The Central Government on Tuesday mounting a firm defense of religious autonomy, told a nine-judge Constitution Bench of the Supreme Court that the restriction on the entry of women of menstruating age into Kerala’s Sabarimala temple is a matter of “religious self-understanding” and falls outside the scope of judicial review.
Solicitor General Tushar Mehta, representing the Centre, argued that unless a religious practice violates public order, morality, or health—citing human sacrifice as an extreme example—the judiciary should not intervene to test the “rationality” or “modernity” of a faith-based tradition.
Appearing before the bench headed by Chief Justice Surya Kant, Mehta emphasized that the Constitution protects convictions and rituals that may not align with secular standards of reason or utility.
“We have to respect every denomination’s practice; not everything is related to dignity or bodily freedom,” the Solicitor General submitted. Drawing a comparison to other faiths, he noted, “If I go to a mazar or a gurudwara and if I have to cover my head, I can’t say my dignity, right or choice is taken away.”
The Centre’s submission cautioned the top court against adopting a “model of review” that seeks to determine if a practice is “scientifically defensible” or “acceptable to judicial sensibilities.” Such an inquiry, the Centre argued, would substitute judicial philosophy for religious faith.
A significant portion of the Centre’s argument was directed at the doctrine of “constitutional morality,” a concept frequently cited by the judiciary in recent years. The Solicitor General argued that this term is not textually present in the Constitution and remains “vague and indeterminate.”
“The expansion of the term ‘morality’ — which is explicitly referred to in the Constitution to mean and include ‘constitutional morality’ — amounts to not only judicial overreach but an amendment of the Constitution,” the Centre stated in its submission.
The government further highlighted the inherent risks of the court interpreting religious texts, noting that India is a pluralistic society where each religion and denomination has its own unique expressions of worship. The Centre maintained that the judiciary lacks the “expertise or scholarship” required to interpret holy books and scriptures across various faiths.
This hearing is the culmination of a long legal battle that began in September 2018, when a five-judge bench, in a 4:1 majority, lifted the ban on women aged 10 to 50 entering the Sabarimala temple, declaring the practice unconstitutional.
However, in November 2019, following review petitions, a bench headed by then-CJI Ranjan Gogoi referred the matter to a larger bench. The current nine-judge bench is not only examining the Sabarimala issue but also broader questions regarding discrimination against women at various places of worship, including:
- The entry of Muslim women into mosques and dargahs.
- The rights of Parsi women married to non-Parsi men to enter the holy fire place of an Agiary.
The Constitution Bench—which includes Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi—has signaled its intent to move swiftly. At the start of the proceedings, the court directed counsels to adhere strictly to the timeline, citing a heavy backlog of urgent matters.
The hearing is currently underway and is expected to conclude by April 22, as the court seeks to answer seven specific questions regarding the intersection of religious freedom and individual rights.
