Supreme Court of India says courts must be careful before questioning religious beliefs of millions in the Sabarimala Temple Entry Case. Bench also warns religion cannot be diluted in the name of social reform and debates scope of judicial review.
The Supreme Court of India on Wednesday made important observations on the sensitive issue of religion and judicial review, stating that it is extremely difficult for courts to declare that the beliefs of millions are wrong. The Court also emphasised that religion cannot be diluted or stripped of its core practices in the name of social reform.
A nine-judge Constitution Bench led by Chief Justice of India Justice Surya Kant, along with Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, was hearing a reference arising out of the Sabarimala Temple Entry Case.
During the hearing, the Bench reflected on the limits of judicial intervention in matters of faith. The Chief Justice observed,
“The most difficult task for a court might be how to give a declaration that the belief of millions of people is wrong or erroneous,”
while addressing arguments on whether public interest litigations (PILs) should be entertained in religious matters.
Justice MM Sundresh also raised concerns about representation, questioning whether courts can decide such issues without hearing those who actually follow the faith. Justice BV Nagarathna echoed similar concerns and cautioned against entertaining PILs filed by outsiders, stating that such petitioners may merely be interlopers. She further warned against excessive judicial interference in religion, remarking,
“We cannot hollow out religion in the name of social welfare reform.”
The case traces back to the landmark 2018 judgment of the Supreme Court, where a 5-judge Bench, by a 4:1 majority, allowed women of all age groups to enter the Sabarimala temple in Kerala, setting aside the long-standing practice that restricted entry of women of menstruating age. The verdict led to widespread protests and multiple review petitions.
In 2019, the Court, while hearing these review petitions, did not give a final decision but referred larger constitutional questions to a bigger Bench. These questions include the scope of the Essential Religious Practices (ERP) test, the balance between Articles 25 and 26 (freedom of religion) and Article 14 (equality), and conflicting precedents like the Shirur Mutt Case and the Durgah Committee Case.
Senior Advocate Abhishek Manu Singhvi, appearing for the Travancore Devaswom Board (TDB), strongly argued against the Essential Religious Practices doctrine. He submitted,
“The moment Your Lordships allow the use of word ‘essential’ or ‘integral’, Your Lordships necessarily starts operating within the rubric of a concept called religion. You have to divide and categorize religion, without that you cannot do it. We are against that. Your lordships can achieve exactly the same results of regulation either by using the test of [Article] 25 2(a) or by using the opening words of 25 itself which says four tests or by saying that what is religion you decide by a subjective-objective test and the rest you put away. Otherwise, it becomes a license to permit judges or external adjudicators to decide the essential and non-essential component of what is religion. That cannot be… then your lordships don’t know where to stop”
He further urged the Court to remove this doctrine, saying it has created confusion in law. At the same time, he accepted that extreme practices not forming part of a religion’s collective belief can be rejected.
Singhvi stressed that courts should not interfere with religious practices that genuinely exist within a faith unless they violate public order, health, or morality. Explaining this, he said,
“Notwithstanding the above, if there is in fact hypothetically a religion whose collectivity genuinely believes in and can trace back its lineage to the factual, genuine existence of such practices, then the Court, having found that such a religion does in fact exist, cannot stigmatise such practices on personal or subjective judicial notions of abhorrent behaviour or imposed external societal norms, except under those three words in Article 26.”
To explain his point, Singhvi cited the example of Digambar Jain practices, stating,
“Now, I am not giving an example because I am a Jain, but this is a very good example. In any form of obscenity and morality, you cannot be allowed to roam naked. Digambar Jains, even today at big functions, the actual sadhu will come completely naked. There are a large number of women at that function who are actually doing the principal honours. I myself have been at this function. Now, Digambar Jain, by that set of standards, should be abolished. It is a very good example for the extreme proposition. Because nudity in all other forms is proscribed. But it is nobody’s case that Mahavira, who was the elder contemporary of Buddha in the 6th century BC, and who was the 24th Tirthankara, that religion which then branched out to Shvetambara and so many other traditions, will be abolished because of some external standard which will not find a warrant,”
He also clarified how Articles 25 and 26 operate differently, especially after entry into a religious place, stating,
“After you enter, for almost everything, Article 26 will take over. After you enter, now I have entered, I am this class or that class, I am not allowed to enter, law is there, no question, you cannot keep me out under Article 25(2)(b). After I have entered, I say ‘I have a right equally, having entered, to do worship in a particular way in the sanctum sanctorum. Why not, because I have access, I have come inside.’ There Article 26 will take over. If the collective belief of that religion or denomination does not permit anybody except him to do worship in the sanctum, then I cannot insist. Some do, some do not, it varies.”
On issues of discrimination, Justice Nagarathna clarified that reforms are allowed in certain areas, particularly social discrimination. Responding to this, Singhvi pointed out the application of equality provisions.
He also emphasised that courts must respect the subjective belief of a religious community, stating,
“The Court is bound to accept the belief of the community, and it is not for the Court to sit in judgment on that belief,”
Further, Singhvi warned against expanding constitutional morality as a ground to strike down laws, arguing that it introduces uncertainty. Justice Nagarathna agreed, stating,
“Legislation cannot be struck down on the ground of constitutional morality. It can be struck down on the ground of being violative of Part III or on the ground of legislative incompetence.”
Supporting this concern, the Chief Justice observed that constitutional morality involves subjective standards. Singhvi strongly criticised the concept, remarking,
“It’s an unruly horse..a dinosaur which my lords cannot ride.”
Justice Amanullah, however, questioned whether constitutional morality could be interpreted differently depending on the situation, asking,
“Why blanket no reading at all,”
In response, Singhvi said it may only be used in cases where there is constitutional silence or absence of legislation.
The hearing will continue, with the Constitution Bench expected to further examine the balance between religious freedom and constitutional principles in one of the most significant constitutional matters in recent times.
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