Courts Must Not Attempt To Judicially Determine Nature Of Religious Practices: Muslim Personal Law Board Tells Supreme Court In Sabarimala Review Case

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 Supreme Court passed an order for commencing the 9-judge bench for the hearing of the issues referred in the Sabarimala review from April 7, 2026.

AIMPLB states, "The core of religion” principle cannot be the principle of law to apply for the purpose of exercising rights under Article 25, the mandate of which is to recognise the freedom of religious beliefs. Religions may have different practices relatable to different aspects within the same religion. Accordingly, it is submitted that the courts must not attempt to judicially determine the nature of religious practices. While dealing with Article 25, to interpret what is religious practice or for that matter, core of the religion within the meaning of essential religious practices, these matters must be left for those who are scholars in religion or the religious denominations and/or the belief of the followers of that particular religion. Certain practices change with circumstances, like in Hajj manner of Namaz and many other acts commonly done by the followers of Islam get altered completely. The Namaz which is offered at the time of burial of a follower of Islam is completely different from what is offered normally."

Senior Advocate MR Shamshad and AOR Fuzail Ahmad Ayyubi filed the present submissions.

It says that instead of determining Essential Religious Practice (ERP) of a religion by the Court, effort could be to find a method to lay-down principle to understand the meaning and scope of ‘public order ’ and ‘secular activity’ when it comes to matters of religion.

It submits, "Freedom of faith and religion is an integral part of social structure. Such freedom is not a bounty of the State but constitutes the very foundation on which the superstructure of a democratic State is erected. Religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well. Hence, the right to practice one’s religion would include actions and observances believed to be religious by the follower of a religion or which, as a custom or practice, has continued for a long period of time."

AIMPLB says that understanding ERP with the perspective of “the core of religion” appears to be an exercise which creates the scope of interference in the understanding of the matters of religion. The process of determination of the core of religion itself is very subjective and depends on various factors. Like who is seeking to determine, whether he is a believer in religion or not, whether he or she has read and understood the original text of the religion or only remained dependent on translations of the said text by different intermediaries, it adds. It says that on the other hand, the doctrine of ERP has resulted in the persons claiming the right under Article 25 having to prove, through a narrow interpretation, how the restricted practice is essential to their religion rather than the State having to prove whether its restrictions are permissible under the rigours of Article 25.

Regarding the scope and ambit of Right to Freedom & Religion under Article 25, the Board says, "While determining the scope and ambit of the right to freedom of religion under Article 25 of the Constitution, this Hon’ble Court ought to recognise that gender and religion cannot be treated as neatly separable identities or social spaces. These identities are often intertwined and exist in constant dialogue with one another; they do not operate in isolation. A woman may believe in God, simultaneously assert her autonomy and choose to express her faith through religious belief and practice. In such circumstances, gender and religion coexist rather than stand in opposition. It is this lived co-existence of identities that this Hon’ble Court ought to bear in mind while adjudicating the present matter."

"The State’s tolerance of religion or religions, does not make it either a religious or a theocratic state.7 However, if a State makes a policy where tolerance of one religion is found inbuilt in it but, due to diverse practices of different religion, the other religious practices do not fit into that scheme. That is where persons belonging to the excluded religious practices feel discriminated on a facially and apparently neutral policy, but at the same time carrying unequal traits. Considering the fact that secularism is a part of the basic structure of the Constitution, these policies must be framed considering the element of tolerance towards diverse practices of different religions", it adds.

The Board submits that when it comes to Articles 25 & 26, the principle of 'likes be treated alike' will not apply in view of the fact that Article 25 gives the right to followers of different religion which may have different sets of religious practices and in many aspects, there may be conflict. Irrespective of whether there is conflict or not, the equal entitlement to avail freedom has to be in the context of the practices of different religions. This way of applying the equality principle will establish a substantive conception of equality in matters of religious practices of different religious persons or denominations, it states.

The submission emphasizes that Article 25 guarantees the right to "freely profess, practice and propagate" religion to all persons equally. While this right is subject to public order, morality, and health, the advocate warns that the State should not use these grounds as a "garb" to interfere in religious matters. Specifically, "public order" should not be confused with mere "law and order" to curtail freedoms, and "morality" should be balanced with religious principles rather than being used to override them.

A major concern raised is "indirect discrimination". The Board argues that even if a government policy looks "neutral" on the surface, it might unfairly target a specific religion. For example, Land Allotment: Using population-based metrics for religious sites can discriminate against minority faiths and Archaeological Rules: The "Sunrise to Sunset" rule for monuments may not affect some faiths but can directly restrict the timings of Namaz for Muslims.

The submission urges the Court to adopt a substantive conception of equality, ensuring that the freedom of one religion is not made "weak and insignificant" because its practices do not fit a majoritarian standard.

It concludes, "Accordingly, in view of the above it is submitted that; a. While deciding the issue of religious freedom under Articles 25 & 26 of the Constitution of India, the principle must ensure equality of religious freedoms where all persons/denominations are entitled to freely profess and practice their religion, according to their own religious tenets & on equal terms. In other words where facially looking neutral principles may not lead to indirect discrimination. b. The determination of essentials of religion is a complex question of fact and religious mandate. They are linked with different religious teachings and tenets. Hence, determination of Essential Religious Practices by this Hon’ble Court may lead to encroachment in the rights and freedom as ensured under Article 25. c. The meaning of public order, morality and secular activity be understood by creating a balance between the rights and freedoms to be enjoyed under Article 25. The power of the State under ‘public order & secular activity’ ought not remain untrammelled to allow the State to interfere in the matters of religion under the garb of public order and secular activity."

Finally, the submission highlights that gender and religion are not separate, opposing identities. A woman can assert her autonomy and express her faith through religious practice simultaneously. The Court is urged to recognize this "lived co-existence" rather than viewing religious rights and gender rights as being in constant conflict.

The State of Kerala has also recently 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.

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]