On 28 September 2018 a five judge Constitution Bench of the Supreme Court of India delivered its judgment in Indian Young Lawyers Association v State of Kerala and held, by a majority of four to one, that women between the ages of ten and fifty could no longer be excluded from the Sabarimala temple in Kerala. Fourteen months later, on 14 November 2019, a differently constituted five judge bench hearing review petitions in Kantaru Rajeevaru v Indian Young Lawyers Association declined, by a majority of three to two, either to affirm or to disturb that judgment, and instead referred a set of seven questions to a bench of nine judges. Between those two dates lies the most instructive religion and state adjudication in the history of the Indian Republic, and this article defends one claim about it. The Sabarimala verdict of 2018 and the nine judge reference of 2019 operationalise a single architectural tension written into the Constitution itself, the tension between Article 25, which grants freedom of religion to every person as an individual right, and Article 26, which grants every religious denomination the right to manage its own affairs in matters of religion as a collective right. The 2018 majority resolved that tension in one direction, holding that a denominational practice excluding women failed the essential religious practices test and could not defeat the individual rights to equality and worship held by the excluded women. Justice Indu Malhotra, dissenting alone, resolved it in the opposite direction, holding that a court asked by outsiders to the faith should defer to the denomination and leave its internal discipline alone. The 2019 reference then did something rarer than either judgment. It lifted the tension out of one temple dispute and restated it as seven general questions about the reach of courts into religion, and those questions, still awaiting a nine judge answer, are the strongest evidence that the case was never only about gender justice or only about tradition. It was, from the first petition to the last order, an argument about the architecture of Indian secularism conducted in the vocabulary of doctrine.

Two Articles, One Temple: The Constitutional Architecture of the Sabarimala Verdict

The Constitution of India does not contain a wall of separation between religion and the state, and the Sabarimala litigation cannot be understood by importing one. What the Constitution contains, in Articles 25 to 28, is a carefully layered settlement whose drafting the Constituent Assembly debated through 1947, 1948 and 1949, and whose internal stresses were visible to its authors from the start. Article 25(1) provides that, subject to public order, morality and health and to the other provisions of Part III of the Constitution, all persons are equally entitled to freedom of conscience and to the right freely to profess, practise and propagate religion. Three features of that sentence decided the shape of the Sabarimala case seventy years later. The right belongs to all persons, not to citizens alone and not to communities as such. The right is expressly subordinated to the other fundamental rights in Part III, which include the equality guarantee of Article 14 and the prohibition of discrimination on grounds of sex in Article 15(1). And the right protects practice, a word that reaches conduct and ritual and not belief alone, which means the state, through its courts, must sometimes decide what counts as practice and what within practice counts as essential.

Article 26 speaks in a different grammatical register. It provides that, subject to public order, morality and health, every religious denomination or any section of a denomination shall have the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property, and to administer that property in accordance with law. Where Article 25 addresses the person, Article 26 addresses the denomination. Where Article 25 subordinates itself to the whole of Part III, Article 26 is subordinated only to public order, morality and health, a textual difference that lawyers for the Sabarimala devotees pressed hard in 2018 and that Justice Malhotra’s dissent treated as deliberate. The framers, on this reading, gave the denomination a zone of self government that the equality code does not automatically penetrate, because a constitution that protected only individual belief while leaving every collective practice exposed to majoritarian legislation would have protected very little. The counter reading, developed by the petitioners in 2018 and adopted by three of the four majority opinions, holds that the denomination’s zone is real but not self defining, that a denomination cannot by its own assertion convert an exclusion into a matter of religion immune from Part III, and that the court’s task is precisely to police the boundary.

Between the two articles sits Article 25(2), the reform clause. It permits the state to make laws regulating or restricting economic, financial, political or other secular activity associated with religious practice, and it permits laws providing for social welfare and reform or for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. The temple entry legislation of the Madras and Kerala states in the decades after 1950 rested on this clause, and the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, the parent statute of the rule struck down in 2018, was a child of Article 25(2)(b). The architecture therefore contains three moving parts. An individual right to practise religion, expressly subject to other fundamental rights. A denominational right to manage religious affairs, subject to a narrower list of limits. And a legislative power of reform that authorises the state to open public temples across inherited exclusions. A dispute that engages only one part can be decided within it. The Sabarimala dispute engaged all three at once, because the excluded women claimed as individuals under Article 25(1) and Articles 14 and 15, the devotees and the Travancore Devaswom Board claimed as a denomination under Article 26, and the exclusion itself existed not as unwritten custom alone but as Rule 3(b) of rules framed under a reform statute of 1965. That triple engagement, and not the fame of the temple or the scale of the protests that followed, is what made the case an architectural event.

The doctrinal instrument through which Indian courts have managed this architecture since 1954 is the essential religious practices test, and no account of Sabarimala is complete without its genealogy. In Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, decided on 16 April 1954, a seven judge bench held that Article 25 protects not only belief but acts done in pursuance of religion, and that what constitutes the essential part of a religion is to be ascertained with reference to the doctrines of that religion itself. The Shirur Mutt judgment simultaneously empowered and burdened the courts. It empowered them to separate the religious core of a practice from secular accretions that the state could regulate. It burdened them with a theological inquiry that judges are trained as lawyers to conduct and not as scholars of any faith, an inquiry whose awkwardness every later bench has felt and several have protested. Through the decades the test was applied to the tandava dance of the Ananda Margis in 1983 and again in 2004, to the sacrifice of animals, to the administration of the Nathdwara temple in 1963, to the denominational status of the Ramakrishna Mission in 1995, and to the Swaminarayan sect’s claim in 1966 to stand outside the temple entry laws. Each application refined the instrument and deepened the unease around it. By September 2018 the essential practices test was at once the settled gateway through which every Article 26 defence had to pass and the most criticised doctrine in Indian religious freedom law. Sabarimala forced a Constitution Bench to walk through that gateway in full public view, on a practice defended by millions of devotees, and the four majority opinions and the lone dissent disagreed less about the gateway’s existence than about who should hold its key.

How did the Shirur Mutt judgment of 1954 define an essential religious practice?

The seven judge bench in the Shirur Mutt case, decided on 16 April 1954, held that the essential part of a religion is to be ascertained with reference to the doctrines of that religion itself, and that rituals and modes of worship regarded by the faith as integral fall within Article 25 protection.

That definition carried a deliberate humility and a concealed difficulty. The humility lay in directing the court to the religion’s own doctrines rather than to the judge’s private sense of what a faith should require. The difficulty lay in identifying those doctrines when the adherents themselves disagree, when texts are layered across centuries, and when a practice is defended not by scripture alone but by the settled usage of a shrine. The Sabarimala record presented each difficulty in concentrated form. The devotees pointed to the celibate character of the deity Ayyappa at Sabarimala, worshipped there as a naishtika brahmachari who has undertaken a perpetual vow, and to the forty one day vratham, the period of austerity and abstinence that pilgrims undertake before the climb, as the doctrinal setting within which the exclusion of women of menstruating age was, in their submission, integral and not incidental. The petitioners answered that Ayyappa is worshipped in other temples without any such exclusion, that the deity’s celibacy is honoured at Sabarimala itself by the presence of the goddess Malikappurathamma, and that a practice varying from shrine to shrine within one faith cannot claim the uniformity that essentiality implies. A court applying Shirur Mutt had to choose between these accounts of the same doctrine, and the choice, once made, determined the case. The majority chose the petitioners’ account. Justice Malhotra warned that the choice itself exceeded the judicial office. That disagreement, stated here at the level of a 1954 definition, is the whole Sabarimala case in miniature.

The second doctrinal instrument in the case was constitutional morality, a phrase the majority drew from the Constituent Assembly debates of 4 November 1948, where B. R. Ambedkar, quoting the historian George Grote, told the Assembly that constitutional morality was not a natural sentiment and had to be cultivated. In the Sabarimala opinions of Justice Nariman and Justice Chandrachud the phrase did specific work. It supplied the standard by which a practice defended as ancient and sincere could nevertheless be measured against the Constitution’s own commitments to equality and dignity and found wanting, without the court needing to declare the practice irrational or the belief false. Critics of the verdict, including scholars who supported women’s entry on other grounds, objected that constitutional morality in this usage becomes a vessel into which each bench pours its own convictions, and that a standard so open textured cannot discipline the essential practices inquiry it was meant to guide. Defenders answered that the phrase has a determinate core in the text of Part III itself, that Articles 14, 15, 17 and 21 are the morality the Constitution professes, and that a practice excluding a class of persons from a public temple on a ground the Constitution names as forbidden must answer to those articles or the articles mean nothing. The article returns to this disagreement among named scholars after the judgments have been set out, because the disagreement is the point at which the Sabarimala adjudication passes from doctrine into the theory of Indian secularism itself.

One further piece of architecture must be named before the narrative begins, because the majority used it and the dissent resisted it. Article 17 abolishes untouchability and forbids its practice in any form. Chief Justice Misra’s opinion for himself and Justice Khanwilkar reasoned that exclusion founded on notions of purity and pollution, where the excluded class is kept at a distance because its presence is said to defile, bears the structure of untouchability even where the excluded class is defined by sex and age rather than by birth into a caste. Justice Chandrachud developed the analogy at length, treating the exclusion of women during menstruation as a form of social ostracism resting on stigma. The devotees and the dissent rejected the analogy as a category error, arguing that untouchability in the constitutional sense names a hereditary system of graded degradation imposed on specific communities, that the Sabarimala exclusion is a temporary, age bounded condition tied to a deity’s vow and lifted for every woman outside the stated years, and that stretching Article 17 to cover it empties the article of its historical referent. The dispute over Article 17 is recorded here without resolution because the nine judge reference of November 2019 carried it, unresolved, into the largest questions Indian religious freedom law has ever formally posed to itself.

The Temple, the Vow and Rule 3(b): The Record Before 2006

Sabarimala stands in the Periyar Tiger Reserve forest of the Pathanamthitta district of Kerala, at the end of a pilgrim path walked barefoot by devotees who have observed the vratham for forty one days. The deity, Ayyappa, is among the most widely venerated in south India, and the pilgrimage in the Mandalam and Makaravilakku season draws numbers that the Travancore Devaswom Board, the statutory body administering the temple, has counted in the tens of millions across a season. The devotees’ account of the exclusion, stated in their affidavits before the Kerala High Court in 1990 and 1991 and repeated before the Supreme Court in 2018, rests on the specific form in which Ayyappa is present at this shrine. At Sabarimala the deity is a naishtika brahmachari, a celibate who has taken a lifelong vow, and the temple’s discipline is ordered around that vow. Women between the ages of ten and fifty, the years the rule treats as the menstruating span, do not enter, in the devotees’ submission, not because women are held impure in general but because the presence of women of that age within the shrine is inconsistent with the celibate discipline that defines this particular seat of the deity. The submission draws support, in the devotees’ telling, from the legend of Malikappurathamma, the goddess whose shrine stands near the main temple and who, in the legend, waits until the year in which no first time pilgrim, no kanni Ayyappa, climbs the hill. Devotees state the position as one of deference to the deity’s own discipline, and they state it as a matter internal to the faith, to be settled by the faith’s own authorities and usages rather than by visitors to the tradition.

The historical record is less tidy than either side’s courtroom version, and the judges of 2018 knew it. Women of the stated ages had on occasion entered the temple in earlier decades, a fact the Kerala High Court confronted in 1991 when photographs and reports of younger women’s presence at the shrine reached it. The Travancore Devaswom Board’s own positions across the decades were not constant either, a matter examined in detail in a later section of this article. What converted a variable usage into a hard legal line was subordinate legislation. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 opened Hindu public temples in the state in the reforming spirit of Article 25(2)(b), and the rules framed under it in 1965 then qualified the opening. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 provided that women were not entitled to enter or offer worship in any place of public worship during the time when, by custom and usage, they were prohibited from doing so. The rule did not name Sabarimala. It did something more consequential for the litigation that followed. It gave the exclusion the force of law, which meant that when the challenge came, the petitioners could attack a state made rule under Part III rather than a bare custom, and the state, having legislated the exclusion, could not present it as a purely private religious arrangement beyond the Constitution’s reach.

The first judicial settlement of the question came a generation before the Supreme Court’s. In S. Mahendran v Travancore Devaswom Board, a division bench of the Kerala High Court delivered judgment on 5 April 1991 upholding the exclusion. The High Court accepted the evidence of the temple’s tantric authorities and of the Pandalam royal family, historically associated with the shrine, that the exclusion was an essential and integral part of the worship of Ayyappa at Sabarimala, and it held the practice protected rather than prohibited by the 1965 Act and its rules. The 1991 judgment governed the ground for twenty seven years. Pilgrims organised their observance around it, the Board administered the temple under it, and two generations of Kerala politics treated the exclusion as settled law. When the Supreme Court’s majority in 2018 set the 1991 judgment aside, the devotees’ sense of dispossession had this specific legal root. A settlement reached by a constitutional court after hearing the faith’s own authorities had been reopened, at the instance of petitioners with no connection to the shrine, by a court sitting in Delhi. Whether that reopening was the Constitution working as designed or the judiciary exceeding its commission is the question on which the 2018 bench split four to one, and it frames everything that follows.

How did the Kerala High Court rule on the Sabarimala exclusion in 1991?

A division bench of the Kerala High Court held on 5 April 1991, in S. Mahendran v Travancore Devaswom Board, that the exclusion of women aged ten to fifty was an essential and integral part of the worship of Lord Ayyappa at Sabarimala, accepted the evidence of the temple authorities on the practice, and upheld the exclusion as lawful.

The 1991 reasoning matters to the 2018 adjudication for two reasons beyond its result. The first is evidentiary. The High Court proceeded by receiving the testimony of those the tradition itself recognises as competent to state its doctrine, the thantri, the senior priests, the Pandalam family, and it treated their concordant account as near conclusive of essentiality. The second is institutional. The High Court treated the question as one the legal system could properly put to the denomination and accept the denomination’s answer upon, which is close to the position Justice Malhotra would take in dissent in 2018. The 2018 majority inverted both moves. On evidence, the majority treated the testimony of religious functionaries as material to be weighed rather than as an answer to be received, and found in the record itself, including the admitted presence of women at the shrine on earlier occasions and the absence of the exclusion at other Ayyappa temples, the proof that the practice was not essential. On institution, the majority held that essentiality is a constitutional question on which the court’s judgment cannot be delegated to the denomination, since a contrary rule would let every denomination draft its own exemptions from Part III. Between the 1991 method and the 2018 method lies a complete theory of the judicial role in religion, and the nine judge bench convened after 2019 was asked, in terms, to choose between them.

The decades between 1991 and 2006 also fixed the administrative facts that the implementation crisis of late 2018 would expose. The Travancore Devaswom Board, constituted under the Travancore Cochin Hindu Religious Institutions Act, 1950, administers Sabarimala along with a large estate of Kerala temples, appoints its priests through mechanisms the courts have repeatedly examined, collects the offerings of one of the richest pilgrimages in India, and answers to the Kerala government of the day in ways that have made its autonomy a recurring subject of litigation. The Board’s dual character, a religious administrator staffed through public law, mattered in 2018 because the majority could point to the Board’s statutory nature in support of the proposition that the exclusion was state action subject to Part III, while devotees could point to the same Board’s religious functions in support of the proposition that the denomination’s Article 26 rights travelled with it. Neither characterisation is false. The Board is genuinely both, and the architectural tension of the case runs through its institutional design as surely as it runs through the text of Articles 25 and 26.

For readers assembling the documentary record of the litigation, the judgments, the 1965 rules and the review orders circulate as scanned files across court and archive sites, and a reader verifying a citation against a photographed page will often work through an office file viewer for Excel, DOCX and PPTX documents or a similar reading tool to keep the primary texts side by side. The discipline matters because Sabarimala commentary is saturated with paraphrase, and the holdings examined in this article are stated from the texts of the judgments themselves rather than from summaries of them.

From Petition to Constitution Bench: The Litigation of 2006 to 2018

The case that ended the exclusion began in 2006 as a writ petition filed in the Supreme Court by the Indian Young Lawyers Association, a body of young advocates, together with women petitioners including Prerna Kumari, Sudha Pal, Lakshmi Shastri, Pramila Patten and Reshma Rajeev. The petition challenged Rule 3(b) of the 1965 Rules and the practice it protected as violations of Articles 14, 15, 17 and 25 of the Constitution. Its framing is worth dwelling on, because Justice Malhotra’s dissent would later make the petitioners’ identity a ground of decision. The women who would actually climb to Sabarimala if the exclusion fell were not, in the main, the petitioners of record. The petition was a public interest challenge brought by lawyers who presented the exclusion as a constitutional wrong visible from the text itself, requiring no devotee plaintiff to be cognisable. That posture was orthodox in Indian public interest litigation as it had developed since the early 1980s, under which standing had been deliberately widened so that constitutional wrongs affecting persons unable to approach the court could be raised by others. It was also, on the devotees’ account, the heart of the wrong. A discipline internal to a faith, observed voluntarily by the women of that faith in large numbers, had been put on trial by strangers to it, and the women devotees who supported the exclusion, organised later under campaigns of readiness to wait until the customary age, had to intervene in the case as respondents to defend a practice the petition described as their oppression. The standing question and the merits question were thus entangled from the first filing, and the bench of 2018 divided on both.

The petition moved slowly through a system carrying an enormous docket. It was heard in stages across a decade, during which the political ground in Kerala shifted under it more than once. The Kerala government led by the Left Democratic Front under V. S. Achuthanandan filed an affidavit in 2007 supporting the petitioners and favouring the opening of the temple, a position consistent with the reformist inheritance the Kerala left claims from the temple entry movements of the twentieth century. The succeeding United Democratic Front government under Oommen Chandy reversed the state’s position, filing an affidavit in 2016 that defended the exclusion and asked that the 1991 settlement stand. The Left Democratic Front government of Pinarayi Vijayan, returned to office in May 2016, reversed the position again in November 2016 and restored the state’s support for entry. Three affidavits, three positions, one state. The sequence is not a footnote to the adjudication. It demonstrates that the political branches in Kerala had no stable settlement of their own to which a deferential court could remit the question, and it undercuts any simple account in which the court of 2018 overrode a considered democratic resolution. The democratic process in Kerala had spoken on Sabarimala repeatedly and had contradicted itself each time the government changed, which is one reason the constitutional question kept returning to the courtroom.

The Travancore Devaswom Board’s positions traced a similarly winding path across the longer record. In proceedings before the Kerala High Court culminating in the 1991 judgment, the Board defended the exclusion as an essential practice and administered it as such. In the Supreme Court proceedings of the following decades its stance shifted with its leadership and with the state government of the day, and interveners before the 2018 bench drew the court’s attention to Board statements from 2008 that contemplated a fresh examination of the practice in consultation with religious authorities. After the judgment of September 2018 the Board first resolved to seek review, then, under a reconstituted leadership, resolved in February 2019 to support the judgment and to facilitate entry. Each position was formally adopted and formally defended. The article records this sequence in a dedicated section below, because the Board is the institutional hinge of the case. Its changes of position are evidence, depending on the reader’s theory, either that the denomination itself was divided and therefore unable to claim the settled internal discipline that Article 26 protects, or that a statutory board answerable to shifting governments is a poor vessel for a denomination’s rights and that the devotees’ own consistent position deserved the weight the Board’s waverings lost.

On 13 February 2017 a three judge bench of the Supreme Court referred the case to a Constitution Bench, framing questions that already displayed the architectural cast of the coming judgment. The reference asked, in substance, whether the exclusion of women between ten and fifty from a public place of worship is protected under Article 25 and Article 26, whether such an exclusion is an essential religious practice, how the denominational character of the Sabarimala devotees is to be determined, and how Rule 3(b) stands with the parent Act of 1965 and with Article 25(2)(b). The Constitution Bench of five judges, headed by Chief Justice Dipak Misra and comprising Justices R. F. Nariman, A. M. Khanwilkar, D. Y. Chandrachud and Indu Malhotra, heard argument across eight days in July and August 2018 and reserved judgment on 1 August 2018. The hearing ranged far beyond the single shrine. Counsel for the petitioners, including Indira Jaising and R. P. Gupta, pressed the equality code and the anti exclusion principle that Justice Chandrachud had articulated in the privacy judgment of August 2017. Counsel for the devotees, the Board at that stage, and the Pandalam royal family, including K. Parasaran, pressed the denomination’s autonomy, the deity’s discipline, and the limits of judicial competence in doctrine. The amicus curiae, Raju Ramachandran, supported the petitioners on the essentiality question. Observers of the hearing noted that the bench’s questions returned repeatedly to a single fork. Either the court decides what is essential to a religion, with all the theological exposure that entails, or the court accepts the denomination’s account of essentiality, with all the constitutional exposure that entails. Judgment was delivered on 28 September 2018, a day before Chief Justice Misra’s retirement, and the fork produced four opinions on one side and one on the other.

The Majority of 28 September 2018: Four Judges, Three Opinions, One Holding

The holding of the majority can be stated in four propositions, each of which corresponds to a step in the architectural argument. Rule 3(b) of the 1965 Rules was unconstitutional and struck down. The exclusion of women aged ten to fifty from Sabarimala was not an essential religious practice of the Hindu faith or of the Ayyappa devotees within the meaning of Articles 25 and 26. The devotees of Ayyappa at Sabarimala did not constitute a separate religious denomination entitled to sustain the exclusion under Article 26 in any event, and even a denominational practice would remain subject to the other provisions of Part III. Women aged ten to fifty held a constitutional right to enter the temple and worship there on equal terms, and the Devotee’s contrary claim failed. Around that shared holding the three majority opinions built distinct reasonings, and the differences among them matter for the doctrine the case left behind.

Chief Justice Misra, writing for himself and Justice Khanwilkar, placed the weight on the essentiality inquiry and on the text of the 1965 Act. His opinion held that the exclusion was not essential because the record did not establish that the practice had the antiquity, continuity and doctrinal centrality the test requires, that the devotees of Ayyappa are Hindus who do not form a distinct denomination with the common faith, common organisation and distinctive name the precedents demand, and that Rule 3(b), framed under an Act whose purpose was to authorise entry, sat in contradiction with its parent statute’s reforming object. The opinion also reasoned that the exclusion, resting on a physiological characteristic, offended the dignity of women and bore the impress of a purity and pollution logic that Article 17 forbids the legal system to honour. Justice Nariman, concurring, wrote the most doctrinally austere of the majority opinions. He held that the essential practices test, properly applied, asks whether the practice is fundamental to the religion such that the religion would not remain itself without it, found the exclusion wanting on the evidence, treated the denomination claim as misconceived on the facts, and held Rule 3(b) ultra vires the 1965 Act because a rule framed to authorise entry cannot be used to perpetuate the very exclusions the Act was passed to end. Justice Nariman also warned, in passages later quoted in the review proceedings, that the judgments of constitutional courts in matters of faith must rest on the Constitution and not on the personal predilections of judges, a warning both sides subsequently claimed.

Justice Chandrachud’s concurrence was the longest and the most theoretically ambitious. He held that the Constitution recognises the individual as the bearer of religious freedom, that the denomination’s rights under Article 26 are real but cannot be deployed to extinguish the rights of the denomination’s own members and of others under Part III, and that the exclusion of women from Sabarimala rested on stereotypes about menstruation that Articles 14 and 15 condemn. His opinion developed the Article 17 argument furthest, reading the abolition of untouchability as one instance of a broader constitutional commitment against exclusionary practices founded on notions of purity and pollution and on the social subordination of a class. He held that constitutional morality, understood as fidelity to the Constitution’s substantive commitments rather than to prevailing social sentiment, required the exclusion to fall, and that the essential practices test itself must be administered in harmony with those commitments rather than as a shelter from them. Read together, the three opinions converge on the holding by different roads. The Chief Justice travelled through essentiality and the statute. Justice Nariman travelled through essentiality and vires. Justice Chandrachud travelled through equality, dignity and the structure of Part III. The convergence strengthened the judgment’s authority in the short term. It also left the doctrine exposed in a way the review bench of 2019 would identify, because a future court wishing to reopen the case could choose which road to block, and the reference questions of November 2019 were drafted broadly enough to block all three.

What did the 2018 majority hold about the denominational status of Ayyappa devotees?

The majority held that the devotees of Lord Ayyappa at Sabarimala do not constitute a separate religious denomination within Article 26, applying the tests of a common faith, a common organisation and a distinctive name laid down in the precedents, and held further that denominational rights remain subject to the other provisions of Part III of the Constitution.

The denomination holding deserves separate attention because it decided more than its placement in the opinions suggests. The criteria descend from S. P. Mittal v Union of India, decided in 1982, where the court required a collection of individuals with a common system of beliefs conducive to spiritual well being, a common organisation, and a distinctive name. The Sabarimala devotees could point to a distinctive discipline and a distinctive pilgrimage but worship a deity within the Hindu fold, share temples, texts and priesthoods with the wider faith, and bear no separate name as a community apart from the deity’s. On the Mittal criteria the claim was always fragile, and three majority opinions rejected it. The fragility, however, cuts in two directions for doctrine. If the Sabarimala devotees are not a denomination, then Article 26 was never squarely engaged, and the case was decided under Article 25 alone, where the individual’s right and the essentiality test govern. The devotees’ strongest constitutional shelter was thus removed at the threshold, before the balancing the case is famous for could begin. Justice Malhotra’s dissent resisted precisely this threshold removal, treating the devotees of a shrine with a distinctive discipline as entitled to denominational consideration and warning that a demanding denomination test, applied by courts to living faiths, will systematically favour large, organised, textually codified religions over local and customary ones. That warning connects the Sabarimala adjudication to a longer line of cases in which the legal form of the denomination, borrowed from institutional churches, has fitted India’s decentralised religious life awkwardly at best.

The essentiality holding requires the same double reading. The majority examined the devotees’ evidence, the claimed antiquity of the exclusion, the admitted historical instances of women of the stated ages entering the temple, the worship of Ayyappa at other shrines without exclusion, and the position of Malikappurathamma’s shrine within the Sabarimala complex, and concluded that the exclusion was a practice of the shrine’s administration rather than an essential of the faith. Each step of that examination was an exercise of the Shirur Mutt mandate, and each step was therefore also an instance of the mandate’s known difficulty, a secular court reconstructing the doctrinal centre of a faith from a contested record. The majority was conscious of the difficulty and answered it with a jurisdictional claim. Essentiality, on their reasoning, is a question the Constitution commits to courts whenever a practice is challenged under Part III, and judicial abstention would not be neutrality but a transfer of constitutional authority to whichever religious functionaries speak first. The answer is coherent. It is also the answer the 2019 reference placed in doubt, by asking whether the essential practices doctrine should be rethought and whether courts should enter questions of religious rationality at all. The state of the doctrine after September 2018 was therefore paradoxical. The test had produced its most consequential modern application and, in the same movement, had been referred for reconsideration at the highest level the system affords.

One element of the majority holding attracted less commentary than its importance warrants, and the architectural reading recovers it. The petitioners had invoked Article 15(2), which forbids disability in access to shops, public restaurants and places of public resort, and the opinions engaged the temple’s character as a place of public worship maintained under a statutory board and open, the exclusion apart, to the general Hindu public. The public character of the shrine did quiet structural work in the case. A denomination worshipping in a closed institution of its own presents the Article 26 claim at its strongest. A temple administered by a statutory board, funded by public pilgrimage on a vast scale, and opened by a reform statute to all classes of Hindus presents the claim at its weakest, because every attribute of publicness strengthens the individual’s Part III rights at the threshold. The Sabarimala majority did not need to develop a general theory of public temples, since essentiality and denomination disposed of the case. The nine judge questions, with their attention to the interplay of Articles 25 and 26 across places of worship generally, invite exactly that theory, which is a further reason the reference of 2019, and not the judgment of 2018 alone, is the proper object of an architectural reading.

Justice Indu Malhotra’s Dissent: The Architectural Alternative

Justice Indu Malhotra, the only woman on the bench and its only dissenter, wrote an opinion that subsequent events converted from a dissent into a programme. Her holding can be stated in four propositions that answer the majority’s four. A court should not interfere in matters of religious practice and discipline that lie within a denomination’s internal sphere, provided the practice is not pernicious, oppressive or a social evil of the kind the Constitution itself names. The petitioners, not being devotees of the Sabarimala deity and not being persons aggrieved by the exclusion in their own worship, lacked the standing to invoke the court’s jurisdiction to restructure the faith’s discipline. The essential religious practices doctrine, as the majority applied it, required the court to sit in judgment on the rationality and doctrinal centrality of beliefs it is institutionally unfit to grade, and the doctrine’s proper scope is narrower than the use made of it in 2018. And the equality provisions of Part III, addressed to state action and to discrimination between persons, cannot be applied to the internal religious discipline of a shrine in a manner that dissolves the Article 26 guarantee, because the Constitution protects pluralism and diversity of faith practice as values in themselves, and notions of rationality cannot be invoked to restructure religious practice.

The dissent’s treatment of standing is its most practically consequential strand. Indian public interest litigation had long permitted a stranger to a wrong to move the court, and the majority proceeded on that settled basis without extended discussion. Justice Malhotra distinguished the run of public interest cases, which concern the enforcement of rights of persons unable to reach the court, from a petition asking the court to reform the internal discipline of a faith at the instance of persons who do not profess it. In her reasoning, permitting such a petition inverts the protective purpose of religious freedom adjudication. The right under Article 25 belongs to the devotee, and a litigation architecture that lets non devotees define the content of a faith’s obligations against its own adherents makes the court an instrument of one section of society against the religious practice of another. The women devotees who supported the exclusion appeared in her opinion not as persons suffering a false consciousness to be corrected by the court but as rights holders whose Article 25 freedom included the freedom to observe the discipline the petition attacked. That reframing, from women as a class excluded to women as a community divided, is the dissent’s most durable contribution to the case’s theory. It denies the majority its simplest premise, that the litigation arrayed women against tradition, and substitutes an array the architectural reading finds more accurate, in which individual rights claims appeared on both sides of the record and the denominational claim stood behind one set of them.

On essentiality, the dissent held that the court’s inquiry should be confined to whether the practice is genuinely religious in character and sincerely held, and that the further inquiry into whether the practice is essential, conducted by weighing scriptures and usages against each other, draws the court into theological adjudication for which it has neither mandate nor equipment. The devotees’ belief in the celibate character of the deity at Sabarimala was, on the record, sincere, longstanding and central to the shrine’s discipline as its adherents understand it, and that, for the dissent, was where judicial inquiry should end. The contrast with the majority is exact. Where the majority treated the denomination’s account of its own doctrine as evidence to be tested, the dissent treated it as the boundary of the judicial office. Where the majority heard the admitted historical entries of women and the parallel worship at other Ayyappa temples as proof that the exclusion was inessential, the dissent heard the same record as proof only that practices vary across shrines, a variation the Constitution’s denominational guarantee exists to protect. Both readings of the record are internally consistent. They differ on a prior question that evidence cannot settle, namely which institution, court or denomination, the Constitution appoints to say what a faith requires when the two disagree.

The dissent also addressed the Article 17 analogy and rejected it, holding that untouchability as abolished by the Constitution refers to the historical practice imposed upon certain communities by birth, that the Sabarimala exclusion turns on the deity’s discipline and applies for a bounded span of every woman’s life rather than to a hereditary class, and that extending Article 17 to the case would detach the provision from its subject and weaken its force against the evil it was written to end. On constitutional morality, the dissent’s reasoning implied a caution it did not need to state at length. A morality drawn from the Constitution must include the Constitution’s own guarantees of religious freedom and denominational autonomy, and cannot be identified with the equality provisions alone. The point is structural and it survived the case. When the review bench framed its seven questions in November 2019, the interplay of Article 25 and Article 26 and the scope of judicial review over religious practice stood at the centre of the reference, which is the dissent’s agenda restated as the court’s own. Dissents in constitutional courts are often described as appeals to a future bench. Justice Malhotra’s dissent achieved that passage with unusual speed, forming the intellectual bridge between the judgment of September 2018 and the reference of November 2019.

What did Justice Malhotra hold about the standing of the petitioners?

Justice Malhotra held that the Indian Young Lawyers Association and the associated petitioners, not being devotees of Lord Ayyappa at Sabarimala and not being persons aggrieved in their own worship, could not maintain a public interest petition to restructure the internal religious discipline of the shrine, and that the writ petition should fail on that threshold ground.

The dissent must also be read for what it did not hold, since paraphrase has burdened it with positions its text does not contain. It did not hold that religious practice is immune from all constitutional scrutiny. Its own formulation preserved intervention against practices that are pernicious or oppressive or that the Constitution expressly targets, and it accepted the reform power of the state exercised through legislation in the manner Article 25(2) contemplates. The dissent’s objection was to the agent and the method, a court reforming doctrine at a stranger’s instance through the essentiality test, rather than to reform as such. That distinction locates the dissent within the architecture rather than outside it. Both the majority and the dissent accept that Articles 25 and 26 coexist under discipline. They appoint different guardians for the boundary between them, the majority appointing the court applying Part III as a whole, the dissent appointing the denomination in the first instance with the court confined to the perimeter. The architectural tension framing defended in this article is, at bottom, the claim that this appointment question is the case, and that framings organised around gender or around tradition each suppress one half of it.

The Scholars’ Bench: Critics and Defenders of the Essential Practices Doctrine

The academic argument over Sabarimala began long before 2018 and the judgment redistributed its positions without settling them. Gautam Bhatia, writing on his Indian Constitutional Law and Philosophy blog in essays published across September and October 2018, defended the result and the core of the majority reasoning while subjecting its instruments to exact scrutiny. Bhatia’s analysis treated the essential practices test as a doctrine with a defensible core when it is used as the majority used it, to ask whether the practice claimed as essential withstands examination on the faith’s own terms, and he argued that the anti exclusion principle latent in Part III, the principle that the Constitution frowns upon practices that exclude a class from public spaces on ascriptive grounds, supplied the judgment’s deepest justification. In the same essays he pressed the opinions where they were vulnerable, noting the uneven treatment of the denomination question and the risk that constitutional morality, invoked without the discipline of the anti exclusion principle to anchor it, could license future benches to remake doctrines they merely disliked. The position is characteristic of the strongest defence of the verdict in the scholarly literature. The verdict is right, on this account, not because courts should govern religion but because this practice, examined closely, failed the faith’s own test of essentiality and collided with a specific and textually grounded constitutional hostility to exclusion.

Pratap Bhanu Mehta, in essays published after the verdict in the Indian Express and in his wider writing on Indian secularism, stated the unease that the judgment produced among scholars who had no sympathy for the exclusion itself. Mehta’s argument, developed across his post 2018 commentary, is that the Indian state’s engagement with religion has historically proceeded through negotiation, legislation and political accommodation rather than through judicial declaration of doctrine, and that a court which announces what a faith essentially requires assumes a theological authority that sits oddly with the secular character it invokes. On his reading, the Sabarimala majority repeated a pattern visible across Indian religious freedom jurisprudence, in which the court first narrows religion to its essential core and then reforms the remainder, a pattern that makes the judiciary the effective arbiter of every tradition’s content and exposes the court to the charge that its secularism is itself a doctrine imposed on the faiths. Mehta’s essays also registered the implementation reality of late 2018, the mass mobilisation of devotees and the spectacle of a judgment the state’s machinery could not peacefully execute, as evidence about the limits of adjudication as an instrument of religious reform, whatever the formal correctness of the holding. The architectural reading of this article absorbs Mehta’s caution as a point about institutional design rather than about the verdict’s legality. A tension managed by courts will periodically produce judgments that outrun the consent of the governed community, and the nine judge reference can be read, in part, as the system registering that cost.

Madhavi Sunder’s scholarship on Indian religious and secular jurisprudence, including her writing on the cultural and legal construction of religious identity, supplies the third position the brief for this article requires, and it cuts across the first two. Sunder has argued, in work on religious freedom adjudication in India and comparatively, that legal systems which protect religion by first defining it freeze living traditions into the shape most legible to courts, privileging textual, organised and reformist versions of a faith over customary, local and embodied ones. Applied to Sabarimala, the argument unsettles both benches of 2018. The majority’s essentiality inquiry privileged the question of what Ayyappa worship essentially requires, a question whose form already favours traditions that answer in texts. The dissent’s deference privileged the denomination’s authorised speakers, whose authority within the tradition is itself a product of institutional power that devotees contest among themselves, as the divided positions of women pilgrims in the case demonstrated. Sunder’s line of analysis therefore refuses the choice the litigation offered and directs attention to the women inside the tradition, whose claims appeared in the record in both directions, as entrants asserting equality and as devotees asserting discipline. The architectural reading defended here does not dissolve into that refusal. It notes, rather, that the seven questions of the 2019 reference include the scope of the essentiality doctrine itself, which means the legal system has formally opened the door through which Sunder’s critique, and Mehta’s, and Bhatia’s defence, must all eventually walk.

Beyond these three, the wider literature divided along lines the article records without adopting. Ronojoy Sen, in Articles of Faith of 2018, his study of religion and the courts, documented the long pattern of judicial involvement in defining and administering religion that Sabarimala extended. Rajeev Dhavan’s earlier work on religious freedom had warned for decades that the essentiality test invites courts to play theologian. Scholars of Kerala society noted the specificity of the Sabarimala mobilisation within the state’s history of temple entry reform, from the Vaikom Satyagraha of 1924 and 1925 to the Temple Entry Proclamation of 1936, a history in which reform of temple access in Kerala had characteristically arrived through mass movement and royal or legislative act rather than through constitutional litigation by outsiders. That historical observation, pressed by critics of the verdict and acknowledged by its defenders, is the scholarly form of Justice Malhotra’s standing point, and it explains why the implementation crisis of the months after September 2018 carried a charge beyond the ordinary resistance that greets an unpopular judgment.

The Board, the State and the Winter of Implementation: October 2018 to February 2019

The judgment of 28 September 2018 was self executing in law and anything but self executing on the ground, and the record of the following months belongs in an adjudication centred account because the review petitions and the 2019 reference were filed in its shadow. The temple reopened for the monthly puja on 17 October 2018 under heavy police deployment. Devotee organisations, including the Sabarimala Karma Samithi and formations associated with the wider Hindu movement in Kerala, organised protests at Nilakkal and Pamba, the base points of the pilgrimage, and women who attempted the climb in those days, journalists among them, turned back under pressure of the crowds. The Kerala government of Pinarayi Vijayan, bound by its November 2016 affidavit and by the constitutional obligation to execute a Supreme Court judgment, committed the state’s machinery to implementation, deployed thousands of police personnel through the Mandalam season that opened in November 2018, and arrested protesters in numbers that passed one thousand across the season. The confrontation produced a distinctive feature that distinguishes Sabarimala from other contested judgments. The state government enforcing the verdict and the devotees resisting it each claimed the constitutional ground, the government invoking the court’s mandate and the equality of women, the devotees invoking the court’s own Article 26 and the faith’s discipline, so that the architectural tension of the case reappeared as a street level contest over which part of the Constitution the police cordon represented.

Two events of that winter fixed the record the review bench would inherit. On 2 January 2019 two women, Bindu Ammini and Kanakadurga, entered the shrine in the early morning under police escort and offered worship, the first confirmed entry of women of the stated ages since the judgment. The entry was followed by protests across Kerala, a state wide shutdown called by the Sabarimala Karma Samithi and supported by the Bharatiya Janata Party’s Kerala unit, and an attack on Kanakadurga within her own family home days later that the police recorded and prosecuted. In the same week the Kerala government organised the Vanitha Mathil, a women’s wall stretching across the state on 1 January 2019, in support of the judgment and of the reform values it associated with it, drawing participation the organisers counted in the millions. The wall and the shutdown, mounted within days of each other by opposing mobilisations each claiming to speak for Kerala’s women, are the empirical refutation of any account of the case that assigns women a single position in it. The Travancore Devaswom Board completed the winter’s institutional movement in February 2019, when its reconstituted leadership resolved to support the judgment in the review proceedings and to facilitate entry, reversing the Board’s earlier resolution to seek review. The sequence from the Board’s defence of the exclusion in 1991, through its shifting positions in the long litigation, to its support for the verdict in 2019 is the institutional biography of the denomination question. A body claimed as the denomination’s own organ arrived, across three decades, at every available position on the case, which the petitioners read as proof that no settled denominational will existed for Article 26 to protect, and which the devotees read as proof that the Board had never been the denomination at all.

The administrative archive of those months deserves a place in the adjudication’s record in its own right, because the under cited primary source of the whole episode sits there. The Travancore Devaswom Board’s institutional correspondence across the period from September 2018 to February 2019, preserved in the Board’s archives at Thiruvananthapuram, documents the implementation choices that no judgment records. The correspondence covers the Board’s exchanges with the Kerala government on police deployment inside the shrine’s precincts, its directions to temple staff on the treatment of women pilgrims presenting themselves at the sannidhanam, its internal deliberations on the review resolution of late 2018 and on the reversed resolution of February 2019, and its handling of the ritual questions the entries posed, including the purification ceremonies conducted after the entry of 2 January 2019 on the thantri’s direction and the Board’s response to them. Read as a sequence, the correspondence shows a statutory religious administrator navigating between a court order it was bound to execute, a state government committed to execution, a priesthood asserting ritual authority the Board did not control, and a devotee mobilisation treating the Board itself as a party to betrayal. The Board’s letters are the institutional form of the architectural tension. Every general question the nine judges must answer about the relation between denominational autonomy and public authority has a paper instance in that file, written by administrators who had to decide, on specific October and November days in 2018, whether a denomination’s organ could lawfully be the instrument of the denomination’s defeat. Scholars of the case who work only from the reported judgments miss this stratum of the record, and the article flags the archive here so that the citation enters the literature of the case.

The review petitions themselves, sixty five in number by the count recorded in the proceedings, were filed by devotee organisations, the Nair Service Society, the Pandalam royal family, the temple’s chief priest among others, and associations of women devotees, and were heard in open court on 6 February 2019 by the bench headed by Chief Justice Ranjan Gogoi. The petitioners in review pressed the grounds that have structured this article. The essentiality inquiry had been conducted on an inadequate record. The denomination question had been answered against the weight of the shrine’s distinctive discipline. The standing of the original petitioners had not been confronted. And the judgment, in the review petitioners’ submission, had unsettled the balance between Articles 25 and 26 for every faith in India, a submission whose generality the bench would shortly adopt as its own framing. Judgment on the review petitions was reserved in February 2019 and delivered on 14 November 2019, and it is to that order, the second great document of the case, that the article turns after setting out the two positions in the citable map the brief for this article requires.

The Older Kerala Settlement: Temple Entry Reform from Vaikom to 1965

The Sabarimala adjudication did not arrive in a state without its own history of temple entry conflict, and the Kerala record supplies the comparison against which the 2018 method can be measured. In March 1924 the Vaikom Satyagraha opened in Travancore, demanding not entry into the Vaikom Mahadeva temple itself but the right of avarna Hindus to use the public roads around it. The satyagraha, supported by the Indian National Congress and visited by Mohandas Gandhi in 1925, ended in a negotiated opening of the roads under a settlement the princely state could present as its own act. Twelve years later, on 12 November 1936, the Maharaja of Travancore, Chithira Thirunal Balarama Varma, issued the Temple Entry Proclamation, opening the state administered temples of Travancore to all Hindus by royal command, on the advice of his Dewan C. P. Ramaswami Iyer and after the mass pressure of the abstention movement had made the political cost of exclusion plain. Madras followed with temple entry legislation in 1947 and 1949, and the Kerala Act of 1965 under which Rule 3(b) was framed belonged to this lineage of reform by sovereign command and by statute.

The comparison cuts in both directions and the article records both. Against the 2018 verdict, the Kerala record shows a regional tradition in which temple discipline changed through movements that built consent among devotees and through acts of the political sovereign, Travancore’s Maharaja in 1936 and Kerala’s legislature in 1965, rather than through constitutional litigation conducted by petitioners outside the faith. Justice Malhotra’s standing objection and the devotees’ resistance of late 2018 both draw force from this comparison, since each can present the Kerala method as the historically legitimate channel of reform in the state’s own temples. For the 2018 verdict, the same record shows that every celebrated step in the lineage was itself an override of the denominational claim of its day. The Proclamation of 1936 did not await the consent of the temple authorities who administered exclusion. The legislation of 1965 opened public temples by statutory command against the usages of shrines that had treated entry as an internal matter. The architectural tension was present in each episode, with the balance struck by a monarch or a legislature rather than by a court, and the devotees’ own tradition of reform, invoked against the judgment, is a tradition of the tension being resolved from outside the denomination by an authority claiming to speak for the public. What changed in 2018 was the identity of that authority and the vocabulary of its justification, from princely benevolence and legislative reform to fundamental rights adjudicated under Part III. The change of authority explains the peculiar bitterness of the reception. A legislature that reverses its position can be answered at an election, as Kerala’s governments reversed their Sabarimala affidavits across 2007, 2016 and 2016 again. A constitutional court’s answer rests on text and doctrine, and the only replies the system affords are review and reference, the very replies the devotees pursued through 2019.

The Guruvayur record completes the Kerala comparison with a lesson in the opposite direction. The Guruvayur Satyagraha of 1931 and 1932, led by K. Kelappan, demanded entry to the Guruvayur temple for avarna Hindus and suspended its fast on Gandhi’s advice in favour of a referendum among the temple’s caste Hindu worshippers, which returned a majority for opening that the authorities of the day did not implement. Guruvayur in fact opened only under the Madras legislation of 1947. The episode stands in the record as the failure of consent as a mechanism of reform, the case in which the denomination’s own constituency voted for opening and the gate stayed shut for fifteen further years until a legislature opened it. Cited together, Vaikom, the Proclamation, Guruvayur and the Act of 1965 describe a settlement pattern that neither pure deference nor pure adjudication reproduces. Kerala’s temples were opened by sovereign acts prepared by mass mobilisation and blocked, where mobilisation stopped at consent, for as long as the denomination’s gatekeepers declined to move. The Sabarimala litigation of 2006 to 2018 sits inside that pattern as its judicial variant, with standing widened to outsiders because the pattern’s history taught petitioners that waiting for the gatekeepers had a documented failure mode. The nine judge questions on standing and on the denominational threshold are, in this light, questions about which variant of the pattern the Constitution authorises, and the Kerala record is the evidence both variants will cite.

The Two Positions Mapped: An Architectural Tension Table

The argument of this article can be compressed into a single citable artifact, the two position architectural tension map set out in the table below. The map states the Article 25(1) individual right position with the named majority reasoning and the named equality applications that carried it in 2018, and the Article 26 denominational autonomy position with the named reasoning of Justice Malhotra’s dissent and the religious applications that carry it in the devotees’ case, and it closes with the questions of the November 2019 reference that hold the two positions in suspension. Readers citing the map should cite it as the Sabarimala two position architectural tension map.

Position	Textual seat	Named reasoning in the case	Named applications	State after 14 November 2019
Article 25(1) individual right position	Article 25(1) with Articles 14, 15(1), 17 and 21	Chief Justice Misra and Justice Khanwilkar on essentiality and the 1965 Act; Justice Nariman on essentiality and vires of Rule 3(b); Justice Chandrachud on equality, dignity and constitutional morality	Entry of women aged ten to fifty as of right; Rule 3(b) struck down; exclusion held not essential; devotees held not a separate denomination	Judgment operative; review neither allowed nor dismissed; questions referred to nine judges
Article 26 denominational autonomy position	Article 26(b), the right to manage denominational affairs in matters of religion	Justice Malhotra in dissent on standing, deference and the limits of the essentiality inquiry; devotee interveners on the celibate discipline of the deity	Exclusion defended as internal discipline of the shrine; denomination’s account of doctrine treated as boundary of judicial inquiry; reform reserved to legislation and to the faith	Dissent’s agenda adopted as the reference’s framing; denomination and essentiality questions reopened at the level of principle
The suspended questions	Articles 25 and 26 read together	Chief Justice Gogoi’s majority order of 14 November 2019 in Kantaru Rajeevaru, with Justices Khanwilkar and Malhotra; Justices Nariman and Chandrachud dissenting from the reference	Seven questions on essentiality, denominational rights against other fundamental rights, judicial review of religious practice, and entry across faiths	Awaiting hearing and judgment by a nine judge bench; no date of decision forms part of the record

The map repays a slow reading because its third row is its argument. Most case maps in Indian constitutional commentary have two rows, a winning position and a losing one. The Sabarimala map requires the third row because the legal system, having produced a winner in September 2018, declined in November 2019 to let the result rest as a case specific outcome and instead converted the losing position’s objections into the agenda of its largest religious freedom bench. That conversion is the phenomenon the architectural reading names and the rival readings miss. A gender justice reading of the case has no use for the third row, since on that reading the reference is an unfortunate delay interposed between a right and its enjoyment. A tradition defence reading has no use for it either, since on that reading the reference is simply the first step toward a restoration the dissent had already justified. Only a reading organised around the tension between the two articles predicts and explains the third row, because only that reading treats the unresolved relation between individual right and denominational autonomy, and not the fate of one shrine’s rule, as the case’s true subject.

The Reference of 14 November 2019: Seven Questions for Nine Judges

The order in Kantaru Rajeevaru v Indian Young Lawyers Association, delivered on 14 November 2019, is formally an order on review petitions and substantively the most ambitious framing document in Indian religious freedom law. Chief Justice Ranjan Gogoi, writing for himself and Justices A. M. Khanwilkar and Indu Malhotra, held that the issues arising in the Sabarimala review were not confined to the one temple and that doubts over the interplay of Articles 25 and 26, the scope of the essential practices doctrine, and the rights of denominations against the rights of individuals under Part III deserved authoritative resolution by a bench of nine judges. The majority kept the review petitions pending, left the September 2018 judgment operative in the interim, and framed seven questions for the larger bench. In substance, as framed in the order, the questions ask what the scope and ambit of the right to freedom of religion under Article 25 is; what the interplay between Article 25 and Article 26 is, and in particular how the denominational right to manage religious affairs stands against the other provisions of Part III; what the scope of the essential religious practices doctrine is and whether it should be reformulated; whether the courts can and should examine the rationality of religious practices; what the scope of judicial review in matters of religious practice is, including whether a person not professing the religion may maintain a public interest challenge to its practices; how the denominational character of a group is to be determined; and how the questions bear on comparable practices across faiths, the order expressly instancing the entry of women into mosques and Parsi fire temples and the practice of female genital cutting in the Dawoodi Bohra community as matters raising cognate issues.

Justices Nariman and Chandrachud, the two surviving members of the 2018 majority on that bench, dissented from the reference in a joint opinion of characteristic force. Their dissent held that the review jurisdiction is confined to error apparent on the face of the record, that the review petitions disclosed no such error, that the course adopted by the majority converted a review into an appeal and a case into a seminar, and that the judgment of September 2018, delivered after full argument by a coordinate bench, ought to have been affirmed by the simple dismissal of the reviews. The dissent warned that referring framed questions of general doctrine, detached from the facts of a decided case, invited the nine judge bench to pronounce upon the religious practices of communities not before it in any live dispute concerning Sabarimala. Both documents, the reference and the dissent from it, are stated here by their holdings because the procedural state of the case is itself contested in public commentary. The accurate statement is narrow. The 2018 judgment stands and has not been stayed or reversed. The review petitions remain pending. Seven questions stand referred to a nine judge bench that had not delivered judgment on them within the period this article’s record covers, and the Sabarimala exclusion is therefore, as a matter of law, ended, and, as a matter of doctrine, reopened.

What did the reference order of 14 November 2019 actually decide?

The order of 14 November 2019 decided that the Sabarimala review petitions would remain pending, that the judgment of 28 September 2018 would continue to operate, and that seven questions on the scope of Articles 25 and 26, the essential practices doctrine and judicial review of religious practice would be placed before a bench of nine judges for authoritative answers.

The generality of the seven questions is the fact on which the architectural reading rests its case, and it deserves emphasis against a common minimising account. The reference did not ask the nine judges whether Sabarimala’s exclusion was essential, a question the 2018 bench had answered on a full record. It asked what essentiality means, who decides it, against which rights a denomination may plead it, and who may come to court to contest it, for all religions and in the abstract. Those are the constitutive questions of the Indian religion and state settlement, the questions the Constituent Assembly answered by drafting Articles 25 and 26 in their layered and mutually qualifying form without specifying a hierarchy between them. A bench of five in 2019 thus certified that the specification the Assembly withheld remained outstanding seventy years on, and assigned its supply to a bench of nine. Whatever the nine judges eventually hold, the reference itself is evidence of the first rank for the claim this article defends, that the Sabarimala litigation operationalised the architectural tension between the two articles at the level of the legal system itself. The system did not treat the case as a dispute to be closed. It treated the case as the occasion on which its own unresolved architecture had become impossible to leave unexamined.

Each of the seven questions carries a distinct piece of the architecture, and the reference’s design becomes visible when they are taken in sequence rather than as a bundle. The opening question, on the scope of Article 25, asks what the individual right protects before any denominational claim is heard, and its answer will fix the baseline against which every collective claim is measured. The second, on the interplay of the two articles, asks the hierarchy question directly, whether denominational autonomy under Article 26 is subject to the fundamental rights of others or coordinates with them on equal terms. The third and fourth, on the scope of the essential practices doctrine and on judicial examination of a practice’s rationality, ask whether the Shirur Mutt instrument survives and in what form, the questions to which the scholarship of Dhavan, Bhatia and Sunder is effectively a set of advance briefs. The fifth, on the scope of judicial review and the standing of a person who does not profess the faith, is Justice Malhotra’s dissent converted into a reference question almost verbatim. The sixth, on the determination of denominational character, reopens the Mittal criteria whose application removed the devotees’ shelter at the threshold in 2018. The seventh gathers the whole set into the field of comparable practices across faiths, the mosque, the fire temple and the Bohra disputes the order named. A bench answering the sequence in order will have rewritten the religion clauses’ operating manual, whichever direction its answers take, and the Sabarimala parties will receive their result as one application of a general settlement rather than as a verdict on their shrine alone. That is the deepest sense in which the reference, and not the verdict, is the case’s architectural document.

The complication the brief for this article requires to be faced can be stated in its strongest form. A tension referred is not a tension resolved, and a reading that celebrates the reference as engagement must answer the charge that the legal system, having spoken clearly in 2018, retreated into suspension in 2019, leaving the women of the stated ages with a right that enforcement practice at the shrine could still frustrate and the doctrine with questions it might carry unanswered for years. The charge is factually well founded and the article concedes its factual half. The nine judge bench’s silence across the period after 2019 is a cost, borne by identifiable persons, and no theory of the case should be permitted to convert that cost into a triumph. The analytical half of the charge, however, mistakes what the architectural reading claims. The reading distinguishes institutional resolution, the delivery of a final authoritative hierarchy between Articles 25 and 26, from architectural engagement, the formal occupation of the legal system with that hierarchy as its stated problem. The 2019 reference produced the second without the first. The claim of this article is that the engagement is the datum that explains the case’s shape, its bench strengths, its opinion structure and its afterlife in the review, and that the rival framings, which cannot explain why a decided case generated seven general questions within fourteen months, are for that reason the weaker accounts of the record. Resolution may come from the nine judges. It has not come yet, and an evergreen account of Sabarimala must be able to say why the case matters in the interval, which is the interval the Republic has in fact inhabited.

The Nine Judges Convene: The Reference in Hearing, February 2020

The reference acquired a bench in the opening weeks of 2020. A nine judge Constitution Bench headed by Chief Justice S. A. Bobde was constituted and commenced hearing in February 2020, and its first sittings addressed the threshold objection that Justices Nariman and Chandrachud had pressed in dissent, whether a bench seized of review petitions in one case may frame and refer general questions of doctrine reaching the practices of faiths whose disputes are not before it. Counsel in the connected matters argued the scope question across those sittings. The Solicitor General, Tushar Mehta, supported the reference’s breadth. Senior counsel including Indira Jaising questioned the conversion of a review into a roving doctrinal inquiry. The bench heard the connected cases alongside Sabarimala, among them the challenges concerning women’s entry into mosques, the Dawoodi Bohra practice under challenge in the excommunication and related proceedings, and the Parsi fire temple entry dispute, the same set of matters the order of 14 November 2019 had named as raising cognate questions. The constitution of the bench and the shape of its opening hearings confirm the reading of the reference offered in this article. The proceeding the nine judges inherited is not an appeal in the Sabarimala dispute dressed in larger numbers. It is a general inquiry into the religion clauses, convened on the occasion of Sabarimala, with Sabarimala’s parties arguing alongside the parties of three other faiths’ disputes.

That procedural fact has a doctrinal consequence the literature has been slow to absorb. Because the nine judge bench sits across several live matters, its answers, when they come, will arrive as holdings in real cases and not as an advisory essay, yet the questions it must answer were framed at a level of generality no single one of those cases would have generated alone. The Sabarimala record will therefore be decided inside a doctrinal structure built for all faiths at once, and the specific facts that dominated the 2018 opinions, the celibate discipline of one shrine, the wording of Rule 3(b), the thantri’s evidence, will matter to the outcome chiefly as instances of the general categories the reference created. Devotees who experienced the reference as a reprieve for the shrine’s discipline and petitioners who experienced it as the dilution of a won right are both responding to this structural fact. A case specific victory and a case specific defence were each, by the order of November 2019, subordinated to the settlement of the architecture, and the interval of suspension the complication section of this article concedes is the price of that subordination, charged to both sides in different currencies.

Adjudicating the Three Readings: Gender, Tradition and Architecture

Three readings of the Sabarimala adjudication compete in the literature, and this article has undertaken to adjudicate among them rather than merely to array them. The gender justice reading holds that the case is a chapter in the constitutional emancipation of women, that the exclusion was a sex based disability imposed at the door of a public temple, and that the majority’s service was to apply Articles 14 and 15 to it with the support of Article 25(1). The reading is true to the opinions of Justice Chandrachud in particular and to the experience of the women who sought entry as of right. Its weakness is explanatory range. It cannot explain why the case required a denomination inquiry at all, why the dissent’s standing argument gained the traction it did, or why the review bench generalised the dispute into the doctrine of all faiths, since on the gender reading each of those movements is surplus to the wrong and its remedy. The tradition reading holds that the case is a chapter in the resistance of a living faith to judicial rationalisation, that the exclusion was the internal discipline of a shrine ordered around its deity’s vow, and that the dissent’s service was to mark the boundary the majority crossed. It is true to the devotees’ stated position and to the scale and sincerity of the mobilisation of late 2018. Its weakness is symmetrical. It cannot explain why a discipline internal to one shrine was codified in Rule 3(b) under a reform statute of the Kerala legislature, why the denomination’s own board adopted every position on the question across three decades, or why the Constitution’s text subordinates Article 25 expressly to the rest of Part III if internal discipline was meant to be self judging.

The architectural reading defended in this article holds that the case is the working out, at the constitutional judicial level, of a tension the founding settlement built into Articles 25 and 26 and declined to resolve by hierarchy, and that every major feature of the litigation falls into place once the tension is made the subject. The individual right of Article 25(1), armed with the equality code, met the denominational right of Article 26 at a shrine whose public character, statutory administration and rule bound exclusion made both articles fully available to their claimants. The essential practices doctrine served as the tension’s gearbox, the instrument by which courts have converted the abstract opposition into case by case outcomes since the Shirur Mutt judgment of 1954, and the doctrine cracked visibly under the load in 2018, with the majority stretching it across a contested theological record and the dissent proposing to retire it in favour of deference. Constitutional morality served as the tension’s rhetoric, the vocabulary in which the majority stated the priority of Part III and in which critics detected the substitution of judicial conviction for doctrine. The 2019 reference served as the tension’s institutional confession, the system’s formal acknowledgment that the gearbox and the rhetoric alike required re-examination at the highest level. On the evidence of the seven questions, the article finds for the architectural reading. It captures what the case’s own participants, across both benches and both outcomes, kept insisting the case was about, which was never only the entry of women and never only the defence of a custom, but the prior and unresolved question of how a constitution that protects religion twice, once for the person and once for the denomination, decides when the two protections collide.

This adjudication respects the limits the stance of the series imposes. The gender justice reading and the tradition reading are not caricatured here, because each is held, in strong forms, by named participants whose arguments the article has stated from their own texts, the majority opinions and the scholarship of Bhatia on one side, the dissent of Justice Malhotra and the devotees’ submissions on the other, with Mehta’s institutional caution and Sunder’s critique of legal definition standing across both. The article’s finding is about explanatory power, the quality in which an account of a decided case should be judged once the holdings themselves are common ground. It is also a finding with a built in test. If the nine judge bench, when it answers, resolves the seven questions by subordinating one article cleanly to the other, the architectural tension will have been a phase in the settlement’s history and future accounts will date its closure. If the bench instead refines the instruments, restating essentiality, denominational status and standing without hierarchy, the tension will stand confirmed as the settlement’s permanent operating condition, and the Sabarimala reference will be its canonical statement. Either outcome leaves the reading of the 2018 and 2019 documents offered here intact, because the reading is of the record the system has already made.

The Pillar in One Arc: From the Lock Up of 1949 to the Reference of 2019

This article closes the tenth pillar of the series, and its synthesis gathers the pillar’s long arc into the frame the pillar opened with. Indian secularism, in the reading the pillar’s opening article defended as the contested-settlement framework, is not a doctrine the Republic received complete but a settlement its institutions have renegotiated at each crisis, and the Sabarimala adjudication is the point in the arc where the renegotiation moved fully inside constitutional doctrine. The arc began with the events at Ayodhya in December 1949, when idols were placed inside the Babri Masjid and the state answered with a lock, in the episode examined as the post-1947 plural-civilisational settlement under strain, and the pillar traced the settlement through the religious-personal-law-state-intervention renegotiation of 1985 and 1986, when a maintenance judgment and a reversing statute stated the two poles of the personal law question. It continued through the Ayodhya movement, read in the pillar as the religious-political-mobilisation-substantive reading of the dispute, and through the demolition of December 1992 and its long inquiry, read as the institutional-political-audit-trajectory reading of the state’s own conduct. The state level settlement within which Sabarimala was administered is the one traced in the post-2018 Sabarimala-question Kerala state-political context, where the alternation of Kerala’s fronts produced the sequence of affidavits that left the constitutional question to the courts.

Across the same arc the pillar’s later articles carried the settlement into statute and street. The Gujarat violence of 2002 was examined in the pillar’s institutional audit of that year, the cow protection politics of the years after 2014 in its study of vigilantism and state response, and the citizenship legislation of 2019 in the architectural-substantive question reading of the Citizenship Amendment Act debate, which shares with Sabarimala the feature that a contest presented as one about membership was, in the pillar’s analysis, a contest about the settlement’s architecture. The Places of Worship Act of 1991, examined as the religious-place status-quo architecture, froze the character of religious places as at 15 August 1947 and thereby attempted to remove the past from politics by statute, an attempt whose exceptions and silences form the background against which the Sabarimala reference’s generality stands out. For the Sabarimala bench attempted the opposite operation. Where the 1991 Act closed questions by freezing them, the reference of 2019 opened questions by generalising them, and the pillar’s arc thus ends with the settlement’s two characteristic instruments, legislative freezing and judicial generalisation, facing each other across three decades of unresolved contention. The wider frame within which the pillar sits also bears restating at its close. The religion and state contest is one expression of the founding tensions whose general theory the series stated in the constitutional rights framework and in the integrated three-tensions framework, and the Sabarimala case earns its place as the pillar’s closer because it is the contest in which those tensions were argued in their purest doctrinal form, with the least admixture of electoral calculation inside the courtroom itself.

One discipline governs the use readers should make of the pillar’s closing argument. The architectural reading is an account of the adjudication, of what the courts did with the materials the Constitution gave them between the Shirur Mutt judgment and the reference, and it neither requires nor licenses a position on the political contests that the judgment generated in Kerala and in national politics after September 2018. Those contests, the electoral calculations of parties, the mobilisation strategies of movements and the fate of governments that enforced or resisted the verdict, belong to the political history of the judgment, which the series reserves for its later treatment of the 2018 judgment’s politics in the judiciary pillar. Keeping the adjudication and its afterlife apart is not evasion. It is the condition of seeing the adjudication clearly, because the doctrinal record of 2018 and 2019 was made by judges reasoning about texts, precedents and principles, and it is falsified when it is read backward from the rallies it provoked.

The claim with which this article opened can therefore be restated at the pillar’s close with its full support assembled. The Sabarimala verdict of 28 September 2018 and the nine judge reference of 14 November 2019 operationalise the religious secular architectural tension at the constitutional judicial level. The verdict stated one resolution of the tension, individual right over denominational claim, through the instruments of essentiality, denomination and constitutional morality. The dissent stated the counter resolution, denominational autonomy over an outsider’s equality claim, through the instruments of standing and deference. The reference declined both finality and reversal and restated the tension as seven questions for the largest bench the subject has received. The architectural tension reading captures the institutional substantive content of that sequence, which the gender justice and tradition readings, each true to one party’s experience of the case, cannot jointly or separately explain. What the nine judges will add to the sequence belongs to a later chapter of the series, where the judgment’s political afterlife is the subject. The adjudication itself, on the record of 1954, 1991, 2018 and 2019, is complete enough to judge, and this article has judged it.

Frequently Asked Questions

Q: What is the Sabarimala verdict?

The Sabarimala verdict is the judgment delivered on 28 September 2018 by a five judge Constitution Bench of the Supreme Court of India in Indian Young Lawyers Association v State of Kerala. By a majority of four to one, the bench struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, held that the exclusion of women aged ten to fifty from the Sabarimala temple was not an essential religious practice, held that the devotees of Lord Ayyappa did not form a separate religious denomination under Article 26, and declared that women of the stated ages held a constitutional right to enter the temple and worship there on equal terms with other devotees.

Q: Why were women excluded from Sabarimala?

Women between the ages of ten and fifty were excluded because the deity at Sabarimala, Lord Ayyappa, is worshipped at that shrine in the form of a naishtika brahmachari, a celibate who has undertaken a perpetual vow of celibacy, and because the temple’s discipline is ordered around that vow. Devotees state that the presence of women of menstruating age within the shrine is inconsistent with the deity’s celibate discipline, that pilgrims themselves observe a forty one day period of austerity before the climb, and that the exclusion is a matter of deference to the deity’s specific character at this seat rather than a judgment on women in general. The exclusion was given legal force by Rule 3(b) of the 1965 Rules framed under Kerala’s temple entry legislation.

Q: What is Article 25 of the Constitution?

Article 25 of the Constitution of India guarantees freedom of conscience and the right freely to profess, practise and propagate religion to all persons, subject to public order, morality and health and to the other provisions of Part III. Its second clause permits the state to regulate secular activity associated with religious practice and to make laws for social welfare and reform, including laws throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. In the Sabarimala case Article 25(1) carried the individual rights claim of the excluded women, while the express subjection of the article to the other fundamental rights allowed the majority to read it together with the equality guarantees of Articles 14 and 15.

Q: What is Article 26 of the Constitution?

Article 26 of the Constitution of India guarantees to every religious denomination, subject to public order, morality and health, the rights to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire property, and to administer that property in accordance with law. It is the collective counterpart to the individual guarantee of Article 25. In the Sabarimala litigation the devotees and their supporting interveners invoked Article 26(b), the right to manage denominational affairs in matters of religion, as the shelter for the exclusion of women aged ten to fifty, arguing that the discipline of the shrine was a matter of religion internal to the denomination and protected against outside restructuring.

Q: What was Justice Malhotra’s dissent?

Justice Indu Malhotra, the sole dissenter in the judgment of 28 September 2018, held that the writ petition should have been dismissed. She reasoned that the petitioners, who were not devotees of the Sabarimala deity, lacked standing to seek the restructuring of a faith’s internal discipline through a public interest petition, that courts should not examine the rationality of religious practices or sit in judgment on their doctrinal centrality, that the essential religious practices doctrine was being applied beyond its proper scope, and that the denomination’s autonomy under Article 26 required deference to the devotees’ sincere and longstanding belief in the celibate character of the deity. She also rejected the application of Article 17 to the exclusion.

Q: What is the nine-judge bench reference?

The nine judge bench reference is the order delivered on 14 November 2019 in Kantaru Rajeevaru v Indian Young Lawyers Association, in which a five judge bench hearing review petitions against the Sabarimala judgment of 2018 framed seven questions and referred them to a bench of nine judges. The questions concern the scope of Article 25, the interplay between Articles 25 and 26, the scope and possible reformulation of the essential religious practices doctrine, the permissibility of judicial examination of the rationality of religious practices, the standing of non adherents to challenge a faith’s practices, and the determination of denominational character, with express reference to comparable practices in other faiths.

Q: Has Sabarimala been decided after 2019?

The judgment of 28 September 2018, which ended the exclusion of women aged ten to fifty, stands as the operative decision and has neither been reversed nor stayed. What happened after 2019 is procedural rather than final. The review petitions filed against the 2018 judgment remain pending, and the seven questions framed on 14 November 2019 await hearing and decision by the nine judge bench to which they were referred. Until that bench answers, the doctrinal questions the Sabarimala case raised, including the scope of the essential religious practices doctrine and the relation between Articles 25 and 26, remain formally open even though the 2018 holding governs the temple.

Q: Who filed the original Sabarimala petition in 2006?

The original petition was filed in 2006 in the Supreme Court by the Indian Young Lawyers Association, a body of young advocates, together with women petitioners including Prerna Kumari, Sudha Pal, Lakshmi Shastri, Pramila Patten and Reshma Rajeev. It challenged Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 as a violation of Articles 14, 15, 17 and 25 of the Constitution. The petitioners were not, in the main, devotees seeking entry for themselves, a feature of the case that later became central, because Justice Malhotra’s dissent of 2018 held that non devotees could not maintain such a challenge to a faith’s internal discipline.

Q: What is Rule 3(b) of the 1965 Kerala rules?

Rule 3(b) is a clause of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, framed under the Kerala Act of the same name that had opened Hindu public temples in the state. The rule provided that women were not entitled to enter or offer worship in a place of public worship during the time when, by custom and usage, they were prohibited from doing so. It did not name Sabarimala, but it gave the temple’s exclusion of women aged ten to fifty the force of law. The majority in 2018 struck the rule down as unconstitutional and as contrary to the authorising purpose of its parent Act.

Q: Why did the majority deny that Ayyappa devotees form a separate denomination?

The majority applied the tests for denominational status developed in the precedents, principally the requirement of a collection of individuals sharing a common system of beliefs, a common organisation and a distinctive name, as stated in S. P. Mittal v Union of India in 1982. The devotees of Lord Ayyappa worship a deity within the Hindu fold, share the wider faith’s temples, texts and priesthoods, and bear no separate name as a community apart from the deity’s, and on those grounds three majority opinions held that they did not constitute a separate religious denomination within Article 26. The holding removed the devotees’ strongest constitutional shelter at the threshold of the case.

Q: What role did constitutional morality play in the 2018 judgment?

Constitutional morality supplied the standard by which the concurring opinions of Justice Nariman and Justice Chandrachud measured the exclusion against the Constitution’s own commitments. Drawn from B. R. Ambedkar’s Constituent Assembly speech of 4 November 1948 quoting George Grote, the phrase was used to hold that fidelity to the Constitution’s substantive values of equality and dignity, and not deference to prevailing sentiment, must govern when a practice excludes a class of persons from a public temple. Critics of the verdict argued that the standard is open textured and can carry a bench’s own convictions. Defenders answered that its content is fixed by the text of Part III itself.

Q: How did the Travancore Devaswom Board’s position change over time?

The Travancore Devaswom Board, the statutory body administering Sabarimala under the Travancore Cochin Hindu Religious Institutions Act, 1950, defended the exclusion before the Kerala High Court in the proceedings that ended in 1991 and administered the temple under that settlement for decades. During the long Supreme Court litigation its position shifted with its leadership and with the Kerala government of the day, and statements from 2008 contemplated a fresh examination of the practice with religious authorities. After the judgment of September 2018 the Board first resolved to seek review, and then, under a reconstituted leadership in February 2019, resolved to support the judgment and facilitate the entry of women.

Q: What happened when the temple reopened in October 2018?

The temple reopened for the monthly puja on 17 October 2018, nineteen days after the judgment, under a heavy police deployment ordered by the Kerala government. Devotee organisations, including the Sabarimala Karma Samithi, organised sustained protests at Nilakkal and Pamba, the base points of the pilgrimage, and women who attempted the climb in those days, among them journalists covering the reopening, turned back under pressure from the crowds. No woman of the stated ages completed the pilgrimage in that first reopening. The confrontation set the pattern for the Mandalam season that followed, in which the state committed thousands of police personnel to implementation and arrested protesters in numbers passing one thousand.

Q: Which two women entered Sabarimala in January 2019?

Bindu Ammini and Kanakadurga entered the Sabarimala shrine in the early morning of 2 January 2019 under police escort and offered worship, becoming the first confirmed entrants among women of the previously excluded ages since the judgment of September 2018. Their entry followed a state wide women’s wall, the Vanitha Mathil of 1 January 2019, organised in support of the judgment. The entry was answered by protests across Kerala and a state wide shutdown called by the Sabarimala Karma Samithi, and Kanakadurga was attacked inside her family home days later in an incident the police recorded and prosecuted. The entries demonstrated that the judgment could be executed, at a cost in public order that the review proceedings later weighed.

Q: Who wrote the review order of 14 November 2019?

The majority order on the review petitions was written by Chief Justice Ranjan Gogoi for himself and Justices A. M. Khanwilkar and Indu Malhotra. It kept the review petitions pending, left the judgment of September 2018 operative, and framed seven questions for a bench of nine judges on the scope of Articles 25 and 26 and the essential religious practices doctrine. Justices R. F. Nariman and D. Y. Chandrachud, who had sat on the 2018 bench and written concurring opinions in it, dissented jointly from the reference, holding that review jurisdiction is confined to error apparent and that the petitions disclosed none warranting the course the majority adopted.

Q: Why did Justices Nariman and Chandrachud oppose the nine judge reference?

Justices Nariman and Chandrachud held that a review petition lies only for an error apparent on the face of the record, that the Sabarimala review petitions disclosed no such error, and that the majority’s course converted a review into an appeal and a decided case into a general inquiry. They warned that framed questions of doctrine, detached from the facts of a live dispute about Sabarimala, invited the nine judge bench to pronounce upon the practices of communities whose cases were not before it. Their joint dissent also insisted that the judgment of 28 September 2018, delivered by a coordinate bench after full argument, deserved the finality that the dismissal of the reviews would have given it.

Q: What does naishtika brahmachari mean in the Sabarimala context?

A naishtika brahmachari is a celibate who has undertaken a perpetual and lifelong vow of celibacy, as distinct from a student celibate whose vow ends with his education. Devotees state that Lord Ayyappa is present at Sabarimala in this specific form, and that the shrine’s entire discipline, including the forty one day vratham of austerity observed by pilgrims and the exclusion of women between the ages of ten and fifty, is ordered around honouring that vow. The deity’s celibate character at this seat, rather than any general rule about women, is the doctrinal foundation on which the devotees rest their case, and the 2018 majority’s essentiality inquiry had to engage it directly.

Q: How does Gautam Bhatia assess the Sabarimala verdict?

Gautam Bhatia, in essays on the Indian Constitutional Law and Philosophy blog published across September and October 2018, defended the verdict’s result and the core of the majority reasoning while scrutinising its instruments. He argued that the anti exclusion principle latent in Part III, the constitutional hostility to practices that bar a class from public spaces on ascriptive grounds, supplied the judgment’s deepest justification, and that the essential practices test is defensible when applied as an examination of the practice on the faith’s own terms. He also pressed the opinions on the denomination question and warned that constitutional morality requires the discipline of the anti exclusion principle if it is not to license judicial preference.

Q: Which other religious practices did the 2019 reference order mention?

The reference order of 14 November 2019 expressly instanced practices beyond Sabarimala as raising cognate questions for the nine judge bench. It named the entry of Muslim women into mosques, the entry of Parsi women married outside the faith into fire temples, and the practice of female genital cutting within the Dawoodi Bohra community. By naming them, the order confirmed that the reference was not confined to the Sabarimala dispute and that the bench’s answers would govern the relation between individual rights and denominational autonomy across faiths. Justices Nariman and Chandrachud, dissenting from the reference, treated this breadth as one of its principal defects.

Q: What is the architectural tension reading of the Sabarimala case?

The architectural tension reading holds that the Sabarimala litigation operationalised, at the constitutional judicial level, a structural tension between Article 25, which grants freedom of religion to every person as an individual right, and Article 26, which grants every religious denomination the management of its own religious affairs as a collective right. On this reading, the 2018 majority stated one resolution of the tension, the dissent of Justice Malhotra stated the counter resolution, and the reference of November 2019 restated the tension itself as seven general questions. The reading is defended in this article on the ground that it explains features of the record, including the reference’s generality, that gender justice and tradition defence accounts cannot.