Balancing Faith and Constitutional Rights, The Sabarimala Review and the Future of Religious Freedom in India
When a five-judge Bench of the Supreme Court of India delivered its verdict, in September 2018, in Indian Young Lawyers Association vs State of Kerala, opening the doors of Kerala’s Sabarimala temple to women of all ages, it provoked a range of reactions. There were protests across the country, especially in Kerala, where many believed that the Court had overlooked, and even disrespected, religious creed. Others saw the verdict as transformative, as outlining a vision that enlivened the Constitution.
Now, close to a decade later, the Court will hear final arguments on review petitions that seek to overturn the earlier verdict and the law it laid down. The stakes could not be higher—not just for Sabarimala, but for the entire architecture of religious freedom in India.
The Original Ruling
The original ruling was delivered through a 4:1 majority. There was an opinion from then Chief Justice of India Dipak Misra, to which Justice A.M. Khanwilkar joined. There were separate, concurring opinions from Justices Rohinton Nariman and D.Y. Chandrachud and a notable dissent from Justice Indu Malhotra. But despite the cleavage in the rationales adopted, the majority’s findings were clear.
First, the Court ruled that the devotees of Lord Ayappa did not constitute a separate religious denomination; second, that the bar enforced on women between the ages of 10 and 50 from entering the temple violated the rights of women to freedom of religion; and third, that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, on which the ban was grounded, violated not only the Constitution but also Section 3 of its parent law, which promised free access to temples for all classes of Hindus.
The Dissent
In her dissenting opinion, Justice Malhotra found, among other things, that fundamental rights in a secular polity needed harmonising, that a generic doctrine of equality cannot override the collective rights of individuals to practise their faith in line with their customs and ideals. She also found that, as a matter of custom, women of a certain age had been excluded from the temple’s precincts, and this constituted a non-derogable “essential religious practice”.
The latter finding represented the central axis on which the case turned. The Constitution recognises both the freedom of religion as an individual right and the rights of religious denominations to manage their own affairs in matters of religion. Both rights are subject to public order, morality and health, and in the case of an individual’s right to freedom of religion also to other fundamental rights.
The Essential Religious Practices Test
Balancing communitarian interests with individual conscience has long plagued our jurisprudence. Over the years, when it has been called to resolve tensions of this kind, the Court has used a test that has allowed it to virtually sit in theological judgment over religious practice. That is, it examines and arrives at a factual conclusion on whether a practice in question is essential to the religion or not.
This has meant that the Court has effectively determined not only justifiable for the state to intervene but has also determined what kinds of practices are deserving of constitutional protection in the first place.
For example, in Sastri Yagnapurushadji vs Muldas Bhuddarsa Vaishya (1966), Chief Justice P.B. Gajendragadkar deduced what was essential to the followers of the Swaminarayan sect through selective references to Hindu texts without so much as asking what the conscience of the followers, in fact, dictated. In one passage, he even concluded that the “genesis of the suit…is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion”.
A court sitting as a moral arbiter on religion ought to be anathema to secularism. Therefore, that we need a theory that departs from the essential religious practices test ought to be beyond doubt.
Justice Chandrachud’s Critique
As Justice Chandrachud wrote, in his judgment in Indian Young Lawyers Association, “The rationale for allowing a religious community to define what constitutes an essential aspect of its religion is to protect the autonomy of religions and religious denominations. Protecting that autonomy enhances the liberal values of the Constitution… By entering upon doctrinal issues of what does or does not constitute an essential part of religion, the Court has, as a necessary consequence, been required to adopt a religious mantle.”
The test also suffers from other practical limitations. It calls upon a constitutional court to arrive at fully fleshed out factual findings without allowing parties to lead oral evidence or subject witnesses to cross examination. What is more, the doctrine also does not offer a clear solution for what is really an obvious problem: what must a court do when a practice it finds essential to religion also undermines, or is inimical to, the dignity of individuals?
The Anti-Exclusion Test
It is for this reason that Justice Chandrachud proposed an “anti-exclusion test”. In his formulation, this norm would allow for due deference to be shown to each religious group to determine for themselves what doctrines and tenets to follow. At the same time, should any such practice exclude an individual in a manner which impairs their dignity or hampers their access to basic goods, “the freedom of religion must give way to the over-arching values of a liberal constitution”.
At a doctrinal level, the test is not beyond complications. At first glance, it might well seem to replicate some of the difficulties that have long beleaguered the essential religious practices doctrine. To determine whether a particular form of exclusion impairs dignity or access to basic goods, a court must inevitably engage with the meaning and purpose of the practice in question. Such an inquiry cannot be carried out in the vacuum. It may have an impact on the normative content of faith itself.
But where it differs is that the investigation remains grounded in constitutional terms rather than theological ones.
A Crucial Distinction
In other words, the anti-exclusion test does not ask whether a practice is essential to religion; it asks whether the consequences of a practice are compatible with the Constitution’s guarantees of equal treatment and protection. This distinction is crucial.
Under the essential religious practices test, constitutional protection turns on whether a court sees a practice as critical to the exercise of faith. By contrast, under the anti-exclusion test a court accepts, as a starting point, the autonomy of religious groups to define their own tenets. It intervenes only if that liberty leads to a systematic exclusion of individuals from places or benefits that are integral to their ability to lead a life of dignity.
The Broader Implications
When the nine-judge Bench begins its hearings, it will have the opportunity to reflect on the broader architecture of India’s religious freedom clauses. The principles it lays down will have a bearing not only on the Sabarimala dispute but also on a host of other controversies as well—including the rights of Dawoodi Bohra community members against excommunication and of Parsi women to continue to practise the Zoroastrian faith upon marrying outside the religion.
As the framers of the Constitution recognised, religion and social life are inextricably connected in India. This makes it impossible for courts to remain entirely indifferent to the real-life consequences of religious practice. The anti-exclusion test acknowledges that faith must remain autonomous in its own domain, but its outward exercise must comport with the Constitution’s commitment to equal moral membership.
Conclusion: Dignity at the Heart
If the individual is to remain the basic unit of constitutional concern, communitarian claims cannot override a person’s right to access spaces and institutions that shape civic life. In placing dignity at the heart of the inquiry, the anti-exclusion test offers a framework that remains truest to the Constitution’s transformative promise, by protecting belief without licensing discrimination in its name.
The Sabarimala review petitions offer the Supreme Court an opportunity to refine its approach to religious freedom. It can choose to continue down the path of theological inquiry, or it can adopt a framework that respects religious autonomy while protecting individual dignity. The choice it makes will shape Indian secularism for generations.
Q&A: Unpacking the Sabarimala Review
Q1: What did the 2018 Sabarimala judgment hold?
By a 4:1 majority, the Supreme Court held that the devotees of Lord Ayappa are not a separate religious denomination; that the ban on women aged 10-50 violated their freedom of religion; and that Rule 3(b) of the Kerala Hindu Places of Public Worship Rules violated the Constitution. Justice Indu Malhotra dissented, arguing that the exclusion constituted an essential religious practice.
Q2: What is the “essential religious practices” test?
This test, developed over decades, requires courts to determine whether a practice is essential to a religion. If it is deemed essential, it receives constitutional protection. Critics argue this forces courts to sit in theological judgment, deciding matters of faith without evidence or cross-examination, and potentially overriding the autonomy of religious communities.
Q3: What is Justice Chandrachud’s “anti-exclusion test”?
The anti-exclusion test would respect religious communities’ autonomy to define their own tenets. However, if a practice systematically excludes individuals in ways that impair dignity or access to basic goods, “the freedom of religion must give way to the over-arching values of a liberal constitution.” The inquiry focuses on constitutional consequences rather than theological essentials.
Q4: How does the anti-exclusion test differ from the essential practices test?
Under the essential practices test, protection turns on whether a court sees a practice as critical to faith. Under the anti-exclusion test, courts accept religious autonomy as a starting point and intervene only when practices cause constitutionally unacceptable exclusion. The investigation is grounded in constitutional terms rather than theological ones.
Q5: Why does this case matter beyond Sabarimala?
The principles laid down will affect other controversies: Dawoodi Bohra community rights against excommunication, Parsi women’s rights upon marrying outside the faith, and generally how courts balance religious freedom with individual dignity. The case will shape the entire architecture of India’s religious freedom jurisprudence for generations.
