The nine-judge Constitution Bench hearing the Sabarimala Reference resumed on Day 16 on May 14, 2026, with Senior Advocates Mukul Rohatgi, Gopal Subramanium and Rajeev Dhavan addressing the Bench, followed by Senior Advocate Rakesh Dwivedi. The day’s proceedings were expected to conclude the hearing, with the Bench scheduled to hear amici and rejoinder submissions.
Rohatgi: Parsi Excommunication Challenge Referred on Limited Issues
Senior Advocate Mukul Rohatgi, opening the day’s arguments, submitted that the challenge to Parsi excommunication had been referred to the nine-judge Bench on only two issues and not on questions of fact. He submitted that no excommunication had taken place within the Parsi community in the last 75 years.
Subramanium: Article 26 Is Capable of Independent Existence
Senior Advocate Gopal Subramanium took over arguments and identified three propositions for consideration. First, he asked whether the right to freedom of religion is located under Article 25(1), and whether Article 26 is capable of independent existence. Second, he submitted that he would argue against the proposition that all Articles must necessarily be read together. Third, he contested the suggestion that there is any attempt to extrapolate denomination from religion, describing such a characterisation as a misconception.
Subramanium submitted that the nature of individual freedoms under Article 25(1) is separate from the freedom of individuals, and that where the language of the Constitution is clear, there is no room for expanding the scope of the Article. He argued that Articles 25 and 26 are unique provisions where the remedies are provided therein, and that they balance the freedom of individuals while giving effect to the purposes of religious endowments. He submitted that the opening word in Article 26 is “every religious denomination”, and that it must not be assumed that Article 26 derogates individual rights. According to him, when denominations exercise their rights, they must do so with reasonability.
On the question of judicial review, Subramanium urged the Bench never to divest itself of the powers of judicial review. He submitted that he could not rule out the possibility that the Court may be called upon to adjudge whether a matter of practice is religious or an abhorrent practice that undermines human dignity, and that while the Court should exercise restraint, it must keep those powers available. He submitted that further value judgements beyond determining the state of mind of believers must be refrained from.
Justice Bagchi observed that there is a difference between judicial review and judicial determination, and that if the word “fact” in the Evidence Act includes a state of mind, then such states of mind in matters of faith must be there for the Court to determine. Subramanium responded that while he would argue that further value judgements must be refrained from, the Court’s power of review cannot be surrendered.
Subramanium further submitted that the rights to freedom of religion are different from Articles 14 and 19, since freedom of religion cannot be tested on the touchstone of other secular and rational provisions. He argued that the terms “vertical” and “horizontal” are simplifications and that fundamental rights must be enforced against the State. He submitted that freedom under Article 25 is subjective and laterally available, but that one must ensure that other persons are also allowed to practise their rights, subject to Part III. He noted that there are three Articles of prohibition in Part III — Articles 17, 23 and 24.
Justice Bagchi observed that Articles 25 and 26 appear to be subspecies of Articles 19(1)(a) and 19(1)(c). Subramanium expressed difficulty with the formulation in the Electoral Bonds judgment that there is a hierarchy of Articles. He submitted that the four-fold test applied in that case is not the only way to interpret the Constitution when two rights come into conflict, and that conceptually there is a need to balance and harmonise.
When Justice Nagarathna asked whether a group could be denied the status of a religious denomination merely because it lacks formal organisation, Subramanium responded in the negative, submitting that the absence of organisation cannot be determinative, and that if the word “religion” is read with faith, it will resolve every issue. Justice Sundresh observed that the Bench may have some difficulty with the argument that collective rights cannot be interpreted under Article 25(1), noting that a group of individuals sharing freedom of conscience is as good as a collective. Subramanium responded that if an individual sustains a legal injury, which may even amount to a constitutional tort, it may be taken up as a civil suit, and that individuals may confront other members of a denomination.
Subramanium submitted that only in matters of detail in relation to a religious practice would the Court defer to the wisdom of the denomination. He argued that conscience cannot be made subject to classification in the manner of intelligible differentia, and that just because Articles 19 and 21 have horizontal implications does not mean they seep into Articles 25 and 26.
Dhavan: Courts Are Not High Popes; Arguments on Essentiality Are Unnecessary
Senior Advocate Rajeev Dhavan began his arguments by observing that the real question is not the intensity of judicial review but its nature in the context of the present case. He submitted that the Constitution is, in fact, a social document of the most diverse country in the world, and that he is therefore averse to pulling out precedents from other countries unless they conceptually fit. He remarked that if this country does not undertake social reform, “it is lost — totally and completely”, adding that the country exists not only for individuals but also for groups.
Dhavan submitted that religions were conceived by the Constituent Assembly as groups, and that as far as rights under Article 30 are concerned, the Court had made the position clear in TMA Pai, followed by Nagaraj. He argued that the Constituent Assembly recognised that group rights exist in India, which led to Article 26, with the only restrictions being those of police power — public order, health and morality. He submitted that reasonableness goes hand in hand with proportionality and that law must mean only a just law.
On the respondents’ argument that Article 26 cannot exist on its own, Dhavan submitted that judgments such as the Bank Nationalisation case and Maneka Gandhi held that Articles cannot operate as silos but are independent provisions. He argued that the respondents have contended that the right to freedom of religion under Articles 25 to 28 is vested in the nodal right under Article 25(1), but that a distinction must be drawn between a community and the collectivity of persons, and that Article 25 is fundamentally about a community. He added that freedom of religion remains the one area that has not been fully resolved, extending all the way to Article 30.
Dhavan submitted that one must sometimes think of reform while also recognising the social origins of Article 25(2), and that any person in the country should be able to recall and give credit to the same. He argued that in the Sabarimala case, the prohibition on entry was held not to be essential to the faith and denominational status was denied, with the result that rights under Articles 25 and 26 were effectively “invisibilised”. He submitted that the Court is not a body of High Popes tasked with delving into matters of faith, and that arguments on essentiality are therefore unnecessary.
Dhavan also referred to the judgment of former CJI Chandrachud in the Madrasa case, in which it was held that the constitutional validity of a statute cannot be challenged on the ground of violation of the basic structure of the Constitution.
Dwivedi: ‘Subject To’ Does Not Dilute Article 26; Article 25(2) Cannot Be Harmonised with Fundamental Rights
Senior Advocate Rakesh Dwivedi submitted that Articles 26 and 25 together constitute group rights, with Article 26 being the provision where all rights coalesce. He argued that non-denominational institutions fall under Article 25(1), and that the special rights conferred under Article 26 arise from the institutional character of denominations and therefore should not be diluted. He submitted that the phrase “subject to” in Article 25 does not necessarily mean a degradation or dilution of Article 26, but may equally mean an empowerment and an invitation to read the provisions as a whole.
Dwivedi argued that to equate the state’s power to make a law with a fundamental right is erroneous. According to him, there is no question of harmonising Article 25(2) with fundamental rights.
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 14, 2026.
