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REVIEW ESSENTIAL PRACTICES DOCTRINE AS RELIGIOUS

EXPERTISE CANNOT BE AN ELIGIBILITY CRITERIA FOR JUDGES
The book GOVERNMENT RULES HINDU TEMPLES based on the dissertation submitted by the author Sri
C.S. Rangarajan in partial fulfillment of the requirement for the award of research degree of Master of Law
[Constitution Law] of Osmania University with foreword by Justice Rama Jois has strongly recommended based on
deep research of past Supreme Court judgements and its impact on Religious Freedom of Hindu Devotees for a
review of the ESSENTIAL PRACTICES DOCTRINE followed by the Supreme Court.

It has reiterated the main criticism of the Essential Practices Doctrine articulated by Shri Rajeev Dhavan and Shri
Fali Nariman Senior Advocates Supreme Court in their essay The Supreme Court and group life : Religious
Freedom minority groups and disadvantaged communities published as part of the Book titled Supreme but not
infallible that the Judges have assumed much greater power. Any error in judgement means irrevocable damage to
Religious Freedom as substantiated with data in the Book GOVERNMENT RULES HINDU TEMPLES
With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological
authority to determine which tenets of a faith are essential to any faith and emphatically underscored their constitutional
power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious
pontiffs possess this kind of power and authority (Dhavan and Nariman 2000)
Judges are now endowed with a three step inquiry to determine, in tandem, whether a claim was religious at all, whether it
was essential for the faith and, perforce, whether, even if essential, it complied with the public interest and reformist
requirements of the Constitution (Dhavan and Nariman ).

The Essential Practices Doctrine has also been widely criticized for its use in declaring Jain ritual of Santhara as
unlawful. It is to be noted that the Hindu Religious Endowments Commission headed by Sri C.P. Ramaswamy Iyer
an eminent jurist has noted in its report in 1962 itself the change in the language of the Supreme Court judgement
from what was defined in the Shirur Mutt case to Dargah case and has actually suggested a National Tribunal with
exclusive original jurisdiction in this matter.

Clearly the way the Essential Practices Doctrine is being worked by the Supreme Court is not as per the wisdom of
the commission with enormous powers to the Judges who are not experts in the Religious domain and therefore the
conclusions could err with disastrous consequences. In fact these issues are not even dealt by Constitution Benches
but by Benches of 2 of 3 Learned Judges in violation of the spirit of Art 145(3)
In view of the fact that eligibility criteria of Judges is now before the Constitutional Bench dealing with
improvements to the Collegium system and given the fact that expertise in Religious domain which is needed
for proper application of the Essential Practices Doctrine cannot be added as an eligibility criteria the only
sound course for the Supreme Court is to review the application of the Essential Practices Doctrine keeping
in view the recommendation of the Commission so as to bring it in harmony with Shirur Mutt case. Till such
a time this review is undertaken it should be made clear that the application of the doctrine itself in any case
should be by only Constitutional Benches of the Court under Art 145(3) as a safeguard and also keeping in
view the strength of five members suggested for the Tribunal by the Commission.
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