift was adopted by the Court after only four years, where the Court held that cow slaughter is not an essential practice under Islam.[8] Faced with the task of determining legislations banning cow slaughter, the Court had interpreted religious texts in Islam and came to the conclusion that the practice of slaughtering cows was optional for Muslims, therefore not an ‘essential practice’ of the religion, and thereby not eligible for special protection. What can be witnessed in this reasoning, is that instead of determining the nature of the practice, as to whether it is religious or secular, it rather focuses on qualifying its importance within a religion. In other words, the Court shifted from determining what is ‘essentially religious’ to ‘essential to a religion’. In subsequent years, the ERPD has been used time and again by Courts to interpret the tenets of religions and attempt to redefine religions in a reformist manner. The following section takes a closer look at how the ERPD has manifested in cases before the Indian Courts.

Hijab not Essential to Islam

In a case where a government order prohibiting the wearing of headscarves in government schools was challenged as being violative of the religious freedom of female Muslim students to wear a Hijab, the High Court of Karnataka delivered a verdict wherein it held that the practice of wearing a headscarf (Hijab) was not an essential practice under Islam, and thus not deserving of Constitutional protection.[9] An analysis of the reasoning of the Court in coming to this conclusion highlights few of the many problems associated with the ERPD. To begin with, the Court held reasoned that Islam is not the first and only religion to introduce the practice of women wearing veils, and therefore such practice cannot be considered essential to Islam. The Court also relied on interpretations of Quranic text which are considered to be disputed within large sections of the Muslim community India. This highlights an essential drawback of Courts interpreting religious texts; they rarely possess the institutional training to do so. In interpreting that a Hijab is a non-essential practice in Islam, the Court relied on academic research papers and certain religious interpretations of Quranic text. It need not be explained that there are several aspects to every religious practice and the essential nature of such practices can very rarely be held as objective. The pluralistic nature of religious practices cannot be captured exhaustively within academia or religious texts alone. Religion, as Webb Keane has observed, is “a matter not of material disciplines or of ritual practices, but of subjective beliefs.”[10] What is illustrated through the Hijab verdict, is that the Court attempts to play the role of a theologist, while lacking the institutional training to do so, being a secular institution. A secular authority cannot determine the question of whether or not something is essential in a religion.[11] In its jurisprudence, the Indian judiciary has heavily considered whether a practice has been prescribed in religious texts in order to determine its essential nature.[12] Aside from the fact that judges are not fully equipped to interpret religious texts, in doing so, Courts end up determining which texts are relevant, and in most cases, pick the prevailing version, completely disregarding the voice of minority segments of that religion. In the long run, the religion ends up what the Court wants it to be. Additionally, by heavily relying on religious texts, the Court discounts the evolutionary capacity of religions. To say that a practice would be considered essential to a religion only if it is prescribed in religious texts, is to deny the reality that religions have the organic capacity to adapt and change their practices over time. Religious systems in the modern age have redefined their practices so as to better adapt to the prevailing societal norms in which they operate.[13] Juridical formalisation of religious practices can only succeed to the extent that they give explicit legal form to an existing tendency within those practices.[14] This tendency can only grow when religious systems are allowed to develop organically. By adjudicating what is and is not a part of a religion, Courts stifle this organic capacity of religions to redefine their theological norms in line with evolving standards of morality.  Another feature of the Hijab verdict demonstrates a tendency of Courts to view religions as a collective whole rather than a matter of individual belief. A blanket interpretation by a court of law on the essential nature of a religious practice robs the individual of their agency of belief. The question of which practice is essential to manifest one’s belief, is at its core, a personal one.

As Hurd puts it, “the protection of international religious freedom as a universal norm hinges upon, and even sanctifies, a religious psychology that relies on the notion of an autonomous subject who chooses beliefs and then enacts them freely.”[15] Furthermore, something as personal as belief cannot be coerced, as it is located in the private space of the individual mind.[16] The authenticity of a belief consists of the subjects ability to choose their beliefs and act on them.[17] In such a scenario, with the added element of varying schools within a same religion, it is practically impossible for a Court to determine what is ‘essential’ for an individual to remain committed to their belief. According to Bender, individual religious freedom is maximised in a religious marketplace where multiple firms exist. [18] The duty of the Court, therefore, should not be to ascribe what should be believed, but to determine whether a belief is to be granted Constitutional protection.

Lifting the entry-ban of Women in to the Sabarimala Temple

While the Hijab verdict demonstrates the problems of Courts of law interpreting religious texts, the case of the Sabarimala temple demonstrated another pitfall of the ERPD; not every religion has foundational texts to begin with. This was one of the determining factors in the verdict of the Court which overturned a religious injunction which banned the entry of menstruating women inside the temple premises.[19] The Court based its conclusion on the finding that there was no scriptural evidence which provided an essential status to this exclusionary practice. This line of reasoning lays down the implication that religious practices which are outside of foundational scriptures seem to have no value. The insistence of scripture based evidence as a determinative of essentiality also shows an attitude which is better suited for Judo-Abrahamic religions such as Christianity or Islam but would not be compatible with various faiths which rely on oral traditions.[20] The Court also rationalised the decision by finding that there was no continuity of the practice in the temple and was hence, an alterable practice, thereby not essential to the religion. This insistence of the Court on the continuous and unaltered nature of a practice once again operates on the presumption that religious beliefs are static and frozen in time, and incapable of evolution. A similar line of reasoning was previously adopted by the Court, wherein it held that a practice would not be considered essential to a faith, if such faith existed at a time without the practice.[21] In essence, the Court identified a religious practice as essential to a religion only if existed when the religion was founded.[22] To presume that essential religious practices are only those which have temporal continuity fails to take into account ground realities of practices which despite not being continuous and consistent in nature, occupy a central position in the minds of believers. This is where an interesting notion, that of the ‘Outsider status of the Court’ as termed by Dominic comes into play.[23] In most cases, judges are socialized within a community vastly different from those who are litigants in religious matters, creating a gap in their understanding of religious values, knowledge, and perspectives.[24] The gap between the Courts of law and religious communities is palpable especially when it comes to the interpretation of religion. Apart from the cases referred to above, the inability of Courts to understand the intricacies of religion can also be seen in other cases, one for instance where the Court proceeded to determine the essentiality of  practice of a particular sect of Hinduism, based on the scholarly history of what the Court considered to be the Hindu Code of Conduct (Dharma Shastras). The issue here, is that the Court completely disregards the reality of cultural variations in Hinduism. Anthropological scholars agree that the distinctive South Asian geography has produced cultural variations within Hinduism.[25] Thus, there may very well be practices which are not part of a core religious text, but nonetheless are considered essential for those engaged in the practice. As put by Ramadan, the core of a religion is clothed in the forms of the various cultures in whose midst it exists.[26] The Court remains oblivious to emergence of such cultural variations within a religion, as demonstrated by the above cases. It is notable that in the Sabarimala verdict, there was considerable pushback from the women of the community of believers, who protested against the verdict which lifted the ban on the entry of women of menstruating age.[27] The Sabarimala example, along with others demonstrate that the Court often is disconnected with the religious views of the individual, and thereby, being an outsider, is not in a position what is part of individual belief, but should rather focus on whether such belief is in line with Constitutional standards.

The ERPD: A Flawed Concept

The above discussion clearly demonstrates the practical difficulties experienced when Courts of law attempt to redefine religion. Although, the very idea that a Court of law should be able to define what is or is not essential in a religion is flawed it its inception. As Web Keane put it, religion has been construed as a matter of private conviction rather than of public performance. If this is considered to be true, the boundary at which the Court of law must restrict itself is that of public performance. It cannot and should not trespass into the realm of private conviction. The very idea of the ERPD equates practices with religion, whereas belief, and resulting practices from beliefs can exist without any religious backing whatsoever. Taylor and Maclure’s example of vegetarians and end of life executors is based on this principle that a belief which may not have religious backing should also be deserving of protection based on the weight of the conscious and conviction behind such beliefs.[28]

However, to say that conviction and conscience are the determinants of whether a practice is deserving of protection is also not ideal, as it essentially equates religion with conscience. The religious experience is about exhibiting the virtues of a good believer, and the adoption of faith-based rituals as a means to achieve the same. But the observance of several faith based rituals are not a matter of conscience. Non observance of certain rituals, by individual members of community should not exempt them from protection of freedom of religion.[29] Therefore, we see that beliefs, practices and religion are not separate entities but rather overlap with each other, and there is no possible method in which a Court of law can objectively determine what a person should or should not believe in. It is a task doomed for failure.

Taylor also argues that forcing someone to act against her deep conscientious convictions constitutes a “moral harm” equivalent to the kind of “physical harm” that justifies the special accommodation of citizens with disabilities.[30] If that is to be the case, one must look at the real-life effects of Courts redefining religious tenets. When the High Court of Karnataka passed the order prohibiting the Hijab in government schools, hundreds of Muslim girls were not allowed to sit for examinations.[31] In cases where the Court has held that cow slaughter is not an essential practice under Islam, those having found to have engaged in the practice have faced criminal prosecution.[32] Ardent followers of the Ayappa community rejected the verdict allowing women into the Sabarimala temple. This highlights yet another grave implication of Courts redefining religion. As opposed to legislative action, once a Court of law strikes down a practice as non-essential, those who believe it to be essential are not allowed any course of redressal, as there is no further appeal. The only options become to observe, or breach. It coerces the individual on the most personal level of what to believe in.

Concluding Thoughts

This is not to say that Courts should stay away from religion altogether. The freedom of religion is of course subject to grounds of public order, health and morals. It is true that religion is amenable to several conflicting interpretations, which may have implications on social issues such as gender justice, among others. Such matters cannot be solely left to religious groups with the hope that they shall develop a progressive interpretation over time.[33] However, that is precisely when the question of protection of a practice should be triggered. It is not for the Court to determine which practice is essential in a religion, but to determine whether such practice is subject to restrictions in accordance with the societal norms and laws. Even when freedom of religion relates to actual performances and practices it still draws its moral force from its presumed connection with individual conscience.[34] When courts trespass into the domain of what to believe in, the right to individual freedom of religion is infringed upon at its very core. It is for the courts to harmonise faith with society; not rewrite faith altogether.

References and Endnotes

[1] Rajeev Bhargava, ‘The Distinctiveness of Indian Secularism’ in Aakash Rathore and Silika Mohapatra (eds), Indian Political Thought: A Reader (Routledge 2010).

[2] Dominic, Mary Kavita (2022) "Essential Religious Practices' Doctrine as a Cautionary Tale: Adopting Efficient Modalities of Socio-Cultural Fact-Finding," Socio-Legal Review: Vol. 16: Iss. 1, Article 3. DOI:10.55496/SPHM2915, p.50

[3] Donald Eugene Smith, India as a Secular State (Princeton University Press 1967).

[4] Article 26 , Constitution of India (1950)

[5] Article 25(2), Constitution of India (1950)

[6] Rajeev Bhargava, ‘States, Religious Diversity, and the Crisis of Secularism’ (Open Democracy, 22 March 2011) https://www.opendemocracy.net/en/states-religious-diver- sity-and-crisis-of-secularism-0/

[7] Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] AIR 282.; The Supreme Court held that secular activities of economic, commercial or political character  which might be associated with religion but did not constitute an essential part of it, would be amenable to state regulation.

[8] Hanif Quareshi v State of Bihar AIR 1958 SC 731

[9] Resham v State of Karnataka 2022 SCC OnLine Kar 315

[10] Keane, Webb. Christian Moderns: Freedom and Fetish in the Mission Encounter. Berkeley and Los Angeles: University of California Press, 2007

[11] Arpan Banerjee, ‘Reviving the Essential Practices Debate’, (2016) 1 Hidayatullah National Law University University Student Bar Journal, p.58.

[12] Kaul, D. K. (2021). The ‘Essential Practices’ Doctrine: Examining the Constitutional Impact of Inordinate Judicial Intervention on Religious Freedoms. International Journal on Minority and Group Rights, 29(2), 350-393. https://doi.org/10.1163/15718115-bja10061   

[13]Supra n.2, p.57-59

[14] Pierre Bordieu, ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805.

[15] Hurd, Elizabeth Shakman. "Chapter Three. Believing in Religious Freedom". Politics of Religious Freedom, edited by Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood and Peter G. Danchin, Chicago: University of Chicago Press, 2015, pp. 45-56. https://doi.org/10.7208/9780226248646-006., p.48

[16] Ibid

[17] Ibid

[18]Ibid, p.52

[19] Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors.

[20] Animists mostly depend on oral traditions such as storytelling to keep their faith alive; ‘Politics of Language, Religion and Identity: Tribes in India’ (2005) 40(13) Economic & Political Weekly 1363.; Supra n.2, p.64

[21] Commissioner of Police v Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770.

[22] Faizan Mustafa and Jagteshwar Singh Sohi, ‘Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy’ (2017) BYU Law Review 914.

[23] Dominic, Mary Kavita (2022) "Essential Religious Practices' Doctrine as a Cautionary Tale: Adopting Efficient Modalities of Socio-Cultural Fact-Finding," Socio-Legal Review: Vol. 16: Iss. 1, Article 3., p.60

[24] James A Banks, ‘The Lives and Values of Researchers: Implications for Educating Citizens in a Multicultural Society’ (1998) 27 Educational Researcher 4.

[25] Supra n.20, p.63

[26] Tariq Ramadan, What I Believe (OUP 2010); Dominic, Mary Kavita (2022) "Essential Religious Practices' Doctrine as a Cautionary Tale: Adopting Efficient Modalities of Socio-Cultural Fact-Finding," Socio-Legal Review: Vol. 16: Iss. 1, Article 3.,p.61

[27]India Today, Women in Ramanathapuram protest against SC verdict on Sabarimala, 13.10.2018, available at: https://www.indiatoday.in/india/story/women-in-ramanathapuram-protest-against-sc-verdict-on-sabarimala-1367461-2018-10-13  ; The Economic Times, Women protest against SC verdict on Sabarimala temple, ask Kerala govt to file a review petition, 02.10.2018, available at: https://economictimes.indiatimes.com/news/politics-and-nation/women-protest-against-sc-verdict-on-sabarimala-temple-ask-kerala-govt-to-file-a-review-petition/videoshow/66042296.cms?from=mdr

[28] Laborde, Cécile. "Chapter Twenty-Two. Protecting Freedom of Religion in the Secular Age". Politics of Religious Freedom, edited by Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood and Peter G. Danchin, Chicago: University of Chicago Press, 2015, pp. 269-279. https://doi.org/10.7208/9780226248646-028, p.272

[29] Ibid

[30] Ibid

[31] Bhat, Prajwal, Hundreds of Muslim students kept out of classes, missed exams amid Hijab Row, March 14, 2022, available at: https://www.thenewsminute.com/article/hundreds-muslim-students-kept-out-classes- missed-exams-amid-hijab-row-161912  

[32] Ramavath Hanuma v. State of Telangana, 2017, SCC Online, Hyd 191; Supra n12. p.375

[33]Banka, Neha Kishore. “Triple Talaq Judgement And Act: Do Muslim Women Really Benefit?” Journal of the Indian Law Institute, vol. 61, no. 4, 2019, pp. 439–54. JSTOR, https://www.jstor.org/stable/27097382. Accessed 18 Feb. 2024., p.443

[34] Supra n.28