All religious practices presumed protected unless they violate public order, health, morality: Centre in Sabarimala review hearing

Why in News?

During the ongoing Sabarimala review hearing before a nine-judge Constitution Bench of the Supreme Court, the Union government argued that all religious practices are constitutionally protected unless they violate public order, morality or health under Articles 25 and 26 of the Constitution.

The Centre questioned the long-standing “Essential Religious Practices” (ERP) doctrine evolved by the judiciary, arguing that the Constitution itself does not use the phrase “essential religious practices”. The hearing has revived broader constitutional debates concerning:

• Religious freedom
• Judicial review of faith-based practices
• Rights of religious denominations
• Equality and constitutional morality

UPSC Relevance

GS Paper 2

• Fundamental Rights, Judiciary and constitutional interpretation, Secularism in India, Freedom of religion and minority rights

GS Paper 1

• Indian society and religion, Social reform movements, gender justice

Essay

• Constitutional morality versus social morality
• Religion and constitutional governance
• Freedom and reform in a plural society

Background and Context

The Sabarimala issue concerns the entry of women of menstruating age (traditionally between 10 and 50 years) into the Sabarimala temple dedicated to Lord Ayyappa in Kerala.

The restriction was historically justified on the basis that:

• Lord Ayyappa is worshipped as a “Naishtika Brahmachari” (eternal celibate).
• The temple constituted a separate religious denomination with the right to preserve its practices.

In 2018, a five-judge Constitution Bench of the Supreme Court, in the Indian Young Lawyers Association v. State of Kerala case, struck down the exclusionary practice by a 4:1 majority.

The Court held that:

• The practice violated equality and dignity of women.
• Biological characteristics such as menstruation cannot be grounds for exclusion.
• Constitutional morality prevails over discriminatory customs.

Subsequently, review petitions were filed, leading to a larger constitutional reference examining broader questions regarding:

• Scope of religious freedom
• Essential Religious Practices doctrine
• Relationship between Articles 25 and 26
• Judicial role in examining faith-based practices

Constitutional Framework on Religious Freedom

Article 25

Article 25 guarantees:

• Freedom of conscience
• Freedom to profess, practice and propagate religion

However, this right is subject to:

• Public order
• Morality
• Health
• Other Fundamental Rights

The Article protects both:

• Individual religious freedom
• Religious practices

Social Reform Clause

Article 25(2) allows the State to enact laws for:

• Social welfare
• Religious reform
• Opening Hindu religious institutions to all classes and sections

This provision reflects the Constitution’s reformist vision.

Article 26

Article 26 grants religious denominations the right to:

• Establish religious institutions
• Manage religious affairs
• Own and administer property

Again, these rights are subject to:

• Public order
• Morality
• Health

The central constitutional question is whether denominational autonomy can override equality-based claims.

The Essential Religious Practices (ERP) Doctrine

The ERP doctrine was developed judicially to determine which practices deserve constitutional protection under Articles 25 and 26.

Under this doctrine:

• Only practices considered “essential” to a religion receive constitutional protection.
• Non-essential or secular practices can be regulated by the State.

The Court therefore examines:

• Religious texts
• Historical traditions
• Nature of the practice
• Centrality to the religion

This doctrine has become one of the most influential yet controversial aspects of Indian constitutional law.

Origin of the ERP Doctrine

Shirur Mutt Case (1954)

In Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, the Supreme Court held:

• Essential parts of religion are protected under Article 25.
• Courts can determine what constitutes an essential practice.

This judgment became the foundation of ERP jurisprudence.

Evolution of the Doctrine

Over time, courts used the ERP doctrine in various disputes involving:

• Temple entry
• Animal sacrifice
• Religious processions
• Dress codes
• Women’s entry into religious spaces

However, critics argue that courts increasingly became arbiters of theology rather than constitutional adjudicators.

The Centre’s Argument in the Present Hearing

The Union government argued that:

• The Constitution does not contain the phrase “essential religious practices”.
• Articles 25 and 26 should receive broad interpretation like other Fundamental Rights.
• Religious freedom should be presumed unless the practice violates public order, morality or health.

Key Constitutional Position

According to the Centre:

• The burden should lie on the challenger to prove constitutional violation.
• Courts should not narrowly protect only “essential” practices.
• Denominational and individual rights are interconnected.

The Centre argued that Article 26 is merely the collective manifestation of individual freedom of conscience under Article 25.

This interpretation seeks to reduce judicial scrutiny into theological questions.

Judicial Observations During Hearing

During the hearing, the Bench made broader philosophical observations regarding religion and spirituality.

Chief Justice Surya Kant observed that:

• Temple visits are not the sole expression of religiosity.
• Faith can exist independently of ritualistic practices.

Justice B.V. Nagarathna observed that:

• Hinduism is a way of life.
• Spirituality is not dependent solely on rituals or temple access.

These observations touched upon the distinction between:

• Inner freedom of conscience
• Organised religious practices

Legal scholar Mohan Gopal referred to this as “auto-theism”, emphasising individual spiritual autonomy.

Constitutional Morality versus Religious Autonomy

The Sabarimala issue lies at the intersection of two constitutional values:

Religious Freedom

Supporters of denominational autonomy argue that:

• Religious groups should preserve distinct traditions.
• Courts should avoid interfering in matters of faith.
• Secular courts lack competence in theological interpretation.

Equality and Non-Discrimination

Others argue that:

• Constitutional guarantees of equality override exclusionary customs.
• Gender-based exclusion violates dignity and individual liberty.
• Public religious institutions cannot discriminate.

This tension reflects a deeper constitutional debate:

Can practices rooted in faith survive constitutional scrutiny if they conflict with equality?

Constitutional Morality

The concept of constitutional morality was strongly invoked in the 2018 Sabarimala judgment.

The idea originates from Dr. B.R. Ambedkar, who argued that constitutional governance must be guided by:

• Liberty
• Equality
• Fraternity
• Dignity

rather than social prejudice or majoritarian morality.

The Court used constitutional morality to justify judicial intervention in discriminatory religious practices.

Gender Justice and Religious Reform

The Sabarimala case is also part of a broader trajectory of judicial reform concerning gender and religion.

Triple Talaq Case (2017)

The Supreme Court invalidated instant triple talaq as unconstitutional.

Haji Ali Dargah Case

Restrictions on women’s entry into the inner sanctum were challenged successfully.

Shani Shingnapur Temple Issue

Women’s entry restrictions were opposed using constitutional equality arguments.

These cases reflect growing judicial engagement with gender justice within religious institutions.

Criticisms of the ERP Doctrine

Judicial Overreach into Theology

Critics argue that courts:

• Lack expertise in religious interpretation
• Risk becoming theological authorities
• May selectively interpret traditions

This can undermine secular constitutionalism.

Inconsistency in Application

Different Benches have adopted varying standards for determining:

• What is “essential”
• Which practices deserve protection

This has created doctrinal inconsistency.

Narrowing Religious Freedom

Restricting protection only to “essential” practices may excessively limit religious liberty.

Many practices evolve culturally rather than doctrinally.

Risk of Majoritarian Interpretation

There are concerns that courts may unintentionally privilege dominant interpretations within religions while marginalising minority sects and traditions.

Arguments Supporting Judicial Scrutiny

Supporters of the ERP doctrine argue that:

• Fundamental Rights cannot be defeated by discriminatory customs.
• Constitutional courts must prevent practices violating dignity and equality.
• Social reform is part of the constitutional vision.

Without judicial scrutiny, practices such as:

• Untouchability
• Exclusionary customs
• Gender discrimination

could continue under the guise of religion.

Comparative Perspective

Different democracies adopt different approaches toward religion-state relations.

United States

American courts generally avoid determining theological “essentiality” and focus instead on:

• Sincerity of belief
• State interest tests

France

France follows strict secularism (laïcité), often restricting religious symbolism in public spaces.

India

India adopts:

• Principled distance
• Reform-oriented secularism
• State engagement with religion for social reform

Thus, Indian secularism differs significantly from Western models.

Broader Implications of the Sabarimala Review

The present constitutional reference may shape future judicial approaches toward:

• Temple entry disputes
• Personal laws
• Religious dress codes
• Denominational rights
• State regulation of religion

The outcome could redefine the balance between:

• Religious autonomy
• Equality
• Constitutional morality
• Judicial review

Way Forward

Evolving a Balanced Constitutional Approach

Courts must balance:

• Religious freedom
• Equality rights
• Dignity
• Social reform

without excessively entering theological domains.

A contextual and rights-based approach may be preferable to rigid doctrinal tests.

Clarifying the ERP Doctrine

The Supreme Court may consider:

• Refining the scope of ERP
• Limiting judicial theological inquiry
• Developing clearer constitutional standards

This would improve doctrinal consistency.

Strengthening Constitutional Dialogue

Sensitive religious disputes require:

• Judicial restraint
• Social dialogue
• Institutional sensitivity

Adversarial constitutionalism alone may not resolve deeply embedded social tensions.

Protecting Individual Dignity

Religious freedom should coexist with:

• Gender justice
• Equality
• Human dignity

Constitutional interpretation must ensure that vulnerable groups are not excluded from public religious life solely on discriminatory grounds.

Promoting Reform from Within Communities

Social reform movements emerging internally within religious communities can produce more sustainable and less polarising outcomes.

The Constitution itself encourages reform-oriented engagement with tradition.

Conclusion

The Sabarimala review hearing represents one of the most significant constitutional debates in contemporary India concerning religion, equality and judicial power. At its core lies the challenge of balancing collective religious autonomy with individual constitutional freedoms.

The Centre’s challenge to the Essential Religious Practices doctrine raises important questions regarding the judiciary’s role in interpreting faith and determining constitutional protection for religious practices. At the same time, the constitutional commitment to equality and dignity requires that religious freedom cannot become a shield for exclusion and discrimination.

The final outcome of the case may significantly shape the future of secularism, religious liberty and constitutional morality in India’s democratic framework.

UPSC Practice Questions

Prelims MCQ 1

With reference to the Essential Religious Practices (ERP) doctrine in India, consider the following statements:

1. The phrase “essential religious practices” is explicitly mentioned in the Constitution of India.
2. The ERP doctrine originated from the Shirur Mutt case.
3. Articles 25 and 26 are subject to public order, morality and health.

How many of the above statements are correct?

(a) Only one
(b) Only two
(c) All three
(d) None

Answer: (b) Only two

Explanation:

• Statement 1 is incorrect because the Constitution does not explicitly mention the phrase “essential religious practices”.
• Statement 2 is correct as the doctrine emerged from the Shirur Mutt judgment (1954).
• Statement 3 is correct because Articles 25 and 26 are subject to public order, morality and health.

Prelims MCQ 2

Which of the following cases is most closely associated with the origin of the Essential Religious Practices doctrine?

(a) Kesavananda Bharati case
(b) S.R. Bommai case
(c) Shirur Mutt case
(d) Minerva Mills case

Answer: (c) Shirur Mutt case

Explanation:

The Shirur Mutt case (1954) laid the foundation of the Essential Religious Practices doctrine under Articles 25 and 26.

UPSC Mains Questions

Examine the tension between religious freedom and constitutional morality in the context of the Sabarimala case. How should constitutional courts balance these competing claims?

Discuss the constitutional debate surrounding the Essential Religious Practices doctrine in India. Should courts determine what constitutes an essential religious practice?

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