SABARIMALA, INDIA, September 27, 2019 (Bar and Bench): The lack of concrete jurisprudence regulating the relationship between religion and the law has created an intractable lacuna in the social and legal ethos of India. Although the Supreme Court, through various opinions has helped curb this uncertainty, the ambiguity with respect to the interference of the courts with religion may not be easy to circumvent. One year since the Supreme Court’s verdict in the Sabarimala matter, we take a look at various aspects surrounding the issue of balancing religious rights with other rights.
The Essential Religious Practice (ERP) Test, used to determine inviolable aspects of a religion, favors an interventionist attitude by courts. This is because the test enables judges to become prophets and determine what falls within the contours of a religion and what does not. This, in fact, is a discretionary test which leads to inconsistent outcomes in as much as it seeks to rationalize religion and purge it of superstitions. Against the backdrop of the sole dissenting opinion in the Sabarimala case, we seek to suggest that the social and cultural practices of a community with a clearly “identifiable set of beliefs, customs and usages, and code of conduct which are being practiced since time immemorial, and are founded in a common faith”, cannot be compromised or interfered with on the mere basis of their essentiality, which in turn is a judge-centric approach.
Much more of this technical legal article at “source” above.