Sabarimala Reference: Is the Essential Religious Practices test unworkable? | Key takeaways from Senior Advocate Rajeev Dhavan’s arguments

THE SUPREME COURT on April 17 continued hearing the Sabarimala reference before a nine-judge Constitution Bench led by Chief Justice Surya Kant. The day’s arguments by the Review Petitioners traversed the scope of Articles 25 and 26, the meaning of ‘denomination’ and ‘sampradaya,’ the role of constitutional morality, and the standing of non-believers to challenge religious practices by way of public interest litigation. The bench was addressed by Senior Advocates M.R. Venkatesh, Rajeev Dhavan, and V. Giri.

‘Religious practice and denomination are inherently incapable of definition’: M.R. Venkatesh

Senior Advocate M.R. Venkatesh, appearing for Atman Trust, argued that under Articles 25 and 26, expressions such as ‘religious practice,’ ‘Hindu religious institutions,’ and ‘religious denomination’ are “indeterminate” and “probably incapable of being defined.” He traced the word ‘denomination’ to its Latin roots in Christian ecclesiastical structures, arguing that it entered Indian constitutional text through the Irish Constitution and carries conceptual baggage ill-suited to India’s plural religious traditions. Articles 25(2)(a) and 25(2)(b), he submitted, are sui generis provisions crafted specifically for Indian conditions without international precedent, and ought not to be read through foreign doctrinal lenses.

Venkatesh warned against a framework that makes denominational status under Article 26 the only gateway to constitutional protection. If temples do not qualify as denominations under a rigid definition, they could be reduced to purely public spaces, “equated to a bus stand, where anybody can enter and exit,” denuded of any institutional religious character.

Regarding the relationship between Articles 25(2)(b) and 26(b), Venkatesh drew a clear distinction between the right of entry and the right to manage. Article 25(2)(b), he argued, ensures that temples of public character are thrown open to all classes and sections of Hindus, a guarantee of access that extends across caste and community. However, once inside, the management of the institution’s affairs remains with the denomination under Article 26(b). Members of the public, he noted, for example, may enter the Supreme Court to watch proceedings, but the Registrar continues to administer the institution. “Whoever enters cannot say, by virtue of Article 26(b), that I will manage the affairs of the Supreme Court,” he argued.

Venkatesh also argued that the practice of women in South India voluntarily refraining from entering temples or puja rooms during menstruation is rooted in personal religious discipline and belief, and cannot be assessed through empirical standards. He referred to Rule 6 of the Travancore-Cochin Temple Entry Rules, 1950, which bars persons under pollution arising from birth or death from entering temples. Venkatesh argued that such restrictions form part of a coherent framework of ritual discipline and reflect a denomination's right to manage its own affairs and cannot be characterised as discriminatory. 

Referring to Dr. B.R. Ambedkar's speeches in the Constituent Assembly, Venkatesh submitted that the framers had consciously distinguished between the social evil of untouchability and temporary ritual impurity arising from biological processes, and that the Sabarimala judgment of 2018 had conflated the two, contrary to constitutional intent.

He also argued that Article 25(2)(a) permits regulation of only secular activities, economic, financial, or political, and does not authorise any intrusion into the core of religious practice. Courts, he argued, had “turned the whole thing upside down” by reading religious law in association with secular practices and boxing religious practices into a corner through the essential religious practices doctrine.

‘I am dead against it’: Rajeev Dhavan on the Essential Religious Practices doctrine

Senior Advocate Rajeev Dhavan, addressing the bench on the essential religious practices (‘ERP’) doctrine, described it as conceptually “unstable” and “unworkable.” He traced the doctrine’s evolution from requiring that a practice be “essential or integral” to a religion, to more recent formulations asking whether removal of the practice would fundamentally alter the character of the religion (a test he said was “too narrow.”) Dhavan submitted that the doctrine has placed courts in the position of evaluating the core of religious belief without any principled framework. “I am dead against it,” he said flatly.

In the 2018 Sabarimala judgment, having concluded that the exclusion of women of a certain age group was not an essential religious practice, the majority proceeded to deny it constitutional protection at the outset. Justice B.V. Nagarathna observed that this had been the basis of the majority’s decision. Dhavan agreed, describing it as a “threshold argument” that defeats a claim before it can be properly examined.