CPGLS

School of Legal Studies

BBAU Lucknow
Session: 2022-23
Subject: Fundamental Right and Directive Principle of
State Policy (PGLCA 1: 01)
Topic: “Freedom of Religion under the touchstone of Doctrine of
Essential Religious Practice”

Submitted By Submitted To
Sparsh Kumar Lal Prof. Preeti Saxena

LL.M (1year) Dr Sonali Roy Chaudhary

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 Table of content

S No. Topic Page No

1. Introduction 3

2. Secularism 3

3. Secular State 4

4. Article 25 of the Constitution 4

5. What is essential and integral part 5

6. Essential and Integral Part of Religion interpretation through 6-8

Case Laws

7. Conclusion 8

8. Bibliography 9

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 Topic: “Freedom of Religion under the touchstone of Doctrine of essential Religious
Practice”
India is a country where there is large diversity on the basis of various grounds such as language, race,
religion, region, caste etc. Due to this, the State has rightfully introduced and maintained in its system the
concepts of Secularism and Religious Pluralism which means that the State of India does not have a
specific state religion that is favoured over others and that all religions are to be treated equally and given
equal importance and protection.

 The concept of secularism is not merely a passive

attribute o religious tolerance.
Secularism  It is also a passive concept of equal treatment of all
religion.
 Neither Pro-god nor ante god.

The word secularism was not expressly incorporated in the constitution at the stage of its making.

In 1976, by the 42nd Constitutional Amendment the concept of secularism was introduced by inserting the
word secular in the preamble.

The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent
Assembly.

Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be
allowed to intervene in matters that are connected to religion but are not intrinsically religious.

In Ahmedabad St. Xavier’s College v. State of Gujarat 1 the Supreme Court held that Secularism
neither means anti-god nor pro-god. It just ensures that no one is differentiated on the basis of religion
eliminating the concept of God in matters of the state.

In S.R. Bommai vs UOI (1994)2 a nine judge bench referred to the concept of Secularims in the Indian
Context;

Justice Sawant stated;

“Religious tolerance and equal treatment of all religious group and protection of their life and
property and the places of their worship are an essential part of secularism enshrined in our
constitution”

1
AIR 1974 1389, 1975 SCR (1) 173
2
(1994) 2 SCR 644 : AIR 1994 SC 1918

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The concept of secularism is not merely a passive attitude of religious tolerance. It is also a positive
concept of equal treatment of all religion.

In this case secularism was held by the Supreme Court as the basic structure of the constitution.

The concept of Secularism was not expressly incorporated in the constitution at the stage of its
making. However, its operation was visible in the Fundamental right and Directive principles of state
policy.
 Neither Pro any particular religion
 Nor anti any particular religion
Secular State  No religion of state
 State is religion neutral
 Panth nirpeksh not Dharma nirpeksh

The word dharma means duty ,righteousness and the word panth means denomination .The word
'panth-nirpeksh' thus means that as a state is not wedded to any denomination.

A secular state does not extend patronage to any particular religion. The state is neither pro any
particular religion not anti any particular religion. The state maintains neutrality in matter of religion
and provides equal Protection to all religious subject to regulation of secular part.

Reading Article 25-30 along with Article 14, 15 and 16 as well as Article 44 and 51A it is clear that
our constitutional provisions promote the idea of secularism and by implication prohibit the
establishment of a theocratic state .The state is under obligation to accord equal treatment to all
religion and religious sects and denominations.

Article 253 states that: Subject to the public order, morality and health and other provision of this
part
 Freedom of Conscience
All person are equally entitled to
 Freedom to profess, practice and propagate religion

 Freedom to Profess: expression of religious belief in public. Example; Wearing turban,

going to temple/mosque/church.
 Freedom to Practice: Individual is free to perform his /her religious practices /
rituals/rites. Example: Crimination, Burring bodies.
 Freedom to Propogate: Spread and publicize the religious views.
 Freedom of Conscience: Right to follow one’s belief in matter of religion.

What is religion?

The term religion has not been defined in constitution. The Supreme Court has however given this
term an expansive content.

3
Constitution of India

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The Supreme court in Commissioner, HRE vs Sri Lakshmindra Thirtha Swamiar (1954)4
Religion is certainty a matter of belief and faith with individual or communities and not necessary
theistic.

Article 25 protects religious faith and not a practice which may run against to public order, morality
and health.
A practice to be treated as a part of a religion, it is necessary that is be regarded by the said religion
as its essential and integral practice.
This caution is necessary otherwise even purely secular practice, not essential to religion may be
treated as religious practice within the meaning of Article 25.

It means purely secular practices which may not be an essential and integral part of religion are not
protected and can be abrogated by legislation subject to other fundamental right,

What is essential and Integral Part?

What constitute an essential part of a religion or religious practice has to be decided by the court
with reference to the doctrine o particular religion/teachings of a particular religion – Justice
Mukherjee.5
The court by using 2 Principles can decide what an essential religious practice is:

Principle of Inclusion Principle of exclusion

The following is the most quoted line from the Shirur Mautt case6what constitute the essential part
f a religion is primarily to be ascertained with reference it the doctrine of that religion itself
If the above lines are solely interpreted this doctrine of Essential religious practice doctrine is
consistent with the current usage, the doctrine instruct court to distinguish between practices that are
essential to religion and practices that are not.
In Dargah Committee, Ajmer vs Syed Hussain Ali 7, the court stated that a clear difference must be
made between religious practices that are essential and integral to religion and religious practices
that are merely superstitious.
Thus the protection of article 25 and 26 was limited to religious practices that were essential and
integral to the religion.

4
AIR 1954 SC 282, (1954) SCR 1005

5 Commissioner,HRE v. Sri Lakshmindra AIR1954 SC 282, (1954) SCR 1005

6
AIR 1954 SC 282, (1954) SCR 1005
7
1961 AIR 1402, 1962 SCR (1) 383

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 Essential and Integral Part of Religion interpretation through Case Laws
In the below discussed cases we can observe that how the doctrine of essential religious practice
have acted as the yardstick , touchstone or the criteria for any religious practice to be protected under
article 25 of the Indian constitution.

 Mohamed Hanif Quarashi vs State of Bihar(1958)8

Cow sacrifice has been held as not an obligatory overt act for a Muslim to exhibit his religious
belief and ideas on Bakr Id.

Held: Cow sacrifice not being an essential part state can put a ban or prohibit such act.

 State of West Bengal vs Ashutosh Lahiri (1995) SC9

The above ruling has been reiterated there in no fundamental right of a Muslim to insist on cow
slaughter.

 E.R.J Swami v. State of Tamil Nadu 10

“Religious service “ “Person who performs service “

The performance of religious service in place of worship is an integral part of the person’s faith and belief
and it cannot be regulated by state. But the state has power to regulate the appointment if the priest

The court held that performance of the ritual ceremonies was an integral part of religious freedom
guaranteed under article 25 , but securing the service of a priest who perform rituals, ceremonies was not.

 Acharya Jagdishwar Ananda V. Police Commissioner, Calcutta(1984)11

Performance of Tandava done by Anand Margis in procession or public place is not an essential
religious practice

 Nikhil Soni v. UOI (2015)12

The Rajasthan High court held that the practice of santhara, fasting upto death to attain moksha, is
impermissible under article 21 of the constitution and it could not be included as an essential
religious practice under article 25. The practice is to be treated as suicide punishable under Section
309 IPC; its abetment is punishable under section 306 IPC.
Court: Santhala Practice is violative and state can put ban as it is not an essential practice under
Jain religion.

 Ismail Faruqui vs UOI(1994)13

Court held that worship /offer prayer is religious practice but offering at every location where such
prayers can be offered would not be an essential religious practice.

8 AIR 1958 SC 731, (1959) SCR 629

9 AIR 1995SC 464, 1995 SCC (1) 189
10 AIR 1972 SC 1586
11
AIR(1984) 512, 1984 SCR (1) 447
12
AIR (2006) Raj 7414.
13
AIR (1995) 605; (1994) SCC (6) 360

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 Rafiq Bhai khan vs UOI(2012)
SC declared that within 10 years Haj subsidiary should be stopped as taking financial assistance to
visit holy places is not essential and integral part of Muslim religion.

 Om Praksh v. State of Uttar Pradesh (2004)

Prohibition on selling of egg in Rishikesh is reasonable restriction that can be imposed in interest if
general public.

 Santosh Kumar v. Secretary Ministry of Human Resource development (1994)14

Teaching of Sanskrit as optional subject is not against the concept of secularism.Sankrit is the
mother of all language.

 Aruna Roy vs UOI(2002)15

Study of religion in school is not against secular philosophy of constitution”Saffronization of
education” should be stopped.

 Bijoe Emmanuel vs State of Kerala (National Anthem case) (1986)16

Divisional bench of the SC ruled that Jehova’s witnesses constitute a religious denomination.
Compelling a student belonging to Jehova’s witnesses to join in the singing of the National Anthem
despite his genuine conscientious religious objection, would contravene the right guaranteed by
Article 19(1)(a) and Article 25(1).
The Court noted that Jehova’s witnesses, wherever they are, do not sing the National Anthem,
though they show respect to it by standing up whenever it is sung. They truly and conscientiously
believe that their religion does not permit the singing of the National Anthem.

However, in Shyam Narayan Chouksey vs Union of India (2018)17, the Supreme Court held that
one is compelled to show respect whenever and wherever the National Anthem is played by virtue
of Section 3 of Prevention of Insults to National Honor Act, 1971.

United States case with respect to Jehova’s witness:

Minersville School District vs Gobitis(1940)18
In this case the court had held that witnesses could be forced against there will to pay homage to
the U.S flag.
West Virginia State Board of education V. Barnette (1943)19 In this case the US court held that
school children could not be forced to pledge allegiance to or salute the U.S Flag.

14
AIR (1995) SC 293; (1994) 6 SCC 579
15
AIR(2002) SC 3176
16
AIR (1987)SC 748 ;(1986) SCR (3) 518
17
(2018) 2 SCC 574
18
310 U.S. 586 (1940)
19
319 U.S. 624 (1943)

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 Shyara Bano vs UOI (2017)20
Triple talaq, also known as instantaneous talaq or Talaq-e-biddat, is a type of talaq wherein the
marriage is dissolved as soon as the husband pronounces the word “talaq” three times in a single
sentence. In this case it was held to be unconstitutional. And it was held not an essential religious
practice under Muslim jurisprudence.
Court: Ban on triple talaq

 Indian Young Lawyers Association and Ors. Vs. State of Kerala and Ors. ((2017)21
Right to freedom is not absolute and must be harmonized with other liberties and freedom. It is
subject to constitutional morality Any exception placed on women because of biological differences
violates the constitution.
Court: Entry of women in Sabrimala

 Aishat Shifa v State of Karnataka(2022)

Hijab is not an essential and integral practice of Muslim religion and state can put ban on it. But this
is not the final conclusion the Supreme Court have referred this case to larger constitutional bench.
So by analysing the above series of cases it is clear that the doctrine of essential religious practice
act like an osmosis chamber through which non essential religious practice which is not part of
religion can be set aside and only that part of religion which is essential religious practice can be
carried on.

Conclusion
India is a secular democratic country with a diverse population belonging to different religions
living together. It does not hold any particular religion identity alike the Islamic countries like
turkey, Istanbul.

In India, everyone is free to practice, profess and propagate the religion of their own choice;
however, these rights are subject to reasonable restrictions. There are instances when communal
differences arose, but the Judiciary and Government have been able to tackle those challenges and
establish peace in the country.

By following the doctrine of essential religious practice the court can judge whether any practice is
essential in any religion or not and it it is not then such practice can be declared void and
inconsistent to the basic principle of secularism.

20
(2017) 9 SCC 1
21
(2017) 10 SCC 689).

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 Bibliography

Books:

1. Jain MP, Indian Constitutional Law 6-7 ( 8th Edition LexisNexis2018)

Internet Source

1. Akansha Yadav, Freedom of religion under Indian constitution, pleader( Feb

20;2023,8;35pm)
https://blog.ipleaders.in/freedom-of-religion-under-the-indian-constitution-2/

2. Sanam,An overview on Doctrine of Essentiality in light of essential Religious Practice

Tesr(Feb 21;2023, 8;42
https://www.legalserviceindia.com/legal/article-8232-an-overview-on-doctrine-of-essentiality-
in-light-of-the-essential-religious-practice-test.html

Journal Article:
1. Kartik Piyush Panchal The Essential Religious Practice Test/ Doctrine of Essentiality” Volume 11, 1,1-
2(2020)

Class Lecture:

Chaudhary Roy Sonali “Article 25 of the Constitution, Class Lecture , Fundamental right and
DPSP, BBAU Lucknow 15-16th December 2022.

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