Right To Practice Religion Flows From Individual Freedom Of Conscience: SC During Sabarimala Hearing
A nine-judge Constitution bench made oral observations while hearing petitions related to discrimination against women at religious places
By Sumit Saxena
Published : April 17, 2026 at 8:54 PM IST
New Delhi: The Supreme Court on Friday observed that while a believer is unlikely to question the rationality of a religious practice, it asked whether that rationality can be examined if the challenge comes from a non-believer.
While hearing questions arising from the Sabarimala review petitions, the apex court underscored that the right to freely profess, practice and propagate religion flows from freedom of conscience, and this freedom of conscience must first be formed before an individual can freely choose to exercise those rights. The apex court further observed that denominational practices can be subject to judicial scrutiny.
A nine-judge Constitution bench made oral observations while hearing petitions related to discrimination against women at religious places, including the Sabarimala Temple in Kerala, and on the ambit and scope of religious freedom practised by multiple faiths.
The bench comprises Chief Justice Surya Kant and justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan, and Joymalya Bagchi. The bench heard arguments from senior advocates Rajeev Dhavan, V Giri, and M R Venkatesh.
During the hearing, Justice Nagarathna asked Dhavan, "Can, at the instance of a non-believer, the rationality of a religious practice be gone into?"
Dhavan said the cause of action will be with the believer and added, “Suppose there is an Indian lawyers’ association which says look we are derivative and we are putting that claim. They will have locus”.
Justice Nagarathna further observed, but the believer will never question the rationality of that practice. Dhavan insisted that the cause of action of entry will always be with the believer. “See, the aggrieved person cannot be on the principles of the Constitution. It has to be on the question of religious practice because just before lunch, you said the rationality of the practice, etc., cannot be gone into…”, said Justice Nagarathna.
Dhavan clarified that he was not arguing on rationality and added that when a non-member of the faith represents the cause of a member, this is the derivative PIL. “I am a Hindu who represented Muslim in the Babri Masjid (case)…. Of course, I started getting excreta parcels at home, and I was attacked in court, and your lordships asked me, do I need security. And, I said no. Now the question is, I represent them that is derivative”, said Dhavan.
Justice Nagarathna said she is not on counsel representing rather on parties coming to the court, knocking on the doors of the court. Earlier in the day, Dhavan made submissions regarding the freedom of conscience. Justice Nagarathna asked Dhavan, "Is he saying conscience is something larger than religion? Should conscience take the colour of religion?"
“Are you hinting that as judges, as a constitutional court, religion and conscience cannot be equated for the reason that religion may be very personal to me but then when I have to judge, I have to rise above that religious consciousness to a level where I balance it with the constitutional provision and then see the larger picture emerging from that”, observed Justice Amanullah.
“Per se, everything has been focused that when it is religion, don't touch. Probably as constitutional authority and in the scheme of the Constitution, we are called upon to get into the area of conscience also, and that probably may not be restricted by the term religion," Justice Amanullah observed further.
Dhavan said your lordships have a persona as a judge which goes across the Constitution, and your lordships do not have to exercise your conscience on this, and just to have interpret conscience. Dhavan said freedom of conscience is a separate right, and religious right is a separate right.
Justice Sundresh said, entitled to freedom of conscience and then the right to freely to profess, practice, and propagate. “Actually, if you see, it is only from the freedom of conscience emanates right freely to profess, practice, and propagate. Conscience has to be formed, then you make your own choice. And, then the freedom will come to profess, practice….”, observed Justice Sundresh.
Dhavan argued further, “Can you verify if God exists? Can you verify spiritual experience? You cannot verify these things. Therefore, superstitious beliefs have to be accepted as part of the law”. Dhavan further argued that there is a huge confusion about applying the concept of denomination. Justice Kumar then observed, "Denominational practices can be subject matter of judicial scrutiny."
Senior advocate V Giri, representing Sabarimala Achara Samrakshna Samiti, contended that there is a collective wisdom that has been followed for years and years in exclusion of women aged between 10 and 50 not being allowed in the Sabarimala temple.
Giri submitted that every temple has its own distinct characteristic, and the maintenance of those characteristics is part of the worship. The hearing in the matter will continue next week.
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