Written by: Shashank Maheshwari6 min readApr 30, 2026 07:54 PM IST First published on: Apr 30, 2026 at 07:54 PM ISTWhen the Supreme Court’s nine-judge Constitution Bench recently resumed hearing the Sabarimala review, Kantaru Rajeevaru v Indian Young Lawyers’ Association, it inherited not just a dispute about a temple in Kerala, but a 70-year-old judicial doctrine that has grown, in the view of many scholars, well beyond the modest purpose for which it was designed. That doctrine is the Essential Religious Practices (ERP) test. The debate now before the Court is one of genuine constitutional complexity, and the arguments on both sides deserve careful attention.The ERP doctrine was born in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt (1954). A seven-judge bench was called upon to decide whether a statutory commissioner could supervise the finances of a monastery, a relatively narrow administrative question. The Court ruled that the freedom of religion guaranteed by the Constitution applied to freedom of both religious belief and practice. To distinguish between the religious and the secular, the Court looked to the religion itself, and noted that the views of adherents were crucial to the analysis of what constituted “essential” aspects of religion.AdvertisementHowever, gradually, the Court started looking into ERP through a different lens. In Sri Venkataramana Devaru v. State of Mysore (1958), the Court moved from deferring entirely to religious communities toward actively examining whether a practice, the exclusion of Dalits from a denominational temple, was essential under Hindu ceremonial law. Justice Venkatarama Aiyar scrutinised scripture and tradition and firmly established the role of the Court to determine the “essential” practise of religion, stating that although the Court will take into consideration the community’s argument on defining what is essential, that by itself will not be considered definitive, thus moving away from Shirur’s “complete autonomy” aspect.Further, in Mohd. Hanif Qureshi (1959), the Court went into the interpretation of the Islamic texts to conclude that the sacrifice of a cow at Bakr-Id was not an obligatory religious act, and therefore not an essential practice under Article 25. Interestingly, Justice Gajendragadkar in Syed Hussain Ali (1962), introduced what can be called a “note of caution” — practices rooted in “superstitious beliefs” and “extraneous accretions” would not be afforded constitutional protection, thus pushing the doctrine of ERP into a new direction.Those who defend the ERP framework argue that this evolution was necessary. Without some judicial capacity to examine the essentiality of a claimed practice, Article 25 would become a blank cheque; any practice, however harmful or discriminatory, could claim constitutional immunity simply by being wrapped in religious garb. This is not an unreasonable concern. The Constitution itself, in Article 25(2)(b), preserved the state’s power to enact laws for “social welfare and reform” and for throwing open Hindu religious institutions of a public character “to all classes and sections of Hindus”. The framers were not indifferent to the possibility that religion could be used to perpetuate injustice.AdvertisementJustice Chandrachud’s concurring opinion in the original Sabarimala judgment (Indian Young Lawyers Association v State of Kerala, 2018) identifies a fundamental problem with how the doctrine has been applied. Article 25(1) of the Constitution, unusually among the rights in Part III, is made expressly subject “to the other provisions of this Part”, meaning Articles 14, 15, and 21 also govern the scope of religious freedom. This textual architecture suggests that the freedom of religion was never meant to exist in isolation from the guarantees of equality and dignity. The right to practise religion cannot, in principle, override the right of women to be free from discrimination.you may likeIt is here that the idea of constitutional morality, discussed at length in Navtej Singh Johar v Union of India (2018), becomes relevant. The Court observed that “constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution” and must act as a check against “the tyranny of the majority”. If the morality contemplated in Articles 25 and 26 is constitutional morality rather than public morality, as Justice Chandrachud argued in Sabarimala, then no religious practice, however widely observed, can be immune from scrutiny on grounds of dignity and equality.The question, then, is not whether courts should engage with religious practices at all, but what standard they should apply when they do. The ERP test, in its current form, asks courts to act as amateur theologians, determining from within the logic of a religion whether a disputed practice is sufficiently central to survive. That exercise is both epistemically fraught and constitutionally misaligned. A more coherent approach would not ask “is this practice essential to the religion?” but “is this practice compatible with the Constitution’s foundational commitments to equality, dignity, and fraternity?”Such a shift would not silence religious communities or subordinate faith to state preference. It would simply insist that the Constitution’s own hierarchy of values, which the framers deliberately constructed, be respected. As Justice Chandrachud observed in Sabarimala, “practices which are destructive of liberty and those which make some persons unequal before the divine must be tested against the anvil of constitutional morality” (Para 17).The nine-judge bench carries a weighty responsibility. The questions before it, the scope of Articles 25 and 26, the meaning of “morality” within them, the interplay between individual rights and denominational autonomy, are among the most consequential in Indian constitutional jurisprudence. However the Court rules, intellectual honesty demands that it reckon plainly with what the ERP doctrine has become, and whether the constitutional values it was once designed to protect are still best served by it.The writer teaches at Jindal Global Law School