Legal, But Unlawful: The Essential Religious Practices (Erp) Test

Sneha Singal, OP Jindal Global University

ABSTRACT

This paper delves into the evolution and impact of the Essential Religious Practices test within the context of India's constitutional framework, specifically Articles 25 and 26. Initially intended to safeguard religious freedom while discerning between essential religious practices and secular activities, the test has undergone a substantial transformation in judicial interpretation. From its inception in cases like Narasu Appa Mali and Shri Shirur Mutt, the test aimed to distinguish foundational religious practices from secular ones. However, over time, this evolved to encompass practices necessary to a religion, introducing sub-tests like optionality, recency, and the but for test. Recent landmark cases such as the Hijab ban, Sabarimala dispute, and Ram Janmabhoomi illustrate a stark shift where the judiciary, deviating from the original intent, crafted more of a judge-centric test. This change led to inconsistent and ambiguous rulings, impacting fundamental rights and eroding the test's credibility. The author through this paper urges for a re-evaluation and restoration of the original test's essence, aligning with the drafters' vision and ensuring justice within India's diverse religious landscape.