This article explores how the Supreme Court of India, in applying the judicial doctrine of ‘essential practices’, has embarked on a dangerous exercise of determining whether a particular religious practice is significant enough to warrant constitutional protection under Article 25(1) or not. In tracing a string of judgments, it shows how courts have been guilty of making ill-founded observations about the validity of religious practices, thereby detrimentally affecting religious groups and minorities. Due to this constitutional transgression, the question of ‘what is essentially religious’ turned into the question of ‘what is essential in religion’. The court has neither the right nor the expertise to decide if the religious practice indeed is ‘essential’. State intervention is warranted only based on constitutionally stipulated restrictions of ‘public order’, ‘morality’ and ‘health’. The cardinal rule ought to be of limited state intervention but maximum protection.
This article explores the extent of state regulation in aided minority educational institutions. It analyses the decision in the Sk. Md. Rafiq, which goes contrary to the settled law of limited state interference. In matters of selection and appointment of teachers, the state can prescribe only certain criteria to achieve ‘educational excellence’ in the ‘national interest’. However, the impugned statutory provisions have virtually eroded the autonomy that the management board of the institution hitherto enjoyed. The ripples of this decision are far-reaching, given this unprecedented judicial affirmation of virtually unbridled state intervention. State control is necessary to ensure that such institutions maintain basic standards in imparting education. It cannot pave the way for a situation where the board is bound by state recommendations. A moderate state role in such institutions is essential for the preservation of the minority character of institutions under Article 30(1) of the Indian Constitution.