Sabarimala Hearing: Sr Adv Shyam Divan Tells SC, "Court Orders Must Comport To Contours of Religious Freedom"

Senior Advocate Shyam Divan, appearing for intervenors representing Hindu, Jain and Christian faiths, made submissions before a 9-judge bench hearing the Sabarimala review petitions.

Divan on Thursday, April 23, told the CJI Surya Kant led bench, “State incursion into the right to freedom of religion is permissible only for stated constitutional purposes that are essentially secular in character and that the incursion cannot result in excessive government entanglement, which fails the test of proportionality".

The bench was further told that five guiding principles laid down by the 9-Judge Bench in I.R. Coelho’s case, ought to be kept in view while interpreting the right to freedom of religion.

Divan argued that while exercising adjudicatory powers in ‘non-judicial review situations’, courts must ensure that their judgments comport to the contours of the right to freedom of religion. Incursions by the State prohibited by Part -III of the Constitution ought not to come through court orders and judgments.

He stated the freedom to manage religious affairs under Article 26 is principally about autonomy. A central notion in human rights law is personal autonomy and by extension group autonomy. The freedom to manage religious affairs assured under Article 26 allows every religious group ‘to establish and maintain institutions’; ‘to manage its own affairs’ ‘to own and acquire ...property’; and ‘to administer such property’. These rights are essential to safeguard the autonomous functioning of religious groups/denominations/sections. The right to autonomy in managing religious affairs protected under Article 26 applies to all religious groups and is subject to only three specific areas of permissible incursion, namely, public order, morality and health, court was further told.

Top Court has further been told that State incursion into the right to freedom of religion is permissible only for stated constitutional purposes that are essentially secular in character. The incursion, as per Divan cannot result in excessive government entanglement, which fails the test of proportionality as denominational autonomy is sacrosanct and must be preserved and protected by the Court.

Last month, after five years of the review petitions being taken up last, the Supreme Court of India today took up the batch of petitions challenging its September 2018 decision wherein a 5-judge Constitution Bench of the Supreme Court by a 4:1 majority had ruled that the traditional ban on women aged 10–50 years entering the Sabarimala temple was unconstitutional. Notably, more than 50 review petitions have filed by devotees, religious groups, and organisations arguing that the Court interfered with essential religious practices as Lord Ayyappa devotees form a separate religious denomination.

The issue dates back to 2006, when Indian Young Lawyers Association had filed a Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (1965 Rules) and sought a direction to permit female devotees between the ages of 10 to 50 years to enter the Sabarimala temple without any restrictions.

By a majority of 4:1, the Supreme Court allowed the Writ Petition on 28 September 2018 holding that the devotees of Lord Ayyappa did not constitute a separate religious denomination and therefore cannot claim the benefit of Article 26 of the Constitution of India. Supreme Court also concluded that exclusion of women between the ages of 10 to 50 years from entry into the temple is violative of Article 25 of the Constitution of India. Further, Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was declared as violative of Article 25 (1) to the Constitution of India and ultra vires Section 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

On 14 November 2019, a five judge Constitution Bench delivered a crucial order by a 3:2 Majority wherein it kept the Review petitions pending without overturning the 2018 judgment and referred larger constitutional questions to a 9-judge bench. The 9-judge bench led by former CJI SA Bobde held that no matter is beyond the jurisdiction of a superior Court of record unless it is expressly shown to be so, under the provisions of the Constitution and held that the review petitions were maintainable.

The Sabarimala review petitions is now one of the most important constitutional debates, balancing gender equality with religious freedom. Instead of immediately revising the 2018 verdict, the Supreme Court has chosen to examine wider questions affecting multiple faiths, making the case a landmark in constitutional and religious jurisprudence. Court has now expanded the issue beyond Sabarimala to include Muslim women’s entry into mosques, Parsi women’s religious rights and Dawoodi Bohra excommunication practices along with other similar issues.

Case Title: KANTARU RAJEEVARU Vs INDIAN YOUNG LAWYERS ASSOCIATION THR.ITS GENERAL SECRETARY MS. BHAKTI PASRIJA AND ORS.

Bench: CJI Surya Kant, Justices B V Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, AG Masih, R Mahadevan, Prasanna B Varale and Joymalya Bagchi

Hearing Date: April 23, 2026