In the Sabarimala temple judgment, the Supreme Court allowed the entry of women into the temple. The matter went into review and has since progressed to a nine-judge bench, with hearings commencing from April 7, 2026 onwards. This bench will decide whether a religious practice claimed to be essential to a religion can be regulated under the law.
It is expected that the discussion will focus heavily upon what is termed “constitutional morality,” and whether an essential religious practice can be regulated under this doctrine.
The Problem with “Constitutional Morality”
“Constitutional morality” is a term that sounds impressive, but I am not comfortable with it.
As it is, the very word “morality” is slippery; it can be ephemeral and subject to changing times and conditions. Therefore, distilling exactly what immutable “constitutional morality” translates to from the Constitution may not provide a sufficiently convincing base if it is sought to regulate even essential religious practices.
Instead, plain principles with underlying solidity would be better to use. These are the principles of justice—or, putting it in the converse, injustice. Practices or acts that are not only unjust, but intolerably unjust, justify regulation under the law.
Examples can be drawn from international law, which uses jus cogens. This refers to peremptory principles from which no derogation is permitted; provisions of treaties are rendered invalid if they go against such principles. These principles are further used to ban acts such as genocide, slavery, and racial discrimination. Notably, the list of acts or practices banned under the principles of jus cogens is not exhaustive.
Proposed Standard for the Court
Instead of using the fanciful phrase “constitutional morality,” it is suggested that the Court should instead examine whether the practice in question—even if essential to the religion concerned—is so unjust as to be intolerable.
If the answer is in the affirmative, the Court should then try to find the least intrusive way to regulate the said practice.
*Sanjay Kumar Singh is a prominent lawyer writing on and analysing critical socio-legal issues. He resigned from civil services after a brief stint in Finance Ministry. He is an alumnus of St. Michael’s High School, Patna and St. Stephen’s College Delhi.
