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The Supreme Court's nine-judge Constitution bench hearing the Sabarimala reference, on Thursday, April 9, cautioned that excluding other denominations from temples would harm Hinduism. Over the two days, the bench heard arguments on constitutional morality, the locus of PIL petitioners, and the rights of religious denominations under the Constitution.
The bench comprises Chief Justice of India Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan, and Justice Joymalya Bagchi.
Denomination rights, Sampradaya, and the limits of Article 26
Senior advocate CS Vaidyanathan, appearing for the Nair Service Society, Ayyappa Seva Samajam, and other organisations, argued that a religious denomination's right to manage its own affairs cannot be overridden by the State's power to make laws for religious reform.
Vaidyanathan further argued that former Justice DY Chandrachud, in the Sabarimala majority, "asked the wrong question and got the wrong answer" by holding that individual rights could prevail over collective religious rights.
Justice Nagarathna pushed back firmly on Vaidyanathan's position on denomination exclusivity. She said, "If you say it is a matter of religion that only my section must attend my temple and no one else, that is not good for Hinduism." Justice Aravind Kumar added, "We will be dividing the society." The CJI said Vaidyanathan's argument ran directly against the constitutional text, and that the denomination's right to manage its own affairs is itself governed by morality, which includes the constitutional bar on untouchability. "Article 17 is a principle of morality," CJI Surya Kant said.
The bench also heard from Additional Solicitor General KM Nataraj, representing the Union government, who argued that the term "religious denomination" in the Constitution must be understood in the Indian context as "sampradaya," noting that the Hindi authoritative text uses that expression. He submitted that sampradaya has no rigid structure and is a matter of faith. Sampradaya means traditional practices, unbroken lineage or school of religious teaching in Indian traditions.
On the question of whether visitors to a denominational temple are bound by its customs, Justice Nagarathna noted: "If Hindus want to visit a particular temple, the sampradayas attached to that temple must be followed." Vaidyanathan submitted that Sabarimala places no bar on Christians or Muslims, provided they have faith in Lord Ayyappa and follow the 40-day vratam, calling the contrary understanding "erroneous."
The CJI, summing up the tension between the seven-judge and five-judge bench precedents at the close of Thursday's hearing, said: "What the seven-judge bench held, the subsequent five-judge bench appears to be in conflict, maybe partly or to a larger extent, and we will try to resolve." Arguments will continue on April 10.
Locus of petitioners, constitutional morality under fire
On Wednesday, April 8, Solicitor General Tushar Mehta questioned the Supreme Court's judgements in Joseph Shine vs Union of India (which decriminalised adultery) and Navtej Singh Johar & Others vs Union of India (which decriminalised homosexuality), arguing that both had wrongly relied on "constitutional morality" and that the same reasoning had seeped into the Sabarimala verdict. He said all judgements that read "morality" as "constitutional morality" are per incuriam.
At the heart of his argument was a distinction between two standards: "societal morality" — what society at large considers moral — and "constitutional morality," a judicially evolved concept that judges have used to test whether a law or practice aligns with constitutional values. Mehta argued that the Constitution framers only intended the former, and that the latter was a vague, judge-driven standard with no textual basis. "Something which is constitutional morality for one judge cannot be for another," he said.
According to a report by LiveLaw, Mehta told the bench: "Constitutional morality is never a ground of judicial review." He also flagged the use of foreign jurisprudence, saying, "Any interpretation of Articles 25 and 26 based on American jurisprudence will necessarily be flawed in the Indian context."
The bench also spent considerable time on whether the original writ petitioners — the Indian Young Lawyers Association — had the locus to challenge the Sabarimala custom at all. Justice Nagarathna asked pointedly, "They are not devotees. Let us be clear — can any devotee of Lord Ayyappa file a writ petition challenging it? A non-devotee, a person who is not concerned with the temple, challenges it. Can this court entertain the writ petition?"
The SG noted that this was one of the referred questions — whether a person not belonging to a religious denomination can challenge its practices through a PIL. The CJI observed that if locus was an issue, the petition should have been dismissed in 2006 itself. Senior Advocate Indira Jaising, for the original petitioners, responded sharply: "We are 20 years down the line. If you want to dismiss, dismiss it. We will pack our bags and go and discharge the reference."
The bench also pushed back on the SG's argument that courts cannot decide what constitutes superstition. Justice Amanullah said courts retain the power of judicial review even if the legislature has the last word on reform. Justice Bagchi added that where the legislature is silent, courts can still strike down practices that violate public order, health, or morality.