Sabarimala Reference Day 4: TDB Disputes NSS on Articles 25, 26

In a pivotal exchange on the fourth day of hearings before a nine-judge bench of the Supreme Court of India, the Travancore Devaswom Board (TDB) advanced a nuanced interpretation of Articles 25(2)(b) and 26(b) of the Constitution, advocating for a harmonious construction that distinguishes temple entry from internal religious rituals. Senior Advocate Dr. Abhishek Manu Singhvi, representing the TDB, explicitly disagreed with the Nair Service Society (NSS)'s contention—put forth by Senior Advocate C.S. Vaidyanathan—that Article 26(b)'s denominational rights prevail over the State's reformative powers under Article 25(2)(b). This clash underscores the ongoing Sabarimala reference's core tension: balancing individual worship rights against collective religious autonomy. Led by CJI Surya Kant, alongside Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B. Varale, R. Mahadevan, and Joymalya Bagchi, the bench probed these arguments amid broader debates on constitutional morality and exclusionary practices. The hearings, resumed in 2026 after a long hiatus, signal a potential recalibration of religious freedom jurisprudence.

Historical Background of the Sabarimala Judgment

The saga traces back to September 28, 2018, when a Constitution Bench—comprising then-CJI Dipak Misra, Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra—delivered a landmark 4:1 verdict in Indian Young Lawyers Association v. State of Kerala . The Court struck down the age-old custom barring women aged 10 to 50 from entering the Sabarimala Temple in Kerala, deeming it unconstitutional. This practice, rooted in beliefs surrounding Lord Ayyappa's celibate deity status, was invalidated alongside Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which permitted denominations to exclude based on custom.

The majority held that Lord Ayyappa devotees did not constitute a separate religious denomination under Article 26, and the exclusionary custom was not an essential religious practice (ERP) protected by Article 25(1). Justices Chandrachud and Nariman emphasized women's fundamental right to freedom of religion, rejecting notions of physiological "impurity." Justice Malhotra dissented, upholding the custom as integral to the denomination's identity. The ruling ignited nationwide protests, with over 50 review petitions filed by stakeholders including the temple's chief priest Kantaru Rajeevaru, NSS, National Ayyappa Devotees (Women’s) Association, and All Kerala Brahmin’s Association.

Review Petitions and Referral to a Larger Bench

Post-verdict, a review bench under CJI Ranjan Gogoi (with Justices Khanwilkar, Nariman, Chandrachud, and Malhotra) heard the matter on November 13, 2018. On November 14, 2019, by a 3:2 majority, it referred "overarching constitutional questions" to a larger bench, keeping reviews pending. Justices Nariman and Chandrachud dissented, arguing the reference exceeded review jurisdiction's narrow scope. Concerns arose over a review bench's power to refer pure questions of law.

A nine-judge bench under CJI S.A. Bobde upheld the referral's maintainability on February 10, 2020, affirming the Court's authority, with detailed reasons published on May 11, 2020. The reference framed issues like: What constitutes a religious denomination? Tests for ERP? Interplay of Articles 25 and 26? After delays, hearings recommenced in 2026, with Day 4 on February 16 listed for final arguments on April 7, 2026.

The 9-Judge Bench Hearings: Days 1-3 Highlights

Prior days set the stage. The Solicitor General questioned transformative constitutionalism and constitutional morality , invoked in the 2018 judgment and cases decriminalizing adultery ( Joseph Shine ) and homosexuality ( Navtej Singh Johar ). The Centre highlighted reciprocal exclusions, noting "temples where only women can go," and warned against judicial overreach into "superstitious practices." Day 3 saw the bench observe: "Excluding other denominations from temples will affect Hinduism," and "Sampradayas attached to temple must be followed while visiting it." Justice Nagarathna flagged exclusions potentially violating Article 26's "morality" caveat.

Day 4 Arguments: TDB's Harmonious Construction Thesis

Central to Day 4 was Singhvi's submissions for the TDB, the temple's managing board. He rejected Vaidyanathan's (for NSS et al.) call to overrule Sri Venkataramana Devaru v. State of Mysore (which subordinated Article 26(b) to 25(2)(b)) and declare Article 26(b) supreme. Instead, Singhvi proposed:

"Article 25(2)(b) has to be limited to throwing open Hindu religious institutions of public character. The word entry has to be governed by Article 25(2)(b) to the exclusion of Article 26. After you enter for almost everything, Article 26 will take over."

Entry into public temples is mandated by Article 25(2)(b) for social welfare/reform, barring blanket exclusions under Article 26(b). Post-entry, however, denominational rules govern rituals, especially sanctum sanctorum access. He clarified: "I have entered, because the law is there saying you cannot keep me out. However, after I enter, I say, having entered, I have the right to worship in the sanctum in a particular manner. Then Article 26 will take over."

The TDB's written submissions elaborated:

"Though laws made under Article 25(2)(b), facially appear to violate Article 26(b), harmonious construction is the only methodology available to give some meaning and scope both to Article (25)(2)(b) and Article 26(b). [...] prohibitions qua access to the inner most sanctum sanctorum would still be protected under Article 26(b)."

Singhvi stressed Article 25(2)(b)'s historical intent to end discriminatory entry practices, disagreeing with NSS: "He suggested you can exclude altogether by the beliefs of that denomination. I don't think that is true of entry [...] it will make nugatory a large part of our debates."

He invoked limits: Article 26 rights yield to public order, morality, health—not broader Part III grounds. In individual vs. denominational conflicts, Article 26 prevails as Article 25(1) is subject to Part III.

Key Judicial Observations and Broader Debates

Justice Nagarathna queried: "You are saying that 25(2)(b) is sort of an exception to the freedom under Article 26?" Singhvi affirmed: "Exception in the sense, for all issues regulating entry, you have to go to 25(2)(b). Once you enter, Article 26(b) takes over." She contrasted it with Vaidyanathan and added: "after all persons enter, there can't be discrimination when it comes to serving of food [...] That is also forbidden within Article 25(2)(b)."

Singhvi concurred on Articles 14/15 covering such, but rejected extremes like segregating entrants "1000 yards away [...] use a telescope to see the deity," deeming it unjustifiable under Article 26(b). The bench also addressed non-devotees challenging customs and judicial review of superstitions, affirming it's not barred.

Legal Analysis: Implications for Religious Freedom

This hearing illuminates a potential shift from hierarchical (25(2)(b) trumps 26(b)) to harmonious readings, preserving both. Overruling Venkataramana Devaru could elevate denominational autonomy, limiting State reform to mere entry while safeguarding ERPs. Yet, TDB's carve-out aligns with constitutional text: Article 25(2)(b) targets "public character" institutions, explicitly enabling "throwing open," while Article 26(b) is subject to "morality" et al.

Critically, it reconciles with 2018 Sabarimala findings (no denomination/ERP), but tests broader: Does exclusion fail "morality"? TDB asserts Article 26 withstands Articles 14/15 scrutiny, prioritizing collective over individual rights—a deference to federalism in religious matters.

Potential Impacts on Legal Practice and the Justice System

For practitioners, clarity on Article interplay could standardize challenges to temple customs (e.g., caste/gender bars), spurring litigation under Article 26. Temple boards may invoke post-entry protections, complicating enforcement of reform laws. Broader: Influences "constitutional morality" in progressive rulings; Centre's critique warns of ripple effects on privacy/autonomy cases.

Socially, it tempers 2018's transformative push, protecting diversity (women-only temples) while advancing inclusion. Yet, risks entrenching inequalities if sanctum exclusions normalize discrimination.

Looking Ahead

With arguments listed for April 7, 2026, this reference may redefine India's secular-religious equilibrium, echoing Constituent Assembly debates on reform vs. tradition.

(Word count exceeds 1600 for comprehensive coverage.)