The arguments before a nine-judge bench of the Supreme Court in the Sabarimala Reference amount, in substance, to a case for a different kind of Supreme Court. The argument is this: Courts over the decades have developed doctrines through which religious and cultural practices have been held to constitutional standards, but this is judicial overreach. Courts should leave such practices to be answered to by the communities that hold them.
Two arguments lie at the heart of the government’s case.
The first is that religious practice cannot be reviewed. The Centre says courts acquire jurisdiction to examine a religious practice only where it has been translated into law. If a religious institution mandates a practice, with no statutory rule, then in the absence of a law, the court should not entertain a legal challenge. Even where a practice is backed by statute, the larger question of whether the rule is consistent with the Constitution’s own values falls outside the permitted inquiry.
The Court, as a result, limits itself to asking only whether Parliament had the authority to act. It cannot ask whether the practice is consistent with what the Constitution itself requires, whether it answers to the values of justice, liberty, equality, and fraternity on which the Constitution rests. That is the question the second argument is designed to foreclose.
The second argument removes the one tool that could cut through this. For example, the doctrine of constitutional morality, the Centre says, is a vague judicial invention with no place in the review of religious practice. The principle itself is straightforward: When courts must decide what morality means as a restriction on a fundamental right, they look to what the Constitution requires, not what the community endorses.
The Centre wants that principle gone. In its place: Societal morality, the dominant conscience of the community at a given time. Article 25 of the Constitution makes the right to religious practice subject to morality. On the Centre’s reading, that morality is whatever the dominant community believes. A practice that the community endorses satisfies the standard automatically.
The Travancore Devaswom Board has arrived at the same position. Where the Centre framed this as legislative primacy, the Board has framed it in the language of constitutional text, arguing that the word “morality” in Article 25 was placed by the framers without qualification, and courts cannot rewrite that choice. The effect is the same: Morality becomes whatever the dominant institution decides it is. But no decision made within the structures of power is beyond judicial challenge. That is the reason constitutional courts exist.
The phrase constitutional morality did not originate with recent judges: Ambedkar used it in the Constituent Assembly in 1948. But its deployment as a substantive standard of judicial review is more recent, and it is that deployment the Centre and the Board are attacking. The Board went further: It argued that Ambedkar’s own use of the phrase was procedural, a call for institutional fidelity in a nascent republic, and was never intended as a substantive ground of review of religious practice.
Ambedkar had understood that a society structured around hierarchy could return that hierarchy to power through democratic processes indefinitely. The Constitution could not simply assume that democratic majorities would dismantle the hierarchies that benefited them. Constitutional morality was the mechanism built in to resist that. Societal morality does not resist that tendency.
According to the Centre’s framework, the doctrines through which courts have protected fundamental rights were never legitimate to begin with. The PIL, it argues, has been weaponised by parties with no personal stake in the practices they challenge, converting a remedy designed for the voiceless into a tool for ideological litigation. Constitutional morality gives individual judges a free-floating standard with no anchor in the constitutional text. These are not tools of judicial review, the Centre says. They are instruments of judicial overreach into the domain of the community and the legislature.
What the Centre calls judicial excess is, in practice, the history of courts protecting those left behind. Bonded labourers reached the court through a letter in Bandhua Mukti Morcha. Undertrial prisoners who had already served longer than their maximum possible sentence were freed in Hussainara Khatoon. The Vishakha Guidelines on workplace sexual harassment were issued when Parliament had not moved. Constitutional morality was the basis on which consensual same-sex relationships were decriminalised in Navtej Singh Johar. Withdraw these tools from the review of religious practice, and the court’s promise becomes conditional on whether the majority agrees.
The Muslim woman excluded from a mosque, the Parsi woman barred from the agiary, the Dawoodi Bohra woman subjected to female genital mutilation — all three cases are before this bench right now. Each involves a practice the dominant community sincerely believes in. Under the Centre’s framework, the societal morality of these communities is the standard that applies. In each of these cases, the constitutional arguments that have historically produced remedies — arguments grounded in equality, dignity, and non-discrimination — cannot be made.
What is being argued before this court is a carefully constructed argument for why courts should let religious institutions and executive decisions run the writ of the majority, answerable to no scrutiny but their own. It is framed as restraint. But it is the removal of the only tools through which the Constitution safeguards the voiceless.
The bench will decide. For the Muslim woman, the Parsi woman, the Dawoodi Bohra woman before it, the question has never been abstract.
The writers are lawyers based in Delhi
