TO PRACTICE WHAT IS PREACHED: CONSTITUTIONAL PROTECTION OF RELIGIOUS PRACTICES VIS-À-VIS REFORMATIVE SECULARISM

Abstract

In light of India’s commitment to reformative secularism, both implicitly and explicitly, the essential religious practices test evolved by the Supreme Court, is problematic. It allows the State unfettered control over any kind of practice that courts consider to not be ‘essential’. In application, ‘essentiality’ of a practice to a religion is decided inconsistently, and total State control over ‘non-essential’ practices is allowed. This article suggests an alternative, juxtaposing a two-stage deferential test that ensures a wider constitutional protection to religion while allowing for social reform as envisioned in Indian secular philosophy, compared to the current essential religious practices test. The alternative combines an inclusive constitutional protection with a substantive second-stage enquiry on the State restriction, along the lines of ones used to test infringement of other fundamental rights. Adopting this alternative alleviates many of the legal and practical difficulties in the current religious freedom regime. By analysing the essential religious practice test through the lens of secularism, and suggesting an alternative which is not only grounded in an international context, but also tailored to suit the peculiarities of Indian society, the authors have attempted to delineate the issues which arise from the ambiguity of the essential religious practices test.