“THERE IS A SUDDEN SPURT of constitutional morality and now it is used in 79 judgments,” argued Senior Advocate Arvind Datar yesterday, noting this was not the case till 2016-17, “including foreign exchange, decency, same sex, privacy, across the spectrum ‘morality’ is used.”
As the Sabarimala Reference hearings carried on for a third week, with Review Petitioners yet to conclude, a nine-judge Constitution Bench led by Chief Justice Surya Kant continued hearing the matter on Thursday. Senior Advocates Neeraj Kishan Kaul, Jayanth Muthuraj, Guru Krishna Kumar, Arvind Datar and M.R. Shamshad argued on the inter-operation of Articles 25 and 26, the limits of constitutional morality as a tool of judicial review, the standing of non-believers to file PILs challenging religious practices, and why the Essential Religious Practices (‘ERP’) test had to be rejected.
On Tuesday and Wednesday this week, among other interlocking issues, Review Petitioners had noted that Article 25 was “not a free-standing guarantee of Temple Entry.”
The Court is reviewing its verdict in Indian Young Lawyers Association (2018), which held the prohibition of menstruating women from entering the temple of Lord Ayyappa in Kerala unconstitutional, and a batch of petitions related to the ERP test.
‘Harmonious construction, but cannot reform a religion or denomination out of existence’: Senior Advocate Neeraj Kishan Kaul
Continuing his submissions from Wednesday, Kaul started by explaining how the Supreme Court’s decision in Sri Venkataramana Devaru (1957) laid down the interrelation of Articles 25 and 26. He clarified that Devaru does not rule that Article 26(b) is subject to Article 25(2)(b) in general, but that it is subject to the latter in the specific context of temple entry. Otherwise, he noted, the rights under Article 26(b) and 25(2)(b) are of ‘co-equal strength’. While Article 26(b) was the primary provision when it came to matters of religious affairs, on the issue of temple entry, Article 17, which abolishes untouchability, and 25(2)(b) came into the picture.
Continuing his submissions from Wednesday, Kaul started by explaining how the Supreme Court’s decision in Sri Venkataramana Devaru (1957) laid down the interrelation of Articles 25 and 26.
If there were to be an apparent conflict, the rule of harmonious construction was to be applied. If appellants’ arguments were to be accepted, Article 25(2)(b) would become “wholly nugatory” in its application to denomination, but if respondents’ were to be accepted, then neither provision would be completely negated – only that on temple entry issues, Article 26 would be subject to 25(2)(b).
Adding on to this, Justice B.V. Nagarathna noted that the right of religious denominations under Article 26(b) was also subject to public order, morality and health, which were legislative restrictions. Building on this, Kaul explained that when the State regulates the right of a religious denomination under Article 25(2)(b), it does so keeping in mind public order, morality and health. But there was a caveat. “I can’t say that I will reform a religion or a denomination out of existence,” he noted.
Kaul also argued, like others before him, that constitutional morality had been misunderstood. As the Solicitor General had first argued earlier in April, discussion on constitutional morality in the Constituent Assembly showed that B.R. Ambedkar spoke of it in the context of administrative provisions, as constitutional conventions related to governance. Kaul highlighted that the concept was never discussed in relation to the fundamental right to religion of an individual or a religious denomination. It was only in the 2018 Sabarimala judgment where Justices Dipak Misra and D.Y. Chandrachud first interpreted constitutional morality as a “built-in component of morality under 25 and 26.” Kaul also noted that the very idea behind constitutional morality was to balance various fundamental rights – not just equality and nondiscrimination, but beliefs of faith, worship and religion. Thus, the Sabarimala verdict’s reading had in fact misunderstood constitutional morality.
‘Non believer cannot file PIL ousting religious practice’: Senior Advocate Jayanth Muthuraj
Muthuraj began by exploring the contours of what constitutes a ‘religious denomination’. Referring to how a ‘religious denomination’ is described in Sardar Syedna (1962), he explained it to ‘a common faith’ and ‘a belief in common creed, doctrines and dogma’. Such a community had the right to insist that those who claimed to be its members believed in the essentials of its creed, and those who asserted to be members did not openly denounce the essentials of the creed. This was important to note because when a non-believer filed public interest litigation to seek the ousting of a practice of the creed, that was a problem. Muthuraj did give the caveat that for extreme practices like cannibalism, such as practiced by the Aghoris, the State could pass laws on the ground of morality and health.
Article 25(2)(a) states the State can regulate or restrict “economic, financial, political or other secular activity…associated with religious practice.” Emphasising on ‘secular’, Muthuraj noted that it had to be read as ‘non-spiritual’ aspects of the practice. He reminded that Rajkumari Amrit Kaur in the Constituent Assembly had suggested using the phrase ‘religious worship’. However, the phrase ‘religious practice’ had been adopted instead since ‘worship’ would have entailed regulating everything associated with ‘worship’, such as taking contributions from believers, running the temple, staffing and management. This was not the intent of Article 25(2)(a).
Muthuraj also pressed the Court to consider explicitly ruling that Articles 25 and 26 were part of the basic structure of the Constitution. He noted that Justice A.M. Ahmadi’s concurring opinion in S.R. Bommai (1994) had noted that Articles 15, 16 and 25 to 30 were part of the basic structure.
“My lords, there has to be some kind of clarification on what Devaru stands for,” he stated.
‘Restriction of one fundamental right cannot be read as restriction of another’: Senior Advocate Guru Krishna Kumar
Guru argued that a restriction found in one fundamental right could not be read as a restriction on another fundamental right. He referred to the decision in Sakal Papers (1961) – there, the government had passed a regulation on the number of pages a newspaper could print based upon the price it paid to the government. While newspapers had contended this to be a violation of their Article 19(1)(a) right, the government had traced its power to Article 19(1)(g) (which is subject to ‘public interest’ under Article 19(6)). The Court had noted that Article 19(1)(a) rights could only be subject to Article 19(2) and not 19(6). “I am invoking the same approach and principle,” he noted.
Guru also noted that the holding in Devaru had been misunderstood. While most later Courts had simply taken Devaru’s holding to mean that Article 26(b) was subject to Article 25(2)(b), there was more to it. On the facts, the Court had affirmed the High Court’s ruling which had granted rights to the denomination, by virtue of which, it could exclude others. He noted that its two conclusions – that Articles 25 and 26 were to be harmoniously read, and that 26(b) was subject to 25(2)(b) – were contradictory. “My lords, there has to be some kind of clarification on what Devaru stands for,” he stated.
‘Founding fathers did not contemplate ‘morality’ as constitutional morality’: Senior Advocate Arvind Datar
Datar re-picked the thread on constitutional morality, referring to Ambedkar and Z.H. Lari’s Constituent Assembly speeches to argue that the “founding fathers could never have contemplated morality to be constitutional morality.” Referring to the schema of Article 25(1), he noted that first there was a legislative limitation – ‘public order, morality and health’ – and then a constitution limitation – ‘subject to other provisions of Part III’. Thus, ‘morality’ was what the legislature understood to be ‘moral’. By reading constitutional morality into ‘morality’, the constitutional restriction was being extended into the legislative restriction, he argued.
Datar highlighted that the word ‘morality’ is used in 66 statutes – 9 legislated pre-Independence, and 57 post-Independence. For instance, the Patents Act, 1970 prohibited grant of patent that would be ‘contrary to law or morality’, and the Succession Act notes that one cannot make a bequest ‘contrary to morality’. These, he noted, have been used in the context of societal morality.
He also highlighted that there had been a sudden spurt of judgements using the term even though it was “nebulous”. “You can’t locate it anywhere,” he said, “Privacy can go to [Article 21], manifest arbitrariness can go to [Article 14]...but [constitutional] morality is a completely nebulous term.”
‘Essentiality core issue when it comes to Islam’: Senior Advocate M.R. Shamshad
Shamshad appeared in a specific case where a petition was filed to allow Muslim women to enter into a mosque and offer prayers. That petition, filed by a person named Yasmeen Zubair Peerzada, had claimed that rights of Muslim women under Articles 14, 15, 19 and 25 are violated. It had sought that Muslim women be permitted to stand in the first row, and be permitted to stand in the same line. One prayer seeking issuance of direction “in the nature of mandamus permitting Islamic women to enter through the main door, have an Islamic right to visual and auditory access to mussalla (sanctuary).” Shamshad pointed out that from the scheme of the petition, it appeared that it was being argued that inside the mosque, there is something such as a sanctum sanctorum.
Contending the plea, Shamshad first noted that there was no such thing as a sanctum sanctorum when it came to mosques and “nobody can insist” if the religion itself does not believe so. He further explained that across religious denominations, there was no prohibition on Muslim women entering mosques, especially to offer prayers.
“Prophet Muhammad himself said that ‘Don’t stop women coming to mosque’,” he stated, noting that subsequent hadith had recorded this narration as authentic. He explained that one hadith noted that women were free to preferably offer namaaz at home. Muslim men were obligated to offer prayer as part of a congregation, only possible in a mosque. But if a woman wished to pray from the mosque, there was no prohibition within the religion on that.
Shamshad also raised contention with the ERP doctrine, by placing it in the context of Islamic faith. He explained that Islam is a highly codified religion, wherein beyond the Holy Qur'an, many hadiths and later scholarly interpretations exist. There were further complexities – some were mandatory measures to be performed, some were mandatory measures prohibited. Further, there were cases when scholars had noted despite language of commandment, a practice may not be essential. However, if a matter were to come to Court that certain practices should not be permitted because something is non-essential, or a practice is to be enforced since it is essential, the Court cannot just look at the “translation of one book and take a decision.”
Shamshad noted that in a series of cases on ERP, courts had attempted to determine the essentiality of a practice by looking at interpretations of Islamic texts and had arrived at incorrect findings.
“Essentiality is the core issue here which is under challenge, My Lord,” he noted.
The Review Petitioners will continue their arguments on Tuesday, April 28, 2026.
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