All religious practices presumed protected unless they violate public order, health, morality: Centre in Sabarimala review hearing

The Supreme Court's nine-judge constitution bench, hearing the Sabarimala reference case, articulated a broad principle: all religious practices are presumed...

What Happened

The Supreme Court's nine-judge constitution bench, hearing the Sabarimala reference case, articulated a broad principle: all religious practices are presumed to be protected under Article 25 of the Constitution unless they demonstrably violate public order, morality, or health, or other provisions of Part III.
The bench is re-examining the Essential Religious Practice (ERP) Test — the judicially created standard used since 1954 to determine which practices get constitutional protection — and whether it correctly reflects the text of Article 25.
The reference arose after the 2018 Supreme Court judgment permitting women of all ages to enter the Sabarimala temple, which a review bench referred to a larger bench along with connected cases involving entry of women into mosques, excommunication of Parsi women married to non-Parsis, female genital mutilation practices in the Dawoodi Bohra community, and the practice of Tandava processions by Ananda Marga.
Hearings were ongoing in May 2026 before a bench led by the Chief Justice.

Static Topic Bridges

Article 25: Scope and Internal Limitations

Article 25(1) of the Constitution guarantees all persons "freedom of conscience and the right freely to profess, practise and propagate religion." Crucially, this right is expressly made subject to: (a) public order, (b) morality, (c) health, and (d) the other provisions of Part III of the Constitution.

Article 25 is available to all persons — citizens and non-citizens alike.
"Profess": publicly declaring one's religious beliefs.
"Practise": performing rituals, rites, ceremonies, and modes of worship.
"Propagate": spreading or transmitting religious beliefs — but not the right to coercively convert (see Rev. Stainislaus v. State of M.P., 1977).
Article 25(2) allows the State to regulate: (a) secular activities associated with religious practice, and (b) social welfare and reform.
The word "morality" in Article 25 is currently being re-examined by the nine-judge bench — whether it means "constitutional morality" (the values enshrined in the Constitution) or "popular morality" (prevailing social norms).

Connection to this news: The principle that all practices are presumed protected shifts the burden — it is for the State to justify why a practice should be restricted, not for the individual to prove that the practice is "essential." This is a significant expansion of the default protection under Article 25.

The Essential Religious Practice (ERP) Test: Origins, Application, and Critique

The ERP Test is the primary doctrinal tool used by Indian courts since 1954 to determine the scope of religious freedom protection.

Origin: Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) — commonly called the Shirur Mutt case. The Supreme Court held that Articles 25 and 26 protect essential and integral parts of a religion, distinguishing them from secular activities merely associated with religious practice.
Application by courts: Courts ask whether the practice is so fundamental to the religion that abandoning it would change the religion's essential nature. If yes, it is protected. If no, it falls outside the constitutional shield.
Criticism: The test requires judges to decide what is theologically "essential" — a function arguably outside judicial competence. It has produced inconsistent results across different cases and religions.
Shirur Mutt vs. Durgah Committee conflict: The Durgah Committee, Ajmer v. Syed Hussain Ali (1961) took a narrower view, suggesting courts could look past superstitious or extraneous accretions to religion. The nine-judge bench is resolving this conflict.
Sabarimala 2018: The five-judge bench applied the ERP Test and held that the exclusion of women aged 10–50 from Sabarimala was not an essential practice of the Ayyappa faith, and was therefore not protected under Articles 25 or 26.

Connection to this news: The nine-judge bench is examining whether the presumption should be in favour of protection (as suggested by the plain text of Article 25) rather than placing the burden on petitioners to prove essentiality. This has far-reaching implications for how courts review challenges to religious practices.

Article 26: Rights of Religious Denominations

Article 26 grants rights to "every religious denomination or any section thereof" — distinct from the individual rights under Article 25.

Article 26(a): Right to establish and maintain institutions for religious and charitable purposes.
Article 26(b): Right to manage its own affairs in matters of religion.
Article 26(c): Right to own and acquire movable and immovable property.
Article 26(d): Right to administer such property in accordance with law.
Article 26 is subject to public order, morality, and health — but, unlike Article 25, it is not expressly subject to other Part III provisions (the nine-judge bench is examining this asymmetry).
A "religious denomination" requires: a common faith, common organisation, and designation by a distinctive name (Shirur Mutt case).

Connection to this news: The Sabarimala reference also examines whether Article 26 rights of a denomination can be overridden by Article 14 (equality) — specifically, whether exclusionary practices protected under Article 26(b) violate the equality guarantee. The nine-judge bench's ruling will settle the hierarchy between Articles 14, 25, and 26.

Constitutional Morality vs. Popular Morality

A central issue before the nine-judge bench is the meaning of "morality" in Articles 25 and 26.

Popular morality: The prevailing social and cultural norms of society at a given time. Applying popular morality would allow majoritarian sentiment to restrict minority religious practices.
Constitutional morality: The values embedded in the Constitution itself — equality, dignity, non-discrimination, fraternity. Dr. B.R. Ambedkar invoked "constitutional morality" in the Constituent Assembly debates as a check against popular impulses.
The Supreme Court in Navtej Singh Johar v. Union of India (2018) — the Section 377 judgment — held that "constitutional morality" must prevail over "popular morality" in matters touching fundamental rights.
The nine-judge bench is applying this principle to religious freedom: the State's restriction of a religious practice must be justified by constitutional morality, not merely popular disapproval.

Connection to this news: If the bench adopts constitutional morality as the operative standard under Article 25, restrictions on religious practices based solely on majoritarian sentiment would be unconstitutional.

Key Facts & Data

Nine-judge constitution bench: Led by Chief Justice Surya Kant; hearing ongoing in May 2026.
Sabarimala 2018 judgment: Permitted entry of women of all ages; referred to a nine-judge bench on review.
ERP Test origin: Commissioner v. Lakshmindra Thirtha Swamiar (Shirur Mutt case, 1954).
Conflicting precedent: Shirur Mutt (1954) vs. Durgah Committee (1961) — nine-judge bench to resolve.
Article 25(1): Freedom of conscience, and right to profess, practise, and propagate religion — subject to public order, morality, and health.
Article 26: Rights of religious denominations — subject to public order, morality, and health.
The bench's ruling will also govern: entry of women into mosques, excommunication of Parsi women married to non-Parsis, FGM in the Dawoodi Bohra community.
Navtej Singh Johar v. Union of India (2018): Constitutional morality must prevail over popular morality.
Key question: Whether "morality" in Articles 25 and 26 means constitutional morality or popular morality.