The Constitution in the Sanctum, How India’s Courts Became Arbiters of Religious Practice and Constitutional Morality
On a recent morning in Madurai, the ancient lamps of the Thiruparankundram temple were lit, as they have been for centuries, in a ritual of unbroken devotion. Yet this particular illumination arrived under circumstances that would have been unrecognisable to the priests who first tended these flames: it was the subject of a judicial order, issued after contested hearings, briefed by competing counsel, and determined by reference not only to religious texts but to Articles 25 and 26 of the Constitution of India. The Constitution had entered the sanctum.
The same week, hundreds of kilometres away in Kanchipuram, the Varadaraja Perumal temple witnessed a parallel intervention. The Madras High Court was called upon to adjudicate the rights of the Thenkalai sect to recite hymns in a sanctuary where their devotional tradition had long been contested. Again, the court weighed scriptural authority against constitutional principle, customary practice against fundamental rights, denominational autonomy against individual equality. Again, the Constitution stood where once only custom had reigned.
These two cases, emerging almost simultaneously from the same High Court, are not anomalies. They are the latest expressions of a constitutional engagement that has been unfolding for over seven decades—a sustained, often contentious, and intellectually fertile dialogue between India’s religious traditions and its republican legal order. They reflect a profound transformation in how Indian society conceives of the relationship between faith and law: from a pre-constitutional era in which temple disputes were adjudicated as matters of civil rights (who owned what property, who controlled which endowment) to a constitutional era in which they are adjudicated as matters of fundamental rights (who may worship, on what terms, and under whose authority).
This transformation has not been uncontested. The judiciary’s entry into the sanctum has provoked criticism from those who view it as inappropriate judicial overreach into domains properly reserved for religious authority. The Supreme Court’s essential religious practices test—a doctrinal innovation designed to distinguish between core, protected religious practices and secular, regulable ones—has been accused of inconsistency, subjectivity, and even of requiring judges to engage in theological inquiries for which they are ill-equipped.
Yet the alternative to judicial engagement is not the restoration of pristine religious autonomy; it is the perpetuation of customary hierarchies and exclusionary practices that the Constitution was explicitly designed to dismantle. The temples of southern India, like religious institutions across the subcontinent, were not idyllic spaces of universal devotion; they were sites of caste discrimination, gender exclusion, and ritualised inequality. The Constitution’s framers, acutely aware of this history, deliberately crafted Articles 25 and 26 to subject religious freedom to the overriding claims of public order, health, morality, and other fundamental rights.
The courts have spent seven decades giving content to these abstract constitutional constraints. Their work is not complete, nor will it ever be. Each generation must negotiate anew the boundary between religious autonomy and constitutional principle, between the claims of tradition and the demands of equality. The Madras High Court’s recent judgments are not intrusions into a domain where courts have no legitimate business; they are continuations of a constitutional conversation that began in 1950 and will continue as long as the Constitution endures.
From Civil Rights to Fundamental Rights: The Constitutional Transformation
The contrast between pre-constitutional and constitutional adjudication of religious disputes could not be more stark. In 1908, when the Privy Council in London was called upon to decide whether the Nadar community possessed the right to enter the Kamudhi temple in Ramanathapuram, the juridical framework was that of civil rights and property law. The question was framed not as whether the Nadars, as citizens, possessed a fundamental right to worship free from caste-based discrimination, but whether they could establish, as a matter of custom and usage, a legally enforceable entitlement to temple access. The Privy Council, applying the common law of easements and prescriptive rights, answered in the negative.
This was not a failure of judicial empathy or a product of colonial prejudice; it was a consequence of the available legal architecture. The pre-constitutional legal order possessed no concept of fundamental rights enforceable against private parties, no doctrine of state action extending to religious institutions, no constitutional morality capable of overriding customary practices. Temple entry was a matter of property, not personhood; of title, not dignity.
The adoption of the Constitution in 1950 fundamentally altered this architecture. Articles 25 and 26 guaranteed to “all persons” the right to freely profess, practise, and propagate religion, and to every religious denomination the right to manage its own affairs in matters of religion. But these guarantees were expressly subject to public order, morality, health, and the other provisions of Part III—including, crucially, Article 17’s abolition of untouchability, Article 15’s prohibition of discrimination, and the broader equality guarantee of Article 14.
This constitutional design effected a revolution in the legal status of religious practice. No longer could customary exclusions claim immunity from judicial scrutiny merely by virtue of their antiquity or religious character. The state was not only permitted but constitutionally obligated to intervene when religious practices violated fundamental rights or offended public order and morality. The question was no longer whether the Nadars could prove a prescriptive right to temple entry; it was whether the Constitution permitted their exclusion on grounds of caste.
The southern States of the erstwhile Madras Presidency played a pioneering role in operationalising this constitutional vision. Through a series of legislative enactments under the Hindu Religious and Charitable Endowments framework, they asserted the state’s supervisory authority over temple governance, established mechanisms for auditing temple finances, and created forums for adjudicating disputes over access and practice. These statutes, in turn, generated litigation that brought the constitutional questions before the High Courts and, ultimately, the Supreme Court.
The Essential Practices Doctrine: A Controversial Instrument
The doctrinal instrument through which the Supreme Court has navigated this constitutional terrain is the essential religious practices test. First articulated in the 1950s and refined through decades of adjudication, the test requires courts to determine whether a challenged practice is “essential” or “integral” to the religion in question. Practices deemed essential are accorded the protection of Articles 25 and 26; those deemed non-essential are classified as “secular” and subject to state regulation and judicial correction.
The test has been subjected to sustained and cogent criticism. Its application has been inconsistent, with different benches reaching divergent conclusions on similar practices across different religious traditions. It requires judges to engage in theological inquiries—determining what is “essential” to a faith—for which they possess no particular expertise and which arguably exceed the legitimate bounds of judicial competence. It risks freezing religious traditions at particular historical moments, treating as “essential” whatever happened to be practised at the time of adjudication and discouraging the organic evolution of religious custom.
These criticisms are not without force. Yet the essential practices test, for all its imperfections, serves an ineliminable function in the constitutional scheme. Articles 25 and 26 protect religious freedom; they do not protect every activity that a religious institution chooses to characterise as religious. Some mechanism is necessary to distinguish between the core of religious freedom, which merits robust constitutional protection, and the periphery of customary practice, which must yield to competing constitutional values.
The Supreme Court’s 2018 judgment in the Sabrimala temple case (Indian Young Lawyers Association v. State of Kerala) effected a significant consolidation and evolution of this doctrine. The Court held that even practices deemed essential to a religion cannot be shielded from judicial scrutiny if they are inconsistent with constitutional morality. Religious freedom, the Court affirmed, is not a licence to perpetuate discrimination or to exempt religious institutions from the fundamental rights that bind all other state and non-state actors.
This formulation—that constitutional morality overrides even essential religious practices—represents the maturation of Indian secularism. It rejects the notion that religious communities are islands of illiberal autonomy within a constitutional sea. It insists that the Constitution’s transformative project—the achievement of a society organised around justice, liberty, equality, and fraternity—extends into the sanctum as well as the street.
The Southern Contribution: Laboratories of Constitutional Adjudication
It is not accidental that the Thiruparankundram and Kanchipuram cases arose in Tamil Nadu and were adjudicated by the Madras High Court. The southern States, and particularly those comprising the erstwhile Madras Presidency, possess a distinctive constitutional history that has rendered them fertile ground for the development of temple jurisprudence.
This history begins with the Madras Hindu Religious Endowments Act of 1927, which established the Presidency government’s supervisory authority over temple administration and created mechanisms for auditing temple funds and regulating temple committees. Subsequent legislation expanded this regulatory framework, bringing an increasing range of temple activities within the ambit of state oversight.
The constitutional era transformed this administrative supervision into constitutional adjudication. When State governments enacted legislation to govern temples and their endowments, they inevitably generated disputes over the scope and limits of their regulatory authority. Religious denominations, asserting their rights under Article 26, challenged State interventions as infringements of their autonomy in matters of religion. Individuals and communities excluded from temple access or subjected to discriminatory practices invoked Articles 14, 15, 17, and 25 to demand judicial relief.
The southern High Courts—Madras, Karnataka, Kerala—thus became laboratories of constitutional interpretation, developing doctrines and precedents that would subsequently be adopted or refined by the Supreme Court. Their dockets filled with cases requiring them to determine, with increasing sophistication, the boundary between legitimate State regulation and unconstitutional interference with religious freedom.
This southern jurisprudence has been characterised by a distinctive sensitivity to the lived realities of caste discrimination within Hindu religious institutions. The courts of the region, confronting case after case of temple exclusion and ritual hierarchy, developed a robust understanding of the Constitution’s transformative ambition. They recognised that formal guarantees of religious freedom, if not actively enforced against exclusionary customary practices, would serve merely to perpetuate inherited inequalities.
The Contemporary Challenge: Polarisation and Adjudication
The growing number of religious disputes before constitutional courts reflects, as the article notes, “ideological polarisation within and across faiths.” This is not a phenomenon confined to any single religious community or region. Across India, traditionally settled practices of worship, ritual, and community organisation are being contested, renegotiated, and sometimes violently disputed.
Several factors contribute to this heightened contestation. The democratisation of religious authority—the decline of traditional priestly hierarchies and the emergence of new, often media-savvy religious leaders—has multiplied the sources of authoritative religious interpretation. Social media amplifies disputes that would once have remained local, transforming parochial disagreements into national controversies overnight. Electoral politics increasingly mobilises religious identity, incentivising political actors to stake positions on contested ritual practices and temple governance.
In this environment, the courts have become inevitable arbiters. When communities cannot resolve their religious disputes through internal mechanisms—when denominational factions disagree on succession to religious office, when customary practices are challenged by those they exclude, when temple authorities assert autonomy against State regulation—the parties turn to the only institution capable of rendering a binding, authoritative determination.
This is not judicial overreach; it is judicial necessity. The Constitution does not permit the courts to decline jurisdiction over disputes that present constitutional questions. Article 32 confers upon the Supreme Court, and Article 226 upon the High Courts, the power to enforce fundamental rights. When religious practices are alleged to violate those rights, the courts are not merely permitted but obligated to adjudicate.
The Harmonisation Project: Faith and the Constitution
The constitutional engagement with religion is not, and should not be understood as, a project of subordination or supersession. The Constitution does not seek to replace religious faith with secular ideology, or to subject every religious practice to uniform regulation. Articles 25 and 26 are guarantees of freedom, not merely limitations on freedom.
The constitutional project is better understood as one of harmonisation: the ongoing effort to reconcile the legitimate claims of religious autonomy with the equally legitimate claims of individual equality, public order, and constitutional morality. This is not a project that can be completed once and for all, through a single legislative enactment or judicial pronouncement. It is a continuous, iterative process, requiring each generation to negotiate anew the boundary between faith and law, tradition and transformation.
The courts play an indispensable role in this harmonisation project. They do not possess a monopoly on constitutional interpretation, nor should they. Legislatures enact, executives implement, and civil society advocates—all contribute to the ongoing elaboration of constitutional meaning. But when disputes arise that cannot be resolved through political processes, and when fundamental rights are alleged to be violated, the courts must speak.
The Madras High Court’s recent judgments on the Thiruparankundram Deepathoon and the Kanchipuram Varadaraja Perumal temple are contributions to this ongoing conversation. They do not represent the final word on the relationship between religious custom and constitutional right; they are interventions in a dialogue that will continue as long as the Constitution endures and as long as Indians continue to seek, through their faith traditions, meaning and community and transcendence.
Conclusion: The Sanctum and the Courtroom
The image of the Constitution entering the sanctum is, for some, a troubling one. It evokes the spectre of judicial intrusion into the sacred, of secular authority displacing spiritual tradition, of lawyers and judges presuming to instruct priests and devotees in the proper conduct of worship.
Yet this image misdescribes the constitutional project. The Constitution does not enter the sanctum as an invader or occupier; it enters as a guarantor of rights that the sanctum, left to itself, has too often denied. It enters on behalf of the Nadars who were turned away from the Kamudhi temple, the women excluded from Sabarimala, the Dalits barred from village shrines, the Thenkalai sectarians silenced in Kanchipuram. It enters not to diminish faith but to ensure that faith is not weaponised against the vulnerable, not to regulate worship but to ensure that worship is not a vehicle for discrimination.
The constitutional conversation about religion is, at its core, a conversation about what kind of society we aspire to be. Is it a society in which ancient hierarchies retain their coercive power over contemporary lives? Is it a society in which religious communities are permitted to maintain internal regimes of exclusion and discrimination, insulated from constitutional scrutiny by the mere assertion of custom? Or is it a society in which the Constitution’s transformative vision—justice, liberty, equality, fraternity—extends to every domain of human activity, including the domain of faith?
The courts have given their answer, repeatedly and consistently, over seven decades of constitutional adjudication. The answer is not that religious freedom is unimportant, or that customary practices deserve no deference, or that the state should regulate every aspect of religious life. The answer is that religious freedom, like all constitutional freedoms, operates within a framework of competing rights and legitimate public interests. The answer is that custom cannot claim immunity from constitutional scrutiny merely by virtue of its antiquity. The answer is that the Constitution’s promise of equal citizenship does not stop at the temple gate.
The Constitution has entered the sanctum. It will not leave. And each generation of judges, lawyers, and citizens will be called upon to determine, case by case, dispute by dispute, what this presence requires.
Q&A Section
Q1: How has the nature of judicial adjudication of religious disputes changed from the pre-constitutional era to the constitutional era?
A1: The transformation is from civil rights adjudication to fundamental rights adjudication. In the pre-constitutional era, exemplified by the 1908 Privy Council decision in Sankaralinga Nadan v. Raja Rajeswara Dorai, temple entry disputes were framed as questions of property law, custom, and prescriptive rights. The Nadar community’s claim to enter the Kamudhi temple was adjudicated not as a matter of their dignity or equality as persons, but as whether they could establish a legally enforceable entitlement under the common law of easements. The Constitution effected a revolution by introducing fundamental rights to religious freedom (Articles 25 and 26) and equality (Articles 14, 15, 17) . Post-1950, the question became not whether a community could prove customary access, but whether their exclusion violated constitutional guarantees against discrimination. This shifted the juridical framework from title to personhood, from property to dignity. The southern States, through legislation under the Hindu Religious and Charitable Endowments Act, created the statutory infrastructure that generated constitutional litigation, and the courts developed doctrines—most significantly the essential religious practices test—to adjudicate these claims.
Q2: What is the essential religious practices test, what are its principal criticisms, and why has the Court continued to employ it?
A2: The essential religious practices test, developed by the Supreme Court beginning in the 1950s, requires courts to determine whether a challenged practice is “essential” or “integral” to the religion in question. Practices deemed essential receive the full protection of Articles 25 and 26; those deemed non-essential are classified as “secular” and subject to state regulation and judicial correction. The principal criticisms are: (1) inconsistent application, with different benches reaching divergent conclusions on similar practices across different traditions; (2) judicial theological inquiry, requiring judges to determine what is essential to a faith for which they possess no expertise; (3) freezing religious traditions, treating practices as “essential” based on historical evidence and discouraging organic evolution. Despite these criticisms, the Court has continued to employ the test because it serves an ineliminable function: Articles 25 and 26 protect religious freedom, not every activity a religious institution chooses to characterise as religious. Some doctrinal mechanism is necessary to distinguish between core protected practice and periphery regulable custom. The 2018 Sabrimala judgment significantly evolved the doctrine by holding that even practices deemed essential cannot be shielded from scrutiny if they are inconsistent with constitutional morality.
Q3: What was the significance of the Sabrimala judgment (Indian Young Lawyers Association v. State of Kerala, 2018) for the constitutional jurisprudence on religious freedom?
A3: The Sabrimala judgment effected a significant consolidation and evolution of the essential religious practices doctrine. Prior to Sabrimala, the doctrine operated primarily as a threshold test: if a practice was deemed essential, it was generally accorded constitutional protection; if non-essential, it was subject to regulation. Sabrimala added a second-order scrutiny: even practices deemed essential to the religion must be tested against constitutional morality. The Court held that religious freedom cannot be a licence to perpetuate discrimination or to exempt religious institutions from the fundamental rights that bind all other state and non-state actors. This formulation represents the maturation of Indian secularism, rejecting the notion that religious communities are islands of illiberal autonomy within a constitutional sea. It insists that the Constitution’s transformative project—the achievement of a society organised around justice, liberty, equality, and fraternity—extends into the sanctum as well as the street. The judgment also clarified that the state’s power to regulate religious practices under Article 25(2)(b) for social welfare and reform is not limited by the essential practices test.
Q4: Why does the article credit the southern States and High Courts with a “distinctive constitutional history” in developing temple jurisprudence?
A4: The southern States of the erstwhile Madras Presidency possess a distinctive institutional history that positioned them as laboratories of constitutional adjudication. This history begins with the Madras Hindu Religious Endowments Act of 1927, which established the Presidency government’s supervisory authority over temple administration, created mechanisms for auditing temple funds, and regulated temple committees. Subsequent legislation expanded this regulatory framework. When the Constitution was adopted, this existing statutory infrastructure generated litigation that brought constitutional questions before the High Courts. Religious denominations challenged State interventions as infringements of Article 26 autonomy; excluded communities invoked fundamental rights to demand access. The southern High Courts—Madras, Karnataka, Kerala—thus developed doctrines and precedents with greater density and earlier frequency than courts in other regions. Their jurisprudence was characterised by a distinctive sensitivity to the lived realities of caste discrimination within Hindu religious institutions, confronting case after case of temple exclusion and ritual hierarchy. This southern jurisprudence provided the doctrinal foundation for subsequent Supreme Court pronouncements, including Sabrimala. The article’s claim is not regional chauvinism but recognition that constitutional development is often federal and iterative, with state-level litigation and adjudication feeding into national constitutional doctrine.
Q5: What does the article mean by describing the constitutional engagement with religion as a “harmonisation project” rather than a project of “subordination or supersession”?
A5: The distinction is between replacement and reconciliation. A project of subordination or supersession would seek to replace religious faith with secular ideology, to subject every religious practice to uniform regulation, or to exclude religion from the public sphere entirely. The article explicitly rejects this framing. The constitutional engagement with religion is better understood as a continuous, iterative process of harmonisation: the ongoing effort to reconcile the legitimate claims of religious autonomy (protected by Articles 25 and 26) with the equally legitimate claims of individual equality, public order, and constitutional morality (reflected in the limitations clauses and other fundamental rights). This is not a project that can be completed once and for all through a single legislative enactment or judicial pronouncement. It requires each generation to negotiate anew the boundary between faith and law, tradition and transformation. The courts play an indispensable role in this harmonisation, but they do not possess a monopoly on constitutional interpretation. Legislatures enact, executives implement, and civil society advocates—all contribute. The image of the “Constitution entering the sanctum” is therefore not one of invasion or occupation but of guarantorship: the Constitution enters to ensure that faith is not weaponised against the vulnerable, that worship is not a vehicle for discrimination, and that the promise of equal citizenship does not stop at the temple gate.
