Sabarimala Reference: ‘Constitution is the grundnorm. Everything else must yield’, Senior Advocate Indira Jaising argues as Respondents begin their submissions
Senior Advocate Indira Jaising opened arguments for Respondents by placing exclusion at the heart of her submissions and arguing that the Constitution, as the grundnorm, admits of no higher norm, and certainly not one built on notions of pollution and defilement.
Ajitesh Singh
Published on: 30 April 2026, 12:23 pm
“THE CONSTITUENT ASSEMBLY DEBATED Articles 25 and 26 for a total of four days. We are now in our tenth day,” Senior Advocate Indira Jaising told the nine-judge Constitution Bench on Wednesday, “We seem to be sitting here as a Constituent Assembly, completing the job which the Constituent Assembly left incomplete… supposedly, because fifty-five counsel on the other side are telling you that they didn’t do their job.”
After nine days of submissions by the Review Petitioners, the Bench led by Chief Justice Surya Kant yesterday began hearing the Respondents, with Jaising opening for two Hindu women, Bindu and Kanakadurga, who had entered the Sabarimala temple following the 2018 Sabarimala judgment.
Jaising argued across the length of the day that exclusion is a form of untouchability under Article 17, that the right under Article 25(1) is in the nature of a freedom and not merely a claim, that the Constitution is the grundnorm above which no norm can stand, and that the meaning of ‘morality’ is constitutional, not public morality. She also discussed the limits of denominational rights under Article 26, what constitutes a religious denomination, the binding character of the Reference’s outcome, and why the Essential Religious Practices (‘ERP’) test, with its flaws, cannot simply be discarded.
‘Entry flows from Article 25(1). It is a freedom, not a claim’: Jaising
Jaising insisted that Article 25(1) conferred a freedom, not a right in the narrow sense. “When I enter a temple as a woman, you have to show me which of the limitations I have violated. Because I have that freedom,” she said. She described the right to enter a public temple as a right in rem, one that determines a person’s status in law, just as the status of being Hindu does. “You cannot take away my status as a Hindu from me. No one else can renounce it, only I can.”
Chief Justice Surya Kant asked whether Article 25(1) conferred a new right or merely recognised a pre-existing one, noting the answer would affect the scope of limitations. Jaising said she was content with either formulation. In both cases, the right carried constitutional weight and was subject only to the express limitations in Article 25(1) itself.
She was clear that her claim was confined to entry, not to what happened inside. “This Court has protected ritualistic ceremonies. I cannot go to the Pujari and say, offer flowers instead of a coconut. That line has been drawn and I do not seek to cross it,” she noted, adding that the only question was whether the denomination’s right under Article 26 could ‘eclipse’ the individual’s right under Article 25(1). “It is the other way around,” she submitted.
