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

Saji Koduvath, Advocate, Kottayam

Preface

Constitutional morality is triggered when human dignity is impaired. It is a constitutional tool employed by constitutional courts to override prevailing social morality whenever such intervention is found necessary.

The Sabarimala Temple review reference, along with other connected matters, is scheduled to be heard by a Nine-Judge Bench of the Supreme Court of India, from 7 April 2026. The Court will determine, on the touchstone of constitutional morality, whether (i) the practice of ‘female genital mutilation’ in the Dawoodi Bohra community, and (ii) the ‘social exclusion of women’ from certain religious places on the basis of faith or custom, are unconstitutional. The issues of exclusion include:

(i) women between the age group of 10 to 50 years from the Sabarimala temple;
(ii) Muslim women from dargahs/mosques; and
(iii) Parsi women married to non-Parsis from 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 in 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 Petitions: To a Larger Bench

Several review petitions were filed against the findings in the Sabarimala case. After hearing the petitions, by the Five-Judge Bench, in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, the majority (Ranjan Gogoi, A.M. Khanwilkar, Indu Malhotra, JJ.) found that there was a conflict of opinion as regards the role of the court in matters of ‘essential religious practices’, between two earlier Judgments of the Supreme Court. They were the following:

.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).

The majority found it necessary to resolve the conflict between these decisions for the proper determination of the review applications. It framed seven issues. The majority were of the opinion that it was proper to place the review petitions before a Larger Bench. It is held further that the review petitions will “remain pending until determination of the questions” by the larger bench.

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.

Review-Reference: Minority Findings

R.F. Nariman and D.Y. Chandrachud, JJ. (minority) held that no grounds had been made out for reviewing the majority judgments. They emphasised that the proper inquiry required in this matter was whether the impugned practice of exclusion of women between the ages of 10 and 50 from Hindu temples constituted an essential practice relatable to the Hindu religion, and not the practice of one particular temple. They further noted that no material—textual or otherwise—had been placed to demonstrate that such exclusion of women from Hindu temples forms an essential practice of the Hindu religion. The minority further held as under:

“The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all persons bound by it.”

Nine-Judge Bench Reframed the Issues

On 10.02.2020, the Nine-Judge Bench reframed the issues (Quoted in the Order, Kantaru Rajeevaru v. Indian Young Lawyers Association, dated 11 May 2020: 2020-9 SCC 121) referred to it, as under:

What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Other Cases Considered in the Review Matter

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

1. 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.

2. Ban on Certain Parsi Women from Entering the Holy Place

The Gujarat High Court, by a 2:1 majority, dismissed the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petition challenged a practice within the Parsi community whereby a Parsi woman, upon marrying a non-Parsi, is considered to have lost her religious identity and is consequently denied entry into the holy fire temple (Agyari). In contrast, a Parsi man marrying a non-Parsi does not face such exclusion.

The petitioner sought the right to perform the funeral rites of her parents. It was contended that the tenets of Zoroastrianism do not deprive a Parsi-born woman of her religious identity, dignity or associated rights even if she married a non-Parsi. The impugned practice was argued to be discriminatory and violative of the right to equality under Article 14 of the Constitution of India. It was further contended that such exclusion amounted to excommunication raising serious social and constitutional concerns.

Accepting the submissions of the Parsi Trust, the High Court upheld the practice, holding that the exclusion constituted an “essential religious practice.” The appeal filed against this decision is also listed for consideration along with Sabarimala Review matter.

3. 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.

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

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