COURTS SHAPING RELIGION: MOVING BEYOND THE ESSENTIAL RELIGIOUS PRACTICES TEST
“Religion is most threatening to liberal democracy where it informs national identity or permeates everyday life.(Jacobsohn, 2003)”
Freedom of religion under the Indian Constitution guarantees rights to individuals and religious groups. However, the state has the right to interfere in a limited sense. Therefore, we have Articles 25 and 26 to this effect, constitutionally validating the religious freedom of persons and religious denominations. Article 25 of the Constitution that begins with the expression, “Subject to public order, morality and health and other provisions of this part,” is testimony to the fact that freedom is not absolute. Does the Constitution of India protect everything that is incidentally or substantially religious? It is an arduous task for the judiciary to decide the questions of theology. However, a question arises, how competent courts are to resolve these questions of religion?
Nevertheless, the more fundamental question in this regard is, do the courts have the authority to dictate what one’s religious beliefs are? Verdicts of the court in the past led the researcher to question religious doctrines and the principles evolved by the judiciary. This paper seeks to analyze and critique these religious doctrines. The author has argued that the constitutional jurisprudence with respect to the ‘Essential Religious Practices’ test developed by the judiciary over a period of time runs antithetical to the spirit of the Constitution. It is submitted, courts deciding essentiality of practice in a given religion is flawed as it seeks to undermine the diversity in religion and, therefore,to shape the religion according to their conscience. The author attempts to provide an alternative approach to this seemingly incoherent jurisprudence.