Constitutional Morality and Transformative Constitutionalism.

The judiciary in India plays a vital role in defining Essential Religious Practices (ERP) under Article 25, but its expanding role has sparked debate over religious autonomy vs constitutional morality.

Constitutional Basis:

• Article 25(1): Guarantees freedom of conscience and religion, subject to public order, morality & health.
• Judicial Interpretation: Courts evaluate if a practice is essential by referring to scriptures, customs, and doctrinal texts.
• State Regulation Permitted: Under Article 25(2)(a), the State can regulate secular activities associated with religion.
• Article 26: Protects the right to manage religious affairs, but subject to public order and health — giving courts balancing power.

Key Judicial Interventions:

• Shirur Mutt Case (1954)– ERP doctrine originated; the court said religious denominations decide what is essential, not the State.
• Sabarimala Case (2018)- Banned women’s entry held non-essential, prioritizing gender equality.
• Triple Talaq Case (2017)– Instant talaq ruled unconstitutional as it lacked Quranic sanction.
• Haji Ali Dargah Case (2016)– Bombay HC allowed women into dargah’s sanctum, holding the ban non-essential.
• Ram Janmabhoomi Case (2019)– SC carefully avoided ERP discussion, signalling the limits of judicial intrusion into religious belief.

Criticism of Judicial Role:

•  Judicial Overreach: Courts risk acting as theologians, interpreting religious texts beyond the legal domain.
• Lack of Standard Test: No uniform method to determine ERP leads to inconsistency and unpredictability.
• Religious Autonomy Erosion: Communities fear State-controlled religion.
• Selective Application: ERP doctrine is used more in minority practices, raising concerns of bias and imbalance.
• Pending Constitutional Review: A 9-judge bench is reconsidering ERP’s validity, indicating a need for clarity and restraint.