UNDERSTANDING FREEDOM OF RELIGION: ENGENDERING THE ESSENTIAL RELIGIOUS PRACTICES TEST

Abstract

Article 25 guarantees a fundamental right to all its citizens to religions practices. The Supreme Court of India has developed the Doctrine of Essential Religious practices (“ERP”) to interpret the religious freedom clauses. The paper argues that the ERP doctrine is dysfunctional because as a legal dynamic it is leading to a desecularization process where in it breeds discrimination between genders through its approaches and methods. The paper also suggests alternative normative model. The model suggested by the author to be adopted in the interpretative attempt can be one that achieves the constitutional morality. The model will explore the meaning of constitution to situate the harmonious outlook that judiciary has failed to achieve in its constant attempt to resolving contestation between claims of religious nature by applications of the ERP doctrine. The doctrinal analysis of recent cases through the theoretical lens of constitutional values will lay bare the problem in the gender context. This paper brings out the analysis of Religious Freedom clauses and the Doctrine of Essential Religious Practices authored by the Supreme Court as a mechanism for interpretation of the extent of religion, its boundaries and scope for distinction of the religious  form the secular and how these inquiries are not geared to design the cause of gender justice. The Triple Talaq case will be object of analysis to illustrate the ill impact of the doctrine of ERP, however noble the outcome may have been.