Sabarimala Reference|Secular Courts Are Scholars Of Law, Can't Decide Religious Practices Due To Lack Of Scholarly Competence: Centre Concludes Its Arguments

Concluding its submissions before the 9-judge Constitution Bench, the Centre, represented by Solicitor General Tushar Mehta, argued that secular courts lack the "scholarly competence" to sit in judgment over the validity or rationality of religious faith.

Mehta asserted that while judges are experts in the field of law, they cannot act as arbiters of scripture or determine whether a practice is "superstitious," as such determinations are inherently subjective and vary across India's pluralistic landscape.

He urged the Court to move away from the "Essential Religious Practices" doctrine—which he described as a judicial tool with no textual basis in the Constitution—and instead respect the sanctity of deity attributes and the sincere beliefs of devotees as the primary legal standard for religious freedom under Articles 25 and 26.

He also called for total abandonment of the "Constitutional Morality" doctrine as a basis for judicial review. He argued that the Courts should never test, either a legislative enactment or an administrative act, based on vague concepts that are capable of elastic interpretation, which is both subjective and individualistic.

Yesterday, April 7, 2026, the 9-judge Constitution Bench of the Supreme Court, led by Chief Justice Surya Kant, commenced the landmark hearing on the Sabarimala reference. Solicitor General (SG) Tushar Mehta, representing the Centre, led the arguments with a direct challenge to the 2018 verdict and the current judicial approach to religious practices.

The Bench comprising Chief Justice Surya Kant, with Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, R. Mahadevan, Prasanna B. Varale, and Joymalya Bagchi, was hearing review petitions and writ petitions arising out of the 2018 Sabarimala Judgment, which allowed women of all ages to enter into Lord Ayyappa's temple. The pleas were filed, inter alia, regarding the entry of Muslim women into mosques and dargahs, and the rights of Parsi women to enter Fire Temples if they have married outside their community and the legal validity of female genital mutilation within the Dawoodi Bohra community.

The Shift in Jurisprudence: From "Integral" to "Essential"

Continuing his analysis of the shifting legal standards, Solicitor General Tushar Mehta identified a critical departure in the Dargah Committee judgment compared to the trio of earlier precedents—Shirur Mutt, Ratilal Gandhi, and Devaru.

The SG pointed out a fundamental procedural difference: in the three earlier cases, the petitions were filed by the affected individuals (such as the Mathadhipati). However, in the Dargah Committee case, it was the committee itself that approached the court to challenge the government's takeover of the administration of the Khawaja Moinuddin Chishti Dargah.

Mehta argued that Justice Gajendragadkar’s judgment in Dargah Committee introduced a "note of caution" that fundamentally altered religious jurisprudence. He highlighted two major issues with this shift: 1. The SG contended that the three earlier 1954–1958 judgments only required a practice to be "internally religious" or "integral" to the faith. The Dargah Committee ruling merged these into a much stricter "essential and integral" test—a standard he claims was never originally intended. 2. He criticized the court's observation that religious practices springing from "superstitious beliefs" are "unessential accretions" and do not deserve Article 26 protection.

Judicial Competence and the "Superstition" Trap

He said, "Unless such practices are found to constitute an essential and integral part of a religion, their claim for the protection under Article 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other. A secular court would sit in judicial review over faith and belief systems and decide whether a particular belief is essential and for which the court will have to necessarily examine scripture and several other scriptures in case of internal pluralism and come to a religious conclusion..."

Justice Sundresh said, "Mr Solicitor, their understanding is on the touchstone of article 25(2)(a). What they say is that religious practice is different from religious belief. What they are saying is reiterating article 25(2)(a)."

Chief Justice said, "One essential expression which doesn't find mention in Article 25 itself, that has been borrowed as a precondition to religious practice. Religious practice has been made as an essential religious practice."

Mehta added, "What is really objectionable. How does the court decide what superstitious practice is?"

Justice Amanullah said, "You made it too simplistic. The court has the right and jurisdiction in judicial review to hold what is superstition, what will follow is for the legislature to deal with it...but then, you can't say whatever is the last word that the legislature decides."

Mehta responded, "A secular court cannot decide a religious practice as mere superstitions because my lordships do not have scholarly competence....your lordships are scholars in the field of law...Something which is religious for Nagaland may be completely superstitious for me. We are a very pluralistic society with a variety of people, religion and belief systems. It would be very hazardous for the court to say."

Justice Amanullah remarked, "After the law is passed, it is justiciable. We are not totally out, and the legislature has the last say."

Justice Bagchi asked, "If witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious?"

Mehta responded, "I will."

The Boundary of "Residual Jurisdiction"

Justice Bagchi questioned whether the Court could intervene to prohibit such a practice under its Article 32 or 226 powers if the legislature remained silent. Mehta responded that while he would personally view witchcraft as superstitious, any judicial prohibition should be based on the established constitutional exceptions of public order, health, or morality, rather than a subjective judicial determination that the practice is a "superstition" or "non-essential" to the faith.

Justice Sundresh suggested that while the Court could adopt a restrained or "hands-off" stance in many instances, it would be an overstatement to say the judiciary should be completely barred from entering the domain of religious practice.

Building on this, Justice Bagchi acknowledged the primary role of the legislature under Article 25(2)(b) to enact social reforms. However, he emphasised that the existence of legislative power does not strip the Court of its residual jurisdiction.

Chief Justice said, "First, if something is there like witchcraft, cannibalism or human sacrifice, which shocks the conscience of the Court, then on the face of it, no further adjudicatory exercise may be required. We cannot replace ourselves with the expertise of subject experts. We are only examining how far such a matter can fall within judicial review...The moment there is this kind of practice, the court will simply say it violates the public order, morality."

Mehta responded, "My lords can even say we request the parliament to come up with a law."

Justice Nagarathna added, "Mr Solicitor, the approach of the court in such matters also must be to determine essential religious practice from the lens of the philosophy of the particular religion. You can't apply some other religion and say, this is not an ERP...Of course, subject to public order and morality. This is about how the court examines this and not whether it has jurisdiction or not."

Re-evaluating the "Sardar Syedna" and "Seshammal" Precedents

Solicitor General then discussed the landmark 1962 judgment in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, where the Supreme Court struck down a law that tried to ban excommunication in the Dawoodi Bohra community. Mehta highlighted a major point of concern, focusing on the clash between religious autonomy and civil rights. He noted that while the minority view in that judgment warned that Article 26(b) should not be used to oust an individual's civil rights or turn them into a persona non grata, the majority ultimately accepted that Article 26(b) acted as a standalone protection for denominational power.

The SG expressed the government's deeper worry regarding this precedent. He cautioned that if Article 26 is interpreted as being entirely independent of other constitutional limits, a denomination could theoretically claim the right to exclude women from all its religious institutions by arguing they are not governed by Article 25. He questioned whether the Constitution, when interpreted as a whole, could ever intend to allow such a total bypass of fundamental principles.

Justice Nagarathna noted that the Court at the time gave priority to Article 26(b), ruling that a religious denomination has the exclusive right to manage its own affairs, including the power to excommunicate members.

The Solicitor General confirmed that while the state's reform law was struck down, the religious practice itself was upheld. He highlighted a major constitutional tension: the 1962 Court decided that the state's power for social reform under Article 25(2)(b) could not override the internal religious discipline and autonomy of a denomination. He warned that interpreting Article 26(b) in isolation could lead to the "fragmentation of religion," where different denominations within the same faith arbitrarily bar others from their temples.

The Solicitor General turned to the Seshammal (1972) case to illustrate the necessary limits on state intervention, highlighting the Court's earlier finding that the State "cannot reform a religion out of existence." He pointed out that if a denomination follows a hereditary principle for appointing its priests (Archakas), such a practice is considered vital to the religious faith and cannot be forcibly changed under the pretext of social reform.

Justice Nagarathna reinforced this sentiment, observing that religion must not be allowed to lose its fundamental identity in the name of reformative actions.

Challenging the Definition of "Religious Denomination"

Mehta then discussed S.P. Mittal (Auroville) and Sabarimala judgments, arguing that they relied on a flawed and overly restrictive definition of a "religious denomination." He submitted that the current three-pronged test—requiring a collection of individuals with a common system of beliefs, a formal organisation, and a distinctive name—is an incorrect standard that has led to "wrong law."

He argued that the term "religious denomination" in Article 26 must take its character directly from the broader word "religion" rather than being bound by a rigid, checklist-style definition. By following the S.P. Mittal majority, Mehta contended that the Sabarimala judgment incorrectly denied constitutional protection to the shrine. He maintained that the 9-judge Bench should rectify this by recognizing that a denomination's identity flows from its spiritual essence rather than its formal organizational structure.

The Solicitor General continued his critique of the S.P. Mittal criteria by using prominent Indian shrines to demonstrate how the current "religious denomination" test fails to reflect the lived reality of faith. He pointed out that places like Nizamuddin Auliya and Shirdi Sai Baba attract people from all religions who visit out of deep trust and reverence. Under the rigid judicial requirement of a "common faith" or a "common organization," these iconic institutions might fail to qualify as denominations, despite their undeniable religious character. Mehta argued that faith is driven by the follower’s belief, not by a formal organizational checklist.

Justice Nagarathna said, "It is not denomination per se, but religious denomination. How does it become a religious denomination in terms of Aurobindo's philosophy?" [in reference to the S.P. Mittal judgment]...Please keep the illustrations separate. Aurobindo is not a religious denomination; it may be a denomination."

Mehta said, "It is a religion. It may be an honest and informed view, but what is relevant is my view as a follower, whether I believe it to be a religion."

CJI said, "We appreciate your argument that because Aurobindo followers believe that the view they follow is religious or it carries all the components of a religion, therefore, they carve out an exception. Therefore, others can't impose it on them that you are not religious...If someone says I follow Aurobindo right from morning since I get up till I sleep. I follow his idea, his philosophy, his guidance,e and treat him as my supreme being, ng then who are you to tell me that it's not religion. This is your submission."

Justice Bagchi intervened to clarify the purpose of the "common organization" test, suggesting that it applies to the group managing the institution rather than the visitors. He noted that the "common faith" could be expansive—allowing outsiders to visit—or exclusive, depending on the internal beliefs of that specific denomination. This structure, he argued, provides a framework for identifying the group entitled to protection under Article 26.

Justice Bagchi said, "You are applying the test in the wrong place. What is the test being applied to? Is it to the people visiting the institution or to the Mutt? I understood the ratio to be that the test is applied to the organisation of the group of persons who are managing the temple or the Mutt. Whether they have a common faith, whether they have a common organisation, whether they are chosen by the followers of the Mutt, and that they themselves are followers and bound by that faith...That is the viewpoint."

The Solicitor General responded by challenging the application of high-level intellectual or legal standards to the personal right of religious freedom. He argued that while the Bench’s scholarly understanding of complex works like Sri Aurobindo’s Savitri might lead to a specific philosophical conclusion, that should not be the test for a fundamental right. Mehta contended that the correct constitutional test must be the follower’s own understanding: if a person believes their practice is a religious one, the Court should respect that identity rather than imposing an external, academic definition.

Chief Justice reframed the issue, suggesting that Articles 25 and 26 must be viewed as shields against State aggression. He observed that the primary purpose of these constitutional protections is to safeguard religious bodies and denominations from overreaching government intervention. 

Justice Ahsanuddin Amanullah said, "Mr Mehta, you were just referring to Ajmer Sharif Dargah.... it is a denomination. ... it is a part or a section of a religion. Because, basically, Islam has Sufi thought, and that practice comes out of it, and then it gets protection...I am sorry, but merely because anybody can go there does not mean that it goes outside the purview of a broader denomination of that religion. Why are we trying to interpret Articles 25 and 26, where the language is very clear, unless a particular factual situation arises as to whether that fact would be covered by Articles 25 and 26? The question is: what is the level of protection, to what extent, and in respect of what nature of activity? Unless we keep that in focus, I think there is no dispute. Otherwise, anybody may decide it in that way."

Constitutional & Public Morality

The Court had framed the issue: What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution of India, and whether it is meant to include Constitutional morality?

Justice Bagchi proposed a dual-morality framework: while Constitutional Morality governs secular life, Societal Morality (informed by religious philosophy and cultural ethos) should govern the religious sphere. He questioned whether a secular democracy should force these two distinct identities—the citizen as a secular actor and the citizen as a believer—to be tested against the single, rigid standard of Constitutional Morality, especially if a practice is socially accepted and culturally consistent.

Solicitor General responded with a sharp rejection of the "Constitutional Morality" doctrine entirely. He argued that it is not a valid ground for judicial review, citing the view of a former Attorney General who described it as an "unfortunate concept" that should be discarded. 

He said, "Constitutional morality is not a ground for judicial review. Our former AG has said that it is an unfortunate concept and must die as soon as possible."

The Solicitor General anchored his arguments in the Constituent Assembly Debates, asserting that the "morality" mentioned in Article 25 refers strictly to societal morality—the shared ethical values of the community—rather than the abstract "constitutional morality" used in the 2018 Sabarimala verdict.

Solicitor General said that the doctrine of Constitutional Morality in the 2018 Sabarimala verdict was a fundamental legal error. He contended that the terms "public order, morality, and health" in Article 25 must be understood as public morality—the shared values and ethical standards of a society—rather than the "vague and wrongly applied" concept of constitutional morality.

Mehta argued that Constitutional Morality is a principle belonging to political science, intended to guide how government functionaries behave (such as whether an official facing criminal charges should resign). He maintained that while these may be important constitutional conventions, they do not constitute a valid legal ground for a court to exercise judicial review over religious faith.

The SG specifically critiqued the 2018 Sabarimala judgment for dismissing societal values as "mob morality." He argued it is "absurd" for a court to tell a believer that their harmless faith is irrelevant simply because it doesn't align with a judge's interpretation of constitutional morality. He submitted that if a religious practice does not harm society or violate public order, the court should not use a subjective moral framework to override the sincere faith of millions.

When SG referred to State of Maharashtra v. India Hotel Association to discuss the concept of ' Morality', Justice BV Nagarathna remarked, "With the passage of time in Indian Society, what was considered to be immoral or obscene, is no longer considered as immoral or obscene. That is the problem of India now...See the standard which were there in the 50s are not the standard here...You said the standards of the 50s were narrow-minded, IT WAS NOT!... Narrow-minded cannot be the criticism...criticism now is that it is narrow-minded, myopic, old-fashioned, etc. This is the problem of Indian society."

Mehta replied, "That is transformative constitutionalism, which I have not been able to understand. I have been listening to this for some years, but in my limited understanding, I couldn't understand."

Justice Nagarathna said, "We are not on transformative constitutionalism, it's good for the constitution, you said public morality is also not static- that is what I tried to say."

By reading from the Constituent Assembly Debates, Mehta emphasized that Dr Ambedkar and the framers never intended for such a vague concept to be used to strike down enactments or religious practices.

Justice Bagchi said, "What the Hon'ble Chief Justice is indicating, these are observations of one of the Hon'ble Justices, but the ratio based on which Joseph Shine declared adultery...It is an issue of gender discrimination where equality in general has not been respected in the law, women have been deemed to be property, not being sui generis...this is the fundamental ratio as we read it."

CJI remarked, "At least we will not be said that representation was not there. Ofcourse outcome can be wrong, etc."

SG remarked, "It is representative. None of you is from Harvard or Yale. This reflects those who have risen from the ranks and played on the streets. So we know what social morality is..."

Dangers of Denominational Isolation: Balancing Article 26(b) Against Social Harmony

Solicitor General then moved to an argument, asserting that Article 26(b)—the right of a denomination to manage its own religious affairs—cannot be treated as an "isolated island" provision. He warned that if this right is interpreted as entirely unhindered and standalone, it could lead to the fragmentation of religion, where different denominations within the same faith arbitrarily bar one another from their sacred spaces. Mehta expressed a grave concern that such an absolute interpretation could even be misused to exclude members of the Scheduled Castes, thereby undermining broader constitutional protections.

To prevent internal disharmony, he proposed that while Article 26(b) is a powerful denominational right, it must be balanced against the State's power of social reform under Article 25(2)(b). He concluded that while denominational autonomy should be respected, it must not become a tool for exclusion that bypasses the fundamental principles of a pluralistic society.

Concluding Arguments

Mehta explicitly stated his position that the 2018 Sabarimala judgment is "incorrect" and that he is in favour of the review.

However, he argued that the current proceedings are not meant to re-litigate the facts of Sabarimala itself. Instead, the mandate of the 9-judge Bench is to establish a larger judicial policy on how the Indian judiciary should handle complex questions of religious freedom and denominational autonomy.

Justice B.V. Nagarathna raised a fundamental question regarding locus standi (the right to bring a case to court), pointing out that the original Sabarimala challenge was not brought by devotees of Lord Ayyappa. The Solicitor General confirmed that the original petitioner was the Indian Young Lawyers Association, a group not directly associated with the temple's faith or practices.

Justice Nagarathna asked if the Court should entertain a writ petition challenging a religious practice when the petitioner is a "non-devotee" who is not personally affected by the custom? She questioned whether someone entirely unconcerned with a specific temple should have the legal standing to ask the Court to interfere with its internal traditions, especially under the banner of a "public interest" challenge.

Justice B.V. Nagarathna noted that in traditional litigation, a suit filed by an association without a direct "cause of action" or "causal connection" would be summarily rejected under Order VII Rule 11 of the CPC.

Mehta also raised fundamental questions regarding the use of Public Interest Litigation (PIL) to challenge religious traditions. He characterized the ongoing legal battle as a conflict between a "silent majority" and a "vocal minority," arguing that the original justification for PIL jurisdiction has significantly diminished.

Mehta pointed out that while PILs were initiated in the era of Bandhua Mukti Morcha to help those with no means to approach the Court, modern advancements like e-filing and the presence of National and District Legal Services Authorities (NALSA/DLSA) have made the judicial system far more accessible.

He contended that since any citizen can now directly seek legal aid for fundamental rights violations, there is no longer a need for third-party representation of an "unrepresented class," especially when many current PILs are "motivated" by external agendas.

In response, the Chief Justice acknowledged the SG’s concerns but maintained that the Court has already evolved a rigorous internal vetting process. He noted that over the two decades between 2006 and 2026, the Supreme Court has become increasingly cautious and selective in entertaining PILs.

The CJI emphasized that the Court now applies strict parameters to identify "substance" and filter out petitions driven by hidden agendas. While agreeing on the general principle that the judiciary must remain vigilant against the misuse of its jurisdiction, the Bench indicated that the threshold for entertaining a PIL today is far higher than in previous decades, specifically to prevent the court from becoming a tool for "vocal" interest groups.

Accordingly, the Union of India concluded its submissions, and the hearing was adjourned.

Tomorrow, Senior Advocates C. S. Vaidyanathan and Abhishek Manu Singhvi will present their arguments. 

On February 16, the Court issued an order to commence the 9-judge bench for the hearing of the issues referred in the Sabarimala review, scheduled to begin on April 7, 2026.

Written Submissions by the Parties

The State of Kerala has filed its submissions in the matter. It has been said that any judicial interference into long-standing religious practices must only occur after wide-ranging consultations with eminent religious scholars and reputed social reformers of that specific faith.

It was also said that a person not belonging to a religious denomination or religious group has sufficient interest in questioning a practice of that religious group or religious denomination by way of a public interest litigation.

The Travancore Devaswom Board (TDB) has also filed its Written Submissions in the Sabarimala case and has submitted before the Supreme Court that the Court is bound to accept the belief of the community, and it is not for the Court to sit in judgment on that belief.

The All India Muslim Personal Law Board has submitted that religions may have different practices related to different aspects within the same religion, and the courts must not attempt to judicially determine the nature of religious practices.

The Akhil Bhartiya Sant Samiti moved an intervention application seeking to safeguard the "lived realities" of Hindu traditions from judicial overreach. The Samiti, representing 127 sects of Sanatan Dharma, contended that secular courts lack the specialized expertise to determine "Essential Religious Practices" and argued that the fundamental right to equality under Article 14 cannot be used to dismantle the specific protections granted to religious faith under Article 25.

Cause Title: Kantaru Rejeevaru Vs Indian Young Lawyers Association; Sabarimala Custom Protection Forum Vs Indian Young Lawyers Association [R.P.(C) No. 3358/2018 in W.P. (C) No. 373/2006]