Supreme Court’s Critique of the ERP Doctrine
The Supreme Court delivered a striking observation during the conclusion of the Sabarimala reference. Justice M.M. Sundresh described the ERP doctrine as ‘elitist’, meaning it favours organised, doctrinal religions and marginalises tribal or less‑structured faiths.
Key Developments
- Justice Sundresh’s remark that ERP is elitist was echoed by Senior Advocate K. Parmeshwar, who argued the test creates a hierarchy of religious practices.
- Parmeshwar highlighted that Article 25 and Article 26 protect even non‑doctrinal tribal religions, which ERP often fails to shield.
- Justice B.V. Nagarathna cautioned that ERP may be used as an aid but cannot serve as a decisive test to strike down legislation.
- Parmeshwar cited former CJI Dipak Misra’s observation that Sabarimala lacks distinctiveness, questioning the reliance on ‘novelty’ or ‘textual authority’ for constitutional protection.
Important Facts
The hearing spanned 16 days and covered a broad spectrum of religious‑rights issues, including:
- Temple entry for women (Sabarimala)
- Mosque entry rights
- Parsi women’s religious identity
- Female genital mutilation
- Excommunication in the Dawoodi Bohra community
Parmeshwar argued that the Constitution protects a person’s spiritual pursuit under Article 21. By stripping a practice of protection through ERP, the state effectively dents that identity.
Exam Relevance
Understanding the ERP doctrine is crucial for GS‑2 (Polity) as it touches upon:
- Interpretation of fundamental rights Article 29 and the balance between individual liberty and state regulation.
- Judicial activism versus restraint in matters of religion.
- The role of the judiciary in safeguarding minority rights and preventing majoritarian bias.
Questions that frequently appear in prelims and mains include the scope of ERP, its constitutional validity, and its impact on tribal or indigenous faiths.
Way Forward
For aspirants, the take‑aways are:
- Critically assess whether ERP aligns with the Constitution’s secular ethos or creates a hierarchy of faiths.
- Monitor forthcoming judgments that may refine or replace ERP with a more inclusive test, possibly focusing on the ‘essentiality of activity’ rather than ‘essentiality of religion’ as Dr. Ambedkar envisioned.
- Prepare concise notes on how Articles 25, 26, 21 and 29 interact in jurisprudence on religious freedom.
Future debates will likely centre on redefining protection for non‑doctrinal religions while ensuring that the state does not over‑step into religious doctrine.