When does a court overstep by entering a religious domain and defining what religion is? The Supreme Court's decisions in Indian Young Lawyers Association v. State of Kerala (the Sabarimala case) and Shayara Bano v. Union of India (the Triple Talaq case) have forced this question into the open, and the answers the Court has given are not entirely satisfying.
Both judgments achieved outcomes that were, from a fundamental rights perspective, defensible. Excluding women of menstruating age from a temple is discriminatory. Allowing a husband to dissolve a marriage by uttering a word three times, with no process and no recourse, is arbitrary. But the doctrinal path the court chose in striking them down is worth scrutinising, because it sets precedents that will have long-term consequences.
The ERP Problem
The Essential Religious Practices doctrine was meant to be a limiting principle. The idea, developed from The Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt onwards, was that Articles 25 and 26 protect only those practices genuinely integral to a religion, not every custom that has accumulated around it. On paper, this sounds reasonable. In practice, it has created a challenge.
In applying the ERP test, courts frequently examine religious texts, historical traditions, and the perceived centrality of a practice within a faith. This interpretive exercise, however, places the judiciary in the unusual position of adjudicating theological questions, an area traditionally governed by religious authorities and community belief and something which courts are not equipped to do. Religious interpretation is contested within communities, not just between them and the state.
Consequently, the doctrine has attracted sustained criticism for its inherent subjectivity. Different benches, often relying on selective readings or varying interpretive approaches, have reached inconsistent conclusions regarding what constitutes an “essential” practice.
Alongside ERP, the judiciary has increasingly invoked the principle of constitutional morality. Rooted in the transformative vision of the Constitution, this principle emphasizes the primacy of values such as equality, dignity, and individual liberty over entrenched social or religious norms. Its application has enabled courts to scrutinize practices that may otherwise claim protection under the guise of religious freedom.
However, the growing reliance on constitutional morality also signals a shift in judicial reasoning from identifying what is essential to evaluating what is acceptable within a constitutional
framework. This transition reflects an expanding judicial role, raising important questions about institutional limits and the proper scope of constitutional intervention in matters of faith.
Divergent Judicial Reasoning
The question of whether entry restrictions at Sabarimala are essential to the Ayyappa faith was answered differently by the majority and the dissenting judges, both of whom were reading the same record. That disagreement reflects the inherent impossibility of the exercise.
The result has been doctrinal inconsistency. Different benches, approaching similar questions, have reached different conclusions depending on which texts they found persuasive and how broadly they defined "essential." This may lead to unpredictable outcomes with religious communities facing a perpetual challenge that some of their practices may one day be judicially reclassified.
Sabarimala is also notable for its heavy reliance on constitutional morality - the principle that the transformative values of the Constitution (equality, dignity, individual liberty) must prevail over entrenched social or religious norms. As a principle, this is sound and important. The Constitution was not written to leave existing hierarchies undisturbed; it was written to challenge them.
But constitutional morality is only as useful as the discipline with which it is applied. Used carefully, it allows the Court to hold that no practice, however old, however sanctioned by tradition, can violate fundamental rights. Used carelessly, it becomes a way of dressing up judicial preference as a constitutional imperative.
The concern is not that the Court invoked equality in Sabarimala. The concern is that the reasoning was not sufficiently rigorous to distinguish between a constitutional judgment and a moral one.
Triple Talaq was handled differently. The majority in Shayara Bano focused on manifest arbitrariness under Article 14 rather than constitutional morality, and found that instant triple talaq lacked even the character of an essential religious practice. The practice was struck down but the path taken by the Court was different. That divergence matters.
If the Court is working without a coherent, consistently applied framework, each case becomes somewhat improvised, and that is a problem for an institution whose authority rests largely on the perception of principled reasoning.
Where the Line Should Be
The way forward lies in evolving a balanced constitutional approach that neither permits unchecked judicial overreach into matters of faith nor allows religious practices to violate the fundamental rights of an individual. Practices that cause concrete harm to individuals, that discriminate, that strip people of recourse, that inflict inequality, cannot be shielded from constitutional scrutiny simply by attaching a religious label to them.
The more defensible approach would be to anchor judicial intervention firmly in the impact of a practice on fundamental rights, rather than in theological judgments about its essentiality. Whether or not instant triple talaq is "essential" to Islam is a question the Court cannot definitively answer and arguably should not try to.
Whether it violates Article 14 is a question entirely within the Court's competence, and the answer there is clear enough to carry the judgment on its own.
This shift - from essentiality to constitutional impact - would not weaken the Court's ability to protect rights. It would actually strengthen it, by grounding decisions in legal analysis the Court is equipped to perform, rather than religious analysis.
The question of judicial intervention must ultimately be settled with due regard to India's diverse religious traditions and the deep reliance of communities on the legitimacy and consistency of judicial decisions.
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