The All India Muslim Personal Law Board (AIMPLB) has submitted before the Supreme Court that courts should refrain from deciding what constitutes an “essential religious practice,” cautioning that such an exercise risks encroaching upon the freedom of religion protected under Articles 25 and 26 of the Constitution.
The submissions form part of the ongoing proceedings in the Sabarimala reference case, which arises from review petitions challenging the 2018 judgment that permitted entry of women of all age groups into the Sabarimala Lord Ayyappa temple. In November 2019, while hearing the review petitions, the Supreme Court referred broader questions relating to religious freedom and the scope of Articles 25 and 26 to a larger bench. A nine-judge bench is scheduled to commence hearings on April 7.
AIMPLB Questions Essential Religious Practices Doctrine
In its written submissions, the Board contended that identifying the “core” or essential aspects of a religion involves inherently subjective considerations grounded in the beliefs of followers, making such determination unsuitable for judicial adjudication.
It argued that the doctrine of Essential Religious Practices (ERP) imposes an unfair burden on believers to establish that a particular practice is fundamental to their faith. Instead, the Board urged that judicial scrutiny should focus on whether State-imposed restrictions satisfy the constitutional limitations of public order, morality, and health.
According to the Board, questions relating to doctrine, faith, and interpretation should remain within the domain of religious scholars and denominations, rather than courts. It warned that judicial intervention in determining essential practices may dilute religious autonomy and undermine constitutional guarantees.
Interpretation of Articles 25 and 26
Elaborating on its position, the Board submitted that interpretation of religious practices under Article 25 should not extend to defining the “core” of a religion. It stated that such matters must be left to religious scholars, denominations, and the beliefs of adherents.
The Board also pointed out that religious practices may evolve over time and vary across contexts. By way of illustration, it referred to variations in practices such as Namaz, including differences in its performance during burial rituals compared to regular prayers.
Further, the Board suggested that instead of applying the ERP test, the Court may consider developing principles to define the scope of “public order” and “secular activity” in religious matters. It submitted that such an approach would ensure that courts address only secular aspects without intruding into matters of religion.
Approach to “Morality” Under Article 25
On the issue of limitations under Article 25, the Board urged the Court to adopt a balanced interpretation of “morality.” It argued that morality should not be confined solely to the concept of constitutional morality but must also account for the moral principles inherent in the concerned religion, unless those principles directly contradict constitutional values.
The Board emphasised that interpretations of morality, whether framed as constitutional morality or otherwise, should operate to uphold rights rather than restrict them. It also cautioned against invoking public order or secular regulation as a pretext for unwarranted interference in religious affairs.
Gender and Religious Identity
Addressing concerns relating to gender equality in the Sabarimala matter, the Board submitted that gender and religion should not be treated as conflicting identities. It stated that women may simultaneously exercise autonomy and choose to observe religious practices, and that constitutional adjudication must recognise this coexistence.
Equality and Religious Diversity
The Board further contended that formal equality may not ensure substantive equality in a multi-religious society. It argued that different religions follow distinct practices, and therefore identical treatment may lead to unequal outcomes.
It submitted that facially neutral rules may disproportionately affect certain religious practices, particularly those of minority communities. As an illustration, the Board referred to “sunrise to sunset” regulations governing access to protected monuments, stating that such rules may restrict practices like offering Namaz in mosques situated within such sites, while not affecting practices of other religions in the same way.
Counsel
The written submissions on behalf of the AIMPLB were prepared by Senior Advocate MR Shamshad and Advocate Fuzail Ahmed Ayyubi.
