New Delhi: The Supreme Court’s nine-judge Constitution Bench on Monday heard wide-ranging arguments on the constitutional questions referred to it in the Sabarimala review matter. Advocates addressed the scope of Articles 25 and 26, the limits of the essential religious practices doctrine, the relationship between individual religious freedom and denominational autonomy, and whether a non-believer can invoke the 2018 Sabarimala judgment to seek entry into a religious institution.
The Bench, comprising Chief Justice of India 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, heard submissions from multiple advocates on Day 9 of the reference hearing.
Non-Believers Cannot Demand Entry into Places of Worship
Advocate Nizam Pasha opened his submissions by pointing to an instance where a law student came to Delhi and sought entry into the inner sanctum of the Hazrat Nizamuddin Dargah, filing a petition in the High Court on the basis of the 2018 Supreme Court judgment. Pasha described this as “one of the biggest examples of misusing the 2018 judgment” and questioned whether a non-believer could enter a place of worship and demand that matters of faith yield to individual claims.
He submitted that Articles 25 and 26 do not contemplate such a right, arguing that a place of worship is “nothing but a belief system” and that faith cannot be redefined by those who do not subscribe to it. He maintained that a person who does not subscribe to the faith does not have a constitutional right under Article 25.
On the question of denominational character, Pasha argued that Sufi dargahs, particularly of the Chishtiya order, qualify as religious denominations and are entitled to protection under Article 26. Relying on Sri Venkataramana Devaru v. State of Mysore (1957), he submitted that unrestricted access does not dilute denominational character and that the issue had not been conclusively determined in Durgah Committee v. Syed Hussain Ali (1961). He warned that excluding such institutions from Article 26 would lead to absurd consequences, since some religious institutions would receive constitutional protection while others would not.
Drawing a clear line between Articles 25 and 26, Pasha submitted that the former protects individual conscience while the latter secures a collective right to manage religious affairs. He contended that entry under Article 25(2)(b) is confined to the context of social reform and is itself subject to public order, morality, and health. On the structure of Article 25, he submitted that clause (2) was originally conceived as an explanation, with Article 25(2)(a) indicating what falls outside religion and Article 25(2)(b) operating within Article 25(1). He further submitted that Article 25(2)(b) operates under the ambit of Article 25(1) and is subject only to public order, morality, and health, and that Article 25 is subject to Article 26, and not the other way around.
Referring to Sardar Syedna Taher Saifuddin v. State of Bombay (1962), Pasha argued that the essential religious practices doctrine was originally protective in nature but has since been expanded beyond its textual basis. He submitted that in every case there will be a right holder, and that in matters of a place of worship, the right lies with the denomination and not with individuals who do not subscribe to the faith.
Limits of Judicial Scrutiny in Matters of Faith
Senior Advocate Sridhar Potaraju submitted that the starting point must be the structure of Part III of the Constitution, where the sovereign has parted with certain powers and reserved others, and the court is called upon to identify the scope of those retained freedoms. He submitted that his right flows from Article 25 read with Article 21, and questioned where the justification lay for qualifying a fundamental right with additional tests.
He submitted that religion has three aspects: the spiritual, the practice of rituals, and the political, the last having its origins in the French Revolution, which he said had a bearing on the Constitution. He argued that the Constitution does not define who a Hindu is, and that in examining religious belief, a non-believer must be excluded, since faith cannot be assessed from an external standpoint. He further submitted that if the Constitution has granted a religious denomination protection under Article 26, there is no requirement for the denomination to additionally prove its essential religious practice.
Potaraju submitted that any attempt to shift protections between Articles 25 and 26 is not merely an interpretative exercise, and that denominational association, much like the general right to association, reflects inherent autonomy in spiritual matters that must remain beyond judicial reconfiguration. He also submitted that a non-believer must be excluded from consideration by the court while examining the faith of a believer.
Article 25(2) Does Not Subject Article 26 to Its Operation
Advocate Eklavya Dwivedi, appearing in IA No. 99340, confined his submissions to the question of the subjection of Article 26 to Article 25(2). He submitted that Article 25(2) is inapplicable to Article 26 and argued that the framers intended to vest distinct rights in religious denominations and keep them separate from individual rights under Article 25. He noted that religious denominations have historically been a closed, private, and exclusive set, with no person able to claim membership as of right.
On the textual structure, Dwivedi argued that Article 25(1) contains a “subject to” clause making it subject to other provisions of Part III, including Article 26, whereas this clause is conspicuously absent in Article 26. He further submitted that the subcommittee report on fundamental rights showed that the original formulation contained a clause requiring the rights of religious denominations to be read consistently with the provisions of the chapter, but that this phrase was dropped in subsequent iterations. He argued that the framers did not intend for Article 26 to be in contradiction with Article 25, and that it cannot be the case that Article 25(1) is subject to Article 26 while Article 26 is also subject to Article 25.
Social Reform Cannot Extinguish Article 25(1) Rights
Advocate Fauzia Shakil placed structured propositions before the Bench. She submitted that power cannot be exercised in a manner that obliterates fundamental rights, and that the concept of social welfare must be understood within the constitutional limitations expressly recognised under Article 25—namely public order, morality, and health. She argued that social welfare and reform cannot be used to reinterpret or override the substance of religious freedom beyond what the Constitution permits, and that any interference must remain proportionate and anchored in these constitutional parameters.
When the Bench asked whether she was suggesting that social reform cannot touch the substance of the right at all, Shakil clarified that interference must remain proportionate and anchored in public order, morality, and health, and cannot be used to extinguish the individual right under Article 25(1).
On her second submission regarding what is protected under Articles 25 and 26, she argued that these are rights that are bona fide and conscientiously held by members of a community. She submitted that where a community itself is divided on a practice, the court is called upon to examine whether the belief is sincerely and conscientiously held, and that this exercise cannot be avoided.
When the Bench observed that such an inquiry would require the court to enter theological questions, Shakil conceded that this would be so to a limited extent, but only to assess the genuineness of the claim. She further submitted on the issue of locus that petitions under Articles 25 and 26 must be filed by persons who are actually aggrieved, and that it should be made mandatory to plead that a personal right to worship has been violated.
Sabarimala Was Originally a Buddhist Pagoda
It was also submitted before the Bench that the Sabarimala temple was not originally a Hindu temple but a Buddhist pagoda. The advocate argued that the name “Shibir” means training, and that Shabarimala was a training centre for Buddhists on the hilltop, which is how it came to be known as Shabarimala. The advocates noted that the Dalai Lama’s palace is also referred to as Shabarimala and that sixty to seventy percent of the people of Kerala were once Buddhists. They submitted that with the advent of Vaishnavism, Shaivism, and the Bhakti movement, Buddhism declined in Kerala, but the structure on the hilltop remained and was later converted into a temple, with the hill itself becoming associated with the temple.
The advocates also argued that Articles 25 and 26 encode covenants describing and determining religious identity, and that the Hindi Constitution’s term for “religious denomination” in Article 26—“pratidharmik sampraday or uske kisi anubhav”—is wide enough to protect formal worship as well as indigenous practices and unique modes of worship of prakriti and nature. The advocate submitted that the evolution of law on religious practices has passed through six phases, from Shirur Mutt and Ratilal Panchand to constitutional morality in the present case, and that this evolution has reduced the right of the community to determine its own practices, requiring reconsideration.
Article 25 Cannot Be Made Contingent on Denominational Status
Senior Advocate Madhavi Divan, appearing for worshippers of sacred groves or “orans” in western Rajasthan, submitted that these practices reflect an ancient form of nature worship where the manifestation of divinity is the forest itself, marked by non-violence and customary abstinence. She argued that such communities, though loosely organised and rooted in village traditions, still fall within the protection of Articles 25 and 26.
Emphasising the symbiotic relationship between the two provisions, she submitted that in order to enjoy Article 25, one needs Article 26, and that Article 26 would not exist but for the believers protected under Article 25. She argued that even the most personal aspect of religious freedom—freedom of conscience—cannot be exercised in isolation and often requires access to spaces, institutions, and shared practices. She submitted that it would impoverish the right under Article 26 if a community is not recognised as a denomination.
Divan further argued that treating denominational status as a gateway to fully realise Article 25 would create a constitutional imbalance, since Article 25 guarantees rights to all persons. She warned that an overemphasis on denominational classification risks creating a situation akin to survival of the fittest, leading to exclusion and polarisation.
Justice M.M. Sundresh observed that denomination represents the collective rights of believers and cannot override individual adherents, while Justice B.V. Nagarathna clarified that denominational autonomy under Article 26(b) is protected, but if practices affect society at large, the State may intervene under Article 25(2)(b) for social reform.
Dharma Cannot Be Translated into Religion
Advocate Ashwini Kumar Upadhyay submitted that “dharma cannot be translated into religion,” and that Articles 25 and 26 are among the most restricted fundamental rights, subject to public order, morality, health, and the wider scheme of Part III. He submitted that Article 25 is the foundational right and Article 26 is merely a species of it, and that anti-conversion laws proceed on the basis that religion is an individual right.
His submissions, however, ranged beyond the questions under consideration. He remarked that Bharat has been divided into multiple parts due to denominational conflicts and drew comparisons with other countries. The Bench pushed back. Justice R. Mahadevan noted that he was going beyond the subject, and Justice Ahsanuddin Amanullah concurred. Chief Justice Surya Kant eventually cut him short, indicating that his time was over. In his closing remarks, Upadhyay reiterated his position on Article 25 and drew an analogy that while there may be numerous mosques and churches, only some have distinct sanctity, just as Sabarimala does among numerous temples.
Case Details:
- Matter: Sabarimala Reference (Review of the 2018 Constitution Bench judgment in Indian Young Lawyers Association v. State of Kerala)
- Court: Supreme Court of India
- Bench: Chief Justice of India Surya Kant; Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, A.G. Masih, P.B. Varale, R. Mahadevan, and Joymalya Bagchi
- Day of Hearing: Day 9 (April 28, 2026)
- Advocates who appeared on Day 9: Advocate Nizam Pasha; Senior Advocate Sridhar Potaraju; Advocate Eklavya Dwivedi (in IA No. 99340); Advocate Fauzia Shakil; Senior Advocate Madhavi Divan; Advocate Ashwini Kumar Upadhyay
