Question of faith beyond judicial review: Govt to Supreme Court on Sabarimala

Sabarimala row: The government also advanced a broader doctrinal claim: that the attributes of a deity are not open to judicial review.

The Centre on Monday urged the Supreme Court to uphold the restriction on entry of women of menstruating age into Kerala’s Sabarimala temple, arguing that the issue falls squarely within the domain of religious faith and denominational autonomy and lies beyond the scope of judicial review.

Such an exercise, the Centre said, would amount to courts substituting their own philosophical views for the internal understanding of a faith. (PTI)

Notably, the government also urged the nine-judge bench to declare that the law and reasoning in the 2018 Joseph Shine judgment, which struck down the offence of adultery, are not good law, contending that the ruling rests on an overbroad and subjective application of “constitutional morality” — that the Centre termed “a judicially evolved, vague and indeterminate concept.”

In detailed written submissions filed ahead of the hearing on Tuesday, the Union government supported the review petitions against the 2018 judgment that had opened the temple to women of all ages. It contended that questions of who may enter a place of worship are not facets of gender discrimination but are rooted in religious practice, belief and the specific character of the deity.

The submissions, filed through Solicitor General Tushar Mehta, cautioned the bench against adopting standards of review that assess religious practices on grounds such as “rationality,” “modernity,” or “scientific defensibility.” Such an exercise, it said, would amount to courts substituting their own philosophical views for the internal understanding of a faith.

“An inquiry into whether a practice is rational, acceptable to judicial sensibilities or aligned with transformative constitutional doctrines is not constitutional review,” said the submissions, adding that judges are neither trained nor institutionally equipped to interpret religious texts or adjudicate theological questions.

The Supreme Court had on April 4 notified the constitution of the nine-judge bench to hear the long-pending Sabarimala review, bringing back to life a constitutional controversy that has remained in cold storage for six years and could reshape the court’s approach to religion-rights conflicts. The bench will comprise Chief Justice of India (CJI) Surya Kant, and justices BV Nagarathna, MM Sundresh, Ashanuddin Amanullah, Aravind Kumar, AG Masih, R Mahadevan, Prasanna B Varale and Joymalya Bagchi.

At stake before the bench is not merely the legality of the Sabarimala restriction, but a wider constitutional reckoning on the limits of judicial review in matters of religion. The court is tasked with answering seven broad questions, including the scope of the “essential religious practices” doctrine, the interplay between Articles 25 and 26, and the extent to which courts can entertain public interest challenges to religious customs by those outside the faith. The outcome is expected to shape the contours of constitutional morality, denominational autonomy and gender equality, while also impacting a cluster of connected disputes, from women’s access to mosques and dargahs to the rights of religious communities to define their own practices free from judicial intervention.

In a pushback against judicial scrutiny of what constitutes an “essential religious practice”, the Centre in its submissions argued that the essentiality of a practice must be determined by the denomination itself, based on its understanding of scripture and tradition, and not by courts. Faith and belief, it said, are constitutionally protected freedoms that cannot be subjected to judicial balancing unless they run afoul of public order, health, morality or other fundamental rights.

The government also advanced a broader doctrinal claim: that the attributes of a deity are not open to judicial review. It submitted that the Sabarimala temple is dedicated to Lord Ayyappan in the form of a Naisthika Brahmachari (eternal celibate), and that the restriction on entry of women of childbearing age is intrinsically linked to preserving that character.

Courts, it argued, cannot “reform” or reinterpret the nature of a deity by declaring certain attributes to be non-essential or irrational. The juristic personality of a deity, recognised in law, requires courts to accept the denomination’s understanding of those attributes as conclusive. Any attempt to separate “essential” from “non-essential” aspects of a deity’s character would effectively require the court to declare that worshippers are mistaken about their own faith — a role the Constitution does not envisage for the judiciary.

The submissions also criticised the reasoning adopted by the five-judge bench in 2018, which had examined whether the celibate nature of the Sabarimala deity was essential to the practice. According to the Centre, such an approach impermissibly places courts in the position of theological arbiters.

A significant plank of the Centre’s argument is its critique of the doctrine of “constitutional morality”, which it described as a vague and judicially evolved concept with no clear textual basis in the Constitution.

The government warned that reliance on constitutional morality to invalidate religious practices risks introducing subjective standards into adjudication, effectively allowing courts to reshape religious traditions based on evolving judicial perceptions. This, it argued, amounts in substance to an amendment of the Constitution through judicial interpretation rather than through the prescribed constitutional process.

By urging the court to reject this line of reasoning, the Centre has sought a recalibration of the balance between individual rights and religious freedom that accords primacy to denominational autonomy in matters of faith.

In a more sweeping submission, the Centre urged the court to declare that the five-judge bench judgment in Joseph Shine Vs Union of India (2018), which struck down the offence of adultery, is not good law. The adultery judgment was delivered by a bench comprising then CJI Dipak Misra and justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The Centre has, in this context, taken specific exception to what it characterises as reliance on extra-judicial or subjective material in constitutional adjudication, urging the court to clarify that binding judicial pronouncements must rest strictly on constitutional text, precedent and established legal principles.

Invoking the Supreme Court’s plenary powers and its status as a court of record under Articles 129 and 141, the submissions argue that judgments cannot be influenced by individual opinions expressed outside the courtroom, whether in academic writings, law journals or informal platforms such as lectures and podcasts. Such material, it contended, reflects personal and evolving viewpoints rather than settled law, and allowing it to shape constitutional interpretation risks introducing subjectivity into what must remain a principled and institutionally grounded exercise.

While the Sabarimala reference primarily concerns religious freedom, the Centre’s challenge to Joseph Shine is tied to its broader critique of constitutional morality. It argued that the reasoning in that case relied heavily on abstract notions of autonomy and morality that are not grounded in constitutional text, and that such an approach has wider implications for how courts engage with social and religious norms.

The Centre’s submissions also responded to the seven questions framed in the 2019 reference order, which have transformed the Sabarimala dispute into a far-reaching constitutional inquiry. These include the scope of judicial review over religious practices, the contours of essential religious practices, and the meaning and limits of constitutional morality.