Essential Religious Practices (ERP) Doctrine: A UPSC Deep Dive

The Essential Religious Practices (ERP) doctrine is one of the most consequential — and contested — innovations of Indian constitutional law. It determines which religious practices are protected by Articles 25 and 26 and which are open to state regulation in the name of social reform, public order, or equality. The doctrine has shaped outcomes in Triple Talaq, Sabarimala, Haji Ali, and Jallikattu cases, and continues to inform ongoing debates on religious freedom, gender equality, and state power. For UPSC, ERP is a high-value topic that cuts across Fundamental Rights and DPSP.

Origins: Ambedkar's Distinction

The doctrine traces its intellectual origin to Dr. B.R. Ambedkar's speech in the Constituent Assembly:

"The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. I do not think it is possible to accept a position of that sort. We ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonies which are essentially religious. It is not necessary that laws relating to tenancy or succession should be governed by religion."

Ambedkar was drawing a boundary between "the religious" and "the secular". The state, he argued, should be free to regulate matters that are connected to religion but not intrinsically religious.

Shirur Mutt (1954): The Test Is Born

In Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of Shirur Mutt (1954), the Supreme Court held that the term "religion" in Articles 25-26 covers all rituals and practices "integral" to that religion. The test became known as the "essential religious practices" test.

Important distinction: The original intent of the Court was to draw a line between religious and secular, not between essential and non-essential religious practices. The secular aspects could be regulated; the essentially religious could not.

A Doctrinal Drift

Over time, "essentially religious" subtly morphed into the "essential religious practice test."

• Allahabad HC (1957): Bigamy not an integral part of Hindu religion.
• SC (2004): Tandava dance not an essential rite of Ananda Marga faith.

The Court began deciding for religions what is central and what is peripheral — a role that critics argue lies outside judicial competence.

Landmark Applications

Haji Ali Dargah (Bombay HC, 2016)

Women were permitted to enter the sanctum sanctorum of the Haji Ali Dargah. The Trust failed to show that the exclusion of women was an "essential feature" of Islam.

Triple Talaq — Shayara Bano (2017)

The Supreme Court ruled that instantaneous triple talaq (talaq-e-biddat) is not an essential practice of Islam and cannot claim constitutional protection under Article 25.

Sabarimala — Indian Young Lawyers Association (2018)

A five-judge bench, by a 4:1 majority, held that the exclusion of women aged 10-50 from Sabarimala was not an essential practice and violated Article 14 and 15. A review petition is pending before a larger bench.

Other Interventions

• Hadiya case — freedom to choose religion and life partner, central to Indian pluralism.
• Entry of women into temples — Shani Shingnapur, Haji Ali, Sabarimala (10-50 years).
• Hindu Marriage Act upheld for inter-caste marriage.
• Parsi women who marry outside the community allowed to participate in fire-temple rituals.
• Female genital mutilation in Dawoodi Bohra sect banned.

Benefits of the ERP Doctrine

Balance Between Fundamental Rights

• In Sabarimala, the Court struck a balance between the right to equality and the right to freedom of religion.
• ERP preserves both religious autonomy and constitutional equality.

Social Justice in Religious Practice

• Has enabled intervention in practices like triple talaq, female genital mutilation, temple exclusion.
• Advances constitutional morality over religious morality — as seen when the Court struck down Section 377 in Navtej Johar.

Primacy of Rule of Law

• Prevents the emergence of rule of religion over rule of law.
• Reduces conflict between sections of society.
• Protects core essentials of religion from state overreach while permitting reform of peripheral practices.

Criticisms of the ERP Doctrine

Judicial Overreach Into Religion

• Courts have narrowed the scope of religious safeguards by deciding for religious groups what is essential.
• This violates the autonomy of religious communities to decide for themselves what they deem valuable — what Ronald Dworkin called "ethical independence."

Blocks Social Reform

• Has negated legislation that might enhance social justice.
• Example: In 1962, the Court struck down a Bombay law that prohibited excommunications by the Dai of the Dawoodi Bohra community — holding that excommunication is essential to faith. The Court held that no social-welfare measure can reform a religion out of its existence.

Who Decides — Judges or Religious Members?

• There is no fixed parameter for deciding essentiality.
• Courts have relied variously on:
• Religious texts
• Empirical behaviour of followers
• Historical origin of practices
• This inconsistency leads critics to say the doctrine takes courts beyond their competence.

Directive Principles of State Policy (DPSP): The Wider Context

The ERP debate often intersects with the DPSP-FR tension. DPSPs (Articles 36-51) are the non-justiciable ideals that guide state action.

What Are DPSPs?

• Non-justiciable — not enforceable in courts.
• Article 37: "Fundamental in the governance of the country."
• Borrowed from the Irish Constitution (which itself drew from the Spanish Constitution).
• Along with Fundamental Rights, described as the "soul" of the Constitution.

Features

• Instructions to the legislature, executive, and administrators.
• Aim to establish a welfare state — economic and social democracy.
• Non-justiciable but fundamental in governance.
• Used to interpret laws; a law fulfilling DPSPs may be considered reasonable even if it appears to restrict FRs.

Why Non-Justiciable?

• India lacked financial resources at independence.
• Immediate enforceability might have over-burdened the state.
• As Alladi Krishnaswami Ayyar observed: "No responsible government can afford to ignore Part IV."
• Ambedkar: "If a government ignores them, it will certainly have to answer before the electorate at election time."

Classification of DPSPs

Socialist

• Welfare state, democratic socialism, social and economic justice.
• Deals with health, wages, children, workers.
• Articles 38, 39, 39A, 41, 42, 43, 43A, 47.

Gandhian

• Reconstruction programme rooted in Gandhian ideals.
• Decentralisation (Art. 40), village panchayats and cooperatives (Arts. 40, 43, 43B).
• Promotion of SC/ST and weaker sections (Art. 46).
• Prohibition of drugs and liquor (Art. 47).
• Protection of cows and other milch cattle (Art. 48).

Liberal-Intellectual

• Art. 44 — Uniform Civil Code (UCC).
• Art. 45 — Childhood care.
• Art. 48 — Scientific agriculture.
• Art. 48A — Environmental protection.
• Art. 49 — Protection of monuments.
• Art. 50 — Separation of judiciary from executive.
• Art. 51 — International peace, respect for international law.

Amendments

• 42nd Amendment (1976): Added Arts. 39, 39A, 43A, 48A.
• 44th Amendment (1978): Modified Art. 38.
• 86th Amendment (2002): Art. 45 amended; right to education moved to Art. 21A.
• 97th Amendment (2011): Added Art. 43B on cooperative societies.

Criticisms of DPSP

The Utility of DPSPs

• L.M. Singhvi: "Life-giving provisions of the Constitution."
• M.C. Chagla: "If all these were implemented, India would be a heaven on earth."
• Ambedkar: They lay down the goal of Indian polity and economy.
• Granville Austin: They aim at furthering the goals of social revolution.

The Conflict Between FR and DPSP

The Legal Battle

• Champakam Dorairajan (1951): FRs are supreme to DPSPs; but FRs can be amended.
• Parliament passed 1st, 4th, and 17th Amendments (1951, 1955, 1964) to implement DPSPs.
• Golak Nath (1967): FRs cannot be amended to implement DPSPs.
• Parliament passed 24th and 25th Amendments (1971):
• 24th: Parliament can amend FRs.
• 25th: Added Article 31C — no law implementing DPSPs in Art. 39(b) and 39(c) shall be void for violating Arts. 14, 19, and 31.
• Kesavananda Bharati (1973): 25th Amendment valid but laws can be questioned; judicial review is part of basic structure.
• 42nd Amendment: Extended Art. 31C to all DPSPs.
• Minerva Mills (1980): 42nd Amendment extension declared unconstitutional — FR and DPSP must be harmoniously constructed.

Harmonious Construction

Over time, courts have recognised FRs and DPSPs are complementary, not contradictory. Political democracy without economic and social democracy is a contradiction. DPSPs were not given immediate effect because of resource constraints — not because they were less important.

DPSPs in Judicial Interpretation: Three Roles

1. Legislation enacted in furtherance of DPSPs meets the "public interest" threshold in an FR challenge.
2. When legislation can be interpreted in multiple ways, the interpretation aligning with DPSPs should be preferred.
3. DPSPs play a crucial role in structuring specific manifestations of abstract concepts in the FR chapter.

Limits on DPSP-Based Judicial Activism

• The Court cannot strike down legislation solely for non-compliance with DPSPs.
• The Court should not incorporate DPSPs to a degree that requires it to exceed its designated role under the separation-of-powers doctrine.

Latest Developments (2024-26)

• Uttarakhand UCC (2024) revives debates on Article 44 and Essential Religious Practices.
• Places of Worship Act challenge pending.
• Sabarimala review pending before a nine-judge bench alongside other religion-state cases.
• Madrasa Act case (2024): Allahabad HC struck down UP Madrasa Act; SC stayed the ruling.
• Anti-conversion laws in multiple states face constitutional challenge.

UPSC Relevance

GS-II mapping: Indian Constitution — Fundamental Rights; DPSPs; secularism; judicial review; comparative law.

Prelims bullets:

• Shirur Mutt (1954) — origin of ERP doctrine.
• Shayara Bano (2017) — triple talaq not essential.
• Sabarimala (2018) — exclusion of women 10-50 not essential.
• DPSPs — Articles 36-51, borrowed from Irish Constitution.
• Article 31C (25th Amendment); 42nd Amendment extension; Minerva Mills (1980) restored FR-DPSP balance.
• Kesavananda Bharati (1973) — basic structure.

Mains angles:

• "The Essential Religious Practices doctrine has produced more problems than solutions." Critically evaluate.
• Examine the tension between fundamental rights and DPSPs in the context of religious reform.
• How should the judiciary balance constitutional morality with group autonomy in matters of religion?
• Trace the evolution of the FR-DPSP relationship from Champakam Dorairajan to Minerva Mills.