I IntroductionFootnote *
Not so very long ago, scholars spoke quite freely of secularism as the defining mode of religion–state relations in Euro-American countries. “Secularism as a political doctrine,” wrote Talal Asad, “arose in modern Euro-America.”Footnote 1 Similarly, Charles Taylor observed that “[i]t is frequently claimed by … societies outside the European cultural zone, that secularism is an invention of this civilization,” before adding that, “in fact, there is truth in the claim that secularism has Christian roots.”Footnote 2 Agreement between scholars as distinct in disciplinary orientation and theoretical commitments as Asad and Taylor – even agreement that is a prelude to highly differentiated analysis – bears noting. It underscores the extent to which secularism has been viewed as both reflecting and reinscribing a fundamentally Euro-American ethos. Secularism, in this analysis, is the modern Euro-American approach to religion–state relations.
This chapter asks whether there is a comparable Inter-Asian approach to religion–state relations. Can we identify principles or perspectives in the management of religious life that are shared among AsianFootnote 3 countries? Is there evidence of Asian legal actors engaging with one another in a way that produces a shared conceptual vocabulary even if it also produces context-specific arrangements? Regardless of the answers to these questions, the very process of asking them does the important work of shifting comparative scholarship away from its unspoken but powerful assumption that comparison occurs between Euro-America and its others. Moreover, whereas some areas of comparative scholarship have begun to consider interactions between and among Asian jurisdictions, the study of religion–state relations and secular governance has largely retained an explicit or implicit emphasis on comparing Asian experiences with those of Euro-America.
In the rest of this chapter, I trace the intra-Asia travels of a legal doctrine first developed by the Indian Supreme Court. The Essential Religious Practices (ERP) Doctrine is one of the Indian Supreme Court’s most well-known creations and, arguably, the most well-known element of its expansive and widely discussed religious freedom jurisprudence. By following the ERP Doctrine into other Asian jurisdictions, I am able to construct the best-case argument for the existence of an Inter-Asian approach to religion–state relations. The chapter uses two jurisdictions where the ERP Doctrine has, arguably, been influential – Malaysia and Sri Lanka – to show that there has indeed been significant conceptual migration within Asia with regard to religious freedom jurisprudence.Footnote 4 At the same time, I argue that we should not mistake cross-pollination for convergence because there are important differences in the theoretical networks and sociopolitical contexts within which the ERP Doctrine has traveled.
Sections II–IV provide a primer on the ERP Doctrine. Section II establishes a constitutional context for the Doctrine’s articulation by identifying and explaining conflicting impulses in India’s national charter. Following this, Section III describes the Doctrine’s articulation via an Indian Supreme Court decision issued soon after independence and surveys some of the most prominent instances in which ERP analysis has been used. Finally, Section IV discusses criticism of the ERP Doctrine, which is both long-standing and escalating in intensity. Section V introduces the ERP Doctrine’s manifestations in Malaysia and Sri Lanka through a sampling of influential cases. After describing both the Indian origins and intra-Asian movements of the ERP Doctrine, Section VI evaluates the Doctrine’s regional influence. As I argue, although the ERP Doctrine does not signal convergence in the form of an Inter-Asian approach to religion–state relations, it does allow us to trace a flow of scholarly and jurisprudential ideas that is Asian in both origin and destination.
II Conflicting Constitutional Impulses
The ERP Doctrine was first articulated in 1954 by the Indian Supreme Court, just four years after the country’s new Constitution took effect. The Doctrine responded to a puzzle set in place by the Constitution’s simultaneous espousal of two very different – indeed, mutually conflicting – attitudes toward citizen–state relations.Footnote 5 Any explanation of the ERP Doctrine thus begins not with the decision that announced it, but with the Constitution that necessitated it.
On the one hand, the Indian Constitution enthusiastically endorses an active, even a transformative, role for the state vis-à-vis society. For instance, members of the Constituent Assembly worried that “left to itself, religion could permit orthodox men to burn widows alive on the piers [sic] of their deceased husbands … coerce indulgence in social evils like child marriage or even crimes like human sacrifice … or relegate large sections of humanity to the sub-human status of untouchability.”Footnote 6 Accordingly, the Indian Constitution grants immense powers to the state, and particularly to the courts responsible for interpreting the nation’s charter, so that they may actively “reshape key structures of the social order.”Footnote 7 Most relevantly for this chapter, Article 25(2)(a) empowers the state to regulate or restrict “any economic, financial, political, or other secular activity which may be associated with religious practice.” This is a vision of Indian democracy founded on an understanding of sovereign authority that is shared or divided between citizens and the state.Footnote 8
At the same time, India’s Constitution espouses traditional liberal protections like “freedom of conscience and [the] free profession, practice and propagation of religion.” While the liberalism encoded into the Constitution is undoubtedly overshadowed by the same document’s transformative impulses, it is not quite correct to say – as some commentators have done – that this liberalism is “only … half-hearted.”Footnote 9 On the contrary, and despite the considerable authority accorded to them, state actors at federal and provincial levels, and belonging to legislative and judicial entities, have regularly held themselves back.Footnote 10 Indeed, few things exemplify this so well as the ERP Doctrine itself. This countervailing impulse reflects a conventional vision of democratic governance where sovereignty is wholly vested in citizens and merely exercised on their behalf by their representatives.
Elsewhere, I have described these two understandings of democratic sovereignty – one that accords parity to the state, one that prioritizes the people – as ideally existing in a state of “dynamic equilibrium.”Footnote 11 Here, however, my focus is on the mechanics of maintaining that equilibrium. How is a court meant to balance the state’s prerogative to transform society with, as it were, society’s prerogative to remain untransformed? The ERP Doctrine represented both an early acknowledgment of the tension between these two constitutionally embedded visions of citizen–state relations and an attempted framework for grappling with it.
III ERP
The opinion responsible for the ERP Doctrine, Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,Footnote 12 was prompted by two relatively recent developments: the Indian Constitution, which went into effect in 1950, and an elaborate and powerful regulatory apparatus created by Madras state for the governance of Hindu institutions. That regulatory infrastructure, the Hindu Religious Endowments Board, was the latest in a long line of efforts to formalize state authority over Hindu institutions in southern India, ostensibly in the interests of better management.Footnote 13 The latest version of this regulatory infrastructure (headed by the “Commissioner” named in the case citation) had moved to displace the petitioner, who was the superior, or matadhipati, of a Hindu monastic establishment (or math, anglicized to “Mutt” in the case citation). The state argued that the matadhipati was incapable of responsibly managing his institution’s finances, as evidenced by the math’s mounting debts, while the matadhipati responded that the state’s intrusion amounted to a violation of the constitutional rights newly accorded to him and the community he led.
The ERP Doctrine emerged through the Court’s discussion of the matadhipati’s religious freedom rights under Article 25. The State of Madras emphasized the importance of Article 25(2)(a), which empowered the state to regulate or restrict “any economic, financial, political, or other secular activity which may be associated with religious practice.” But this oversimplified matters in the eyes of the Court because, “[i]n the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”Footnote 14 In this original formulation, the ERP Doctrine was a straightforward application of the “divide and choose” principle: society would first determine what was essential, and the state would subsequently choose the rest as constituting its zone of authority. The Doctrine, in other words, was a check on the state’s Article 25(2)(a) authority over religion – which, itself, was meant to serve as a check on religion’s authority over social life.
The ERP Doctrine was not just a landmark judicial innovation because of the Court’s willingness to draw lines – or, more correctly, to allow others to draw lines – between essential and nonessential aspects of religion. It also signaled the Indian Court’s willingness to break with other Common Law models of religion–state relations. It is true, the Court noted, that in the American and Australian contexts, “the right to freedom of religion has been declared in unrestricted terms without any limitation whatsoever”Footnote 15 – but that was not the model chosen by India’s Constituent Assembly. Not only had the framers of India’s Constitution carved out “economic, financial, political, or other secular activity … associated with religious practice” as appropriate zones of state authority, but they had also imposed a generalized limitation on the individual right granted by Article 25 by declaring that it was “[s]ubject to public order, morality and health and to the other provisions of this Part.” In other words, in India, religious activity was subject to state regulation to the extent that it did not concern anything deemed “essential,” and – even if deemed essential – religious activity could be curtailed in the name of “public order, morality and health” (POMH) as well as other fundamental rights. Consistent with the idea of sovereignty that is shared between citizens and the state, this constitutional framework made it impossible for the state to avoid playing an authoritative role in religious life.
However, as Shirur Mutt also makes clear via its articulation of the ERP Doctrine, the state’s role was not without its own limitations. By declaring society’s authority over determinations of “essentiality,” the Court also acknowledged the idea of citizen sovereignty, and of the citizenry’s ability to declare zones of autonomy. “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, [or] that periodical ceremonies should be performed in a certain way,” observed the Court, then “all these would be regarded as parts of religion.”Footnote 16 Nothing would have been easier than to declare that what was off-limits to state regulation was itself for the state to decide – to articulate, as I have elsewhere called it, a “judicial preferences”Footnote 17 doctrine. (Indeed, as Section IV explains, a “judicial preferences doctrine” is what the ERP has largely become.) In its original articulation, however, the Doctrine was meant to express the continued importance of citizen autonomy despite the state’s powerful role in shaping religious life, and it did this by granting to citizens the ability to designate a religious practice as “essential.”
IV Critiquing Essential Practices
Since it was handed down, Shirur Mutt has been cited and analyzed hundreds of times – not all of them approvingly. In this section, I describe two prominent lines of critique: one concerning the substance of the ERP Doctrine and the other concerning who is responsible for implementing it. Both critiques are justifiable given what the Doctrine has become over the course of its almost seventy-year-long lifespan. However, as I also show, the features that critics find most problematic are not inescapable elements of the Doctrine as originally articulated.
The most common substantive critique of the ERP Doctrine centers on a minor terminological shift with momentous consequences. As originally articulated in Shirur Mutt, the Doctrine granted constitutional protection to any practices that were essentially religious. Put differently, practices that received this protection were fundamentally religious in character and cohered with POMH and other fundamental rights. Those that remained unprotected concerned “economic, financial, political, or other secular activit[ies] … associated with religious practice.” However, almost immediately after its articulation, beginning in the late 1950s, the ERP Doctrine underwent an important transformation. No longer would it distinguish between religious and nonreligious activities; instead, courts began to use it to distinguish activities that were essential to a religion from those that were nonessential. Under this new formulation, it would no longer be enough for a practice to be essentially religious and consonant with POMH and other fundamental rights. Instead, to receive constitutional protection from state regulation and reform, a religious practice would have to be both these things and also be essential to the religious community in question.
Essentiality, moreover, came to be defined stringently: as that which defines the core of a religion so profoundly that, without it, “a religion will be no religion.”Footnote 18 Perpetual observation, written documentation, and doctrinal necessity became nonnegotiables for ERP status.Footnote 19 These expectations would be difficult to meet within the context of any faith tradition, but they are arguably impossible within Hinduism given its absence of centralized ecclesiastical hierarchy and complicated (not to mention colonially transformed) relationship with written texts. What appeared to be a relatively minor shift from adverb to adjective thus in fact imposed a severely heightened burden on religious persons and communities seeking to retain some autonomy from the state. Furthermore, this substantive shift in the ERP Doctrine was no accident of Common Law jurisprudence, and it was not produced over the course of generations: on the contrary, it is attributable to a small, tightly clustered handful of cases.Footnote 20
The second prominent critique of the ERP Doctrine is centered on the question of who makes the determination of essentiality – a core element of the original Shirur Mutt formulation. Following Devaru, a handful of cases issued by Justice P.B. Gajendragadkar largely established that the Court’s role in ERP analysis equaled or rivaled that of the religious community itself. In Durgah Committee v. Hussain Ali, Gajendragadkar declared that even practices viewed as religious by the community itself “may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.”Footnote 21 Since, obviously, the community could not be depended upon to distinguish between “religious” and “merely superstitious” elements, it went without saying that the Court would have to perform this important function. In Shri Govindlalji v. State of Rajasthan, Gajendragadkar acknowledged that “sometimes practices, religious and secular, are inextricably mixed up” but was confident in the Court’s ability to separate them.Footnote 22 And in Shastri Yagnapurushdasji (better known as the Satsang Case), Gajendragadkar emphatically dismissed the Satsangis’ own assessment of their community as being independent of Hinduism.Footnote 23
The ERP Doctrine has thus gone from being a test to identify essentially religious practices using the judgment of believers to being a test that identifies essential religious practices using the judgment of the courts. In its original formulation, it was intended to be a check on the state’s power to reform and regulate religious life – an acknowledgment of citizen sovereignty in the face of immense state authority. In its current and long-standing format, however, it merely reinforces the state’s power over religious life by granting courts functionally unlimited power to define religion.Footnote 24
Notwithstanding persuasive arguments about the logical “impossibility of religious freedom,”Footnote 25 wherever the state must define religion in order to keep out of it, the ERP Doctrine as it has been transformed by the Indian Supreme Court renders the very idea of religious freedom laughable. For this reason, the Doctrine has attracted widespread and vehement criticism, with commentators remarking, for instance, that “the problems with the ERP test are so stark and clear,”Footnote 26 that “[t]his doctrine has restricted religious freedom, particularly with respect to minority groups and non-mainstream Hindu sects,”Footnote 27 and that “judicial adventurism” facilitated by the Doctrine “has resulted in invidious outcomes based on absurd canonical interpretations.”Footnote 28 Even the most generous observers cannot help but acknowledge that the Doctrine has seemingly come to effectuate the opposite of its stated intent, inasmuch as it represents “the Court’s attempt to discipline and cleanse religion or religious practices that are seen as unruly, irrational, and backward by putting the state in charge of places of religious worship.”Footnote 29
Despite these justifiable critiques, the ERP Doctrine remains one of India’s most well-known jurisprudential innovations – and it is not hard to see why. As originally conceived, the Doctrine sought to balance classically liberal impulses (religious freedom) with recognizably postcolonial concerns (social reform and state-building). Faced with dueling models for religion–state relations, the Doctrine – like the Constitution that inspired it – sought to negotiate a third way that encompassed both models in a state of dynamic equilibrium. Additionally, in its original formulation the Doctrine purported to give courts a path to objectively measuring and delimiting a famously subjective area of behavior. While the Shirur Mutt articulation perhaps understated the extent to which judicial perspectives would necessarily inform the analysis, it also sought to give preeminence to non-state actors without completely relinquishing state involvement. Small wonder, then, that the creative framework of the ERP Doctrine has traveled beyond India’s borders into other Asian courts.
V ERP Elsewhere in Asia
Malaysia and Sri Lanka share characteristics with India and with one another that are particularly salient in the context of religious freedom jurisprudence.Footnote 30 All three declared their independence from British colonial rule in the middle of the twentieth century: India in 1947, Sri Lanka in 1948, and Malaysia in 1957. All three nations became elective constitutional states: India and Sri Lanka transitioned, with varying (and still varying) levels of success, to electoral democracies, while Malaysia adopted an elective monarchical form of government. Demographically, despite considerable differences in size and composition, all three countries have a dominant religious community as well as significant minority communities. Moreover, many of these communities overlap: Hindus form a majority (80 percent) in India and minorities of varying size in Sri Lanka (13 percent) and Malaysia (6 percent), while the same applies to Buddhists in Sri Lanka (70 percent) compared to Malaysia (20 percent), and to Muslims in Malaysia (61 percent) compared to India (14 percent) and Sri Lanka (10 percent).
However, these same numbers show that the specifics of majority–minority divisions differ across the three countries. So too do the ways in which religious identity, religious freedom, and religion–state relations are articulated by each country’s constitution. Since 1976, India’s Constitution has referred to the country as a “secular” state, and there has never been a formally established religion – although Hinduism effectively receives unique treatment and is indisputably dominant. Sri Lanka’s 1978 Constitution (its third since independence) explicitly accords “the foremost place” to Buddhism and charges the state with “protect[ing] and foster[ing] the Buddha Sasana”; however, the same Constitution also guarantees freedom of religion and conscience (Article 10) as well as the freedom of religious association (Article 14(1)). Malaysia goes further still, noting that “Islam is the religion of the Federation” (Article 3(1)), which makes it the only one of the three to have an established faith. However, the Malaysian Constitution also guarantees religious freedom to individuals as well as to groups (Article 11(1) and (3)). As the rest of this section shows, these social and legal distinctions ensure that the relatively clear influence of Indian ERP Doctrine within Malaysian and Sri Lankan religious freedom jurisprudence does not quite rise to the level of convergence.
A. ERP in Malaysia
Malaysia’s ethnic and religious diversity is pronounced. Along religious lines, a Muslim majority of roughly 61 percent exists alongside significant Buddhist (20 percent), Christian (9 percent), and Hindu (6 percent) minorities. Likewise, an ethnic Malay majority of approximately 62 percent exists alongside significant ethnic Chinese (21 percent) and Indian (6 percent) minorities. The presence of more than one sizable religious minority makes the Malaysian context similar to the Indian one, as do the specific religious communities that are most populous in each country. However, religious identity in Malaysia is melded together with ethnicity in a way that does not easily translate to India. Sometimes this conflation of ethnic and religious identity is encoded into law, as with the constitutional definition of what it means to be Malay,Footnote 31 while in other circumstances, as with the assumption that all ethnic Indian Malaysians are Hindu, it is largely social practice.Footnote 32
Legally, too, Malaysia both shares strong similarities with India and diverges in meaningful ways. Beyond their rootedness in the Common Law, both countries share certain constitutional commitments – and even some constitutional prose. Both constitutions envision a religiously plural, non-theocratic nation: Article 25(1) of the Indian Constitution declares that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion,” while Article 3(1) of the Malaysian Constitution ensures that all religions “may be practised in peace and harmony in any part of the Federation.” Going further, Article 26 of the Indian Constitution empowers every religious denomination or section thereof to “establish and maintain institutions for religious and charitable purposes,” to “manage its own affairs in matters of religion,” to “own and acquire movable and immovable property,” and to “administer such property in accordance with law.” Article 11(3) of the Malaysian Constitution, meanwhile, authorizes every religious group to “manage its own religious affairs,” to “establish and maintain institutions for religious or charitable purposes,” and to “acquire and own property and hold and administer it in accordance with law.”
However, there are important differences in the way each document treats religious identity and behavior. The Malaysian Constitution ties Malay ethnicity with Muslim religious identification in a way that the Indian Constitution does not do for any ethnic or language affiliation. Additionally, Article 3(1) of the Malaysian Constitution explicitly envisions a special status for one religion: “Islam is the religion of the Federation.”Footnote 33 To be sure, there are compelling arguments to be made that the text of India’s Constitution exhibits favorable bias toward Hinduism,Footnote 34 and there are even more reasons to think that the growing saffronization of Indian politics is finding its way into constitutional interpretation. Nevertheless, it remains the case that the Indian Constitution does not formally identify a state religion and affirmatively embraces a secular system of governance.
The ERP Doctrine made its inaugural appearance in Malaysia via the Court of Appeals’ decision in Meor Atiqulrahman bin Ishak v Fatima binti Sihi (henceforth, the “Serban Case”).Footnote 35 There, the principal of a government school had expelled three male primary school students who insisted, in violation of school rules, on wearing a turban (serban) as part of their religious practice. The students won in the initial round of litigation. In the course of overturning that decision, the Court of Appeals explicitly looked to Shirur Mutt and the line of cases it generated – in fact, it even adopted the narrowed post-Devaru articulation of the ERP test. The key question, the Court declared, was “whether the wearing of a serban is an integral part of the religion of Islam” and, unfortunately, “[t]here was not a shred of evidence before the learned [lower court] judge confirming that the wearing of a serban is mandatory in Islam and is therefore an integral part of Islam.”Footnote 36
When the students appealed to Malaysia’s apex court, the Federal Court, it also relied on ERP analysis, albeit under the new nomenclature of integral practice analysis.Footnote 37 However, the Federal Court went much further by stating that the extent of the prohibition (partial versus total) was a relevant consideration in determining its constitutionality. So too was the motivation behind the prohibition: Malaysia, the Federal Court remarked, is “multi-racial, multi-cultural, multi-lingual and multi-religious” and “we cannot ignore the educational system that had helped to mould the minds of Malaysian boys and girls to grow up as Malaysians.” The individuals in charge of that educational system “should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.”
Although the Federal Court’s interpretation of the ERP Doctrine seemingly speaks in the language of secular universalism, commentators have with good reason cautioned against viewing it this way.Footnote 38 Subsequent deployments of the Federal Court’s modified ERP analysis have worked at cross-purposes with the idea of “multi-racial, multi-cultural, multi-lingual and multi-religious” Malaysia articulated in the Serban Case. For instance, in the 2013 “Kalimah Allah” opinion, a Malay-language Catholic newspaper challenged a ministerial order proscribing it from referring to the Christian god using the word “Allah.” The Court of Appeal overturned a lower court ruling favoring the Church partly on the grounds that, despite ample evidence of Malay Christians using “Allah” to refer to their god, doing so was not an integral – that is, mandatory – element of their faith.Footnote 39 Notably, another line of reasoning that seemed particularly persuasive to the Court was the idea that “the purpose and intention … of the words: ‘in peace and harmony’ in art[icle] 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam.”Footnote 40
As both the Kalimah Allah and Serban cases suggest, and as previous commentators have noted,Footnote 41 the ERP Doctrine responds to a different tension in Malaysia than it does in India. In the Indian context, ERP analysis was originally intended to balance competing constitutional impulses regarding the relationship between citizens of any faith and the state. Article 25(1) provided a relatively conventional grant of religious freedom, while Articles 25(2)(a) and 25(2)(b) counterbalanced that freedom by empowering the state to intervene in religious life. The ERP Doctrine mediated between the two by empowering non-state actors to delimit the boundaries of state intervention – subject, of course, to the POMH limitation and other rights. In Malaysia, on the other hand, the ERP Doctrine serves to negotiate the relationship between a religion, Islam, that is granted constitutional primacy, and a state that is directed to respect the existence and contours of other faiths. Consequently, while the language and pattern of Malaysian ERP analysis are easily recognizable as Indian in origin, the purpose of engaging in that analysis is decidedly different: inviting – and resisting – an established religion.
B. ERP in Sri Lanka
The well-known antagonism between Sri Lanka’s Sinhala and Tamil factions has often overshadowed the country’s ethnic and religious diversity. In addition to the ethnic Sinhalese who comprise an overwhelming majority of the population (roughly 75 percent) and Tamils, whether Sri Lankan or Indian, who form the largest minority (15 percent), there is also a sizable Sri Lankan Moor population (9 percent). Religious diversity is even more pronounced, with Buddhists constituting a large majority (70 percent) and Hindus the largest minority (13 percent), but with sizable Christian and Muslim populations as well (around 7 percent and 10 percent, respectively). This means that Sri Lanka, like India and Malaysia, has more than one sizable religious minority. At the same time, and somewhat like the Malaysian case, religion and ethno-linguistic identity overlap in Sri Lanka with respect to the majority Sinhala Buddhist community in a way that does not easily translate to the Indian context.
Like Malaysia, Sri Lanka also shares strong legal connections with India. These include a shared Common Law heritage and, in both of Sri Lanka’s republican constitutions (1972 and 1978), a shared commitment to a religiously plural, non-theocratic nation. Article 10 of the Sri Lankan Constitution resembles Article 25(1) in the Indian context, inasmuch as it guarantees “freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.” Article 14(1), meanwhile, provides individuals with “the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching.” However, there are meaningful points of divergence. Article 9, the only article in the “Buddhism Chapter” of the 1978 Constitution, declares that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana.” Article 10, meanwhile, differs from its Indian counterpart in that it does not explicitly protect the ability to “profess and propagate” one’s religious beliefs, and there is no group right that is comparable to India’s Article 26 or Malaysia’s Article 11(3).
More relevantly, however, Sri Lankan jurisprudence on the Buddhism Chapter is relatively sparse, unlike the voluminous case law engaging with India’s religious freedom provisions that began developing soon after independence. The relative scarcity of Article 9 jurisprudence, which is likely owing to several distinct infrastructural and political factors,Footnote 42 means that some of the most frequently discussed cases are not only many decades old, but also involve contestations over the 1972 Constitution rather than the one currently in force. That earlier Constitution also contained a “Buddhism clause” in Article 6, and, with one important exception,Footnote 43 the language of the two constitutions is identical. Consequently, these earlier cases are illustrative of the way ERP analysis has been influential in Sri Lanka: far more subtly than in Malaysia, and without direct citation to Shirur Mutt or other Indian ERP case law, yet unmistakably present just below the surface.
In an early case decided under the 1972 Constitution, Sri Lanka’s apex courtFootnote 44 was asked to assess the constitutionality of a statute, the Pirivena Education Bill, that increased government authority over the schools (pirivenas) where most Sri Lankan Buddhist monks were educated. The petitioners included leaders of prominent lay Buddhist organizations as well as senior Buddhist monks and a senior civil servant. They argued that the Pirivena Bill ran afoul of Article 6 because it involved an impermissible intrusion of secular state authority into the administration of Buddhist institutions: The state was not protecting Buddhism, the petitioners maintained, but subordinating it to itself. The Court disagreed, holding that “Buddhist schools were not, in fact, part of Buddhism.”Footnote 45
In another decision handed down just weeks before the 1978 Constitution would be ratified, the Supreme Court of Sri Lanka was asked to reject the application of a Buddhist monk who had earned a law degree and wished to enroll as an attorney. The petitioners in Sumana Thero were many of the same lay Buddhist organizations who had approached the Court in the Pirivena Bill Case. They argued, once again, that the state’s constitutional obligation to protect Buddhism required it to remain aloof from the internal workings of Buddhist religious life – but, this time, they were opposed by other actors also claiming to speak on behalf of Buddhism, including the monk’s own monastic superiors. Again, the Court rejected the petitioners’ arguments, declaring that the ultimate arbiters of proper monastic conduct ought to be the prelates of an individual monk’s religious order rather than the state acting through its judicial actors.
The reasoning in Sumana Thero and the Pirivena Bill Case both reflected elements of the ERP Doctrine. In the Pirivena Bill Case, the Court declined to invalidate state action regulating religious institutions on the grounds that the regulation of those institutions neither clashed with Article 6’s directive to protect Buddhism nor with Article 18 of the 1972 Constitution, which granted individuals the “freedom to have or to adopt a religion or belief of his choice, and the freedom … to manifest his religion or belief in worship, observance, practice and teaching.” In the Court’s view, the regulation of Buddhist schools neither worked at cross-purposes with the protection of Buddhism nor was connected closely enough with the freedom to “manifest” one’s religious beliefs via, among other things, teaching. In Sumana Thero, the Court declared that the objections of senior Buddhist prelates, which represented “the only reliable evidence” that a monk could not also be an attorney, could not override the fact that “there is no such rule in the Vinaya [Pitaka]” – namely, the religious code governing monastic life. Put differently, according to the doctrines of the community itself, there was no necessary tension between being an ordained monk and being an attorney.
Although Shirur Mutt and the phrase “essential practices” appear nowhere in either majority opinion, their influence, and the influence of Indian constitutional law more generally, is hard to miss. The dissenting judge in Sumana Thero, Justice Wanasundara, followed what was, by this time, standard practice at the Indian Court, when he decided to “go to the original source and try to ascertain what the Buddha has actually said on these topics.”Footnote 46 He concluded, on the basis of this exegetical foray, “[t]hat a monk’s life, as ordained by the Buddha, in its pure form, is incompatible with lay life” – adding that this incompatibility “would be apparent to anyone even having a little acquaintance with the Dhamma.”Footnote 47 Meanwhile, the majority in the Pirivena Bill Case engaged at length with Articles 25 and 26 of the Indian Constitution in order to distinguish them from the provisions of the 1972 Constitution. Not only did the Sri Lankan Constitution contain no protection for the propagation of religion, it also contained no equivalent to Article 26’s group rights. Absent such an explicit provision of group rights, the connection between the state’s regulation of pirivena schools and the right that did exist in the Sri Lankan context – to “manifest” one’s religion through “teaching” – was too tenuous to warrant constitutional protection. Other landmark cases involving the Buddhism Chapter of the 1978 Constitution, perhaps most notably In Re Thirteenth Amendment,Footnote 48 confirm the extent to which Sri Lankan religious freedom jurisprudence is in conversation – if not in agreement – with Indian analogues.
If essential practices analysis in India was originally meant to navigate conflicting constitutional impulses – to reform citizens’ religious practices and to respect citizens’ religious autonomy – the purpose of broadly similar analysis in Sri Lanka seems quite different. Essentiality, in the Sri Lankan context, has been deployed in contestations between a religion, Buddhism, that is granted special protection, and a state whose constitution recognizes no collective religious freedom rights. And, perhaps unsurprisingly given past relations between India and Sri Lanka, “essentiality” has served to demarcate differences in constitutional priorities where the temptation to assume similarity runs strong.
VI Conclusion
The ERP Doctrine first articulated by the Indian Supreme Court in Shirur Mutt has, unquestionably, migrated to other Asian jurisdictions. This chapter has shown that the apex courts of Malaysia and Sri Lanka have relied on the ERP Doctrine’s literal vocabulary or conceptual framework (or both), as well as on the larger corpus Indian religious freedom jurisprudence within which the Doctrine is situated. In fact, the Doctrine’s influence within Asia is both broader and deeper than this discussion has suggested: The apex courts of other countries (e.g., PakistanFootnote 49) have drawn on ERP analysis, while there are also other cases decided by the MalaysianFootnote 50 and Sri LankanFootnote 51 courts that show traces of the Doctrine’s concepts or terminology.
At the same time, we should not mistake the jurisdictional travels of the ERP Doctrine for a process of harmonization, convergence, or simple transplantation. Indeed, as comparative law scholars have argued for some time, laws “are not merely ‘bare propositional statement[s]’ … but rather ‘an incorporative cultural form … buttressed by important historical and ideological formations.’”Footnote 52 They are inextricably informed by and responsive to their contexts of origin.
But comparative law scholars have also cautioned that “we must be careful to not slip into the error of believing that legal practices can be so rooted in their ‘cultures’ that they can never be transplanted.”Footnote 53 The ERP Doctrine’s travels and transformations cohere with this insight, too. As decades of comparative scholarship suggest – and the ERP Doctrine confirms – laws are neither wholly determined by their bare terms (and hence are not perfectly transferable) nor are they wholly determined by their historical and social contexts (so they are not perfectly non-transferable).
What is most evident in the ERP Doctrine’s inter-Asian travels is that Asian countries look to one another for conceptual frameworks that can be redirected to and reshaped for domestic use. Apex courts in the region are indeed doing something more than lifting bare terminology, and their actions serve to make “Asia … and not the West … the referent for Asia’s own legal modernity.”Footnote 54 By the same token, however, these courts are doing something less than transplanting legal reasoning or working toward any level of harmonization or convergence. In fact, as both the Malaysian and Sri Lankan examples suggest, they may often be reaching across boundaries juridically in order to reaffirm boundaries that are political or social.Footnote 55
In the realm of scholarship, there is an even clearer case to be made for the existence of an Inter-Asian approach to religion–state relations. As this volume suggests, scholars of Asian law, even when largely interested in specific country contexts, are extremely amenable to comparative analysis, and especially collaborative comparative analysis. They are active in tracing concepts, including the idea of ERP, across jurisdictional lines, and readily use analytic lenses – again, like ERP – developed by one court to explain,Footnote 56 and even to critique,Footnote 57 the jurisprudence of another court. Scholars of Asian law, in short, have rarely, if ever, proceeded on the misguided notion that nation-state boundaries are impermeable. This may be unsurprising, given the prevalence in Asia of countries that share messily intertwined colonial pasts, but it is also where the evidence, and usefulness, of Inter-Asian Law is most apparent.
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