Govt: Right to religion does not provide for gender equality

In ongoing hearings before a 9-judge Constitution Bench of the Supreme Court on the Sabarimala reference case, the Union Government submitted that the right ...

What Happened

In ongoing hearings before a 9-judge Constitution Bench of the Supreme Court on the Sabarimala reference case, the Union Government submitted that the right to religion under Articles 25 and 26 of the Constitution does not incorporate a guarantee of gender equality.
The government argued that gender equality is already protected under Articles 14 and 15, and does not need to be read into provisions designed for a distinct historical purpose — specifically, the removal of caste-based exclusions from religious institutions.
The government's position was that religious communities may impose gender-based restrictions on religious practices and spaces, and this does not automatically amount to unconstitutional discrimination because such restrictions arise from doctrinal or theological requirements rather than gender stereotypes.
The government further argued that Article 25(2)(b) — which allows the state to legislate for "throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus" — was introduced specifically to address caste-based exclusion (pointing to Constituent Assembly debates of May 1947), and was never intended to address gender discrimination.
The 9-judge bench is examining broader constitutional questions arising from the Supreme Court's 2018 Sabarimala verdict, which had allowed women of all ages to enter the Sabarimala temple, and the review petitions that followed.

Static Topic Bridges

Articles 25 and 26 — Freedom of Religion

Articles 25 and 26 of the Constitution of India guarantee religious freedom to individuals and religious denominations respectively.

Article 25: Guarantees all persons the right to freely profess, practise and propagate religion, subject to public order, morality, health, and other fundamental rights.
Article 25(2)(a): State can regulate secular activities associated with religious practice.
Article 25(2)(b): State can legislate for social welfare and reform, and to throw open Hindu religious institutions to all classes and sections of Hindus.
Article 26: Guarantees every religious denomination the right to establish and maintain institutions for religious and charitable purposes, manage its own affairs in matters of religion, and own and manage property — subject to public order, morality, and health.
The "Essential Religious Practices" (ERP) doctrine, developed through Supreme Court jurisprudence, holds that only practices integral and essential to a religion receive constitutional protection under Articles 25 and 26. Courts determine whether a practice qualifies as an ERP.

Connection to this news: The government's argument turns on the scope of Articles 25 and 26 — specifically, whether gender-differentiated access to religious spaces is protected as an "essential practice" or is subject to override by equality guarantees under Articles 14 and 15.

The Sabarimala Case — Background and Constitutional Questions

Sabarimala is a Hindu pilgrimage site in Kerala where a customary practice had restricted entry to women of menstruating age (10–50 years). The Indian Young Lawyers Association challenged this restriction in the Supreme Court.

In Indian Young Lawyers Association v. State of Kerala (2018), a 5-judge bench of the Supreme Court (4:1 majority) held the restriction unconstitutional, finding it violated Articles 14, 15, 17, and 25(1).
Justice Indu Malhotra, the lone dissenter, held that the courts should not interfere with faith-based exclusions under religious autonomy guaranteed by Article 26.
Review petitions against the 2018 verdict were referred to a 9-judge Constitution Bench in 2019 to decide larger constitutional questions.
The 9-judge bench is hearing the reference from April 2026, examining: (i) the scope of ERP doctrine; (ii) whether religious rights override equality rights; (iii) the limits of state power in reforming religious practices.
The Travancore Devaswom Board, which manages the Sabarimala temple, filed a fresh affidavit in 2026 stating there is no gender bias and the restriction applies only to women of "menstruating age" (not all women), characterising it as theologically grounded.

Connection to this news: The government's affidavit stating that the right to religion does not provide for gender equality is its formal position in the Sabarimala reference — aligning with the view that religious autonomy under Article 26 can legitimately involve gender-differentiated practices.

Articles 14 and 15 — Equality and Non-Discrimination

Articles 14 and 15 form the equality code of the Indian Constitution.

Article 14: Equality before the law and equal protection of the laws — applies to all persons within India's territory.
Article 15(1): Prohibits the state from discriminating against citizens on grounds of religion, race, caste, sex, or place of birth.
Article 15(2): Prohibits discrimination in access to shops, hotels, public restaurants, places of public entertainment, or places maintained wholly or partly out of state funds.
The question in the Sabarimala reference is whether Article 15(2) applies to private religious institutions receiving no state funds — a crucial distinction since Sabarimala is managed by the Travancore Devaswom Board, a statutory body.
Article 17: Abolishes "untouchability" in any form — the Supreme Court in the 2018 Sabarimala verdict controversially applied Article 17 to the restriction on women, treating it analogously to caste-based exclusion. The government's current affidavit contests this interpretation.

Connection to this news: The tension between Article 25/26 (religious freedom) and Articles 14/15 (equality) is the central constitutional question the 9-judge bench must resolve — the government's position is that the equality articles do not automatically prevail over religious freedom in matters of internal religious practice.

Essential Religious Practices (ERP) Doctrine

The ERP doctrine is a judicially evolved test to determine which religious practices merit constitutional protection under Articles 25 and 26.

Established in Commissioner of Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar (1954) — the Supreme Court first used the term "essential practices."
Under ERP, courts determine whether a practice is essential to the religion's identity — not merely incidental or optional.
The doctrine has been criticised by legal scholars for making courts theological arbiters, potentially violating the principle of state neutrality in religion.
The 9-judge bench is expected to reconsider the ERP doctrine's scope and whether it should be applied at all in balancing religious freedom against equality rights.

Connection to this news: The government's argument that gender-differentiated religious restrictions can be permitted rests on the ERP doctrine — if a gender-based exclusion is found to be an essential practice, it would be protected under Article 26 even against equality challenges.

Constitutional History: Article 25(2)(b) and Temple Entry

The Constituent Assembly debates (1946–1949) provide important context for interpreting Article 25(2)(b).

The Temple Entry Proclamation of Travancore (1936) — before the Constitution — opened temples to lower-caste Hindus.
B.R. Ambedkar and other framers inserted Article 25(2)(b) to constitutionally empower the state to legislate for temple access for all Hindus, targeting caste-based exclusion.
The Constituent Assembly debates of May 1947 show that the drafters' focus was on caste discrimination, not gender discrimination — a point the government used to argue the provision was never designed to address gender-based exclusions.

Connection to this news: The government's use of Constituent Assembly debates as interpretive evidence is a "originalist" argument — that the constitutional text should be read in light of its drafters' intent, limiting the scope of Article 25(2)(b) to caste-based reform.

Key Facts & Data

Article 25: Freedom of conscience and free profession, practice and propagation of religion.
Article 26: Freedom to manage religious affairs (religious denominations).
Article 14: Equality before law; Article 15: Prohibition of discrimination on grounds including sex.
Article 17: Abolition of untouchability.
Sabarimala 2018 verdict: Indian Young Lawyers Association v. State of Kerala — 4:1 majority allowed entry of women of all ages.
Reference to 9-judge bench: 2019; hearings resumed April 2026.
ERP doctrine origin: Commissioner of Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar (1954).
Travancore Devaswom Board: statutory body managing Sabarimala temple under Kerala Hindu Religious Institutions Act.
Government's argument: Article 25(2)(b) was designed for caste-based exclusion (Constituent Assembly debates, May 1947); gender equality is protected by Articles 14 and 15 separately.
Shayara Bano v. Union of India (2017): SC struck down instant triple talaq as unconstitutional (Article 14 violated) — a key precedent for balancing religious practice against equality.