Senior Advocate Neeraj Kishan Kaul, appearing for review petitioners before the Supreme Court 9-judge Bench, argued that the constitutional standard of health, public order and morality sets a high threshold for state intervention and cannot be based on anyone’s hypersensitivities. He submitted that conduct must rise to a level that is “abhorrent to civilised society,” as the threshold is high for the state’s intervention.
Mr Kaul also emphasised that Article 26 grants denominational autonomy subject only to “public order, morality and health,” unlike Article 25, which is expressly subject to other fundamental rights. Reading additional limitations into Article 26, he argued, would “render the difference between Articles 25 and 26 otiose” and amount to a “judiciary-engineered expansion of state power beyond what the text authorises.”
Mr Kaul emphasised that Article 26 guarantees autonomy to religious denominations and is limited only by “public order, morality and health,” unlike Article 25, which is expressly subject to other fundamental rights. He argued that importing additional restrictions into Article 26 would blur this distinction. Such expansion, he said,
“render the difference between Articles 25 and 26 otiose, and effectively create a judiciary-engineered expansion of state power beyond what the text authorises. A religious denomination right presupposes a high threshold of collective identity.”
He stressed that denominational rights inherently include the ability to preserve identity, including the right to exclude. Accordingly, individual claims under Article 25 cannot override a denomination’s rights under Article 26(b) unless one of the three constitutional grounds is triggered.
On constitutional morality, Mr Kaul cautioned against using it as an independent ground to limit religious freedom. He described it as a principle that ensures adherence to core constitutional values like liberty, equality and fraternity, but submitted that it “cannot serve as a tool to import an additional restriction into Articles 25 and 26.” Introducing it into the text, he argued, would bring in broader constitutional considerations not contemplated by the framers.
Responding to the bench, Kaul acknowledged that the state may regulate religious practices under Article 25(2)(b) on grounds of public order, morality and health, but underscored that such power is limited.
“When the state regulates under article 25(2)(b), it regulates a right of the denomination, keeping in mind public order, health, and morality. But it can’t say that I will reform a religion or a denomination out of existence,” he submitted.