Essential Religious Practices

18/12/2023, 10:23 essential religious practices – Indian Constitutional Law and Philosophy
Indian Constitutional Law and Philosophy
Tag: essential religious practices
Guest Post: Ends over Means – On Dhulia J.’s

Circumvention of the Essential Religious Practices
Test in the Hijab Case
 OCTOBER 17, 2022OCTOBER 17, 2022
 GAUTAM BHATIA
 1 COMMENT
[This is a guest post by Kartik Kalra.]
The Supreme Court delivered its judgement in Aishat Shifa v. State of Karnataka
(https://main.sci.gov.in/supremecourt/2022/8344/8344_2022_6_1501_38867_Judgement_13-Oct-
2022.pdf) last week, a split verdict on the constitutionality of a Government Order
(https://www.scobserver.in/journal/karnataka-government-order-on-dress-code-for-students/)
(“Order”) prescribing an official uniform for government schools. This Order begins by complaining
about the occurrences of religious observances inside school premises, which it considers to constitute
an “obstacle to unity and uniformity in schools and colleges.” Anticipating an immediate
constitutional challenge to the prohibition on wearing the Hijab inside the classroom, the Order cites
selective precedent (https://indiankanoon.org/doc/129857/) to argue that wearing the Hijab is not
an essential religious practice in Islam, and is therefore outside the scope of the right to profess and
practice religion under Article 25. The Karnataka High Court, via a survey of religious texts,
concluded in Smt. Resham v. State of Karnataka (https://www.livelaw.in/pdf_upload/75-resham-
v-state-of-karnataka-15-mar-2022-412165.pdf) that wearing the Hijab is only directory instead of
mandatory, and is therefore not an essential religious practice in Islam. This meant that wearing the
Hijab is outside the domain of the right to profess and practice religion under Article 25. On appeal,

the Supreme Court was tasked to determine the constitutionality of the Order on many axes, one of
which was the Essential Religious Practices (“ERP”) test.
https://indconlawphil.wordpress.com/tag/essential-religious-practices-2/ 1/33
In the split verdict, Dhulia J. holds that an ERP analysis has no application in navigating the assertion
of an individual’s right against the state, and therefore no application to the instant case (¶17). He
cites two reasons for this proposition: first, that an ERP analysis is undertaken only when rights under
both Articles 25 and 26 are in question; and second, that there is no scope of an ERP analysis when
rights under both Articles 19(1)(a) and 25(1) are in question (¶21). In this piece, I propose that the
circumvention of the ERP in Dhulia J.’s judgement, while ultimately desirable due to the extensively
highlighted (https://indconlawphil.wordpress.com/2022/02/09/the-essential-religious-practices-
test-and-the-inversion-of-agency-notes-from-the-hijab-hearing/) plethora of problems with the test,
occurs via means that do not have a firm grounding in jurisprudence. I also propose cleaner,
judicially sound alternatives to reach the conclusion of the Order’s unconstitutionality.
Scope of the ERP Test: Confined to Article 26?
In favour of the first proposition of the necessity of simultaneous claims under both Articles 25 and 26
to invoke the ERP, Dhulia J. argues the following (para 21):
The test of ERP has been laid down by this Court in the past to resolve disputes of a particular
nature…By and large these were the cases where a challenge was made to State interference on
what was claimed to be an “essential religious practice.” What was raised was the protection of
Article 25 as well as Article 26 of the Constitution of India. In other words, these were the cases
where both Article 25 (1) and (2) and Article 26 were in play. Essentially, these were the cases where
the rituals and practices of a denomination or a sect of a particular religion sought protection against State
intervention. Even when Rights of an individual were raised, as we may say in the case of Shayara
Bano… or [the] Sabarimala case, these were cases where an individual right was asserted against
a religious practice or where there was an assertion, primarily on a religious identity.” (emphasis
mine)
The first segment of the above paragraph on the invocation of the ERP test when simultaneous claims
under Articles 25 and 26 are made, does hold true for the early days of ERP jurisprudence. In the
cases of Shirur Mutt (https://indiankanoon.org/doc/1430396/), Durgah Committee
(https://indiankanoon.org/doc/1262157/) and Venkatarama Devaru
(https://indiankanoon.org/doc/1896039/) that involved simultaneous claims under both Articles,
Gopalan’s (https://indiankanoon.org/doc/1857950/) formulation of the compartmentalization of
fundamental rights and the absence of a subordination clause under Article 26 were reasons to carve
out limits to the rights of religious denominations. While the individual’s right under Article 25(1) is
expressly subordinated to other fundamental rights, no such subordination is done for the rights of
religious denominations under Article 26. The rights of the denomination cannot, of course, be
unfettered. Therefore, in attempting to regulate the right under Article 26, the Court proposed various
formulations of the ERP test that had the effect of limiting the extent of the right instead of defining its
restrictions. In Durgah Committee, therefore, the question was whether the practice of the Soofi Chishtia
Muslims exclusively managing the Durgah Khwaja Sahib was an essential religious practice. If the
answer was in the affirmative, the Act undermining the practice became unconstitutional, and if the
answer was in the negative, then there existed no right at all.
Subsequently, the migration of the ERP test to Article 25(1) did occur. Dhulia J. recognizes this in the
second segment of the quoted paragraph, but holds that the limited cases where ERP has been
applied to Article 25(1) involve an individual’s dissent against religious practices, and not the state-
led deprivation of an individual’s religious freedoms (¶21). He considers Sabarimala
(https://indiankanoon.org/doc/163639357/) and Shayara  Bano
(https://indiankanoon.org/doc/115701246/) to be illustrative of this proposition. Shayara Bano fits
the bill, for an individual aggrieved by a discriminatory practice supposedly mandated by religion
(and enforced by the state) petitioned the Court to hold it unconstitutional. However, Sabarimala,
while also involving an individual’s dissent against state-sanctioned discriminatory practices
supposedly ordained by religion, did not involve an application of ERP in Article 25(1), and therefore
does not illustrate this proposition. Instead, the application of ERP occurred in its traditional location
of Article 26(b). In response to the claim that the exclusion of women from places of public worship
was violative of their right to equality and privacy, the Ayyapans argued that they constitute a
religious denomination and the exclusion of women from the Sabarimala temple and its
corresponding pilgrimage was an essential religious practice protected under Article 26(b). The
Court, by a majority, rejected this argument by finding inconsistencies in the exclusion of women
from the temple and its pilgrimage, and held that this practice did not pass the ERP test.
Shayara Bano, however, is only the tip of the iceberg. There is significant jurisprudence where the ERP
test has also been applied to cases of state deprivation of individual religious freedoms. In this
category of cases, the ERP test is invoked to portray the absence of a right: if there is no right to
“profess or practice” religion because such practice is not essential to the religion, there is no right
available under Article 25(1) whose infringement could be complained of. Mohd. Hanif Quareshi v.
State of Bihar (https://indiankanoon.org/doc/93885/) is the most significant case employing the
ERP in an Article 25(1) analysis. The constitutionality of laws prohibiting cow-slaughter was before
the Court. The petitioners argued that cow-slaughter is mandated at Bakr-Id and was therefore an
essential religious practice. The Court examined Quranic texts and concluded that slaughtering cows
is optional instead of obligatory, and thus not an essential religious practice (¶13). The Quareshi
Muslims, therefore, had no right under Article 25(1).
In N. Adithayan v. Travancore Devaswom Board (https://indiankanoon.org/doc/1705114/),

Brahmin worshippers at a temple in Kerala petitioned the Court to hold the state-sanctioned
appointment of a non-Brahmin as a temple priest unconstitutional because it violated their rights
under Article 25(1). The Court held that caste-based appointments to the position of a temple priest
did not have to do with the character of Hindusim, for “Hinduism is far more than a mere form of
theism resting on Brahmanism” (¶12) and the monopolization of temple positions by the Brahmins
was not religiously ordained but a product of its circumstances (¶17). The same course was followed
in Javed v. State of Haryana (https://indiankanoon.org/doc/1572027/), which held that polygamy
is not an essential practice in Islam protected by Article 25(1) (¶44); in M. Ismail Farooqui v. Union of
India (https://indiankanoon.org/doc/37494799/), which held that offering prayers at the Babri
Mosque in Ayodhya is not an essential practice in Islam protected under Article 25(1) (¶78); and in
Khursheed Ahmad Khan v. State of Uttar Pradesh (https://indiankanoon.org/doc/180745750/),
holding that polygamy is not an integral part of Hinduism protected by Article 25(1) (¶13).
On this basis, I submit that the proposition of the ERP’s irrelevance in a case involving solely an
Article 25(1) question rests on shaky ground. Mohd. Hanif Quareshi and M. Ismail Farooqui are five-
judge benches, and have expressly invoked the ERP in their Article 25(1) analyses. Judicial discipline,
therefore, would demand a recognition of doctrine associated with the Article despite the attractive
pursuit of its abandonment.
Intersection of Articles 25(1) and 19(1)(a): Applies only to the Hijab or also to the Tandava?
The second proposition used by Dhulia J. to circumvent the application of the ERP is the sui generis
nature of the immediate case. He argues the following:
In the case at hand, the question is not merely of religious practice or identity but also of ‘freedom of
expression,’ given to a citizen under Article 19(1)(a) of the Constitution of India, and this makes
this case different. 
He then makes the following further observations (paragraph 34):
We have before us two children, two girl students, asserting their identity by wearing hijab, and claim
protection under Article 19 and Article 25 of the Constitution of India. Whether wearing hijab is an
ERP in Islam or not is not essential for the determination of this dispute.
The instrumental role played by Article 19(1)(a) to preclude the application of doctrine under Article
25(1), however, is not discussed. There are two problems with this mode of circumventing the ERP:
first, Gopalan’s formulation of judicial review being constrained by the principle of directness of
legislation cannot be farther away from current standards; and second, there exists no determining
principle to distinguish cases under Article 25(1) that also involve a question under Article 19(1)(a)
and those that don’t.
Gopalan mandated that judicial review is circumscribed by the form and object of the legislation and
the directness of its effects (¶8). Thus, a law that directly impacts rights under Article 22 could only be
challenged under that Article, and not under Article 19(1)(d), which may have been consequentially
impacted. This restraint on judicial review was done away with in R.C. Cooper v. Union of India
(https://indiankanoon.org/doc/513801/), which held that judicial review must occur for all rights
impacted by the law, not only the right most directly impacted (¶50). When rights under both Articles
25(1) and 19(1)(a) are impacted by the Order, why must a test not be undertaken for each? This also
serves as an alternative cleaner route to reach Dhulia J.’s conclusion, and is discussed in the following
section.
Further, Dhulia J. considers that prohibiting the Hijab inside the school also constitutes a violation of
an individual’s freedom of expression, for religious clothing is a means of asserting one’s identity and
preserving pluralism in a public space. He further circumvents the ERP by distinguishing the instant
case from Shayara Bano and Sabarimala once more. He observes the following (paragraph 31):
In both the cases cited above [Shayara Bano and Sabarimala] again the essential determination before the
Court was of religion and religious practice. Freedom of expression given to a citizen under Article
19(1)(a) was not an issue, and if at all it was it was on the periphery. In other words, not the
central issue.
Even if one assumes that ERP becomes irrelevant when there is a simultaneous claim under Articles
19(1)(a) and 25(1), what principle distinguishes claims that are only under Article 25(1) from those
under both Articles 19(1)(a) and 25(1)? In other words, when does a religious practice constitute
meaningful expression? This issue is complicated further when Dhulia J. invokes the test of sincerity
of belief, presumably under Article 25(1)(a) (paragraph 34):
Whether wearing hijab is an ERP in Islam or not is not essential for the determination of this dispute. If the
belief is sincere, and it harms no one else, there can be no justifiable reasons for banning hijab in a
classroom.
The demonstration of one’s sincerity of belief is much easier than satisfying the present form of the
ERP test, and therefore claiming the right under Article 25(1) becomes easier. Added to this, there is
no determining principle to distinguish claims that belong only to Article 25(1) from those belonging
to both Articles 19(1)(a) and 25(1), other than the subjective attribution of social value to particular
forms of religious activity. Apart from the socially ascribed meaningfulness imputed to the wearing of
the Hijab when public space is turning increasingly majoritarian, is there any reason why wearing the
Hijab engages Article 19(1)(a) but doing the Tandava dance does not? In Ananda Margis (I
(https://indiankanoon.org/doc/798012/) and II (https://indiankanoon.org/doc/1612501/)), 
followers and monks of the Ananda Marga community petitioned the Court to hold Section 144
orders preventing them from performing the Tandava dance unconstitutional on the ground that the
dance was an essential part of their religion, and hence protected by Articles 25 and 26. While this
was a simultaneous claim under Articles 25 and 26, Dhulia J.’s second proposition considers ERP to
be inapplicable when rights under both Articles 19(1)(a) and 25(1) are claimed. In Ananda Margis (I),
the Court concluded that the Tandava dance was not an essential part of the Ananda Marga faith, and
held the following (para 15):
Once we reach this conclusion, the claim that the petitioner has a fundamental right within the
meaning of Articles 25 or 26 to perform tandava dance in public streets and public places has to
be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order was
justified in the interest of public order as provided in Article 25.
A right to perform the Tandava dance, therefore, is not within the scope of Article 25(1). But could the
followers of the Ananda Marga not argue that they perform the Tandava dance with sincerity, and
that it constitutes a form of expression of their religious identity and devotion to God? Consider the
invocation of this argument in Mohd. Hanif Quareshi, which involves solely an Article 25(1) question:
can’t the Quareshi Muslims claim that slaughtering cows at Bakr-Id is done out of sincerity, and is
also a form of expression of their religious identity during a religious festival? There is, therefore, no
determining principle to bring some cases of religious freedom within the scope of Article 19(1)(a)
and exclude others, especially when sincerity becomes the metric under Article 25(1).
Cleaner, Judicially Sound Alternatives to Dhulia J.’s Circumvention
To summarize, Dhulia J.’s circumvention of the ERP occurs via the following reasoning:
1. ERP does NOT apply when either of the following two claims are involved:
When the claim is only for Article 25(1) and concerns the state deprivation of individual
religious freedom, and NOT for both Articles 25 and 26 or an individual’s dissent against
religion, or,
When the claim is for both Articles 19(1)(a) and 25(1);
2. Given the inapplicability of the ERP in the above two cases, sincerity of belief shall be used to
determine the existence of a right under Article 25(1).
Once these two steps are successfully completed, a law infringing on an individual’s religious
freedom can be held unconstitutional. This, for the reasons highlighted in the above two sections, is
not in line with jurisprudence and does not possess an adequate determining principle. In this
section, I propose cleaner, judicially sound alternatives to reach the same conclusion of the Order’s
unconstitutionality.
Shirur Mutt: Back to the Basics
Shirur Mutt (https://indiankanoon.org/doc/1430396/) remains the locus classicus of the

jurisprudence on Articles 25 and 26, for it is the only 7-judge bench to decide a case on this point. It
held that the religious character of the practice is the only enquiry to be undertaken under the two
Articles, and not the significance accorded to that practice by the religion (¶20). All other
formulations of the enquiry under these two Articles, including Durgah Committee’s exclusion of
superstitious beliefs or Ananda Margis II’s “essence of the religion” are accretions to Shirur Mutt’s basic
formulation. The Court could, therefore, argue that the character of the impugned practice is
undoubtedly religious, and therefore a right under Article 25(1) is engaged. This was the exact route
used by the majority in Saifuddin v. State of Bombay (https://indiankanoon.org/doc/510078/).
Given the existence of a right, the question shall now be the reasonableness of the restriction, for
which a proportionality enquiry would be necessary. 
Proportionality in Article 25(1)
The existence of a right under Article 25(1) is not determinative of the question of the Order’s
constitutionality. Given the existence of a right, a prima facie violation thereof shall be established
and the state will have the burden to prove that its limitation is pursuing a legitimate aim, is
rationally connected to that aim, that there are no less restrictive alternatives that fulfil the aim in a
real and substantial manner, and that the benefits derived from the limitation outweigh the harm to
the right. While a reasonableness enquiry is not mandated under Article 25(1), it has been repeatedly
held by the Court that no state action can be arbitrary, unreasonable or fanciful (Maneka Gandhi v.
Union of India (https://indiankanoon.org/doc/1766147/), Mithu v. State of Punjab
(https://indiankanoon.org/doc/590378/), Shayara Bano), and more recently, that no right must be
abridged more than what is necessary to achieve the state’s legitimate aims (Puttaswamy
(https://indiankanoon.org/doc/91938676/), Subhash Chandra Aggarwal
(https://indiankanoon.org/doc/101637927/), Akshay N. Patel
(https://indiankanoon.org/doc/139245892/)).
The Order traces its aim to remedy “obstacle[s] to unity and uniformity in the schools and colleges”.
In this case, a proportionality enquiry in its first stage would ask whether the pursuit of uniformity in
schools and colleges by eliminating religious heterogeneity is legitimate. This would be followed by
inquiring into the connection between the aim and the limitation: would the obstacles to unity and
uniformity in schools and colleges be diminished by prohibiting the Hijab (or other religious
clothing)? While both of these would likely be answered in the affirmative because the first two
stages are relatively deferential, an evaluation of the connection between the pursuit of unity via the
elimination of religious heterogeneity could also lead to a negative answer in the second stage. In a
previous post (https://indconlawphil.wordpress.com/2022/02/15/guest-post-the-hijab-case-
through-the-lens-of-proportionality/), an author has proposed the same using European precedent,
which holds that the “role of the State is not [to] remove the cause of tension by eliminating
pluralism, but to ensure that the competing groups tolerate each other”. The question of
contradictory aims could also be raised in the second stage: can uniformity ever breed unity?
The third stage would ask whether there exist less restrictive means than prohibiting the Hijab, which
may substantially achieve the aim of diminishing obstacles to unity and uniformity. These could
include the reasonable accommodation of religious heterogeneity or an institutionalized dialogue on
communalism and religious cohabitation of a manner proposed in Aruna Roy v. Union of India
(https://indiankanoon.org/doc/509065/). There do exist lesser restrictive alternatives to the
prohibition on wearing the Hijab that may achieve unity amongst students in the school, and the
limitation may fail the test at this stage. The last stage would ask whether the benefits derived from
the limitation outweigh the harm caused to the right, which will be a true test of the values we hold
dear: uniformity or heterogeneity.
Gupta J. does undertake the first step of the enquiry in locating the limitation’s legitimate aim in the
pursuit of equality in Article 14, since he holds that the Order doesn’t “violate the freedom
guaranteed under Article 19(1)(a), rather reinforces the right to equality under Article 14” (¶139). He
does not undertake the enquiry further. Dhulia J., however, does not undertake a proportionality
enquiry at all for either Article 19(1)(a) or Article 25(1). A recognition of the engagement of a right
under Article 25(1) and the Order’s pursuit of an extra-constitutional legitimate aim was a ripe
ground to argue for the Order’s unconstitutionality because of its disproportionate nature, but Dhulia
J. did not choose this path.
Sabarimala and Constitutional Morality


As mentioned before, Sabarimala used the ERP test in its traditional location of Article 26(b) when the
Ayyapans claimed themselves to be a religious denomination and the exclusion of women an
essential religious practice. In his concurrence, Chandrachud J. first held that the Ayyapans were not
a religious denomination (¶319), the exclusion of women was not an essential religious practice
(¶296), and arguendo, even if these two were answered the other way around, the exclusion of
women from the temple and the pilgrimage would still be unconstitutional because the “freedom of a
religious denomination [does not] exist in an isolated silo” (¶216) and “the freedom of religious
denominations under Article 26 must be read in a manner which preserves equally, other individual
freedoms which may be impacted by an unrestrained exercise” (¶217). Since the Ayyapans were not a
religious denomination and had no rights available under Article 26, the question of the freedom to
profess and practice their religion under Article 25(1) came next. The rights under Article 25(1) are
subject to public order, morality and health along with other fundamental rights. Chandrachud,
Khanwilkar and Misra JJ. held that the exclusion of women as a religious practice under Article 25 is
subject to the term “morality”, which they read as constitutional morality. A progressive picture of
constitutional morality was painted, which was held to include the values of nondiscrimination,
equality, liberty and dignity (¶215). Since the exclusion of women from the temple and the pilgrimage
was based on stereotypical understandings of sex, the religious practice did not meet the standards of
constitutional morality under Article 25(1) (¶300, 422.2).
The exercise of the religious freedom, therefore, must jeopardize constitutional morality for it to be set
aside. It can hardly be argued that the voluntary wearing of the Hijab undermines any of these
principles. While the test of constitutional morality is not expressly invoked by Dhulia J., he does
make the following rhetorical remark (paragraph 67):
All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public
order, morality or health? [O]r even decency or against any other provision of Part III of the Constitution[?]
In sum, Dhulia J.’s judgement is extremely progressive and rings the right bells for the stakes at hand.
He registers his dissent against the ERP test and upholds the values of dignity and privacy, finding
the Order unconstitutional. While his conclusion is desirable and necessary in any society committed
to a liberal-democratic order, the means to reach it do not have a firm grounding in jurisprudence.
While the evolution of case law on this issue has been inconsistent, more progressive jurisprudence
has developed in other domains that was ripe to be utilized here. The ERP test, while significantly
undermined by Dhulia J., still lives on to fight another day.
Guest Post: Centering Women’s Voices – A

Feminist Analysis of Religious Freedom and the
Hijab Case
 SEPTEMBER 21, 2022
 GAUTAM BHATIA
 5 COMMENTS
[This is a guest post by Megha Mehta.]
A Division Bench of the Supreme Court is currently hearing SLPs from Resham v. State of Karnataka,

(MANU/KA/0912/2022) the Karnataka High Court judgement upholding the ban on hijab in state
government-run educational institutions. Judging by what has been reported in legal news portals
(https://www.thehindu.com/news/national/supreme-court-asks-whether-the-right-to-wear-hijab-
can-be-exercised-in-a-school-with-a-dress-code/article65853174.ece), the hearings have gone on the
tangent of whether it is permissible to proscribe a ‘uniform dress code’ (a sartorial precursor to the
UCC?) in ‘secular’ government institutions. Keeping aside the debatable nature of some of the
observations made by the Bench, the issue now risks being collapsed into the same category as
controversies involving Sikhs’ right to wear the turban in the army, the rights of Muslim airforce
officers to have beards, whether the essential religious practices [ERP] test applies, etc.
However, this eclipses the larger jurisprudential point, i.e., to what extent should the State/judiciary
intervene in religious/cultural practices to enforce ‘gender equality’/ ‘dignity’ for women? Whose
version of ‘equality/dignity/’ should take precedence—that of the State or of women themselves?
This is important, given that the Court has parallelly set up a Constitution Bench to hear petitions
challenging the practice of polygamy and nikah halala amongst Muslims.
I would argue that both the hijab controversy and the anti-polygamy/nikah halala petitions are direct
outcomes of two previous Supreme Court precedents on the supposed ‘clash’ between gender
equality and religious freedom: Shayara Bano v. Union of India ((2017) 9 SCC 1) (the triple talaq
case)and Indian Young Lawyers’ Association v. State of Kerala ((2019) 11 SCC 1)(‘Sabarimala judgement’).
In both cases, the Supreme Court has arguably fallen into the trap of setting up a ‘rights conflict’
between the right to equality and protection against gender discrimination versus the right to freedom
of religious practice. Moreover, in both cases the Court has sought to resolve this conflict by applying
considerations of ERP, ‘morality’, and/or fundamental rights without centering the concerns of the
women affected by the practice.
Therefore, Shayara Bano focused more on why triple talaq is theologically unsound under the ERP test,
and the moral fault of the Muslim man, rather than the socio-economic context of why unilateral
divorce disadvantages Muslim women. Indeed, the majority as well as the dissenting opinions
referred to the Muslim woman in protectionist language, framing her as a victim of religious
oppression. [1]
In the Sabarimala judgement, Dipak Misra CJI, in his opinion, authoritatively stated that “in the
absence of any scriptural or textual evidence,” it cannot be concluded that excluding women from the
Sabarimala temple is an “essential practice” of Hindu religion. Rather, he commented that it is
essential to Hindu religion to allow Hindu women entry to a temple, (See Sabarimala judgement,
¶122) affirming the idea that Hinduism has always been egalitarian. On the other hand, Nariman J.
and D.Y. Chandrachud J. in their respective concurring opinions held that even assuming that
exclusion of women is an essential religious practice, freedom of religion under Article 25 must yield
to the fundamental guarantees of equality and non-discrimination under Part III of the Constitution.
(¶196, 409) Interestingly, Chandrachud J. relied on Gautam Bhatia’s scholarship on the ‘anti-exclusion
principle’ to argue that the ideal approach in adjudicating the constitutionality of religious practices
should be to bypass the ERP test altogether. Instead, the question should be whether the impugned
practice results in the exclusion of a group of citizens and thus violates the fundamental principles of
dignity, liberty and equality. (¶220-221, 409) His opinion further held that the phrase “morality” in
Article 25 is to be read as “constitutional morality” as defined in terms of the liberal values contained
in the Constitution. (¶215-216)
There has been sufficient critique of the ERP test so I will refrain from commenting on that aspect.
From a feminist perspective, the ‘anti-exclusion’ principle appears to be a better approach as it avoids
the pitfalls of the ERP test (judges acting as theologians, divergence in textual interpretation,
promoting ‘Hinduism’ as a monolithic construct) and specifically focuses on whether a religious

practice has the effect of denying civic equality to women. Notably, the anti-exclusion principle as
developed by Bhatia, and Chandrachud J., shares similarities with philosopher Martha Nussbaum’s
‘capabilities approach.’ Nussbaum has also argued, in relation to the Hindu Code Bill debates and the
Supreme Court’s judgement in Shah Bano, that a religious practice ceases its claim to State deference
when it infringes upon ‘shared moral understandings’ embodied in the form of constitutional rights.
This particularly includes practices which stigmatize individuals on account of their sex. [2]
Chandrachud J.’s adoption of the anti-exclusion principle and his articulation of the Indian
Constitution’s transformative potential is a powerful tool for checking the subordination of women
by religious norms. However, there are some important nuances which are not expressly clarified by
the judgement though they may be implied therein—who is the correct authority for making
assessments about what constitutes ‘dignity’ and ‘exclusion’? What if the affected group does not see
religious worship and the enjoyment of fundamental rights in bright line/hierarchical terms—what if
women wish to build a feminist reinterpretation of the religious practice into the law rather than
arguing for it to be declared illegal/unconstitutional? It may be argued that since the anti-exclusion
principle is undoubtedly a tool for achieving substantive equality, the views of the purportedly
marginalized group should take precedence over that of any other authority. However, if you apply
intersectionality as a framework, how should the State/judiciary respond to fractures within the
group? What if upper-caste women and Dalit women have substantially differing ‘moral
understandings’ of a religious practice? What about differences between Sunni and Shia Muslim
women? Etc. etc.
In this respect, neither Shayara Bano nor the Sabarimala judgement have directly quoted women
worshippers’ views on how they are excluded by the impugned practice or discussed dissonances
therein—arguably it’s the judges’ own moral views on the subject which are taking center stage. The
Sabarimala judgement has in fact, expanded the scope of the Supreme Court’s jurisdiction to
entertaining PILs against allegedly exclusionary religious practices even if no woman worshipper has
personally complained of discrimination (The petitioners in that case did not subscribe to the worship
of Lord Ayappa). The counsel for the respondents had raised this issue in their submissions before the
Supreme Court. However, both Nariman J. and Chandrachud J. emphasized in their respective
concurring opinions that the “gravity of the issue” necessitated that the petition be heard,
notwithstanding this anomaly. (Sabarimala judgement, ¶198, 224. Both judges cited Adi Saiva
Sivachariyargal Nala Sangam v. State Of Tamil Nadu, (2016) 2 SCC 725, 737, ¶12 on this point.)
Interestingly, it was the lone female justice, Indu Malhotra J. who highlighted in her dissent that
permitting PIL’s in matters relating to religious practices, particularly by persons who do not
subscribe to the faith, “would open the floodgates to interlopers” to question such practices, “and
that the perils are even greater for religious minorities if such petitions are entertained.” (¶447)
Notwithstanding criticisms of ‘anti-feminist’ thinking/conspiracy theories of a general pro-temple
management stance concerning her decision, permitting ‘ideological challenges’ does create a due
process issue given that the Court’s precedent will bind the affected group, i.e., religious women,
without any mechanism to ensure that their interests are adequately represented. [3]
It can be counter-argued that Resham presents a substantially different bundle of facts since over here
Muslim women are not challenging the constitutionality of a religious practice on the grounds that it
demeans them, but are rather seeking the autonomy to continue following it contrary to State diktat.
To that extent the application of the anti-exclusion principle should not encounter any difficulty if the
women are able to prove that wearing the hijab does not stigmatize them as unequal, but is in fact
essential to facilitating their full participation in civil society. Nevertheless, the High Court has
completely ignored this distinction. The Advocate General of Karnataka quoted the Sabarimala
judgement (https://perma.cc/Z5H6-M9PE) to argue that the hijab as a form of ‘compulsion of dress’
is not acceptable as it violates ‘constitutional morality’ and ‘individual dignity.’ The High Court
 went
a step further and quoted Dr. B.R. Ambedkar on how the purdah system brings about the “segregation
of Muslim women” and makes them “helpless and timid” to legitimize its conclusions on why the
hijab militates against anti-exclusion and equality of opportunity (This of course, completely ignores
the fact, as argued by Devdutt Kamat

(https://twitter.com/LiveLawIndia/status/1567452629416181761), that purdah and hijab are
sociologically distinct practices).
The aforesaid reflexive application of the Sabarimala judgement to Resham is better understood from
a law and political economy lens. From a legal realist perspective, though the Constitution embodies
a transformative vision of Indian society, it is also in some respects a political compromise, given the
ghost of Partition. Hence whilst Article 25(1) explicitly makes religious freedom subject to other
provisions of Part III of the Constitution, Article 25(2) delegates the power to undertake social reform
to the State. This echoes Dr. Ambedkar’s assurance to religious minorities during Constituent
Assembly debates that “all that the State is claiming…is a power to legislate” and that their personal
law would not be modified without popular consensus. (See Constituent Assembly Debates (Vol. VII),
Dec. 2, 1948 speech by B.R. Ambedkar 7.65.178) In both Shayara Bano and the Sabarimala judgement,
the Supreme Court has opened the floodgates to ‘ideological challenges’ to religious practices,
sidestepping determination of popular consensus and deliberation by the legislature on the matter.
The Karnataka government’s example indicates that such interventions by the judiciary are likely to
push the executive to reclaim the mantle of ‘social reform’, and appropriate concepts like
‘constitutional morality’ and ‘dignity’ to enforce its own political agenda of ‘formal equality’ amongst
religions [See 1]. On the other hand, the Supreme Court while hearing the challenge to the hijab ban,
continues to parallelly act as a counter-majoritarian theological reformer in cases like polygamy/nikah
halala. Scholarship critiquing rights-based reasoning has highlighted that the outcomes of ‘rights’-
based cases often depend on the subjective political commitments of the judges hearing the case more
than the inherent content of rights, which makes rights discourse ripe for appropriation across the
political spectrum. [4] Therefore there is no guarantee that the same understanding of anti-exclusion
which was applied in the Sabarimala judgement will be extended to similar cases involving
ideological contestations over purportedly ‘anti-women’ religious practices (as evidently happened in
Resham). In the political tangle between a majoritarian executive/legislature and a judiciary which is
prone to changes in Bench composition, women’s voices are bound to be lost.
Thus, rather than delving into vague speculations about ‘secularism’, ‘liberal constitutionalism’ and
the problematic ERP test, the Court should take a closer look at the anti-exclusion approach and
refine it in a manner that can be used to resolve the conundrum of enforcing gender justice in
religious communities. It is worth asking: which institutions are legitimately equipped to address
such concerns? Can there be reconciliation, rather than rights conflict, between religious liberty and
gender equality? (Malhotra J.’s dissent in the Sabarimala judgement indicated the possibility of a
harmonious approach.) How can women’s voices be brought to the forefront? How do we avoid the
problem of legal paternalism, i.e., courts/legislatures thinking they know ‘better’ than women
themselves as to whether a particular practice is ‘dignifying’ or ‘exclusionary’? How do we
deconstruct ‘woman’ itself as a monolithic category? These questions are particularly pertinent to any
adjudication on the hijab, given that the existing binary between denouncing it as ‘oppressive’ and
accepting it as a mandated Quranic injunction ignores the spectrum of unique reasons
(https://www.thenewsminute.com/article/every-girl-s-hijab-has-unique-story-hindutva-supporters-
have-only-one-reason-ban-it-160656) that Muslim women have for wearing it. Till the time courts
adopt an adequate intersectional feminist analytical framework, we are unlikely to find much
satisfaction in judicial reasoning on the issue.
Endnotes

1. Ratna Kapur, Gender and the “Faith” In Law: Equality, Secularism and the Rise of the Hindu
Nation, 35(3) Journal of Law and Religion 407, 418 (2020).
2. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 188 (2012).
3. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the Case or Controversy
Requirement, 93(2) Harvard Law Review 297, 306, 308 (1979).
4. Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique 198
(Wendy Brown & Janet Halley eds., 2002); Jamal Greene, How Rights Went Wrong: Why Our
Obsession With Rights Is Tearing America Apart xi, xix (2021).
The ConCast: Episode 5 (The Essential Religious

Practices Test)
 SEPTEMBER 19, 2022
 GAUTAM BHATIA
 LEAVE A COMMENT
In Episode 5 of the ConCast, I spoke to Suhrith Parthasarathy about religious freedom, the essential
religious practice test, and the ongoing hijab case.
The Podcast is available to listen below, and also on Podbean

(https://gautambhatia1988.podbean.com/e/the-concast-episode-5-the-essential-religious-practices-
test/), Google Podcasts, Apple Podcasts, and Spotify.
0:00 / 59:40
References:
The Shirur Mutt Case (Commissioner vs Lakshmindra Swamiar)

(https://indiankanoon.org/doc/1430396/).
Mohd Hanif Qureshi vs State of Bihar. (https://indiankanoon.org/doc/93885/)
Dargah Committee, Ajmer vs Syed Hussain Ali (https://indiankanoon.org/doc/1262157/).
Sardar Syedna vs State of Bombay (https://indiankanoon.org/doc/510078/).
Sastri Yagnapurushadji vs Muldas (https://indiankanoon.org/doc/145565/).
Seshammal vs State of Tamil Nadu (https://indiankanoon.org/doc/641343/).
Commr of Police vs Acharya Avadhuta (https://indiankanoon.org/doc/1723440/).
Indian Young Lawyers Association vs State of Kerala (Sabarimala Judgment)

(https://indiankanoon.org/doc/163639357/). (https://indiankanoon.org/doc/163639357/)
Resham vs State of Karnataka (http://chrome-

extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.scobserver.in/wp-
content/uploads/2022/02/karnataka-high-court-412148.pdf) (Karnataka High Court hijab
judgment).

“Essential Religious Practices” and the Rajasthan High Court’s Santhara Judgment: Tracking the
History of a Phrase (https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-
and-the-rajasthan-high-courts-santhara-judgment-tracking-the-history-of-a-phrase/)“, Indian
Constitutional Law and Philosophy Blog, 29 August 2015.
Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment, Indian
Constitutional Law and Philosophy Blog (http://Between Agency and Compulsion: On the
Karnataka High Court’s Hijab Judgment), 15 March 2022.
Gautam Bhatia, “Freedom from Community: Individual Rights, Group Life, State Authority, and
Religious Freedom under the Constitution (https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2739235).”
Between Agency and Compulsion: On the

Karnataka High Court’s Hijab Judgment
 MARCH 15, 2022MARCH 17, 2022
 GAUTAM BHATIA
 36 COMMENTS
It is an old adage that the manner in which you choose to frame a question will decide the answer
that you will choose to give yourself. In today’s judgment (https://drive.google.com/file/d/192-
6cCu75I5E1Qap8l49-aLHWKlzcklZ/view?usp=sharing) by the Karnataka High Court upholding a
ban on the wearing of the hijab within classrooms, that giveaway can be seen at page 39 of the
judgment, where the Full Bench frames four questions for consideration. The second question reads:
“Whether prescription of school uniform is not legally permissible, as being violative of petitioners
Fundamental Rights inter alia guaranteed under Articles, 19(1)(a), (i.e., freedom of expression) and 21, (i.e.,
privacy) of the Constitution?“
It is notable that the Court asks itself a question that nobody else had asked, and indeed, nobody
could ask, given how absurd it is: whether a school uniform is itself unconstitutional. But that framing
allows the Court to elide the fundamental argument before it – i.e., that the wearing of the hijab
alongside a school uniform is consistent with the broader goals of constitutionalism and education –
with the sanctity of the uniform itself. A close reading of the judgment reveals how the uniform
haunts the Court’s imagination on every page, topped off by the extraordinary remark on page 88,
where the Court says that “no reasonable mind can imagine a school without a uniform.” The
unarticulated premise of the judgment is that the claim to wearing the hijab is a claim against the very
idea of a school uniform, and that allowing the former would destroy the latter. Respectfully, this
elision leads the Court into misconstruing and misapplying a range of settled constitutional
principles, and for those reasons, the judgment ought to be overturned on appeal.
Introduction
First, a quick summary: the Court’s decision to uphold the ban on the hijab rests upon three
constitutional grounds. The first is that the wearing of the hijab does not constitute an “essential
religious practice” under Islam, and is therefor not insulated from the regulatory power of the State
(pp. 53 – 79, pp. 85 – 87); secondly, that to the extent that wearing the hijab is an aspect of the freedom
of expression, or the right to privacy, the ban is reasonable restriction upon the exercise of those  rights
(pp. 88 – 112); and thirdly, as the Government Order under challenge is facially neutral and non-
sectarian (i.e., does not single out the hijab), there is no unconstitutional discrimination against
Muslim women students (pg. 96).
Essential Religious Practices
I do not want to spend too much time on the first argument. I have written before
(https://indconlawphil.wordpress.com/2022/02/09/the-essential-religious-practices-test-and-the-
inversion-of-agency-notes-from-the-hijab-hearing/) why framing the argument in terms of the
essential religious practices test is unsatisfactory, both in general
(https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-and-the-rajasthan-
high-courts-santhara-judgment-tracking-the-history-of-a-phrase/), but also specifically in this case,
not least because it strips Muslim women of any agency in the matter, and essentially argues that the
wearing of the hijab is not a matter of choice (no matter how situated, complex, or otherwise messy
the context of that choice may be), but is objectively compelled by the tenets of Islam. Additionally,
there is nothing particularly noteworthy about the Court’s analysis of this point, either way:
surveying the sources (in particular, the Qur’an), the Court finds that the Petitioners have failed to
prove that wearing the hijab is essential to Islam – i.e., that is is mandatory, non-optional, and that
Islam would lose its identity if women did not wear the hijab. Under the essential religious practices
doctrine, these are broadly the parametres of the analysis (leave aside the fact – as most people have
pointed out – that neither the Court, nor external commentators, are particularly well-placed to
conduct this analysis). Having established this, the Court is therefore able to hold that, as a matter of
religious freedom, the right to wear the hijab is not insulated from State regulation.
There is, of course, a problem with the analysis in that it effectively denies to the Muslim women the
ability to frame their argument as one of religious choice, and requires, instead, for them to argue in the
language of religious compulsion. This is particularly ironic when we think of the right as the “right to
religious freedom”; the blame there, however, lies squarely with the essential religious practices test,
as it has evolved over the last seventy years, and it is clear that there is no way out of this hall of
mirrors until that test is overruled.
Freedom of Expression and Privacy
Let us now come to the argument where, in my respectful submission, the Court’s analysis is
mistaken. Previously, on this blog, it has been argued that the freedom of expression
(https://indconlawphil.wordpress.com/2022/02/10/guest-post-the-hijab-case-through-the-lens-of-
article-191a/) and the right to privacy (https://indconlawphil.wordpress.com/2022/02/15/guest-
post-the-hijab-case-through-the-lens-of-proportionality/) are important rights implicated by this case.
To sum up the argument in brief: as held by the Supreme Court in NALSA v Union of India, dress can,
on certain occasions, and depending upon the context, be a form of “symbolic expression” that is
protected by Article 19(1)(a) of the Constitution (why it should be treated as such in this case has been
argued in the linked posts). The application of the right to privacy – in terms of decisional autonomy
– is also evident. Note that the freedom of expression and privacy arguments are not cleanly
separable from the religious freedom arguments: indeed, it could well be – in certain cases – that the
very reason why wearing the hijab is a form of symbolic expression is because it is worn as a defence
of a beleaguered identity.
Once the rights to freedom of expression and privacy are triggered, the analysis moves to restrictions,
where the test of proportionality applies. Proportionality requires, among other things, that the State
adopt the least restrictive method in order to achieve its goals. Thus, where something less than a ban
would suffice, a ban is disproportionate. The proportionality framework provides the broad
intellectual scaffolding within which multiple jurisdictions across the world, as well as India in the
NALSA judgment, when dealing with cases involving dress codes and uniforms, have adopted  the
test of reasonable accommodation. Reasonable accommodation requires the Court to ask whether, in a
setting where a certain default exists, a particular claim for departing from that default, founded in
constitutional rights, can be reasonably accommodated by the State (or private party), without the
activity in question losing its character. In case of the hijab, the claim for reasonable accommodation is
straightforward: that the wearing of the hijab (especially hijab that is the same colour as the uniform
and is simply draped, like a shawl, over the head) can be reasonably accommodated alongside the
uniform, without damaging or in other ways vitiating the overall public goal of education.
How does the Court respond to the argument? The reasoning is somewhat scattered in different parts
of the judgment, but drawing it all together, this is how the Court’s argument goes:
1. Dress is not at the “core” of free expression and privacy rights, but is a “derivative” right, and
therefore weaker (page 99).
2. The classroom is a “quasi-public space”, where the operation of rights is weaker (page 100).
3. Given (1) and (2), and given the overriding salience of the uniform in a classroom, the proscription
of the hijab is reasonable.
With respect, this analysis is flawed. It is true that in US jurisprudence – such as the O’Brien judgment
– visible manifestations of expression (such as clothing) can be regulated by the State; however, that is
in the context of the American First Amendment, which in cases of State restriction upon speech, is
more or less “absolute”. O’Brien only says that where you move from speech to visible manifestation,
that “absolute” protection goes. However, in a proportionality-focused jurisdiction such as ours,
whether speech is verbal or a visible manifestation, the test remains the same. This flows from the
Naveen Jindal case, where the flying of the Indian flag was held to be protected under Article 19(1)(a)
of the Constitution.
Secondly, it is unclear what exactly the concept of a “quasi-public space is”, since the Court does not
undertake a genealogy of the phrase. At one point, it lists “schools, courts, war rooms, and defence
camps” (page 104) as examples of quasi-public spaces, and you really have to wonder what on earth
unites a classroom and a defence camp; but in my view, it is in any event a misreading of the NALSA
judgment to argue that the salience of symbolic expression diminishes in a “quasi-public space”.
Indeed, whether it is the public sphere or the quasi-public sphere, the whole purpose of recognising a
right to symbolic expression – as manifested through dress – is to recognise that our “public” is
diverse and plural, and that diversity and plurality (as long as it does not violate anyone else’s rights)
is to be affirmed and not censored.
But it is the final part of the analysis where, in my view, the main error lies. The Court’s response to
the reasonable accommodation claim is that the hijab cannot be accommodated because it would
deprive the uniform of its uniformity. At page 107, it notes that:
The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms.
But that is patently circular: by definition, the doctrine of reasonable accommodation assumes the
existence of a default uniformity, and argues that the default is insufficiently accommodating of a
diverse and plural society; what the reasonable accommodation (and proportionality) analysis
requires of the Court is to ask whether accommodation is such that it would undermine or otherwise
destroy the purpose for which the default rule exists in the first place: which, in this case, is the purpose of
education. The crucial error the Court makes is that it sanctifies the uniform instead of sanctifying
education; instead of looking at the uniform as instrumental to achieving the goal of an inclusive and
egalitarian right to education (and which would, therefore, require accommodation where
accommodation would better serve that goal), it treats the uniform (and its associated values of
sameness, homogeneity etc) as the goal itself. Thus, by mixing up levels of analysis, the Court’s
proportionality and reasonable accommodation analysis is constitutionally incorrect. And theroot of
this error – as I have pointed out above – is the Court’s assumption that education is uniform – that
“no reasonable mind can imagine a school without a uniform.”
Where the Court does attempt to move the analysis to education itself, its conclusions are suspect. For
example, on page 96, it notes that by creating “one homogenous class”, the uniform “serves
constitutional secularism.” But this is inconsistent with the Court’s own analysis in a previous part of
its judgment, where it notes that the Indian concept of “positive secularism” does not require the
proverbial “wall of separation” between religion and State, but is much more accommodating
towards religious pluralism within the overarching public sphere. On page 97, the Court holds that
the Petitioners’ argument that “the goal of education is to promote plurality … is thoroughly
misconceived.” But the Court provides no citation or source that the goal of education – note, not the
goal of a uniform, but the goal of education – is uniformity at the cost of pluralism. On page 101, the
Court quotes this argument again, and this time – regrettably – chooses to ridicule it instead of
engaging with it, noting that it is “hollow rhetoric” and redolent of the “oft quoted platitude” of
“unity in diversity”. Ironically, after ridiculing this as a platitude, the Court immediately afterwards
cites the Supreme Court judgment in Re Kerala Education Bill that uses the exact same phrase!
Even more ironically, in the same paragraph, the Court then cites the UK House of Lords judgment in
Regina v Governors of Denbigh High School
(https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060322/begum.pdf), where, in paragraph 97 of
her speech, Lady Hale notes that “a uniform dress code can play its role in smoothing over ethnic,
religious, and social divisions.” Unfortunately, however, the Court omits to cite what Lady Hale goes
on to note in paragraph 98, which is this:
It seems to me that that was exactly what this school was trying to do when it devised the school uniform
policy to suit the social conditions in that school, in that town, and at that time. Its requirements are clearly
set out by my noble and learned friend, Lord Scott of Foscote, in para 76 of his opinion. Social cohesion is
promoted by the uniform elements of shirt, tie and jumper, and the requirement that all outer garments be in
the school colour. But cultural and religious diversity is respected by allowing girls to wear either a skirt,
trousers, or the shalwar kameez, and by allowing those who wished to do so to wear the hijab. This
was indeed a thoughtful and proportionate response to reconciling the complexities of the situation.
The judgment of the UK House of Lords in Denbigh High School, indeed, is a model of exactly the kind
of analysis that the Karnataka high Court steadfastly sets its face against in its hijab judgment:
Denbigh involves an extensive discussion about how schools in plural and diverse societies should
accommodate difference instead of insisting upon uniformity; and the correct question to ask – which
is always a contextual question – is at what point does reasonable accommodation tip over into a
demand that is inconsistent with the goals of education (in Denbigh, it was the wearing of the jilbab). It
is therefore somewhat extraordinary that the Court cited the judgment in support of its ruling, when
the very next paragraph after the paragraph it cited explicitly noted that the wearing of the hijab in a
school was a good example of reasonable accommodation!
In fact, the Denbigh judgment is an excellent example of why the fear that really seems to be animating
the Court’s judgment is no fear at all. On page 105, the Court notes:
An extreme argument that the students should be free to choose their attire in the school individually, if
countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and
later, in the society at large.
But nobody – nobody – ever really advanced this “extreme argument.” Denbigh in fact shows that it is
actually fairly straightforward – and well within the domain of judicial competence – to examine

cases on an individual basis, and draw principled lines based on context. Trotting out a hypothetical
parade of horribles to deny a constitutional right is not good judicial practice.
Indeed, the fact that the Court is itself fully capable of drawing these distinctions when it wants to is
made abundantly clear by the next case that it discusses: the South African judgment in MEC for
Education, Kwa-Zulu Natal (discussed in previous blog posts), where the controversy involved the
wearing of a nose-stud by a Hindu student. The Court distinguishes the case on the basis that “the
said case involved a nose stud, which is ocularly insignificantly (sic), apparently being as small as can be.” (p.
108) Now in my respectful view this distinction is quite bogus (more on this below), but that is not
the point I want to make here: the point I want to make is that the “extreme argument” that the Court
articulates – where everyone would ask to choose their own attire, and there would be general chaos
– is an argument that it doesn’t even seem to believe in itself, given how easily – almost facilely – it
distinguishes between the hijab and the nose-stud.
Non-Discrimination
Earlier on this blog, detailed (https://indconlawphil.wordpress.com/2022/02/11/guest-post-the-

hijab-case-through-the-lens-of-non-discrimination-lessons-from-kenya/) arguments
(https://indconlawphil.wordpress.com/2022/02/21/guest-post-the-hijab-case-through-the-lens-of-
intersectionality/) were made about how the hijab ban violates the constitutional guarantee of non-
discrimination. The Court addresses this argument very briefly, noting only that the proscription –
based on the Government Order – was facially neutral and non-sectarian (pg. 96). Unfortunately,
while this argument applies to direct discrimination, it does not apply to indirect discrimination, where
facially neutral rules and regulations have a disproportionate impact on different people. The doctrine
of indirect discrimination has long been accepted by the Supreme Court, and is therefore part of
Indian jurisprudence.
In fact, it is the Court’s own analysis – in particular, its distinguishing of the South African case – that
shows how indirect discrimination is squarely applicable to the present case. The Court’s distinction
between the “ocularly insignificant” and (presumably) the “ocularly significant” is a classic example,
in discrimination law jurisprudence, of a “facially neutral rule” (which, in the Court’s reading, would
allow “ocularly insignificant” adornments to a uniform, but not others) that has a disproportionate
impact, in this case, grounded at the intersection of religion and burden. In my respectful view, the
Court’s failure to consider this ground at all provides another compelling reason for why this
judgment should be set aside on appeal.
Addendum: A Case of Conscience
From pages 80 to 88, the Court undertakes a brief analysis of that forgotten cousin of the freedom of
religion – the freedom of conscience. The main judgment, of course, is the iconic Bijoe Emmanuel case,
where the right of the Jehovah’s Witnesses not to participate in the singing of the national anthem
was upheld. The Court distinguishes Bijoe Emmanuel on two grounds. First, it argues that “conscience
is by its very nature subjective. Whether the petitioners had the conscience of the kind and how they developed it
are not averred in the petition with material particulars.” This is not entirely unreasonable, and perhaps
offers valuable guidance to future cases (and indeed, this case on appeal). If indeed one is making a
claim based on the freedom of conscience, then it needs to be specifically pleaded, with the
acknowledgment – of course – that conscience is subjective. For example, an anti-war activist can
refuse conscription by arguing that war conflicts with their pacifist beliefs – but they do have to spell
that out in specific terms. In this case, perhaps, it may be necessary for the petitioners to spell out,
perhaps in more concrete terms, the (subjective) reasons for wearing the hijab as a case of conscience –
an argument that, of course, overlaps with the argument from symbolic expression.

What is less convincing is the Court’s attempt to show that Bijoe Emmanuel was not a case of
conscience at all, but one of religious freedom, despite the fact that Bijoe Emmanuel specifically uses
the phrase “matters of conscience.” It is important to note that conscience might flow from religious
convictions (for example, I may be a pacifist because I am religious), but it need not do so. In that way,
the clean-cut separation that the Court attempts between conscience and religious freedom is, in my
respectful view, unsustainable – and might materially have altered the outcome of this case.
Conclusion
There are two important things to note, by way of conclusion.
The first is that the Court is explicit that its judgment applies to classrooms (i.e., not even school
premises, but classrooms). It notes this specifically on page 124, after some rather (in my view)
unfortunate remarks about how banning the headgear is emancipatory “for women in general, and
Muslim women in particular”: it notes that:
It hardly needs to be stated that this does not rob off the autonomy of women or their right to education
inasmuch as they can wear any apparel of their choice outside the classroom.
The scope, thus, is limited to classrooms.
Secondly, for the reasons advanced above, I believe that the judgment is incorrect, and should be
overturned on appeal. It is incorrect for the following reasons: first, it mistakenly holds that the rights
to freedom of expression and to privacy are diminished, or derivative, in this case; secondly, it
misapplies the reasonable accommodation test, and does not show how allowing the hijab for those
who choose to wear it, as a uniform accessory, is incompatible with the goal of education; thirdly, it
fails to consider that the ban amounts to indirect discrimination against Muslim women; and fourthly,
it wrongly elides freedom of conscience and religious freedom. This creates an overarching
framework of reasoning where the sanctity of the uniform is placed above both the goals of education,
and the exercise of constitutional rights. I submit that a correct calibration calls upon us to recognise
that educational spaces in a plural and diverse society ought to reflect its plurality and diversity, and
facilitating the freedom of choice and expression is one crucial way to achieve that. Such an approach
is more consistent with our Constitution.
The Essential Religious Practices Test and the

Inversion of Agency: Notes from the Hijab Hearing
 FEBRUARY 9, 2022
 GAUTAM BHATIA
 22 COMMENTS
The essential religious practices test [“ERP”] is one of the enduring burdens of Indian constitutional
law. Its origins (as I have shown here (https://indconlawphil.wordpress.com/2015/08/19/essential-
religious-practices-and-the-rajasthan-high-courts-santhara-judgment-tracking-the-history-of-a-
phrase/)) lie in a judicial misreading of one sentence spoken by Dr. Ambedkar in the Constituent
Assembly Debates. Scholars have criticised it. Judges have expressed
(https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-iii-justice-

chandrachud-and-radical-equality/) discomfort about how it forces them into becoming ecclesiastical
authorities (often for religions that are not even their own). And yet, every time a faith-based dispute
is brought to the courts, the ERP returns to haunt all of us: like the proverbial betal upon the
Constitution’s shoulders, that can only be shaken off upon the peril of being devoured.
On this blog, I have (https://indconlawphil.wordpress.com/2016/01/09/monday-an-important-

case-on-religious-freedom-before-the-supreme-court/) previously
(https://indconlawphil.wordpress.com/2016/08/26/haji-ali-dargah-bombay-high-court-upholds-
womens-right-to-access-the-inner-sanctum/) criticised
(https://indconlawphil.wordpress.com/2017/08/22/the-supreme-courts-triple-talaq-judgment/)
the ERP test (https://indconlawphil.wordpress.com/2016/02/07/individual-community-and-state-
mapping-the-terrain-of-religious-freedom-under-the-indian-constitution/). While there are good
reasons for jettisoning the test – not least that it has no foundation in the Constitution, has been
repeatedly demonstrated to be arbitrary, and that other – better – tests
(https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-iii-justice-
chandrachud-and-radical-equality/) exist, in this post I want to make another point: by its very
nature, the ERP test is set up to deny and negate individual agency. And there is no better evidence of
that than the ongoing – and now suspended – proceedings before the Karnataka High Court,
concerning the exclusion of Muslim women students from certain schools and colleges because they
were wearing the hijab.
It is important to start by noting that there exist multiple reasons

(https://www.thenewsminute.com/article/every-girl-s-hijab-has-unique-story-hindutva-supporters-
have-only-one-reason-ban-it-160656) why someone might wear the hijab, and – as in most cases
involving community symbols (especially gendered symbols) – these reasons exist along a spectrum
between choice and coercion. For some, it may be a defence of a beleaguered identity; for others, an
expression of that same identity; for still others, a deference to tradition, or a modus vivendi with
family members; or in still other cases, outright coercion. The point is that unlike certain other social
practices (say, for instance, the Nazi salute – or, perhaps a closer analogy, the practice of FGM), in our
context, the wearing of the hijab is not subject to one specific meaning or interpretation. And it is
obviously impossible for the State to investigate every specific instance of someone wearing the hijab
in order to determine just how free or unfree that choice was.
Now, given that there might be a range of reasons why someone might wear the hijab, what –
specifically – was the reason that came to the fore in the case before the Karnataka High Court? The
very first thing that the Petitioners’ counsel invoked was the Quran, and he then proceeded to read
from it. Counsel then went on to quote various hadith, according to which “it is not correct for a
woman to show her parts other than her hands and face to strangers after she begins to have
menstruation” (sic), that women’s garments should be “lowered a hand span” (otherwise,
punishment would follow), and then a previous Kerala High Court judgment where – on an analysis
of these same lines – it had been observed that the practice of leaving the head uncovered (for
women) was “haram” in Islam.
We therefore see how, before the High Court, the entire range of complex reasons for why one might
wear the hijab was reduced to one overarching claim: that it was a religious command that brooked
no disobedience. In other words, a case that – as a matter of fact – was a case about agency and choice
(albeit, complex and situated agency and choice) turned into – in law – a case about the absence of
choice and the deprivation of agency. The Court was asked to allow the petition because the Muslim
women students effectively had no choice in the matter, for the wearing of a headscarf was a
compulsory prescription that flowed from religious authority.
Note that this is not meant to be a criticism of either the counsel (for choosing to lead with this
argument) or of the judge (for engaging with its on its own terms). The form of the argument was

effectively dictated to all the parties by virtue of the long shadow of the ERP. Because the ERP – in the
highly perverse manner in which the Indian courts have interpreted it over the years – applies to
prohibitions and proscriptions, but not – seemingly – to things that a religion might simply allow – a
successful ERP claim literally depends upon first obscuring and erasing the agency of the petitioners
before the Court. It needs to be shown to the Court that the petitioners are helpless in the matter, that
they have no say or choice in fashioning for themselves the contours of their religious practice, that
the possibility of cultural or religious dissent, or pluralism, or heterodoxy simply does not exist.
In the hijab case, it becomes a particular problem, because once the argument is framed this way, it
leaves the Court with one of two choices: either to accept the argument and allow the hijab on the
basis of a highly dated and expressly misogynistic and patriarchal logic, and create a legal fiction
where women have no agency in the matter; or to reject the argument, and in the process, deny the
elements of actual agency that are involved here. It is an impossible choice, and – as I have tried to
show in this post – it is a choice that is foisted upon the Court because of the ERP test. The ERP test is
based upon the fundamental – and anti-constitutional – premise of legitimising the denial of
individual agency.
Instead, would it not be better if the argument took the following form?
1. That dress and clothing are aspects of individual and often social expression (especially when it
comes to community symbols), and therefore – regardless of whether the motivation to wear them
is religious or otherwise – they are protected under the rights to free speech and privacy (as
decisional autonomy), and the part of Article 25 that speaks of freedom of conscience.
2. This means that claims of this kind (where the Court is allowed to look into the subjective
sincerity of the belief, but not whether it is objectively “essential” to a religion) should be
presumptively allowed, subject to the principle of reasonable accommodaiton.
3. That the burden should then be on the authorities to show why reasonable accommodation is not
possible in a specific case: i.e., what is it about the hijab (or other aspects of clothing that meet the
first prong) that is fundamentally incompatible with public/educational spaces such as schools or
colleges.
Rejecting the ERP test for for a test of this kind would allow courts – especially in contentious cases of
this kind – to actually respect the agency and choice of the claimants. In that sense, the hijab case
presents the quintessentially “good case” before the courts: it is difficult to imagine another case
where the problems with the ERP test are so stark and clear, and where the arguments for jettisoning
it in favour of a more constitutionally grounded and just approach are so evident. While, for now, the
case is in limbo, I’m fairly sure that we haven’t heard the last of this one: a full bench of the Karnataka
HC will now consider the issue afresh, and in all likelihood, it will travel up to the Supreme Court. It
remains to be seen what the judiciary does now.
The Sabarimala Judgment – II: Justice Malhotra,

Group Autonomy, and Cultural Dissent
 SEPTEMBER 29, 2018OCTOBER 6, 2018
 GAUTAM BHATIA
 12 COMMENTS
I had originally intended this series to follow a more familiar chronology – moving through the

concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading
of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain
unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud
J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its
foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.
Maintainability
How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a
PIL! Malhotra J. starts her analysis with the following observation:
The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based
on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The
Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have
manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious
customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social
developmental activities especially activities related to upliftment of women and helping them become aware
of their rights”, would require this Court to decide religious questions at the behest of persons who do not
subscribe to this faith. (paragraph 7.2).
Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case,
but something more important. It would open the floodgates for “interlopers” to question all kinds of
religious beliefs and practices, something that would cause even graver peril for “religious
minorities.” (paragraph 7.3) Malhotra J. then sums up:
The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently.
It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by
certain practises which are found to be oppressive or pernicious. (paragraph 7.4).
While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be
a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that
“[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or
shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue
of maintainability is particularly crucial to this case.
To understand why, let us examine the nature of the claim. The claim is for women between the ages
of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the
Sabarimala priest (and certain other devotees), that the entry of women is barred by religious
custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=304619)“: norms and values defined and
imposed by cultural gatekeepers and dominant groups, have been challenged.
That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman
J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-
group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent
about a practice, its “essential” character to the religion (and therefore, its claim to protection under
Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a
claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under
challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to
the religion – are “oppressive” or not. And given that religions are self-contained and self-referential
systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an
internal question.
Let me be clear: this is not an argument against the Courts interfering in religious practices on the
touchstone of equality and non-discrimination. Quite the opposite: when marginalised groupswithin
cultures or religions challenge oppressive norms or practices, more often than not, they will need an
external authority (such as Courts, acting under the Constitution) to support them in that struggle.
But what I am saying is that the claim must originate from the marginalised groups themselves. An
external authority cannot assume the mantle of speaking on their behalf.
There is, of course, a significant exception to this: when the marginalised group is (literally) silenced
from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala.
Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too
terrorised to approach the Court for her rights? That would seem to me to be not only factually
incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s
excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need
Saving? (https://www.jstor.org/stable/3567256)“
I recognise that this is an unpopular position, I believe that the Majority should have voted with
Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected
party to approach the Court through a writ petition.
Group Autonomy
Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the
Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and
practices subjected to constitutional scrutiny. As she observes:
It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the
religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to
determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive,
or a social evil, like Sati. (paragraph 8.2)
The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious,
oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’
argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice,
even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There
is no immediate answer, but we do get something of an answer late in the judgment. In paragraph
10.13, Malhotra J. observes:
Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or
rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise
one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs,
which is outside the ken of Courts. (paragraph 10.13)
The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually
killing women, its impacts go far beyond, and into the “real world.” The question of the right to
worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a
question of whether within the community of Sabarimala devotees, men and women are treated equally.
For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end
of the judgment:
Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25
cannot be claimed in the absence of the deity in the particular form in which he has manifested himself.
(paragraph 13.9)
For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune

from judicial review and the application of constitutional norms of equality and non-discrimination.
Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are
grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs].
Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an
essential religious practice (and therefore not protected by Article 25(1)), and argues, instead,
that this determination should be left solely to the religious community itself (paragraph 10.10). In the
present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore
Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10
to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has
manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)
This is an important point, because it goes entirely against the grain of six decades of ERP
jurisprudence, where the Court – relying upon textual and scriptural materials – makes this
determination. It is also, in my opinion, correct (as I have pointed out
(https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-and-the-rajasthan-
high-courts-santhara-judgment-tracking-the-history-of-a-phrase/) on this blog before): the Courts –
as a number of scholars have argued for a while now – is entirely unequipped to make
determinations about what practice is or is not “essential” to religion: it lacks both the competence
and the legitimacy to do so.
There is, of course, a latent peril in advocating this view: and that is that in any community (religious
or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are
invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it
is one thing when within a group, norms and practices are challenged, and the marginalised sub-
groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is
opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the
nature and scope of the ERP test make eminent sense.
The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by
the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J.
turns this argument on its head, noting that constitutional morality in India’s plural
society requires respect and tolerance for different faiths and beliefs, which have their own sets of
practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4,
11.6 & 11.8).
The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails
granting to the diverse religious groups and communities within our nation, the freedom of internal
self-government, and the freedom to decide what norms and practices are integral to their existence
and functioning. Where these norms or practices result in actual social harm, the Court can step in;
however, the Court cannot intervene when the grounds of challenge are limited to bare immorality,
irrationality, or unequal treatment. And the Court can especially not do so when the challenge is
brought by external parties.
Religious Denomination
Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of
the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows
for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the
ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious
denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself
(through a specific proviso).
Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is
disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the
worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and
practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:
If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and
practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious
denomination’. (paragraph 12.8)
Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that
articulated by previous judgments, and followed by the Majority. She tries to get around this by once
again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation
should be accorded to the question of what constitutes a “religious denomination.” But this will not
do: unlike the question of essential religious practices, which are required for threshold protection
under the Constitution’s religious freedom clause, religious denominations are entitled to special and
differentiated rights under Article 26 (https://indiankanoon.org/doc/1858991/): maintenance of
institutions, acquisition and administration of property, and (textually) a greater autonomy in
determining internal religious matters. For this reason, the critique of the essential religious practices
standards cannot be uncritically applies to the definition of religious denominations: there are good
reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a
detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to
recognise this herself, when she notes at paragraph 12.10:
The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be
more appropriately determined by a civil court, where both parties are given the opportunity of leading
evidence to establish their case.
Miscellaneous
Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that
Article 15(2) (https://indiankanoon.org/doc/1952106/) includes temples under the definition of
“places of public resort.” And she also rejects the argument – advanced by the Interveners – that
exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17
(https://indiankanoon.org/doc/1987997/) of the Constitution. Both these arguments are based on
the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the
Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.
Conclusion
Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on

essential religious practices, and on constitutional pluralism, I believe that her arguments are correct,
and truer to the constitutional text and history than prevailing Indian religious freedom
jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.
Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination
argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated.
I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent,
which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in
India, you can cleanly separate the religious and the social. This is a reality that has been recognised
throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there
is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar
memorably spoke about how vast religious conceptions are in India, covering everything from birth
to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious
excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a
mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward
internal dispute within a religious community. It is a mistake, because it ignores how deeply
intertwined religious, social, and public life is in India, and how discrimination within one sphere
inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that
practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the
question of what constitutes “oppressiveness” is more nuanced and complex than she allows.
It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn
to in then ext post.
Guest Post: The Essential Practices Test and

Freedom of Religion – Notes on Sabarimala
 JULY 29, 2018
 GAUTAM BHATIA
 4 COMMENTS
(This is a guest post by Dr. Tarunabh Khaitan.)
These reflections are inspired by Justice Chandrachud’s musings from the bench expressing doubts
(https://barandbench.com/question-of-law-essential-religious-practices-test-a-problem-in-our-
jurisprudence-dy-chandrachud-j/) about the ‘essential practices test’.
As I argue in this paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3162449), freedom of

religion is best understood as the right of an individual, not a group. Its best rationale is to be found
in the need to protect our personal autonomy in matters pertaining to religious adherence. It is an
important liberal value that ought to be cherished, and not restricted too lightly. While in the instant
case, I think the non-discrimination principle probably trumps the religious freedom right, it is
important that we recognise this isn’t an easy case and that whichever side wins, something of value
will be lost.
These are my reasons for making these claims:
Official Doctrine versus Religious Practice
Sociological data is clear that even people belonging to the same ‘religion’ are religious in different
ways. There is a staggering diversity of religious beliefs and practices, such that there are many
Hinduisms, many Protestantisms, many Buddhisms and many Islams. Whatever official doctrine may
say, sociologists seem to be telling us that most individuals go about adhering to their religions à la
carte. Instead of accepting any package on offer as is, they make choices, they pick some aspects and
reject others, emphasise this and ignore that, or interpret away inconsistencies. Of course, in many
religions, such as Hinduism, there is no ‘package’ on offer anyway.
Given this staggering diversity in religious practice, recognising an essential practices test artificially
elevates for protection the ‘official’ (often the most orthodox) line of thinking of a religious elite for
constitutional protection. This overly formal devise ignores how religious people actually live  their
lives.
Furthermore, there is little scope, beyond a rhetorical acknowledgement, of the religious freedom of
atheists and agnostics within the essential practices test. Since there is no ‘essential practice’ to
atheism, it basically falls of the constitutional radar. In the paper
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3162449), I show how an autonomy-focussed

individualistic reading of freedom of religion can genuinely respect an atheist’s freedom from
religion.
Gatekeeping
The essential practices test is mainly used by our courts to perform a gatekeeping function—given the
fact that religious freedom is often used to advance some rather bizarre claims, by asking whether the
practice is essential to the official doctrine of a religion, the courts can basically ‘keep the crazies out’.
An individualistic approach to determining freedom of religion will admittedly have a very broad
scope. As the paper argues (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3162449), all that
an individual claimant needs to prove is her sincerity in making the claim and that the object of the
claim is plausibly This does open the gates very wide at the initial stage.
However, the paper says, a better approach to gatekeeping is not at the stage of determining the
scope of the right itself, but at the justification stage: whether the restriction on the right is justified.
At that stage, public norms of proportionality can do a much better job of discerning which religious
freedom claims are worthy of protection, and which are not, without artificially determining
beforehand whether a claim even counts as a religious freedom claim.
On Judicial Role
As Justice Chandrachud rightly notes, the essential practices test puts the judge in an extremely
awkward situation. It asks of her to determine what is essential to a religion and what is not. This is
nothing but the appropriation of a religious function by the state, and a blatant attack on the
autonomy of religions. The irony, of course, is that this is done by the state in the name of protecting
religious freedom. Defining what a religion is is best left to its adherents. It is better for the court to
say that public reasons require a restriction on one’s religious freedom, than for it to say that what
one claims as her religion is not her religion at all.
Both law and religion are autopoietic systems (http://cadmus.eui.eu/handle/1814/23894). Teubner

identified the ‘regulatory trilemma (http://cadmus.eui.eu/handle/1814/23895)’ that law faces when
seeking to regulate such systems: (i) either law’s regulation is incompatible with the self-producing
interactions of the other system (in this case, religion), and will be ignored, or (ii) the law influences
the internal interactions in the regulated system so strongly that their self-production itself is
endangered, or (iii) the law itself is captured by the regulated system.
One could argue that in India, (ii) has been in evidence: that the law’s overreach into religious matters
has destroyed the internal capacity of religion to reform and regenerate. The relative dearth of
internal religious reform movements since independence, especially within Hinduism, may be
explained by this.
Pitted against this warning are the unique socio-cultural conditions in India, especially in relation to
the practice of Untouchability, and our special constitutional mandate to the state to reform the
majority religion. The scale of the injustices makes it hard for the state to stay distant. But it is
important for it to also recognise the dangers of overreach, which might damage the religion’s
capacity for organic growth and internal reform.
On the case at hand 
The Sabrimala entry case is a difficult one. It is difficult because the interests on both sides are
weighty. The religious interest in the case is potent because it concerns religious worship, rather than,
say, a secular service being provided by a religious organisation. It is a lot easier to tell a religious
body that it must not discriminate while delivering charitable services to the public, than to say that
practices that constitute a sacred communication with the divine (from its internal viewpoint) should
be subject to public norms. The religious freedom interest in the case at hand is very weighty indeed.
On the other hand, patriarchy is entrenched in all our institutions, and religion has played a key role
in securing its position. The interest on the other hand it not simply that of ‘the right to pray’ by some
women, but an important expressive interest (https://academic.oup.com/ojls/article-
abstract/32/1/1/1391941) in rejecting blatant sexism. As I have argued before in my monograph on
discrimination law (https://global.oup.com/academic/product/a-theory-of-discrimination-law-
9780199656967?cc=au&lang=en&) (chs 4&5), the overall point of discrimination law is to reduce and
eliminate substantial, abiding, and pervasive advantage gaps between cognate groups (such as men
and women). These advantage gaps exist in the material, political as well as socio-cultural
dimensions, creating a mutually reinforcing and self-perpetuating pattern of domination and
disadvantage.
In the final analysis, what probably tips the balance in favour of the claimants seeking the right to
entry is our unique constitutional treatment of Hinduism, especially in relation to temple entry in
Article 25(2)(b), and the additional weight to their argument supplied by Article 17
(https://indconlawphil.wordpress.com/2018/07/18/the-sabrimala-hearings-and-the-meaning-of-
untouchability-under-article-17-of-the-constitution/)’s prohibition on Untouchability. While Article
25(2)(b) only applies to ‘religious institutions of a public character’, Article 17 has a broader reach.
The court appears not to show much patience with the argument that the understanding of
Untouchability can be extended to women. But Martha Nussbaum has argued convincingly that caste
taboos are inseparable from gender and sexuality taboos (http://jils.ac.in/wp-
content/uploads/2016/09/1-02_text_pages_final.pdf), and a proper understanding of Dr
Ambedkar’s teachings must extend to all forms of discrimination
(http://nujslawreview.org/2016/12/03/reading-swaraj-into-article-15-a-new-deal-for-all-
minorities/).
Even if the court finds against the temple, it should do so with some regret at a significant
interference with religious freedom. Constitutional morality cannot simply be invoked to judge the
morality of the religious practice in question—the morality of our constitution extends to the
protection of practices that are unpopular, offensive and even wrong. Of course, when rights of others
come into conflict, religious freedom sometimes has to give way. But religious freedom would be
meaningless if it only protected practices we approved of.
In particular, the court must be mindful of our political context and history. Our subcontinent has
spilt much blood over religion. Even today, people are being killed for their religion, and their
religion-inspired dress, food and habits. A robust protection of religious freedom (along with the right
against religious discrimination) allows us to live peacefully despite our differences. It is an
important liberal value that ought to be cherished, even (nay, especially) when we disagree with what
it seeks to protect.
(Dr. Tarun Khaitan is an Associate Professor at Oxford and Melbourne, and the General Editor of the
Indian Law Review.)
Individual, Community, and State: Mapping the

terrain of religious freedom under the
Indian Constitution
 FEBRUARY 7, 2016
 GAUTAM BHATIA
 8 COMMENTS
The Indian Constitution’s religious freedom clauses (Articles 25 and 26) constitute an extremely
complex web of relationships between individual, community and State. To navigate this web, the
Courts have developed two broad doctrinal tools: a distinction between the religious and the secular,
and the “essential religious practices” test. To achieve clarity on what is certainly a very confused
aspect of Indian constitutional jurisprudence, it is important to map out the factual background
within which these tools have been employed, the methodology used by the Court, and the manner
in which the conclusion has been reached.
A look at the text of Articles 25 and 26 reveals that in order to effectively interpret what the
Constitution requires, the Courts are required to – at least to some extent – ask and answer
substantive questions about religion. Let us take a close look at the text:
Article 25(1) (http://indiankanoon.org/doc/86224/) guarantees the right to freedom of conscience,

and the freedom to profess, practice and propagate religion. This right is made subject to a prefatory
sub-clause, in the interests of “public order, morality, and health.” Article 25(1) is similar to the religious
freedom clauses in other liberal commonwealth jurisdictions, and standing by itself, would present
no unique interpretive difficulties. However, Article 25(2)(a)
(http://indiankanoon.org/doc/555375/) allows the State to make laws “regulating or restricting any
economic, financial, political or other secular activity which may be associated with religious practice.” In some
ways, the relationship between Article 25(1) and 25(2)(a) mirrors the relationship between Articles
26(b) and 26(d), (http://indiankanoon.org/doc/1858991/) which deal with the rights of religious
denominations. Article 26(b) guarantees the right of religious denominations to manage their own
affairs in matters of religion, and Article 26(d) allows the denomination to administer property in
accordance with law (i.e., subordinating the right to manage property to State-made law).
What this scheme reveals is that the Constitution itself draws a distinction between the religious and
the secular. Article 25(2)(a) provides three illustrations of the secular – the economic, the financial,
and the political. 26(d) does something similar with the administration of property. Now if you think
of situations where there is a dispute between the State and religious practitioners over whether a
particular practice is, say, “political” or “religious”, the Constitutional text itself provides no further
guidance on the issue. It is therefore clear that, ultimately, this is a question that the Courts must
decide, and consequently, to an extent, the Courts will have to answer questions about whether
something is religious or not.
Article 25(2)(b) further allows the State to make laws “providing for social welfare and reform or the
throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” There
are at least four questions thrown up by the text. First – to what extent can the Court sit in judgment
over whether a particular law is for “social welfare or reform”? Second – does such a law completely
override religious freedom? Thirdly – what happens when a particular sect claims that it is not
“Hindu”, and therefore not subject to the second part of Article 25(2)(b)? And fourthly – what happens

when a Hindu temple claims that it is not of a “public character”? It is clear that the last two
questions, at least, will require the Court to ask questions pertaining to the nature and character of
religion.
With all these questions in mind, let’s consider the following Table, that attempts to map the manner
of judicial intervention into religious questions:
Download Table (https://indconlawphil.files.wordpress.com/2016/02/download-table.docx)
On a close reading of the cases in the Table, the following aspects stand out.
1. The Supreme Court’s religious freedom cases can be broadly divided into two types: cases
involving State intervention into the management of temples, durgahs, maths, gurudwaras, which
primarily include administration of estate, and appointment of officials; and cases involving the
relationship between the members of religious communities, or practices of those members (beef
eating, bigamy, excommunication, tandava dancing). Of course, the line might be blurred
sometimes (Seshammal and Adithyan are examples).
2. In the first decade of the Supreme Court’s jurisprudence, the religious/secular distinction was
evolved to deal with the first type of case, and the essential religious practices test was invented to
deal with the second type. As argued above, there is some justification for the Court dealing with
the religious/secular question on the basis of the constitutional text itself (although one might
disagree with how the Court has drawn the line), and the nature of the claims before it. However,
the essential religious practices test was invented out of whole cloth. In fact, in each of the cases
that used it – Narasu Appa Mali, Ram Prasad Seth, and Qureshi – there were alternative means,
rooted in the constitutional text, available. In fact, in the first two cases, the Court expressly upheld
the law on the basis of Article 25(2)(b) as well as holding that it was not an “essential religious
practice.” In the third, the Court’s own reasoning would have allowed it to reach the same
conclusion on the basis of the “health” restriction under Article 25(1).
3. In Swamiar, the Supreme Court held that what practices are deemed religious will be decided on
the basis of what the religion itself claims. This, very clearly, is an unworkable proposition. If the
entire scheme of Article 25 and 26 is to draw a line between the religious and the secular, then the
determination of what constitutes religion cannot, under the risk of vicious circularity, be left to
the religion itself. This is evident from the fact that the Court, while paying lip service to the
proposition throughout its history, has never seriously applied it. In Ratilal, for instant, the Jains
argued that the whole point of temple property was its use for religious purposes. The Court
simply dismissed the argument by asserting that management of property was incidental to
religion, without substantiating the same. In Sardar Sarup Singh, the Court made a half-hearted
attempt, stating in one line that no text had been produced to show that direct elections to the
management committee were part of the Sikh religion. However, even in that case, the Court
dodged the main issue by reframing it: it had been argued that the Management Committee
performed religious functions. The Court expressed no opinion on that contention, but stated that
the impugned provision was only about elections to the committee, and therefore, what the
committee actually did (once elected) was irrelevant. This reasoning is unconvincing. Throughout
its history, the Court has consistently failed to provide a set of principles to distinguish the
religious from the secular. Instead, it seems to have decided the cases on a priori definitions that
change with every judgment.
4. In the 1960s, Gajendragadkar CJI substantially muddied the waters by invoking both tests
together. In Durgah, which classically fell into the first category (management of estate), he
conflated the two tests, and then further added another, holding that practices born out of mere
“superstition” could not be considered religious (this proposition was disagreed with in 
Seshammal). Then, in Govindlalji – another estate management case – he first invoked the essential
religious practices test, but applied it to draw a distinction between the religious and the secular.
While in Seshammal the Court stuck to the religious/secular distinction, the confusion returned in
Adithyan, and continues to this day.
5. In determining what constitutes an “essential religious practice”, the Court has failed to lay down
a set of consistent principles. It has often referred to Swamiar (again, a case in a different context),
but has not applied it. In some cases, it has referred to texts such as the Quran, in others it has
referred to judgments of the Privy Council, in still others it has looked at how old the practice is.
Again, while paying lip service to Swamiar’s proposition that the religion itself should be allowed
to determine what is religious, the Court has, effectively, arrogated to itself that power, relied
upon sources of dubious authority, has never explained why it has chosen the sources that it has
and ignored others – and most importantly – has elevated the essential religious practices test to
the first, and often last, enquiry that it conducts.
6. Each of the cases that the Court decided on ERP grounds could have been decided on the basis of
the constitutional text. We have discussed the three cases in the 50s; furthermore, in Saifuddin,
Faruqui and Avadhuta, ERP was an entirely extraneous consideration. In fact, it is unclear what
role, as an analytical matter, the essential religious practices test plays in the first place. It would
be one thing if Justice Ayyangar’s concurring opinion in Saifuddin was law. In that case, proving
ERP would insulate a religious practice even from Article 25(2)(b). However, that is not law. What
the essential religious practice achieves is that it spares the Court from actually upholding a law
on the basis of Article 25(2)(b), or the prefatory sub-clause of 25(1). Instead, it allows the Court to
hold that religion, the Constitution, and the State are not in conflict, because the practice sought to
be regulated isn’t “integral” or “essential” to the religion at all, and so outside the scope of
constitutional protection. This might be a convenient doctrine politically (and scholars have made
that argument), but it is entirely contrary to what the Constitution prescribes.
7. In sum, therefore, while Articles 25 and 26 are unhappily worded, the Court’s messy
jurisprudence is entirely of its own making.
1. The essential religious practices test is an entirely arbitrary doctrine that has been grafted onto
the constitutional text, in effect to make 25(2)(b) and the first part of 25(1) as redundant as
possible.
2. The Court has regularly mixed up doctrines originally evolved in two very different contexts.
The question of the extent to which the State can intervene into the management of religious
institutions is very different from the extent to which it can intervene into intra-community
relationships and individual practices – the Constitutional text itself treats the two very
differently. This has led to absurd results, such as Avadhuta II.
3. The Court has failed to develop a coherent jurisprudence on the two basic tests that it has
used: what principles are to be applied to distinguish between the religious and the secular?
And what is the methodology and sources to determine whether something constitutes an
“essential religious practice”?
4. At the same time, the present confusion is easy enough to resolve. It can be resolved by getting
rid of the ERP test, replacing it with a deferential – but watchful – application of Article 25(2)
(b) and 25(1), using the illustrations provided in 25(2)(a) and 26(d) to draw the distinction
between the religious and the secular when it comes to the first category of cases, and applying
a civil-rights based standard (as evolved in Justice Sinha’s dissenting opinion in Saifuddin,
discussed earlier on this blog) in the second category of cases.
Guest Post: Religious Freedom and Archaka

Appointments in the Supreme Court’s

Recent Decision
 DECEMBER 23, 2015
 GAUTAM BHATIA
 7 COMMENTS
(In this guest post, Suhrith Parthasarathy, a Madras-based lawyer, discusses the recent Supreme
Court decision on Archakas and Agamas)
Previously, in a three-part essay published on this blog, I had previewed a case concerning the
appointment of archakas (priests) to Tamil Nadu’s temples which brought to light seemingly
significant conflicts between the rights of certain denominations to a freedom of religion and
conscience and the state’s duty in bringing forth reform and welfare to society. Last week, a two-
judge bench of the Supreme Court of India, in Adi Saiva Sivachariyargal Nala Sangam & Others v. The
Government of Tamil Nadu & Another, delivered a final verdict in this case. Unfortunately, the judgment
(http://supremecourtofindia.nic.in/FileServer/2015-12-16_1450255713.pdf), authored by Justice
Ranjan Gogoi, not only lacks clarity, but also fails to address the key constitutional questions at the
root of the dispute.
Conventionally, as a matter of custom, archakas were consecrated by virtue of rights flowing through
what are known as the Agamas, which are a collection of scriptures governing the conduct of a Hindu
temple’s religious affairs. The Agamas include within their numerous diktats specific criteria for
eligibility to the post of an archaka. One such criterion was explicated by the Supreme Court, as an
example, in Seshammal v. State of Tamil Nadu [ERJ Swami v. The State of Tamil Nadu], AIR 1972 SC
1586. The statement is worth quoting in full:
“Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his
affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa
Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the
followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are
alone competent to do puja in Vaikhanasa temples of Vaishnavites. They only can touch the idols and perform
the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas or even other
Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another
Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian
denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in
the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a
particular denomination.”
From time immemorial, the Agamas have represented a personal law relating, among other things, to
the appointment of archakas to Hindu temples. However, through its constant usage and application
 a
convention appeared to have developed by which appointments of archakas were made only on the
basis of hereditary succession, usually from within a small denomination of Brahmins. This practice
of making hereditary appointments, while not a part of the personal law as contained in the Agamas,
came to form a custom, of sorts, and was accorded further legitimacy by Section 55 of the Tamil Nadu
Hindu Religious and Charitable Endowments Act, 1959, a legislation that was enacted to specifically
enable a complete takeover of Hindu temples by the State. The section reads: “(1) Vacancies, whether
permanent or temporary, among the office-holders or servants of a religious institution shall be filled
up by the trustee in cases where the office or service is not hereditary.” And “(2) In cases where the
office or service is hereditary, the person next in the line of succession shall be entitled to succeed.”
In 1970, the Tamil Nadu government amended Section 55. It now read as follows: “(1) Vacancies,
whether permanent or temporary among the office holders or servants of a religious institution shall
be filled up by the trustee in all cases. Explanation: The expression ‘Office-holders or servants shall
include archakas and poojaris.’” And “(2) No person shall be entitled to appointment to any vacancy
referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last
holder of office.”
Soon after the provision was modified, a group of hereditarily appointed Archakas challenged the
amendment, in Seshammal, arguing that their rights under Articles 25 and 26 stood infracted. A five-
judge constitutional bench, speaking through Justice D.G. Palekar’s opinion, dismissed these
petitions, but nonetheless provided an additional imprimatur to the supposed sacrosanctity of the
Agamas. The power to make appointments of archakas, the court held, was a secular function—the
archaka, the judgment said, was “a servant of the temple…As a servant he is subject to the
discipline and control of the trustee as recognised by the unamended Section 56 of the Principal
Act [Tamil Nadu Hindu Religious and Charitable Endowments Act] which provides all office-
holders and servants attached to a religious institution or in receipt of any emolument or
perquisite there from shall, whether the office or service is hereditary or not be controlled by the
trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove
or dismiss any of them for breach of trust, incapacity, disobedience of orders neglect of duty,
misconduct or other sufficient cause. That being the position of an Archaka, the act of his
appointment by the trustee is essentially secular. He owes his appointment to a secular authority.”
Nonetheless, while the state is exercising a secular power in making appointments, the court found
that the the criteria prescribed under the Agamas was essential to the practice of the religion, and was
therefore inviolable. “In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to
be made from a specified denomination, sect or group in accordance with the directions of the
Agamas governing those temples,” wrote Justice Palekar. “Failure to do so would not only be
contrary to Section 28(1) [of the Tamil Nadu Hindu Religious and Charitable Endowments Act] but
would also interfere with a religious practice the inevitable result of which would be to defile the
image.” However, according to the court, while making appointments from a specified denomination,
sect or group in accordance with the Agamas, the state was not bound to follow a principle of
hereditary succession, and therefore the amendment was found valid.
In so holding, the Supreme Court effectively foiled the Tamil Nadu government’s intention to appoint
archakas from denominations beyond those purportedly prescribed under the Agamas. After decades
of accepting the status quo, in 2006, the government sought to adopt a more direct approach—it
introduced an executive order stating, “Any person who is a Hindu and possessing the requisite
qualification and training can be appointed as a Archaka in Hindu temples.” The ostensible objective
of this order was to allow the state to appoint archakas, by prescribing a new set of criteria, which
would not necessarily be in consonance with the Agamas. The order was followed by an ordinance,
which declared that “suitably trained and qualified Hindus, without discrimination of caste, creed,
custom or usage” could be appointed as priests to temples administered by the government of Tamil
Nadu. This ordinance however subsequently lapsed, leaving the executive order alone as the subject
matter of challenge before the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam. 
The petitioners in Adi Saiva Sivachariyargal Nala Sangam argued that the Supreme Court was bound by
the decision of the 5-judge bench in Seshammal. According to them, any deviation from the Agamas in
appointing archakas, would infract their rights under Articles 25 and 26. While the power to appoint
priests was a secular function, the qualifications prescribed under the Agamas, they argued, were
essential to the practice of their religion, and were therefore inviolable. Countering, the State sought
to rely on another decision of the Supreme Court, N. Adithayan v. The Travancore Devaswom Board, AIR
2002 SC 3538. Here, a two-judge bench had upheld the appointment of a person from outside the
Malayala Brahmin community as priest of a Siva temple in Kerala. The State further contended that the
Petitioners’ rights under Article 25 were not violated by the executive order, as it was a measure
intended at bringing forth social reform and welfare—a feature, which the Constitution specifically
protects.
The Supreme Court however, took a curious approach to determining the issue. The bench found
(correctly) that the decision in N. Adithayan was inapplicable to the present contest, as it was a
judgment rendered on very specific facts, where a petitioner had been unable to prove that an
appointment of a priest from a community outside of his own was in violation of any established
religious practice, protected under Article 25. The court similarly found (more questionably though)
that its decision in Seshammal was also of only limited relevance to the present dispute. “Seshammal is
not an authority for any proposition as to what an Agama or a set of Agamas governing a particular
or group of temples lay down with regard to the question that confronts the court, namely, whether
any particular denomination of worshippers or believers have an exclusive right to be appointed as
Archakas to perform the poojas,” Justice Gogoi wrote. “Much less, has the judgment taken note of the
particular class or caste to which the Archakas of a temple must belong as prescribed by the Agamas.
All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of
the necessity of performance of the Poojas by Archakas belonging to a particular and distinct
sect/group/denomination, failing which, there will be defilement of deity requiring purification
ceremonies.”
Having found that neither of these judgments was particularly helpful to it in resolving the dispute,
the court arrived at an unusual conclusion. Wrote Justice Gogoi:
“…It will be necessary to re-emphasise what has been already stated with regard to the purport and
effect of Article 16(5) of the Constitution,* namely, that the exclusion of some and inclusion of a
particular segment or denomination for appointment as Archakas would not violate Article 14 so
long such inclusion/exclusion is not based on the criteria of caste, birth or any other constitutionally
unacceptable parameter. So long as the prescription(s) under a particular Agama or Agamas is not
contrary to any constitutional mandate as discussed above, the impugned G.O. dated 23.05.2006 by
its blanket fiat to the effect that, “Any person who is a Hindu and possessing the requisite
qualification and training can be appointed as a Archaka in Hindu temples” has the potential of
falling foul of the dictum laid down in Seshammal (supra). A determination of the contours of a
claimed custom or usage would be imperative and it is in that light that the validity of the impugned
G.O. dated 23.05.2006 will have to be decided in each case of appointment of Archakas whenever and
wherever the issue is raised. The necessity of seeking specific judicial verdicts in the future is
inevitable and unavoidable; the contours of the present case and the issues arising being what has
been discussed.”
[*Note: Clauses 1 and 2 of Article 16 provide that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the State, and that no
no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any
of them, be ineligible for, or discriminated against in respect or, any employment or office under the
State. Article 16(5) however carves out an exception for laws relating to appointments by the  State
to religious or denominational institutions where a person professing a particular religion or
belonging to a particular denomination may be accorded special preference.]
Any law, whether legislative or otherwise, can either be valid or invalid. It’s difficult to understand
how the constitutionality of an executive order can differ based on the facts and circumstances of an
appointment made under such a law. The issue really ought to have been simple enough for the
Supreme Court from a purely constitutional perspective. That the Agamas and its diktats represent an
essential religious practice is now trite. After all, the court, in a five-judge bench decision in
Seshammal, has already held thus. The only question that was to be answered therefore was whether
the governmental order, which sought to deviate from the Agamas, was protected by any one of the
exceptions carved into Article 25, specifically whether it was necessary in the interest of social welfare
and reform. Unfortunately, the bench in Adi Saiva Sivachariyargal Nala Sangam makes no attempt to
answer such questions. Instead, it ends with a rather flawed proposition—that the government order
ought to be tested on the touchstone of Article 14, each time an appointment of an archaka is made.
The effective result of the judgment is therefore this: that the executive order is simply extraneous to
any appointment of an archaka. Any selection made in the future would have to be in consonance
with the Agamas. However, in cases of appointments, where caste, birth or any other constitutionally
unacceptable parameter, to use the court’s words, are invoked as criteria, such a choice would be
open to challenge under Article 14. This is a quite remarkable conclusion. There is no finding in the
judgment on whether the criteria fixed in the Agamas constitute “law” within the meaning of Article
13(3) (it’s apposite to remember here that the court in Seshammal only found that the power of
appointing priests to be a secular function; the qualifications for such a post, prescribed as they are
under the Agamas, were considered essential to the practice of religion). If the Agamas fall within what
are generally regarded as “personal laws,” they would fall outside the scope of the definition
prescribed in Article 13(3), and they would therefore not be amenable to a challenge under Article 14.
Interestingly, in July this year, in Riju Prasad Sarma v. State of Assam
(http://indiankanoon.org/doc/102089692/), (2015) 9 SCC 461, the Supreme Court had found that
religious scriptures are in the nature of personal law and their validity is ordinarily protected by
Articles 25 and 26. The Supreme Court’s almost hypothetical conclusion that an appointment made
under the Agamas would infract Article 14 if the appointment partakes a consideration based on caste
is therefore doctrinally unsustainable. Were such a position to be accepted, it may well be tantamount
to reforming a religion out of existence, to use Justice N. Rajagopala Ayyangar’s aphorism in Sardar
Syedna Taher Saifuddin Saheb v. The State of Bombay (http://indiankanoon.org/doc/510078/), AIR
1962 SC 853, for no classification made in a religious scripture is likely to meet the scruples of Article
14.
Ultimately the Supreme Court’s decisions on matters such as these turn on political considerations. In
Adi Saiva Sivachariyargal Nala Sangam, the court was clearly handicapped by the decision of its larger
bench in Seshammal; what’s more, while Article 25 permits the State to bring forth a law in the interest
of social reform and welfare, such a law would necessarily have to be introduced by way of
legislation. Unless a larger bench overrules Seshammal, the Agamas cannot be considered as anything but
an essential religious practice. And it must logically follow therefrom that the thwarting of
appointments of archakas under the Agamas can only be made by way of legislation, and only in the
interest of social reform and welfare. Hence, purely on constitutional grounds, the Supreme Court, in
my submission, has erred in failing to strike down the Tamil Nadu government’s executive order.
Additionally, the court has left us with a further conundrum. Now, every time an appointment of an
archaka is made, the selection is likely to be challenged. Each of those challenges will likely entail an
analysis of the Agamas, an exercise that the courts are certainly not competent to perform.
Reformation of religion is an important function of the state, especially in a country such as ours,
where social iniquities abound. But, regardless of how we might feel intuitively about  a
reformatory measure of the State, the question of how far a constitutional court must go in
furthering this movement continues to perplex.

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18/12/2023, 10:23 essential religious practices – Indian Constitutional Law and Philosophy

Indian Constitutional Law and Philosophy

Tag: essential religious practices

Guest Post: Ends over Means – On Dhulia J.’s

Scope of the ERP Test: Confined to Article 26?

In N. Adithayan v. Travancore Devaswom Board (https://indiankanoon.org/doc/1705114/),

He then makes the following further observations (paragraph 34):

Cleaner, Judicially Sound Alternatives to Dhulia J.’s Circumvention

Shirur Mutt: Back to the Basics

Shirur Mutt (https://indiankanoon.org/doc/1430396/) remains the locus classicus of the

Sabarimala and Constitutional Morality

Guest Post: Centering Women’s Voices – A

the fact, as argued by Devdutt Kamat

The ConCast: Episode 5 (The Essential Religious

The Podcast is available to listen below, and also on Podbean

The Shirur Mutt Case (Commissioner vs Lakshmindra Swamiar)

Mohd Hanif Qureshi vs State of Bihar. (https://indiankanoon.org/doc/93885/)

Dargah Committee, Ajmer vs Syed Hussain Ali (https://indiankanoon.org/doc/1262157/).

Sardar Syedna vs State of Bombay (https://indiankanoon.org/doc/510078/).

Sastri Yagnapurushadji vs Muldas (https://indiankanoon.org/doc/145565/).

Seshammal vs State of Tamil Nadu (https://indiankanoon.org/doc/641343/).

Commr of Police vs Acharya Avadhuta (https://indiankanoon.org/doc/1723440/).

Indian Young Lawyers Association vs State of Kerala (Sabarimala Judgment)

Resham vs State of Karnataka (http://chrome-

Constitutional Law and Philosophy Blog, 29 August 2015.

Between Agency and Compulsion: On the

Freedom of Expression and Privacy

Earlier on this blog, detailed (https://indconlawphil.wordpress.com/2022/02/11/guest-post-the-

Addendum: A Case of Conscience

There are two important things to note, by way of conclusion.

The scope, thus, is limited to classrooms.

The Essential Religious Practices Test and the

On this blog, I have (https://indconlawphil.wordpress.com/2016/01/09/monday-an-important-

It is important to start by noting that there exist multiple reasons

The Sabarimala Judgment – II: Justice Malhotra,

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on

Guest Post: The Essential Practices Test and

As I argue in this paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3162449), freedom of

These are my reasons for making these claims:

Official Doctrine versus Religious Practice

(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3162449), I show how an autonomy-focussed

Both law and religion are autopoietic systems (http://cadmus.eui.eu/handle/1814/23894). Teubner

On the case at hand 

Individual, Community, and State: Mapping the

Article 25(1) (http://indiankanoon.org/doc/86224/) guarantees the right to freedom of conscience,

Download Table (https://indconlawphil.files.wordpress.com/2016/02/download-table.docx)

Guest Post: Religious Freedom and Archaka

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