Few legal questions in India stir as much emotion as Sabarimala. At its core lies a genuinely hard constitutional puzzle: when an individual's right to worship collides with a religious community's right to manage its own affairs, which one prevails? The question is back before the Supreme Court, where it has been argued that the Constitution did not intend to give a religious denomination higher rights than a believer. This article sticks to explaining the law and the competing principles, not deciding who is right.
Part of the High Court litigation practice at S Jain & Attorneys, Bangalore.
How the dispute reached the Constitution
The Sabarimala temple in Kerala followed a practice of not allowing women of menstruating age (broadly 10 to 50) to enter. In 2018, in Indian Young Lawyers Association v. State of Kerala, a five-judge Constitution Bench held by a 4:1 majority that this exclusion was unconstitutional. After enormous public reaction and a flood of review petitions, the Court in 2019 referred a set of larger constitutional questions, reaching well beyond Sabarimala and into other faiths, to a nine-judge bench. That is why arguments continue years after the original verdict, and why nothing about this subject is settled in the way most people assume.
Two features of the litigation explain most of the confusion around it. First, the 2018 judgment was never formally stayed, but the reference of larger questions left its practical status contested. Second, the questions now pending are framed at a level of abstraction that has nothing to do with any one temple. They are about the machinery courts use to decide religious-freedom cases at all.
The statutory backdrop nobody mentions
Sabarimala is usually discussed as a clash of constitutional articles, but the actual thing struck down in 2018 was a piece of subordinate legislation. Kerala had enacted the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, whose object was to throw open Hindu places of public worship to all sections and classes of Hindus. Rule 3(b) of the rules framed under that Act, the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, permitted the exclusion of women at such times as they were by custom not entitled to enter.
The majority held that Rule 3(b) went beyond what the parent Act allowed and could not stand against the constitutional guarantees. That matters for anyone reading the case as pure doctrine: the ratio is anchored in a statute and a rule, not floating free in the abstract.
Common mistake. People argue about Sabarimala as though the Supreme Court ordered a temple to change its beliefs. It did not. It struck down a state government rule that authorised a class-based exclusion, and held that the exclusion was not protected either as an essential religious practice or as denominational autonomy. Whether you agree or not, the legal object of the decision was a 1965 rule.
The two articles at the heart of it
- Article 25 guarantees to every individual freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other fundamental rights in Part III.
- Article 25(2)(b) expressly saves any law providing for social welfare and reform, or throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.
- Article 26 guarantees to every religious denomination, subject to public order, morality and health, the right to establish and maintain institutions for religious purposes, to manage its own affairs in matters of religion, and to own, acquire and administer property.
The conflict is plain: what happens when a denomination's management of its own affairs operates to exclude an individual believer from worship? Note also the textual difference that does a great deal of work in argument. Article 25 is subject to public order, morality, health and the other provisions of Part III. Article 26 is subject only to public order, morality and health. Whether that difference makes denominational rights stronger, or merely differently worded, is one of the live questions.
Article 25 and Article 26 compared
| Feature | Article 25 | Article 26 |
|---|---|---|
| Who holds the right | Every person, individually. Citizenship is not required. | A religious denomination or a section of one, as a collective. |
| What is protected | Freedom of conscience; the right to profess, practise and propagate religion. | Establishing and maintaining religious institutions; managing affairs in matters of religion; owning and administering property. |
| Express limits in the text | Public order, morality, health, and the other provisions of Part III. | Public order, morality and health. |
| Built-in override for reform | Yes. Article 25(2)(a) on secular activity and 25(2)(b) on social welfare, reform and temple entry. | No equivalent clause in the text of Article 26. |
| Threshold question a court asks first | Is the practice essential and integral to the religion? | Is the claimant group actually a distinct denomination at all? |
| Position taken by the 2018 majority | The exclusion was not an essential religious practice, so it drew no Article 25 protection. | Ayyappa devotees were not a separate denomination, so Article 26 was not engaged. |
The essential religious practices test
Indian courts have developed a doctrine to navigate these disputes. The Constitution protects practices that are essential and integral to a religion, not every custom that has grown up around it. The doctrine traces back to Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt in 1954, where the Court said that what constitutes an essential part of a religion is to be ascertained with reference to the doctrines of that religion itself, and that Article 26 protection extends to sects and sub-sects.
The doctrine narrowed over time. In The Durgah Committee, Ajmer v. Syed Hussain Ali in 1961, the Court cautioned that practices which are merely superstitious accretions, even if of long standing, do not attract constitutional protection simply because they are old. That caution is the seed of the modern criticism of the test: once a court can sort religious practices into essential and accretional, it is a court, not the community, deciding what the faith requires.
Key takeaway. The essential religious practices test is not in the Constitution. It is judge-made. That is precisely why the nine-judge reference exists. A significant part of what is pending is not whether Sabarimala was rightly decided but whether the test itself is a legitimate tool for constitutional courts to be using at all.
Was there a denomination in the first place?
Article 26 protects a religious denomination. Before a group can claim it, it has to qualify. The working test came from S.P. Mittal v. Union of India in 1982, the Auroville case, which asked broadly whether there is a collection of individuals with a common system of beliefs regarded as conducive to their spiritual well-being, a common organisation, and a distinctive name.
The 2018 majority applied that framework and held that Ayyappa devotees, who come from every Hindu community and who take the vratham temporarily, did not form a separate religious denomination. Once that finding was made, Article 26 dropped out of the case and the argument had to be won or lost on Article 25 alone. Anyone reading the judgment quickly misses how much turned on this single, largely factual, characterisation.
The decisions that supply the tests a court applies in this area.
Shirur Mutt, 1954
What is essential to a religion is to be ascertained with reference to the doctrines of that religion itself, and Article 26 protection extends to sects and sub-sects.
Durgah Committee, 1961
Practices that are merely superstitious accretions do not attract constitutional protection simply because they are old and of long standing.
S.P. Mittal, 1982
The denomination test: a collection of individuals with a common system of beliefs conducive to their spiritual well-being, a common organisation, and a distinctive name.
The 2018 majority
Held 4:1 that the exclusion was not an essential religious practice and that Ayyappa devotees were not a separate denomination, and struck down Rule 3(b).
What happened after 2018: review and reference
The procedural route the case took is worth setting out plainly, because most public commentary skips it.
- The judgment. On 28 September 2018 the Constitution Bench delivered its verdict, 4:1, with Justice Indu Malhotra dissenting on the ground, among others, that constitutional morality should not be used to interfere with religious practice and that the petitioners were not devotees of the temple.
- Review petitions. Article 137 of the Constitution allows the Supreme Court to review its own judgments. A review petition must ordinarily be filed within thirty days of the judgment. Dozens were filed here, along with fresh writ petitions and transfer petitions.
- The 2019 reference. In Kantaru Rajeevaru v. Indian Young Lawyers Association, decided 14 November 2019, a five-judge bench split 3:2. Rather than deciding the review on the merits, the majority framed broader questions on the interplay between Articles 25 and 26, the reach of the essential religious practices doctrine and the limits of judicial review in religious matters, and referred them to a larger bench. The review petitions were kept pending.
- Why nine judges. Article 145(3) requires a minimum of five judges to decide a substantial question of law as to the interpretation of the Constitution. Where a bench doubts a proposition laid down by earlier benches of comparable strength, convention requires a still larger bench. Because the questions reach back to Shirur Mutt and to a line of five and seven judge decisions, a nine-judge bench was constituted.
- The questions travel beyond Hinduism. The referred questions were deliberately framed to cover the entry of Muslim women into mosques and dargahs, the entry of Parsi women married outside the community into the Tower of Silence, and female genital cutting among the Dawoodi Bohra community. This is why the outcome will not be a Sabarimala judgment in any narrow sense.
If review fails, one further remedy exists in theory. The curative petition, created by the Supreme Court in Rupa Ashok Hurra v. Ashok Hurra in 2002, allows a final look at a judgment where there has been a gross miscarriage of justice or a violation of natural justice. It is rarely entertained and is not a second appeal.
How a religious-freedom challenge is actually brought
For readers with a live grievance rather than an academic interest, the mechanics matter more than the doctrine.
- Identify the right and the actor. Fundamental rights under Articles 25 and 26 run against the State and against bodies that qualify as State under Article 12. A temple administered by a statutory devaswom board or an endowments department is in a very different position from a purely private place of worship.
- Choose the forum. A petition may be filed in the High Court under Article 226, which is wider and can also address legal rights, or directly in the Supreme Court under Article 32 for enforcement of fundamental rights. In practice courts often prefer the High Court to examine the facts first.
- Plead standing carefully. The dissent in 2018 made a point of the petitioners not being devotees. Whether you are a worshipper, a member of the community, or a public-interest litigant changes the shape of the case.
- Attack the instrument, not the belief. Successful challenges are usually aimed at a statute, a rule, a notification or an administrative order. Asking a court to declare a belief wrong is a losing framing.
- Anticipate the denomination defence. Expect the institution to claim Article 26 protection. Evidence on organisation, distinctive name, common faith and historical practice becomes central.
- Expect an interim battle. Much of the real-world outcome is decided at the stage of interim orders on entry, security and policing, long before final hearing.
Costs and timelines, realistically
These are indicative ranges only, and they vary enormously with counsel and complexity. A writ petition in a High Court raising a religious-freedom question is typically drafted and filed over two to six weeks, with court fees and filing costs modest, commonly in the range of a few hundred to a few thousand rupees. Professional fees for drafting and initial appearance in a High Court commonly run from roughly Rs 50,000 to Rs 3,00,000 depending on seniority and the state.
Timelines are the harder truth. A contested writ petition of this character rarely concludes in under one to three years at the High Court. A matter that reaches a Constitution Bench of the Supreme Court operates on a different clock entirely: the 2018 judgment came roughly twelve years after the original writ petition was filed in 2006, and the reference arising out of it has itself been pending for years. Anyone planning around this litigation should assume the constitutional questions will outlast several rounds of correspondence and at least one change of counsel.
Deadline warning. The thirty-day window for a review petition in the Supreme Court is the trap that catches most parties. Reviews are heard by circulation in chambers, by the same judges, on narrow grounds. Missing the window, or treating a review as a chance to re-argue the merits, closes the door on the only realistic corrective remedy short of a curative petition.
Why it is about much more than one temple
The referred questions cut across religions and could set the framework for how India balances individual rights, group autonomy, gender equality and constitutional morality. Whatever the nine judges say about the essential religious practices test will govern disputes that have nothing to do with Kerala: mosque entry, community excommunication, control of endowments, dress and grooming practices, and the reach of state reform legislation over religious institutions.
Five mistakes people make in this debate
- Treating the 2018 verdict as final. It is a delivered judgment with pending review petitions and a live reference above it. That is an unusual, unstable posture.
- Confusing Article 25 with Article 26. They protect different holders against different things. An argument that wins under one can be irrelevant under the other.
- Assuming a temple is automatically a denomination. Denominational status is a finding a court makes on evidence, and it was refused here.
- Forgetting Article 25(2)(b). The Constitution itself contemplates laws throwing open Hindu religious institutions of a public character. The reform clause is text, not judicial invention.
- Reading the dissent as a defence of exclusion. Justice Malhotra's dissent turned substantially on the limits of judicial review and on standing, which is a different argument from endorsing the practice.
Frequently Asked Questions
What was the 2018 Sabarimala judgment about?
A five-judge Constitution Bench held by a 4:1 majority that excluding women of menstruating age from the temple was unconstitutional, and struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
Why is the matter still in the Supreme Court?
After review petitions were filed, a five-judge bench in 2019 referred broader questions affecting multiple religions to a nine-judge bench and kept the reviews pending. Those larger questions have not been finally answered.
Has the 2018 judgment been stayed or overruled?
It has not been overruled. The Court in 2019 did not stay it either, but because the review petitions remain pending and larger questions are under reference, its practical operation has been contested.
What is the difference between Article 25 and Article 26?
Article 25 protects every individual's freedom of religion; Article 26 protects a denomination's right to manage its own affairs in matters of religion. Article 25 is expressly subject to the other fundamental rights in Part III; Article 26 is not worded that way.
What is the essential religious practices test?
A judge-made doctrine used to decide whether a practice is so essential and integral to a religion that it deserves constitutional protection, as opposed to a custom or accretion that does not. It originates in the Shirur Mutt case of 1954.
Why did Article 26 not protect the temple?
Because the majority found that Ayyappa devotees do not form a separate religious denomination under the tests laid down in earlier cases such as S.P. Mittal. Without denominational status, Article 26 was not engaged.
Does the pending case affect only Sabarimala?
No. The referred questions were framed to cover mosque and dargah entry for Muslim women, Parsi women married outside the community, and female genital cutting in the Dawoodi Bohra community, among other issues.
What is a review petition and how long do I have?
A review under Article 137 asks the same court, ordinarily the same judges, to reconsider its own judgment on narrow grounds such as an error apparent on the face of the record. It must ordinarily be filed within thirty days of the judgment.
What is a curative petition?
A last remedy created in Rupa Ashok Hurra v. Ashok Hurra in 2002, available after a review is dismissed, in exceptional cases of gross miscarriage of justice or violation of natural justice. It is very rarely allowed.
Can a private temple exclude anyone it wants?
The constitutional analysis differs sharply for institutions of a public character, those administered by statutory boards, and genuinely private religious bodies. Article 12 and Article 25(2)(b) both do heavy lifting here, and the answer is fact-specific.
This is a neutral explainer of a sensitive, pending matter and is not legal advice. Please consult a qualified advocate for specific questions.
