Indian Young Lawyers Association & Ors. vs The State of Kerala & Ors.

Arts. 25, 26 and 15 –Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 – ss. 3, 4 – Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 – r. 3(b) – Sabarimala temple wherein idol of Lord Ayyappa installed – r 3(b) protecting custom and usage which prohibit entry of women between the age of 10 to 50 years to Sabrimala temple, based upon a biological ground of menstruation – Validity of – Held: (Per Dipak Misra, CJI) s. 3 being a non-obstante clause stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary – Language of both the s. 3 and the proviso to s. 4(1) clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship – Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed u/Art. 25(1) – Thus, r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also ultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates an exception to the effect that the regulations/rules made u/s. 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class – Said practise is violative of the fundamental right of Hindu women to freely practise their religion under Art. 25(1) and exhibit their devotion towards Lord Ayyappa – This denial denudes them of their right to worship – Held: (Per Nariman, J.) Custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Art. 25(1), and violative of the 1965 Act – r. 3(b) whereby women by custom and usage are not allowed to enter a place of public worship, is unconstitutional being violative of Art. 25(1) and Art. 15(1) – Practice or usage of keeping out women is violative of s. 3 and is struck down – Since proviso to the Section is not attracted on the facts of the case, and since the said Act is clearly a measure enacted u/Art. 25(2)(b), any religious right claimed on the basis of custom and usage as an essential matter of religious practice u/Art. 25(1), will be subject to the law made u/Art. 25(2)(b) – Held: (Per Chandrachud, J.) Notifications issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and are even otherwise unconstitutional – Hindu women constitute a ‘section or class’ of Hindus u/s. 2 – Rule 3(b) of enforces a custom contrary to s. 3, which directly offends the right of temple entry established by s. 3, thus, is ultra vires the 1965 Act – Claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality – Exclusionary practices are contrary to constitutional morality – Practice of excluding women from the temple at Sabarimala is not an essential religious practice – Social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values – Held: (Per Indu Malhotra J.: Dissenting) Denial of entry of women in the age group of 10 to 50 years in Sabarimala temple is not violative of Art. 14 – Sabarimala temple constitutes a religious denomination – Practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at Sabarimala Temple – r.3(b) is a statutory recognition of a pre-existing custom and usage being followed by this Temple – r. 3(b) is within the ambit of the proviso to s. 3. Art. 26 – Religious denomination – Determination of – Devotees of Lord Ayyappa, if constitute a religious denomination – Held: (Per Dipak Misra, CJI) Devotees of Lord Ayyappa do not have an identified group or sect – They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well–being, other than those which are common to the Hindu religion – Thus, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination – Held: (Per Nariman, J.) There is no distinctive name given to the worshippers of Sabrimala temple; there is no common faith in the sense of a belief common to a particular religion or section thereof; or common organization of the worshippers of the Sabarimala temple so as to constitute the said temple into a religious denomination – Also, there are over a thousand other Ayyappa temples in which the deity is worshipped by practicing Hindus of all kinds – Thus, Article 26 not attracted – (Per Chandrachud, J.) Worship of the presiding deity is not confined to adherents of a particular religion – Practices associated with the forms of worship do not constitute the devotees into a religious denomination – Considering the inability of the collective of individuals to satisfy the judicially-enunciated requirements, the set of individuals who refer to themselves as “Ayyappans” or devotees of Lord Ayyappa as a ‘religious denomination’ cannot be recognized – Held: (Per Indu Malhotra J.: Dissenting) If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practices, and having a collection of followers who follow the same faith, it would be identifiable as a religious denomination – On facts, respondents have made out a strong and plausible case that the worshippers of the Sabarimala Temple have the attributes of a religious denomination, or sect thereof.

Arts. 25 and 26 – Essential Religious Practices under Art. 25 – Determination of – Practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple – Held: (Per Dipak Misra, CJI) There seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and thus, it cannot be treated as an essential practice – On the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity – Moreso, in the absence of any scriptural or textual evidence, the exclusionary practice followed at the Sabarimala temple, cannot be accorded the status of an essential practice of Hindu religion – By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner – Held: (Per Nariman, J.) Only the essential part of religion, as distinguished from secular activities, is the subject matter of the fundamental right – Matters essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief – One test would be to remove the particular belief stated to be an essential belief from the religion, would the religion remain the same or would it be altered – In case religious activities are mixed up with secular activities, the dominant nature of activity test is to be applied – Court to take a common sense view and be actuated by considerations of practical necessity – Held: (Per Chandrachud, J.) In determining the essentiality of a practice, it is to be considered whether the practice is prescribed to be of an obligatory nature – If a practice is optional, it cannot be said to be ‘essential’ to a religion – If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an ‘essential’ part of that religion – Texts and tenets do not indicate that the practice of excluding women is an essential part of the religion – Practice of excluding women is not uniform and militates against a claim that such practice is obligatory – Hence, no fundamental change in character of religion – Essential religious practices test enables the Court to adopt a reformist vision of religion even though it may conflict with the views held by the religion – Competence of the Court to do so and the legitimacy of the assumption of that role may be questionable – Test merits a closer look in future – Held: (Per Indu Malhotra J.: Dissenting) ‘Essential practises test’ have to be determined by the tenets of the religion itself – Practises followed since time immemorial, which may have been scripted in the religious texts of this temple, are to be regarded as “essential”, and afforded protection u/Art.

25 – Thus, the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at Sabarimala Temple. Art. 25(1) – Expression ‘all persons under’ – Meaning of – Held:(Per Dipak Misra, CJI) Expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Art. 25(1) itself, to every person including women – Rights guaranteed u/Art. 25(1) has nothing to do with gender – Held: (Per Nariman, J.) Art. 25 recognises a fundamental right in favour of “all persons” which has reference to natural persons – Every member of a religious community has a right to practice the religion so long as he does not, in any way, interfere with the corresponding right of his co-religionists to do the same. Art. 25(1) – Expression – Held: (Per Chandrachud, J.] ‘all persons under’ – By all persons, the Constitution means that every individual in society without distinction of any kind is entitled to a freedom of conscience and to freely profess, protect and propogate religion – Three defining features of clause (1) of Article 25 are, first, the entitlement of all persons without exception; second, the recognition of an equal entitlement; and third, the recognition both of the freedom of conscience and the right freely to profess, practice and propogate religion.

Art. 17 – Untouchability– Denial of entry to women in the age group of 10 to 50 in the Ayyappa temple at Sabarimala, if a manifestation of “untouchability” and thus, violative of Art. 17 – Held: (Per Chandrachud, J.) Art. 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form” – Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime - Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of social exclusion – It is a form of untouchability which is an anathema to constitutional values – Held: (Per Indu Malhotra J.: Dissenting) Limited restriction on the entry of women during the notified age-group does not fall within the purview of Art. 17 – Art. 17 refers to practice of untouchability as committed in the Hindu community against Harijans or people from depressed classes, and not women – Restriction on women within a certain age-band, is based upon the historical origin and beliefs and practices of the sabrimala temple, on the unique characteristic of the deity, and not founded on any social exclusion – Women of the notified age group are allowed entry into all other temples of Lord Ayyappa. Art. 25(1) – Term ‘morality’ in Art. 25(1) – Held: (Per Dipak Misra, CJI) Cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean – Since the Constitution has been adopted and given by the people of this country to themselves, the term public morality in Art. 25 has to be appositely understood as being synonymous with constitutional morality – Notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to

50 years by denying them their legal right to enter and offer their prayers at the Sabarimala Temple.

Art. 25(1) – Term ‘morality’ – Held: (Per Chandrachud, J.) Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights – Individual dignity cannot be allowed to be subordinate to the morality of the mob and should not vary in accordance with the popular fashions of the day – Overarching sense of constitutional morality with the quest for human dignity, liberty and equality must prevail. Arts. 25(2)(b) and 26(b) – Right to manage its own affairs in matters of religion under Art. 26 – Held: (Per Nariman, J.) Right granted u/Art. 26 to be harmoniously construed with Art. 25(2)(b) – Right to manage its own affairs in matters of religion granted by Art. 26(b), to be subject to laws made u/Art. 25(2)(b) which throw open religious institutions of a public character to all classes and sections of Hindus – Thus, even though the entry of persons into a Hindu temple of a public character would pertain to management of its own affairs in matters of religion, yet such temple entry would be subject to a law throwing open a Hindu religious institution of a public character owned and managed by a religious denomination or section thereof to all classes or sections of Hindus – However, religious practices by the religious denomination or section thereof, which do not have the effect of either a complete ban on temple entry of certain persons, or are otherwise not discriminatory, may pass muster u/Art. 26(b).

Art. 25(2)(b) and 26(b) – Right to manage its own affairs in matters of religion u/Art. 26 – Held: (Per Chandrachud, J.) Absence of a clause of subjection in Article 26 does not lead to the conclusion that the freedom of a religious denomination exists as a discrete element, divorced from the others freedoms – Article 26 is one among a large cluster of freedoms which the Constitution has envisaged as intrinsic to human liberty and dignity – Freedom of religious denominations under Article 26 must be read in a manner which preserves equally, other individual freedoms – Dignity of women which an emanation of Article 15 and a reflection of Article 21 cannot be disassociated from the exercise of religious freedom under Article 26.

Art. 32 – Writ petition under – Issue that women who happen to be between the ages of 10 and 50, not allowed entry into the temple at Sabarimala – Plea raised that that the Court should not decide this case without any evidence being led on both sides – Held: (Per Nariman, J.) Evidence is very much there, in the form of the writ petition and the affidavits filed in the writ petition by the petitioners as well as by the Board, and by the Thanthri – Writ petition filed is itself not merely a pleading, but also evidence in the form of affidavits that are sworn.

Arts. 25 and 26 – Engagement of essential religious practices with constitutional values – Exclusion of women between the age group ten and fifty from the Sabarimala temple – Held: (Per Chandrachud, J.) Exclusion is destructive of dignity – To exclude a woman from the might of worship is fundamentally at odds with constitutional values – Physiological features of a woman have no significance to her equal entitlements under the Constitution – Menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood – Menstrual status of a woman is deeply personal and an intrinsic part of her privacy – Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated.

Art. 13 – Term ‘laws in force’ – Custom or usage if falls within the ambit of ‘laws in force’ u/Art.13(1) – Plea that the exclusion of women from the Sabarimala temple constitutes a custom, independent of the Act and the 1965 Rules – Held: (Per Chandrachud, J.) Carving out ‘custom or usage’ from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity – Decision in Narasu case that custom or usage not included in the ambit of laws in force, is based on flawed premises – Custom or usage cannot be excluded from ‘laws in force’– Decision in Narasu case, in immunizing uncodified personal law and construing the same as distinct from custom, overlooked the wide ambit that was to be attributed to the term ‘laws in force’.

Arts. 25 and 26 – Deity as a bearer of constitutional rights – Held: (Per Chandrachud, J.) Word ‘persons’ in certain statutes have been interpreted to include idols – Merely because a deity has been granted limited rights as juristic persons under statutory law does not mean that the deity necessarily has constitutional rights – Deity may be a juristic person for the purposes of religious law and capable of asserting property rights – However, deity is not a ‘person’ for the purpose of Part III.

Arts. 32, 25 and 14 – PIL filed challenging the practise of restricting the entry of women in the age group of 10 to 50 years in the Sabarimala Temple – Maintainability and justiciability of – Held: (Per Indu Malhotra J.: Dissenting) Right to move the Supreme Court u/Art. 32 for violation of fundamental rights, must be based on a pleading that the petitioners’ personal rights to worship in this Temple have been violated – This is an essential requirement to maintain the challenge – Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect – In matters of religion and religious practises, Art. 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect – Petitioners–association/Intervenors do not claim to be devotees of Lord Ayyappa in the Sabarimala Temple, who are aggrieved by the practises followed in the Sabarimala Temple.

Art. 14 – Matters of religion and religious practice – Applicability of Art. 14 – Denial of entry to women in age group of

10 to 50 years in Sabrimala temple – Held: (Per Indu Malhotra J.: Dissenting) Is not violative of Art. 14 – Religious customs and practises cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein – Religious community is to decide as to what constitutes essential religious practice – Equality in matters of religion to be viewed in the context of the worshippers of the same faith – It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil – Right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is no similar restriction in those temples. Art. 15 – Prohibition of discrimination on grounds of religion, race, caste or sex – Applicability of Art. 15 – Submission that Sabrimala temple would be included in phrase ‘places of public resort – Held: (Per Indu Malhotra J.: Dissenting) Cannot be accepted – Conscious decision by the Constituent Assembly not to include ‘places of worship’ or ‘temples’ within the ambit of draft Article 9, to be given due consideration.

Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965:

r.3(b) – Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 – s. 3 – r. 3(b) whereby women by custom and usage not allowed to enter a place of public worship – r. 3(b) if ultra vires s. 3 of the 1965 Act, whereby places of worship to be open to all section and classes of Hindus – Held: (Per Dipak Misra, CJI) r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also ultra vires s. 4 of the 1965 Act – Held: (Per Nariman, J.) Rule 3(b) is ultra vires of s. 3 of the 1965 Act, and is hit by Art. 25(1) and by Art.15(1) as this Rule discriminates against women on the basis of their sex only – Held: (Per Chandrachud, J.) Term ‘includes’ in s.2(c) has to be given a broad interpretation – The expression ‘section or class’ includes women – Proviso to s.3 creates an exception – Lord Ayyappa do not constitute a religious denomination and the Sabrimala temple is not a denominational temple – Hence, notifications issued by the Board prohibiting the entry of woman between ages ten and fifty-five, are ultra vires s.3 – Rule 3(b) gives precedence to customs and usages which allow the exclusion of women “at such time during which they are not allowed to enter a place of public worship” – In laying down such a prescription, Rule 3(b) directly offends the right of temple entry established by Section 3, thus, r. 3(b) is ultra vires the Act – Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is not ultra vires s. 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion – Declaration that places of public worship shall be open to Hindus of all sections and classes is not absolute, but subject to the right of a religious denomination to “manage its own affairs in matters of religion” – r.3(b) is a statutory recognition of a pre-existing custom and usage being followed by this Temple – r. 3(b) is within the ambit of the proviso to s. 3. r. 3(b) whereby women not allowed to enter a place of worship – Challenged to, as being violative of constitutional morality – Held: (Per Indu Malhotra J.: Dissenting) Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion – Equality and nondiscrimination are facet of Constitutional Morality, which cannot be viewed in isolation – Balance is to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Arts 25 and 26 to persons belonging to all religions in a secular polity, on the other hand – Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined – It is the Constitutional duty of the Court to harmonise these rights. Judicial Review: Matters concerning religion and religious practice under the secular constitutional set up – Role of courts – Held: (Per Indu Malhotra J.: Dissenting) Is to afford protection u/Art. 25(1) to those practises which are regarded as “essential” or “integral” by the devotees, or the religious community itself – Art. 25(2)(b) permits the State to redress social inequalities and injustices by framing legislation –Art. 25(2) permits State made law on the grounds specified therein, and not judicial intervention – On facts, practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabrimala temple are considered to be essential or integral to that Temple – Any interference with the same would conflict with their right guaranteed by Art. 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’ – Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity – Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs – It would amount to rationalising religion, faith and beliefs, which is outside the ken of the courts.

Allowing the Writ Petition, the Court

HELD: Per Dipak Misra CJI (for himself and Khanwilkar J.):

Followers of Lord Ayyappa do not constitute a religious denomination:

1.1 In view of the law laid down by this Court in Shirur Mutt’s case and S.P. Mittal’s case, the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. [Para 144 (i)][673-D-E]

1.2 For any religious mutt, sect, body, sub-sect or any section thereof to be designated as a religious denomination, it must be a collection of individuals having a collective common faith, a common organization which adheres to the said common faith, and last but not the least, the said collection of individuals must be labeled, branded and identified by a distinct name. The most important condition for a religious denomination, i.e., the collection of individuals ought to have a system of beliefs or doctrines which they regard as conducive to their spiritual wellbeing. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account. [Paras 94, 96][655-E-F; 656-A-C]

1.3 The submission that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and, therefore, the third condition for a religious denomination stands satisfied, is unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. There are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect. Thus, the Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. [Para 95][655-F-H]

S.P. Mittal v. Union of India and others (1983) 1 SCC

51 : [1983] 1 SCR 729; The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005 – relied on.

Nallor Marthandam Vellalar and others v.

Commissioner, Hindu Religious and Charitable

Endowment and others (2003) 10 SCC 712 : [2003]

1 Suppl. SCR 920 – referred to.

Enforceability of Fundamental Rights u/Art. 25(1) against the Devaswom Board

2.1 Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the Travancore Cochin Hindu Religious Institutions Act, 1950 vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, has been unveiled as ‘other authority’ within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple. [Para 97][656-D-E]

2.2 Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. It needs to be understood that the kernel of Article 26 is ‘establishment of a religious institution’ so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practise religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors, specifically attributable to women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise a religion as guaranteed under Article 25(1). [Paras 98, 99, 100][656-F-H; 657-B] Rev. Stainislaus v. State of Madhya Pradesh and others (1977) 1 SCC 677 : [1977] 2 SCR 611; The

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005 – referred to.

2.3 The practice of exclusion of women from entry into religious places violates the right of women to visit and enter a temple to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship. The right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. [Paras 101][657-C-E]

Nar Hari Shastri and others v. Shri Badrinath Temple Committee AIR 1952 SC 245 : 1952 SCR 849; Acharya Jagadishwarananda Avadhuta and others v.

Commissioner of Police, Calcutta (1983) 4 SCC 522 : [1984] 1 SCR 447 – referred to.

2.4 The impugned Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, framed in pursuance of the 1965 Act, stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of such women to practise their religious belief which, in consequence, makes their fundamental right under Article 25(1) a dead letter. It is clear as crystal that as long as the devotees, irrespective of their gender and/or age group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter into a temple and offer prayers. The women, in the case at hand, are also Hindus and so, there is neither any viable nor any legal limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity. The said rule of exclusion cannot be justified on the ground that allowing entry to women of the said age group would, in any way, be harmful or would play a jeopardizing role to public order, morality, health or, for that matter, any other provision/s of Part III of the Constitution, for it is to these precepts that the right guaranteed under Article 25(1) has been made subject to. [Paras 104, 105][658-F-H; 659-A-B]

2.5 The term ‘morality’ occurring in Article 25(1) cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. When there is a violation of the fundamental rights, the term ‘morality’ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution. [Paras 106][659-C-D] Manoj Narula v. Union of India (2014) 9 SCC 1 : [2014] 9 SCR 965; Government of NCT of Delhi v. Union of India and others (2018) 8 SCALE 72; Navtej Singh Johar and others v. Union of India and others (2018) 10 SCALE 386 – referred to.

2.6 The right guaranteed under Article 25(1) has been made subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is, order, morality and health are qualified by the word ‘public’. Neither public order nor public health will be at peril by allowing entry of women devotees of the age group of 10 to 50 years into the Sabarimala temple for offering their prayers. As regards public morality, it is made absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality. [Paras 110, 111][661-A-D] Whether exclusionary practice is an essential practice as per Hindu religion

3.1 In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, the exclusionary practice followed at the Sabarimala temple, cannot be accorded the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner. Therefore, the exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b), framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive. [Paras 122-123][665-D-G]

3.2 Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices. [Para 124][665-G-H]

3.3 Where a practice changes with the efflux of time, such a practice cannotbe regarded as a core upon which a religion is formed. There has to be unhindered continuity in a practice for it to attain the status of essential practice. It is further discernible from the judgment of the High Court in S. Mahendran’s case that the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. The Devaswom Board also took a stand before the High Court that restriction of entry for women was only during Mandalam, Makaeavilakku and Vishnu days. The impugned exclusionary practice in question is a ‘custom with some aberrations’ as prior to the passing of the Notification in 1950, women of all age groups used to visit the Sabarimala temple for the first rice feeding ceremony of their children. Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view thereof, it cannot be treated as an essential practice. [Paras 125, 126][666-A-D]

3.4 In view of the law laid down by this Court in the second Ananda Marga case, the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the nonobservance of which will change or alter the nature of Hindu religion. Besides, the exclusionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. [Para 144(viii)][674-F-H] Commissioner of Police and others v Acharya

Jagadishwarananda Avadhuta and another (2004) 12 SCC 770 : [2004] 2 SCR 1019 – relied on.

S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and others AIR 1993

Kerala 42 – approved.

John Vallamattom and another v. Union of India (2003)

6 SCC 611 : [2003] 1 Suppl. SCR 638; The

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731 : [1959] SCR 629; State of West Bengal and others v. Ashutosh Lahiri and others AIR 1995 SC 464 : [1994] 5 Suppl. SCR 515 ; Durgah Committee, Ajmer and others v. Syed Hussain Ali and others AIR 1961 SC 1402 : 1962 SCR 383; N.

Adithayan v. Travancore Devaswom Board and others (2002) 8 SCC 106 : [ 2002] 3 Suppl. SCR 76; Acharya Jagadishwarananda Avadhuta and others v.

Commissioner of Police, Calcutta (1983) 4 SCC 522 : [1984] 1 SCR 447 – referred to.

Free Church of Scotland v. Overtoun (1904) AC 515 – referred to.

Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules

4.1 As per Section 2(a) of the 1965 Act, the term ‘Hindu’ includes a person professing Buddhist, Sikh or Jaina religion. The word ‘person’ occurring therein for the pure and simple reason of logic, must include all genders.Clause (c) defines ‘section or class’ as any division, sub-division, caste, sub-caste, sect or denomination whatsoever. Nowhere the definition of section or class suggests being limited to male division, subdivision, caste and so forth. [Para 128][666-E; 667-B-C]

4.2 Section 3 of the Act being a non-obstante clause declares that every place of public worship which is open to Hindus generally or to any section or class thereof shall be open to all sections and classes of Hindus and no Hindu, of whatsoever section or class, shall be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping, offering prayers or performing any religious service at such place of public worship in the like manner and to the like extent as any other Hindu of whatsoever section or class may so be eligible to enter, worship, pray or perform. A careful dissection of Section 3 reveals that places of public worship in the State of Kerala, irrespective of any contrary law, custom, usage or instrument having effect by virtue of any such law or any decree or order of Court, shall be open to all sections and classes of Hindus. The definition of ‘section or class’ and ‘Hindu’ has to be imported, for the purposes of Section 3, from the definition clauses 2(a) and 2(c) which, includes all the genders, provided they are Hindus. The right provided under Section 3 due to its non-obstante nature has to be given effect to regardless of any law, custom or usage to the contrary. [Paras 130, 131][667-G-H; 668-A-D]

4.3 The proviso to Section 3 stipulates that in case the place of public worship is a temple founded for the benefit of any religious denomination or section thereof, then the rights warranted under Section 3 becomes subject to the right of that religious denomination or section to manage its own affairs in matters of religion. Having stated that devotees and followers of Lord Ayyappa do not constitute a religious denomination and, therefore, the proviso to Section 3 cannot be resorted to in the case at hand. [Para 132][668-D-E]

4.4 The importance and the gravity of the right stipulated under Section 3 of this Act, for all sections and classes of Hindus which include women, is very well manifest and evident from the fact that its violation has been made penal under Section 5 of the 1965 Act. Section 4 confers the power to make regulations for the maintenance of order and decorum and performance of rites and ceremonies with regard to places of public worship in Kerala. The proviso to Section 4 being an exception to Section 4(1) is an example where the exception is more important than the rule itself. The language of the proviso to Section 4, in very clear and simple terms, states that the regulations made under Section 4(1) shall not discriminate against any Hindu on the ground that he/she belongs to a particular section or class. A particular section or class includes women of all age groups, for Hindu women of any age group also constitute a class or section of Hindus. [Paras 133-135][668-G-H; 669-B-C; 670-A-B]

4.5 The law is well-settled on the point that when a rulemaking power is conferred under any statute on an authority, the said power has to be exercised within the confines of the statute and no transgression of the same is permissible. The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b), framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion.A cursory reading of Rule 3(b) divulges that it is ultravires both Section 3 as well as Section 4, the reason being that Section

3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. That apart, Rule 3(b) is also ultravires Section 4 as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. [Paras 137, 141, 142, 144(ix)][670-F-G; 675-A; 672-F-G; 673-A] Union of India and ors v. S. Srinivasan (2012) 7 SCC

683 : [2012] 6 SCR 34; General Officer Commandingin-Chief v. Dr. Subhash Chandra Yadav AIR 1988 SC

876 : [1988] 3 SCR 62; Kunj Behari Lai Butail and ors v. State of H.P. AIR 2000 SC 1069 : [2000] 1 SCR 1054; Global Energy Limited and anr v. Central Electricity Regulatory Commission (2009) 15 SCC 570 : [2009] 9 SCR 22; State of T.N. and anr v. P. Krishnamurthy and ors (2006) 4 SCC 517 : [2006] 3 SCR 396 – referred to.

4.6 The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act, clearly indicates that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). It is clear as crystal that the provisions of the 1965 Act are liberal in nature so as to allow entry to all sections and classes of Hindus including Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) under the garb of Section 4(1) would violate the very purpose of the 1965 Act. Thus, Rule 3(b) is ultra vires the 1965 Act. [Paras 143, 144(xii)][673-A-C; 675-F]

Indian Young Lawyers Association and others v. State of Kerala and others (2017) 10 SCC 689; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496; Raja Bira Kishore Deb v. State of Orissa (1964) 7 SCR 32; Shastri

Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and another (1966) 3 SCR 242 ; Durgah Committee, Ajmer v. Syed Hussain Ali (1962) 1 SCR 383; Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895; Deepak Sibal v. Punjab University and another (1989) 2 SCC 145 : [1989] 1 SCR 689; Shayara Bano v. Union of India and others (2017) 9 SCC 1 : [2017] 7 SCR 797; Anuj Garg and others v. Hotel Association of India and others (2008)

3 SCC 1 : [2007] 12 SCR 991; Charu Khurana and others v. Union of India and others (2015) 1 SCC 192 : [2014] 12 SCR 259; National Legal Services Authority v. Union of India and others (2014) 5 SCC 438; Justice K. S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1; Vishaka and others v. State of Rajasthan and others (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; Seshammal and others v. State of Tamil Nadu (1972) 2 SCC 11 : [1972] 3 SCR 815; Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC

725 : [2015] 11 SCR 1110; T.M.A. Pai Foundation and others v. State of Karnataka and others (1995) 5 SCC

220 : [1995] 2 Suppl. SCR 608; Deoki Nandan v. Murlidhar and others AIR 1957 SC 133 : [1956] SCR 756; Sri Radhakanta Deb and another v. Commissioner of Hindu Religious Endowments, Orissa (1981) 2 SCC

226 : [1981] 2 SCR 826 – referred to.

Eyes and Ears 1813-1887 by Henry Ward Beecher– referred to.

Per R.F. Nariman, J. (Concurring):

1. The custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution; and that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution. [Para 32][723-E-F]

2.1 Article 25 of the Constitution recognises a fundamental right in favour of “all persons” which has reference to natural persons. This fundamental right equally entitles all such persons to the said fundamental right. Every member of a religious community has a right to practice the religion so long as he does not, in any way, interfere with the corresponding right of his coreligionists to do the same. The content of the fundamental right is the fleshing out of what is stated in the Preamble to the Constitution as “liberty of thought, belief, faith and worship”. Thus, all persons are entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. The right to profess, practice, and propagate religion will include all acts done in furtherance of thought, belief, faith, and worship. The content of the right concerns itself with the word “religion”, which would mean matters of faith with individuals or communities, based on a system of beliefs or doctrines which conduce to spiritual well-being. It does not have to be theistic but can include persons who are agnostics and atheists. [Paras 21.1-21.5][709-D-G]

2.2 It is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion, would the religion remain the same or would it be altered. Equally, if different groups of a religious community speak with different voices on the essentiality aspect presented before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant nature of the activity test is to be applied. The Court should take a common-sense view and be actuated by considerations of practical necessity. [Para 21.6][709-G-H; 710A-C]

2.3 The exceptions to the individual right are public order, morality, and health. “Public order” is to be distinguished from “law and order”. “Public disorder” must affect the public at large as opposed to certain individuals. A disturbance of public order must cause a general disturbance of public tranquility. The term “morality” is difficult to define. For the present, it refers to that which is considered abhorrent to civilized society, given the mores of the time, by reason of harm caused by way, of exploitation or degradation. Health would include noise pollution and the control of disease. [Para 21.7][710-C-E]

2.4 Another exception to the fundamental right conferred by Article 25(1) is the rights that are conferred on others by the other provisions of Part III. This would show that if one were to propagate one’s religion in such a manner as to convert a person of another religious faith, such conversion would clash with the other person’s right to freedom of conscience and would, therefore, be interdicted. Where the practice of religion is interfered with by the State, Articles 14, 15(1), 19, and 21 would spring into action. Where the practice of religion is interfered with by non-State actors, Article 15(2) and Article 17 would spring into action. Article 25(2) is also an exception to Article 25(1), which speaks of the State making laws which may regulate or restrict secular activity, which includes economic, financial or political activity, which may be associated with religious practice. Another exception is provided under Article 25(2)(b) which is in two parts. Any law providing for social welfare and reform in a religious community can also affect and/or take away the fundamental right granted under Article 25(1). A further exception is provided only insofar as persons professing the Hindu religion are concerned, which is to throw open all Hindu religious institutions of a public character to all classes and sections of Hindus. [Paras 21.8-21.10][710-E-F; 711-A-C]

2.5 Contrasted with the fundamental right in Article 25(1) is the fundamental right granted by Article 26. This fundamental right is not granted to individuals but to religious denominations or sections thereof. A religious denomination or section thereof is to be determined on the basis of persons having a common faith, a common organization, and designated by a distinct name as a denomination or section thereof. Believers of a particular religion are to be distinguished from denominational worshippers. Thus, Hindu believers of the Shaivite and Vaishnavite form of worship are not denominational worshippers but part of the general Hindu religious form of worship. [Para 21.11][711-D-E]

2.6 Four separate and distinct rights are given by Article

26 to religious denominations or sections thereof, namely to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law.” In Article 25, only essential religious matters are protected. [Para 21.12][711-F-G; 712-A]

2.7The fundamental right granted under Article 26 is subject to the exception of public order, morality, and health. However, since the right granted under Article 26 is to be harmoniously construed with Article 25(2)(b), the right to manage its own affairs in matters of religion granted by Article 26(b), in particular, will be subject to laws made under Article 25(2)(b) which throw open religious institutions of a public character to all classes and sections of Hindus. Thus, it is clear that even though the entry of persons into a Hindu temple of a public character would pertain to management of its own affairs in matters of religion, yet such temple entry would be subject to a law throwing open a Hindu religious institution of a public character owned and managed by a religious denomination or section thereof to all classes or sections of Hindus. However, religious practices by the religious denomination or section thereof, which do not have the effect of either a complete ban on temple entry of certain persons, or are otherwise not discriminatory, may pass muster u/Article 26(b). Examples are that only certain qualified persons are allowed to enter the sanctum sanctorum of a temple, or time management of a temple in which all persons are shut out for certain periods. [Paras 21.13, 21.14][712-A-E]

S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and others AIR 1993

Kerala 42 – referred to.

2.8 All the older religions speak of the phenomenon of menstruation in women as being impure, which therefore, forbids their participation in religious activity.The reasons given for barring the entry of menstruating women to the Sabarimala temple are considered by worshippers and Thanthris alike, to be an essential facet of their belief. [Paras 24-25][715-G-H; 719-B-C] Old Testament, in Chapter 15, Verse 19 Leviticus 15:19 (King James Version); Dharmasutras – The Law Codes Of Apastamba, Gautama, Baudhayana, And Vasistha

264 (Translation by Patrick Olivelle, Oxford

University Press, 1999); Srimad Bhagavatam – Sixth Canto (Translation by A.C. Bhaktivedanta Swami Prabhupada, The Bhaktivedanta Book Trust, 1976); The Qur’an – with Annotated Interpretation in Modern English, 2:222 (Translation by Ali Ünal, Tughra Books USA, 2015); Gospel of Mark 5.25-34 (King James Version); The Bundahishn – “Creation” or Knowledge from the Zand (Translation by E. W. West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892, and 1897); The Selections of Zadspram (Vizidagiha I Zadspram) (Joseph H.

Peterson Ed., 1995) (Translation by E. W. West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892, and 1897); Sri Guru Granth Sahib: English Translation of the Original Text 466-467, 975 (Translation by Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Asa, Shaloka Mehla 1 at p. 472, 1022 of the original text of Sri Guru Granth Sahib]; Kitáb-i-Aqdas by Bahá’u’lláh, note 106 at p. 122 (Translation by Shoghi Effendi, Bahá’í World Centre, 1992) – referred to.

2.9 As regards, the question that arises is whether the Sabarimala temple can be said to be a religious denomination for the purpose of Article 26, three things are necessary in order to establish that a particular temple belongs to a religious denomination. The temple must consist of persons who have a common faith, a common organization, and are designated by a distinct name. In answer to the question whether Thanthris and worshippers alike are designated by a distinct name, any answer cannot be found. When asked whether all persons who visit the Sabarimala temple have a common faith, the answer given was that all persons, regardless of caste or religion, are worshippers at the said temple. From this, it is also clear that Hindus of all kinds, Muslims, Christians etc., all visit the temple as worshippers, without, in any manner, ceasing to be Hindus, Christians or Muslims. They can therefore be regarded, as has been held in Sri Adi Visheshwara case, as Hindus who worship the idol of Lord Ayyappa as part of the Hindu religious form of worship but not as denominational worshippers. The same goes for members of other religious communities. [Para 26][719-C-F] Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086 – relied on.

Durgah Committee, Ajmer and others v. Syed Hussain Ali and others AIR 1961 SC 1402 : 1962 SCR 383; S.P. Mittal v. Union of India and others (1983) 1 SCC

51 : [1983] 1 SCR 729 – referred to.

2.10 There is no distinctive name given to the worshippers of this particular temple; there is no common faith in the sense of a belief common to a particular religion or section thereof; or common organization of the worshippers of the Sabarimala temple so as to constitute the said temple into a religious denomination. Also, there are over a thousand other Ayyappa temples in which the deity is worshipped by practicing Hindus of all kinds. Therefore, Article 26 does not get attracted.[Para 27][720-D-E]

2.11 Even if it is assumed that there is a custom or usage for keeping out women of the ages of 10 to 50 from entering the Sabarimala temple, and that this practice is an essential part of the Thanthris’ as well as the worshippers’ faith, this practice or usage is clearly hit by Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965. Since the proviso to the Section is not attracted on the facts of this case, and since the said Act is clearly a measure enacted under Article 25(2)(b), any religious right claimed on the basis of custom and usage as an essential matter of religious practice under Article 25(1), will be subject to the law made under Article 25(2)(b). The said custom or usage must therefore, be held to be violative of Section 3 and hence, struck down. [Para 28][720-F-G; 721-C-D]

2.12 Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The submission that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the submission that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires of Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and is hit by Article 25(1) and by Article 15(1) of the Constitution of India as this Rule discriminates against women on the basis of their sex only. [Para 29][721-D-H; 722-A, D]

2.13 The instant case raises grave issues relating to women generally, who happen to be between the ages of 10 to 50, and are not allowed entry into the temple at Sabarimala on the ground of a physiological or biological function which is common to all women between those ages. Since this matter raises far-reaching consequences relating to Articles 25 and 26 of the Constitution of India, it is necessary to decide this matter on merits. Consequently, the technical plea that the instant writ petition, which is in the nature of a PIL, is not maintainable inasmuch as no woman worshipper has come forward with a plea that she has been discriminated against by not allowing her entry into the temple as she is between the age of 10 to 50 cannot stand in the way of a constitutional court applying constitutional principles to the case at hand. [Para 30][722-E, H; 723-A-B] Adi Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil Nadu & Anr. (2016) 2 SCC 725 : [2015] 11 SCR 1110 – referred to.

2.14 A fervent plea was made by some of the counsels for the Respondents that the Court should not decide this case without any evidence being led on both sides. Evidence is very much there, in the form of the writ petition and the affidavits that have been filed in the writ petition, both by the Petitioners as well as by the Board, and by the Thanthri’s affidavit. A writ petition filed under either Art. 32 or 226 is itself not merely a pleading, but also evidence in the form of affidavits that are sworn. [Para 31][723-B-D]

Bharat Singh and Ors. v. State of Haryana and Ors. [1988] Supp 2 SCR 1050 – relied on.

The Commissioner Hindu Religious Endowments,

Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v. The State of Bombay & Ors. [1954] SCR 1055; Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496; Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. [1964] 1 SCR 561; Seshammal and others v. State of Tamil Nadu (1972) 2 SCC 11 : [1972]

3 SCR 815; Rev. Stainislaus v. State of Madhya Pradesh and others (1977) 1 SCC 677 : [1977] 2 SCR 611; Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police, Calcutta (1983) 4 SCC 522 : [1984] 1 SCR 447; Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N. Adithayan v. Travancore Devaswom Board and others (2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76; Dr. Subramanian Swamy v. State of T.N. & Ors. (2014) 5 SCC 75 : [2014] 1 SCR 308; Riju Prasad Sharma & Ors. v. State of Assam & Ors. (2015) 9 SCC 461; Adi Saiva Sivachariyargal Nala Sangam & Ors. v.

Government of Tamil Nadu & Anr. (2016) 2 SCC 725 : [2015] 11 SCR 1110 – referred to.

Per Dr. D Y Chandrachud, J. (Concurring):

1. The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the Constitution. A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality. In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order. The notifications issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the 1965 Act and are even otherwise unconstitutional. Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3. This directly offends the right of temple entry established by Section 3. Rule 3(b) is ultra vires the 1965 Act. [Para 119][839-E-H; 840-A-C]

2.1 The framers had before them the task of ensuring a balance between individual rights and claims of a communitarian nature. The Constituent Assembly recognised that the recognition of a truly just social order situated the individual as the ‘backbone of the state, the pivot, the cardinal center of all social activity, whose happiness and satisfaction should be the goal of every social mechanism.’ In forming the base and the summit of the social pyramid, the dignity of every individual illuminates the constitutional order and its aspirations for a just social order. Existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour is to produce a society marked by compassion for every individual. [Para 113][837-B-D]

2.2 Inhering in the right to religious freedom, is the equal entitlement of all persons, without exception, to profess, practice and propagate religion. Equal participation of women in exercising their right to religious freedom is a recognition of this right. In protecting religious freedom, the framers subjected the right to religious freedom to the overriding constitutional postulates of equality, liberty and personal freedom in Part III. The dignity of women cannot be disassociated from the exercise of religious freedom. In the constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III. The equal participation of women in worship inheres in the constitutional vision of a just social order. [Para 114][837-D-F]

2.3 The discourse of freedom in the Constitution cannot be denuded of its context by construing an Article in Part III detached from the part within which it is situated. Even the right of a religious denomination to manage its own affairs in matters of religion cannot be exercised in isolation from Part III of the Constitution. The primacy of the individual, is the thread that runs through the guarantee of rights. In being located in Part III, the exercise of denominational rights cannot override and render meaningless constitutional protections which are informed by the overarching values of a liberal Constitution. [Para 115][837-GH; 838-A]

2.4 The Constitution seeks to achieve a transformed society based on equality and justice to those who are victims of traditional belief systems founded in graded inequality. It reflects a guarantee to protect the dignity of all individuals who have faced systematic discrimination, prejudice and social exclusion. Construed in this context, the prohibition against untouchability marks a powerful guarantee to remedy the stigmatization and exclusion of individuals and groups based on hierarchies of the social structure. Notions of purity and pollution have been employed to perpetuate discrimination and prejudice against women. They have no place in a constitutional order. In acknowledging the inalienable dignity and worth of every individual, these notions are prohibited by the guarantee against untouchability and by the freedoms that underlie the Constitution. In civic as in social life, women have been subjected to prejudice, stereotypes and social exclusion. In religious life, exclusionary traditional customs assert a claim to legitimacy which owes its origin to patriarchal structures. These forms of discrimination are not mutually exclusive. The intersection of identities in social and religious life produces a unique form of discrimination that denies women an equal citizenship under the Constitution. Recognizing these forms of intersectional discrimination is the first step towards extending constitutional protection against discrimination attached to intersecting identities. [Para 116][838B-E]

2.5 In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution-justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. The quest for equality is denuded of its content if practices that exclude women are treated to be acceptable. The Constitution cannot allow practices, irrespective of their source, which are derogatory to women. Religion cannot become a cover to exclude and to deny the right of every woman to find fulfillment in worship. Sixty eight years after the advent of the Constitution, it has been held that in providing equality in matters of faith and worship, the Constitution does not allow the exclusion of women. [Para 117][838-F-H; 839-A-C]

2.6 Liberty in matters of belief, faith and worship, must produce a compassionate and humane society marked by the equality of status of all its citizens. The Constitution sought to break the shackles of social hierarchies. In doing so, it sought to usher an era characterized by a commitment to freedom, equality and justice. The liberal values of the Constitution secure to each individual an equal citizenship. This recognizes that the Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship. The equal participation of women in every sphere of the life of the nation subserves that premise. [Para 118][839-C-E]

Essential Religious Practices

3.1 In its jurisprudence on religious freedom, this Court has evolved a body of principles which define the freedom of religion under Article 25 and Article 26 to practices ‘essential’ to the religion. The Constitution has been held to protect not only freedom of religious belief, but acts done in pursuance of those beliefs. While the views of a religious denomination are to be taken into consideration in determining whether a practice is essential, those views are not determinative of its essentiality. The Court has assumed a central role in determining what is or is not essential to religious belief. Intrinsic to the role which the Court has carved out, it has sought to distinguish between what is religious and what is a secular practice, even if it is associated with a religious activity. Going further, the Court has enquired into whether a practice is essential to religion. Essentiality of the practice would, as the Court has held depends on whether the fundamental character of a religion would be altered, if it were not observed. Above all, there is an emphasis on constitutional legitimacy, which underscores the need to preserve the basic constitutional values associated with the dignity of the individual. The ephemeral distinction between religion and superstition becomes more coherent in terms of the need to preserve fundamental constitutional values associated with human liberty. [Para 47][768-G-H; 769-A-C]

3.2 In determining the essentiality of a practice, it is crucial to consider whether the practice is prescribed to be of an obligatory nature within that religion. If a practice is optional, it has been held that it cannot be said to be ‘essential’ to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an ‘essential’ part of that religion. [Para 48][769-C-E]

3.3 Where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the former. This ensures that the constitutional guarantee under Article 25(2)(b) is not destroyed by exclusionary claims which detract from individual dignity. That a practice claimed to be essential has been carried on since time immemorial or is grounded in religious texts, does not lend to it constitutional protection unless it passes the test of essentiality. [Para 48][769-H; 770-A-B]

Durgah Committee, Ajmer and others v. Syed Hussain Ali and others AIR 1961 SC 1402 : [1962] SCR 383; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496; Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. [1964] 1 SCR 561 – relied on.

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v. The State of Bombay & Ors. [1954] SCR 1055; Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895; Mohd. Hanif Quareshi v. State of Bihar AIR 1958 SC 731 : [1959] SCR 629; Shastri Yagnapurushadiji v. Muldas Bhundardas Vaishya and another

(1966)

SCR

242;

Acharya

Jagadishwarananda Avadhuta and others v.

Commissioner of Police, Calcutta (1983) 4 SCC 522 : [1984] 1 SCR 447; Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N. Adithayan v. Travancore Devaswom Board and others (2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76;

Commissioner of Police and others v Acharya

Jagadishwarananda Avadhuta and another (2004) 12 SCC 770 : [2004] 2 SCR 1019; Adi Saiva

Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC 725 : [2015]

11 SCR 1110 ; Shayara Bano v. Union of India and others (2017) 9 SCC 1 : [2017] 7 SCR 797; Javed v State of Haryana (2003) 8 SCC 369 : [2003] 1 Suppl. SCR 947 – referred to.

Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth of Australia [1943] HCA 12 – referred to.

The engagement of essential religious practices with constitutional values

4.1 The Court must lean against granting constitutional protection to a claim which derogates from the dignity of women as equal holders of rights and protections. In the ethos of the Constitution, it is inconceivable that age could be a rational basis to condition the right to worship. The ages of ten to fifty have been marked out for exclusion on the ground that women in that age group are likely to be in the procreative age. The physiological features of a woman have no significance to her equal entitlements under the Constitution. All women in the age group of ten and fifty may not in any case fall in the ‘procreative age group’. But that is again not a matter of substance. The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings. These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief. To exclude women is derogatory to an equal citizenship. [Para 54][774-B-F]

4.2 There is an assumption which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. [Para 55][774-GH; 775-A-B]

4.3 Human dignity postulates an equality between persons. The equality of all human beings entails being free from the restrictive and dehumanizing effect of stereotypes and being equally entitled to the protection of law. Our Constitution has willed that dignity, liberty and equality serve as a guiding light for individuals, the state and this Court. Though the Constitution protects religious freedom and consequent rights and practices essential to religion, this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality. In a constitutional order of priorities, these are values on which the edifice of the Constitution stands. They infuse constitutional order with a vision for the future – of a just, equal and dignified society. Intrinsic to these values is the anti-exclusion principle. Exclusion is destructive of dignity. To exclude a woman from the might of worship is fundamentally at odds with constitutional values. [Para 56][775-B-D]

4.4 The stigma around menstruation has been built up around traditional beliefs regarding the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood. The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. No body or group can use it as barrier in a woman’s quest for fulfilment, including in her finding solace in the connect with the creator.[Para 57][775-E-G]

Government of NCT of Delhi v. Union of India and others (2018) 8 SCALE 72; S. Mahendran v. The Secretary,

Travancore

Devaswom

Board,

Thiruvananthpuram and others AIR 1993 Kerala 42; Adi Saiva Sivachariyargal v. Government of Tamil Nadu and others (2016) 2 SCC 725 : [2015] 11 SCR 1110; Commissioner of Police and others v Acharya

Jagadishwarananda Avadhuta and another (2004) 12 SCC 770 : [2004] 2 SCR 1019; Navtej Singh v. Union of India and others (2018) 10 SCALE 386;

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005 - referred to.

Religious Denominations

5. The ingredients for a set of individuals to be regarded as a religious denomination are a common faith, a common organisation and a distinctive name brought together under the rubric of religion. A common thread which runs through them is the requirement of a religious identity, which is fundamental to the character of a religious denomination.[Para 64][781-E-F] Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895; Commissioner Hindu Religious

Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; S.P. Mittal v. Union of India and others (1983) 1 SCC 51 : [1983] 1 SCR 729; Acharya Jagadishwarananda

Avadhuta and others v. Commissioner of Police, Calcutta (1983) 4 SCC 522 : [1984] 1 SCR 447; Bramchari Sidheswar Shai v State of West Bengal (1995) 4 SCC

646 : [1995] 1 Suppl. SCR 745; Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and others (2003) 10 SCC

712 : [2003] 1 Suppl. SCR 920 – referred to.

Do the devotees of Lord Ayyappa constitute a religious denomination?

6. Adherence to a ‘common faith’ would entail that a common set of beliefs have been followed since the conception of the particular sect or denomination. A distinctive feature of the pilgrimage is that pilgrims of all religions participate in the pilgrimage on an equal footing. Muslims and Christians undertake the pilgrimage. A member of any religion can be a part of the collective of individuals who worship Lord Ayyappa. Religion is not the basis of the collective of individuals who worship the deity. Bereft of a religious identity, the collective cannot claim to be regarded as a ‘religious denomination’. To be within the fold of Article 26, a denomination must be a religious sect or body. Worship of the presiding deity is not confined to adherents of a particular religion. Coupled with this is the absence of a common spiritual organisation, which is a necessary element to constitute a religious denomination. The temple at which worship is carried out is dedicated to the public and represents truly, the plural character of society. Everyone, irrespective of religious belief, can worship the deity. The practices associated with the forms of worship do not constitute the devotees into a religious denomination. Considering the inability of the collective of individuals to satisfy the judicially-enunciated requirements, the set of individuals who refer to themselves as “Ayyappans” or devotees of Lord Ayyappa as a ‘religious denomination’ cannot be recognised. [Para 69][785-E-H; 786-A]

S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and others AIR 1993

Kerala 42; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496 – referred to.

Free Church of Scotland v. Overtoun (1904) AC 515 – referred to.

Article 17, “Untouchability” and the notions of purity

7.1 The society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by menstruating women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity. [Para 81][804-E-F; 805-A-E]

7.2 The issue for entry in a temple is not so much about the right of menstruating women to practice their right to freedom of religion, as about freedom from societal oppression, which comes from a stigmatized understanding of menstruation, resulting in “untouchability”. Article 25, which is subject to Part III provisions, is necessarily therefore subject to Article 17. To use the ideology of “purity and pollution” is a violation of the constitutional right against “untouchability”. [Para 82][805-F-G]

National Campaign for Dalit Human Rights v. Union of India (2017) 2 SCC 432 : [2016] 9 SCR 122;

Devarajiah v B Padmanna AIR 1958 Mys 84; Jai Singh v Union of India AIR 1993 Raj 177; State of Karnataka v Appa Balu Ingale (1995) Supp 4 SCC 469 : [1992] 3 Suppl. SCR 284; Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC 725 :[2015] 11 SCR 1110; K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1 – referred to.

Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at pages xii-xiii; Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford University Press (2008), at page 15; B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at page 202-205; Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014), at pages 39, Vol. 12 (2014), at pages 661-691, Vol. 5 (2014), at pages 9-18, Vol. 1 (2014), at pages 5-6, Vol. 1 (2014), at pages 23-96, (2014), Vol. 1, at pp 3-22; India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyi ed.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88; Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making of Modern India, Harper Collins (2017), at p 114; Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted Development and the Costs of Caste, Harper Collins (2017), at pp 74-79; Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017) – referred to. The ultra vires doctrine

8.1 The devotees of Lord Ayyappa do not constitute a religious denomination and the Sabarimala temple is not a denominational temple. The proviso to section 3 has no application. The notifications which restrict the entry of women between the ages of ten and fifty in the Sabarimala temple cannot stand scrutiny and plainly infringe Section 3. They prevent any woman between the age of ten and fifty from entering the Sabarimala temple and from offering prayers. Such a restriction would infringe the rights of all Hindu women, recognized by Section 3. The notifications issued by the Board prohibiting the entry of women between ages ten and fifty-five, are ultra vires Section 3. [Para 87][810-E-G]

8.2 Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. The proviso to Section 4(1) forbids any regulation which discriminates against any Hindu on the ground of belonging to a particular section or class. The mandate of Section 3 is that if a place of public worship is open to Hindus generally or to any section or class of Hindus, it shall be open to all sections or classes of Hindus. The Sabarimala temple is open to Hindus generally and in any case to a section or class of Hindus. Hence, it has to be open to all sections or classes of Hindus, including Hindu women. Rule 3(b) gives precedence to customs and usages which allow the exclusion of women “at such time during which they are not… allowed to enter a place of public worship”. In laying down such a prescription, Rule 3(b) directly offends the right of temple entry established by Section 3. Section 3 overrides any custom or usage to the contrary. But Rule 3 acknowledges, recognises and enforces a custom or usage to exclude women. This is plainly ultra vires.The object of the Act is to enable the entry of all sections and classes of Hindus into temples dedicated to, or for the benefit of or used by any section or class of Hindus. The Act recognizes the rights of all sections and classes of Hindus to enter places of public worship and their right to offer prayers. The law was enacted to remedy centuries of discrimination and is an emanation of Article 25(2)(b) of the Constitution. The broad and liberal object of the Act cannot be shackled by the exclusion of women. [Para 90][812F-G; 813-A-D]

Ardeshir H Bhiwandiwala v State of Bombay [1961] 3 SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971)

3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC 202 : [1983] 3 SCR 812; Gopal Krishna Agrawal v State of U P (1982) All. L.J. 607; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons (1991) 3 SCC 617 : [1991] 3 SCR 307; Union of India v Elphinstone Spinning and Weaving Co Ltd. (2001) 4 SCC 139 : [2001] 1 SCR 221; Additional District Magistrate v Siri Ram (2000) 5 SCC 451 : [2000] 3 SCR 1019; Maharashtra State Board of Secondary and Higher Education v Paritosh

Bhupeshkumar Sheth, (1984) 4 SCC 27 – referred to.

The ghost of Narasu

9.1 The decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the Constitution. Carving out ‘custom or usage’ from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu, is based on flawed premises. Custom or usage cannot be excluded from ‘laws in force’. The decision also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term ‘laws in force’ having regard to its inclusive definition and constitutional history. The decision in Narasu, in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case.[Para 101][826-B-C, E] The State of Bombay v Narasu Appa Mali AIR 1952 Bom 84 – disapproved.

9.2 In the quest towards ensuring the rights guaranteed to every individual, a Constitutional court such as ours is faced with an additional task. Transformative adjudication must provide remedies in individual instances that arise before the Court. In addition, it must seek to recognize and transform the underlying social and legal structures that perpetuate practices against the constitutional vision. Subjecting personal laws to constitutional scrutiny is an important step in this direction. In the denial of equal access, the practice denies an equal citizenship and substantive equality under the Constitution. The primacy of individual dignity is the wind in the sails of the boat chartered on the constitutional course of a just and egalitarian social order. [Para 102][826-F-G; 827-B-C]

A K Gopalan v State of Madras [1950] SCR 88; Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Maneka Gandhi v Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; Special Courts Bill Reference (1979)

1 SCC 380 : [1979] 2 SCR 476; K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1; The United Provinces v Mst. Atiqa Begum AIR 1941 FC 16; Ardeshir H Bhiwandiwala v State of Bombay [1961] 3 SCR 592; CIT v Taj Mahal Hotel,

Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC 202 : [1983] 3 SCR 812; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons (1991) 3 SCC 617 : [1991] 3 SCR 307; Sant Ram v Labh Singh [1964] 7 SCR 756; Shayara Bano v. Union of India and others (2017) 9 SCC 1 : [2017] 7 SCR 797 – referred to.

Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is stalking the Supreme Court of India’, Law yers Collective, 28 May, 2018; Matrimonial Laws and the Constitution by A M Bhattacharjee, Eastern Law House (1996) at p 32; Principles of Statutory Interpretation by Justice G P Singh, Lexis Nexis (2016) at p 198; The Framing of India’s Constitution by Shiva Rao, Vol III, at pp 520, 521, Vol IV, at pages 26, 27 - referred to.

Deity as a bearer of constitutional rights

10.1 The word ‘persons’ in certain statutes have been interpreted to include idols. However, to claim that a deity is the bearer of constitutional rights is a distinct issue, and does not flow as a necessary consequence from the position of the deity as a juristic person for certain purposes. Merely because a deity has been granted limited rights as juristic persons under statutory law does not mean that the deity necessarily has constitutional rights. [Para 105][828-D-E]

10.2 A religious denomination or any section thereof has a right under Article 26 to manage religious affairs. This right vests in a collection of individuals which demonstrate (i) the existence of a religious sect or body; (ii) a common faith shared by those who belong to the religious sect and a common spiritual organisation; (iii) the existence of a distinctive name and (iv) a common thread of religion. Article 25 grants the right to the freedom of conscience and free profession, practice and propagation of religion. Conscience, as a cognitive process that elicits emotion and associations based on an individual’s beliefs rests only in individuals. The Constitution postulates every individual as its basic unit. The rights guaranteed under Part III of the Constitution are geared towards the recognition of the individual as its basic unit. The individual is the bearer of rights under Part III of the Constitution. The deity may be a juristic person for the purposes of religious law and capable of asserting property rights. However, the deity is not a ‘person’ for the purpose of Part III. The legal fiction which has led to the recognition of a deity as a juristic person cannot be extended to the gamut of rights under Part III of the Constitution. [Para 106][829-F-H; 830-A-B]

10.3 In any case, the exclusion of women from the Sabarimala temple affects both, the religious and civic rights of the individual. The anti-exclusion principle would disallow a claim based on Article 25 and 26 which excludes women from the Sabarimala Temple and hampers their exercise of religious freedom. This is in keeping with the over-arching liberal values of the Constitution and its vision of ensuring an equal citizenship. [Para 106][830-B-C]

Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925) 27 Bom LR 1064; Yogendra Nath Naskar v Commissioner of the Income-Tax, Calcutta (1969) 1 SCC 555 : [1969] 3 SCR 742; A S Narayana

Deekshitulu v State Of Andhra Pradesh 1996 9 SCC

548 : [1996] 3 SCR 543; Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005 – referred to.

A road map for the future

11.1 By reserving to itself the authority to determine practices which are essential or inessential to religion, the Court assumed a reformatory role which would allow it to cleanse religion of practices which were derogatory to individual dignity. Exclusions from temple entry could be regarded as matters which were not integral to religion. While doing so, the Court would set up a progressive view of religion. This approach is problematic. The rationale for allowing a religious community to define what constitutes an essential aspect of its religion is to protect the autonomy of religions and religious denominations. Protecting that autonomy enhances the liberal values of the Constitution. By entering upon doctrinal issues of what does or does not constitute an essential part of religion, the Court has, as a necessary consequence, been required to adopt a religious mantle. The Court would determine as to whether a practice is or is not an essential part of religion. This has enabled the Court to adopt a reformist vision of religion even though it may conflict with the views held by the religion and by those who practice and profess the faith. The competence of the Court to do so and the legitimacy of the assumption of that role may be questionable. The Court discharges a constitutional (as distinct from an ecclesiastical) role in adjudication. Adjudicating on what does or does not form an essential part of religion blurs the distinction between the religious-secular divide and the essential/inessential approach. The former has a textual origin in Article 25(2)(a). The latter is a judicial creation. [Para 108][831-D-H; 832-A-C]

11.2 The right to freedom of religion which is comprehended in Articles 25-28 is not a stand alone right. These Articles are an integral element of the entire chapter on fundamental rights. Constitutional articles which recognise fundamental rights have to be understood as a seamless web. Together, they build the edifice of constitutional liberty. Fundamental human freedoms in Part III are not disjunctive or isolated. They exist together. It is only in cohesion that they bring a realistic sense to the life of the individual as the focus of human freedoms. The right of a denomination must then be balanced with the individual rights to which each of its members has a protected entitlement in Part III. [Para 109][832-E-G]

11.3 The co-existence of a group right in a chapter on fundamental rights which places the individual at the forefront of its focus cannot be a matter without significance. It would be impossible to conceive of the preservation of liberal constitutional values while at the same time allowing group rights to defy those values by practicing exclusion and through customs which are derogatory to dignity. This apparent contradiction can be resolved by postulating that notwithstanding the recognition of group rights in Article 26, the Constitution has never intended that the assertion of these rights destroy individual dignity and liberty. Group rights have been recognized by the Constitution in order to provide a platform to individuals within those denominations to realize fulfilment and self-determination.[Para 110][833-C, D-F]

11.4 A deferential approach to what constitutes a part of religious tenets would free the court from the unenviable task of adjudicating upon religious texts and doctrines. The deference, however, that is attributed to religion is subject to the fundamental principles which emerge from the quest for liberty, equality and dignity in Part III. Both Article 25(1) and Article 26 are subject to public order, morality and health. Acting under the rubric of these limitations even the religious freedom of a denomination is subject to the anti-exclusion principle. The anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution. The essential religious practices test should merit a close look, in an appropriate case in the future. [Paras 111112][835-G; 836-A-B, D-F] Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v. The State of Bombay & Ors. [1954] SCR 1055; Durgah Committee, Ajmer and others v. Syed Hussain Ali and others AIR 1961 SC 1402 : [1962] SCR 383; Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. [1964] 1 SCR 561; Sastri Yagnapurushadji v. MuldasBhudardas Vaishya [1966] 3 SCR 242;

Commissioner of Police and others v Acharya

Jagadishwarananda Avadhuta and another (2004) 12 SCC 770 : [2004] 2 SCR 1019 – referred to.

Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution

by

Gautam

Bhatia,

Global

Constitutionalism, Cambridge University Press (2016) pp 374, 382; The Politics of Recognition in

Multiculturalism: Examining the Politics of Recognition C Taylor, (A Gutmann ed.) Princeton University Press (1994);

Introduction

Multiculturalism

in

Multiculturalism, Liberalism and Democracy R

Bhargava (R Bhargava et al. eds), Oxford University Press (2007); Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy by Faizan Mustafa and Jagteshwar Singh Sohi Brigham Young University Review (2017); Definitional imbroglios: A critique of the definition of religion and essential practice tests in religious freedom adjudication Jaclyn L Neo, International Journal of Constitutional Law, Vol. 16 (2018) at pages 574-595 - referred to. Per Indu Malhotra, J. (Dissenting):

Maintainability and Justiciability

1.1 Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the petitioners and Intervenors involved. [Para 16(i)][897-D]

1.2 The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. The right to worship, claimed by the Petitioners has to be predicated on the basis of affirmation of a belief in the particular manifestation of the deity in this Temple. [Para 7.2][856-C-E]

1.3 The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practises of any religious sect, or denomination. Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practises, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained. [Para 7.3][856-E-F]

1.4 In matters of religion and religious practises, Article

14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. [Para 7.4][857-A-B]

1.5 The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. In the instant case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this Temple, based on the essential characteristics of the deity. [Para 7.5][857-C-D]

1.6 The right to practise one’s religion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practises are rational or not. Religious practises are Constitutionally protected under Articles

25 and 26(b). Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved person from that particular religious faith, or sect. [Para 7.6][857-E-F]

1.7 Precedents under Art. 25 have arisen against State action and not been rendered in PIL. [Para 7.7][858-A] Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. [1955] 1 SCR 1284; Commissioner Hindu Religious Endowments, Madras v. Shri

Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895; Mahant Moti Das v. S.P. Sahi, The Special Officer In Charge of Hindu Religious trust & Ors. [1959] Supp 2 SCR 563; Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496; Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3 SCC 615 : [1986]

3 SCR 518 – referred to.

Constitutional Law of India : A Critical Commentaryby H.M. Seervai Vol. II (4th Ed., Reprint 1999) - referred to.

Applicability of Article 14 in matters of religion and religious practice

2.1 The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. [Para 16(ii)][897-E]

2.2 Religious customs and practises cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded therein. Article 25 specifically provides the equal entitlement of every individual to freely practise their religion. Equal treatment under Article 25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith. [Para 8.1][859-D-E]

2.3 The difficulty lies in applying the tests under Article 14 to religious practises which are also protected as Fundamental Rights under our Constitution. The right to equality claimed by the Petitioners under Article 14 conflicts with the rights of the worshippers of this shrine which is also a Fundamental Right guaranteed by Articles 25, and 26 of the Constitution. It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. [Para 8.2][859-G-H; 860-A]

2.4 The submission of the petitioners and intervenors that the age group of 10 to 50 years is arbitrary, and cannot stand the rigours of Article 14, cannot be accepted, since the prescription of this age-band is the only practical way of ensuring that the limited restriction on the entry of women is adhered to. [Para 8.4][860-C]

2.5 The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is no similar restriction in those temples. It is pertinent to mention that the Respondents, in this context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. The issue of what constitutes an essential religious practise is for the religious community to decide. [Paras 8.5-8.6][860-D-F] Applicability of Article 15

3. The submission that the Sabarimala Temple would be included in the phrase “places of public resort”, as it occurs in Article 15(2)(b), cannot be accepted. The Constituent Assembly considered it fit not to include ‘places of worship’ or ‘temples’ within the ambit of Draft Article 9 of the Constitution. The conscious deletion of “temples” and “places of worship” from the Draft Article 9(1) has to be given due consideration. [Para 9.1-9.2][860-H; 862-C-D]

Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948); Statement of K.T. Shah, Constituent Assembly Debates (November 29, 1948); Statement of Vice-President, Constituent Assembly Debates (November 29, 1948); Statement of Mr. Mohd. Tahir, Constituent Assembly Debates (November 29, 1948) – referred to.

Role of Courts in matters concerning religion

4.1 The role of Courts in matters concerning religion and religious practises under our secular Constitutional set up is to afford protection under Article 25(1) to those practises which are regarded as “essential” or “integral” by the devotees, or the religious community itself. [Para 10.1][862-E]

4.2 The Constitution lays emphasis on social justice and equality. It has specifically provided for social welfare and reform, and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus through the process of legislation in Article 25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision which permits the State to redress social inequalities and injustices by framing legislation. It is therefore difficult to accept the contention that Article 25(2)(b) is capable of application without reference to an actual legislation. What is permitted by Article 25(2) is State made law on the grounds specified therein, and not judicial intervention. [Para 10.8][872-A-B]

4.3 The 1965 Act is a legislation framed in pursuance of Article 25(2)(b) which provides for the throwing open of Hindu places of public worship. The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of place of public worship. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that Temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’. In other jurisdictions also, where State made laws were challenged on grounds of public morality, the Courts have refrained from striking down the same on the ground that it is beyond the ken of the Courts.Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts.[Paras 10.9, 10.10, 10.11, 10.13][872-C-G; 873C-D] Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)

3 SCC 615: [1986] 3 SCR 518; Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561; Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383; Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v. The State of Bombay & Ors. 1954 SCR 1055; Shayara Bano v. Union of India and others (2017) 9 SCC 1 : [2017] 7 SCR 797; S.P. Mittal v. Union of India and others (1983) 1 SCC 51 : [1983] 1 SCR 729- referred to.

Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth 67 CLR 116; Regina v. Secretary of State for Education and Employment & Ors. [2005] UKHL 15; Eddie C. Thomas v. Review Board of the Indiana Employment Security Division 450 U.S. 707 (1981); United Statesv. Edwin D. Lee 455 U.S. 252 (1982); Robert L. Hernandez v. Commissioner of Internal Revenue 490 U.S. 680 (1989); Employment Division, Department of Human Resources of Oregon v. Alfred L. Smith 494 U.S. 872 (1990); Church of Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520 (1993) – referred to.

Constitutional law of India: A Critical Commentary by H.M. Seervai; Religion, Law and the State in India by J. Duncan M. Derett (1968) p. 447; Constitutional Law of India: A Critical Commentaryby H.M. Seervai Vol. II (4th Ed., Reprint 1999) paragraph 12.18 at p. 12671268– referred to.

Constitutional morality in matters of religion in a secular polity

5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non-discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and nondiscrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical, to ensure that the religious beliefs of none are obliterated or undermined. It is the Constitutional duty of the Court to harmonise the rights of all persons, religious denominations or sects thereof, to practise their religion according to their beliefs and practises. [Paras 11.5-11.8][874-C-H; 875-FG]

Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange Board of India & Anr (2012)

10 SCC 603 : [2012] 12 SCR 256; Subramaniam

Swamy v. Union of India, Ministry of Law & Ors. (2016)

7 SCC 221: [2016] 3 SCR 865; Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors. (1975) 1 SCC 11 : [1975]

0 Suppl. SCR 145 – referred to.

Religious denomination

6.1 The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. The issue whether the Sabarimala Temple constitutes a ‘religious denomination’, or a sect thereof, is a mixed question of fact and law. It is trite in law that a question of fact should not be decided in writ proceedings. The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case. [Para 12.10, 16(iv)][897G; 881-A-B]

6.2 Article 26 guarantees that every religious denomination, or sect thereof, shall have the right inter alia to manage its own affairs in matters of religion. This right is made subject to public order, morality, and health. Article 26 refers not only to religious denominations, but also to sects thereof. A religious denomination or organisation enjoys complete autonomy in matters of deciding what rites and ceremonies are essential according to the tenets of that religion. The only restriction imposed is on the exercise of the right being subject to public order, morality and health under Article 26. [Paras 12.2-12.3][876-B-D]

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; S.P. Mittal v. Union of India and others (1983) 1 SCC 51 : [1983] 1 SCR 729; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496 – referred to.

6.3 The meaning ascribed to religious denomination by this Court in Shirur Mutt case and subsequent cases is not a straitjacket formula, but a working formula. It provides guidance to ascertain whether a group would fall within a religious denomination or not. If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practices, and having a collection of followers who follow the same faith, it would be identifiable as a religious denomination. [Para 12.7-12.8][878-C-D]

6.4 Respondents have made out a strong and plausible case that the worshippers of the Sabarimala Temple have the attributes of a religious denomination, or sect thereof.The submission that since the visitors to the temple are not only from the Hindu religion, but also from other religions, the worshippers of this Temple would not constitute a separate religious sect, cannot be accepted since it is not uncommon for persons from different religious faiths to visit shrines of other religions. This by itself would not take away the right of the worshippers of this Temple who may constitute a religious denomination, or sect thereof. The Constitution ensures a place for diverse religions, creeds, denominations and sects thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’ should receive an interpretation which is in furtherance of the Constitutional object of a pluralistic society. [Paras 12.9, 12.1212.13]879-D; 881-F-H; 882-A]

Arya Vyasa Sabha & Ors. v. Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad & Ors. (1976) 1 SCC 292; Dr. Subramanian Swamy v. State of T.N. & Ors. (2014) 5 SCC 75 : [2014]

1 SCR 308 – referred to.

Essential Practises Doctrine

7.1 The ‘essential practises test’ in its application would have to be determined by the tenets of the religion itself. The practises and beliefs which are considered to be integral by the religious community are to be regarded as “essential”, and afforded protection under Article 25. The only way to determine the essential practises test would be with reference to the practises followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practise in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practise of that temple. The Temple Thanthri, the Travancore Devaswom Board, and believers of Lord Ayyappa have submitted that the limited restriction on access of women during the notified age of

10 to 50 years, is a religious practise which is centralandintegral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’. [Paras 13.6-13.7][886E-H]

7.2 The practise of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple. Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons. The form of deity in any temple is of paramount importance. Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. Religion is a matter of faith, and religious beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are internal, while expression and worship are external manifestations thereof. In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution. The phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that religion. The celibate nature of the deity at the Sabarimala Temple has been traced by the Respondents to the SthalPurana of this Temple chronicled in the ‘Bhuthanatha Geetha’. Evidence of these practises are also documented in the Memoir of the Survey of the Travancore and Cochin States written by Lieutenants Ward and Conner published in two parts in 1893 and 1901. The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the respondents. The said restriction has been consistently, followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. [Paras 13.9-13.13][889-D-E; 890-A-E]

7.3 In the present case, the character of the temple at Sabarimala is unique on the basis of centuries old religious practises followed to preserve the manifestation of the deity, and the worship associated with it. Any interference with the mode and manner of worship of this religious denomination, or sect, would impact the character of the Temple, and affect the beliefs and practises of the worshippers of this Temple. Based on the material adduced before this Court, the Respondents have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial. [Paras 13.14-13.15][891-B-D]

Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Durgah Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR 383; Ratilal Panachand Gandhi v. The State of Bombay & Ors. [1954] SCR 1055; Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. [1964] 1 SCR 561; Bijoe

Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3 SCC 615 : [1986] 3 SCR 518; S. Mahendran v. The Secretary,

Travancore

Devaswom

Board,

Thiruvananthpuram and others AIR 1993 Kerala 42; Dr. Subramanian Swamy v. State of T.N. & Ors. (2014)

5 SCC 75 : [2014] 1 SCR 308; Daryao & Ors. v. State of U.P. & Ors. [1962] 1 SCR 574 – referred to. Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth 67 CLR 116; Carlos Frank v. State of Alaska 604 P.2d 1068 (1979) – referred to. Article 17

8.1 Article 17 refers to the practise of Untouchability as committed in the Hindu community against Harijans or people from depressed classes, and not women. The limited restriction on the entry of women during the notified age-group does not fall within the purview of Art. 17 of the Constitution. [Paras 14.5, 16(v)][[893-E-F; 898-A]

8.2 All forms of exclusion would not amount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class. The restriction on women within a certain age-band, is based upon the historical origin and beliefs and practices of the sabrimala temple. In the present case, women of the notified age group are allowed entry into all other temples of Lord Ayyappa. The restriction on the entry of women during the notified age group in this Temple is based on the unique characteristic of the deity, and not founded on any social exclusion. The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable. The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place. [Paras 14.2-14.3][891E-F; 893-A-B] Sri Venkatramana Devaru v. State of Mysore and others [1958] SCR 895 – referred to.

Constitutional Law of India: A Critical Commentary by H.M. SeervaiVol. II (4th Ed., Reprint 1999) para 9.418 at p 691; Indian Constitutional Lawby M.P. Jain (6 th Ed., Revised by Justice Ruma Pal and Samaraditya Pal; 2010) at p. 1067 – referred to.

Rule 3(b) of the 1965 Rules is not ultra vires the Act

9.1 Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion. [Para 16(vi)][893-A-B]

9.2 The provisions of the main section would be subject to the right of a religious denomination or section to manage its own affairs in the matters of religion. The proviso to Section 3 of the 1965 Act provides that no such regulation shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. [Para 15.1][895-G-H; 896-B]

9.3 Theproviso carves out an exception to the Section 3 itself. The declaration that places of public worship shall be open to Hindus of all sections and classes is not absolute, but subject to the right of a religious denomination to “manage its own affairs in matters of religion”. Section 3 must be viewed in the Constitutional context where the legislature has framed an enabling legislation under Article 25(2)(b) which has been made expressly subject to religious practises peculiar to a denomination under Article 26(b). [Para 15.2][896-C-D]

9.4 Rule 3(b) is within the ambit of the proviso to Section 3 of the 1965 Act, as it recognises pre-existing customs and usages including past traditions which have been practised since time immemorial qua the Temple. The Travancore Devaswom Board submits that these practises are integral and essential to the Temple. [Para 15.3][896-D-E]

9.5 The Notification dated November 27, 1956 issued by the Travancore Devaswom Board restricts the entry of women between the ages of 10 to 55 years as a custom and practise integral to the sanctity of the Temple, and having the force of law under Article 13(3)(a) of the Constitution. These practises are protected by the proviso to Section 3 of the 1965 Act which is given effect to by Rule 3(b) of the 1965 Rules. [Para 15.5][896-F; 897-A-B]

Raja Bira Kishore Deb Hereditary Superintendent, Jagannath Temple, P.O. and District Puriv. State of Orissa (1964) 7 SCR 32; Bennett Coleman & Co. & Ors. v. Union of India & Ors. (1972) 2 SCC 788: [1973]

2 SCR 757; Riju Prasad Sharma & Ors. v. State of Assam & Ors. (2015) 9 SCC 461; Ewanlangki-ERymbai v. Jaintia Hills District Council & Ors. (2006)

4 SCC 748 : [2006] 3 SCR 497; Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa (2006) 13 SCC 627 : [ 2006] 10 Suppl. SCR 628 ; Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. (2008) 13 SCC 119 : [2008]

3 SCR 833; Adi Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil Nadu & Anr. (2016) 2 SCC 725 : [2015] 11 SCR 1110 – referred to.

The Process of Pilgrimage: The Ayyappa Cultus and Sabarimalai Yatra by Radhika Sekar (Faculty of Graduate Studies, Department of Sociology and Anthropology at Carleton University, Ottawa,

Ontario; October 1987); Memoir of the Survey of the Travancore and Cochin States by Lieutenants Ward and Conner,(First Reprint 1994, Government of Kerala) at p. 137 – referred to.