THE SUPREME COURT yesterday orally remarked that social welfare legislation cannot be used to hollow out a religion, as a nine-judge Constitution Bench continued hearing the Sabarimala reference on its fourth day. The bench was addressed throughout the day by Senior Advocate Dr Abhishek Manu Singhvi, appearing for the Travancore Devaswom Board.
Singhvi’s submissions ranged across several of the seven issues framed by the Court in the reference, including the scope of Article 25(2)(b), the relationship between Articles 25 and 26, the meaning and dangers of the essential religious practices doctrine, the role of constitutional morality in adjudicating religious questions, and the maintainability of PILs filed by non-adherents.
‘In the name of social reform, you can’t hollow out the religion’: Justice Nagarathna
Article 25(2)(b) empowers the State to make laws providing for social welfare and reform, or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. Singhvi by advancing a harmonious interpretation of that provision alongside Article 26(b), which guarantees a religious denomination the right to manage its own affairs in matters of religion.
He argued that Article 25(2) is not a head of derogation in the same sense as the grounds of public order, morality, and health stipulated in Article 25(1). Rather, it is a clarificatory and enabling provision that cannot be read to reduce the substantive right under Article 25(1) to a vanishing point. He relied on the decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), which had struck down the Bombay Prevention of Ex-Communication Act, 1949, to argue that Article 25(2)(b) was not intended to enable the legislature to “reform a religion out of existence or identity.”
Justice Nagarathna noted that social reform could not be carried out by hollowing out the religion itself.
Justice Nagarathna noted that social reform could not be carried out by hollowing out the religion itself. Justice Sundresh added that laws like the Hindu Succession Act, 1956 could be regarded as social reform within the meaning of Article 25(2)(b), with Chief Justice Surya Kant noting that this would need to be determined case by case.
Singhvi also disagreed with the position taken by Senior Advocate C.S. Viadyanathan, representing the Nair Service Society, who had argued last week that Article 26(b) should prevail over Article 25(2)(b). Singhvi, instead, contended that the second part of Article 25(2)(b) must govern all questions of entry and access, leaving Article 26(b) to govern conduct and rituals once a person has entered.
“Article 25(2)(b) has to be limited to throwing open Hindu religious institutions of public character. The word ‘entry’ has to be governed by Article 25(2)(b) to the exclusion of Article 26. After you enter, for almost everything, Article 26 will take over,” he argued.
He pointed out that if a denomination’s rules required persons who had entered a public temple (entry which could not be stopped) to stand a thousand yards away from the deity and use a telescope to see it, that would not be justifiable under Article 26(b). At the same time, he maintained that Article 25(2)(b) could not be pressed into service to claim rights over the inner sanctum sanctorum, which would remain within the domain of Article 26(b).
‘Essentiality is anathema to Article 25’: Singhvi
The Essential Religious Practices doctrine, developed through cases beginning with the judgment in Durgah Committee, Ajmer v. Syed Hussain Ali (1961), notes that only practices essential or integral to a religion are entitled to constitutional protection under Articles 25 and 26.
Singhvi argued that the words ‘essential’ or ‘integral’ are simply not to be found in Article 25. The fundamental right to profess, practice, and propagate religion is available to all persons, for all kinds of religious practices, essential or otherwise. To superimpose a requirement of essentiality is to judicially engraft a fifth derogable standard onto a provision whose framers carefully specified only public order, morality, health, and other provisions of Part III.
He traced the origins of the error to what he described as “loose language” in Durgah Committee, which was subsequently picked up and elevated into a doctrine by later courts. The actual inquiry, he pointed out, as contemplated by the Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), was not whether a practice was essential within religion, but whether it was religious at all, as distinct from secular or economic activity. The contrast drawn in those cases was between the religious and the non-religious, not between the essential and non-essential within religion itself.
Solicitor General Tushar Mehta interjected to note that in Shirur Mutt, the Attorney General had moved an argument that only essential parts of religion would be protected, and that this was negated by the seven-judge bench. Singhvi agreed, saying the point was that this rejection was then misread in the Durgah Committee case as endorsing essentiality, when in fact it had done the opposite.
CJI Surya Kant observed that applying constitutional morality in this context would lead to unmanageable and completely subjective standards.
Justice Bagchi pressed Singhvi on what test the Court should apply when a piece of legislation enacted under Article 25(2)(b) appears to interfere with religious practice. Would not some evaluation of how central the practice is to the religion be inevitable? Singhvi replied that the bench should clean up the creases without allowing the essentiality doctrine to seep back in. The test should be whether the legislation hollows out or eviscerates the religion itself, not whether any particular practice is essential or non-essential.
When Justice Bagchi further asked whether words like ‘integral’ or ‘inalienable’ religious practices might serve as acceptable substitutes, Singhvi said these were simply third synonyms for essentiality, and would perpetuate the same confusion under different labels.
‘Constitutional morality is a horse you can’t ride’
Strongly criticising the reliance upon constitutional morality to test the validity of religious practices, Singhvi put forward four propositions. First, the phrase ‘constitutional morality’ does not appear anywhere in the Constitution; second, Dr. B.R. Ambedkar had used the term in the Constituent Assembly only in a specific and limited context to explain why he was providing a detailed constitutional structure for administration in a nascent republic where such morality had not yet taken root in the subsoil of the polity; third, constitutional morality was never conceived of as an additional ground of derogation from religious rights; and fourth, the framers had consciously used the word ‘morality’ in Article 25 and not ‘constitutional morality.’
CJI Surya Kant observed that applying constitutional morality in this context would lead to unmanageable and completely subjective standards. Justice Nagarathna noted that in S.P. Gupta v. Union of India (1981), the doctrine had been rightly applied to test the duties of constitutional authorities, and that it should not be used as a wide test to strike down legislation. Justice Amanullah asked whether constitutional morality could be interpreted in a flexible, fluid way that varied across contexts, rather than being discarded altogether.
Singhvi responded that to the extent the concept means acting in accordance with constitutional conventions and filling the silences of the Constitution, it was unobjectionable. But where it had been elevated, as in Navtej Singh Johar (2018), to a major ground for invalidating or diluting legislation, it was being misused. This was different from how Dr. Ambedkar had originally employed the term. In the specific domain of Articles 25 and 26, he urged, it should not be allowed to operate at all.
He also pointed out that the four cases in which constitutional morality had been used as a significant ground of decision had largely been authored by the same two judges, Justices Dipak Misra and D.Y. Chandrachud and that no other judge in any of those benches had adopted the concept in the same form.
‘Difficult to give a declaration that the belief of million people is wrong’: CJI Surya Kant
In his closing submissions of the day, Singhvi addressed the seventh issue framed in the reference on whether a person not belonging to a religious denomination can question the practices of that denomination by filing a PIL. This framing, he argued, was the heart of what had gone wrong in the original Sabarimala litigation.
He placed before the bench a chart of twenty-three Supreme Court cases decided over seventy-five years on Articles 25 and 26. Every single one of them, he submitted, had been initiated by an adherent of the religion who was asserting that the State, through legislation or executive action, had intruded upon their constitutional right. Not one had taken the form of a PIL filed by a third party who was not a believer.
The present proceedings, he argued, had inverted the entire adjudicatory matrix. The denomination, which would ordinarily be the petitioner asserting its rights against state intrusion, had been reduced to a respondent, compelled to defend its practices before a court where neither the government nor a person whose constitutional rights had been violated was the primary mover. “This completely destroys the very concept,” he pressed.
Justice Nagarathna observed that a court would ordinarily decline a PIL questioning a religious practice on the ground that the aggrieved person had not come before it. It would be dismissed as filed by an interloper. Justice Sundresh asked whether a court could decide such a question without hearing from millions of believers. CJI Surya Kant said the most difficult task was to give a declaration that the faith of millions of people was wrong or erroneous which was, he noted, precisely what happened in a PIL.
Justice Bagchi asked if a religious leader were to preach mass suicide as a path to salvation, could the Court not act on a PIL filed by a non-believer? Singhvi conceded that in such an extreme case, the Court might be justified in acting and the CJI added that in such circumstances, the Court might even act suo motu. But the ordinary rule must be one of non-interference, Singhvi maintained, and the threshold for entertaining PILs in religious matters should be ten times higher than for other PILs.
The matter will continue before the nine-judge on April 17, 2026.