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Religion is an indispensable part of human existence. Freedom of religion is considered as the third most important civil liberty after the right to life and personal liberty and the freedom of speech and expression. The Indian Constitution guarantees freedom of religion and acknowledges the individual's autonomy in his or her relationship with God. However, the Supreme Court of India, through the creation and continued use of the essentiality test, has tried to reform religion by restricting the scope of this freedom. The judiciary has taken over the role of clergy in determining what essential and non-essential religious practices are. Moreover, the Court has applied the test in an inconsistent manner, repeatedly changing the method of determining essentiality, seriously undermining religious liberty. This Article examines these judgments to demonstrate the adverse impact of the essentiality test on religious freedom.
I.The Case for Religious Freedom
Religion has been at the center of human societal existence since time immemorial.1 Though some scholarship claims certain tribes or civilizations existed without religion,2 it is not a well-accepted view.3 Religion is, and has always been, an indispensable and ineffaceable part of our lives.4 This tenant is especially evident in Indian culture. Man is incurably religious; but Indians most of all.5
Indian society "displays a[] . . . manifest tendency towards an outlook that is predominantly religious."6 Sir Harcourt Butler, in often quoted words, noted that "[t]he Indians are essentially religious as Europeans are essentially secular. Religion is still the alpha, and the omega of Indian life."7 The effect that religion has had on the progress of Indian society is tremendous.8 Therefore, the emergence of India as a secular state in the mid-twentieth century was a remarkable social, political, and religious phenomenon.9 Though religion remains important in India, and still exists in the public sphere, the country has successfully retained its secular character.10 secularism became ideal in religious india due to communalism because the former was understood as an answer to the latter.11 To make secularism acceptable, freedom of religion was guaranteed. 12
This was made possible, in large part, because the framers of the Indian Constitution (the "Constitution") wanted to base society on an understanding that man has an "inward association" with religion.13 It helped that the most conspicuous...