SC told to lay down principles on religious freedom in Sabarimala reference

The Supreme Court of India on Friday was told that clear constitutional principles must be laid down to determine freedom of religion, rather than deciding such issues on a case-by-case basis. It was also submitted that the doctrine of “essential religious practices” was not created by the Court but has evolved over time through judicial pronouncements.

Addressing a nine-judge Constitution Bench headed by Chief Justice Surya Kant, senior advocate Rajeev Dhavan, appearing for one of the petitioners, said that the term “essential religious practices” was first used by a former Attorney General and later found place in judicial rulings as early as the mid-1960s. He noted that courts have since examined whether a practice forms an essential and integral part of a religious denomination.

Advertisement

The Constitution Bench also comprises Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B. Varale, R. Mahadevan, and Joymalya Bagchi.

Expressing reservations about the doctrine, Dhavan argued that the test for determining whether a practice is essential should be whether its removal would fundamentally alter the nature of the religion. However, he cautioned that requiring proof that a religion would “collapse” without such a practice sets an excessively high threshold.

Referring to questions raised by the Bench during hearings over the past four days beginning April 7, Dhavan said these included whether essential practices are a juristic invention, whether laws encompass customs, whether superstitious beliefs with outward manifestations can be subject to judicial review, and whether logic applies to matters of belief.

He also referred to observations made by the Chief Justice on April 7 regarding a framework of judicial discretion—ranging from broad to no discretion, and finally to a narrow discretion aimed at protecting minorities—before such matters came to be decided individually. Dhavan emphasised that a principled framework is necessary for interpreting Articles 25 and 26, rather than relying on case-specific adjudication.

On the issue of “constitutional morality,” Dhavan submitted that while it may apply to citizens, institutions function on the basis of “institutional morality.” He cited an earlier exchange between senior advocate Aravind Datar and the Bench, where the Court distinguished between constitutional morality and “constitutional trust,” highlighting the trust reposed in constitutional authorities.

Dhavan further argued that both the doctrines of constitutional morality and the basic structure stand on similar footing, as neither is explicitly defined in the Constitution.

The nine-judge Bench is hearing the Sabarimala reference arising from the Sabarimala verdict 2018 delivered on September 28, 2018, which allowed women of all ages to enter the Sabarimala Temple. Prior to this judgment, women aged between 10 and 50 years were barred from entry.

Key issues before the Bench include the scope of judicial review, the balance between Articles 25, 26, and 14, the role of constitutional morality, and the maintainability of PILs in religious matters. The hearing will continue on Tuesday, April 21, 2026.