India has grappled for years with the question of secularism–from its inclusion in the Preamble to its inclusion in governance. Where are the lines drawn, between state and religion, and how? Who gets to draw them?

These are but some of the questions the court wrestled with in Indian Young Lawyers Association v. State of Kerala[i], or, as it is more popularly known, the Sabarimala case–and continues to, in the review petition in place this year. It is concerned not just with social reform (is it valid for women to be excluded entry into a place of worship on religious grounds?) but the testing of legal boundaries (can the judiciary, or the government, insist against a religious practice due to its apparent inequality?)

Though now challenged, these questions had once found their answer in the original Sabarimala judgment. It follows, then, that its underlying logic demands interaction as well, in order to determine what, how, and why of the dispute.

A Brief Overview

In 2018, per the judgment in Indian Young Lawyers Association v. State of Kerala, the Sabarimala temple’s long-held custom excluding the entry of women between the ages of ten and fifty years old was struck down by a Supreme Court ruling, on account of violating the freedom of worship of the female devotees (Article 25), and imposing a unique form of untouchability (Article 17).

Though several review petitions were filed immediately following the judgment, the case was only listed for arguments this year (2026). Arguments remain undergoing.

Constitutional Liberty and Morality

SG Tushar Mehta opens his written submission to the Court in 2026 just as Justice D.Y. Chandrachud had opened his judgment in 2018: referencing the Preamble, and all its promises to the citizens of India; of justice, liberty, and equality. While the respected Solicitor-General’s argument references, specifically, its unequivocal conferral of liberty to “WE THE PEOPLE OF INDIA” of, inter alia, “belief, faith and worship”, Chandrachud J. opts for a more holistic reading: that these principles do not exist independent of each other, but as pieces of a whole. In other words, that “liberty in matters of belief, faith and worship, must produce a compassionate and humane society marked by the equality of status among all its citizens”.

By implication, then, liberty cannot override any other right, but must seek co-existence. This co-existence means keeping what he refers to as “mob morality” from overriding the dignity of the individual, or controlling their self-expression. Altogether, Chandrachud J.’s opinion focuses on the spirit of the law, speaking at length of the intention of the Constitution makers, and how their vision of equality was inextricably tied to social transformation.

This bleeds into his interpretation of religious freedom as well. A technical reading of Articles 25 and 26 of the Constitution subjects religious freedom to three primary exceptions: public order, morality, and health. While 25 (religious freedom of the individual) carves out a general exception for other fundamental rights as well, 26 (religious freedom of the denomination) notably lacks this distinction. This has been used to argue that the right is thus disconnected from other fundamental freedoms, which Chandrachud J., in his opinion, rejects. Reaching again for intention over technicality, he says: “Co-existence of freedoms is crucial, in the ultimate analysis, to a constitutional order which guarantees them.”

All these ideas evolve into the singular notion of “constitutional morality”, which is his reference for determining the validity of a practice. Rather than public morality, which is felt to be “transient and fleeting”, and sometimes even “deeply offensive to individual dignity and human rights”, this would be based on the founding principles of the Constitution (justice, liberty, equality, fraternity, and secularism).

While altogether admirable in their pursuit, the ideas presented in the judgment have faced criticism for their novelty, and for not finding sufficient ground in text of the Constitution. Indeed, ‘morality’ in the legal context has always been understood as shorthand for ‘public morality’. Chandrachud J.’s rejection of it in favor of a constitutional counterpart is speculative: that the draftspersons of the Constitution could not have intended for morality to be subject to the whims of time, but something more permanent, more reliable.

This is a risky interpretation. Public morality is already difficult to assess, but constitutional morality means giving courts and judges the final say–who is more qualified to understand the Constitution than them? Yet, with this comes the possibility of judicial overreach. The Sabarimala case is concerned with a religious practice, but what about legislation? What about the freedoms under Article 19, subject to the same exceptions? How will they be affected by new notions of morality?

All the same, courts have a duty to protect the dignity of each citizen, even if this should mean going against the grain. The publicly accepted character of a practice, or a belief, or a movement, should not lend it greater credence if it argues against the rights of a people. Certainly, even if his point may rest disproven, a public morality that argues against the spirit of the Constitution hardly seems tenable.

The Essential Religious Practice Test

In terms of legal tests, the ERP test is a rather contentious one, both for its contents and the power it cedes to courts. It distinguishes between essential and non-essential practices of a religion, based on their obligatory nature. That is to say: a religious practice is only afforded protection under Article 25 if it is certifiably essential to that religion; if, without it, the religion’s character would be altered. If based on any other ground, the Legislature could, in theory, prohibit it, as seen in Mohd Hanif Quareshi v State of Bihar[ii]and the practice of cattle slaughter, or Shayara Bano vs. Union of India[iii], and triple talaq. Notably, both practises were abolished due to their social character and its opposition to public policy/morality–the same grounds argued in Sabarimala.

For Sabarimala, Justice D.Y. Chandrachud deals with the test on, essentially, two grounds. First, the obvious one: the essentiality of the non-entry of women ages ten to fifty; and second, building off of his notion of morality, the constitutional validity of such a claim.

The first is easily dismissed, on the basis that there have been cases allowing women entry into the Sabarimala temple, and that the religious texts cited only proved the celibacy of the deity, Lord Ayyappa. The second once again wrestles with the secular and the religious–specifically, that the essentiality of religious practices should be in conversation with the rights guaranteed under the Constitution, and not just a thing in and of itself. “It is the duty of the courts,” he says, “to ensure that what is protected is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality.”

As earlier, there is a preference for a gestalt-like understanding of constitutional rights. They are to be read like a system of checks and balances, never letting one undermine the other–and, when a conflict arises, “the quest for human dignity, liberty and equality must prevail.”

Yet, despite using it as foundation for his claim, Chandrachud J. himself admits to the flaws inherent to the ERP test. The domain of the courts is judicial, not ecclesiastical, and debating theology might be asserting authority where it has none. The 2026 review petition suggests abolishing the test altogether–if a practice is found to be religious, then the inquiry should stop there, instead of debating essentiality–though such extreme measures could override any future attempts at social reform.

Reading Article 17

Untouchability under Article 17 has always been understood, by courts and scholars alike, as exclusive to the caste system. Yet, in his opinion, Justice D.Y. Chandrachud extends it to the exclusion of women from entry for menstruation-based impurity. As with his other major conclusions across the judgment, instead of being derived strictly from the letter of the law, the argument is built with diverse sources: assembly debates, discussions about intention, and the spirit of the Constitution.

Here, he cites the choice of the framers to leave “untouchability” undefined, instead of attributing to it a religious dimension–that the intent was to abolish it in all its forms, “whether it was untouchability within a community or between various communities”.

The inference here is that “untouchability” is to be understood more generically, as representative of all forms of social discrimination or exclusion based on outdated notions of purity/impurity. 

There is fragility to this argument, though, for assuming the silence of the Constitution makers is endorsement, on the matter of giving untouchability a wider definition than it is understood to have. It is, furthermore, made redundant by the protections already available under Articles 14, 15, 25, and 26. The judgment understands Article 17 in terms of its symbolic value for relevant incorporation; as a summation of the revolt of the oppressed, and a guarantee of equality and dignity for all.

Yet, if symbolic value is what the judgment gives weight to, it finds opposition here as well. Feminist scholars, observing the verdict from an anti-caste standpoint, have remarked on the inherently Brahminical logic of treating temple entry as the marker for women’s liberation; how it might be platitudinous in a country like India. The judgment still treats the temple as a point of access for dignity, thereby reinforcing the same system it sets out to reject.

Conclusion

While there are vulnerabilities in Justice D.Y. Chandrachud’s judgment–ones that have been brought to the forefront over the course of the 2026 review petition–they do not truly take away from the foundational belief of social inclusion and reform it is built on. An imperfect constitutional instrument can still produce a defensible outcome if the underlying values are sound, and courts have preferred social progress over strict religious protection in the past–the ERP test is testament to the fact, for all its flaws.

Even if ‘constitutional morality’ is non-existent within the Constitution, it is still borne from the fundamental rights it promises to citizens. Similarly, even if ‘mob morality’ is an abject outlook, it is true that majoritarianism cannot and should not override individual liberties. Or the ERP test, which the court has concurred in the review petition would benefit from a social reformist approach than a religious one, not necessarily abolition. In the end, like the parts that make it, the Sabarimala judgment, for all its weaknesses, does not necessarily warrant overhauling.

[i] Indian Young Lawyers Association v. State of Kerala 2018 INSC 908.

[ii] Mohd Hanif Quareshi v State of Bihar 1958 INSC 50

[iii] Shayara Bano vs. Union of India 2017 INSC 4609