Sabarimala Reference hearings: A search for doctrinal clarity

Last week, a nine-judge bench of the Supreme Court reserved judgement in the Sabarimala reference. Over sixteen days of hearings, the Court heard some of the most fundamental questions of religious freedom: what religion is, who decides it, how far can courts look inside it, and what happens when a religious community’s collective identity claims to overpower the rights of individuals within it. 

Both the Bench and the parties shared an anxiety: what standards should guide courts when adjudicating religious freedom claims? Some of the most consequential arguments raised during the hearings centred on the ‘essential religious practices’ (ERP) doctrine and the meaning of ‘constitutional morality’. 

The Essential Religious Practices Doctrine: A Target on Both Sides

Over the course of the hearings, the ERP doctrine came under heavy attack from both the review petitioners and the respondents. The ERP is the judicially evolved test that asks whether a practice is “essential” or integral to a religion, as a precondition to extending it the constitutional protection of Article 25. The ERP test was first formulated in The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954), where the court held that religious denominations enjoy “complete autonomy” in determining essential practices. Within three years, Sri Venkataramana Devaru v State of Mysore (1957) shifted that role from denominational autonomy to judicial determination. Judges began interpreting religious scriptures to decide whether a practice was integral to a religion. This approach was reaffirmed in later judgments, including Durgah Committee Ajmer v Syed Hussai Ali (1961) and Sardar Syedna Taher Saifuddin Saheb v State Of Bombay (1962), and has endured since then. While the site of discretion moved from religious communities to courts, there was no corresponding evolution of standards guiding that discretion. That courts should perform this role, was challenged by both sides in the Sabarimala reference hearings, albeit for different reasons.

The review petitioners sought to set aside the 2018 judgment, which had held that the customary ban on women of menstruating age into the Sabarimala temple was unconstitutional. A five-judge Constitution Bench had held that the prohibition on entry of women was not an ERP. The review petitioners argued that the ERP doctrine lacks textual basis and improperly draws courts into ecclesiastical matters. The Union government, through Solicitor General Tushar Mehta, contended that the correct position was the one originally formulated in Shirur Mutt—religion itself must determine what is essential to faith, not the courts. Echoing this concern, Senior Advocates Rajeev Dhavan and Abhishek Manu Singhvi, criticised the doctrine as “conceptually unstable”, and based on the “false premise” that courts can determine what is essential to a religion, respectively.

The respondents, defending the 2018 decision, criticised the ERP doctrine from a different standpoint. Their discontent with the doctrine stemmed from its inability to protect individual freedoms to freely profess and practice their religious beliefs. Senior Advocate Shadan Farasat argued that the test to decide whether a religious practice deserves protection had become so restrictive that it now functions as a “narrow bottleneck” through which almost nothing passes. As I have demonstrated in my previous analysis, the ERP plea over the past seven decades has failed in nearly 84 percent of cases before the High Courts and the Supreme Court. This prima facie supports the respondents’ contention that the doctrine has functioned more as a tool to deny constitutional protection under Article 25 by sharply restricting which practices qualify for protection. The problem is compounded by constitutional courts interpreting religious scriptures without theological training or clear evidentiary standards guiding such determinations. Senior Advocate K. Parameshwar criticised the doctrine as “deeply elitist”. In fact, its history reveals a privileging of the orthodox sections within a religion to the detriment of reformist voices. This concern is perhaps best illustrated by the rare success of the ERP plea in Sardar Syedna. The Supreme Court upheld the power of the Syedna – the head of the Dawoodi Bohra community – to excommunicate its members, as essential to preserving the integrity of the community. This was despite its use against reformist voices such as Asghar Ali Engineer, who faced social boycott, violence, and denial of burial rites to his parents.

What will replace the Essential Religious Practices doctrine?

Despite broad criticism of the ERP doctrine, it remained unclear – particularly from the respondents’ side – what should replace it, with different respondents suggesting different alternatives. The review petitioners, by contrast, were relatively consistent in seeking a return to Shirur Mutt’s “complete autonomy” principle, notwithstanding the difficult questions it raises for individual freedom and barring judicial review. 

For the respondents, Senior Advocate Shadan Farasat asked the court to discard the ERP test entirely and instead examine “sincerity of belief”. Once a “sincere religious belief” could be said to fall under Article 25(1), the restriction must be tested against the competing constitutional rights and legitimate state interests. Yet, asking courts to evaluate whether a belief is sincerely held, rather than essential to a religion, arguably shifts rather than resolves the problem of vague and discretionary judicial determinations. 

Another alternative, suggested by Senior Advocate Darius Khambata, advocated the reliance on the ‘double proportionality’ standard expounded upon in Association for Democratic Reforms v Union of India (2024). The standard – designed to balance conflicts between two fundamental rights – requires courts to first ask whether the Constitution creates a hierarchy between the rights in conflict; if it does, the higher-ranked right prevails. Only if no such hierarchy exists does the court proceed to ask whether the measure is a suitable means of furthering both rights; whether it is the least restrictive, equally effective option; and whether its impact on either right is disproportionate. The standard is a risky venture for the respondents’ case as it comes into play only where the Constitution does not recognise a hierarchy between the two fundamental rights. The real conflict in the hearings was between competing fundamental rights of individuals under Article 25 and collective rights of denominations under Article 26. While both the Articles are subject to “public order, morality, and health”, Article 25 is additionally subject to “the other provisions of this part [Part III]”. This phrase would also include Article 26 as a provision belonging to Part III – a reading which places individual religious freedom subject to the denominational rights. Any reconciliation between the two articles, thus, will have to rely on a larger theory of Part III rights and how to interpret them.

It is here that some of the respondents offered the most compelling alternatives to the ERP doctrine. A common strand in these arguments was a retreat from ecclesiastical enquiries, and embracing the Court’s constitutional role of adjudicating fundamental rights claims. Senior Advocate Indira Jaising led this charge. She argued that the court should test religious practices directly against fundamental rights, including Articles 14 and 15 (equality), 21 (liberty), and crucially, Article 17 (abolition of untouchability). She argued that “everything else, including culture and religion, must yield” to the Constitution, noting that both caste and menstruating age-based exclusions are drawn from the same underpinnings of “pollution, purity, and defilement”. Article 17 is not confined to untouchability based on caste hierarchies alone, she stated. Similarly, Senior Advocate Raju Ramachandran located the underlying principle in not necessarily specific articles of the Constitution, but the core concept of “dignity”. In this argument, dignity was being used not merely as another right, but as an interpretive principle defining the limits of denominational autonomy itself. 

The justification of testing religious practices on the anvil of fundamental rights moved beyond the court’s role as a constitutional court. Senior Advocates Parameshwar, Rajeev Dhavan and Karl Tamboly justified the approach on the basis of the Court’s own evolving jurisprudence on Part III rights. They argued that any reading privileging Article 26 over Article 25 would mean that individual fundamental rights could be read in silos. Dhavan highlighted that the Court has consistently read Part III rights in an integrated manner after the Rustom Cavasjee Cooper v Union of India (1970) and Maneka Gandhi v Union of India (1978) decisions. If that is true, Article 26 rights of a denomination could never per se supersede other individual rights guaranteed under Part III. Yet, it remained unclear how courts should draw the line between individual religious freedoms and denominational rights in practice. In each of these formulations, the final determination would ultimately be left to be made on a case-by-case basis, which does not satisfactorily address the need for articulating clearer standards to guide judicial discretion.

What emerged from the sixteen days of hearings was broad dissatisfaction with the ERP test, but little consensus on what should replace it. Any alternative framework must still confront the same concerns of unguided judicial discretion and courts venturing into ecclesiastical questions. The nine-judge bench may therefore best serve religious freedom jurisprudence by articulating clearer standards and being transparent about the constitutional values it prioritises, instead of relying on vague tests that leave religious freedom to the vagaries of a polyvocal court.

Sadachar and Sampradaya: Alternate Vocabulary Without Standards

Much of the hearings also concerned the meaning of “morality” under Articles 25 and 26 as a restriction on those rights. The bench appeared uncomfortable with the nebulous standard of “constitutional morality”, while the review petitioners opposed its use as a stand-alone ground for judicial review. Additional Solicitor General Vikramjit Banerjee pointed out that the authoritative Hindi text of the Constitution uses the word “sadachar” for “morality”, meaning “accepted or approved conduct”. Yet, replacing one open-textured term with another does little to constrain judicial discretion without clearer doctrinal standards.

Similar questions arose regarding “denomination” under Article 26. Senior Advocate C.S. Vaidyanathan argued that the English term assumes rigidly structured religious groupings inapplicable to Hindu traditions, and proposed understanding “denomination” as “sampradaya” – “tradition or lineage grounded in shared belief”. Yet, the theme of no workable standards to meaningfully guide discretionary interpretive choices by courts in religious freedoms cases continued to ring true here. It remains unclear that if “denomination” is understood as “sampradaya”, what standards determine which communities qualify, and who, within them, holds the authority to speak for them.

Conclusion

The Sabarimala reference hearings revealed not merely dissatisfaction with the ERP test, but the deeper difficulty that every alternative framework – sincerity, dignity, proportionality, or a fundamental rights review – ultimately still requires courts to exercise substantial interpretive discretion over religion. The nine-judge bench’s most important contribution may therefore lie not in choosing between the alternative frameworks pressed before it, but in being explicit about the values it is weighing and the reasons for the manner in which it is doing so.