Sabarimala Review: Supreme Court to Decide the Contours of Constitutional Morality

Saji Koduvath, Advocate, Kottayam

Constitutional morality is triggered when human dignity is impaired. It is a constitutional tool employed by constitutional courts to override prevailing social morality—whether perceived by the general public, the legislature or the executive—whenever such intervention is found necessary.

The Sabarimala review reference and other connected matters are scheduled to be heard by a Nine-Judge Bench of the Supreme Court of India from 7 April 2026. The Apex Court will decide — does the constitutional morality operate differently in the practice of ‘female genital mutilation’ among the Dawoodi Bohra community, and in the following cases of ‘social exclusion of women’, from the religious places, based on faith or custom –

• .(i) the exclusion of women between the age group of 10 to 50 years from the Sabarimala temple;
• (ii) the right of entry of Muslim women into dargahs/mosques; and
• (iii) the right of entry of Parsi women married to non-Parsis into the holy fire place of an Agyari.

Sabarimala Decision

The Supreme Court of India held by Majority (4:1), on 28 September 2018, in Indian Young Lawyers Association v. State of Kerala (2019-1 SCC 1), that the exclusion of women between the age group of 10 to 50 years from the Sabarimala temple was unconstitutional.

Findings of the Majority Judgement

The pivotal findings that ultimately tilted the majority decision (Dipak Misra, CJI , A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud, JJ.) were the following:

• .(i) The exclusion of women, based on a biological factor unique to the female sex, could not be sustained as a matter of ‘faith’ under Article 25 of the Constitution, which guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.
• (ii) The exclusion of women could not be held as an ‘essential religious practice’ required under Article 25.
• (iii) The devotees of Lord Ayyappa, were not separate religious ‘denomination’ so as to claim the benefits of Article 26, which guarantees the freedom to manage religious affairs.
• (iv) The exclusion of women violated Article 14, which ensures equality.
• (v) The conscience (faith) in Article 25 did not override Article 14.
• (vi) Both Articles 25 and 26 begin with the words—‘subject to public order, morality and health’. This ‘morality’ includes constitutional morality. It renders the exclusion of women unconstitutional.

Minority Judgement

Justice Indu Malhotra handed down a dissenting Judgment. She held, inter alia, the following:

• .(i) The Ayyappans constituted a religious denomination. They could claim the benefits of Article 26.
• (ii) Article 14 would not override Article 25.
• (iii) The Constitutional Morality implied harmonisation.
• (iv) A working formula to be adopted to decide religious denomination.
• (v) Notions of Court should not be the criterion.
• (vi) Supreme Court must be a balancing wheel.
• (vii) What was permitted by Article 25(2)(b) was a State made law and not judicial Intervention.
• (viii) The proper forum to decide the point in issue was civil court.
• (ix) Rule 3(b) of the 1965 Rules, made under Section 3 of the Kerala Hindu Places of Public Worship Act, 1965 (imposing limited restriction on the entry of women during the notified age group), was not ultra vires.
• (x) The limited restriction on the entry of women did not fall within the purview of Article 17 that pertained to doctrine of untouchability.

Review-Reference

Several review applications were filed against the findings in the Sabarimala case. After hearing the review applications, the Five-Judge Bench, by 3:2 majority (Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1), found it necessary to resolve the conflict of opinion, pertaining to the role of the Court in matters which were essential religious practices, between two earlier Judgments of the Supreme Court.

• 1. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282).
• 2. Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402).

Durgah Committee case: Court has an Active Role

The Five-Judge Bench in Durgah Committee case emphasied that the Court has an active role to decide andto exclude what are secular practices or superstitious beliefs while considering the impact of Article 25 and 26.

Shirur Mutt case: Prerogative of Religious Denomination

But, it has been found in the locus classicus decision of Seven Judges, in Shirur Mutt case that a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold; and no outside authority has any jurisdiction to interfere with their decision in such matters. It was also observed in this decision that the right to manage its own affairs in matters of religion is a fundamental right which no legislature can take away. It was further held – what are essential religious practices of a particular religious denomination is to be ascertained with reference to the doctrines of that religion, and they should be left to be determined by the denomination itself.

These review applications are now placed before a Nine-Judge Bench of the Apex Court. 

Other Cases Considered in the Review Matter

The following three cases have also been referred for the consideration of the Nine-Judge Bench:

• .(i) the right of entry of Muslim women into dargahs/mosques;
• (ii) the right of entry of Parsi women married to non-Parsis into the holy fire place of an Agyari; and
• (iii) the challenge to the practice of female genital mutilation in the Dawoodi Bohra community.

Female Genital Mutilation

In the public interest litigation, Sunita Tiwari v. Union of India, filed before the Supreme Court, under Article 32 of the Constitution, prayed for a direction to impose complete ban on the inhuman practice of female genital mutilation and for making it punishable. It is argued that the Dawoodi Bohra community outside of India, in the United States of America, Australia and Kenya, consider female circumcision an illegal practice.

The Attorney General, KK Venugopal, pointed out that the FGM practice had been banned in 42 countries.  27 countries thereof are in Africa. AG further indicated that the World Health Organisation had called for banning this practice.

Dawoodi Bohra community claimed that it is an essential age-old practice going back to 1400 years and also claimed to have the support of over 80,000 Dawoodi Bohra women. It is further argued that ‘a minor’s consent can be presumed when family members take a decision for them’; and that the ‘family enjoys a zone of privacy and autonomy with respect to a minor child’. The Three-Judge Bench of the Apex Court, on 24.09.2018, found it necessary to refer the matter to a larger Bench; and it is now tagged for hearing with the Sabarimala review petitions.

Ban on Certain Parsi Women to Enter the Holy Place

If a Parsi woman marries a Non-Parsi, she will lose her religious identity. She will not be allowed to enter the holy fire place of an Agyari. But a Parsi man who marries a Non-Parsi will not face this plight. This anomaly was questioned in a Writ Petition before the Gujarat High Court by Ms.Goolrokh Gupta.  She prayed to allow her to perform funeral ceremonies of her parents in the event of their death. It was contended that the tenets of Zorastrianism did not deny the rights, dignity and religious dignity of a born Parsi woman even if she married a non-Parsi. It was argued that this custom was violative of the right to equality under Articles 14 of the Constitution of India. It was pointed out that this excommunication was a matter of social and constitutional concern.

The High Court dismissed the Writ Petition (Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266), under 2:1 majority. The High Court upheld the argument of the Parsi Trust that this exclusion of women was an ‘essential religious practice’. The appeal filed against this decision is also posted for consideration along with Sabarimala Review matter.

Prohibition of Muslim Women in Mosques

 The Writ Petition, Yasmeen Zuber Ahmad Peerzade  v. Union of  India, is filed before the Supreme Court, under Article 32 of the Constitution of India, challenging the practices on entry of Muslim Women to Mosques in India. It is pointed out that women are allowed to enter mosques that have a separate space for them, but most mosques in India do not have such separate enclosures. The petitioner argues that this exclusion of women is illegal and unconstitutional. It violates the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. It is claimed that the historical sources showed that Prophet Muhammad himself had encouraged women to actively participate in mosque congregations and prayer. The most sacred mosque in the world, Masjid-al-Haram in Mecca, always invites Muslim women from every part of the world to pray in it.  The petitioner also argues that the Quran does not prohibit women entry.

The stance of the respondents, as reflected in the counter affidavit filed by the All India Muslim Personal Law Board, is that the alleged rights cannot be enforced against non-state entities like Mosques. The Friday Namaz in congregation is not obligatory for women. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home. The matters involved are religious practices based upon beliefs of the religion. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected under Article 26. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process.  It is further stated that it should be left to be resolved through the processes of social transformation within the religious denomination itself.

Conclusion

The significance of the Nine-Judge Bench decision in the Sabarimala case may extend beyond choosing between the Shirur Mutt case and the Durgah Committee case. One thing is certain—the approach the Court adopts will be firmly grounded in the governing jurisprudence while also being practical and solution-oriented.