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Protecting Free Exercise of Religion under the Indian and the United States Constitutions - The Doctrine of Essential Practices and the Centrality Test
ExpressO (2014)
  • Khagesh Gautam, Prof., O.P. Jindal Global University
Abstract

Free-exercise of religion is a constitutionally protected right under both U.S. and Indian Constitutions. The U.S. Supreme Court has traditionally reviewed the constitutional claims arising out of the U.S. Constitution’s Free Exercise Clause in a ‘religion-neutral’ way. The Indian Supreme Court reviews similar claims in a ‘religion-central’ way. While the U.S. Supreme Court does not examine the sincerity of the religious belief and the centrality or essentialness of the religious practice while reviewing a free-exercise claim, the Indian Supreme Court does look into these things in order to see whether a given religious act should be given free-exercise protection.

However, a careful review of the U.S. decisions discloses a distinct strand of judicial reasoning in the U.S. that closely resembles the Indian Free Exercise doctrine. In these cases, the U.S. courts while reviewing a free-exercise claim have looked into the sincerity of the religious belief and the centrality of the religious act to the petitioner’s religion in order to see whether free-exercise protection should be extended to such religious acts. The 6th Circuit in 1998 in the Lakewood case has for the first time articulated a clear judicial device, the Centrality Test, to review such claims. This device very closely resembles the Essential Practices Test that was articulated by the Indian Supreme Court in the Sirur Mutt case in 1954, which was the first free-exercise case to be argued before the Indian Supreme Court.

Meanwhile the Indian Essential Practices Test, after being tested for over a decade in a variety of factual situations has become an integral part of the Indian Free Exercise doctrine, the Centrality Test still needs to find its place in the U.S. Free Exercise doctrine. This paper demonstrates the similarities in these two judicial devices and argues that the increasing religious diversity in the U.S. will eventually call for articulation of a ‘religion-central’ test by the U.S. Supreme Court. Should the U.S. Supreme Court decide that time has come for putting in place a ‘religion-central’ test to review free-exercise claims, this paper argues, the Court would be well assisted in examining the Indian free-exercise precedents on the point.

Keywords
  • Constitution of India,
  • U.S. Constitution,
  • Free Exercise,
  • Centrality Test,
  • Essential Practices,
  • Supreme Court of India,
  • U.S. Supreme Court,
  • Religion,
  • Judicial Review
Publication Date
October 15, 2014
Citation Information
Khagesh Gautam. "Protecting Free Exercise of Religion under the Indian and the United States Constitutions - The Doctrine of Essential Practices and the Centrality Test" ExpressO (2014)
Available at: http://works.bepress.com/khagesh_gautam/1/