Introduction

Constitutional law scholarship in the aftermath of the Sabarimala judgment, like that of Parthasarathy rejects Essential Religious Practices (“ERP”) doctrine and endorses Chandrachud’s concurring opinion in Sabarimala, arguing that courts must adopt anti-exclusion principle. Anti-exclusion invalidates only those practices that exclude individuals in a manner that impairs dignity or denies access to basic goods. This paper accepts such rejection of ERP and a concomitant endorsement of anti-exclusion.

It nevertheless argues that anti-exclusion, as presently articulated, is doctrinally under-specified, especially so in cases involving denominational autonomy under Article 26, particularly priesthood and excommunication. In the absence of a limiting criterion, anti-exclusion risks constitutionalising internal religious inequalities, collapsing the distinction between exclusion from religious authority and exclusion from religion itself. Thus, the paper proposes a harm-centred framework, arguing that invalidation is justified only when exclusion produces independent status-affecting harm.

In this piece, I first, shortly trace the evolution of ERP into a substantive test to show why anti-exclusion should be endorsed; second, read the specific scenario of denominational autonomy with the anti-exclusion framework to highlight its under-specification in the present state; and third, propose a harm-centred framework to remedy such drawback.

From ERP to Anti-Exclusion

ERP was first articulated in Shirur Matt to distinguish religious affairs from secular administration. Over time, it evolved into a substantive test to determine religious authenticity and legitimacy of religious practices; an area where constitutional courts lack institutional competence and legitimacy.

In Durgah Committee and Sastri Yagnapurushadji, the Court distinguished ‘essential’ practices from ‘superstitions’, relying on scriptural intervention rather than evidence of popular religious beliefs. This culminated in Avadhuta, where the Court rejected a practice prescribed by the religion’s founder for being that of a recent origin. ERP, therefore, confers upon judges ‘a power greater than that of a high priest’, enabling courts to invalidate practices they find objectionable.

Anti-exclusion reorients this by shifting the inquiry from religious meaning to constitutional impact. Articles 15(2) and 17 dismantle social exclusion, particularly caste-based denial of religious and civic spaces. Reading religious freedom in isolation from this history risks constitutionalising the aforesaid hierarchies. It remedies ERP’s failure by practising judicial restraint by leaving self-definition to religious communities.

Notwithstanding its strengths, anti-exclusion remains under-specified in denominational authority matters. It relies on expansive notions of dignity and constitutional morality. While persuasive in entry-based claims like social exclusion, it becomes unstable in authority-based exclusions, such as priesthood or internal governance, that do not necessarily impair access to worship or civil life.

Comparative jurisprudence cautions against compelling religious institutions to restructure internal authority absent demonstrable civil harm. (here, here) Without a limiting principle, anti-exclusion risks authorising courts to constitutionalise internal religious inequalities. The task, therefore, is not to abandon anti-exclusion but to discipline it through a harm-centred framework, as developed below.   

Denominational Authority

Textually, Article 26 is not subordinated to other fundamental rights. Denominational rights constitute an independent constitutional guarantee, particularly in matters of internal governance. Syedna Taher case invalidated the State Act prohibiting excommunication for infringing denominational autonomy under Article 26(b). It is clear that framers consciously differentiated Articles 25 and 26, subjecting only the former to other fundamental rights. Any framework that purports to replace ERP must therefore account for this structural asymmetry.  

Priesthood

Priesthood is often centred on gender or lineage. While these restrictions reflect hierarchical arrangements, they do not necessarily deny access to worship or participation. Treating all authority-based differentiation as impermissible would collapse the distinction between access to religious office and to religion itself.

Subramanian Swamy case upheld denominational rights of Podu Dikshitars to manage the Chidambaram temple, reaffirming that Article 26 protects internal religious governance even in temples open to the public. It signals judicial reluctance to adjudicate authority-based claims absent demonstrable harm.

Excommunication

Excommunication in closely knit communities generally results in ostracism and civic exclusion. BP Sinha, J., in his dissent in Saifuddin case analogised excommunication with untouchability, arguing that it undermined equal membership. However, not all excommunication produces such effects. In voluntary religious communities, for instance, exclusion may operate primarily at the level of belief rather than social status. Treating all excommunication as impermissible would erase constitutional distinctions.

The critical element, therefore, is harm, not exclusion simpliciter.

Harm-Centred Reconstruction

Harm, in this sense, refers to impairment of equal participation, or entrenching historically oppressive hierarchies. This is grounded in Part III: Articles 15(2) and 17 do not prohibit differentiation per se but that which disables access to public goods and equal membership. Absent these conditions, harm does not constitute a constitutional injury.

The Framework

A disciplined anti-exclusion framework should satisfy three cumulative conditions:

First, the exclusion must impair equal membership, not merely limit access to internal authority. The issue is not triggered by differentiation as such, but by practices that render certain persons unequal in civic or religious life.

Second, it must affect access to public goods; such denial is distinct from exclusion from internal offices. Where religious institutions function as sites of collective worship or social participation, their denial is distinct from mere exclusion from internal offices.

Third, it must reinforce historically entrenched structures of subordination. The framework is intentionally asymmetrical. It is not formally neutral between all differentiation; it is attentive to India’s specific social context and Constitution’s textual history.

This excludes theological interpretation while preserving denominational authority absent demonstrable harm. This framework ensures that Indian jurisprudence remains attentive to its distinctive history of exclusion.

The Burden

A potential objection to the framework could be that it allows unstructured discretion; however, this is resolved once the burdens are specified. The initial burden lies on the petitioner to establish not merely the existence of exclusion, but also the presence of a status-affecting harm. This requires evidence of denial of access to worship, infringing upon social participation, or other forms of civic disability.

Once such harm is established, the responsive burden arises for the religious denomination invoking Article 26. At this stage, the denomination must demonstrate that the exclusion is confined to internal authority or governance; and that it does not extend to denial of equal membership or access to public religious goods.

Illustration: Brahmin-only Priesthood

ERP enquires whether priesthood restrictions are religiously essential. Such enquiry requires courts to enter theological interpretation and yields unstable results depending on judicial characterisations of scripture and tradition. Plain anti-exclusion, by contrast, risks invalidating such practices merely because they exclude on grounds of caste, conflating the distinction between exclusion from religious authority and exclusion from religion itself.

Harm-centred framework resolves this issue without invoking theological intervention or moral absolutism. While such practice indeed involves exclusion (the first step hereinabove), invalidation is only justified if such exclusion produces independent, status-affecting harm (the second step hereinaobove) such as denial of access to worship or equal participation in religious life. Where no such harm is shown (the third step hereinaobve), restrictions remain within the domain of internal religious authority, presumptively protected under Article 26.

Conclusion

Anti-exclusion correctly identifies the wrong (that is, hierarchical exclusion) but requires harm-based justification to function as a doctrine. Without such classification, it lacks a principled criterion for determining when religious differentiation becomes impermissible. By analysing priesthood and excommunication as distinct doctrinal problems, this piece has illustrated that exclusion from religious authority is not necessarily equivalent to religious membership.

The harm-centred framework completes this link. By tethering intervention to status-affecting harm, it preserves the principled core of anti-exclusion while also respecting denominational authority. Once properly clarified, anti-exclusion becomes capable of guiding freedom of religion jurisprudence beyond the failure of ERP. In this sense, this piece does not negate the interventions of scholars like Parthasarathy; it extends it.  

Author Bio: Divyansh Bora is a second year law student at National Law School of India University, Bangalore. His interests include political and constitutional discourse, international relations, and international humanitarian law.

[Ed Note: This piece was edited by Hamza Khan and published by Vedang Chouhan from the Student Editorial Team.]