THE SUPREME COURT on April 17 continued hearing the Sabarimala reference before a nine-judge Constitution Bench led by Chief Justice Surya Kant. The day’s arguments by the Review Petitioners traversed the scope of Articles 25 and 26, the meaning of ‘denomination’ and ‘sampradaya,’ the role of constitutional morality, and the standing of non-believers to challenge religious practices by way of public interest litigation. The bench was addressed by Senior Advocates M.R. Venkatesh, Rajeev Dhavan, and V. Giri.
‘Religious practice and denomination are inherently incapable of definition’: M.R. Venkatesh
Senior Advocate M.R. Venkatesh, appearing for Atman Trust, argued that under Articles 25 and 26, expressions such as ‘religious practice,’ ‘Hindu religious institutions,’ and ‘religious denomination’ are “indeterminate” and “probably incapable of being defined.” He traced the word ‘denomination’ to its Latin roots in Christian ecclesiastical structures, arguing that it entered Indian constitutional text through the Irish Constitution and carries conceptual baggage ill-suited to India’s plural religious traditions. Articles 25(2)(a) and 25(2)(b), he submitted, are sui generis provisions crafted specifically for Indian conditions without international precedent, and ought not to be read through foreign doctrinal lenses.
Venkatesh warned against a framework that makes denominational status under Article 26 the only gateway to constitutional protection. If temples do not qualify as denominations under a rigid definition, they could be reduced to purely public spaces, “equated to a bus stand, where anybody can enter and exit,” denuded of any institutional religious character.
Articles 25(2)(a) and 25(2)(b), Senior Advocate M.R. Venkatesh submitted, are sui generis provisions crafted specifically for Indian conditions without international precedent.
Regarding the relationship between Articles 25(2)(b) and 26(b), Venkatesh drew a clear distinction between the right of entry and the right to manage. Article 25(2)(b), he argued, ensures that temples of public character are thrown open to all classes and sections of Hindus, a guarantee of access that extends across caste and community. However, once inside, the management of the institution’s affairs remains with the denomination under Article 26(b). Members of the public, he noted, for example, may enter the Supreme Court to watch proceedings, but the Registrar continues to administer the institution. “Whoever enters cannot say, by virtue of Article 26(b), that I will manage the affairs of the Supreme Court,” he argued.
Venkatesh also argued that the practice of women in South India voluntarily refraining from entering temples or puja rooms during menstruation is rooted in personal religious discipline and belief, and cannot be assessed through empirical standards. He referred to Rule 6 of the Travancore-Cochin Temple Entry Rules, 1950, which bars persons under pollution arising from birth or death from entering temples. Venkatesh argued that such restrictions form part of a coherent framework of ritual discipline and reflect a denomination's right to manage its own affairs and cannot be characterised as discriminatory.
Referring to Dr. B.R. Ambedkar's speeches in the Constituent Assembly, Venkatesh submitted that the framers had consciously distinguished between the social evil of untouchability and temporary ritual impurity arising from biological processes, and that the Sabarimala judgment of 2018 had conflated the two, contrary to constitutional intent.
He also argued that Article 25(2)(a) permits regulation of only secular activities, economic, financial, or political, and does not authorise any intrusion into the core of religious practice. Courts, he argued, had “turned the whole thing upside down” by reading religious law in association with secular practices and boxing religious practices into a corner through the essential religious practices doctrine.
‘I am dead against it’: Rajeev Dhavan on the Essential Religious Practices doctrine
Senior Advocate Rajeev Dhavan, addressing the bench on the essential religious practices (‘ERP’) doctrine, described it as conceptually “unstable” and “unworkable.” He traced the doctrine’s evolution from requiring that a practice be “essential or integral” to a religion, to more recent formulations asking whether removal of the practice would fundamentally alter the character of the religion (a test he said was “too narrow.”) Dhavan submitted that the doctrine has placed courts in the position of evaluating the core of religious belief without any principled framework. “I am dead against it,” he said flatly.
In the 2018 Sabarimala judgment, having concluded that the exclusion of women of a certain age group was not an essential religious practice, the majority proceeded to deny it constitutional protection at the outset. Justice B.V. Nagarathna observed that this had been the basis of the majority’s decision. Dhavan agreed, describing it as a “threshold argument” that defeats a claim before it can be properly examined.
“What will we do without Article 26? All religions will be doomed to ritual”
Dhavan also recalled that in Commissioner, Hindu Religious Endowments, Madras v. Shirur Mutt (1954), the Attorney General had argued that only essential parts of religion are constitutionally protected and that the Court had expressly rejected this proposition. The Shirur Mutt Court had, instead, noted that any practice that is essentially religious in nature can be constitutionally protected. However, later courts had misread the Shirur Mutt Court’s rejection of the Attorney General’s proposition, and endorsed the test of whether a practice was essential to the religion or not.
Dhavan then argued that Article 26 concerns institutional rights without which no religion can sustain itself over time. For instance, Christianity would have perished without the institutional structure of the church built by Saint Paul. The same, he argued, is true of Islam and Hinduism. “What will we do without Article 26? All religions will be doomed to ritual,” he submitted.
Dhavan also supported a broad reading of the word ‘denomination’. He criticised the five-judge bench in 2018 for having imposed what he called a “super-added fifth test” of exclusive distinctiveness, asking how the Sabarimala temple was distinct from other Ayyappa temples, and argued that this requirement must be overruled.
“Sampradaya is an easier word to interpret than denomination or sect,” he proposed, “because once you get into denomination, you are back into Irish.”
Justice Nagarathna observed that sampradaya captures precisely the system of religious practices organised around a particular deity, and that it is this tradition that Article 26 protects. Justice Joymalya Bagchi pressed Dhavan on whether commonality alone suffices to define a denomination, or whether exclusivity from other denominations is also required. Dhavan replied that in syncretic faiths, practices often overlap, making rigid exclusivity an impractical standard.
Dhavan, notably, disagreed with the proposition put forward by Senior Advocate A.M. Singhvi earlier said that there was a difference between entering a temple and praying there. A devotee, he argued, does not go to a temple merely to cross its perimeter, but to pray. “It is not entry simpliciter… it is a right to worship,” he argued. The right must include meaningful participation and cannot be exhausted the moment a physical threshold is crossed.
On the question of constitutional morality, Dhavan submitted that the central inquiry must be whether constitutional morality is being used as an additional ground of limitation on fundamental rights, or whether it remains a value that constitutional functionaries must internalise and uphold. If it is the former, he argued, it becomes dangerous and unmanageable. If it is the latter, it is unobjectionable.
Dhavan referred to the Supreme Court ruling in Anjum Qadri v. Union of India (2024), where Justice Chandrachud, then Chief Justice, had concluded that a statute can be struck down only for violating Part III of the Constitution or for want of legislative competence, not merely for departing from constitutional morality. If undefined concepts like democracy and federalism cannot be used as grounds to strike down legislation, Dhavan submitted, constitutional morality cannot be used either.
Senior Advocate V. Giri argued that the ERP doctrine should be applied with restraint but not abandoned altogether.
On the scope of judicial inquiry into belief, Dhavan argued that courts must apply a threshold test of bona fides. Dhavan argued that a court may inquire into whether an assertion of religious belief is made in good faith, neither fictitious nor capricious, but may not go further and evaluate the correctness of the belief against any objective standard, whether doctrinal or logical. Religious belief, he submitted, is “intensely personal and can easily vary from one individual to another.” Justice Nagarathna agreed that rationality of belief cannot be made a subject of judicial review.
Dhavan argued that even superstitious beliefs, Dhavan submitted that they must receive constitutional protection, since all religions would collapse if subjected to the logic of scientific verification. The only qualification, he acknowledged, is where a superstitious belief finds an external manifestation that causes harm, such as witchcraft, in which case it falls outside the protection of faith.
In his closing submissions, Dhavan addressed the question of who may approach the court to challenge a religious practice. He outlined three situations where persons of another faith may have standing: (a) where universal constitutional values such as Articles 14 and 17 are engaged; (b) where a constitutional or statutory duty is not being enforced; and (c) where a religious practice affects non-members on grounds of health, public order or morality.
Dhavan also urged the bench to recognise “derivative PILs,” filed by organisations acting on behalf of persons who have a genuine grievance but no access to legal recourse. He drew the analogy of the NAACP’s legal division in the United States, which translated the civil rights grievances of Black Americans into constitutional litigation, culminating in Brown v. Board of Education (1954). Without such derivative standing, he submitted, many legitimate constitutional claims would go unaddressed.
Justice Nagarathna questioned whether a non-believer could, at the instance of a non-aggrieved person, invite the Court to examine the rationality of a religious practice. Dhavan replied that while a believer may sometimes disagree with a practice from within their faith as in Triple Talaq, where Muslim women themselves challenged the practice, the cause of action must ultimately be constitutional, not merely a question of the practice's internal correctness.
Essential Religious Practices doctrine should not be discarded: V. Giri
Senior Advocate V. Giri argued that the ERP doctrine should be applied with restraint but not abandoned altogether. He argued that once a deity is consecrated, it acquires a distinct character, and the preservation of that character forms part of the religious practice itself. The mode and manner of worship, he submitted, are not incidental but integral to the temple’s identity.
Justice Nagarathna pointed out that such an approach risks insulating any practice from scrutiny, provided it is framed as connected to the character of the deity. Justice Ahsanuddin Amanullah observed that while belief is intensely personal, once it takes outward form, it may still fall within the scope of judicial review where constitutional guarantees are directly implicated.
On the exclusion of women between the ages of ten and fifty from the Sabarimala temple, Giri submitted that this reflected “a collective wisdom that has been followed for years and years, decades and decades together.”
The matter will continue before the nine-judge bench on Tuesday, April 21, 2026.