Context: Defending the recently-passed legislation Waqf Amendment Act, 2025, the Central government told the Supreme Court that though Waqf is an Islamic concept, it is not an essential religious practice in Islam.
The Centre asserted that it is the state's duty to ensure that public property is not diverted illegally, and nobody could claim right over public land by using waqf by user principle.
Relevance of the Topic: Prelims: Essential Religious Practice; Right to freedom of religion.
Waqf is not an Essential Religious Practice in Islam
The Central government told the Supreme Court that-
- Waqf, by its very nature, is charity, and any Charity is a part of every religion, but not an essential religious practice of any religion.
- A Muslim who does not create a waqf would not be less Muslim or cease to be a Muslim. Creating a waqf was not mandatory in Islam, neither is it a fundamental right in itself.
The law only focusses on the secular and administrative aspects of Waqf institutions without interfering with essential religious practices or beliefs of the Islamic faith.
What is an Essential Religious Practice?
The essential religious practices (ERP) doctrine governs which religious practices are protected under Articles 25 & 26 of Indian Constitution.
In the Commissioner of Police v Acharya Jagadisharananda Avadhuta (2004): The SC held that-
- In order to determine whether or not a particular practice is an essential part of religion, the test must be whether the absence of the practice itself fundamentally alters the religion.
- If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.
- There cannot be additions or subtractions to such a part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution.
Some cases associated with Essential Religious Practice:
- Commissioner of Police v Acharya Jagadisharananda Avadhuta (2004): The SC held that the Tandava Dance was not an essential practice of the Ananda Marga faith.
- Shayara Bano v Union of India (2017): The SC held that the practice of Triple Talaq is not an essential practice under Islam and could not be offered constitutional protection under Article 25.
- Karnataka High Court (2022) upheld the ban on the wearing of hijab (head scarf) by students in schools and colleges in the State. It held that wearing the hijab is not an essential religious practice in Islam, and is not protected under the right to freedom of religion guaranteed by Article 25.
Articles 25 & 26 of Indian Constitution
Article 25: Freedom of conscience and free profession, practice and propagation of religion.
- All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
- It does not include the right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike.
- These rights are available to all persons- citizens as well as non-citizens. It covers not only religious beliefs (doctrines) but also religious practices (rituals).
- Reasonable restrictions: However, these rights are subject to public order, morality, health and other provisions relating to fundamental rights.
- The state can regulate such practice on grounds of public order, morality and health.
- The state can regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.
Article 26: Freedom to manage religious affairs.
- Every religious denomination or any of its section shall have the following rights:
- Right to establish and maintain institutions for religious and charitable purposes
- Right to manage its own affairs in matters of religion
- Right to own and acquire movable and immovable property
- Right to administer such property in accordance with law.
- Article 26 protects collective freedom of religion. Article 25 guarantees rights of individuals, while Article 26 guarantees rights of religious denominations or their sections.
- Reasonable restrictions: Rights under Article 26 are also subject to public order, morality and health but not subject to other provisions relating to the Fundamental Rights.
Also Read: Waqf Amendment Act 2025