Sabarimala Reference | Day 12
Sabarimala ReviewJudges: Surya Kant CJI, B.V. Nagarathna J, M.M. Sundresh J, Ahsanuddin Amanullah J, Aravind Kumar J, A.G. Masih J, P.B. Varale J, R. Mahadevan J, Joymalya Bagchi J
On Day 12, the nine-judge Bench shall continue to hear arguments from the respondents on the entry of women to the Sabarimala Temple
The hearing before the nine-judge Bench in the matter of entry of women to the Sabarimala Temple has continued since 8 April. Access reports on the previous hearings on this page.
Background
On 28 September 2018, in Indian Young Lawyers Association v State of Kerala, a Constitution Bench of Chief Justice Dipak Misra, Justices R. F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra, in a 4:1 majority, held that the Sabarimala Temple’s exclusionary custom prohibiting the entry of women is unconstitutional. The custom barred women between the ages of 10 and 50 years old from entering the temple. The Judgment held that the said custom, and Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 — which allowed religious denominations to exclude women from public places of worship based on custom, violated the fundamental right to freedom of religion of female worshippers under Article 25 of the Constitution. The Bench held that the devotees of Lord Ayyappa were not a separate religious denomination and that the custom was not an essential religious practice (ERP).
More than 50 review petitions were subsequently filed by various individuals and organisations including Kantaru Rajeevaru, the Chief Priest of the Sabarimala Ayyappa Temple, the National Ayyappa Devotees (Women’s) Association, the Nair Service Society and the All Kerala Brahmin’s Association.
After CJI Misra retired, the review petition was heard on 13 November 2018 by a Bench of CJI Ranjan Gogoi, and Justices Khanwilkar, Nariman, Chandrachud and Malhotra. On 14 November 2019, the review bench by a narrow 3:2 majority decided to keep the review petitions pending and referred certain overarching constitutional questions to a larger bench. The review will be decided after the questions are clarified. The majority found that the Sabarimala judgement will have a bearing on other freedom of religion cases. Justices Nariman and Chandrachud dissented, holding that this speculation went beyond the narrow scope of a review petition. They dismissed challenges against the review.
On 13 January 2020, a nine-judge Bench led by CJI S.A. Bobde and Justices, R. Banumathi, Ashok Bhushan, Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant began hearing the reference. Parties raised concerns that a review bench cannot refer questions of law to a larger bench.
On 10 February 2020, the nine-judge Bench upheld the referral order issued in the November 14 judgement. It held that the Court had the power to refer a point of law to a larger bench in a review petition, however, it did not publish any reasons for this finding at the time. On 11 May 2020, the Supreme Court published a detailed judgement substantiating the maintainability of the reference.
On 16 February 2026, a Bench of CJI Surya Kant with Justices Joymalya Bagchi and Vipul Pancholi listed the case for arguments on 7 April 2026.
Key Issues
- What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
- What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
- What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
- What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
Khambata: Courts cannot blindly accept every claim of religion
Continuing his submissions from yesterday, Senior Advocate Darius Khambata clarified that he was attempting to “tread a middle path” and was not advancing an extreme position on judicial review in matters of religion. He submitted that judicial review cannot be completely excluded and the courts must ordinarily defer to genuine religious beliefs.. Once a belief is proved to be genuine, the Court is bound to accept it, he submitted while referring to Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) and Bijoe Emmanuel v State of Kerala (1986) He pointed out that Courts cannot resolve disputes through a “blind application of the formula that the community alone decides what is essential.”
Justice M.M. Sundresh questioned whether such disputes belonged in writ jurisdiction at all, warning that this would open the floodgates to thousands and thousands of similar cases. Justice Joymalya Bagchi observed that the question may concern “entertainability” even if maintainability under Article 32 itself remained doubtful. In response, Khambata identified six areas where judicial review cannot be excluded, including disputes over whether a practice genuinely forms part of a religion, whether competing doctrines exist, whether a claimed practice is merely an “artifice,” whether it violates public order, morality or health, and whether it collides with rights under Articles 14, 15, 21 or 25(1).
When Justice B.V. Nagarathna asked whether exclusion of Parsi women after marriage was “a matter of religion” at all, Khambata responded, “No.” He argued that while intermarriage may be frowned upon, there was no doctrine excluding women from the religion, especially when intermarried Parsi men continued to be allowed entry. Justice Nagarathna observed that an appropriate remedy for such cases would be a civil suit. Khambata, however, argued that the administration should establish if such exclusionary practices have a religious basis.
Khambata: Article 26 is not a “fortress” against Article 25
Khambata argued that while Article 26(b) protects religious denominational autonomy from State interference, it is not a right of domination. Khambata had previously argued that individual fundamental right to religion cannot be restricted by the rights of religious denomination, as it would subject individuals to exclusionary practices followed by the group. Referring to the doctrine of proportionality, he submitted that courts must identify the precise interests underlying competing rights before attempting reconciliation. He referred to the doctrine of “double proportionality”, which was expanded upon in Association of Democratic Reforms v Union of India (2024), where a Constitution Bench unanimously struck down the Union’s 2018 Electoral Bonds Scheme. The doctrine concerns as to whether the Constitution creates a hierarchy between competing rights, whether the measure adopted is suitable and least restrictive and whether it disproportionately impacts either right. The CJI observed that such an exercise would arise only if there is a genuine conflict of rights, adding, “Speaking for myself, I don’t agree there is a conflict.” Khambata added that the right of exclusion itself must first be established through religious doctrine and cannot rest merely on administrative assertion. According to him, “What is an inessential practice cannot trump the right to freely practice and propagate religion.”
He submitted that Articles 25(1) and 26 must continue to reflect India’s ancient civilisational values of mutual respect, tolerance, peaceful coexistence, plurality of belief and practice and religious autonomy. He cautioned that treating Article 26(b) as a standalone “fortress” unrestrained by Article 25 would damage the constitutional balance. Relying on Sri Venkataramana Devaru v State of Mysore (1957), he submitted that balancing, rather than hierarchy, remains the only workable constitutional answer.
Tamboly: Constitution cannot permit regression of rights
Supplementing Khambata’s submissions, Advocate Karl Tamboly argued that a Parsi woman cannot lose her religion or identity merely because she marries outside the community. He submitted that treating a woman married under the Special Marriage Act, 1954 (SPA) as having ceased to be both Parsi and Zoroastrian would defeat the object of the SPA itself.
Justice Ahsanuddin Amanullah asked whether rights under Articles 25 and 26 operate differently since Article 26 concerns denominations, Tamboly responded that a denomination is ultimately a collection of individuals and reading Article 26 separately from Article 25 would “do violence” to the constitutional scheme.
Tamboly relied on the Basic Structure doctrine and the “living tree” principle to argue that the Constitution must evolve with changing understandings of dignity, equality and liberty rather than remain frozen in time. He submitted that constitutional interpretation must move rights forward and not permit a rollback of women’s rights or religious identity through marriage.He argued that the Court’s had moved away from reading fundamental rights in isolated silos while referring to A.K. Gopalan v State of Madras (1950) and Rustom Cavasjee Cooper v Union of India (1970). He argued that while A.K. Gopalan treated Articles 19 and 21 separately, Cooper overruled that approach and recognised that fundamental rights overlap and must be read together. On that basis, he argued that denominational rights under Article 26 cannot be interpreted in a manner that destroys individual protections under Articles 14, 21 and 25.
Shrivastava: Freedom of conscience is the “heart and soul” of Article 25
Senior Advocate Ravindra Shrivastava identified four broad issues arising in the reference: the interplay between Articles 25 and 26, the correctness of the essential religious practices doctrine as developed from Shirur Mutt to Durgah Committee, the scope of constitutional morality and the applicability of stare decisis. He argued that the framers intended Article 25 to place freedom of conscience at the centre of religious liberty, stressing that the Constitution uses the expression “equally entitled to” in relation to conscience, while using the word “right” for the freedom to profess, practice and propagate religion. According to him, this distinction shows that freedom of conscience is the “heart and soul” of Article 25, while religious practice is merely its outward manifestation. He submitted that while acts done in pursuance of faith may be regulated by law, he added, “The conscience of the person cannot ever be questioned,” since the Constitution itself provides no mechanism to investigate or test an individual’s faith.
(This report will be updated throughout the day)
