What are Essential Religious Practices (ERPs)?
The doctrine of ERPs governs which religious practises are to be protected under Articles 25 and 26 of the Indian Constitution.
The concept of ERPs first came into being with the case: The Commissioner, Hindu Religious Endowments, Madras v Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt(1954) wherein the Supreme Court had initially rejected the arguments of the Advocate General of Madras, who had suggested that the constitutional protection of religious practices be extended only to ERPs.
However, by the time the judgement on the case Durgah Committee, Ajmer v Syed Hussain Ali (1961) was pronounced by the Supreme Court, the court opined that religious practices may sometimes include those that spring from ‘superstition’ or ‘unessential accretion’ and, hence, may not merit constitutional protection.
Hinduism: Numerous Governing Texts
Monotheistic religions often have one book that commands them as to how they may worship. Hindus, however, are pluralistic and consist of many religions, anti-theism, non-theism bound by common dharmā. They have a plethora of texts: the Bhagvat Gita, the 4 ved, over 200 upanishad, about 18 puran, hundreds of agama shastra and even more upa-agamas, some vedic and some non-vedic. Even this is not a full list! Thus, what may be an important practice to one matha may be entirely insignificant to another.
In addition to this, individuals may be aastik (i.e. a believer of the ved), nastik (i.e. a non-believer of the ved), ajñana (agnosticism), chārvāka or lokāyata (materialistic) etc. He may be governed by one of the books mentioned above, multiple ones, or none at all or he may be bound by just orally passed on customs and traditions. Much of Hinduism is not based on scriptural texts because of the way knowledge was passed on orally and practically, through performance of traditional duties.
Thus, characterising what is important and what isn’t, for Hinduism as a whole, or even a matha governed by the all of the texts above except the agama shastra that do not belong to the particular sect in particular, requires immense knowledge that few on a bench, or even in a witness box, may possess. Additionally, saying that a practice is not essential to the Hindu dharmā, because it is not mentioned in the scriptures, would simply be inaccurate and tantamount to destroying long standing customs.
Evolution of Religions
Another important aspect of all religions is that they evolve through exclusions, accretions and syncretism; and while some texts (such as Quran) are forbidden to be changed and mandated to be followed for all believers, Hindu texts have reached their present form through constant writing, re-writing, and losing their audience when they do not keep up with the times. The bursting of firecrackers on Diwali in Hinduism, and on Christmas in Christianity, the use of loudspeakers in Islam etc. are all accretions to these religions.
This brings an important question to light: are religions allowed to change? The answer to this must be an emphatic ‘yes’, because without that, all hope to ever get rid of societal evils caused by religious texts is lost. Even beyond this questions, sometimes religions automatically change when oral customs are passed down multiple generations, such as in Hinduism.
Hence, superimposing the ERP doctrine and judging customs on the scale of time, simply allows no breathing room for religions to change and expect them to remain constant throughout all time, which is not only impractical to expect but also may be detrimental to society.
Limitations of the ERP System and Problems Caused
From the above discussion, three of the most important limitations of the ERP doctrine are very clear:
It must also be clear that the last two issues disproportionately affect Hinduism more than other religions that may be Abrahamic in nature.
The nature of society is to evolve. Similarly, Sanatan Dharmā, which means that which upholds the society eternally, must evolve with time too, and it has constantly done that. To stop the flow of change is to go against the very intention of the ‘living, breathing document’ i.e. the constitution that our ancestors sought to create, and that is actively the case with the doctrine of ERP which restricts the character of society, which is based on dharma, up till only a certain time and, thus, in a way also restricts its character!
It is clear, that in its current state, the doctrine of ERP is disproportionate, biased against Hindus and unsustainable and that it needs a complete overhaul by the Supreme Court.