Sabarimala Reference | Day 10 : Practices cannot violate principles of equality, respondents argue

Jaising: You cannot recognise a practice that violates Article 17

Senior Advocate Indira Jaising referred to Article 17 which abolishes untouchability in any form. Jaising appeared for two women, one of them hailed from the Scheduled Caste community. She pointedly asked the Court: whether excluding such a person from entering a temple amounts to a violation of the provision. She submitted that no religious practice which can be traced to Articles 25 or 26 should be recognised if it violated Article 17.

Referring to Maneka Gandhi v Union of India (1978), Jaising submitted that provisions in Part III must be read together. While men, irrespective of their caste status, are allowed to enter the Sabarimala temple, women are excluded. This denial of equality is a “substantial injury” to the religious rights guaranteed to the women under Article 25(1). 

Justice B.V. Nagarathna responded that the restriction operates on the 10–50 age group and not on caste and Justice Aravind Kumar added that women as a class are not entirely prohibited. Justice Joymalya Bagchi put the issue differently, asking whether, even if framed as an age-based restriction, it results in “intersectional exclusion.” Jaising accepted that formulation and maintained that what matters is the effect of the practice, which, in her submission, is that women are kept out.

Jaising: Entry is the right, not ritual

Jaising drew a line between access and practice. Entry into a temple, she argued, flows from Article 25(1) as a matter of conscience, while ritual remains protected. She explained that the Court has protected ritualistic practices but not exclusion from access. According to her, while a person cannot dictate how puja is to be performed, that protection of ritual cannot extend to denying entry into the temple itself.

This prompted strong pushback from the Bench. Justice M.M. Sundresh warned that if individuals start asserting such claims, “Each one will say I don’t want this practice…what remains then?”, calling it a “disaster for the entire concept of religion.” Justice Nagarathna added that such an approach risks “annihilating religion,” stressing that matters of religion are rooted in conscience and not ordinarily open to challenge. Jaising responded that the doctrine of hurt, she said, cannot operate in the abstract. “You tell me what legal injury I am causing,” she pressed, adding that unless a right is violated in law, exclusion cannot be justified.

Jaising: “Court is not deciding religion, religion decides itself”

Jaising relied on Marbury v Madison (1803) to argue that the Court cannot decline its jurisdiction merely because religion is involved. She rejected the argument that religious matters are beyond judicial review. Referring to Section 92 of the Code of Civil Procedure, 1908, and Ratilal Panachand Gandhi v State of Bombay (1954), she said courts have long examined religious institutions and endowments. When the Bench raised the concern that such an approach would draw the Court into theology, she clarified that theology is a matter of fact found in texts like the Vedas, Quran, Agamas and Puranas. Courts, she said, do not decide what is essential. She argued, “The religion itself determines what is essential,” and the Court only uses that to harmonise competing rights. Justice Ahsanuddin Amanullah asked her on how far courts should go into essentiality and how to deal with divisions within a religion. Jaising responded that doctrinal differences themselves produce denominations and that ritual is part of theology.

Jaising: Article 25(1) as freedom, not mere recognition

Jaising maintained that the right to enter a temple flows directly from Article 25(1). Chief Justice Surya Kant questioned whether Article 25(1) confers a right or merely recognises a pre-existing one, noting that this distinction would affect the scope of limitations. Jaising held her ground, saying “I get my freedom from Article 25(1),” subject only to its express limits. Justice Amanullah then asked whether this right is confined to devotees or extends more broadly, and whether one can accept belief in a deity while rejecting associated practices. Jaising answered that while most laws require the person to be Hindu, and added, “As a matter of belief, everyone is welcome in the house of God.” She also clarified that entry must be with “shraddha” and not mischief, but insisted that the right cannot be denied merely because others may disagree.

Jaising: “Custom cannot override my fundamental right”

Jaising argued that custom cannot defeat fundamental rights. Referring to Article 13, she said only customs having the force of law can survive and voluntary practices cannot be enforced against individuals. Jaising agreed that some women do not voluntarily go to the Sabarimala temple. She added that those who wish to go cannot be stopped. Justice Nagarathna asked whether custom should prevail over an individual’s claim. Jaising replied that it is not about desire but about freedom.

Justice Amanullah raised a further concern: if a person enters with knowledge that it will upset the sentiments of others, can that still be called reverence. Jaising responded that hurt must be tied to a legal injury, not sentiment. If a legal right is shown to be violated, she said, “I will not go.”

Jaising: Social reform includes reform of religion

Jaising submitted that the idea of “social reform” in the Constitution cannot be separated from reform within religion itself. Referring to the history of Hinduism, she argued that it has continuously reformed from within and that this is precisely why the Constitution uses the expression “social reform” in Article 25(2)(b).According to her, exclusionary practices must therefore be tested against constitutional guarantees, and cannot be insulated merely by being labelled religious. 

Justice Nagarathna clarified that Article 25(2)(b) does not, by itself, create a right of entry, but is an enabling provision that permits the State to legislate for reform. She cautioned that the question would arise only when such legislation is made and the Court would then examine whether it amounts to reform or an impermissible inroad. Justice Sundresh added that if the Court were to move away from the essential religious practices test and rely more directly on social reform, it may offer greater flexibility, but added that courts must remain circumspect in doing so. 

In response, Jaising maintained that whichever doctrinal route the Court adopts, whether through essential religious practices or through social reform, the exercise must ultimately be one of harmonisation. She said that even if the Court were to move away from essentiality, the conclusion in this case would not change, since exclusion of women cannot be sustained. She said, “Whichever way you do it, the outcome will be my entry,” bringing it back to the question: does the Constitution allow women to be kept out at all?

Jaising: There is no norm higher than the Constitution

Jaising said the Constitution is not “without a philosophy” but reflects a continuing search for equality in a society shaped by wealth and power. She submitted that rights no longer operate in silos, with this Court using concepts such as “manifest arbitrariness” to address new forms of inequality, including digital exclusion. Referring to National Legal Services Authority v Union of India (2014), she said the Constitution must be read to achieve its “higher essence,” not merely textually. She submitted that the Constitution is the “grundnorm in the Kelsenian sense,” and that there is no norm higher than the Constitution. She added, “Everything else, including culture and religion, must yield to this norm.” On that basis, she rejected the argument by the petitioners that courts cannot examine religion, stating that India has no ecclesiastical courts and that it is redundant to say that the Court cannot look into religion. She added that judicial review is what gives effect to this position and that “public morality” cannot be the standard since “the public can be full of prejudice.”

Jaising: There is nothing called deemed conversion

She then turned to examples where religion operates through exclusion, referring to female genital mutilation, community boycott and the exclusion of Parsi women from funeral rites after marrying outside the faith. She questioned whether marriage can result in loss of religious identity, asking in substance whether a woman loses her religion by marrying outside it. Justice Nagarathna responded, “There the question probably was can the women be discriminated just because of marriage, it is different from Sabarimala.” Justice Amanullah put it: “Just because I married somebody, you cannot give a judgement that I have changed my religion?” Jaising agreed, stating that there is nothing called deemed conversion. Justice Bagchi added, “Classification is clearly on gender,” and she traced this to the doctrine of coverture. Justice Nagarathna noted, “If a Sikkim woman marries a non-Sikkimese, she loses her income tax exemption,” pointing to similar consequences elsewhere. Jaising said religion is a matter of status, ordinarily inherited at birth, with a child taking the religion of the parents under law. “It is only when I attain the age of 18 that I can decide whether I will continue in that religion or exit it.” If a different position is claimed, she said, “The Court will ask for evidence… were you brought up as a Buddhist, as a Christian?” She linked this to questions already before the Court, including the marital rape exception, and said marriage too is “an institution of equality… based on affection,” where both spouses must respect each other equally, and cannot be used to alter a person’s status by legal fiction.

 Jaising: If Parliament doesn’t act, can courts step in?

Jaising argued that Articles 25 and 26 i.e. the freedom to religion and manage religious affairs by denominations are “inextricably linked.” Moreover, the right to associate would survive even without denominational rights under Article 26.  The provision allows the state, under Article 25(2)(b) to make laws for social reform. Jaising pointed out that almost every State has made laws, enabling temple entry through statute. 

At this stage, Justice Bagchi inquired whether the Court has authority to step in for filling the gaps for non-Hindu institutions or leave it for the legislature. Referring to the Uniform Civil Code (UCC) under Article 44, he asked,  “The UCC is a constitutional aspiration, but if Parliament fails to enact it, do you suggest that the Court provide effect to the UCC?” Jaising responded that the UCC remains a matter of policy under the Directive Principles. 

Justice Nagarathna added that reform will come when Parliament finds it can be done, while Justice Bagchi asked whether courts can still bring “incremental equality” through Articles 32 and 226 where the State has not acted. 

Jaising: Exclusions based on being “polluted”

Jaising argued that untouchability is not confined to caste but extends to notions of “pollution, purity and defilement.” She argued that there is parity between exclusion and the treatment of women as “impure.” Justice Nagarathna responded that Hindu practice includes restraints such as not visiting temples after a family member or relative’s death and asked whether all such customs could be challenged. Jaising replied, “At least egregious customs must go.” 

Justice Nagarathna noted that many women themselves do not see it as a disability. Jaising reiterated that a woman can either wish to enter or choose not to. Referring to one of the women she was representing, Jaising stated that a “shuddhi” was performed after she entered the temple. Further, she never went to the temple again despite a Supreme Court order granting police protection.  Jaising described lived practices of exclusion, saying women are treated as “polluted,” prevented from touching family members and from rituals.. Justice Nagarathna responded that such practices should not be seen as “pollution or defilement” in that sense. Jaising maintained that exclusion based on such notions affects a large part of life and must be tested against constitutional guarantees.

The Court will continue to hear the matter on 5 May.