Religion v. Reform: Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test

Abstract

Even though India has considerably benefited from the distinction between what is essential to a religion and what is not, the “essential religious practices” test has always remained a debatable issue regarding its legality in a secular state. Very recently, the Supreme Court resorted to the said test while deliberating upon the issue of triple talaq in Shayara Bano v. Union of India, where it could have easily taken the gender based reasoning to reach its final judgment. However, not only in this case but in many others also, the Supreme Court has preferred to declare something as not essentially religious, rather than subjecting it to other secular tests like public order or morality and more so, avoiding to adopt an approach towards horizontal application of fundamental rights. The legitimacy of the test has come into limelight yet again with the case of Goolrokh Gupta v. Burjor Pardiwala. Though the Hon’ble Supreme Court has passed an interim order in favour of the Parsi woman, thereby allowing her to attend her parent’s last rites, the primary question as to what constitutes the religious identity of a Parsi has not yet been settled. It is just a matter of time before we get to see the verdict of the Hon’ble Court and also which path it ultimately resorted to. In this context, the present paper seeks to delve into the question of competency of the Courts in transforming itself into a theological authority by tracing the evolution of the test and analysing its legitimacy in a nation like India, by briefly comparing with the ECthR doctrine of margin of appreciation.