CASE LAW/ISSUES TEST AND METHOD WHETHER

APPLICATION OF
TEST WAS NECESSARY
State of Bombay Legal prohibition of Essential religious No. Article 25(2)(b)
v Narasu Appa bigamy practice; the judges was applicable. In
Mali, AIR 1952 went into the tenets fact, the Court itself
Bom 84. of Hinduism and upholds the law on
found that the both grounds
scriptures did not
mandate bigamy
Commissioner v Law providing for Religious/secular Yes. Since the
Lakshmindra management of a distinction; the Court provisions of the
Swamiar, 1954 1 Math estate holds that matters of Act primarily
SCR 1005. religion have to be affected the
determined “with management and
reference to the disposal of
doctrines of the property, the Court
religion itself”, and had to go into the
includes not just question of which
belief and thought, aspects of the law
but religious practice were regulating
as well. secular aspects, and
which were
regulating religious
aspects. Also,
clearly, neither the
prefatory words of
Article 25(1), nor
25(2)(b), was
applicable. Rather,
this was a case
where the Court
necessarily had to
navigate the
relationship
between 26(b) and
26(d). For instance,
the Court found
that management of
the property by a
secular
Commissioner was
constitutional, but
giving the
Commissioner the
power to enter the
temple at any time
was not.
Ratilal v State of Law regulating public Religious/secular Yes. See above.
Bombay, [1954] and religious trusts distinction. Swamiar
1 SCR 1055. largely followed. The
Court, however,
specifically rejected
an argument that
according to the
tenets of the Jain
religion, the
property of the
temple existed
purely for religious
means. Without any
analysis as to
whether this
contention was true,
the Court simply
stated that these
expenses are
“incidental to proper
management.”
Ram Prasad Seth Prohibition of bigamy Essential religious No. For the same
v State of UP, AIR practice. The Court reasons as in
1957 All 411. analysed Hindu Narasu Appa Mali.
texts, and found that
although the Hindu
religion stressed the
need for having a
son in order to
perform funeral
rights, that could
easily be
accomplished
through adoption.
Venkataramana Whether the Madras None. Article 25(2)(b)
Devaru v State of Temple Entry Act, was squarely
Mysore, AIR enacted in pursuance applied, and held to
1958 SC 255 of Article 25(2)(b), override Article
applies to 26(b)
denominational
temples protected by
Article 26(b).
Mohd Hanif Whether prohibition Essential religious No. If the Court did
Qureshi v State upon cow slaughter practices test. The want to uphold the
of Bihar, AIR violates Muslims’ Court states that the law, it could have
1958 SC 731 rights under Article Petitioners’ affidavit done so under the
25(1) made no mention of “health” restriction
cow sacrifice being prefacing Article
required by the 25(1), since much
Quran, and there of the judgment
 was no affidavit of went into analyzing
any Maulana. The how preservation of
surahs that had been cattle was essential
placed before the for public health.
Court only
mentioned
“sacrifice”. Also,
many Mughal
emperors were
against cow sacrifice.
Sardar Sarup A law regulating the Religious/secular While the
Singh v State of composition of the distinction. The application of the
Punjab, AIR 1959 Sikh Gurudwara Court held that there test was necessary,
SC 860 management was no authoritative it seems that the
committee, and text to show that Court performed
providing for certain “direct election” to something of a
members to be membership of the sleight of hand. It
selected via management was contended
nomination/indirect committee was part before it that the
election of Sikh religion. management
committee
performed religious
functions, and that
therefore, its
composition was
also a matter of
religion. The Court
said that it would
express no opinion
on the functions of
the committee, but
that the process of
selection of
members was a
secular act!
Durgah The Durgah Khwaja Both. No. These
Committee, Saheb Act provided Gajendragadkar J observations were
Ajmer v Syed for State intervention effectively ran purely obiter, and
Hussain Ali, AIR in the management of together the unnecessary. The
1961 SC 1402 the affairs of the “essential legal entire case was
Ajmer Durgah practices” test and decided on the fact
the that since
“religious/secular” historically, the
distinction, and then Durgah had never
added another been granted the
requirement – right to control its
practices born out of own property, no
“mere superstition” case had been made
could not be out under Articles
considered for 26(c) and 26(d). In
protection under other words, the
Articles 25 and 26: Court did not even
“in order that the need to get into the
practices in question question of
should be treated as essential religious
a part of religion they practices.
must be regarded by
the said religion as its
essential and integral
part; otherwise even
purely secular
practices which are
not an essential or an
integral part of
religion are apt to be
clothed with a
religious form and
may make a claim for
being treated as
religious practices
within the (1) [1958]
S.C.R. 895- meaning
of Art. 26. Similarly,
even practices
though religious may
have sprung from
merely superstitious
beliefs and may in
that sense be
extraneous and
unessential
accretions to religion
itself. Unless such
practices are found
to constitute an
essential and integral
part of a religion
their claim for the
protection under Art.
26 may have to be
carefully scrutinised;
in other words, the
protection must be
confined to such
religious practices as
are an essential and
an integral part of it
and no other.”
Sardar Saifuddin The validity of the Essential religious No. The Court cited
v State of Bombay practice test. The Lakshmindra
Bombay, AIR Excommunication Court went into the Swamiar, but as we
1962 SC 853. Act, which prohibited history of the have seen, in that
the practice of Dawoodi Bohara case, the term
excommunication in community, and “essential” was
religious found that the Head used in a different
communities, was had always had the context – that of
challenged by the power of delineating the
head of the Dawoodi excommunication (it religious from the
Bohra clan. relied primarily on a secular in case of a
privy council law for the
decision (!). administration of
maths. It is unclear
why the Court
needed to hold that
excommunication
was an “essential
religious practice”,
and not merely a
religious practice –
especially because
the Court also held,
without any
analysis, that the
law was not saved
by Article 25(2)(b).

On the other hand,

Justice Ayyangar’s
concurring opinion
demonstrated an
approach where
ERP was actually
required. He held
that Article 25(2)
(b) could not be
invoked to “reform
a religion out of
existence.” This
approach – which
has never been
accepted by the
Court as a whole –
would place
essential religious
practices beyond
the power of Article
25(2)(b), while
 non-essential
practices would be
subject to 25(2)(b).
Govindlalji v An Act for the Again, Justice For the reasons
State of management and Gajendragadkar stated above, like in
Rajasthan, AIR administration of the quotes both tests: cases such as
1963 SC 1638. properties of the “the Court may have Swamiar and
Nathdwara Temple to enquire whether Ratilal, the nature
the practice in of the case made it
question is religious necessary for the
in character and if it Court to go into the
is, whether it can be religious/secular
regarded as an distinction.
integral or essential However, like in
part of the religion, those cases, after a
and the finding of the perfunctory nod to
Court on such an the fact that what
issue will always constitutes a part of
depend upon the the religion must be
evidence adduced determined by
before it as to the looking at the
conscience of the tenets of the
community and the religion itself, the
tenets of its religion.” Court simply drew
an a priori line
Then, after stressing between the
the fact that it might religions and the
sometimes be secular.
difficult to
disentangle the Furthermore,
religious from the invocation of the
secular, especially in “essential religious
light of Hinduism’s practices” test was
claim to a vast gratuitous and
jurisdiction over unnecessary.
personal and
community life, he
states – without any
further reasoning:

“The right to manage

the properties of the
temple is a purely
secular matter and it
cannot, in our
opinion be regarded
as a religious
practice so as to fall
under Art. 25(1) or as
 amounting to affairs
in matters of
religion.”
Sastri Whether the Essential Religious To an extent, the
Yagnapurushadji Swaminarayan Sect Practices test – in Court had to go into
v Muldas, AIR was exempted from this case, the question, since
1966 SC 1119. the application of the Gajendragadkar CJ the Swaminarayan
Temple Entry Act, by laid out a full Sect was expressly
virtue of being a non- definition of claiming exemption
Hindu creed practices “essential” from the Temple
to Hinduism, quoting Entry Act by stating
Tilak: that it wasn’t Hindu.
Obviously, the
“Acceptance of the Court could not
Vedas with have accepted that
reverence; claim at face value,
recognition of the since that would
fact that the means have been an
or ways to salvation invitation to make
are diverse and the second part of
realisation of the Article 25(2)(b)
truth that the redundant – any
number of gods to be religious offshoot
worshipped is large, could avoid its
that indeed is the operation by taking
distinguishing itself outside the
feature of Hindu fold of Hinduism.
religion.”
However, nor did
the case call for an
overarching
definition of the
meaning of
“Hinduism”. It
would have been
enough to have
decided the case on
narrow grounds,
such as, for
instance, the High
Court’s opinion,
that had pointed to
the fact that the
Swaminarayan sect
had consistently
held itself out to be
part of Hinduism.
Seshammal v An Act to abolish the Religious/secular Arguably not. The
State of Tamil hereditary distinction. The Court did not need
Nadu (1972 SC) appointment of Court noted that “the to get into the
archakas in temples Archaka has never religious/secular
been regarded as a distinction, since
spiritual head of any Article 25(2)(b)
institution. He may was squarely
be, an accomplished applicable.
person, well versed in
the Agamas and On the other hand,
rituals necessary to it might be
be performed in a contended that the
temple but he does 25(2)(b) enquiry
not have the status of has to come after a
a spiritual head.” showing that the
This was primarily practice is religious.
because the Archaka If that is not proved,
owed his then 25(2)(a)
appointment to a applies directly.
secular authority,
was controlled by
the trustee etc. In
analysis very similar
to Sarup Singh, the
Court held “That
after his appointment
the Archaka performs
worship is no ground
for holding that the
appointment is either
a religious Practice
or a matter of
religion.”

Acharya Whether the Police Essential religious No. The regulation

Jagadishwara can prevent the practices test. The of public dances
Avadhuta v Ananda Margi sect Court held that since using weapons
Commissioner of from performing the the Ananda Margis surely falls squarely
Police, AIR 1984 “tandava dance”, were a recent sect, within the public
SC 51. which involves a and the tandava order restriction
public procession, dance an even more prefacing Article
and the use of skulls, recent innovation, it 25(1). And if the
knives and tridents could not be called way the dance is
an essential religious conducted is not
practice. harming public
order, then there
“In fact, there is no seems to be no
justification in any of reason for the Court
the writings of Shri to step in and
Ananda Murti that uphold its
tandava dance must prohibition.
 be performed in
public.” In fact, the Court
undertakes its
analysis in the other
direction – it says
that because it has
found that the
tandava dance was
not an ERP, there
was no need to
consider the public
order question.
Ismail Faruqui v Whether the State Essential religious No. The takeover
Union of India, can take over land practices test. The law was passed in
AIR 1995 SC 605. upon which there is a Court held that it is the aftermath of
mosque not part of the Ayodhya. It was
essential practices of squarely covered by
Islam to worship at the public order
any particular clause under Article
mosque. 25(1) – in fact, the
Union specifically
made that
argument.
N. Adithyan v Whether the Board Both. The Court then The enquiry into
Travancore, AIR can appoint a non- held that there was usage was
2002 SC 3538. Malayala Brahmin as no evidence to show necessitated by the
priest of the Siva on record that only nature of the case.
Ernakulam Temple Brahmins were
entitled to serve as However, the
priests. second part of the
reasoning – which
It then went on to basically held that
hold: “Any custom or those parts of
usage irrespective of Hinduism which
even any proof of were at variance
their existence in pre with the
constitutional days Constitution were
cannot be not to be deemed
countenanced as a part of Hinduism at
source of law to claim all – was
any rights when it is unnecessary, and
found to violate reminiscent of
human rights, Gajendragadkar J,’s
dignity, social normative
equality and the statements about
specific mandate of Hinduism’s
the Constitution and conformity with
law made by constitutional
Parliament.” principles
Commissioner of The same question as Essential religious No – for the reasons
Police v Acharya Avadhuta I. The only practices test. Here, given above.
Jagadishwara difference was that however, the Court
Avadhuta, 2004 after the decision in completely
12 SCC 770. Avadhuta I, the leader abandoned any
of the sect mandated pretence of deferring
the tandava dance in to the religion itself,
the holy book called noting that religions
the Cary Cary. could not be allowed
to get around court
decisions by
changing their
essential practices
(!).