Inessential practices: charting a non-normative future for Indian religion jurisprudence

ABSTRACT For religious disputes, Indian courts apply the essential practices doctrine, granting constitutional protection only to practices that are “essential to the religion.” This test soon acquired a normative character, sometimes excluding “superstitious” practices. However, some scholars believe that courts can evaluate essentiality without making normative judgements. We suggest that this distinction between descriptive and normative essentiality tests is deceptive. Instead, we argue that evaluations of essentiality are cryptonormative (i.e. even evaluations that are not facially normative possess a normative character). Recent Supreme Court judgements indicate that it might depart from the essential practices doctrine. If it does, courts should instead evaluate the sincerity of the claimant and the plausibility of the claim and then balance religious freedom against the state interest. However, adjudicative norms, including limitations posed by public interest litigation, impede a non-normative inquiry. We suggest the beginnings of an alternate approach that might help overcome those challenges.