“A COMPLETE THIRD PARTY, a non-believer, cannot walk into a place of worship and demand that matters of faith must yield to individual claims,” submitted Advocate Nizam Pasha, capturing a thread that ran through the entirety of Tuesday’s proceedings before the Supreme Court.
Yesterday, the Sabarimala Reference saw the Review Petitioners conclude their arguments before a nine-judge Constitution Bench led by Chief Justice Surya Kant. A string of advocates, which included Senior Advocates Sridhar Potaraju and Madhavi Divan, and advocates Nizam Pasha, Ashwini Kumar Upadhyay, and Mathews Nedumpara, alongside several intervenors, addressed the Bench on questions of denominational rights, the reach of social reform under Article 25(2)(b), and the constitutional limits of judicial scrutiny over religious belief.
‘A place of worship is nothing but a belief system’: Advocate Nizam Pasha
Pasha opened by drawing attention to a law student’s petition in the Delhi High Court seeking entry for women to the inner sanctum of the Hazrat Nizamuddin Dargah, which he described as a stark illustration of how the 2018 Sabarimala judgment had been misused. His central submission was that a place of worship embodies a belief system, and that its contours cannot be redrawn by those who do not subscribe to that faith.
Pasha, while relying on Sri Venkataramana Devaru v. State of Mysore (1957), argued that Sufi dargahs of the Chishtiya order qualify as religious denominations entitled to protection under Article 26. He drew a clear distinction between Articles 25 and 26, the former protecting individual conscience, the latter securing the collective right of a religious community to manage its own affairs. Entry rights under Article 25(2)(b), he maintained, were intended to address social reform, not to function as a general override of denominational autonomy.
When Justice Joymalya Bagchi raised concerns about such immunity to religious denominations, Pasha acknowledged that religious practices remained subject to public order, morality, and health, but argued that the scope of social reform was equally bounded by the same constraints. He further submitted that the question of who controls what happens within a place of worship has a clear constitutional answer. “In every single case there will be a right holder,” and that right lies with the denomination.
‘If it is a fundamental right, where is the power to qualify it with tests?’: Senior Advocate Sridhar Potaraju
Potaraju grounded his submissions in the architecture of Part III, contending that the Constitution reflects a conscious act of the sovereign parting with certain powers and reserving others. Once a right is reserved in this manner, the power to impose qualifications upon it does not follow automatically. Judicial tests, he argued, could not be superimposed on freedoms that the Constitution had deliberately left unconditioned.
He pointed out that the Constitution does not define who a ‘Hindu’ is, reflecting the inherent diversity of religious practice in India. Examining religious belief, he submitted, requires operating from within the faith and not from the standpoint of an outsider. Any attempt to shift protections between Articles 25 and 26 would not amount to interpretation, but to a reconfiguration of the constitutional text itself.
‘Article 25 and Article 26 are symbiotic’: Senior Advocate Madhavi Divan
Divan appeared for worshippers of sacred groves, locally known as ‘orans’, in western Rajasthan. In these communities, the forest itself is understood as the manifestation of divinity, with customary practices rooted in non-violence and abstinence. She submitted that such communities, though loosely organised and outside the conventional denominational structure, were fully entitled to protection under both Articles 25 and 26. Individual religious freedom, even in its most personal dimension, freedom of conscience, cannot be exercised in isolation, she argued. It depends on access to shared spaces, institutions, and collective practice. “In order for me to be able to enjoy Article 25, I need Article 26,” she noted.
However, she sounded a note of caution against making Article 25 rights contingent on formal denominational recognition under Article 26. Since Article 25 guarantees rights to “all persons”, what happens to communities that cannot satisfy a strict denominational test? Treating denominational status as a gateway to full constitutional protection, she warned, risked creating conditions where only organised and exclusive communities survived.
Justice M.M. Sundresh observed that ‘religious denomination’ represents the collective rights of believers and cannot be used to override individual adherents. Justice B.V. Nagarathna added that while denominational autonomy under Article 26(b) is protected, practices that affect society more broadly remained open to State intervention under Article 25(2)(b) for purposes of social reform.
‘Bharat has been divided in 25 pieces’: Advocate Ashwini Kumar Upadhyay
Upadhyay began with the proposition that “Dharma cannot be translated into religion,” and that Articles 25 and 26 were among the most tightly controlled fundamental rights in the Constitution, subject to public order, morality, health, and the wider framework of Part III.
His arguments, however, quickly moved beyond the reference questions. He urged the Bench to weigh the long-term consequences of accepting the opposing arguments, warning that denominational conflicts had fractured the country. He drew comparisons to other nations, pressing the Court to consider what India might look like in 25 years depending on the path chosen.
The Bench intervened repeatedly. Justice R. Mahadevan told Upadhyay he was “going beyond the subject.” Justice Ahsanuddin Amanullah agreed. When Upadhyay pressed on, observing that “the entire world is burning due to religious conflict,” Chief Justice Surya Kant cut him short, indicating his time had elapsed.
‘Social reform cannot obliterate religious freedom’: Intervenors
Several intervenors placed their submissions yesterday. Advocate Fauzia Shakil argued that the power of social reform was not unlimited and that any such intervention had to remain proportionate and could not extinguish rights under Article 25. On the question of whether courts could assess the genuineness of a belief, the Bench was quick to flag that this would inevitably pull the Court into theological questions. Accepting this, Shakil limited her arguments to testing genuineness rather than doctrinal correctness, and adding that petitions must be brought by persons genuinely aggrieved, not by those with abstract or third-party claims.
Counsel for the Hindu Dharma Sabha, an organisation aimed to defend traditional Hindu customs, practices, and beliefs, argued that the test for religious denomination had grown unduly rigid, and that requiring communities to prove exclusivity was at odds with the constitutional protection intended. Justice Nagarathna noted that while a temple cannot block a public road during a festival since that raises public order concerns falling within the State’s regulatory reach, what constitutes a religious practice itself remains within the domain of denominational autonomy, and courts cannot sit in judgement over it. Advocate Gauri Subramanium cautioned that if individual hardship became the governing standard, every religious boundary would become contestable.
Advocate Eklavya Dwivedi questioned whether Article 25(2) can be used to control the rights of a religious denomination under Article 26. He argued the constitutional text and drafting history both answered in the negative. While Article 25(1) is expressly made subject to the rest of Part III, including Article 26, no such limitation exists in Article 26 itself. He explained this to be a conscious omission during drafting. Otherwise, denominational rights would have been subject to the remainder of the chapter.
‘The 2018 judgment is liable to be recalled’: Advocate Mathews Nedumpara
Nedumpara closed the day’s proceedings with a direct challenge to the legitimacy of the 2018 Sabarimala judgment. He submitted that the authority of any judgment rests on acceptance and principle and not on its operation as res judicata against those who were never parties to the proceedings. Binding a person without a hearing, he argued, violates foundational principles of natural justice. He pressed further, questioning whether the binding value of a judgment is a function of bench strength. The weight of a judgment, he submitted, “lies in the principle and not in the numbers.”
Arguments from parties opposing the reference have commenced today.
