During the hearing before a nine-judge bench of the Supreme Court, Senior advocate Aravind Datar appearing for the Nair Service Society argued that the term “morality” under Articles 25 and 26 of the Constitution should not be interpreted as “constitutional morality.”

Confined to the limited question referred to the bench, he submitted that there are multiple reasons why such an interpretation would be incorrect, including constitutional history, text, and subsequent legal developments. Referring to only 3 instance of appearing ‘constitutional morality” in constitutional debates, Sr adv Datar Submittes:

“The founding fathers would never have contemplated morality to mean constitutional morality.”

He further submitted that the constitutional scheme itself preserves existing customs and usages, particularly in the context of religion:

“The Constitution recognized that there are customs and usages which may appear contrary to fundamental rights, but it has specifically saved them.”

Drawing attention to Articles 13, 25(2), and 16(5), it was argued that pre-constitutional practices having the force of law were consciously protected, and any reform was intended to be undertaken by the legislature, not through judicial reinterpretation.

On the meaning of “morality,” Mr Datar emphasized that across statutes and constitutional provisions, the term has consistently been understood as “social morality” rather than constitutional morality:

“Morality used in Articles 25 and 26 must be legislative or social morality, not constitutional morality…Constitutional morality is a nebulous concept… it has no fixed meaning and is used in multiple contexts.”

He then submitted in the support of the existing practice restricting entry of women of a particular age group at Sabarimala and argued that such a practice is constitutionally protected as a custom. He relied on historical and legal backing:

“There is evidence in the 1993 Kerala High Court judgment… they examined evidence and held that in this particular temple alone, women are not allowed during a specific period…It is a myth that women are not allowed at all… only during specific days and periods.”

He further argued that the Travancore-Cochin law (1950) and subsequent rules explicitly preserved such customs, even when laws opened temples to all sections, exceptions were retained where custom required

“Even when they made a law for social welfare and reform, they respected that particular practice for a particular temple.”