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Supreme Court’s Doctrine of Essentiality

Supreme Court’s Doctrine of Essentiality

Introduction

  • The Supreme Court has decided to refer the Sabarimala temple case to a larger 7-judge Bench.
  • This reopens not only the debate on allowing women of menstruating age into the Ayyappa temple but the larger issue of whether any religion can bar women from entering places of worship.

What is the case for Sabarimala?

  • The majority opinion in the 2018 Sabarimala verdict had said that women have a fundamental right to equality in accessing public places which includes places of worship.
  • However, since the Sabarimala verdict will essentially be heard afresh, the constitutional debate on gender equality will open up once again.
  • The review gives the ‘devotees’ and the Sabarimala temple authorities who have battled the Supreme Court verdict a foot in the door to have the verdict potentially overturned.

Supreme Court’s Doctrine of Essentiality

  • The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the ‘Shirur Mutt’ case in 1954.
  • It is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.
  • The court held that the term “religion” will cover all rituals and practices “integral” to a religion, and took upon itself the responsibility of determining the essential and non-essential practices of a religion.
  • Referring to the Ayodhya case, the Constitution Bench had ruled in 1994 that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open.

Background

  • The ‘essentiality doctrine’ of the Supreme Court has been criticised by several constitutional experts.
  • Scholars of constitutional law have argued that the essentiality/integrality doctrine has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions.
  • As a result, over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality.
  • In others it relied on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

Issues over the doctrine

  • In the beginning, the court engaged with the question of whether untouchability, manifested in restrictions on entry into temples, was an “essential part of the Hindu religion”.
  • After examining selected Hindu texts, it came to the conclusion that untouchability was not an essential Hindu practice.
  • The idea of providing constitutional protection only to those elements of religion which the court considers “essential” is problematic as it assumes that one element or practice of religion is independent of other elements or practices.
  • So, while the essentiality test privileges certain practices over others, it is, in fact, all practices taken together that constitute a religion.

Essentiality Against Religious Freedom

  • Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the concept of “inward association” of man with God.
  • The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954) acknowledged that “every person has a fundamental right to entertain such religious beliefs as may be approved by his judgment or conscience”.
  • The framers of the Constitution wanted to give this autonomy to each individual. Scholars have argued that the essentiality test impinges on this autonomy.
  • The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

 

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