17 Jan 2023 Doctrine of Essentiality

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. The court held that the term “religion” will cover all rituals and practices “integral” to religion and upon itself the responsibility of determining the essential and non-essential practices of a religion.

The essential religious practice test is a contentious doctrine evolved by the court to protect only such religious practices which were essential and integral to the religion.

The concept of principled distance entails a state maintaining equal distance from all religions. Such intervention betrays disrespect to some aspects of every religion. For example, religiously sanctioned caste hierarchies are not acceptable within Indian secularism.

Examples-

Muslim women’s entry into mosques and dargahs

 In April 2019, the SC was moved to seek directions for allowing Muslim women to enter mosques through the main door, and to have the “Islamic right to visual and auditory access to the ‘musalla’ (main prayer area)”.

 The petition contended that there is no mention of gender segregation in the Quran and Hadith and “this act of prohibition is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution”.

Khatna/Female genital mutilation (FGM) among Dawoodi Bohras

The petition, filed under Article 32 of the Constitution, had questioned the constitutionality of the practice of Female Genital Mutilation (FGM) or ‘khatna’, or Female Circumcision (FC) or ‘hand’, which the petitioner said was carried out on every girl child in the Dawoodi Bohra community. In 2018, a Bench of SC referred the matter in ‘Sunita Tiwari vs Union of India and Ors’ to a larger Bench of the Supreme Court.

Entry of Parsi women married to non-Parsis in the Agyari: The Special Leave Petition in ‘Goolrukh Gupta vs Burjur Pardiwala’ arose out of a judgment passed by the Gujarat High Court in 2012.

The petitioner moved the High Court in 2010 after her friend who too, like her, was a Parsi married to a Hindu, was denied entry to the Tower of Silence during her mother’s last rites some years before.

The conflict between the abovementioned doctrines

1. Many noted scholars have articulated that the court determining the religious rights of people is entering into the sphere of pundits, maulvis, and rabbis which is beyond their competence.
2. In some instances, texts have been read leaving behind the context which opens the possibility of pandora’s box.
3. Hence, infringing religious rights renders the doctrine of principled distance useless.

CONCLUSION

The court has been inconsistent in applying the essential religious practice doctrine and maybe it should be left like that only to avoid further tensions.

Court’s push for expanding its remit and for hard clarity on complex questions will prove difficult and maybe counterproductive so it should not dwell deeper into the religious matter after a certain point.

The court upheld ideas of freedom and equality and the constitutional promise of a pluralistic and inclusive society while redressing an injustice that should be upheld as a beacon of hope for a just and equal society.

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