Sabarimala Reference | Argument Summary

PIL Jurisdiction and the limits of challenging faith

The Review petitioners argued that the Sabarimala litigation was flawed as it was initiated by the Indian Young Lawyers’ Association, and not a devotee. Over the first several days of hearings, counsel repeatedly questioned whether persons who neither followed the faith nor intended to worship the shrine could invoke Article 32 to challenge internal religious practices.

Solicitor General Tushar Mehta argued that “non-believers” and “interlopers” cannot use the PIL jurisdiction to enter disputes concerning modes of worship and temple observances. He described the litigation as one where the “vocal minority” was seeking to impose external social values on religious traditions followed by the “silent majority” of devotees. He argued that the original justification for PIL jurisdiction had weakened because access to justice had expanded through legal aid services, e-filing and broader institutional access. On Day 4, Senior Advocate A.M. Singhvi, appearing for the Travancore Devaswom Board, argued that PILs cannot become a route to routinely question faith.

The Bench too expressed concern about the implications of entertaining such petitions. Justice B.V. Nagarathna questioned who the “real” aggrieved party was in the original proceedings and observed that such a plaint could ordinarily be rejected. She questioned parties on whether a non-devotee could claim constitutional injury in relation to a mode of worship they did not follow. Justice M.M. Sundresh similarly warned that entertaining such petitions could open the floodgates to “thousands and thousands” of disputes concerning temple practices and modes of worship.

The respondents framed the issue differently. Senior Advocate Darius Khambata argued that exclusion from worship itself constitutes a constitutional injury. He submitted that constitutional protection cannot depend entirely on denominational approval, as entrenched majorities within religious groups could otherwise insulate discriminatory practices from scrutiny.

Amicus Curiae K. Parameshwar proposed a narrower middle position. He argued that the traditional rules of locus standi do not operate rigidly once a religious practice causes severe social consequences. He submitted that courts should ordinarily avoid “pure denominational disputes” concerning internal administration or ritual procedure, but must intervene where practices implicate dignity or bodily autonomy.

Judicial review and the ERP Doctrine

The Essential Religious Practices (ERP) doctrine became the central issue before the Bench. The doctrine allows courts to determine whether a practice is “essential” or “integral” to religion before granting constitutional protection under Articles 25 and 26. Mehta argued that the ERP had no textual basis in the Constitution, and was judicially created. He argued that Articles 25 and 26 refer only to religion and matters of religion, not “essential” practices. Relying on The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954) , he argued that the religion itself determines its practices. The Court, according to Mehta, deviated from this in Durgah Committee Ajmer v Syed Hussai Ali (1961). In that judgement, the Court assumed the authority to exclude practices as “superstitious” or non-essential. Mehta argued that unless a practice implicates public order, morality or health, courts cannot enter theological questions. Senior Advocate Krishnan Venugopal argued that the ERP doctrine has distorted religious liberty. According to him, once a practice is found to be religious, courts cannot inquire further into whether it is “essential.” He warned that the doctrine disadvantages non-canonical and less structured traditions. Senior Advocate Rajeev Dhavan argued that the doctrine reverses Article 25 by requiring courts to decide essentiality before extending constitutional protection.

The respondents criticised the ERP doctrine differently. Senior Advocate Darius Khambata argued that while ERP has produced inconsistent outcomes, courts cannot blindly accept every religious claim.. Therefore, a limited inquiry is required to determine whether a practice genuinely belongs to the religion or whether it is an administrative device shielding discrimination. Senior Advocate Shadan Farasat argued that the ERP doctrine had become a “narrow bottleneck” overshadowing Article 25(1). He urged the Court to replace theological inquiry with a sincerity-based approach focused on whether a belief is genuinely held. Professor C. Mohan Gopal argued that ERP had “silenced” reformist voices within religions for 75 years by treating denominational authority as constitutionally dominant over internal reform movements. He submitted that the Court had wrongly approached the issue as a conflict between Part III rights and Article 26 while ignoring reformative traditions arising from within religious communities themselves. Gopal warned that accepting the opposing interpretation would permit denominations to effectively secede from Part III. 

Amicus Curiae K. Parameshwar described the ERP doctrine as “deeply elitist.” He argued that the doctrine privileges religions with extensive written texts while disadvantaging tribal faiths and oral traditions. Justice Nagarathna observed that the doctrine may survive only as an aid or tool for factual verification rather than a conclusive constitutional standard.

Constitutional Morality and “Sadachar”

Another major issue concerned whether the “morality” referred to in Articles 25 and 26 means “constitutional morality”. The Union argued that constitutional morality concerns constitutional governance and conventions rather than religious practices. Referring to Dr B.R. Ambedkar’s Constituent Assembly speech of 4 November 1948, he argued that the doctrine was developed in the context of constitutional functionaries and institutional behaviour. Mehta also criticised the increasing reliance on foreign academic scholarship and concepts such as “transformative constitutionalism.” Referring to Joseph Shine v Union of India (2018) and Navtej Singh Johar v Union of India (2018), he questioned whether foreign academic writings cited in those decisions could become binding law under Article 141. According to him, the 2018 Sabarimala judgement wrongly treated societal morality as “mob morality.” Additional Solicitor General Vikramjit Banerjee supplemented this argument by relying on Article 394A and pointed out that the Hindi translation of “morality” in Articles 25 and 26 is “sadachar”. He argued that sadachar refers to accepted conduct and cannot be equated with constitutional morality. Senior Advocate N.K. Kaul similarly argued that constitutional morality was never intended to become a separate limitation on religious freedom. According to him, once constitutional morality is treated as an independent ground of review, the entire constitutional scheme is effectively imported into denominational affairs.

Justice Nagarathna observed that societal morality is not static and noted that Article 25 had consciously been made subject to the rest of Part III because unrestricted religious freedom could produce “the worst forms of communalism.” Jaising argued that practices based on notions of “purity” and “pollution” cannot escape scrutiny merely by invoking faith. According to her, constitutional morality requires courts to protect dignity from collective exclusion. Respondents also argued that the Constitution itself embodies moral commitments through justice, liberty, equality and fraternity, and therefore practices that deny equality or destroy fraternity cannot be insulated from scrutiny. Attempting to bridge the divide, Amicus Curiae Shivam Singh suggested that constitutional morality should operate only as a guiding interpretive principle rather than as an independent basis to invalidate religious practices.

Relationship between Articles 25 and 26

Kaul argued that Sri Venkataramana Devaru v State of Mysore (1957) recognised Articles 25 and 26 as co-equal provisions. He submitted that Article 26(b), which protects the right of denominations to manage their own affairs in matters of religion, can only be limited through the specific temple-entry reform provision in Article 25(2)(b). Senior Advocate Guru Krishna Kumar argued that Article 26 is a substantive guarantee protecting collective autonomy. He submitted that practices appearing exclusionary to outsiders may nevertheless arise directly from religious tenets. Senior Advocate Rakesh Dwivedi argued that religion is inherently “associational” and was designed to preserve internal plurality within Hinduism and prevent the State from flattening distinct traditions. He submitted that only provisions having a direct impact on religion, such as Articles 17 and 23, can override denominational rights.

ASG K.M. Nataraj described Articles 25 and 26 as a “three-tier mechanism,” arguing that Article 26 is embedded within Article 25 because denominations are formed by collective belief. He argued that individual rights cannot override the rights of believers who follow a particular tradition.

Senior Advocate Gopal Sankaranarayanan argued that Devaru did not intend to completely insulate Article 26 from equality guarantees. Khambata argued that Article 26 cannot become an “instrument of domination.” He submitted that denominations must demonstrate that an exclusionary practice is foundational to the faith. Justice Nagarathna asked whether denominational practices can remain insulated where they severely affect an individual’s right to worship.

Parameshwar contended that denomination and reform can go hand in hand. He submitted that temple entry involves not merely physical access but meaningful participation in worship.

Social Reform and “Sections of Hindus”

The Union argued that Article 25(2)(b) was introduced to address caste-based exclusion and cannot be extended to gender. Referring to Constituent Assembly Debates, Mehta argued that the provision was framed to throw open Hindu religious institutions to all classes of Hindus. Justice Nagarathna similarly observed that Article 17 has a specific historical context tied to caste-based untouchability and cannot automatically be extended to temporary biological conditions. Senior Advocate C.S. Vaidyanathan argued that Article 25(2)(b) is an enabling provision for social reform and not a general gender equality clause. He submitted that denominational practices survive even where temples remain open to the public. Senior Advocate M.R. Venkatesh argued that “throwing open” temples does not transfer management rights.

Throughout the hearing, the Bench repeatedly acknowledged that the reference would affect disputes beyond Sabarimala. Dhavan reminded the Court that it was laying down principles applicable not only to Hindu practices but to all religions and matters of conscience. The Bench also dealt with questions concerning women’s entry into mosques, Parsi women’s exclusion from Fire Temples after inter-faith marriages, and female genital mutilation within the Dawoodi Bohra community.

As the judgement is awaited, it is significant to note that the reference is important not only for Sabarimala, but for the future relationship between religion, equality and judicial review under the Constitution.