Sabarimala Reference: ‘Article 25 is not a free-standing guarantee of Temple Entry’, Review Petitioners argue

OVER TWO DAYS, April 21 and 22, the nine-judge Constitution Bench led by Chief Justice Surya Kant continued hearing arguments on the Sabarimala reference, with the Review Petitioners completing their submissions. Senior Advocates V. Giri, Gopal Sankaranarayanan, J. Sai Deepak, Aryama Sundaram, Gopal Subramanium, Rakesh Dwivedi, Mukul Rohatgi and Neeraj Kishan Kaul addressed the Court. 

The hearings majorly moved across three interlocking issues:  the relationship between Articles 25 and 26, the meaning of ‘religious denomination’ and the question of temple entry, and whether ‘morality’ in the two provisions can accommodate constitutional morality as an independent doctrine of judicial review.

Previously, the Review Petitioners and the Union government had argued over how Articles 25 and 26 inter-operate, with Senior Advocate Singhvi contending that constitutional morality is too vague and dangerous a standard to apply to religious rights, and Senior Advocate Dhavan urging that the Essential Religious Practices doctrine is conceptually unworkable and should not serve as a threshold test to deny constitutional protection. Read our other reports here and here.

Are Articles 25 and 26 distinct?

The central structural question, whether Article 26 is controlled by Article 25(2)(b), or whether it stands independently, produced the sharpest arguments. 

Senior Advocate V. Giri argued that the right under Article 25(1) is not a free-standing guarantee of temple entry but one to be exercised in conformity with the characteristics of the deity being worshipped. A devotee who approaches a temple subjugates himself to the divine spirit, and it is not open to him to assert his right in a manner “antagonistic” to the defining features of that deity. 

Justice Ahsanuddin Amanullah pressed upon this with force, and asked whether the Constitution must come to the rescue of a genuine believer who is permanently barred from touching the deity purely on account of birth, something over which he has no control. Giri accepted that a disqualification resting solely on birth would not be constitutionally valid. Justice M.M. Sundresh observed that such a situation would fall within Article 25(2)(b) as a matter of social reform, while Justice B.V. Nagarathna clarified that Agamic qualifications for ritual performance stand on a different footing from untouchability and must be understood within the framework of the practice itself.

Senior Advocate Gopal Sankaranarayanan argued that when Article 25(1) says it is subject to “other provisions of this part,” the provisions intended are those that operate horizontally by binding private actors, and not just the State. In his reading, these are Articles 15(2), 17, 23, and 24. Article 26, he explained, is not controlled by Article 25 at all. A denomination can never use Article 26 to exclude those whom Article 17 protects, but that result flows from the ‘morality’ exception within Article 26 itself and not from any subordination of 26 to 25(2)(b).

Going further, Senior Advocate J. Sai Deepak argued that Article 25(2) was designed only as a proviso on Article 25(1) and cannot be stretched to curtail Article 26. The collective denominational right was deliberately carved out of Article 25(1) precisely so that it would not be fettered by the restrictions applicable to the individual right. The conspicuous absence of “subject to other provisions of this part” in Article 26 was, he submitted, controlling. 

Chief Justice Surya Kant asked who would review State action restricting a religious practice if not the courts, adding that “to say there is no power at all may also be a very difficult proposition.” Deepak clarified that State action remains reviewable, but the practices themselves cannot be evaluated directly or indirectly.

Taking a contrary position, Senior Advocate Gopal Subramanium argued that Article 26 cannot have a “sui generis existence” without walking through the gate of Article 25. A denomination is constituted through individuals, and inside an institution, members exercise Article 25(1) rights. Justice Sundresh observed that the freedom under Article 26 is therefore not entirely divorced from the rights actually exercised by members. Subramanium also submitted that the word “manage” in Article 26(b) is wide enough to include internal debates and discussions within a denomination and this need not be located in Article 19(1)(c).

In the hearings today, taking a middle ground, Senior Advocate Aryama Sundaram argued that Articles 25 and 26 must be read together, and the State’s power under Article 25 extends to denominations, but only as classes and sections. Crucially, he agreed that “classes and sections” in Article 25(2)(b) does not include gender, and only to those “similarly placed”.