ESSENTIAL RELIGIOUS PRACTICES DOCTRINE AND ITS EFFECT ON SECULARISM

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 India being a land of diverse religions and cultures, there are various religions namely Hinduism, Islam, Christianity, Jainism, Sikhism and Buddhism. Therefore, to avoid any conflict in such multireligious nation, the concept of secularism was adopted. Secularism in simple words means state recognizes no religion but respect all religions. The word 'secular' was added in the Preamble in the year 1976 in Indian Constitution. Although the concept of secularism is adopted from western countries but India follows such secularism model with slight deviation such as state interference is allowed in case of secular practices associated with religion under Article 25 of Indian Constitution. Thus, Indian Judiciary has played important role in reshaping the elements of secularism through Essential Religious Practices Doctrine (ERP) as evolved in case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt. This article throws a light upon how Indian Judiciary through ERP doctrine causes discourse to secularism and has reshaped the meaning of freedom of religion as well as secularism. At the end author also gives suggestion of removing ERP doctrine so that real meaning of secularism is restored in India. 

The main argument against usage of  ERP doctrine lies in creating a bridge between religious practice that will receive protection and secular practices which will not receive protection under Article 25 of Indian Constitution. Indian Judiciary which should act as a constitutional body has now taken up theology role to bring up social reforms irrespective of secular nation. For instance, the Apex Court has recently applied ERP test in Shayara Bano v. Union of India (triple talaq case) to declare instantaneous triple talaq (talaq-e-biddat) as unconstitutional because it is not an essential religious practice of Islam.  Also. in this case, the court determined that Triple Talaq is not only sinful and contrary to the Quran’s teachings but also that it is not an appropriate religious ritual. Now the question arises When giving divorce is not illegal under other religions such as Hinduism, Christianity, or Islam, why is Judiciary tried to make such a rule under Muslim law.

Secularism in India should be examined in a flexible and wider approach to provide freedom of religion for all groups and communities. Indian Secularism should ideally be pluralistic and flexible so as to cater to the needs of all persons. Attempting to apply secularism in such a manner so as to make all religious minorities and tribal to fall within the Hindu fold would destroy their identities and the national aspirations of the Constitution. The Court’s evolution of the Essential Religious Functions test is an interventionist approach and should be removed.

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