'Essential Religious Practice' Doctrine Is Elitist: Supreme Court In Sabarimala Reference

During the Sabarimala reference today, the Supreme Court orally remarked that the doctrine of Essential Religious Practice (ERP) is elitist in the sense that it tends to exclude denominations which don't follow religious practices in an organised, definitional manner. 

This was said by Justice MM Sundresh during submissions made by Senior Advocate and amicus K Parmeshwar that the ERP doctrine should not be applied because it elevates certain practices over others.

The Sabarimala reference concluded today after 16 days of hearing. The questions before the Court were related to larger religious issues pertaining to temple entry, mosque entry, the Parsi women's religious identity issue, female genital mutilation, and excommunication in Dawoodi Bohras. 

Parmeshwar argued that religion has to be understood descriptively rather than definition-based. He gave an example of Tribal religion, which he said may not necessarily trace to any doctrinal belief, but that is still protected in Articles 25 and 26 of the Constitution. He stated this in the context of the argument that when an ERP test is applied to such religious practice, it often fails to get protection.

He said: "What ERP tries to do, it tries to privilege certain practices over other. The easiest critique is that it is not constitutionally there in the text."

Interjecting, Justice Sundresh said: "It's elitist."

Agreeing to this, Parmeshwar added that it is indeed elitist because an individual's spiritual pursuit, which is protected in Article 26, is very well a part of his Article 21 identity. "You remove my religious pursuit, to that extent, you are denting my identity under Article 21...ERP doctrine fails because it creates a hierarchy, it privileges certain practices."

Justice BV Nagarathna said ERP can still be used as a tool to aid. But it can't be used as a test to strike down legislation.

Parmeshwar responded that what was supposed to be a test to determine secular versus religious practice ultimately became a threshold for judging the nature of a religion.

"Dr Ambedkar said look at the activity, see whether it is essentially religious, and if it is, leave it because it is out of State regulation. From the essentiality of activity, the Court made it essentiality of religion. That distance this Court covered is problematic, he averred.

In this context, Parmeshwar also pointed out the judgment of former CJI Dipak Misra, where he had said the Sabariamal temple doesn't fulfil the criteria of religious denomination devoid of the characteristics of distinctiveness etc.

He said: "CJI Dipak Misra in Sabarimala says you don't have anything distinctive in your practice, you have nothing novel to show in Hinduism. He used both the test, and Justice Nariman used only distinctiveness, and Justice Indu Malhotra also said there could be aspects of distinctiveness-it is my submission it's incorrect. Where the Constitution wanted to use and employ distinct, it did in Article 29."

Parmeshwar stated that denominational status will not be dependent on whether the practice is essential or not, but on the element of commonness. "If you start looking for textual authority, distinctiveness, novelness, even the group will be devoid of protection to that extent in Article 29."