♤ Surrounding debates:

o Essentiality vs right to freedom of religion: The Supreme Court in ‘Ratilal Gandhi vs the

State of Bombay’ (1954) acknowledged that “every person has a fundamental right to

entertain such religious beliefs as may be approved by his judgment or conscience”.

However, the Essentiality test impinges on this autonomy.

 The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and Adultery (2018) judgments.

o Issue of Judicial overreach: The doctrine has been criticised by several constitutional experts as it has tended to lead the court into an area that is beyond its competence, and given judges the power to decide purely religious questions which should be decided by the theologians.

♤ Issues with the conception: The concept of providing constitutional protection only to those elements of religion, which courts consider “essential” is problematic. Such an approach assumes that one element or practice of religion is independent of the others.

♤ Arbitrariness in its application: Over the years, courts have been inconsistent on this question — in some cases they have relied on religious texts to determine essentiality, in others on the empirical behaviour of followers, and in yet others, based on whether the practice existed at the time the religion originated.

♤ Group rights vs Individual Rights: The Supreme Court has itself acknowledged that “every individual has a fundamental right to entertain such religious beliefs”. However, the essential practices test is antithetical to the individualistic conception of rights. Under the test, the court privileges certain religious practices over others, thus protecting the group’s rights.

Thus, there should be a balance in terms of determining religious freedom as well as constitutional morality while dealing under Article 26.