The essential religious practices (ERP) doctrine came under criticism from both respondents and review petitioners on Day 15 of the Sabarimala Reference hearing before a nine-judge Constitution Bench of the Supreme Court on May 13, 2026. Respondents argued that the doctrine has narrowed religious freedom by shielding exclusionary practices from constitutional scrutiny. Rejoinder submissions contended that courts cannot decide whether a practice is “essential”, rational or progressive without entering the religious sphere.
Background
On September 28, 2018, in Indian Young Lawyers Association v. State of Kerala, a Constitution Bench comprising Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra held by a 4:1 majority that the Sabarimala Temple’s custom prohibiting the entry of women between the ages of 10 and 50 years was unconstitutional. The Bench further held that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which permitted religious denominations to exclude women on the basis of custom, violated the fundamental right to freedom of religion under Article 25 of the Constitution. The Bench held that devotees of Lord Ayyappa did not constitute a separate religious denomination and that the impugned custom was not an essential religious practice.
More than 50 review petitions were filed by various individuals and organisations, including Kantaru Rajeevaru, the Chief Priest of the Sabarimala Ayyappa Temple, the National Ayyappa Devotees (Women’s) Association, the Nair Service Society, and the All Kerala Brahmin’s Association. On November 14, 2019, the review bench by a narrow 3:2 majority kept the review petitions pending and referred overarching constitutional questions to a larger bench, finding that the Sabarimala judgment would have a bearing on other freedom of religion cases. Justices Nariman and Chandrachud dissented.
On February 10, 2020, a nine-judge Bench upheld the referral order. The Reference was subsequently heard by a reconstituted nine-judge Bench comprising CJI Surya Kant with Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, P.B. Varale, R. Mahadevan, and Joymalya Bagchi.
Key Issues Before the Bench
The reference raises the following questions:
- What is the scope and extent of judicial review with regard to a religious practice under Article 25 of the Constitution?
- What is the scope of the word ‘morality’ under Articles 25 and 26, and whether it includes constitutional morality?
- What is the scope of the right to freedom of religion under Article 25?
- Whether rights of a religious denomination under Article 26 are subject to other provisions of Part III beyond public order, morality and health
- What is the meaning of the expression ‘sections of Hindus’ under Article 25(2)(b)?
- What is the inter-play between rights under Article 25 and denominational rights under Article 26?
Gopal: Reformist Voices Within Religion Have Been “Silenced”
Professor C. Mohan Gopal argued that the reference presented an extraordinary opportunity for “course correction” in the constitutional structure governing religious freedom. He submitted that reformist voices within religions had been “silenced” for 75 years through judicial interpretation, and that the Court had wrongly approached the issue as a conflict between Part III fundamental rights and Article 26, ignoring reformative traditions arising within faith communities. Chief Justice Surya Kant observed that reform within religion would be protected under Article 15. Gopal further argued that many individuals were consumed by religion without voluntarily choosing denominational identities and warned that accepting the opposing interpretation would permit denominations to effectively secede from Part III.
Khanna: Denominational Rules Remain Subject to Judicial Scrutiny
Senior Advocate Rakesh Khanna argued that religious denominations under Article 26 have collective rights flowing from Article 25 and cannot claim immunity from their obligations under Part III. He submitted that denominational rules framed under Article 26(b) remain subject to Article 13, which prohibits laws in derogation of fundamental rights. CJI Surya Kant observed that if Parliament and state legislatures are bound by Part III, religious denominations cannot claim immunity above constitutional scrutiny. Justice Amanullah added that majoritarian notions of reform could be imposed upon smaller religious institutions. Khanna submitted that Article 26 protects autonomy in matters of appointment of religious functionaries and internal administration but does not confer plenary authority over bodily autonomy.
Padmanabhan: Group Rights Must Remain Subject to Equality
Senior Advocate Prashant Padmanabhan argued that Article 25 is the genesis of the right to religion, with Article 26 constituting merely one of its facets. He submitted that the interplay between Articles 25 and 26 requires balancing individual liberty against denominational autonomy, and that the word “person” in Article 25 must be read alongside instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which recognise dignity and legal personhood. He further submitted that any purification ceremony conducted after a woman’s entry into Sabarimala would violate her civil rights, and that “all sections of Hindus” under Article 25(2)(b) excludes none.
Kalitha and Anand: Customs Cannot Remain Immune from Constitutional Scrutiny
Advocate Sneha Kalitha argued that Article 26 cannot be treated as insulated from other fundamental rights and that restrictions under Article 25(2)(b) are transformative in character, applying to Article 26 through a doctrine of compatibility. She submitted that customs rooted in notions of purity cannot remain immune from constitutional scrutiny in a transformative constitutional democracy.
Advocate Harshit Anand argued that proportionality and harmonious construction may fail in cases involving “hard claims” where competing fundamental rights arise within the same individual. He submitted that constitutional morality becomes necessary in such situations because fundamental rights cannot be waived even voluntarily, and drew upon practices such as Santhara in Jainism and Sokushinbutsu in Japan to illustrate the difficulty of resolving conflicts between Article 21 rights and individual assertions of religious freedom.
Jaising: Doctrine of Substantial Inquiry Over Proportionality
Senior Advocate Indira Jaising, concluding submissions for the respondents, argued that the doctrine of proportionality has never been applied to resolve clashes between competing fundamental rights. She proposed a “substantial inquiry” test, under which the Court must first determine whether the injury to the right is substantial or minor — if minor, one right may temporarily yield; if substantial, the Court must determine which right prevails. She urged the Bench to continue with the existing framework of harmonisation, the ERP doctrine, and substantial injury analysis, rather than replacing settled jurisprudence with proportionality.
Mehta: Essentiality Test Narrows Religious Freedom
In rejoinder submissions, Solicitor General Tushar Mehta argued that courts have historically approached religious freedom from the wrong direction by first asking whether a practice is religious and then whether it is essential. He submitted that the real inquiry under Article 25(1) should be whether a practice violates public order, health or morality. Mehta argued that Articles 25 and 26 are the only provisions under which the protection of fundamental rights has been narrowed through the ERP doctrine, whereas courts have consistently expanded the scope of other fundamental rights.
Mehta further submitted that Article 26 represents the collective manifestation of the individual rights under Article 25, and that denominational rights come into operation when individuals subscribing to a common doctrine organise collectively. Justice Sundresh observed that courts must ultimately leave such questions to the collective wisdom of the belief. Justice Nagarathna asked whether Article 25(1) could truly be made subject to provisions such as Articles 14 and 17, remarking, “If we begin mixing everything into it indiscriminately, then there will be no religion left in this country.”
On social reform, Mehta submitted that constitutional reform in religious matters is primarily entrusted to the legislature rather than the judiciary. Justice Bagchi observed that where practices become “ultra-religious” and violate constitutional guarantees in undisputed factual situations, courts possess not only the power but the duty to intervene. Mehta agreed that judicial intervention remains possible where practices fall within constitutionally prohibited zones, but argued that “review in religious matters must remain very, very restrictive.” CJI Surya Kant observed that religious freedom cannot be reduced to questions of majority or minority faiths, as all are protected under the Constitution.
Proposing a “judicial policy” for cases under Articles 25 and 26, Mehta submitted that courts must first determine whether the activity in question is religious and then examine whether it violates public order, health, morality or another provision of Part III. He argued that scrutiny under Articles 14 and 21 cannot proceed in the ordinary constitutional sense because religion may not always have a rational or causal basis capable of objective scrutiny, and that constitutional scrutiny in such cases must proceed from the perspective of believers.
Vaidyanathan: Denominational Rights Are Not Derived from Individual Rights
Senior Advocate C.S. Vaidyanathan argued that Articles 25 and 26 recognise pre-existing rights and do not confer new ones, and that denominational rights under Article 26 would survive even if Article 25 were absent. He submitted that formal juristic personality is not necessary for denominations to hold rights under Article 26. Justice Nagarathna observed that social reform enters religious freedom through Article 25(2). Vaidyanathan responded that Article 25(2)(b) deliberately omits “sex” as a ground, reflecting a conscious constitutional limitation on reform in matters of religion.
Singhvi: Article 25(2)(b) Permits Entry, Not Control over Denominations
Senior Advocate A.M. Singhvi argued that the two limbs of Article 25(2)(b) — dealing with “social welfare and reform” and “throwing open” Hindu religious institutions — cannot be conflated. He submitted that the “throwing open” clause was consciously confined to Hindu religious institutions of a public character given the specific history of caste exclusion, and that Article 25(2)(b) cannot be interpreted so broadly as to extinguish the core protections under Articles 25(1) and 26(b). According to him, courts may examine whether a belief is genuinely held but cannot decide whether a practice is rational, progressive or essential to religion.
Kaul: Excommunication Safeguards the Authority Structure of the Faith
Senior Advocate N.K. Kaul argued that excommunication in the Dawoodi Bohra community could not be treated as a matter of social reform. Referring to Sardar Syedna, he submitted that the Constitution Bench had already recognised excommunication connected to religious practice as protected under Article 26. Kaul disputed suggestions that excommunication was routinely imposed for trivial reasons and submitted that no excommunication had taken place within the community for nearly 60 years. CJI Surya Kant observed that courts ordinarily presume that legislation enacted by Parliament reflects a societal demand for reform.
Sankaranarayanan: Article 25 Cannot Operate Directly Against Denominations
Senior Advocate Gopal Sankaranarayanan argued that the error in later judgments lay in treating Article 26 as completely insulated from the rest of Part III. Referring to Devaru, he submitted that Articles 25 and 26 had been incorrectly treated as two provisions of equal authority without giving due effect to the phrase “subject to the other provisions of this Part” in Article 25. He submitted that Article 25 operates vertically against state interference with conscience and faith, whereas Article 26 protects denominational autonomy, and that treating Article 25 as horizontally enforceable would permit individuals to directly challenge denominational rights.
Pasha: Collective Identity Cannot Be Reduced to Individual Choice
Advocate Nizam Pasha argued that denominational rights necessarily arise once individuals organise collectively around shared beliefs and practices, and that the constitutional scheme consciously preserves collective rights alongside individual freedoms because communities possess a right to self-preservation. Addressing allegations concerning excommunication, he submitted that pleadings claiming informal “word of mouth” excommunication lacked sufficient factual foundation.
Shamshad: Any Constitutional Test Will Inevitably Enter the Religious Sphere
Senior Advocate M.R. Shamshad argued that replacing the ERP doctrine with proportionality would not resolve the underlying constitutional difficulty because courts would still be required to assess religious tenets to determine whether a restriction is disproportionate. Referring to Islam, he submitted that religious doctrines and texts must be examined in the manner understood within the tradition of the faith. He argued that Article 25(2)(a) already permits the state to regulate secular activities associated with religion through legislation, and that once such legislation is challenged, courts will necessarily have to determine the content of the relevant religious tenet to assess whether protected religious rights have been violated.
Day 16 of the hearing is expected to conclude arguments in the reference, with rejoinder submissions by the review petitioners.
Case Details: Kantaru Rajeevaru v. Indian Young Lawyers Association (Sabarimala Reference), Supreme Court of India. Before CJI Surya Kant and Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, P.B. Varale, R. Mahadevan and Joymalya Bagchi. Hearing dated May 13, 2026.
