Essential religious practices and the courts

Detail

1. Why courts get involved: the constitutional setting

• Article 25(1) gives every person freedom of conscience. It also gives the right to freely profess, practise and propagate religion.

• This right is limited by public order, morality and health and by the other rights in Part III.

• Article 25(2) lets the state:

• regulate the secular activities linked to religion, such as economic, financial or political activities (Art. 25(2)(a));
• make laws for social welfare and reform;

• open Hindu religious institutions of a public character to all classes and sections of Hindus (Art. 25(2)(b)).

• Article 26 gives every religious denomination 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.

• Article 17 abolishes untouchability and forbids it "in any form".
• The Indian model differs from the Western model.
• The Western model keeps church and state strictly 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 group, such as women or Dalits being barred from temples.
• Article 25(2) gives the state this power. Courts then have to decide where "religion" stops and "secular activity" begins. The ERP doctrine grew out of this question.

2. The essential religious practices (ERP) doctrine

• Definition: The essential religious practices doctrine says that Arts. 25-26 protect only the practices that are essential and integral to a religion. A practice is essential if the religion would change in nature without it. Courts decide which practices are essential.
• Shirur Mutt (1954), Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, was decided by a seven-judge bench.
• "Religion" covers 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 (its own doctrines and texts).

• Durgah Committee, Ajmer v. Syed Hussain Ali (1961) narrowed the test.

• Only practices that are essential and integral are protected.
• Practices that come from "superstitious beliefs" are not protected. The Court called them extraneous and unessential accretions (later additions) to religion.

• In effect, the court became the arbiter of what a faith truly requires.

• The doctrine is still being argued. In arguments before the nine-judge bench in 2026, counsel relied on the view that a practice must be both essential and an integral part of the religion. Otherwise, purely secular practices could be passed off as religious ones and claim protection [2].

3. Criticism and proposed alternatives

• Judges become theologians. Judges trained in law end up reading scripture and settling questions of doctrine.
• The test strains two other rights:
• denominational autonomy under Art. 26, which is a group's right to run its own religious affairs;

• individual conscience under Art. 25(1), which is a believer's personal faith even when the official doctrine disagrees.

• Anti-exclusion principle. Chandrachud J. proposed this in IYLA (2018).

• Courts would not ask whether a practice is essential.

• They would ask whether the practice excludes or humiliates people, for example by denying them dignity or access. If it does, it gives way to fundamental rights.

• Constitutional morality. Under this approach, a practice is tested against the core values of the Constitution, such as equality, liberty, dignity and fraternity, and not against majority social morality.

4. Ismail Faruqui (1994): is a mosque essential?

• M. Ismail Faruqui v. Union of India (1994), decided 3:2:
• It upheld the Acquisition of Certain Area at Ayodhya Act 1993.

• It struck down the clause that abated (ended) pending suits over the disputed site.

• Observation: A mosque is not an essential part of Islamic practice, because namaz (prayer) can be offered anywhere, even in the open.

• So the state may acquire a mosque like any other property, using its power of eminent domain (the state's power to take private property for public use).

• Places of worship of any religion can be acquired if they are not essential to the practice of that religion.

• 2018 (M. Siddiq v. Mahant Suresh Das), decided 2:1: The Court refused to send this observation to a larger bench. It said the remark was limited to land acquisition. This cleared the way for the Ayodhya title appeals (see recent developments).

5. The Sabarimala line of cases

(a) Indian Young Lawyers Association v. State of Kerala (28 September 2018, 4:1)

• Issue: Women aged 10-50 (the age of menstruation) were not allowed into the Sabarimala Ayyappa temple in Kerala.
• Holding: The exclusion violated equality and religious freedom, including women's own right to worship under Art. 25.
• Main findings:
• Ayyappa devotees are not a separate religious denomination, so Art. 26 did not protect the practice.

• Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 was struck down. This rule allowed women to be kept out on grounds of custom.

• Chandrachud J. treated the exclusion as a form of untouchability under Art. 17, because it rested on ideas of "purity and pollution".

• Indu Malhotra J. (dissent): Courts should not impose rationality on faith. In a plural country, the worshippers of a deity should decide what their religion requires.

(b) 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 [3].
• The majority did not decide the review. Instead, it sent wider questions to a larger bench:
• how Art. 25 and Art. 26 work together;
• what the scope of the ERP test is and how far judicial review can go;
• what "constitutional morality" means;

• whether an outsider who is not a member of the faith has standing (the right to bring a case) to challenge a religious practice.

• These questions cover other cases too:

• Muslim women's entry into mosques;
• Parsi women married outside the faith entering the fire temple (agiary);

• female genital cutting (khafz) among Dawoodi Bohras.

• 2023: The question of Dawoodi Bohra excommunication was added. It reopens the Sardar Syedna Taher Saifuddin (1962) ruling, which protected the power to excommunicate.

(c) The nine-judge reference

• February 2020: A nine-judge bench framed the questions. It held that a bench hearing a review can refer questions of law to a larger bench.
• April-May 2026: The nine-judge bench sat in the Chief Justice's Court and heard arguments. Transcripts are recorded for 28 April and 13 May 2026 [2][3].

• In court, the bench was described as reflecting on religion as a concept, not deciding a single case [3].

• Status: The judgment is awaited (verify current).

6. The hijab case

• 5 February 2022: A Karnataka government order barred the hijab in government pre-university colleges that had prescribed uniforms.
• Resham v. State of Karnataka (Karnataka High Court, 15 March 2022): The court upheld the order. It held that wearing the hijab is not an essential religious practice of Islam.
• Aishat Shifa v. State of Karnataka (13 October 2022) was a split verdict (1:1):

Point	Hemant Gupta J.	Sudhanshu Dhulia J.
Result	Upheld the ban	Struck down the ban
Main ground	A uniform rule in secular schools is a reasonable restriction	Choice: freedom of expression under Art. 19(1)(a) and conscience under Art. 25
ERP test	Applied it. Hijab not essential	ERP is irrelevant. A matter of conscience needs no essentiality test
Wider concern	Discipline and uniformity	Girls' education: a ban may push girls out of school

• Because the judges split, the matter went to the Chief Justice to set up a larger bench (verify current).

7. Triple talaq

• Shayara Bano v. Union of India (22 August 2017, 3:2) set aside talaq-e-biddat, which is instant triple talaq (divorce by saying "talaq" three times at once) [4].

Judge(s)	View
Nariman J. and U.U. Lalit J.	Manifestly arbitrary, so it violates Art. 14 (a law is manifestly arbitrary when it is unreasonable or has no adequate principle behind it)
Kurian Joseph J.	Has no sanction in the Quran, so it is not essential to Islam and gets no protection
Khehar CJ and Nazeer J. (dissent)	It is part of personal law and protected by Art. 25. They paused the practice for six months and asked Parliament to legislate

• The Muslim Women (Protection of Rights on Marriage) Act 2019 followed:
• Any pronouncement of instant triple talaq is void and illegal [4].
• The husband can be punished with up to 3 years' imprisonment and a fine [4][5].
• It is a cognizable offence (police can arrest without a warrant), but only if the wife or a person related to her by blood or marriage gives the information [5].
• The wife is entitled to subsistence allowance and custody of minor children [4][5].
• The Act came into force retrospectively from 19 September 2018, the date of the first ordinance [4].
• Parliament passed the Bill in July 2019 [6].

Prelims Hooks

• Shirur Mutt (1954): Religion includes practices, not only beliefs, and what is essential is judged by the religion's own tenets. This is where the ERP doctrine began.
• 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. The Ayodhya Act 1993 was upheld, but the clause ending pending suits was struck down. In 2018 (2:1) the Court refused to refer this view to a larger bench.
• IYLA (2018, 4:1): The only dissent came from Indu Malhotra J., the only woman on the bench. Rule 3(b) of the Kerala rules of 1965 was struck down. Ayyappa devotees are not a denomination.
• Trap: Chandrachud J. in IYLA linked the exclusion of women to Art. 17 (untouchability), not only to Art. 14.
• Kantaru Rajeevaru (2019) was 3:2. It referred questions on mosques (women's entry), Parsi women and Dawoodi Bohra FGC. Bohra excommunication was added in 2023.
• Aishat Shifa (2022): A 1:1 split. Dhulia J. relied on Art. 19(1)(a) and Art. 25 and held the ERP test irrelevant.
• Shayara Bano (2017): Only two judges (Nariman and Lalit) used manifest arbitrariness under Art. 14. Kurian Joseph J. held instant talaq lacked Quranic sanction.
• 2019 Act: Up to 3 years' imprisonment and a fine. Cognizable only on complaint by the wife or her relatives. In force retrospectively from 19 September 2018 [4][5].

Mains Points

• Courts as theologians vs courts as guardians of rights. The ERP test makes judges interpret scripture. This sits badly with Art. 26 autonomy and personal faith. Moving to an anti-exclusion or constitutional morality test would focus on dignity and equality instead of doctrine. The risk is that this gives judges even wider discretion.
• Indian vs Western secularism. Sabarimala and triple talaq show principled distance at work. The state and the courts step in to end intra-religious domination, as Art. 25(2) allows. Under the Western model of strict separation, they would stay out.
• Group rights vs individual rights. The Sabarimala, Parsi and Bohra cases all pit a group's autonomy against a woman's equality inside her own faith. The nine-judge bench's answer, still awaited, will set the rule for all of them.
• Hijab and the ERP test. Dhulia J. framed the hijab as a matter of choice and access to education, not doctrine. This approach skips the ERP test altogether. It shows that rights to expression and conscience can protect religious practice without courts having to decide what a faith requires.