How the judiciary assumed greater theological authority than high priests of religions

Jurisprudence on the demarcation between secular and religious domains

It was in a similar vein that the Supreme Court in a landmark case titled Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt formulated the doctrine of essential religious practices. In this case, the issue that was raised was whether the state could regulate the management of Hindu religious institutions and endowments.

In the Shirur Mutt case, the petitioner—the Mathadhipati of Shirur Mutt, had challenged the Madras HRCE Act 1951 arguing that it infringed Article 26 of the Constitution. However, before getting into the legal scrutiny of the act the Court asked a central question:  Where is the line to be drawn between what are matters of religion and what are not?

In this judgment, the court established a framework to distinguish the elements of a religion that are fundamental to its identity and essential for its recognition and existence and which the State should refrain from interfering with, and those features and practices that are extraneous and can be regulated by the State.

Clarifying what will be considered as essential religious practice 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.

Hereafter in many important cases, the Supreme Court and High Courts went on to decide whether a particular practice or ritual can be granted constitutional protection from state interference on the pretext of it being ‘essential’ to the religion.

Expansion of the doctrine

Some of the cases where courts applied the doctrine of essential practices were Sardar Sarup Singh v State of Punjab (related to setting up of Gurudwara Board), Durgah Committee, Ajmer v Syed Hussain Ali (related to the management of the shrine at Ajmer), Sardar Syedna Taher Saiffuddin Saheb v State of Bombay which was related to religious rights of Dawoodi Bohra Community, Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. v State of UP & Ors and in Commissioner of Police v Acharya Jagadisharananda Avadhuta where the question that was to be decided was whether the ‘Tandava’ Dance was an essential rite of the Ananda Marga Faith.

More recently in Shayara Bano v Union of India, the apex court held that the practice of Triple Talaq is not an essential practice under Islam and could not be offered constitutional protection under Article 25.

Bending religious practice to needs of a modern state

Ronojoy Sen, who is the Research Lead, Politics, Society and Governance at the Institute of South Asian Studies and the South Asian Studies Programme at the National University of Singapore, in a chapter titled ‘Secularism and Religious Freedom’, published in the Oxford Handbook of the Indian Constitution writes: “The essential practices test has been used by the Court to decide a variety of cases. These can broadly be classified under a few heads. First, the Court has taken recourse to this test to decide which religious practices are eligible for constitutional protection. Secondly, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations.”

Sen in his book ‘Articles of Faith, Religion, Secularism, and the Indian Supreme Court’ makes an important point when he writes that contrary to American Courts which have refrained from sitting in judgment on ‘religious error’ or ‘religious truth’, Indian Supreme Court through essential practices doctrine attempted to "fashion religion in the way a modernist state would like it to be, rather than accept religion as represented by its practitioners."

Many scholars have critically evaluated this doctrine. Noted British jurist JDM Derrett in his book ‘Religion, Law and the State in India’, while analysing the role of the courts as religious interpreters wrote, “The courts can discard as non-essentials anything which is not proved to their satisfaction—and they are not religious leaders or in any relevant fashion qualified in such matters—to be essential, with the result that it would have no constitutional protection."

Rajeev Dhavan and Fali Nariman in an essay titled ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities’ published in the book titled ‘Supreme but Not Infallible: Essays in Honour of the Supreme Court of India’, writes, “With a power greater than that of a high priest, maulvi or Dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are ‘essential’ to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.”

Despite criticism, the Supreme Court has, over the past six decades, defined essential religious practices through various judgments, significantly shaping the scope of religious autonomy in India.