Essential religious practices doctrine

Also called: Essentiality test · Topic: Secularism: Western and Indian Models · NCERT: Beyond NCERT

Meaning

The essential religious practices doctrine (also called the essentiality test) is a rule made by judges. Under it, Articles 25 and 26 protect only those practices that are essential and integral to a religion, meaning the religion would change in its basic nature without them. The courts decide which practices pass this test.

It matters because courts use this test to settle many disputes between faith and fundamental rights. Examples are temple entry for women (Sabarimala), the hijab in classrooms and instant triple talaq. A nine-judge bench of the Supreme Court is now reviewing the test itself.

Explanation

How the test works

• Step 1: Is it religion or secular activity?
• Under Article 25(2)(a), the state may regulate the secular activities linked to religion, such as economic, financial or political activities.

• So the court first asks whether the practice is religious at all.

• Step 2: Is the practice essential and integral?

• The court asks whether the religion would change in nature without the practice.
• If it would, the practice gets protection under Arts. 25-26.

• If it would not, the practice is treated as an add-on, and the state can regulate or ban it.

• Step 3: Who judges it?

• The court judges it, by looking at the religion's own texts and doctrines (its tenets).

• Why the test has two parts: A practice must be both essential and an integral part of the religion. If this were not required, purely secular practices could be passed off as religious ones to claim protection. Counsel made this argument before the nine-judge bench in 2026 [1].

How the doctrine grew

• Shirur Mutt (1954), a seven-judge bench (Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar):
• "Religion" means more than belief.
• It also covers rituals, observances, ceremonies and modes of worship that are integral to it.

• What is essential must be judged by the religion's own tenets.

• Durgah Committee, Ajmer v. Syed Hussain Ali (1961) made the test narrower:

• Only essential and integral practices are protected.
• Practices that come from "superstitious beliefs" are not protected. The Court called them accretions (later additions) that are not essential.
• In effect, the court became the arbiter (final judge) of what a faith truly requires.

Limits and criticism

• Judges become theologians.
• Judges are trained in law, not religion.

• Under this test, they still have to read scripture and settle questions of doctrine.

• It strains two other rights:

• denominational autonomy under Art. 26: a religious group's right to run its own religious affairs;

• individual conscience under Art. 25(1): a believer's personal faith, even when the official doctrine says something different.

• It can be bypassed. In the hijab case, Dhulia J. said a matter of conscience needs no essentiality test.

Alternatives proposed

• Anti-exclusion principle (Chandrachud J., IYLA, 2018):
• The court does not ask whether a practice is essential.
• It asks whether the practice excludes or humiliates people, for example by denying them dignity or entry.

• If it does, the practice must give way to fundamental rights.

• Constitutional morality:

• A practice is tested against the core values of the Constitution: equality, liberty, dignity and fraternity.
• It is not tested against what most people in society think is moral.

In the Constitution and practice

• Constitutional basis:
• Art. 25(1): Every person has freedom of conscience and the right to freely profess, practise and propagate religion. This right is subject to public order, morality and health and to the other rights in Part III.
• Art. 25(2): The state may regulate secular activities linked to religion, make laws for social welfare and reform, and open Hindu religious institutions of a public character to all classes and sections of Hindus.
• Art. 26: Every religious denomination has the right to manage its own affairs in matters of religion. A religious denomination is a group with a common faith, a common organisation and a distinct name.

• Art. 17: Abolishes untouchability and forbids it "in any form".

• Link to Indian secularism:

• Western secularism keeps church and state completely apart (mutual exclusion).
• Indian secularism follows principled distance. The state may step into religion to end intra-religious domination, which means one group inside a religion oppressing another, such as women or Dalits.

• Courts therefore have to decide where religion stops. The ERP test is the tool they use for this.

• Key cases:

• M. Ismail Faruqui v. Union of India (1994, 3:2):
  • The Court said a mosque is not essential to Islam, because namaz can be offered anywhere, even in the open.
  • So the state can acquire a mosque like any other property, using eminent domain (the state's power to take private property for public use).
  • The Acquisition of Certain Area at Ayodhya Act 1993 was upheld. The clause that ended pending suits was struck down.
  • In 2018, in M. Siddiq v. Mahant Suresh Das (2:1), the Court refused to send this view to a larger bench. It said the remark applied only to land acquisition.
• Indian Young Lawyers Association (IYLA) v. State of Kerala (28 September 2018, 4:1):
  • Women aged 10-50 could no longer be kept out of the Sabarimala temple.
  • Ayyappa devotees were held not a separate denomination, so Art. 26 did not protect the exclusion.
  • Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 was struck down.
  • Chandrachud J. linked the exclusion to untouchability (Art. 17) because it was based on ideas of "purity and pollution".
  • Indu Malhotra J. dissented. She said courts should not impose rationality on faith.
• Kantaru Rajeevaru v. IYLA (review, 14 November 2019, 3:2):
  • The review petition was Review Petition (Civil) No. 3358 of 2018 in Writ Petition (Civil) No. 373 of 2006 [2].
  • The Court did not decide the review. It sent wider questions to a larger bench, including the scope of the ERP test, how Arts. 25 and 26 work together, the meaning of constitutional morality, and whether a person outside the faith has standing (the right to bring a case).
  • These questions also cover Muslim women's entry into mosques, Parsi women who married outside the faith entering the fire temple, and female genital cutting (khafz) among Dawoodi Bohras.
  • In 2023, Dawoodi Bohra excommunication was added. This reopens Sardar Syedna Taher Saifuddin (1962).
• Nine-judge reference:
  • In February 2020, the bench framed the questions. It held that a bench hearing a review can refer questions of law to a larger bench.
  • Arguments were heard on dates including 28 April and 13 May 2026 [1][2].
  • The bench was described as looking at religion as a concept, not deciding a single case [2].
  • The judgment is still awaited.
• Hijab case:
  • Resham v. State of Karnataka (Karnataka High Court, 15 March 2022): The High Court upheld the government order of 5 February 2022 and held that the hijab is not an essential religious practice.
  • Aishat Shifa v. State of Karnataka (13 October 2022, 1:1 split):
  • Hemant Gupta J. applied the ERP test and upheld the ban.
  • Sudhanshu Dhulia J. said the ERP test was irrelevant. He based his view on choice, using Art. 19(1)(a) (freedom of expression) and Art. 25 (conscience).
• Shayara Bano v. Union of India (22 August 2017, 3:2):
  • The Court set aside instant triple talaq (talaq-e-biddat) [3].
  • Kurian Joseph J. used ERP-style reasoning. He held that the practice has no sanction in the Quran, so it is not essential to Islam.
  • Nariman J. and Lalit J. relied instead on manifest arbitrariness under Art. 14.

Don't confuse with

• Anti-exclusion principle: The ERP test asks whether a practice is essential to the faith. The anti-exclusion test asks whether the practice excludes or humiliates people. Chandrachud J. proposed it in IYLA (2018).
• Constitutional morality: This tests a practice against the Constitution's values, such as equality and dignity. The ERP test looks at the religion's own tenets.
• Denominational autonomy (Art. 26): This is a group's right to manage its own affairs in matters of religion. In IYLA, the Sabarimala practice failed partly because Ayyappa devotees were held not a denomination, which is a separate question from essentiality.
• Manifest arbitrariness (Art. 14): In Shayara Bano, Nariman J. and Lalit J. struck down instant talaq because it was arbitrary. Only Kurian Joseph J. used the "not essential to Islam" reasoning.

Prelims Hooks

• Shirur Mutt (1954): The ERP doctrine began here. "Religion" includes rituals and practices, and what is essential is judged by the religion's own tenets.
• Durgah Committee, Ajmer (1961): Practices that come from superstitious beliefs are not protected by Arts. 25-26.
• Ismail Faruqui (1994, 3:2): A mosque is not essential to Islam. In 2018, M. Siddiq (2:1) refused to refer this view to a larger bench.
• IYLA (2018, 4:1): The only dissent came from Indu Malhotra J. Trap: Chandrachud J. linked the exclusion to Art. 17 (untouchability), not only to Art. 14.
• Kantaru Rajeevaru (2019, 3:2): It referred the scope of the ERP test to a larger bench. A nine-judge bench heard arguments in April-May 2026 [1][2].
• Aishat Shifa (2022, 1:1): Dhulia J. held the ERP test irrelevant and relied on Art. 19(1)(a) and Art. 25. The Karnataka High Court (Resham, 2022) had held the hijab not essential.

Mains Points

• Courts as theologians vs courts as guardians of rights:
• Under the ERP test, judges have to interpret scripture. This conflicts with Art. 26 autonomy and with personal faith under Art. 25(1).
• The anti-exclusion and constitutional morality tests would shift the focus from doctrine to dignity and equality.

• The risk is that these tests give judges even wider discretion.

• Principled distance in action:

• Sabarimala and triple talaq show the Indian state and courts stepping in to end intra-religious domination, as Art. 25(2) allows.
• Under the Western model of strict separation, they would stay out.

• Whatever the nine-judge bench decides on the ERP test will apply to the Sabarimala, mosque-entry, Parsi and Bohra disputes.

• Rights can protect faith without the ERP test:

• In the hijab case, Dhulia J. treated the hijab as a matter of choice and access to education under Arts. 19(1)(a) and 25.
• This shows that religious practice can be protected without courts deciding what a faith requires.

Related concepts

• Ismail Faruqui case
• Sabarimala case
• Hijab case

Read more

• Essential religious practices and the courts