INDIAN YOUNG LAWYERS ASSN. versus STATE OF KERALA 561 INDIAN YOUNG LAWYERS ASSOCIATION & ORS.V. THE STATE OF KERALA & ORS.

INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA[2018] 9 S.C.R. 561

INDIAN YOUNG LAWYERS ASSOCIATION & ORS.

THE STATE OF KERALA & ORS.

(Writ Petition (Civil) No. 373 of 2006)

SEPTEMBER 28, 2018[DIPAK MISRA, CJI, R. F. NARIMAN,A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD ANDINDU MALHOTRA, JJ.]

Constitution of India:

Arts. 25, 26 and 15 –Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965 – ss. 3, 4 – Kerala Hindu Placesof 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 betweenthe age of 10 to 50 years to Sabrimala temple, based upon abiological ground of menstruation – Validity of – Held: (Per DipakMisra, CJI) s. 3 being non-obstante clause stipulates that everyplace of public worship shall be open to all classes and sections ofHindus, women being one of them, irrespective of any custom orusage to the contrary – Language of both the s. 3 and the provisoto s. 4(1) clearly indicate that custom and usage must make spaceto the rights of all sections and classes of Hindus to offer prayersat places of public worship – Any interpretation to the contrarywould annihilate the purpose of the 1965 Act and incrementallyimpair 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 alsoultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates anexception to the effect that the regulations/rules made u/s. 4(1) shallnot discriminate, in any manner whatsoever, against any Hindu onthe ground that he/she belongs to particular section or class –Said practise is violative of the fundamental right of Hindu womento freely practise their religion under Art. 25(1) and exhibit theirdevotion towards Lord Ayyappa – This denial denudes them of theirright to worship – Held: (Per Nariman, J.) Custom or usage ofprohibiting women between the ages of 10 to 50 years from enteringthe Sabarimala temple is violative of Art. 25(1), and violative of the

A1965 Act – r. 3(b) whereby women by custom and usage are notallowed to enter place of public worship, is unconstitutional beingviolative of Art. 25(1) and Art. 15(1) – Practice or usage of keepingout women is violative of s. 3 and is struck down – Since proviso tothe Section is not attracted on the facts of the case, and since thesaid Act is clearly measure enacted u/Art. 25(2)(b), any religiousBright claimed on the basis of custom and usage as an essential matterof religious practice u/Art. 25(1), will be subject to the law made u/Art. 25(2)(b) – Held: (Per Chandrachud, J.) Notifications issuedby the Devaswom Board, prohibiting the entry of women betweenthe ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and areCeven otherwise unconstitutional – Hindu women constitute ‘sectionor class’ of Hindus u/s. 2 – Rule 3(b) of enforces custom contraryto s. 3, which directly offends the right of temple entry establishedby s. 3, thus, is ultra vires the 1965 Act – Claim for the exclusion ofwomen from religious worship, even if it be founded in religioustext, is subordinate to the constitutional values of liberty, dignityDand equality – Exclusionary practices are contrary to constitutionalmorality – Practice of excluding women from the temple atSabarimala is not an essential religious practice – Social exclusionof women, based on menstrual status, is form of untouchabilitywhich is an anathema to constitutional values – Held: (Per InduEMalhotra J.: Dissenting) Denial of entry of women in the age groupof 10 to 50 years in Sabarimala temple is not violative of Art. 14 –Sabarimala temple constitutes religious denomination – Practiseof restricting entry of women between the age group of 10 to 50years is an essential religious practise of the devotees of LordAyyappa at Sabarimala Temple – r.3(b) is statutory recognition ofFa 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 religious denomination –Held: (Per Dipak Misra, CJI) Devotees of Lord Ayyappa do notGhave an identified group or sect – They do not have commonreligious tenets peculiar to themselves, which they regard asconducive to their spiritual well–being, other than those which arecommon to the Hindu religion – Thus, the devotees of Lord Ayyappaare exclusively Hindus and do not constitute separate religious

denomination – Held: (Per Nariman, J.) There is no distinctive namegiven to the worshippers of Sabrimala temple; there is no commonfaith in the sense of belief common to particular religion orsection thereof; or common organization of the worshippers of theSabarimala temple so as to constitute the said temple into religiousdenomination – Also, there are over thousand other Ayyappatemples in which the deity is worshipped by practicing Hindus ofall kinds – Thus, Article 26 not attracted – (Per Chandrachud, J.)Worship of the presiding deity is not confined to adherents of aparticular religion – Practices associated with the forms of worshipdo not constitute the devotees into religious denomination –Considering the inability of the collective of individuals to satisfythe judicially-enunciated requirements, the set of individuals whorefer to themselves as “Ayyappans” or devotees of Lord Ayyappaas ‘religious denomination’ cannot be recognized – Held: (PerIndu Malhotra J.: Dissenting) If there are clear attributes that thereexists sect, which is identifiable as being distinct by its beliefs andpractices, and having collection of followers who follow the samefaith, it would be identifiable as religious denomination – Onfacts, respondents have made out strong and plausible case thatthe worshippers of the Sabarimala Temple have the attributes of areligious denomination, or sect thereof.Arts. 25 and 26 – Essential Religious Practices under Art. 25– Determination of – Practice of exclusion of women of the agegroup of 10 to 50 years being followed at the Sabarimala Temple –Held: (Per Dipak Misra, CJI) There seems to be no continuity inthe exclusionary practice followed at the Sabarimala temple andthus, it cannot be treated as an essential practice – On the contrary,it is an essential part of the Hindu religion to allow Hindu women toenter into temple as devotees and followers of Hindu religion andoffer their prayers to the deity – Moreso, in the absence of anyscriptural or textual evidence, the exclusionary practice followedat the Sabarimala temple, cannot be accorded the status of anessential practice of Hindu religion – By allowing women to enterinto the Sabarimala temple for offering prayers, it cannot beimagined that the nature of Hindu religion would be fundamentallyaltered or changed in any manner – Held: (Per Nariman, J.) Onlythe essential part of religion, as distinguished from secular activities,

ABCD

Ais the subject matter of the fundamental right – Matters essential toreligious faith and/or belief are to be judged on evidence before acourt of law by what the community professing the religion itselfhas to say as to the essentiality of such belief – One test would be toremove the particular belief stated to be an essential belief from thereligion, would the religion remain the same or would it be altered –BIn case religious activities are mixed up with secular activities, thedominant nature of activity test is to be applied – Court to take acommon sense view and be actuated by considerations of practicalnecessity – Held: (Per Chandrachud, J.) In determining theessentiality of practice, it is to be considered whether the practiceCis prescribed to be of an obligatory nature – If practice is optional,it cannot be said to be ‘essential’ to religion – If there is afundamental change in the character of the religion, only then cansuch practice be claimed to be an ‘essential’ part of that religion– Texts and tenets do not indicate that the practice of excludingwomen is an essential part of the religion – Practice of excludingDwomen is not uniform and militates against claim that such practiceis obligatory – Hence, no fundamental change in character ofreligion – Essential religious practices test enables the Court toadopt reformist vision of religion even though it may conflict withthe views held by the religion – Competence of the Court to do soEand the legitimacy of the assumption of that role may be questionable– Test merits closer look in future – Held: (Per Indu Malhotra J.:Dissenting) ‘Essential practises test’ have to be determined by thetenets 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.F25 – Thus, the practise of restricting entry of women between theage group of 10 to 50 years is an essential religious practise of thedevotees of Lord Ayyappa at Sabarimala Temple.

Art. 25(1) – Expression ‘all persons under’ – Meaning of –Held:(Per Dipak Misra, CJI) Expression ‘all persons’, demonstratesGthat the freedom of conscience and the right to freely profess, practiseand propagate religion is available, though subject to the restrictionsdelineated 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 fundamental right inHfavour of “all persons” which has reference to natural persons –

Every member of religious community has right to practice thereligion so long as he does not, in any way, interfere with thecorresponding right of his co-religionists to do the same.

Art. 25(1) – Expression – Held: (Per Chandrachud, J.] ‘allpersons under’ – By all persons, the Constitution means that everyindividual in society without distinction of any kind is entitled to afreedom of conscience and to freely profess, protect and propogatereligion – Three defining features of clause (1) of Article 25 are,first, the entitlement of all persons without exception; second, therecognition of an equal entitlement; and third, the recognition bothof the freedom of conscience and the right freely to profess, practiceand propogate religion.

Art. 17 – Untouchability– Denial of entry to women in theage group of 10 to 50 in the Ayyappa temple at Sabarimala, if amanifestation 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 stigmatizeindividuals, can have no place in constitutional regime - Prejudiceagainst women based on notions of impurity and pollutionassociated with menstruation is symbol of social exclusion – It isa form of untouchability which is an anathema to constitutionalvalues – Held: (Per Indu Malhotra J.: Dissenting) Limitedrestriction on the entry of women during the notified age-groupdoes not fall within the purview of Art. 17 – Art. 17 refers to practiceof untouchability as committed in the Hindu community againstHarijans or people from depressed classes, and not women –Restriction on women within certain age-band, is based upon thehistorical origin and beliefs and practices of the sabrimala temple,on the unique characteristic of the deity, and not founded on anysocial exclusion – Women of the notified age group are allowedentry into all other temples of Lord Ayyappa.

Art. 25(1) – Term ‘morality’ in Art. 25(1) – Held: (Per DipakMisra, CJI) Cannot be viewed with narrow lens so as to confinethe sphere of definition of morality to what an individual, sectionor religious sect may perceive the term to mean – Since theConstitution has been adopted and given by the people of thiscountry to themselves, the term public morality in Art. 25 has to beappositely understood as being synonymous with constitutional

Amorality – Notions of public order, morality and health cannot beused as colourable device to restrict the freedom to freely practisereligion and discriminate against women of the age group of 10 to50 years by denying them their legal right to enter and offer theirprayers at the Sabarimala Temple.BArt. 25(1) – Term ‘morality’ – Held: (Per Chandrachud, J.)

BArt. 25(1) – Term ‘morality’ – Held: (Per Chandrachud, J.)Popular notions about what is or is not moral may in fact be deeplyoffensive to individual dignity and human rights – Individual dignitycannot be allowed to be subordinate to the morality of the mob andshould not vary in accordance with the popular fashions of the day– Overarching sense of constitutional morality with the quest forChuman dignity, liberty and equality must prevail.

Arts. 25(2)(b) and 26(b) – Right to manage its own affairs inmatters of religion under Art. 26 – Held: (Per Nariman, J.) Rightgranted u/Art. 26 to be harmoniously construed with Art. 25(2)(b)– Right to manage its own affairs in matters of religion granted byDArt. 26(b), to be subject to laws made u/Art. 25(2)(b) which throwopen religious institutions of public character to all classes andsections of Hindus – Thus, even though the entry of persons into aHindu temple of public character would pertain to managementof its own affairs in matters of religion, yet such temple entry wouldbe subject to law throwing open Hindu religious institution of aEpublic character owned and managed by religious denominationor 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 complete ban on templeentry of certain persons, or are otherwise not discriminatory, mayFpass muster u/Art. 26(b).

Art. 25(2)(b) and 26(b) – Right to manage its own affairs inmatters of religion u/Art. 26 – Held: (Per Chandrachud, J.) Absenceof clause of subjection in Article 26 does not lead to the conclusionthat the freedom of religious denomination exists as discreteGelement, divorced from the others freedoms – Article 26 is one amonga large cluster of freedoms which the Constitution has envisaged asintrinsic to human liberty and dignity – Freedom of religiousdenominations under Article 26 must be read in manner whichpreserves equally, other individual freedoms – Dignity of womenwhich an emanation of Article 15 and reflection of Article 21

cannot be disassociated from the exercise of religious freedom underArticle 26.

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

Arts. 25 and 26 – Engagement of essential religious practiceswith constitutional values – Exclusion of women between the agegroup ten and fifty from the Sabarimala temple – Held: (PerChandrachud, J.) Exclusion is destructive of dignity – To exclude awoman from the might of worship is fundamentally at odds withconstitutional values – Physiological features of woman have nosignificance to her equal entitlements under the Constitution –Menstrual status of woman cannot be valid constitutional basisto deny her the dignity of being and the autonomy of personhood –Menstrual status of woman is deeply personal and an intrinsicpart of her privacy – Constitution must treat it as feature on thebasis of which no exclusion can be practised and no denial can beperpetrated.

Art. 13 – Term ‘laws in force’ – Custom or usage if falls withinthe ambit of ‘laws in force’ u/Art.13(1) – Plea that the exclusion ofwomen from the Sabarimala temple constitutes custom, independentof the Act and the 1965 Rules – Held: (Per Chandrachud, J.) Carvingout ‘custom or usage’ from constitutional scrutiny, denies theconstitutional vision of ensuring the primacy of individual dignity

– Decision in Narasu case that custom or usage not included in theambit of laws in force, is based on flawed premises – Custom orusage cannot be excluded from ‘laws in force’– Decision in Narasucase, in immunizing uncodified personal law and construing thesame as distinct from custom, overlooked the wide ambit that was tobe attributed to the term ‘laws in force’.

Arts. 25 and 26 – Deity as bearer of constitutional rights –Held: (Per Chandrachud, J.) Word ‘persons’ in certain statutes have

Abeen interpreted to include idols – Merely because deity has beengranted limited rights as juristic persons under statutory law doesnot mean that the deity necessarily has constitutional rights – Deitymay be juristic person for the purposes of religious law andcapable 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 ofrestricting the entry of women in the age group of 10 to 50 years inthe Sabarimala Temple – Maintainability and justiciability of – Held:(Per Indu Malhotra J.: Dissenting) Right to move the SupremeCourt u/Art. 32 for violation of fundamental rights, must be basedCon pleading that the petitioners’ personal rights to worship in thisTemple have been violated – This is an essential requirement tomaintain the challenge – Courts normally do not delve into issuesof religious practises, especially in the absence of an aggrievedperson from that particular religious faith, or sect – In matters ofDreligion and religious practises, Art. 14 can be invoked only by

persons who are similarly situated, that is, persons belonging to thesame faith, creed, or sect – Petitioners–association/Intervenors donot claim to be devotees of Lord Ayyappa in the Sabarimala Temple,who are aggrieved by the practises followed in the SabarimalaTemple.E

Art. 14 – Matters of religion and religious practice –Applicability of Art. 14 – Denial of entry to women in age group of10 to 50 years in Sabrimala temple – Held: (Per Indu Malhotra J.:Dissenting) Is not violative of Art. 14 – Religious customs andpractises cannot be solely tested on the touchstone of Article 14Fand the principles of rationality embedded therein – Religiouscommunity is to decide as to what constitutes essential religiouspractice – Equality in matters of religion to be viewed in the contextof the worshippers of the same faith – It is not for the courts todetermine which of these practises of faith are to be struck down,Gexcept if they are pernicious, oppressive, or social evil – Right togender equality to offer worship to Lord Ayyappa is protected bypermitting women of all ages, to visit temples where he has notmanifested himself in the form of ‘Naishtik Brahamachari’, andthere is no similar restriction in those temples.

HArt. 15 – Prohibition of discrimination on grounds of religion,

race, caste or sex – Applicability of Art. 15 – Submission thatSabrimala temple would be included in phrase ‘places of publicresort – Held: (Per Indu Malhotra J.: Dissenting) Cannot beaccepted – Conscious decision by the Constituent Assembly not toinclude ‘places of worship’ or ‘temples’ within the ambit of draftArticle 9, to be given due consideration.

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

r.3(b) – Kerala Hindu Places of Public Worship (Authorisationof Entry) Act 1965 – s. 3 – r. 3(b) whereby women by custom andusage not allowed to enter place of public worship – r. 3(b) ifultra vires s. 3 of the 1965 Act, whereby places of worship to beopen 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 viress. 4 of the 1965 Act – Held: (Per Nariman, J.) Rule 3(b) is ultravires 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 sexonly – Held: (Per Chandrachud, J.) Term ‘includes’ in s.2(c) has to–be given broad interpretation The expression ‘section or class’–includes women – Proviso to s.3 creates an exception Lord Ayyappado not constitute religious denomination and the Sabrimala temple–is not denominational temple Hence, notifications issued by theBoard prohibiting the entry of woman between ages ten and–fifty-five, are ultra vires s.3 Rule 3(b) gives precedence to customsand usages which allow the exclusion of women “at such time duringwhich they are not allowed to enter place of public worship” – Inlaying down such prescription, Rule 3(b) directly offends the rightof temple entry established by Section 3, thus, r. 3(b) is ultra viresthe Act – Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is notultra vires s. 3 of the 1965 Act, since the proviso carves out anexception in the case of public worship in temple for the benefitof any religious denomination or sect thereof, to manage theiraffairs in matters of religion – Declaration that places of publicworship shall be open to Hindus of all sections and classes is notabsolute, but subject to the right of religious denomination to“manage its own affairs in matters of religion” – r.3(b) is statutoryrecognition of pre-existing custom and usage being followed bythis Temple – r. 3(b) is within the ambit of the proviso to s. 3.

Ar. 3(b) whereby women not allowed to enter place of worship– Challenged to, as being violative of constitutional morality – Held:(Per Indu Malhotra J.: Dissenting) Constitutional Morality in apluralistic society and secular polity would reflect that the followersof various sects have the freedom to practise their faith inaccordance with the tenets of their religion – Equality and non-Bdiscrimination are facet of Constitutional Morality, which cannotbe viewed in isolation – Balance is to be struck between theprinciples of equality and non-discrimination on the one hand, andthe protection of the cherished liberties of faith, belief, and worshipguaranteed by Arts 25 and 26 to persons belonging to all religionsCin secular polity, on the other hand – Constitutional moralityrequires the harmonisation or balancing of all such rights, to ensurethat the religious beliefs of none are obliterated or undermined – Itis the Constitutional duty of the Court to harmonise these rights.

Judicial Review: Matters concerning religion and religious

Dpractice 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 injusticesby framing legislation –Art. 25(2) permits State made law on theEgrounds specified therein, and not judicial intervention – On facts,practice of exclusion of women of the age group of 10 to 50 yearsbeing followed at the Sabrimala temple are considered to be essentialor integral to that Temple – Any interference with the same wouldconflict with their right guaranteed by Art. 25(1) to worship LordFAyyappa in the form of ‘Naishtik Brahmachari’ – Judicial reviewof religious practises ought not to be undertaken, as the Courtcannot impose its morality or rationality with respect to the form ofworship of deity – Doing so would negate the freedom to practiseone’s religion according to one’s faith and beliefs – It would amount

to rationalising religion, faith and beliefs, which is outside the kenGof the courts.

Allowing the Writ Petition, the Court

HELD: Per Dipak Misra CJI (for himself and Khanwilkar

HFollowers of Lord Ayyappa do not constitute religious

denomination:

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

1.2 For any religious mutt, sect, body, sub-sect or anysection thereof to be designated as religious denomination, itmust be collection of individuals having collective commonfaith, common organization which adheres to the said commonfaith, and last but not the least, the said collection of individualsmust be labeled, branded and identified by distinct name. Themost important condition for religious denomination, i.e., thecollection of individuals ought to have system of beliefs ordoctrines which they regard as conducive to their spiritual well-being. For religious denomination, there must be newmethodology provided for religion. Mere observance of certainpractices, even though from long time, does not make it adistinct religion on that account. [Paras 94, 96][655-E-F; 656-A-C]

1.3 The submission that the pilgrims coming to visit theSabarimala temple being devotees of Lord Ayyappa are addressedas Ayyappans and, therefore, the third condition for religiousdenomination stands satisfied, is unacceptable. There is noidentified group called Ayyappans. Every Hindu devotee can goto the temple. There are other temples for Lord Ayyappa andthere is no such prohibition. Therefore, there is no identifiedsect. Thus, the Sabarimala temple is public religious endowmentand there are no exclusive identified followers of the cult. [Para95][655-F-H]

S.P. Mittal v. Union of India and others (1983) 1 SCC51 : [1983] 1 SCR 729; The Commissioner HinduReligious Endowments, Madras v. Shri LakshmindraThritha Swaminar of Sri Shirur Mutt [1954] SCR 1005– relied on.

572SUPREME COURT REPORTS

[2018] 9 S.C.R.

ANallor Marthandam Vellalar and others v.Commissioner, Hindu Religious and CharitableEndowment and others (2003) 10 SCC 712 : [2003]1 Suppl. SCR 920 – referred to.

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

2.1 Having stated that the devotees of Lord Ayyappa donot constitute religious denomination within the meaning ofArticle 26 and that Sabarimala Temple is public temple by virtueof the fact that Section 15 of the Travancore Cochin HinduCReligious Institutions Act, 1950 vests all powers of direction,control and supervision over it in the Travancore DevaswomBoard which, has been unveiled as ‘other authority’ within themeaning of Article 12, resultantly fundamental rights includingthose guaranteed under Article 25(1) are enforceable against theTravancore Devaswom Board and other incorporated DevaswomsDincluding 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 tofreely profess, practise and propagate religion is available, thoughsubject to the restrictions delineated in Article 25(1) itself, toEevery person including women. It needs to be understood thatthe kernel of Article 26 is ‘establishment of religious institution’so as to acclaim the status of religious denomination. Whereas,Article 25(1) guarantees the right to practise religion to everyindividual and the act of practice is concerned, primarily, withFreligious worship, rituals. The right guaranteed under Article25(1) has nothing to do with gender or, for that matter, certainphysiological factors, specifically attributable to women. Womenof any age group have as much right as men to visit and enter atemple in order to freely practise religion as guaranteed underArticle 25(1). [Paras 98, 99, 100][656-F-H; 657-B]G

Rev. Stainislaus v. State of Madhya Pradesh and others(1977) 1 SCC 677 : [1977] 2 SCR 611; TheCommissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005 – referred to.

2.3 The practice of exclusion of women from entry intoreligious places violates the right of women to visit and enter atemple to freely practise Hindu religion and to exhibit herdevotion towards Lord Ayyappa. The denial of this right to womensignificantly denudes them of their right to worship. The rightguaranteed under Article 25(1) is not only about inter-faith paritybut it is also about intra-faith parity. Therefore, the right to practisereligion under Article 25(1), in its broad contour, encompasses anon-discriminatory right which is equally available to both menand women of all age groups professing the same religion. [Paras101][657-C-E]

Nar Hari Shastri and others v. Shri Badrinath TempleCommittee AIR 1952 SC 245 : 1952 SCR 849; AcharyaJagadishwarananda 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 ofPublic Worship (Authorisation of Entry) Rules, 1965, framed inpursuance of the 1965 Act, stipulates exclusion of entry of womenof the age group of 10 to 50 years, is clear violation of the rightof such women to practise their religious belief which, inconsequence, 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 atemple of any caste are Hindus, it is their legal right to enter intoa temple and offer prayers. The women, in the case at hand, arealso Hindus and so, there is neither any viable nor any legallimitation on their right to enter into the Sabarimala Temple asdevotees of Lord Ayyappa and offer their prayers to the deity.The said rule of exclusion cannot be justified on the ground thatallowing entry to women of the said age group would, in any way,be harmful or would play jeopardizing role to public order,morality, health or, for that matter, any other provision/s of PartIII of the Constitution, for it is to these precepts that the rightguaranteed under Article 25(1) has been made subject to. [Paras104, 105][658-F-H; 659-A-B]

2.5 The term ‘morality’ occurring in Article 25(1) cannotbe viewed with narrow lens so as to confine the sphere of

Adefinition of morality to what an individual, section or religioussect may perceive the term to mean. When there is violation ofthe fundamental rights, the term ‘morality’ naturally impliesconstitutional morality and any view that is ultimately taken bythe Constitutional Courts must be in conformity with the principlesand basic tenets of the concept of this constitutional morality thatBgets 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; NavtejSingh Johar and others v. Union of India and othersC(2018) 10 SCALE 386 – referred to.

2.6 The right guaranteed under Article 25(1) has been madesubject to, by the opening words of the Article itself, public order,morality, health and other provisions of Part III of theConstitution. All the three words, that is, order, morality and healthDare qualified by the word ‘public’. Neither public order nor publichealth will be at peril by allowing entry of women devotees of theage group of 10 to 50 years into the Sabarimala temple for offeringtheir prayers. As regards public morality, it is made absolutelyclear that since the Constitution was not shoved, by any externalEforce, upon the people of this country but was rather adopted andgiven by the people of this country to themselves, the term publicmorality has to be appositely understood as being synonymouswith constitutional morality. The notions of public order, moralityand health cannot be used as colourable device to restrict thefreedom to freely practise religion and discriminate againstFwomen of the age group of 10 to 50 years by denying them theirlegal right to enter and offer their prayers at the Sabarimala templefor the simple reason that public morality must yield toconstitutional morality. [Paras 110, 111][661-A-D]

Whether exclusionary practice is an essential practice asGper Hindu religion

3.1 In no scenario, it can be said that exclusion of womenof any age group could be regarded as an essential practice ofHindu religion and on the contrary, it is an essential part of theHindu religion to allow Hindu women to enter into temple asH

devotees and followers of Hindu religion and offer their prayersto 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 Hindureligion. By allowing women to enter into the Sabarimala templefor offering prayers, it cannot be imagined that the nature of Hindureligion would be fundamentally altered or changed in any manner.Therefore, the exclusionary practice, which has been given thebacking of subordinate legislation in the form of Rule 3(b),framed by the virtue of the 1965 Act, is neither an essential noran integral part of the Hindu religion without which Hindu religion,of which the devotees of Lord Ayyappa are followers, will notsurvive. [Paras 122-123][665-D-G]

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

3.3 Where practice changes with the efflux of time, sucha practice cannotbe regarded as core upon which religion isformed. There has to be unhindered continuity in practice for itto attain the status of essential practice. It is further discerniblefrom the judgment of the High Court in S. Mahendran’s case thatthe Devaswom Board had accepted before the High Court thatfemale worshippers of the age group of 10 to 50 years used tovisit the temple and conducted poojas in every month for fivedays for the first rice feeding ceremony of their children. TheDevaswom Board also took stand before the High Court thatrestriction of entry for women was only during Mandalam,Makaeavilakku and Vishnu days. The impugned exclusionarypractice in question is ‘custom with some aberrations’ as priorto the passing of the Notification in 1950, women of all age groupsused to visit the Sabarimala temple for the first rice feedingceremony of their children. Therefore, there seems to be nocontinuity in the exclusionary practice followed at the Sabarimalatemple and in view thereof, it cannot be treated as an essentialpractice. [Paras 125, 126][666-A-D]

A3.4 In view of the law laid down by this Court in the secondAnanda Marga case, the exclusionary practice being followed atthe Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindureligion. Besides, the exclusionary practice has not beenobserved with unhindered continuity as the Devaswom BoardBhad accepted before the High Court that female worshippers ofthe age group of 10 to 50 years used to visit the temple andconducted poojas in every month for five days for the first ricefeeding ceremony of their children. [Para 144(viii)][674-F-H]

Commissioner of Police and others v AcharyaCJagadishwarananda Avadhuta and another (2004) 12SCC 770 : [2004] 2 SCR 1019 – relied on.

S. Mahendran v. The Secretary, Travancore DevaswomBoard, Thiruvananthpuram and others AIR 1993Kerala 42 – approved.

John Vallamattom and another v. Union of India (2003)6 SCC 611 : [2003] 1 Suppl. SCR 638; TheCommissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005; Mohd. Hanif Quareshi v. StateEof Bihar AIR 1958 SC 731 : [1959] SCR 629; Stateof West Bengal and others v. Ashutosh Lahiri and othersAIR 1995 SC 464 : [1994] 5 Suppl. SCR 515 ; DurgahCommittee, Ajmer and others v. Syed Hussain Ali andothers AIR 1961 SC 1402 : 1962 SCR 383; N.FAdithayan v. Travancore Devaswom Board and others(2002) 8 SCC 106 : [ 2002] 3 Suppl. SCR 76; AcharyaJagadishwarananda Avadhuta and others v.Commissioner of Police, Calcutta (1983) 4 SCC 522 :[1984] 1 SCR 447 – referred to.

GFree 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 person professing Buddhist, Sikh or Jaina religion.H

The word ‘person’ occurring therein for the pure and simplereason 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 ofsection or class suggests being limited to male division, sub-division, caste and so forth. [Para 128][666-E; 667-B-C]

4.2 Section 3 of the Act being non-obstante clause declaresthat every place of public worship which is open to Hindusgenerally or to any section or class thereof shall be open to allsections and classes of Hindus and no Hindu, of whatsoeversection or class, shall be prevented, obstructed or discouragedfrom entering such place of public worship, or from worshipping,offering prayers or performing any religious service at such placeof public worship in the like manner and to the like extent as anyother Hindu of whatsoever section or class may so be eligible toenter, worship, pray or perform. careful dissection of Section 3reveals that places of public worship in the State of Kerala,irrespective of any contrary law, custom, usage or instrumenthaving effect by virtue of any such law or any decree or order ofCourt, shall be open to all sections and classes of Hindus. Thedefinition of ‘section or class’ and ‘Hindu’ has to be imported, forthe purposes of Section 3, from the definition clauses 2(a) and2(c) which, includes all the genders, provided they are Hindus.The right provided under Section 3 due to its non-obstante naturehas to be given effect to regardless of any law, custom or usageto the contrary. [Paras 130, 131][667-G-H; 668-A-D]

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

4.4 The importance and the gravity of the right stipulatedunder Section 3 of this Act, for all sections and classes of Hinduswhich include women, is very well manifest and evident from the

Afact that its violation has been made penal under Section 5 of the1965 Act. Section 4 confers the power to make regulations forthe maintenance of order and decorum and performance of ritesand ceremonies with regard to places of public worship in Kerala.The proviso to Section 4 being an exception to Section 4(1) is anexample where the exception is more important than the ruleBitself. The language of the proviso to Section 4, in very clear andsimple terms, states that the regulations made under Section 4(1)shall not discriminate against any Hindu on the ground that he/she belongs to particular section or class. particular sectionor class includes women of all age groups, for Hindu women ofCany age group also constitute class or section of Hindus. [Paras133-135][668-G-H; 669-B-C; 670-A-B]

4.5 The law is well-settled on the point that when rule-making power is conferred under any statute on an authority, thesaid power has to be exercised within the confines of the statuteDand no transgression of the same is permissible. The exclusionarypractice, which has been given the backing of subordinatelegislation in the form of Rule 3(b), framed by the virtue of the1965 Act, is neither an essential nor an integral part of thereligion.A cursory reading of Rule 3(b) divulges that it is ultraviresboth Section 3 as well as Section 4, the reason being that SectionE3 being non-obstante provision clearly stipulates that everyplace of public worship shall be open to all classes and sectionsof Hindus, women being one of them, irrespective of any customor usage to the contrary. That apart, Rule 3(b) is also ultraviresSection 4 as the proviso to Section 4(1) creates an exception toFthe effect that the regulations/rules made under Section 4(1) shallnot discriminate, in any manner whatsoever, against any Hinduon the ground that he/she belongs to 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 SCCG683 : [2012] 6 SCR 34; General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav AIR 1988 SC876 : [1988] 3 SCR 62; Kunj Behari Lai Butail and orsv. State of H.P. AIR 2000 SC 1069 : [2000] 1 SCR1054; Global Energy Limited and anr v. CentralElectricity 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] 3SCR 396 – referred to.

4.6 The language of both the provisions, that is, Section 3and the proviso to Section 4(1) of the 1965 Act, clearly indicatesthat custom and usage must make space to the rights of allsections and classes of Hindus to offer prayers at places of publicworship. Any interpretation to the contrary would annihilate thepurpose of the 1965 Act and incrementally impair the fundamentalright to practise religion guaranteed under Article 25(1). It isclear as crystal that the provisions of the 1965 Act are liberal innature so as to allow entry to all sections and classes of Hindusincluding Scheduled Castes and Scheduled Tribes. But framingof Rule 3(b) under the garb of Section 4(1) would violate the verypurpose of the 1965 Act. Thus, Rule 3(b) is ultra vires the 1965Act. [Paras 143, 144(xii)][673-A-C; 675-F]Indian Young Lawyers Association and others v. Stateof Kerala and others(2017) 10 SCC 689; SardarSyedna Taher Saifuddin Saheb v. State of Bombay[1962] Suppl. 2 SCR 496; Raja Bira Kishore Deb v.State of Orissa(1964) 7 SCR 32; ShastriYagnapurushadiji and others v. Muldas BhundardasVaishya and another (1966) 3 SCR 242 ; DurgahCommittee, Ajmer v. Syed Hussain Ali (1962) 1 SCR383; Sri Venkatramana Devaru v. State of Mysore andothers [1958] SCR 895; Deepak Sibal v. PunjabUniversity and another (1989) 2 SCC 145 : [1989] 1SCR 689; Shayara Bano v. Union of India and others(2017) 9 SCC 1 : [2017] 7 SCR 797; Anuj Garg andothers v. Hotel Association of India and others (2008)3 SCC 1 : [2007] 12 SCR 991; Charu Khurana andothers v. Union of India and others (2015) 1 SCC 192: [2014] 12 SCR 259; National Legal Services Authorityv. Union of India and others (2014) 5 SCC 438; JusticeK. S. Puttaswamy and another v. Union of India andothers (2017) 10 SCC 1; Vishaka and others v. State ofRajasthan and others (1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; Seshammal and others v. State of

ATamil 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 SCC725 : [2015] 11 SCR 1110; T.M.A. Pai Foundation andothers v. State of Karnataka and others (1995) 5 SCC220 : [1995] 2 Suppl. SCR 608; Deoki Nandan v.BMurlidhar and others AIR 1957 SC 133 : [1956] SCR 756; Sri Radhakanta Deb and another v. Commissionerof Hindu Religious Endowments, Orissa (1981) 2 SCC226 : [1981] 2 SCR 826 – referred to.

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

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

1. The custom or usage of prohibiting women between theages of 10 to 50 years from entering the Sabarimala temple isDviolative of Article 25(1), and violative of the Kerala Hindu Placesof Public Worship (Authorisation of Entry) Act, 1965 made underArticle 25(2)(b) of the Constitution; and that Rule 3(b) of theKerala 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 fundamentalright in favour of “all persons” which has reference to naturalpersons. This fundamental right equally entitlesall such personsto the said fundamental right. Every member of religiouscommunity has right to practice the religion so long as he doesFnot, in any way, interfere with the corresponding right of his co-religionists to do the same. The content of the fundamental rightis the fleshing out of what is stated in the Preamble to theConstitution as “liberty of thought, belief, faith and worship”.Thus, all persons are entitled to freedom of conscience and theGright to freely profess, practice, and propagate religion. The rightto profess, practice, and propagate religion will include all actsdone in furtherance of thought, belief, faith, and worship. Thecontent of the right concerns itself with the word “religion”, whichwould mean matters of faith with individuals or communities,based on system of beliefs or doctrines which conduce to spiritualH

well-being. It does not have to be theistic but can include personswho are agnostics and atheists. [Paras 21.1-21.5][709-D-G]

2.2 It is only the essential part of religion, as distinguishedfrom secular activities, that is the subject matter of thefundamental right. Superstitious beliefs which are extraneous,unnecessary accretions to religion cannot be considered asessential parts of religion. Matters that are essential to religiousfaith and/or belief are to be judged on evidence before court oflaw by what the community professing the religion itself has tosay as to the essentiality of such belief. One test that has beenevolved would be to remove the particular belief stated to be anessential belief from the religion, would the religion remain thesame or would it be altered. Equally, if different groups of areligious community speak with different voices on theessentiality aspect presented before the Court, the Court is thento decide as to whether such matter is or is not essential. Religiousactivities may also be mixed up with secular activities, in whichcase the dominant nature of the activity test is to be applied. TheCourt should take common-sense view and be actuated byconsiderations of practical necessity. [Para 21.6][709-G-H; 710-A-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 largeas opposed to certain individuals. disturbance of public ordermust cause general disturbance of public tranquility. The term“morality” is difficult to define. For the present, it refers to thatwhich is considered abhorrent to civilized society, given themores of the time, by reason of harm caused by way, of exploitationor degradation. Health would include noise pollution and thecontrol of disease. [Para 21.7][710-C-E]

2.4 Another exception to the fundamental right conferredby Article 25(1) is the rights that are conferred on others by theother provisions of Part III. This would show that if one were topropagate one’s religion in such manner as to convert personof another religious faith, such conversion would clash with theother person’s right to freedom of conscience and would,therefore, be interdicted. Where the practice of religion is

ABC

Ainterfered with by the State, Articles 14, 15(1), 19, and 21 wouldspring into action. Where the practice of religion is interferedwith by non-State actors, Article 15(2) and Article 17 would springinto action. Article 25(2) is also an exception to Article 25(1),which speaks of the State making laws which may regulate orrestrict secular activity, which includes economic, financial orBpolitical activity, which may be associated with religious practice.Another exception is provided under Article 25(2)(b) which is intwo parts. Any law providing for social welfare and reform in areligious community can also affect and/or take away thefundamental right granted under Article 25(1). further exceptionCis provided only insofar as persons professing the Hindu religionare concerned, which is to throw open all Hindu religiousinstitutions of public character to all classes and sections ofHindus. [Paras 21.8-21.10][710-E-F; 711-A-C]

2.5 Contrasted with the fundamental right in Article 25(1)Dis the fundamental right granted by Article 26. This fundamentalright is not granted to individuals but to religious denominationsor sections thereof. religious denomination or section thereofis to be determined on the basis of persons having commonfaith, common organization, and designated by distinct nameas denomination or section thereof. Believers of particularEreligion are to be distinguished from denominational worshippers.Thus, Hindu believers of the Shaivite and Vaishnavite form ofworship are not denominational worshippers but part of thegeneral Hindu religious form of worship. [Para 21.11][711-D-E]2.6 Four separate and distinct rights are given by ArticleF26 to religious denominations or sections thereof, namely toestablish and maintain institutions for religious and charitablepurposes; to manage its own affairs in matters of religion; to ownand acquire movable and immovable property; and to administersuch property in accordance with law.” In Article 25, only essentialGreligious matters are protected. [Para 21.12][711-F-G; 712-A]

2.7The fundamental right granted under Article 26 is subjectto the exception of public order, morality, and health. However,since the right granted under Article 26 is to be harmoniouslyconstrued with Article 25(2)(b), the right to manage its own affairsHin matters of religion granted by Article 26(b), in particular, will

be subject to laws made under Article 25(2)(b) which throw openreligious institutions of public character to all classes andsections of Hindus. Thus, it is clear that even though the entry ofpersons into Hindu temple of public character would pertainto management of its own affairs in matters of religion, yet suchtemple entry would be subject to law throwing open Hindureligious institution of public character owned and managed bya religious denomination or section thereof to all classes orsections of Hindus. However, religious practices by the religiousdenomination or section thereof, which do not have the effect ofeither complete ban on temple entry of certain persons, or areotherwise not discriminatory, may pass muster u/Article 26(b).Examples are that only certain qualified persons are allowed toenter the sanctum sanctorum of temple, or time management ofa 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 DevaswomBoard, Thiruvananthpuram and others AIR 1993Kerala 42 – referred to.

2.8 All the older religions speak of the phenomenon ofmenstruation in women as being impure, which therefore, forbidstheir participation in religious activity.The reasons given forbarring the entry of menstruating women to the Sabarimala templeare considered by worshippers and Thanthris alike, to be anessential 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 CodesOf Apastamba, Gautama, Baudhayana, And Vasistha264 (Translation by Patrick Olivelle, OxfordUniversity Press, 1999); Srimad Bhagavatam – SixthCanto (Translation by A.C. Bhaktivedanta SwamiPrabhupada, The Bhaktivedanta Book Trust, 1976);The Qur’an – with Annotated Interpretation in ModernEnglish, 2:222 (Translation by Ali Ünal, Tughra BooksUSA, 2015); Gospel of Mark 5.25-34 (King JamesVersion); The Bundahishn – “Creation” or Knowledgefrom the Zand (Translation by E. W. West, from SacredBooks of the East, vol. 5, 37, and 46, Oxford University

ABC

584SUPREME COURT REPORTS

[2018] 9 S.C.R.

APress, 1880, 1892, and 1897); The Selections ofZadspram (Vizidagiha I Zadspram) (Joseph H.Peterson Ed., 1995) (Translation by E. W. West, fromSacred Books of the East, vol. 5, 37, and 46, OxfordUniversity Press, 1880, 1892, and 1897); Sri GuruGranth Sahib: English Translation of the Original TextB466-467, 975 (Translation by Dr. Gopal Singh, AlliedPublishers Pvt. Ltd., 2005) [which translates RagaAsa, Shaloka Mehla 1 at p. 472, 1022 of the originaltext of Sri Guru Granth Sahib]; Kitáb-i-Aqdas byBahá’u’lláh, note 106 at p. 122 (Translation by ShoghiCEffendi, Bahá’í World Centre, 1992) – referred to.2.9 As regards, the question that arises is whether theSabarimala temple can be said to be religious denomination forthe purpose of Article 26, three things are necessary in order toestablish that particular temple belongs to religiousDdenomination. The temple must consist of persons who have acommon faith, common organization, and are designated by adistinct name. In answer to the question whether Thanthris andworshippers alike are designated by distinct name, any answercannot be found. When asked whether all persons who visit theSabarimala temple have common faith, the answer given wasEthat all persons, regardless of caste or religion, are worshippersat the said temple. From this, it is also clear that Hindus of allkinds, Muslims, Christians etc., all visit the temple asworshippers, without, in any manner, ceasing to be Hindus,Christians or Muslims. They can therefore be regarded, as has

Fbeen held in Sri Adi Visheshwara case, as Hindus who worshipthe idol of Lord Ayyappa as part of the Hindu religious form ofworship but not as denominational worshippers. The same goesfor members of other religious communities. [Para 26][719-C-F]

Sri Adi Visheshwara of Kashi Vishwanath Temple,GVaranasi and Ors. v. State of U.P. and Ors. (1997) 4SCC 606 : [1997] 2 SCR 1086 – relied on.

Durgah Committee, Ajmer and others v. Syed HussainAli and others AIR 1961 SC 1402 : 1962 SCR 383;S.P. Mittal v. Union of India and others (1983) 1 SCCH51 : [1983] 1 SCR 729 – referred to.

2.10 There is no distinctive name given to the worshippersof this particular temple; there is no common faith in the sense ofa belief common to particular religion or section thereof; orcommon organization of the worshippers of the Sabarimala templeso as to constitute the said temple into religious denomination.Also, there are over thousand other Ayyappa temples in whichthe 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 custom or usagefor keeping out women of the ages of 10 to 50 from entering theSabarimala temple, and that this practice is an essential part ofthe Thanthris’ as well as the worshippers’ faith, this practice orusage is clearly hit by Section 3 of the Kerala Hindu Places ofPublic Worship (Authorisation of Entry) Act, 1965. Since theproviso to the Section is not attracted on the facts of this case,and since the said Act is clearly measure enacted under Article25(2)(b), any religious right claimed on the basis of custom andusage as an essential matter of religious practice under Article25(1), will be subject to the law made under Article 25(2)(b). Thesaid custom or usage must therefore, be held to be violative ofSection 3 and hence, struck down. [Para 28][720-F-G; 721-C-D]

2.12 Even otherwise, the fundamental right of womenbetween the ages of 10 and 50 to enter the Sabarimala temple isundoubtedly recognized by Article 25(1). The fundamental rightclaimed by the Thanthris and worshippers of the institution, basedon custom and usage under the selfsame Article 25(1), mustnecessarily yield to the fundamental right of such women, as theyare equally entitledto the right to practice religion, which wouldbe meaningless unless they were allowed to enter the temple atSabarimala to worship the idol of Lord Ayyappa. The submissionthat all women are not prohibited from entering the temple canbe of no avail, as women between the age group of 10 to 50 areexcluded completely. Also, the submission that such women canworship at the other Ayyappa temples is no answer to the denialof their fundamental right to practice religion as they see it, whichincludes their right to worship at any temple of their choice. Onthis ground also, the right to practice religion, as claimed by theThanthris and worshippers, must be balanced with and must yield

Ato the fundamental right of women between the ages of 10 and50, who are completely barred from entering the temple atSabarimala, based on the biological ground of menstruation. Rule3(b) of the Kerala Hindu Places of Public Worship (Authorisationof Entry) Rules, 1965 is ultra vires of Section 3 of the KeralaHindu Places of Public Worship (Authorisation of Entry) Act, 1965,Band is hit by Article 25(1) and by Article 15(1) of the Constitutionof India as this Rule discriminates against women on the basis oftheir sex only. [Para 29][721-D-H; 722-A, D]

2.13 The instant case raises grave issues relating to womengenerally, who happen to be between the ages of 10 to 50, andCare not allowed entry into the temple at Sabarimala on the groundof physiological or biological function which is common to allwomen between those ages. Since this matter raises far-reachingconsequences relating to Articles 25 and 26 of the Constitutionof India, it is necessary to decide this matter on merits.DConsequently, the technical plea that the instant writ petition,which is in the nature of PIL, is not maintainable inasmuch asno woman worshipper has come forward with plea that she hasbeen discriminated against by not allowing her entry into thetemple as she is between the age of 10 to 50 cannot stand in theway of constitutional court applying constitutional principles toEthe 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.F2.14 fervent plea was made by some of the counsels forthe Respondents that the Court should not decide this casewithout any evidence being led on both sides. Evidence is verymuch there, in the form of the writ petition and the affidavits thathave been filed in the writ petition, both by the Petitioners aswell as by the Board, and by the Thanthri’s affidavit. writ petitionGfiled under either Art. 32 or 226 is itself not merely pleading,but also evidence in the form of affidavits that are sworn. [Para31][723-B-D]

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

The Commissioner Hindu Religious Endowments,Madras v. Shri Lakshmindra Thritha Swaminar of SriShirur Mutt [1954] SCR 1005; Ratilal PanachandGandhi v. The State of Bombay & Ors. [1954] SCR1055; Sri Venkatramana Devaru v. State of Mysore andothers [1958] SCR 895; Sardar Syedna Taher SaifuddinSaheb v. State of Bombay [1962] Suppl. 2 SCR 496;Tilkayat Shri Govindlalji Maharaj etc. v. State ofRajasthan & Ors. [1964] 1 SCR 561; Seshammal andothers v. State of Tamil Nadu (1972) 2 SCC 11 : [1972]3 SCR 815; Rev. Stainislaus v. State of Madhya Pradeshand 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 KashiVishwanath 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) 5SCC 75 : [2014] 1 SCR 308; Riju Prasad Sharma &Ors. v. State of Assam & Ors. (2015) 9 SCC 461; AdiSaiva Sivachariyargal Nala Sangam & Ors. v.Government of Tamil Nadu & Anr. (2016) 2 SCC 725 :[2015] 11 SCR 1110 – referred to.

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

1. The devotees of Lord Ayyappa do not satisfy the judiciallyenunciated requirements to constitute religious denominationunder Article 26 of the Constitution. claim for the exclusion ofwomen from religious worship, even if it be founded in religioustext, is subordinate to the constitutional values of liberty, dignityand equality. Exclusionary practices are contrary to constitutionalmorality. In any event, the practice of excluding women from thetemple at Sabarimala is not an essential religious practice. TheCourt must decline to grant constitutional legitimacy to practiceswhich derogate from the dignity of women and their entitlementto an equal citizenship. The social exclusion of women, based onmenstrual status, is form of untouchability which is an anathema

Ato constitutional values. Notions of “purity and pollution”, whichstigmatize individuals, have no place in constitutional order.The notifications issued by the Devaswom Board, prohibiting theentry of women between the ages of ten and fifty, are ultra viresSection 3 of the 1965 Act and are even otherwise unconstitutional.Hindu women constitute ‘section or class’ of Hindus underBclauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the1965 Rules enforces custom contrary to Section 3. This directlyoffends the right of temple entry established by Section 3. Rule3(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 aCbalance between individual rights and claims of communitariannature. The Constituent Assembly recognised that the recognitionof truly just social order situated the individual as the ‘backboneof the state, the pivot, the cardinal center of all social activity,whose happiness and satisfaction should be the goal of everyDsocial mechanism.’ In forming the base and the summit of thesocial pyramid, the dignity of every individual illuminates theconstitutional order and its aspirations for just social order.Existing structures of social discrimination must be evaluatedthrough the prism of constitutional morality. The effect andendeavour is to produce society marked by compassion for everyEindividual. [Para 113][837-B-D]

2.2 Inhering in the right to religious freedom, is the equalentitlement of all persons, without exception, to profess, practiceand propagate religion. Equal participation of women in exercisingtheir right to religious freedom is recognition of this right. InFprotecting religious freedom, the framers subjected the right toreligious freedom to the overriding constitutional postulates ofequality, liberty and personal freedom in Part III. The dignity ofwomen cannot be disassociated from the exercise of religiousfreedom. In the constitutional order of priorities, the right toGreligious freedom is to be exercised in manner consonant withthe vision underlying the provisions of Part III. The equalparticipation of women in worship inheres in the constitutionalvision of just social order. [Para 114][837-D-F]

2.3 The discourse of freedom in the Constitution cannotHbe denuded of its context by construing an Article in Part III

detached from the part within which it is situated. Even the rightof religious denomination to manage its own affairs in mattersof religion cannot be exercised in isolation from Part III of theConstitution. The primacy of the individual, is the thread thatruns through the guarantee of rights. In being located in Part III,the exercise of denominational rights cannot override and rendermeaningless constitutional protections which are informed by theoverarching values of liberal Constitution. [Para 115][837-G-H; 838-A]2.4 The Constitution seeks to achieve transformed societybased on equality and justice to those who are victims oftraditional belief systems founded in graded inequality. It reflectsa guarantee to protect the dignity of all individuals who have facedsystematic discrimination, prejudice and social exclusion.Construed in this context, the prohibition against untouchabilitymarks powerful guarantee to remedy the stigmatization andexclusion of individuals and groups based on hierarchies of thesocial structure. Notions of purity and pollution have beenemployed to perpetuate discrimination and prejudice againstwomen. They have no place in constitutional order. Inacknowledging the inalienable dignity and worth of everyindividual, these notions are prohibited by the guarantee againstuntouchability 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, exclusionarytraditional customs assert claim to legitimacy which owes itsorigin to patriarchal structures. These forms of discriminationare not mutually exclusive. The intersection of identities in socialand religious life produces unique form of discrimination thatdenies women an equal citizenship under the Constitution.Recognizing these forms of intersectional discrimination is thefirst step towards extending constitutional protection againstdiscrimination attached to intersecting identities. [Para 116][838-B-E]

2.5 In the dialogue between constitutional freedoms, rightsare not isolated silos. In infusing each other with substantivecontent, they provide cohesion and unity which militates againstpractices that depart from the values that underlie the

AConstitution-justice, liberty, equality and fraternity. Substantivenotions of equality require the recognition of and remedies forhistorical discrimination which has pervaded certain identities.Such notion focuses on not only distributive questions, but onthe structures of oppression and domination which exclude theseidentities from participation in an equal life. An indispensableBfacet of an equal life, is the equal participation of women in allspheres of social activity. The quest for equality is denuded of itscontent if practices that exclude women are treated to beacceptable. The Constitution cannot allow practices, irrespectiveof their source, which are derogatory to women. Religion cannotCbecome cover to exclude and to deny the right of every womanto find fulfillment in worship. Sixty eight years after the advent ofthe Constitution, it has been held that in providing equality inmatters of faith and worship, the Constitution does not allow theexclusion of women. [Para 117][838-F-H; 839-A-C]

D2.6 Liberty in matters of belief, faith and worship, mustproduce compassionate and humane society marked by theequality of status of all its citizens. The Constitution sought tobreak the shackles of social hierarchies. In doing so, it sought tousher an era characterized by commitment to freedom, equalityand justice. The liberal values of the Constitution secure to eachEindividual an equal citizenship. This recognizes that theConstitution exists not only to disenable entrenched structuresof discrimination and prejudice, but to empower those whotraditionally have been deprived of an equal citizenship. The equalparticipation of women in every sphere of the life of the nationFsubserves that premise. [Para 118][839-C-E]

Essential Religious Practices

3.1 In its jurisprudence on religious freedom, this Courthas evolved body of principles which define the freedom ofreligion under Article 25 and Article 26 to practices ‘essential’Gto the religion. The Constitution has been held to protect notonly freedom of religious belief, but acts done in pursuance ofthose beliefs. While the views of religious denomination are tobe taken into consideration in determining whether practice isessential, those views are not determinative of its essentiality.HThe Court has assumed central role in determining what is or

is not essential to religious belief. Intrinsic to the role which theCourt has carved out, it has sought to distinguish between whatis religious and what is secular practice, even if it is associatedwith religious activity. Going further, the Court has enquiredinto whether practice is essential to religion. Essentiality of thepractice would, as the Court has held depends on whether thefundamental character of religion would be altered, if it werenot observed. Above all, there is an emphasis on constitutionallegitimacy, which underscores the need to preserve the basicconstitutional values associated with the dignity of the individual.The ephemeral distinction between religion and superstitionbecomes more coherent in terms of the need to preservefundamental constitutional values associated with human liberty.[Para 47][768-G-H; 769-A-C]

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

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

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

ABC

ACommissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005; Ratilal Panachand Gandhi v.The State of Bombay & Ors. [1954] SCR 1055; SriVenkatramana Devaru v. State of Mysore and others[1958] SCR 895; Mohd. Hanif Quareshi v. State ofBBihar AIR 1958 SC 731 : [1959] SCR 629; ShastriYagnapurushadiji v. Muldas Bhundardas Vaishya andanother(1966) 3 SCR 242; AcharyaJagadishwarananda Avadhuta and others v.Commissioner of Police, Calcutta (1983) 4 SCC 522 :C[1984] 1 SCR 447; Sri Adi Visheshwara of KashiVishwanath 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 AcharyaDJagadishwarananda Avadhuta and another (2004) 12SCC 770 : [2004] 2 SCR 1019; Adi SaivaSivachariyargal Nala Sangam and others v. Governmentof Tamil Nadu and others (2016) 2 SCC 725 : [2015]11 SCR 1110 ; Shayara Bano v. Union of India andEothers (2017) 9 SCC 1 : [2017] 7 SCR 797; Javed vState of Haryana (2003) 8 SCC 369 : [2003] 1 Suppl.SCR 947 – referred to.Adelaide Company of Jehovah’s Witnesses Incorporatedv The Commonwealth of Australia [1943] HCA 12 –referred to.F

The engagement of essential religious practices withconstitutional values

4.1 The Court must lean against granting constitutionalprotection to claim which derogates from the dignity of womenas equal holders of rights and protections. In the ethos of theGConstitution, it is inconceivable that age could be rational basisto condition the right to worship. The ages of ten to fifty havebeen marked out for exclusion on the ground that women in thatage group are likely to be in the procreative age. The physiologicalfeatures of woman have no significance to her equal entitlementsHunder the Constitution. All women in the age group of ten and

fifty may not in any case fall in the ‘procreative age group’. Butthat is again not matter of substance. The heart of the matterlies in the ability of the Constitution to assert that the exclusionof women from worship is incompatible with dignity, destructiveof liberty and denial of the equality of all human beings. Theseconstitutional values stand above everything else as principlewhich brooks no exceptions, even when confronted with claimof religious belief. To exclude women is derogatory to an equalcitizenship. [Para 54][774-B-F]

4.2 There is an assumption which cannot standconstitutional scrutiny. The assumption in such claim is that adeviation from the celibacy and austerity observed by thefollowers would be caused by the presence of women. Such aclaim cannot be sustained as constitutionally sustainableargument. Its effect is to impose the burden of man’s celibacyon woman and construct her as cause for deviation fromcelibacy. This is then employed to deny access to spaces to whichwomen are equally entitled. To suggest that women cannot keepthe Vratham is to stigmatize them and stereotype them as beingweak and lesser human beings. constitutional court such asthis one, must refuse to recognize such claims. [Para 55][774-G-

H; 775-A-B]

4.3 Human dignity postulates an equality between persons.The equality of all human beings entails being free from therestrictive and dehumanizing effect of stereotypes and beingequally entitled to the protection of law. Our Constitution haswilled that dignity, liberty and equality serve as guiding light forindividuals, the state and this Court. Though the Constitutionprotects religious freedom and consequent rights and practicesessential to religion, this Court will be guided by the pursuit touphold the values of the Constitution, based in dignity, libertyand equality. In constitutional order of priorities, these are valueson which the edifice of the Constitution stands. They infuseconstitutional order with vision for the future – of just, equaland dignified society. Intrinsic to these values is the anti-exclusionprinciple. Exclusion is destructive of dignity. To exclude womanfrom the might of worship is fundamentally at odds withconstitutional values. [Para 56][775-B-D]

A4.4 The stigma around menstruation has been built uparound traditional beliefs regarding the impurity of menstruatingwomen. They have no place in constitutional order. These beliefshave been used to shackle women, to deny them equalentitlements and subject them to the dictates of patriarchalorder. The menstrual status of woman cannot be validBconstitutional basis to deny her the dignity of being and theautonomy of personhood. The menstrual status of woman isdeeply personal and an intrinsic part of her privacy. TheConstitution must treat it as feature on the basis of which noexclusion can be practised and no denial can be perpetrated. NoCbody or group can use it as barrier in woman’s quest forfulfilment, including in her finding solace in the connect with thecreator.[Para 57][775-E-G]Government of NCT of Delhi v. Union of India andothers (2018) 8 SCALE 72; S. Mahendran v. TheDSecretary, Travancore Devaswom Board,Thiruvananthpuram and others AIR 1993 Kerala 42;Adi Saiva Sivachariyargal v. Government of Tamil Naduand others (2016) 2 SCC 725 : [2015] 11 SCR 1110;Commissioner of Police and others v AcharyaJagadishwarananda Avadhuta and another (2004) 12ESCC 770 : [2004] 2 SCR 1019; Navtej Singh v. Unionof India and others(2018) 10 SCALE 386;Commissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005 - referred to.

FReligious Denominations

5. The ingredients for set of individuals to be regarded asa religious denomination are common faith, commonorganisation and distinctive name brought together under therubric of religion. common thread which runs through them isGthe requirement of religious identity, which is fundamental tothe character of religious denomination.[Para 64][781-E-F]

Sri Venkatramana Devaru v. State of Mysore and others[1958] SCR 895; Commissioner Hindu ReligiousEndowments, 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 JagadishwaranandaAvadhuta and others v. Commissioner of Police, Calcutta(1983) 4 SCC 522 : [1984] 1 SCR 447; BramchariSidheswar Shai v State of West Bengal (1995) 4 SCC646 : [1995] 1 Suppl. SCR 745; Nallor MarthandamVellalar and others v. Commissioner, Hindu Religiousand Charitable Endowment and others (2003) 10 SCC712 : [2003] 1 Suppl. SCR 920 – referred to.

Do the devotees of Lord Ayyappa constitute religiousdenomination?

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

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

596SUPREME COURT REPORTS

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

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

BArticle 17, “Untouchability” and the notions of purity

7.1 The society is governed by the Constitution. The valuesof constitutional morality are non-derogable entitlement.Notions of “purity and pollution”, which stigmatize individuals,can have no place in constitutional regime. RegardingCmenstruation as polluting or impure, and worse still, imposingexclusionary disabilities on the basis of menstrual status, isagainst the dignity of women which is guaranteed by theConstitution. Practices which legitimise menstrual taboos, dueto notions of “purity and pollution”, limit the ability ofDmenstruating women to attain the freedom of movement, the rightto education and the right of entry to places of worship and,eventually, their access to the public sphere. Women have rightto control their own bodies. The menstrual status of woman isan attribute of her privacy and person. Women have aconstitutional entitlement that their biological processes mustEbe free from social and religious practices, which enforcesegregation and exclusion. These practices result in humiliationand 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 untouchabilityFpractices in relation to lower castes, but it will also apply to thesystemic humiliation, exclusion and subjugation faced bymenstruating women. Prejudice against women based on notionsof impurity and pollution associated with menstruation is symbolof exclusion. The social exclusion of women, based on menstrualstatus, is but form of untouchability which is an anathema toGconstitutional values. As an expression of the anti-exclusionprinciple, Article 17 cannot be read to exclude women againstwhom social exclusion of the worst kind has been practiced andlegitimized on notions of purity and pollution. Article 17 cannotbe read in restricted manner. But even if Article 17 were to beHread to reflect 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 otherprovisions of Part III, including Articles 15(2) and 21. Exclusionof women between the age groups of ten and fifty, based on theirmenstrual status, from entering the temple in Sabarimala can haveno place in constitutional order founded on liberty and dignity.[Para 81][804-E-F; 805-A-E]

7.2 The issue for entry in temple is not so much about theright of menstruating women to practice their right to freedom ofreligion, as about freedom from societal oppression, which comesfrom 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 ideologyof “purity and pollution” is violation of the constitutional rightagainst “untouchability”. [Para 82][805-F-G]

National Campaign for Dalit Human Rights v. Union ofIndia (2017) 2 SCC 432 : [2016] 9 SCR 122;Devarajiah v Padmanna AIR 1958 Mys 84; Jai Singhv Union of India AIR 1993 Raj 177; State of Karnatakav Appa Balu Ingale (1995) Supp 4 SCC 469 : [1992] 3Suppl. SCR 284; Adi Saiva Sivachariyargal NalaSangam and others v. Government of Tamil Nadu andothers (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: Cornerstoneof Nation, Oxford University Press (1999), at pagesxii-xiii; Politics and Ethics of the Indian ConstitutionRajeev Bhagava (ed.), Oxford University Press(2008), at page 15; Shiva Rao, The Framing of India’sConstitution: Study, Indian Institution of PublicAdministration (1968), at page 202-205; Dr. BabasahebAmbedkar: Writings and Speeches, (Vasant Moon ed.)Government of Maharashtra, Vol. 1 (2014), at pages39, Vol. 12 (2014), at pages 661-691, Vol. 5 (2014), atpages 9-18, Vol. 1 (2014), at pages 5-6, Vol. 1 (2014),at pages 23-96, (2014), Vol. 1, at pp 3-22; IndiaDissents: 3,000 Years of Difference, Doubt and

598SUPREME COURT REPORTS

[2018] 9 S.C.R.

AArgument, (Ashok Vajpeyi ed.), Speaking TigerPublishing Private Limited (2017), at pages 86-88;Sujatha Gidla, Ants among Elephants: An UntouchableFamily and the Making of Modern India, HarperCollins (2017), at p 114; Diane Coffey and DeanSpears, Where India Goes: Abandoned Toilets, StuntedBDevelopment and the Costs of Caste, Harper Collins(2017), at pp 74-79; Rajesh Ramachandran, Death forMoustache, Outlook (16 October 2017) – referred to.

The ultra vires doctrineC8.1 The devotees of Lord Ayyappa do not constitute areligious denomination and the Sabarimala temple is not adenominational temple. The proviso to section 3 has noapplication. The notifications which restrict the entry of womenbetween the ages of ten and fifty in the Sabarimala temple cannotstand scrutiny and plainly infringe Section 3. They prevent anyDwoman between the age of ten and fifty from entering theSabarimala temple and from offering prayers. Such restrictionwould infringe the rights of all Hindu women, recognized bySection 3. The notifications issued by the Board prohibiting theentry of women between ages ten and fifty-five, are ultra viresESection 3. [Para 87][810-E-G]

8.2 Hindu women constitute ‘section or class’ of Hindusunder clauses (b) and (c) of Section 2 of the 1965 Act. The provisoto Section 4(1) forbids any regulation which discriminates againstany Hindu on the ground of belonging to particular section orFclass. The mandate of Section 3 is that if place of public worshipis open to Hindus generally or to any section or class of Hindus,it shall be open to all sections or classes of Hindus. The Sabarimalatemple is open to Hindus generally and in any case to sectionor class of Hindus. Hence, it has to be open to allsections orclasses of Hindus, including Hindu women. Rule 3(b) givesGprecedence to customs and usages which allow the exclusion ofwomen “at such time during which they are not… allowed to entera place of public worship”. In laying down such prescription,Rule 3(b) directly offends the right of temple entry establishedby Section 3. Section 3 overrides any custom or usage to theHcontrary. But Rule 3 acknowledges, recognises and enforces

custom or usage to exclude women. This is plainly ultra vires.Theobject of the Act is to enable the entry of all sections and classesof Hindus into temples dedicated to, or for the benefit of or usedby any section or class of Hindus. The Act recognizes the rightsof all sections and classes of Hindus to enter places of publicworship and their right to offer prayers. The law was enacted toremedy centuries of discrimination and is an emanation of Article25(2)(b) of the Constitution. The broad and liberal object of theAct cannot be shackled by the exclusion of women. [Para 90][812-F-G; 813-A-D]Ardeshir Bhiwandiwala v State of Bombay [1961] 3SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971)3 SCC 550; Geeta Enterprises v State of U P (1983) 4SCC 202 : [1983] 3 SCR 812; Gopal Krishna Agrawalv 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 ofIndia v Elphinstone Spinning and Weaving Co Ltd.(2001) 4 SCC 139 : [2001] 1 SCR 221; AdditionalDistrict Magistrate v Siri Ram (2000) 5 SCC 451 :[2000] 3 SCR 1019; Maharashtra State Board ofSecondary and Higher Education v ParitoshBhupeshkumar Sheth, (1984) 4 SCC 27 – referred to.

The ghost of Narasu

9.1 The decision in Narasu, in restricting the definition ofthe term ‘laws in force’ detracts from the transformative visionof the Constitution. Carving out ‘custom or usage’ fromconstitutional scrutiny, denies the constitutional vision of ensuringthe primacy of individual dignity. The decision in Narasu, is basedon flawed premises. Custom or usage cannot be excluded from‘laws in force’. The decision also opined that personal law isimmune from constitutional scrutiny. This detracts from the notionthat no body of practices can claim supremacy over theConstitution and its vision of ensuring the sanctity of dignity,liberty and equality. This also overlooks the wide ambit that wasto be attributed to the term ‘laws in force’ having regard to itsinclusive definition and constitutional history. The decision inNarasu, in immunizing uncodified personal law and construing

FGH

Athe same as distinct from custom, deserves detailedreconsideration in an appropriate case.[Para 101][826-B-C, E]

The State of Bombay v Narasu Appa Mali AIR 1952Bom 84 – disapproved.

9.2 In the quest towards ensuring the rights guaranteed toBevery individual, Constitutional court such as ours is faced withan additional task. Transformative adjudication must provideremedies in individual instances that arise before the Court. Inaddition, it must seek to recognize and transform the underlyingsocial and legal structures that perpetuate practices against theCconstitutional vision. Subjecting personal laws to constitutionalscrutiny is an important step in this direction. In the denial ofequal access, the practice denies an equal citizenship andsubstantive equality under the Constitution. The primacy ofindividual dignity is the wind in the sails of the boat chartered onthe constitutional course of just and egalitarian social order.D[Para 102][826-F-G; 827-B-C]

K Gopalan v State of Madras [1950] SCR 88; RustomCavasjee Cooper v Union of India (1970) 1 SCC 248 :[1970] 3 SCR 530; Rustom Cavasjee Cooper v. Unionof India (1970) 1 SCC 248 : [1970] 3 SCR 530;EManeka 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 andanother v. Union of India and others (2017) 10 SCC1; The United Provinces v Mst. Atiqa Begum AIR 1941FFC 16; Ardeshir Bhiwandiwala v State of Bombay[1961] 3 SCR 592; CIT v Taj Mahal Hotel,Secunderabad (1971) 3 SCC 550; Geeta Enterprises vState of U P (1983) 4 SCC 202 : [1983] 3 SCR 812;Regional Director, ESIC v High Land Coffee Works ofP.F.X. Saldanha & Sons (1991) 3 SCC 617 : [1991] 3GSCR 307; Sant Ram v Labh Singh [1964] 7 SCR 756;Shayara Bano v. Union of India and others (2017) 9SCC 1 : [2017] 7 SCR 797 – referred to.

Indira Jaisingh, ‘The Ghost of Narasu Appa Mali isstalking the Supreme Court of India’, LawyersHCollective, 28 May, 2018; Matrimonial Laws and the

Constitution by M Bhattacharjee, Eastern Law House(1996) at p 32; Principles of Statutory Interpretationby Justice 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 - referredto.

Deity as bearer of constitutional rights

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

10.2 religious denomination or any section thereof has aright under Article 26 to manage religious affairs. This right vestsin collection of individuals which demonstrate (i) the existenceof religious sect or body; (ii) common faith shared by thosewho belong to the religious sect and common spiritualorganisation; (iii) the existence of distinctive name and (iv) acommon thread of religion. Article 25 grants the right to thefreedom of conscience and free profession, practice andpropagation of religion. Conscience, as cognitive process thatelicits emotion and associations based on an individual’s beliefsrests only in individuals. The Constitution postulates everyindividual as its basic unit. The rights guaranteed under Part IIIof the Constitution are geared towards the recognition of theindividual as its basic unit. The individual is the bearer of rightsunder Part III of the Constitution. The deity may be juristicperson for the purposes of religious law and capable of assertingproperty rights. However, the deity is not ‘person’ for thepurpose of Part III. The legal fiction which has led to therecognition of deity as juristic person cannot be extended tothe gamut of rights under Part III of the Constitution. [Para106][829-F-H; 830-A-B]

10.3 In any case, the exclusion of women from theSabarimala temple affects both, the religious and civic rights of

DEFG

Athe individual. The anti-exclusion principle would disallow claimbased on Article 25 and 26 which excludes women from theSabarimala Temple and hampers their exercise of religiousfreedom. This is in keeping with the over-arching liberal valuesof the Constitution and its vision of ensuring an equal citizenship.[Para 106][830-B-C]B

Pramatha Nath Mullick v Pradyumna Kumar Mullick(1925) 27 Bom LR 1064; Yogendra Nath Naskar vCommissioner of the Income-Tax, Calcutta (1969) 1SCC 555 : [1969] 3 SCR 742; S NarayanaDeekshitulu v State Of Andhra Pradesh 1996 9 SCCC548 : [1996] 3 SCR 543; Commissioner Hindu ReligiousEndowments, Madras v. Shri Lakshmindra ThrithaSwaminar of Sri Shirur Mutt [1954] SCR 1005 –referred to.

road map for the futureD

11.1 By reserving to itself the authority to determinepractices which are essential or inessential to religion, the Courtassumed reformatory role which would allow it to cleansereligion of practices which were derogatory to individual dignity.Exclusions from temple entry could be regarded as matters whichEwere not integral to religion. While doing so, the Court wouldset up progressive view of religion. This approach is problematic.The rationale for allowing religious community to define whatconstitutes an essential aspect of its religion is to protect theautonomy of religions and religious denominations. ProtectingFthat autonomy enhances the liberal values of the Constitution.By entering upon doctrinal issues of what does or does notconstitute an essential part of religion, the Court has, as anecessary consequence, been required to adopt religiousmantle. The Court would determine as to whether practice isor is not an essential part of religion. This has enabled the CourtGto adopt reformist vision of religion even though it may conflictwith the views held by the religion and by those who practice andprofess the faith. The competence of the Court to do so and thelegitimacy of the assumption of that role may be questionable.The Court discharges constitutional (as distinct from anecclesiastical) role in adjudication. Adjudicating on what does orH

does not form an essential part of religion blurs the distinctionbetween the religious-secular divide and the essential/inessentialapproach. The former has textual origin in Article 25(2)(a). Thelatter is judicial creation. [Para 108][831-D-H; 832-A-C]

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

11.3 The co-existence of group right in chapter onfundamental rights which places the individual at the forefront ofits focus cannot be matter without significance. It would beimpossible to conceive of the preservation of liberal constitutionalvalues while at the same time allowing group rights to defy thosevalues by practicing exclusion and through customs which arederogatory to dignity. This apparent contradiction can be resolvedby postulating that notwithstanding the recognition of group rightsin Article 26, the Constitution has never intended that theassertion of these rights destroy individual dignity and liberty.Group rights have been recognized by the Constitution in orderto provide platform to individuals within those denominationsto realize fulfilment and self-determination.[Para 110][833-C, D-F]11.4 deferential approach to what constitutes part ofreligious tenets would free the court from the unenviable task ofadjudicating upon religious texts and doctrines. The deference,however, that is attributed to religion is subject to the fundamentalprinciples which emerge from the quest for liberty, equality anddignity in Part III. Both Article 25(1) and Article 26 are subjectto public order, morality and health. Acting under the rubric ofthese limitations even the religious freedom of denominationis subject to the anti-exclusion principle. The anti-exclusionprinciple allows for due-deference to the ability of religion to

Adetermine its own religious tenets and doctrines. At the sametime, the principle postulates that where religious practicecauses the exclusion of individuals in manner which impairstheir dignity or hampers their access to basic goods, the freedomof religion must give way to the over-arching values of liberalconstitution. The essential religious practices test should meritBa close look, in an appropriate case in the future. [Paras 111-112][835-G; 836-A-B, D-F]

Commissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005; Ratilal Panachand Gandhi v.CThe State of Bombay & Ors. [1954] SCR 1055; DurgahCommittee, Ajmer and others v. Syed Hussain Ali andothers AIR 1961 SC 1402 : [1962] SCR 383; TilkayatShri Govindlalji Maharaj etc. v. State of Rajasthan &Ors. [1964] 1 SCR 561; Sastri Yagnapurushadji v.DMuldasBhudardas Vaishya [1966] 3 SCR 242;Commissioner of Police and others v AcharyaJagadishwarananda Avadhuta and another (2004) 12SCC 770 : [2004] 2 SCR 1019 – referred to.

Freedom from community: Individual rights, group life,state authority and religious freedom under the IndianConstitution by Gautam Bhatia,GlobalConstitutionalism, Cambridge University Press (2016)pp 374, 382; The Politics of Recognition inMulticulturalism: Examining the Politics of RecognitionC Taylor, (A Gutmann ed.) Princeton University Press(1994); Introduction Multiculturalism inMulticulturalism, Liberalism and Democracy RBhargava (R Bhargava et al. eds), Oxford UniversityPress (2007); Freedom of Religion in India: CurrentIssues and Supreme Court Acting as Clergy by FaizanMustafa and Jagteshwar Singh Sohi Brigham YoungUniversity Review (2017); Definitional imbroglios: Acritique of the definition of religion and essentialpractice tests in religious freedom adjudication JaclynL 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 forwant of standing. The grievances raised are non-justiciable atthe behest of the petitioners and Intervenors involved. [Para16(i)][897-D]

1.2 The right to move the Supreme Court under Article 32for violation of Fundamental Rights, must be based on pleadingthat the Petitioners’ personal rights to worship in this Templehave been violated. The Petitioners do not claim to be devoteesof the Sabarimala Temple where Lord Ayyappa is believed to havemanifested himself as ‘Naishtik Brahmachari’. To determinethe validity of long-standing religious customs and usages of asect, at the instance of an association/Intervenors who are“involved in social developmental activities especially activitiesrelated to upliftment of women and helping them become aware oftheir rights”, would require this Court to decide religiousquestions at the behest of persons who do not subscribe to thisfaith. The right to worship, claimed by the Petitioners has to bepredicated on the basis of affirmation of belief in the particularmanifestation of the deity in this Temple. [Para 7.2][856-C-E]1.3 The absence of this bare minimum requirement mustnot be viewed as mere technicality, but an essential requirementto maintain challenge for impugning practises of any religioussect, or denomination. Permitting PILs in religious matters wouldopen the floodgates to interlopers to question religious beliefsand practises, even if the petitioner is not believer of particularreligion, or worshipper of particular shrine. The perils areeven graver for religious minorities if such petitions areentertained. [Para 7.3][856-E-F]

1.4 In matters of religion and religious practises, Article14 can be invoked only by persons who are similarly situated,that is, persons belonging to the same faith, creed, or sect. ThePetitioners do not state that they are devotees of Lord Ayyappa,who are aggrieved by the practises followed in the SabarimalaTemple. The right to equality under Article 14 in matters ofreligion and religious beliefs has to be viewed differently. It has

Ato be adjudged amongst the worshippers of particular religionor shrine, who are aggrieved by certain practises which are foundto be oppressive or pernicious. [Para 7.4][857-A-B]

1.5 The right of an individual to worship specificmanifestation of the deity, in accordance with the tenets of thatBfaith or shrine, is protected by Article 25(1) of the Constitution.If person claims to have faith in certain deity, the same has tobe articulated in accordance with the tenets of that faith. In theinstant case, the worshippers of this Temple believe in themanifestation of the deity as ‘Naishtik Brahmachari’. Thedevotees of this Temple have not challenged the practisesCfollowed by this Temple, based on the essential characteristicsof the deity. [Para 7.5][857-C-D]

1.6 The right to practise one’s religion is FundamentalRight guaranteed by Part III of the Constitution, without referenceto whether religion or the religious practises are rational or not.DReligious practises are Constitutionally protected under Articles25 and 26(b). Courts normally do not delve into issues of religiouspractises, especially in the absence of an aggrieved person fromthat particular religious faith, or sect. [Para 7.6][857-E-F]

1.7 Precedents under Art. 25 have arisen against State actionand not been rendered in PIL. [Para 7.7][858-A]E

Hans Muller of Nurenburg v. Superintendent, PresidencyJail, Calcutta & Ors. [1955] 1 SCR 1284; CommissionerHindu Religious Endowments, Madras v. ShriLakshmindra Thritha Swaminar of Sri Shirur Mutt[1954] SCR 1005; Sri Venkatramana Devaru v. StateFof Mysore and others [1958] SCR 895; Mahant MotiDas v. S.P. Sahi, The Special Officer In Charge of HinduReligious trust & Ors. [1959] Supp 2 SCR 563; DurgahCommittee, Ajmer v. Syed Hussain Ali [1962] 1 SCR383; Sardar Syedna Taher Saifuddin Saheb v. State ofGBombay [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 : Critical CommentarybyH.M. Seervai Vol. II (4[th] Ed., Reprint 1999) - referredto.

Applicability of Article 14 in matters of religion and religiouspractice

2.1 The equality doctrine enshrined under Article 14 doesnot override the Fundamental Right guaranteed by Article 25 toevery individual to freely profess, practise and propagate theirfaith, in accordance with the tenets of their religion. [Para16(ii)][897-E]

2.2 Religious customs and practises cannot be solely testedon the touchstone of Article 14 and the principles of rationalityembedded therein. Article 25 specifically provides the equalentitlement of every individual to freely practise their religion.Equal treatment under Article 25 is conditioned by the essentialbeliefs and practises of any religion. Equality in matters of religionmust be viewed in the context of the worshippers of the samefaith. [Para 8.1][859-D-E]

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

2.4 The submission of the petitioners and intervenors thatthe age group of 10 to 50 years is arbitrary, and cannot stand therigours of Article 14, cannot be accepted, since the prescriptionof this age-band is the only practical way of ensuring that thelimited restriction on the entry of women is adhered to. [Para8.4][860-C]

2.5 The right to gender equality to offer worship to LordAyyappa is protected by permitting women of all ages, to visittemples where he has not manifested himself in the form of a‘Naishtik Brahamachari’, and there is no similar restriction in

Athose temples. It is pertinent to mention that the Respondents,in this context, have submitted that there are over 1000 templesof Lord Ayyappa, where he has manifested in other forms, andthis restriction does not apply. The prayers of the Petitioners ifacceded to, in its true effect, amounts to exercising powers ofjudicial review in determining the validity of religious beliefs andBpractises, which would be outside the ken of the courts. The issueof what constitutes an essential religious practise is for thereligious community to decide. [Paras 8.5-8.6][860-D-F]Applicability of Article 15

3. The submission that the Sabarimala Temple would beCincluded in the phrase “places of public resort”, as it occurs inArticle 15(2)(b), cannot be accepted. The Constituent Assemblyconsidered it fit not to include ‘places of worship’ or ‘temples’within the ambit of Draft Article 9 of the Constitution. Theconscious deletion of “temples” and “places of worship” from

Dthe Draft Article 9(1) has to be given due consideration. [Para9.1-9.2][860-H; 862-C-D]

Draft Constitution of India, Drafting Committee of theConstituent Assembly of India (Manager Governmentof India Press, New Delhi, 1948); Statement of K.T.Shah, Constituent Assembly Debates (November 29,E1948); Statement of Vice-President, ConstituentAssembly Debates (November 29, 1948); Statementof Mr. Mohd. Tahir, Constituent Assembly Debates(November 29, 1948) – referred to.

Role of Courts in matters concerning religionF4.1 The role of Courts in matters concerning religion andreligious practises under our secular Constitutional set up is toafford protection under Article 25(1) to those practises whichare regarded as “essential” or “integral” by the devotees, orthe religious community itself. [Para 10.1][862-E]

4.2 The Constitution lays emphasis on social justice andGequality. It has specifically provided for social welfare and reform,and throwing open of Hindu religious institutions of publiccharacter to all classes and sections of Hindus through theprocess of legislation in Article 25(2)(b) of the Constitution.Article 25(2)(b) is an enabling provision which permits the StateHto 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 thegrounds specified therein, and not judicial intervention. [Para10.8][872-A-B]

4.3 The 1965 Act is legislation framed in pursuance ofArticle 25(2)(b) which provides for the throwing open of Hinduplaces of public worship. The proviso to Section 3 of the 1965 Actcarves out an exception to the applicability of the general rulecontained in Section 3, with respect to religious denominations,or sect(s) thereof, so as to protect their right to manage theirreligious affairs without outside interference. Rule 3(b) giveseffect to the proviso of Section 3 insofar as it makes provisionfor restricting the entry of women at such times when they arenot by custom or usage allowed to enter of place of public worship.The Respondents claim the right to worship in the SabarimalaTemple under Article 25(1) in accordance with their beliefs andpractises as per the tenets of their religion. These practises areconsidered to be essential or integral to that Temple. Anyinterference with the same would conflict with their rightguaranteed by Article 25(1) to worship Lord Ayyappa in the formof ‘Naishtik Brahmachari’. In other jurisdictions also, whereState made laws were challenged on grounds of public morality,the Courts have refrained from striking down the same on theground that it is beyond the ken of the Courts.Judicial review ofreligious practises ought not to be undertaken, as the Courtcannot impose its morality or rationality with respect to the formof worship of deity. Doing so would negate the freedom topractise one’s religion according to one’s faith and beliefs. It wouldamount to rationalising religion, faith and beliefs, which is outsidethe ken of Courts.[Paras 10.9, 10.10, 10.11, 10.13][872-C-G; 873-C-D]

Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)3 SCC 615: [1986] 3 SCR 518; Tilkayat Shri GovindlaljiMaharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR561; Durgah Committee, Ajmer v. Syed Hussain Ali[1962] 1 SCR 383; Commissioner Hindu ReligiousEndowments, Madras v. Shri Lakshmindra ThrithaSwaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal

BCDEF

610SUPREME COURT REPORTS

APanachand Gandhi v. The State of Bombay & Ors. 1954SCR 1055; Shayara Bano v. Union of India and others(2017) 9 SCC 1 : [2017] 7 SCR 797; S.P. Mittal v. Unionof India and others (1983) 1 SCC 51 : [1983] 1 SCR729- referred to.

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

Constitutional law of India: Critical Commentary byH.M. Seervai; Religion, Law and the State in India byJ. Duncan M. Derett (1968) p. 447; Constitutional Lawof India: Critical Commentaryby H.M. Seervai Vol.EII (4[th] Ed., Reprint 1999) paragraph 12.18 at p. 1267-1268– referred to.

Constitutional morality in matters of religion in secularpolity

5. The concept of Constitutional Morality refers to theFmoral values underpinning the text of the Constitution, whichare instructive in ascertaining the true meaning of theConstitution, and achieve the objects contemplated therein.Constitutional Morality in pluralistic society and secular politywould reflect that the followers of various sects have the freedomto practise their faith in accordance with the tenets of theirGreligion. It is irrelevant whether the practise is rational or logical.Notions of rationality cannot be invoked in matters of religion bycourts. Equality and non-discrimination are certainly one facet ofConstitutional Morality. However, the concept of equality andnon-discrimination in matters of religion cannot be viewed inHisolation. Under our Constitutional scheme, balance is required

to be struck between the principles of equality and non-discrimination on the one hand, and the protection of thecherished liberties of faith, belief, and worship guaranteed byArticles 25 and 26 to persons belonging to all religions in secularpolity, on the other hand. Constitutional Morality in secularpolity 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 thetenets of their religion, irrespective of whether the practise isrational or logical, to ensure that the religious beliefs of none areobliterated or undermined. It is the Constitutional duty of theCourt to harmonise the rights of all persons, religiousdenominations or sects thereof, to practise their religion accordingto their beliefs and practises. [Paras 11.5-11.8][874-C-H; 875-F-G]

Sahara India Real Estate Corporation Limited & Ors.v. Securities and Exchange Board of India & Anr (2012)10 SCC 603 : [2012] 12 SCR 256; SubramaniamSwamy v. Union of India, Ministry of Law & Ors. (2016)7 SCC 221: [2016] 3 SCR 865; Acharya MaharajshriNarendra 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 aplausible case that the Ayyappans or worshippers of the SabarimalaTemple satisfy the requirements of being religiousdenomination, or sect thereof, which is entitled to the protectionprovided by Article 26. The issue whether the Sabarimala Templeconstitutes ‘religious denomination’, or sect thereof, is mixedquestion of fact and law. It is trite in law that question of factshould not be decided in writ proceedings. The proper forum toascertain whether certain sect constitutes religiousdenomination or not, would be more appropriately determinedby civil court, where both parties are given the opportunity ofleading evidence to establish their case. [Para 12.10, 16(iv)][897-G; 881-A-B]

A6.2 Article 26 guarantees that every religious denomination,or sect thereof, shall have the right inter alia to manage its ownaffairs in matters of religion. This right is made subject to publicorder, morality, and health. Article 26 refers not only to religiousdenominations, but also to sects thereof. religious denominationor organisation enjoys complete autonomy in matters of decidingBwhat rites and ceremonies are essential according to the tenetsof that religion. The only restriction imposed is on the exerciseof the right being subject to public order, morality and healthunder Article 26. [Paras 12.2-12.3][876-B-D]Commissioner Hindu Religious Endowments, MadrasCv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005; S.P. Mittal v. Union of Indiaand others (1983) 1 SCC 51 : [1983] 1 SCR 729; SardarSyedna Taher Saifuddin Saheb v. State of Bombay[1962] Suppl. 2 SCR 496 – referred to.D6.3 The meaning ascribed to religious denomination by thisCourt in Shirur Mutt case and subsequent cases is not strait-jacket formula, but working formula. It provides guidance toascertain whether group would fall within religiousdenomination or not. If there are clear attributes that there existsEa sect, which is identifiable as being distinct by its beliefs andpractices, and having collection of followers who follow the samefaith, it would be identifiable as religious denomination. [Para12.7-12.8][878-C-D]

6.4 Respondents have made out strong and plausible caseFthat the worshippers of the Sabarimala Temple have the attributesof religious denomination, or sect thereof.The submission thatsince the visitors to the temple are not only from the Hindureligion, but also from other religions, the worshippers of thisTemple would not constitute separate religious sect, cannot beaccepted since it is not uncommon for persons from differentGreligious faiths to visit shrines of other religions. This by itselfwould not take away the right of the worshippers of this Templewho may constitute religious denomination, or sect thereof.The Constitution ensures place for diverse religions, creeds,denominations and sects thereof to co-exist in secular society.HIt is necessary that the term ‘religious denomination’ should

receive an interpretation which is in furtherance of theConstitutional object of pluralistic society. [Paras 12.9, 12.12-12.13]879-D; 881-F-H; 882-A]

Arya Vyasa Sabha & Ors. v. Commissioner of HinduCharitable and Religious Institutions & Endowments,Hyderabad & Ors. (1976) 1 SCC 292; Dr. SubramanianSwamy 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 wouldhave to be determined by the tenets of the religion itself. Thepractises and beliefs which are considered to be integral by thereligious community are to be regarded as “essential”, andafforded protection under Article 25. The only way to determinethe essential practises test would be with reference to thepractises followed since time immemorial, which may have beenscripted in the religious texts of this temple. If any practise in aparticular temple can be traced to antiquity, and is integral to thetemple, it must be taken to be an essential religious practise ofthat temple. The Temple Thanthri, the Travancore DevaswomBoard, and believers of Lord Ayyappa have submitted that thelimited restriction on access of women during the notified age of10 to 50 years, is religious practise which is centralandintegralto the tenets of this shrine, since the deity has manifested himselfin the form of ‘Naishtik Brahmachari’. [Paras 13.6-13.7][886-E-H]

7.2 The practise of celibacy and austerity is the uniquecharacteristic of the deity in the Sabarimala Temple. Hindu deitieshave both physical/temporal and philosophical form. The samedeity is capable of having different physical and spiritual forms ormanifestations. Worship of each of these forms is unique, and notall forms are worshipped by all persons. The form of deity in anytemple is of paramount importance. Worship has two elements –the worshipper, and the worshipped. The right to worship underArticle 25 cannot be claimed in the absence of the deity in theparticular form in which he has manifested himself. Religion is amatter of faith, and religious beliefs are held to be sacred by thosewho share the same faith. Thought, faith and belief are internal,

CDE

Awhile expression and worship are external manifestations thereof.In the case of the Sabarimala Temple, the manifestation is in theform of ‘Naishtik Brahmachari’. The belief in deity, and theform in which he has manifested himself is fundamental rightprotected by Article 25(1) of the Constitution. The phrase “equallyentitled to”, as it occurs in Article 25(1), must mean that eachBdevotee is equally entitled to profess, practise and propagate hisreligion, as per the tenets of that religion. The celibate nature ofthe deity at the Sabarimala Temple has been traced by theRespondents to the SthalPurana of this Temple chronicled in the‘Bhuthanatha Geetha’. Evidence of these practises are alsoCdocumented in the Memoir of the Survey of the Travancore andCochin States written by Lieutenants Ward and Conner publishedin two parts in 1893 and 1901. The religious practise of restrictingthe entry of women between the ages of 10 to 50 years, is inpursuance of an ‘essential religious practise’ followed by therespondents. The said restriction has been consistently, followedDat the Sabarimala Temple, as is borne out from the Memoir ofthe Survey of the Travancore and Cochin States published in twoparts 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 atSabarimala is unique on the basis of centuries old religiousEpractises followed to preserve the manifestation of the deity, andthe worship associated with it. Any interference with the modeand manner of worship of this religious denomination, or sect,would impact the character of the Temple, and affect the beliefsand practises of the worshippers of this Temple. Based on theFmaterial adduced before this Court, the Respondents havecertainly made out plausible case that the practise of restrictingentry of women between the age group of 10 to 50 years is anessential religious practise of the devotees of Lord Ayyappa atthe Sabarimala Temple being followed since time immemorial.[Paras 13.14-13.15][891-B-D]G

Commissioner Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thritha Swaminar of Sri ShirurMutt [1954] SCR 1005; Durgah Committee, Ajmer v.Syed Hussain Ali [1962] 1 SCR 383; Ratilal PanachandGandhi v. The State of Bombay & Ors. [1954] SCRH1055; Tilkayat Shri Govindlalji Maharaj etc. v. State

of Rajasthan & Ors. [1964] 1 SCR 561; BijoeEmmanuel & Ors. v. State of Kerala & Ors. (1986) 3SCC 615 : [1986] 3 SCR 518; S. Mahendran v. TheSecretary, 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. Stateof U.P. & Ors. [1962] 1 SCR 574 – referred to.

Adelaide Company of Jehovah’s Witnesses Incorporatedv. 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 ascommitted in the Hindu community against Harijans or peoplefrom depressed classes, and not women. The limited restrictionon the entry of women during the notified age-group does not fallwithin 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 tountouchability. Article 17 pertains to untouchability based on casteprejudice. Literally or historically, untouchability was neverunderstood to apply to women as class. The restriction on womenwithin certain age-band, is based upon the historical origin andbeliefs and practices of the sabrimala temple. In the present case,women of the notified age group are allowed entry into all othertemples of Lord Ayyappa. The restriction on the entry of womenduring the notified age group in this Temple is based on the uniquecharacteristic of the deity, and not founded on any social exclusion.The analogy sought to be drawn by comparing the rights of Dalitswith reference to entry to temples and women is whollymisconceived and unsustainable. The right asserted by Dalits wasin pursuance of right against systematic social exclusion and forsocial acceptance per se. In the case of temple entry, social reformpreceded the statutory reform, and not the other way about. Thesocial reform was spearheaded by great religious as well asnational leaders like Swami Vivekananda and Mahatma Gandhi.The reforms were based upon societal morality, much beforeConstitutional Morality came into place. [Paras 14.2-14.3][891-E-F; 893-A-B]

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ASri Venkatramana Devaru v. State of Mysore and others[1958] SCR 895 – referred to.

Constitutional Law of India: Critical Commentary byH.M. SeervaiVol. II (4[th] Ed., Reprint 1999) para 9.418at p 691; Indian Constitutional Lawby M.P. Jain (6[th]BEd., Revised by Justice Ruma Pal and SamaradityaPal; 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 3of the 1965 Act, since the proviso carves out an exception in theCcase of public worship in temple for the benefit of any religiousdenomination or sect thereof, to manage their affairs in mattersof religion. [Para 16(vi)][893-A-B]

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

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

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

9.5 The Notification dated November 27, 1956 issued bythe Travancore Devaswom Board restricts the entry of womenHbetween the ages of 10 to 55 years as custom and practise

integral to the sanctity of the Temple, and having the force of lawunder Article 13(3)(a) of the Constitution. These practises areprotected by the proviso to Section 3 of the 1965 Act which isgiven 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 ofOrissa (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 ofAssam & Ors. (2015) 9 SCC 461; Ewanlangki-E-Rymbai 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) byLRs 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) 2SCC 725 : [2015] 11 SCR 1110 – referred to.

The Process of Pilgrimage: The Ayyappa Cultus andSabarimalai Yatra by Radhika Sekar (Faculty ofGraduate Studies, Department of Sociology andAnthropology at Carleton University, Ottawa,Ontario; October 1987); Memoir of the Survey of theTravancore and Cochin States by Lieutenants Wardand Conner,(First Reprint 1994, Government ofKerala) at p. 137 – referred to.

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of 2006.

Under Article 32 of the Constitution of India.

CRaju Ramachandran (AC), Ms. Indira Jaising, Dr. K. P.Kylasanatha Pillay, K. Ramamoorthy, P. V. Surendranath,K. Radhakrishnan, Jaideep Gupta, V. Giri, K. Parasaran, Dr. AbhishekManu Singhvi, Sr. Advs., K. Parameshwar (AC), Ishwar Mohanty (AC),Ms. Hansini Shankar (AC), R. P. Gupta, Dr. Laxmi Shastri, Ms. PrernaKumari, Ms. Bhawna Singh Dev, Bhakti Pasricha Sethi, Sunil Fernandes,DMs. Nehmat Kaur, Ms. Ajita Sharma, Paras Nath Singh, Ms. NupurKumar, Ms. Anju Thomas, Ms. Astha Sharma, Ms. Priyansha Sharma,A. Venayagam Balan, V. S. Lakshmi, Ms. Shoba Ramamoorthy,Sri Ram J. Thalapathy, V. Adhimoolam, Shilp Vinod, Pushkin Rajkumar,Ms. Reemitha R. Chandran, Ms. Lekha Sudhakaran, V. K. Sidharthan,EP. V. Yogeswaran, Ashish Kr. Upadhyay, Bhuwan Jayant, Y. Lokesh,Ms. V. Susheatha, Ms. Vanitha Chandrakant Giri, K. V. Jagdishvaran,Ms. G. Indira, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash,Mrs. Beena Prakash, Kunal Chatterjee, Sanand Ramakrishnan, RajeevMishra, Madan Mohan Bora, K. V. Mohan, K. V. Balakrishnan,Ms. Aditi Dani, Ms. Bina Madhavan, S. Udaya Kumar Sagar,FMs. Akanksha Mehra, PDT Achary, Nidhiram Sharma, Azeem Samuel,Narinder Neel (For M/s. Lawyer S Knit & Co.), Sreegesh M. K., BhavaniShankar V. Gadnis, Vishwanath B. Gadnis, Ms. Radni V. Gadnis, KrishnaKumar Singh, M/s. Ap & J Chambers, Shaijan C. George, Vaibhav Joshi,Ramesh P., Suhaas Ratjna Joshi, V. K. Biju, Hiren Dasan, Chand Qureshi,GAnkur Raghav, Abhay Pratap Singh, Vijay K. Verma, Tarun Verma,V. K. Verma, P. V. Saravanaraja, Naresh Kumar, Gautam Talukdar,Nishe Rajen Shonker, Anjani Kumar Mishra, Abhilash M. R., SimantaKumar, Sayooj Mohandas, Ranjan Kumar, Piyush Dwivedi, Manav Vohra,Amith Krishnan, Krishna Dev Jagarlamudi, Svadha Shankar, MohammedSadique T. A., Kuriakose Varghese, Ranjith Shankar, V. Shyamohan,HDeepak Grover, Willa Mathews, Ginesh P., Devendra Kumar Tiwari,

Paul John Edison, Shaji Sebastian, Shree Pal Singh, J. Sai Deepak, EshaanGhosh, Suvidutt M. S., Avinash K. Sharma, Ashutosh Nagar, Ms. Anzu,Yogmaya, K. V. Muthu Kumar, Amith J., Akshay R., GopalSankaranarayanan, Ms. Usha Nandini V., Biju P. Raman, M. S. VishnuSankar, Ravi Prakash Mehrotra, Ankit Agarwal, Advs. for the appearingparties.

Swami Omji (Applicant-in-person).

Mukesh Jain (Applicant-in-person).

The Judgments of the Court were delivered by

DIPAK MISRA, CJI (FOR HIMSELF AND

A.M. KHANWILKAR, J.)

Introduction

The irony that is nurtured by the society is to impose rule,however unjustified, and proffer explanation or justification to substantiatethe substratum of the said rule. Mankind, since time immemorial, hasbeen searching for explanation or justification to substantiate point ofview that hurts humanity. The theoretical human values remain on paper.Historically, women have been treated with inequality and that is why,many have fought for their rights. Susan B. Anthony, known for herfeminist activity, succinctly puts, “Men, their rights, and nothing more;women, their rights, and nothing less.” It is clear message.

2. Neither the said message nor any kind of philosophy has opened

up the large populace of this country to accept women as partners intheir search for divinity and spirituality. In the theatre of life, it seems,man has put the autograph and there is no space for woman even toput her signature. There is inequality on the path of approach to understandthe divinity. The attribute of devotion to divinity cannot be subjected tothe rigidity and stereotypes of gender. The dualism that persists in religionby glorifying and venerating women as goddesses on one hand and byimposing rigorous sanctions on the other hand in matters of devotion hasto be abandoned. Such dualistic approach and an entrenched mindsetresults in indignity to women and degradation of their status. The societyhas to undergo perceptual shift from being the propagator of hegemonicpatriarchal notions of demanding more exacting standards of purity andchastity solely from women to be the cultivator of equality where thewoman is in no way considered frailer, lesser or inferior to man. Thelaw and the society are bestowed with the Herculean task to act aslevellers in this regard and for the same, one has to remember the wise

Asaying of Henry Ward Beecher that deals with the changing perceptionsof the world in time. He says:

“Our days are kaleidoscope. Every instant change takes placein the contents. New harmonies, new contrasts, new combinationsof every sort. Nothing ever happens twice alike. The most familiarpeople stand each moment in some new relation to each other, toBtheir work, to surrounding objects. The most tranquil house, withthe most serene inhabitants, living upon the utmost regularity ofsystem, is yet exemplifying infinite diversities.”[1]

3. Any relationship with the Creator is transcendental onecrossing all socially created artificial barriers and not negotiatedCrelationship bound by terms and conditions. Such relationship andexpression of devotion cannot be circumscribed by dogmatic notions ofbiological or physiological factors arising out of rigid socio-culturalattitudes which do not meet the constitutionally prescribed tests.Patriarchy in religion cannot be permitted to trump over the element ofDpure devotion borne out of faith and the freedom to practise and professone’s religion. The subversion and repression of women under the garbof biological or physiological factors cannot be given the seal of legitimacy.Any rule based on discrimination or segregation of women pertaining tobiological characteristics is not only unfounded, indefensible andimplausible but can also never pass the muster of constitutionality.E4. It is universal truth that faith and religion do not countenancediscrimination but religious practices are sometimes seen as perpetuatingpatriarchy thereby negating the basic tenets of faith and of gender equalityand rights. The societal attitudes too centre and revolve around thepatriarchal mindset thereby derogating the status of women in the socialFand religious milieu. All religions are simply different paths to reach theUniversal One. Religion is basically way of life to realize one’s identitywith the Divinity. However, certain dogmas and exclusionary practicesand rituals have resulted in incongruities between the true essence ofreligion or faith and its practice that has come to be permeated withpatriarchal prejudices. Sometimes, in the name of essential and integralGfacet of the faith, such practices are zealously propagated.

The Reference

5. Having stated so, we will focus on the factual score. The instantwrit petition preferred under Article 32 of the Constitution seeks issuanceof directions against the Government of Kerala, Devaswom Board of

1 Henry Ward Beecher, 1813-1887 - Eyes and Ears

Travancore, Chief Thanthri of Sabarimala Temple and the DistrictMagistrate of Pathanamthitta to ensure entry of female devotees betweenthe age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala(Kerala) which has been denied to them on the basis of certain customand usage; to declare Rule 3(b) of the Kerala Hindu Places of PublicWorship (Authorisation of Entry) Rules, 1965 (for short, “the 1965Rules”) framed in exercise of the powers conferred by Section 4 of theKerala Hindu Places of Public Worship (Authorisation of Entry) Act,1965 (for brevity, “the 1965 Act”) as unconstitutional being violative ofArticles 14, 15, 25 and 51A(e) of the Constitution of India and further topass directions for the safety of women pilgrims.

6. The three-Judge Bench in Indian Young Lawyers Associationand others v. State of Kerala and others[2], keeping in view the gravityof the issues involved, sought the assistance of Mr. Raju Ramachandranand Mr. K. Ramamoorthy, learned senior counsel as Amicus Curiae.Thereafter, the three-Judge Bench analyzed the decision and the reasonsascribed by the Kerala High Court in S. Mahendran v. The Secretary,Travancore Devaswom Board, Thiruvananthpuram and others[3]wherein similar contentions were raised. The Bench took note of thetwo affidavits dated 13.11.2007 and 05.02.2016 and the contrary standstaken therein by the Government of Kerala.

7. After recording the submissions advanced by the learned counselfor the petitioners, the respondents as well as by the learned AmicusCuriae, the three-Judge Bench considered the questions formulated bythe counsel for the parties and, thereafter, framed the following questionsfor the purpose of reference to the Constitution Bench:

“1. Whether the exclusionary practice which is based upon abiological factor exclusive to the female gender amounts to“discrimination” and thereby violates the very core of Articles 14,15 and 17 and not protected by ‘morality’ as used in Articles 25and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an“essential religious practice” under Article 25 and whether areligious institution can assert claim in that regard under theumbrella of right to manage its own affairs in the matters ofreligion?

3. Whether Ayyappa Temple has denominational character and,if so, is it permissible on the part of ‘religious denomination’ 2 (2017) 10 SCC 689 3 AIR 1993 Kerala 42

managed by statutory board and financed under Article 290-Aof the Constitution of India out of the Consolidated Fund of Keralaand Tamil Nadu to indulge in such practices violating constitutionalprinciples/ morality embedded in Articles 14, 15(3), 39(a) and51-A(e)?

B4. Whether Rule 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Rules permits ‘religious denomination’ toban entry of women between the age of 10 to 50 years? And ifso, would it not play foul of Articles 14 and 15(3) of the Constitutionby restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of the Kerala Hindu Places of PublicWorship (Authorization of Entry) Rules, 1965 is ultra vires theKerala Hindu Places of Public Worship (Authorisation of Entry)Act, 1965 and , if treated to be intra vires, whether it will beviolative of the provisions of Part III of the Constitution?”

D8. Because of the aforesaid reference, the matter has been placedbefore us.

9. It is also worthy to note here that the Division Bench of theHigh Court of Kerala, in S. Mahendran (supra), upheld the practice ofbanning entry of women belonging to the age group of 10 to 50 years inEthe Sabarimala temple during any time of the year. The High Courtposed the following questions:

“(1) Whether woman of the age group 10 to 50 can be permittedto enter the Sabarimala temple at any period of the year or duringany of the festivals or poojas conducted in the temple.

(2) Whether the denial of entry of that class of woman amountsto discrimination and violative of Articles 15, 25 and 26 of theConstitution of India, and

(3) Whether directions can be issued by this Court to theDevaswom Board and the Government of Kerala to restrict theGentry of such woman to the temple?”

10. The High Court, after posing the aforesaid questions, observed

thus:

“40. The deity in Sabarimala temple is in the form of Yogi or aBramchari according to the Thanthri of the temple. He stated

that there are Sasta temples at Achankovil, Aryankavu andKulathupuzha, but the deities there are in different forms.Puthumana Narayanan Namboodiri, Thanthrimukhya recognisedby the Travancore Devaswom Board, while examined as C.W. 1stated that God in Sabarimala is in the form of aNaisthikBramchari.That, according to him, is the reason why young women are notpermitted to offer prayers in the temple.

41. Since the deity is in the form of Naisthik Brahmachari, it istherefore believed that young women should not offer worship inthe temple so that even the slightest deviation from celibacy andausterity observed by the deity is not caused by the presence ofsuch women.”

And again:

“… We are therefore of the opinion that the usage of woman ofthe age group 10 to 50 not being permitted to enter the temple andits precincts had been made applicable throughout the year andthere is no reason why they should be permitted to offer worshipduring specified days when they are not in position to observepenance for 41 days due to physiological reasons. In short, womanafter menarche up to menopause are not entitled to enter thetemple and offer prayars there at any time of the year.”

11. Analysing so, the High Court recorded its conclusions whichread thus:

“(1) The restriction imposed on women aged above 10 and below50 from trekking the holy hills of Sabarimala and offering worshipat Sabarimala Shrine is in accordance with the usage prevalentfrom time immemorial.

(2) Such restriction imposed by the Devaswom Board is notviolative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions of HinduPlace of Public Worship (Authorisation of Entry) Act, 1965 sincethere is no restriction between one section and another section orbetween one class and another class among the Hindus in thematter of entry to temple whereas the prohibition is only in respectof women of particular age group and not women as class.”

ASubmissions on behalf of the Petitioners

12. Learned counsel appearing for the petitioners have alluded tothe geographical location, historical aspect along with the Buddhistconnection of the Sabarimala temple and the religious history of LordAyyappa. They have, for the purpose of appreciating the functioning ofBthe Sabarimala temple, also taken us through the history of Devaswomin Travancore. As regards the statutory backing of the DevaswomBoards, the petitioners have drawn the attention of this Court to the‘Travancore - Cochin Hindu Religious Institutions Act, 1950’, Section 4of the said Act contemplates Devaswom Board for bringing allincorporated and unincorporated Devaswoms and other Hindu religiousCinstitutions except Sree Padmanabhaswamy Temple.

13. It has been put forth by them that the aforesaid enactmenthas been subject to various amendments over period of time, the lastamendment being made in the year 2007 vide Amending Act of 2007[published under Notification No. 2988/Leg.A1/2007 in K.G. ext. No.D694 dated 12.04.2007] which led to the inclusion of women into themanagement Board. The petitioners have also referred to Section 29Aof the said Act which stipulates that all appointments of officers andemployees in the Devaswom Administrative Service of the Board shallbe made from select list of candidates furnished by the Kerala PublicEService Commission. It has been submitted by the petitioners that afterthe 1950 Act, no individual Devaswom Board can act differently both inmatters of religion and administration as they have lost their distinctcharacter and Sabarimala no more remained temple of any religiousdenomination after the take over of its management.

F14. As far as the funding aspect is considered, it is contended thatprior to the adoption of the Constitution, both the Travancore and TamilNadu Devaswom Boards were funded by the State but after six yearsof the adoption of the Constitution, the Parliament, in the exercise of itsconstituent power, inserted Article 290-A vide the 7[th] Amendmentwhereby sum of rupees forty six lakhs and fifty thousand only is allowedGto be charged upon the Consolidated Fund of the State of Kerala whichis paid to the Travancore Devaswom Board. It has been asseverated bythe petitioners that after the insertion of Article 290-A in the Constitutionand the consequent State funding, no individual ill-practice could be carriedon in any temple associated with the statutory Devaswom Board evenHin case of Hindu temple as this constitutional amendment has been made

on the premise that no ill-practice shall be carried on in any temple whichis against the constitutional principles.

15. It is urged that since all Devaswoms are Hindu Temples andthey are bound to follow the basic tenets of Hindu religion, individual ill-practice of any temple contrary to the basic tenets of Hindu religion isimpermissible, after it being taken over by statutory board and statefunding in 1971. It is propounded that for the purpose of constituting a‘religious denomination; not only the practices followed by thatdenomination should be different but its administration should also bedistinct and separate. Thus, even if some practices are distinct in templesattached to statutory board, since its administration is centralized underthe Devaswom Board, it cannot attain distinct identity of separatereligious denomination.

16. It is contended that in legal and constitutional parlance, for thepurpose of constituting religious denomination, there has to be strongbondage among the members of its denomination. Such denominationmust be clearly distinct following particular set of rituals/practices/usages having their own religious institutions including managing theirproperties in accordance with law. Further, the petitioners have averredthat religious denomination which closely binds its members with certainrituals/practices must also be owning some property with perpetualsuccession which, as per the petitioners, the Constitution framers kept inmind while framing Article 26 of the Constitution and, accordingly,religious denominations have been conferred four rights under clauses(a) to (d) of Article 26. These rights, it is submitted, are not disjunctiveand exclusive in nature but are collectively conferred to establish theiridentity. To buttress this view, the petitioners have placed reliance on theviews of H.M. Seervai[4] wherein the learned author has stated that theright to acquire property is implicit in clause (a) as no religious institutioncould be created without property and similarly, how one could manageits own affairs in matters of religion under clause (b) if there is no religiousinstitution. Thus, for religious denomination claiming separate anddistinct identity, it must own some property requiring constitutionalprotection.

17. The petitioners have pressed into service the decisions of thisCourt in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay[5],

4 Third Edition, Vol. 1, 1983 pg. 931

5 [1962] Suppl. 2 SCR 496

ARaja Bira Kishore Deb v. State of Orissa[6], Shastri Yagnapurushadijiand others v. Muldas Bhundardas Vaishya and another[7]and S.P.Mittal v. Union of India and others[8] wherein the concept of religiousdenomination was discussed by this Court. It is the stand of the petitionersthat some mere difference in practices carried out at Hindu Templescannot accord to them the status of separate religious denominations.B

18. The contention of the petitioners is that Sabarimala Temple isnot separate religious denomination, for the religious parctices performedin Sabarimala Temple at the time of ‘Puja’ and other religious ceremoniesare akin to any other practice performed in any Hindu Temple. It doesnot have its separate administration, but is administered by or through aCstatutory body constituted under the ‘Travancore - Cochin Hindu ReligiousInstitutions Act, 1950’ and further, as per Section 29(3A) of the said Act,the Devaswom Commissioner is required to submit reports to thegovernment, once in three months, with respect to the working of theBoard.

D19. They have placed reliance on the decision of this Court in TheCommissioner Hindu Religious Endowments, Madras v. ShriLakshmindra Thritha Swaminar of Sri Shirur Mutt[9]wherein it wasobserved thus:

“The contention formulated in such broad terms cannot, we think,Ebe supported. In the first place, what constitutes the essential partof religion is primarily to be ascertained with reference to thedoctrines of that religion itself. If the tenets of any religious sectof the Hindus prescribe that offerings of food should be given tothe idol at particular hours of the day, that periodical ceremoniesFshould be performed in certain way at certain periods of theyear or that there should be daily recital of sacred texts or ablationsto the sacred fire, all these would be regarded as parts of religionand the mere fact that they involve expenditure of money oremployment of priests and servants or the use of marketablecommodities would not make them secular activities partaking ofGa commercial or economic character; all of them are religiouspractices and should be regarded as matters of religion within themeaning of article 26(b).”

6 (1964) 7 SCR 32

7 (1966) 3 SCR 242 : AIR 1966 SC 1119

8 (1983) 1 SCC 51H 9 [1954] SCR 1005

9 [1954] SCR 1005

20. As per the petitioners, this Court in Shirur Mutt (supra),while giving freedom under clauses (a) and (b) of Article 26, made itclear that what is protected is only the ‘essential part’ of religion or, inother words, the essence of ‘practice’ practised by religiousdenomination and, therefore, the petitioners submit that before anyreligious practice is examined on the touchstone of constitutional principles,it has to be ascertained positively whether the said practice is, in pith andsubstance, really the ‘essence’ of the said religion.

21. The petitioners have also cited the judgment in DurgahCommittee, Ajmer v. Syed Hussain Ali[10] wherein Gajendragadkar, J.clarified that clauses (c) and (d) do not create any new right in favour ofreligious denominations but only safeguard their rights. Similarly, in mattersof religious affairs, it is observed that the same is also not sacrosanct asthere may be many ill-practices like superstitions which may, in duecourse of time, become mere accretions to the basic theme of thatreligious denomination. After so citing, the petitioners have submittedthat even if any accretion added for any historical reason has becomean essence of the said religious denomination, the same shall not beprotected under Article 26(b) if it is so abhorring and is against the basicconcept of our Constitution.

22. It is also the case of the petitioners that discrimination in mattersof entry to temples is neither ritual nor ceremony associated withHindu religion as this religion does not discriminate against women but,on the contrary, Hindu religion accords to women higher pedestal incomparison to men and such discrimination is totally anti-Hindu, forrestriction on the entry of women is not the essence of Hindu religion. Ithas also been submitted by the petitioners that even if Sabarimala templeis taken as religious denomination, their basic tenets are not confinedto taking of oath of celibacy for certain period of pilgrimage as all pilgrimsare allowed freely in the temple and there is no such practice of notseeing the sight of women during this period.

23. Further, mere sight of women cannot affect one’s celibacy ifone has taken oath of it, otherwise such oath has no meaning andmoreover, the devotees do not go to the Sabarimala temple for takingthe oath of celibacy but for seeking the blessings of Lord Ayyappa.Maintaining celibacy is only ritual for some who want to practise it andfor which even the temple administration has not given any justification. 10 (1962) 1 SCR 383

AOn the contrary, according to the temple administration, since womenduring menstrual period cannot trek very difficult mountainous terrain inthe dense forest and that too for several weeks, this practice of notpermitting them has started.

24. It is averred by the petitioners that though no right is absolute,Byet entry to temple may be regulated and there cannot be any absoluteprohibition or complete exclusionary rule from entry of women to temple.For substantiating this view, the petitioners have pressed into service thejudgment of this Court in Shirur Mutt (supra), the relevant portion ofwhich reads thus:

C“We agree, however, with the High Court in the view taken by itabout section 21. This section empowers the Commissioner andhis subordinate officers and also persons authorised by them toenter the premises of any religious institution or place of worshipfor the purpose of exercising any power conferred, or any dutyimposed by or under the Act. It is well known that there could beDno such thing as an unregulated and unrestricted right of entry ina public temple or other religious institution, for persons who arenot connected with the spiritual functions thereof. It is traditionalcustom universally observed not to allow access to any outsiderto the particularly sacred parts of temple as for example, theEplace where the deity is located. There are also fixed hours ofworship and rest for the idol when no disturbance by any memberof the public is allowed. Section 21, it is to be noted, does notconfine the right of entry to the outer portion of the premises; itdoes not even exclude the inner sanctuary the Holy of Holies” asit is said, the sanctity of which is `zealously preserved. It does notFsay that the entry may be made after due notice to the head of theinstitution and at such hours which would not interfere with thedue observance of the rites and ceremonies in the institution. Wethink that as the section stands, it interferes with the fundamentalrights of the Mathadhipati and the denomination of which he isGhead guaranteed under articles 25 and 26 of the Constitution.”

25. The judgment of this Court in Sri Venkatramana Devaru v.State of Mysore and others[11]has been cited to submit that religiousdenomination cannot completely exclude or prohibit any class or sectionfor all times. All that religious denomination may do is to restrict theH 11 (1958) SCR 895 : 1958 AIR 55

entry of particular class or section in certain rituals. The relevant portionof Devaru (supra) reads as under:

“We have held that the right of denomination to wholly excludemembers of the public from worshipping in the temple, thoughcomprised in Art. 26(b), must yield to the overriding right declaredby Art. 25(2)(b) in favour of the public to enter into temple forworship. But where the right claimed is not one of general andtotal exclusion of the public from worship in the temple at all timesbut of exclusion from certain religious services, they being limitedby the rules of the foundation to the members of the denomination,,then the question is not whether Art. 25(2)(b) over-rides thatright so as to extinguish it, but whether it is possible-so to regulatethe rights of the persons protected by Art. 25(2)(b) as to giveeffect to both the rights. If the denominational rights are such thatto give effect to them would substantially reduce the rightconferred by Art. 25(2)(b), then of course, on our conclusion thatArt. 25(2)(b) prevails as against Art. 26(b),the denominationalrights must vanish. But where that is not the position, and aftergiving effect to the rights of the denomination what is left to thepublic of the right of worship is something substantial and notmerely the husk of it, there is no reason why we should not soconstrue Art. 25(2)(b) as to give effect to Art. 26(b) and recognisethe rights of the denomination in respect of matters which arestrictly denominational, leaving the rights of the public in otherrespects unaffected.”

(Emphasis is ours)

26. After referring to Sections 3 and 4 of the Kerala Hindu Placesof Public Worship (Authorization of Entry) Act, 1965 and Rule 3 (b)framed thereunder, the petitioners have submitted that the expression‘at any such time’ occurring in Rule 3(b) does not lead to completeexclusion/prohibition of any woman. In other words, if at such timeduring which, by any custom or usage, any woman was not allowed,then the said custom or usage shall continue and to substantiate thisclaim, the petitioners have cited the example that if during late night, bycustom or usage, women are not allowed to enter temple, the said customor usage shall continue, however, it does not permit complete prohibitionon entry of women. Further, the petitioners have submitted that anyother interpretation of Rule 3(b) would render the said rule open to

Achallenge as it would not only be violative of the Kerala Hindu Places ofPublic Worship (Authorization of Entry) Rules, 1965 but also of Article25(2)(b) of the Constitution read with Articles 14 and 15.

Submissions on behalf of Intervenor in I.A No. 10 of 2016

27. It has been submitted on behalf of the intervenor that theBexclusionary practice of preventing women between the age of 10 to 50years based on physiological factors exclusively to be found in femalegender violates Article 14 of the Constitution of India, for such aclassification does not have constitutional object. It is also the case ofthe applicant/intervenor that even if it is said that there is classificationCbetween men and women as separate classes, there cannot be anyfurther sub-classification among women on the basis of physiologicalfactors such as menstruation by which women below 10 years and above50 years are allowed.

28. It has been averred by the applicant/intervenor that as perDArticle 14, any law being discriminatory in nature has to have theexistence of an intelligible differentia and the same must bear rationalnexus with the object sought to be achieved. The object as has beenclaimed is to prevent the deity from being polluted, which, in the view ofthe applicant/intervenor, runs counter to the constitutional object of justice,liberty, equality and fraternity as enshrined in the Preamble to ourEConstitution. That apart, the applicant/intervenor has submitted that thoughthe classification based on menstruation may be intelligible, yet the objectsought to be achieved being constitutionally invalid, the question of nexusneed not be delved into.

29. Referring to the decision of this Court in Deepak Sibal v.FPunjab University and another[12], the applicant/intervenor has submittedthat the exclusionary practice per se violates the sacrosanct principle ofequality of women and equality before law and the burden of provingthat it does not so violate is on the respondent no. 2, the DevaswomBoard, which the said respondent has not been able to discharge.G30. It has also been asseverated by the applicant/intervenor thatthe exclusionary practice is manifestly arbitrary in view of the judgmentof this Court in Shayara Bano v. Union of India and others[13]as it issolely based on physiological factors and, therefore, neither serves any 12 (1989) 2 SCC 145 13 (2017) 9 SCC 1H

valid object nor satisfies the test of reasonable classification under Article14 of the Constitution.

31. It has also been put forth by the applicant/intervenor that theexclusionary practice per se violates Article 15(1) of the Constitutionwhich amounts to discrimination on the basis of sex as the physiologicalfeature of menstruation is exclusive to females alone. In support of thesaid submission, the applicant/intervenor has placed reliance upon thejudgments of this Court in Anuj Garg and others v. Hotel Associationof India and others[14]and Charu Khurana and others v. Union ofIndia and others[15], to accentuate that gender bias in any form is opposedto constitutional norms.32. It is also the case of the applicant/intervenor that exclusionarypractice has the impact of casting stigma on women of menstruatingage for it considers them polluted and thereby has huge psychologicalimpact on them which resultantly leads to violation of Article 17 as theexpression ‘in any form’ in Article 17 includes untouchability based onsocial factors and is wide enough to cover menstrual discrimination againstwomen. It has further been submitted by applicant/intervenor that Article17 applies to both State and non-State actors and has been made operativethrough Central legislation in the form of Protection of Civil RightsAct, 1955. The judgment of the High Court in S. Mahendran (supra), inthe view of the applicant/intervenor, is not in consonance with theprovisions of the 1955 Act.

33. Drawing support from the decisions of this Court in NationalLegal Services Authority v. Union of India and others[16]and JusticeK.S. Puttaswamy and another v. Union of India and others[17], theapplicant/intervenor has averred that the exclusionary practice pertainingto women is violative of Article 21 of the Constitution as it impacts theovulating and menstruating women to have normal social day to dayrendezvous with the society including their family members and, thus,undermines their dignity by violating Article 21 of the Constitution.

34. It has also been submitted that the exclusionary practice violatesthe rights of Hindu women under Article 25 of the Constitution as theyhave the right to enter Hindu temples dedicated to the public. As per the

14 (2008) 3 SCC 1

15 (2015) 1 SCC 192 16 (2014) 5 SCC 438 17 (2017) 10 SCC 1

Aapplicant/intervenor, there is catena of judgments by this Court whereinthe rights of entry into temples of all castes have been upheld on thepremise that they are Hindus and similarly, women who assert the rightto enter the Sabarimala temple are also Hindus.

35. The applicant/intervenor has referred to Section 4 of the KeralaBPlaces of Public Worship (Authorization of Entry) Act, 1965 and Rule3(b) made under the said section which disentitles certain categories ofpeople from entering any place of public worship and this includes womenwho, by custom or usage, are not allowed to enter place of publicworship. It has further been submitted by the applicant/intervenor thatRule 3(b) is ultra vires the 1965 Act and is also unconstitutional for itCviolates Articles 14, 15, 17, 21 and 25 of the Constitution in so far as itprohibits women from entering public temple. The said Rule 3(b), asper the applicant/intervenor, is not an essential practice protected underArticle 26 of the Constitution for it is not part of religion as the devoteesof Lord Ayyappa are just Hindus and they do not constitute separateDreligious denomination under Article 26 of the Constitution as they donot have common faith or distinct name. To substantiate this view,the applicant/intervenor has drawn the attention of this Court to thejudgment in S.P. Mittal (supra).

36. It has been submitted by the applicant/intervenor that even ifEwe assume that Sabarimala is religious denomination, the exclusion ofwomen is not an essential practice as it does not satisfy the test ofessential practice as has been laid down by this Court in Commissionerof Police and others v Acharya Jagadishwarananda Avadhuta andanother[18].

F37. Referring to the judgment of this Court in Devaru (supra), theapplicant/intervenor has submitted that the right to manage its own affairsconferred upon religious denomination under Article 26(b) is subject tobe rights guaranteed to Hindu women under Article 25(2)(b). As per theapplicant/intervenor, harmonious construction of Articles 25 and 26 ofthe Constitution reveals that neither Article 26 enables the State to makeGa law excluding any women from the right to worship in any publictemple nor does it protect any custom that discriminates against womenand, thus, such exclusion amounts to destruction of the rights of womento practise religion guaranteed under Article 25.38. The applicant/intervenor has also drawn the attention of thisCourt to the Convention on Elimination of all forms of DiscriminationAgainst Women (CEDAW) and the fact that India is party to thisConvention for emphasizing that it is the obligation of the State to eradicatetaboos relating to menstruation based on customs or traditions and furtherthe State should refrain from invoking the plea of custom or tradition toavoid their obligation. The judgment of this Court in Vishaka and othersv. State of Rajasthan and others[19]has been cited to submit thatinternational conventions must be followed when there is void in thedomestic law or when there is any inconsistency in the norms forconstruing the domestic law.

Submissions on behalf of Intervenor in I.A No. 34/2017

39. The intervenor, All India Democratic Women’s Association,has filed I.A No. 34/2017 wherein it has submitted that the meaning ofthe Constitution cannot be frozen and it must continuously evolve withthe changing times. Further, the applicant submits that merely becauseArticle 26 does not specify that it is subject to Part III or Article 25 ofthe Constitution, it cannot be said that it is insulated against Part III andespecially Articles 14, 15 19, 21 and 25 of the Constitution. To emphasizethe same, the applicant/intervenor has relied upon the observations madein Devaru case where the Court has stated that the rule of constructionis well settled that when there are two provisions in an enactment whichcannot be reconciled with each other, they should be so interpreted that,if possible, effect could be given to both. The Court observed that applyingthis rule of harmonious construction, if the contention of the appellants isto be accepted, then Art. 25(2)(b) will become wholly nugatory in itsapplication to denominational temples, though, as stated above, thelanguage of that Article includes them. The Court further observed thatif the contention of the respondents is accepted, then full effect can begiven to Article 26(b) in all matters of religion, subject only to this thatas regards one aspect of them, entry into temple for worship, the rightsdeclared under Article 25(2)(b) will prevail and therefore while, in theformer case, Article 25(2)(b) will be put wholly out of operation, in thelatter, effect can be given to both that provision and Article 26(b) and,hence, it must be accordingly held that Article 26(b) must be read subjectto Article 25(2)(b).

19 (1997) 6 SCC 241

638SUPREME COURT REPORTS

ASubmissions on behalf of Respondent No. 1

40. The State of Kerala, the first respondent herein, as indicatedearlier, had taken contrary stands at different times. An affidavit wasfiled on 13.11.2007 which indicated that the Government was not infavour of discrimination towards any woman or any section of the society.BThe said stand was changed in the affidavit dated 5.2.2016 taking thestand that the earlier affidavit was contrary to the judgment of the KeralaHigh Court. On 7.11.2016 on query being made by the Court, thelearned counsel for the State submitted that it wanted to place relianceon the original affidavit dated 13.11.2007. It is contended by Mr. JaideepGupta, learned senior counsel appearing for the State of Kerala, that theC1965 Act and the Rules framed thereunder are in consonance with Article25(2)(b) of the Constitution. Reference has been made to Section 3 ofthe Act, for the said provision deals with places of public worship to beopen to Hindus generally or any section or class thereof. The conceptof prohibition is not conceived of. It is urged by Mr. Gupta that there isDno restriction in view of the legislation in the field. In essence, the standof the State is that it does not conceive of any discrimination as regardsthe entry of women into the temple where male devotees can enter.

Submissions on behalf of Respondent No. 2

41. The respondent no. 2 has submitted that Sabarimala is templeEof great antiquity dedicated to Lord Ayyappa who the petitioner avers tobe deity depicting “a hyper masculine God born out of the union of twomale Gods Shiva and Mohini, where Mohini is Vishnu in female form.”

42. Thereafter, the respondent no. 2 reiterated the submissions ofthe respondent no. 4 pertaining to the observance of 41 days ‘Vruthum’Fand the fact that the Sabarimala Temple is supposed to depict ‘NaishtikaBrahmacharya’. In addition to this, the respondent no. 2 has also referredto Ph.D thesis by Radhika Sekar in the Department of Sociology andAnthropology at Carleton University, Ottawa, Ontario in October 1987titled “The Process of Pilgrimage : The Ayyappa Cultus and SabarimalaGYatra” which has established the very raison d’etre for the existenceof the denominational Temple of Sabarimala based upon deep penance,celibacy and abstinence by all visitors, male and female. The respondentno. 2 has also drawn the attention of the Court to the fact that theSabarimala temple is open only during specific defined periods, that is,on the Malayalam month viz. 17[th] November to 26th December, for theH

first five days of each Malayalam month which starts approximately inthe middle of each English calendar month and also during the period ofMakar Sankranti, viz. approximately from January 1 to mid-January ofeach year.

Submissions on behalf of Respondent No. 4

43. At the outset, the respondent no. 4 has drawn the attention ofthe Court to the history of Kerala in general and Sabarimala in particularand has highlighted the existence of stone inscriptions which state thatthe priest Kantaru Prabhakaru had made an idol consecration atSabarimala years back and after the rampage of fire at Sabarimala, itwas Kantaru Shankaru who consecrated the existing idol in Sabarimala.The respondent no. 4 has submitted that the Thantri is the vedic headpriest of Hindu temples in Kerala and the popularity of any temple dependsto great extent on the Thantri and Santhikkaran (Archaka) who mustbe able to induce spiritual reverence among worshippers and explainthe significance of the Mantras they recite and poojas they perform.

44. The respondent no. 4 has averred that the custom and usageof young women (aged between 10 to 50 years) not being allowed toenter the Sabarimala temple has its traces in the basic tenets of theestablishment of the temple, the deification of Lord Ayyappa and Hisworship. As per the respondent no. 4, Ayyappa had explained the mannerin which the Sabarimala pilgrimage was to be undertaken emphasizingthe importance of ‘Vrutham’ which are special observances that needto be followed in order to achieve spiritual refinement, and that as partof the ‘Vruthum’, the person going on pilgrimage separates himself fromall family ties for 41 days and during the said period either the womanleaves the house or the man resides elsewhere in order to separatehimself from all family ties. Thereafter, the respondent no. 4 has pointedout that the problem with women is that they cannot complete the 41days Vruthum as their periods would eventually fall within the said periodand it is custom among all Hindus that women do not go to temples orparticipate in religious activities during periods and the same issubstantiated by the statement of the basic Thantric text of templeworshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II.

45. The respondent no. 4 has emphasized that the observance of41 days Vruthum is condition precedent for the pilgrimage which hasbeen an age old custom and anyone who cannot fulfill the said Vruthum

Acannot enter the temple and, hence, women who have not attained pubertyand those who are in menopause alone can undertake the pilgrimage atSabarimala. The respondent no. 4 has also averred that the said conditionof observance of 41days Vruthum is not applicable to women alone andeven men who cannot observe the 41 days Vruthum due to births anddeaths in the family, which results in breaking of Vruthum, are also notBallowed to take the pilgrimage that year.

46. The respondent no. 4 has also drawn the attention of the Courtto the fact that religious customs as well as the traditional science ofAyurveda consider menstrual period as an occasion for rest for womenand period of uncleanliness of the body and during this period, womenCare affected by several discomforts and, hence, observance of intensespiritual discipline for 41 days is not possible. The respondent no. 4 hasalso contented that it is for the sake of pilgrims who practise celibacythat young women are not allowed in the Sabarimala pilgrimage.

47. The respondent no. 4, thereafter, contends that the prohibitionDis not social discrimination but is only part of the essential spiritualdiscipline related to this particular pilgrimage and is clearly intended tokeep the mind of the pilgrims away from the distraction related to sex asthe dominant objective of the pilgrimage is the creation of circumstancesin all respects for the successful practice of spiritual self-discipline.

48. The respondent no. 4 has also averred that for climbing the 18holy steps, one has to carry the irumudikettu (the sacred package ofofferings) and for making the pilgrimage really meaningful, austeritiesfor period of 41 days have to be observed and, hence, for meaningfulpilgrimage, it is always prudent if women of the forbidden age grouphold themselves back.F

49. The respondent no. 4 further submits that ‘devaprasanam’ isa ritual performed for answering questions pertaining to religious practiceswhen the Thantris are also unable to take decisions and that‘devaprasanams’ conducted in the past also reveal that the deity doesGnot want young women to enter the precincts of the temple. As per therespondent no. 4, the philosophy involved in evolving particular aspectof power in temple is well reflected in the following mantra chantingduring the infusion of divine power:

“O the Supreme Lord! It is well known that You pervadeeverything and everywhere’ yet I am invoking You in thisH

bimbhamvery much like fan that gathers and activates the all-pervading air at particular spot. At the fire latent in woodexpresses itself through friction, O Lord be specially active in thisbimbhamas result of sacred act.”

50. The respondent no. 4 is of the view that it is the particularcharacteristic of the field of power, its maintenance and impact whichthe ‘Devaprasanam’ deals with and ‘Devaprasanam’ confirms that thepractice of women of particular age group not participating in the templeshould be maintained.

51. To bolster his stand, the respondent no. 4 has also placedreliance upon the decision of the Kerala High Court in S. Mahendran(supra) wherein the then Thantri Shri Neelakandaru had deposed asC.W 6 and he stated that the present idol was installed by his paternaluncle Kantaru Shankaru and he confirmed that women of age group 10to 50 years were not allowed to enter the temple even before 1950s.The said witness also deposed that his paternal uncle had instructed himand the temple officials to follow the old customs and usages.52. The respondent no. 4 has also drawn the attention of the Courtto the opinion of this Court in Seshammal and others v. State of TamilNadu[20], wherein it was observed that on the consecration of the imagein the temple, the Hindu worshippers believe that the divine spirit hasdescended into the image and from then on, the image of the deity is fitto be worshipped and the rules with regard to daily and periodical worshiphave been laid down for securing the continuance of the divine spirit andas per the Agamas, an image becomes defiled if there is any departureor violation of any of the rules relating to worship.

53. The respondent no. 4 has also submitted that the deity atSabarimala in the form of ‘Naishtik Brahmachari’ and that is also areason why young women are not allowed inside the temple so as toprevent even the slightest deviation from celibacy and austerity observedby the deity.

Submissions on behalf of Intervenor in I.A Nos. 12 and 13

54. Another applicant/intervenor has filed I.A Nos. 12 and 13 andhis main submission is that this Court may remove the restriction whichbars women between the age group of 10 to 50 years from entering the

20 (1972) 2 SCC 11

ASabarimala temple for all days barring the period between 16[th] Novemberto 14[th] January (60 days) as during the said period, Lord Ayyappa sits inthe Sabarimala temple and Lord Ayyappa visits other temples all acrossthe country during the remaining days. The applicant/intervenor furtherhighlights that during the said period, the pilgrims coming to the templemust strictly follow the rituals which includes taking 41 days VruthumBand one of the rituals pertains to not touching the ladies including daughtersand wives as well. The applicant/intervenor has further submitted that ifthe restriction under Section 3(b) of the Kerala Hindu Places of Worship(Authorization of Entry) Rules, 1965 is allowed to operate only for thesaid period of 60 days, it would not amount to any violation of ArticlesC14, 15 and 17 of the Constitution and it would also be well within theambit of Articles 25 and 26 of the Constitution.

Rejoinder Submissions on behalf of the Petitioners

55. In reply to the contention of the respondent no. 2-DevaswomBoard that the writ jurisdiction does not lie in the present matter, theDpetitioners submit that the validity of Section 3(b) could not have beenchallenged in suit proceedings as the present writ petition has been filedagainst the State authorities and the Chief Thantri who has beenimpleaded as the respondent no. 4 is appointed by Statutory Board;and since now ‘custom and usage’ fall under the ambit of Article 13,Ethey have become subject to the constitutional provisions contained inPart III whose violation can only be challenged in writ jurisdiction.

56. Thereafter, the petitioners have submitted that the respondentno. 2 has merely pressed the theory of intelligible differentia to justifyencircling of women of prohibited age without elaborating the objectFsought to be achieved and whether the differentia even has any nexuswith the object and the object of preventing deflecting of the idol fromthe stage of celibacy cannot be achieved from the present classification.

57. Further, the petitioners have submitted that the respondent no.2 has wrongly stated that the Sabarimala temple is religiousGdenomination, for any temple under statutory board like DevaswomBoard and financed out of the Consolidated Fund of Kerala and whoseemployees are employed by the Kerala Service Commission cannot claimto be an independent ‘religious denomination’.

58. Besides, the petitioners have contended that several ill-practicesin existence and falling within the ambit of religion as cited by theH

respondent no. 2 may not be acceptable today and the said practiceshave not come up before this Court and should not be taken cognizanceof. Further, it is the view of the petitioners that the said practices cannotbe held to be the essence of religion as they had evolved out ofconvenience and, in due course of time, have become crude accretions.To prove its point, the petitioners have cited the examples of the practicesof dowry and restriction of women from entering mosques which,although had come into existence due to certain factors existing at therelevant time, no longer apply.

59. Thereafter, the petitioners have contended that if Sabarimaladoes not come in the category of religious denomination, then it cannotclaim the right under Article 26 and it would come within the purview ofArticle 12 making it subject to Articles 14 and 15 and, hence, the Statewould be restrained from denying equal protection of law and cannotdiscriminate on the basis of sex. Even if it is concluded that Sabarimalais religious denomination, then as per the Devaru case, there has to bea harmonious construction between Articles 25 and 26 of the Constitutionand, thus, to completely deny women of the age group of 10 to 50 yearsfrom entering the temple would be impermissible as per the Devarucase. Finally, the petitioners have submitted that in legal and constitutionalparlance, after coming into effect of the Constitution of India, ‘dignity ofwomen’ under Article 51A(e) is an essential ingredient of constitutionalmorality.

Rejoinder Submissions on behalf of Intervenor in I.A No.10 of 2016

60. The applicant/intervenor has submitted that the law relating toentry into temple for darshan is separate and distinct from the law relatingto management of religious affairs. The former is governed by Article25 and the latter is governed by Article 26. Further, the applicant/intervenor has pointed out that even those institutions which are held tobe denominations and claim protection under Article 26 cannot denyentry to any person for the purpose of darshan and the ex facie denialof women between the age group of 10 to 50 years violates Articles 14,15, 21 and 25 of the Constitution.

61. Thereafter, the applicant/intervenor has averred that thequestion whether Sabarimala is denomination or not is irrelevant for

Athe reason that even if it is concluded that Sabarimala is denomination,it can claim protection of only essential practices under Article 26(b)and denial of entry to women between the age of 10 to 50 years cannotbe said to be an essential aspect of the Hindu religion. Further, theapplicant/intervenor has also averred that Sabarimala does not satisfythe test of religious denomination as laid down in S.P. Mittal (supra).B

62. The applicant/intervenor has also submitted that therespondents, by referring to the practice as custom with aberrations,have themselves suggested that there has been no continuity in theapplicability of the said custom and that it has also been established inthe evidence before the High Court that women irrespective of their ageCwere permitted to enter the Sabarimala for the first rice feeding ceremonyof their children and it is only since the last 60 years after the passing ofthe Notification in 1955 that women between the age of 10 to 50 yearswere prohibited from entering the temple. The applicant/intervenor hasalso pointed out that even if the said practice is considered to be custom,Dit has to still pass the test of constitutional morality and constitutionallegitimacy and the applicant/intervenor has relied upon the decision ofthis Court in Adi Saiva Sivachariyargal Nala Sangam and others v.Government of Tamil Nadu and others [21]wherein it was observed:“48. Seshammal vs State of T.N., (1972) 2 SCC 11] is not anEauthority for any proposition as to what an Agama or set ofAgamas governing particular or group of temples lay down withregard to the question that confronts the court, namely, whetherany particular denomination of worshippers or believers have anexclusive right to be appointed as Archakas to perform the poojas.Much less, has the judgment taken note of the particular class orFcaste to which the Archakas of temple must belong asprescribedby the Agamas. All that it does and says is that some of the Agamasdo incorporate fundamental religious belief of the necessity ofperformance of the poojas by Archakas belonging to particularand distinct sect/group/denomination, failing which, there will beGdefilement of deity requiring purification ceremonies. Surely, ifthe Agamas in question do not proscribe any group of citizensfrom being appointed as Archakas on the basis of caste or classthe sanctity of Article 17 or any other provision of Part III of theConstitution or even theProtection of Civil Rights Act, 1955 will 21 (2016) 2 SCC 725H

not be violated. What has been said in Seshammal [Seshammal v.State of T.N., (1972) 2 SCC 11] (supra) is that if any prescriptionwith regard to appointment of Archakas is made by the Agamas,Section 28 of the Tamil Nadu Act mandates the trustee to conductthe temple affairs in accordance with such custom or usage. Therequirement of constitutional conformity is inbuilt and if customor usage is outside the protective umbrella afforded and envisagedby Articles 25 and 26, the law would certainly take its own course.The constitutional legitimacy, naturally, must supersede all religiousbeliefs or practices.”

63. In reply to the contention of the respondents that the basis forexclusion of women is that women cannot observe the 41 days Vruthumand also on the ground that Ayyappa is celibate God, the applicant/intervenor has submitted that the meaning of celibacy is the abstinencefrom sex and the respondents by suggesting that women cannot practiceVruthum which requires abstinence from sex are stigmatizing womenand stereotyping them as being weak and lesser human beings thanmen. Hence, the classification, in view of the applicant/intervenor, is notbased on intelligible differentia.

64. The applicant/intervenor has also submitted that menstruatingwomen and untouchables are being treated as similar in terms of entryto temple and, hence, the custom in dispute amounts to ‘untouchability’.

65. The applicant/intervenor has, thereafter, drawn the attentionof the Court to the fact that although the respondents aver that they donot intend to discriminate on the basis of gender, yet the Court has to testthe violation of the fundamental rights not on the basis of intention butthe impact of the impugned action. The applicant/intervenor has statedthat the respondents have wrongly placed reliance upon the decision inT.M.A. Pai Foundation and others v. State of Karnataka and others[22]as in the present case, the issue is not one pertaining to the rights ofminorities but concerning the unconstitutional acts of the majority.

66. The applicant/intervenor has also submitted that the age-oldpractice of considering women as impure while they are menstruatingamounts to untouchability and stigmatizes them as lesser human beingsand is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution.

ASubmissions of learned Amicus Curiae, Sr. Advocate Mr.Raju Ramchandran, assisted by Mr. K. Parameshwar

67. It is submitted on the behalf of learned Senior Advocate Mr.Raju Ramchandran, that the Sabarimala Sree Dharma Sastha Temple,Kerala is public temple being used as place of worship where membersBof the public are admitted as matter of right and entry thereto is notrestricted to any particular denomination or part thereof. As per thelearned Amicus, the public character of the temple gives birth to theright of the devotees to enter it for the purpose of darshan or worshipand this universal right to entry is not permissive right dependent uponthe temple authorities but legal right in the true sense of the expression.CTo advance this view, the learned Amicus has relied upon the decisionsof this Court in Deoki Nandan v. Murlidhar and others[23] and SriRadhakanta Deb and another v. Commissioner of Hindu ReligiousEndowments, Orissa[24].

68. As regards the nature of the right claimed by the petitionersDherein, learned Senior Advocate, Mr. Raju Ramchandran, the learnedAmicus, has submitted that it is the freedom of conscience and the rightto practise and profess their religion which is recognized under Article25 of the Constitution of India. This right, as per the learned Amicus,encompasses the liberty of belief, faith and worship, pithily declared as aEconstitutional vision in the Preamble to the Constitution of India.

69. Learned Senior Advocate Mr. Raju Ramchandran, the learnedAmicus, submits that the right of woman to visit and enter temple asa devotee of the deity and as believer in Hindu faith is an essentialaspect of her right to worship without which her right to worship isFsignificantly denuded. Article 25 pertinently declares that all persons are‘equally’ entitled to freely practise religion. This, in view of the learnedAmicus, implies not just inter-faith but intra-faith parity. Therefore, theprimary right under Article 25(1) is non-discriminatory right and is,thus, available to men and women professing the same faith.

70. Further, it has been put forth that the constitutional intent inkeeping the understanding of untouchability in Article 17 open-texturedwas to abolish all practices based on the notion of purity and pollution.This Article proscribes untouchability ‘in any form’ as prohibited and the

23 AIR 1957 SC 133

24 (1981) 2 SCC 226

exclusion of menstruating women from religious spaces and practices isno less form of discrimination than the exclusion of oppressed castes.After referring to Section 7(c) of the Civil Rights Act, 1955, whichcriminalizes the encouragement and incitement to practise untouchabilityin ‘any form whatsoever’ and the Explanation II appended to the saidSection, the learned Amicus has submitted that untouchability cannot beunderstood in pedantic sense but must be understood in the context ofthe Civil Rights Act to include any exclusion based on the notions ofpurity and pollution.71. It is also the view of the learned Amicus that the phrase ‘equallyentitled to’ in Article 25(1) finds resonance in Section 3(a) of the CivilRights Act, 1955 which criminalizes exclusion of people to those placeswhich are “open to other persons professing the same religion or anysection thereof, as such person” and prevention of worship “in the samemanner and to the same extent as is permissible to other personsprofessing the same religion or any section thereof, as such persons”.That apart, the learned Amicus has drawn our attention to Section 2(d)of the 1955 Act which defines ‘place of public worship’ to mean, interalia, ‘by whatever name belonging to any religious denomination or anysection thereof, for the performance of any religious service’ and,therefore, the Amicus submits that temple is public temple andirrespective of its denominational character, it cannot prevent the entryof any devotee aspiring to enter and worship.

72. After placing reliance on the decision of this Court in K.S.Puttaswamy (supra), the Amicus has submitted that the exclusionarypractice in its implementation results in involuntary disclosure by womenof both their menstrual status and age which amounts to forced disclosurethat consequently violates the right to dignity and privacy embedded inArticle 21 of the Constitution of India.

73. It has also been submitted by the Amicus Curiae that Article25(2)(b) is not mere enabling provision but is substantive right as itcreates an exception for laws providing for social reform or throwingopen of Hindu religious institutions of public character to all classesand sections of Hindus and thereby embodies the constitutional intent ofabhorring exclusionary practices. Further, referring to the judgment ofthis Court in Devaru (supra), the learned Amicus has submitted thatArticle 25(2)(b) does not merely seek to prevent exclusionary practiceson the basis of caste only, for the rights under Part III of the Constitution

CDE

Amust be given broad meaning and any exception must be given narrowconstruction.

74. Further, it has been submitted by the learned Amicus that theexclusionary practice in the present case cannot be justified either onthe grounds of health, public order or morality for the term ‘morality’Bused in Article 25 or 26 is not an individualized or sectionalized sense ofmorality subject to varying practices and ideals of every religion but it isthe morality informed by the constitutional vision. The judgments of thisCourt in Adi Saiva Sivachariyargal Nala Sangam (supra), ManojNarula v. Union of India[25] and National Legal Services Authority(supra) have been pressed into service by the Amicus to accentuate thatCany subjective reading of the term ‘morality’ in the context of Article 25would make the liberty of faith and worship otiose and the exclusion ofwomen as in the present case is matter of institutional practice and notmorality.

75. The Amicus has also cited the judgments of this Court inDAcharya Jagadishwarananda Avadhuta (supra) to submit that in orderto claim protection of the doctrine of essential religious practices, thepractice to exclude women from entry to the Sabarimala temple must beshown by the respondents to be so fundamental to the religious beliefwithout which the religion will not survive. On the contrary, no scripturalEevidence has been led by the respondents herein to demonstrate that theexclusion of women is an essential part of their religion.76. After referring to Section 3 of the Kerala Hindu Places ofPublic Worship (Authorization of Entry) Act, 1965 which makes placeof worship open to all sections and classes, Mr. Raju Ramchandran,Flearned senior counsel, is of the view that the said Section is nothing buta statutory enunciation of rights embodied under Article 25(2)(b) andsimilarly, the emphasis on the word ‘like’ in Section 3 is the statutoryreflection of the phrase ‘equally’ found in Article 25(1). That apart, it isthe case of the learned Amicus curiae that the expression ‘section’ or‘class’ in Section 2(c) of the 1965 Act must necessarily include all sexesGif Section 3 is to be in consonance with woman’s right to worshipunder Article 25 and in consonance with Article 15. As per the learnedAmicus, women between the age of 10 to 50 years are section orclass of Hindus who are within the inclusive provision of Section 3 andthe proviso to Section 3 brings in the right conferred in Article 26, for theH 25 (2014) 9 SCC 1

inter-play between Section 3 and the proviso must be governed by howArticles 25(2)(b) and 26 are reconciled by the judgment of this Court inDevaru (supra).

77. It have been asseverated by Mr. Raju Ramchandran, learnedsenior counsel, that Rule 3(b) of the Kerala Hindu Places of PublicWorship (Authorization of Entry) Rules, 1965 is ultra vires Sections 3and 4 of the 1965 Act, for the reason that it protects ‘custom and usage’which may prohibit entry when Section 3 expressly overrides customand usage. The said rule, in view of the learned Amicus, discriminatesagainst women when Section 4 makes it clear that rules made under itcannot be discriminatory against any section or class. It is submitted thatthe power entrusted under the 1965 Act to make rules, inter alia, fordue observance of religious rights and ceremonies is for the furtheranceof devotee’s right to worship under Article 25, whereas to the contrary,Rule 3(b), by saving ‘custom and usage’, militates against the very purposeof the 1965 Act which is to protect the right to worship guaranteedunder Article 25.

78. It has also been pointed out that there is another Rule, similarto Rule 3(b), in the form of Rule 6(c) framed under the 1950 Act, whichwas relied upon by the High Court and this Rule 6(c) has not beenassailed by the petitioners in the present writ petition, but in view of thelearned Amicus, this Rule 6(c) would also be unconstitutional for thesame reason that Rule 3(b) is unconstitutional.

79. The burden to prove that the devotees of Lord Ayyappa forma denomination within the meaning of Article 26, as per the learnedAmicus, is on the respondents, which they have failed to discharge asnone of the three tests for determination of denominational status, i.e.,(i) common faith, (ii) common organization and (iii) designation by adistinctive name, have been established by the respondents. Further, theAmicus has submitted that the decision of the Kerala High Court in S.Mahendran (supra) does not indicate finding of denominational status.

80. It is also submitted by the learned Amicus that DevaswomBoard in its counter affidavit before the Kerala High Court in S.Mahendran (supra), had asserted, as is reflected vide para 7 of thejudgment, that there was no such prohibition against women entering thetemple and that there was no evidence to suggest any binding religiouspractice and, likewise, the High Court, in its judgment vide para 34, found

Athe exclusionary practice as just usage and not religious custom oressential religious practice.

81. The learned Amicus also averred that even if we are to assumethat the devotees of Lord Ayyappa constitute separate denomination,the rights conferred under Article 26 being subject to the constitutionalBstandard of morality, exclusion of women from entry would violate thisstandard of morality for denomination’s right to manage its affairs inmatters of religion under Article 26(b) is subject to Article 25(2)(b) ashas been succinctly explained by this Court in Devaru (supra) byobserving thus:

C“And lastly, it is argued that whereas Article 25 deals with therights of individuals, Article 26 protects the rights of denominations,and that as what the appellants claim is the right of the GowdaSaraswath Brahmins to exclude those who do not belong to thatdenomination, that would remain unaffected by Article 25(2)(b).This contention ignores the true nature of the right conferred byDArticle 25(2)(b). That is right conferred on “all classes andsections of Hindus” to enter into public temple, and on theunqualified terms of that Article, that right must be available,whether it is sought to be exercised against an individual underArticle 25(1) or against denomination under Article 26(b). TheEfact is that though Article 25(1) deals with rights of individuals,Art. 25(2) is much wider in its contents and has reference to therights of communities, and controls both Article 25(1) and Article26(b).”

Submissions of learned Amicus Curiae, Senior AdvocateFMr. K. Ramamoorthy

82. It has been asseverated by learned Senior Advocate Mr. K.Ramamoorthy, learned Amicus curiae, that in all prominent Hindu templesin India, there had been some religious practices based on religious beliefs,which are essential part of the Hindu religion as considered by peopleGfor long time. It has been submitted that the devotees of Lord Ayyappacould also be brought within the ambit of religious denomination whohave been following the impugned religious practice which has beenessential part of religion.

83. Mr. K. Ramamoorthy, learned senior counsel, has submittedthat the petitioners herein have not disputed that the impugned religiousH

practice in Sabarimala temple is not religious practice based on religiousbelief for several centuries, rather the petitioners have only argued thatsuch practice is violative of Article 25 of the Constitution. It is alsosubmitted by Mr. K. Ramamoorthy that in any of the judgments cited bythe petitioners, the question never arose as to what the religious practiceon the basis of religious belief is and, accordingly, the question as towhether religious practices based on religious beliefs in all prominenttemples in India are violative of Articles14, 15, 17, 21 and 25 of theConstitution is to be considered herein.

84. It has been put forth by Mr. K. Ramamoorthy that the protectionof Articles 25 and 26 are not limited to the matters of doctrine or belief,rather they extend to acts done in pursuance of religion and, therefore,contain guarantee for rituals, observations, ceremonies and modes ofworship which are integral parts of religion. It has been submitted thatwhat constitutes an essential part of religious practice is to be decidedwith reference to the practices which are regarded by large section ofthe community for several centuries and, therefore, would have to betreated as part of the religion.

85. It has also been averred that Ayyappa temple by itself is adenomination as contemplated under Article 26 having regard to thenature of worship and the practices followed by the temple and similarly,the devotees of Ayyappa temple would also constitute denominationwho have accepted the impugned religious practice based on religiousbelief which has been in vogue for several centuries unbroken andaccepted by all sections of Hindus.

86. It has been submitted that it is too late in the day to contendthat religious practice based on religious faith, adhered to and followedby millions of Hindus for so long in consonance with the natural rights ofmen and women is violative of fundamental rights. It is also the case ofthe Amicus Mr. K. Ramamoorthy that to project such religious practiceas being contrary to natural law is shock to the judgment of thecommunity, as calling such religious practice contrary to fundamentalrights amounts to offending the common sense and wisdom of ourancestors in faithfully following the command of the divine. Further, nogroup or individual can force other Hindus to follow their view in thedomain of religious faith.

87. As regards the challenge raised by the petitioners against Rule3(b) of the Kerala Hindu Places of Public Worship (Authorization of

AEntry) Rules, 1965, it is asseverated by Mr. K. Ramamoorthy that thequestion which arises is whether the State Government, with referenceto such religious practice, could make rule so that the general publicwould know the denominational character of the temple and the religiouspractice followed by the temple.

BFollowers of Lord Ayyappa do not constitute religiousdenomination

88. Article 26 of the Constitution of India guarantees to everyreligious denomination the right (a) to establish and maintain institutionsfor religious and charitable purposes; (b) to manage its own affairs inCmatters of religion; (c) to own and acquire movable and immovableproperty; and (d) to administer such property in accordance with law.However, these rights are subject to public order, morality and health.

89. The important question that emerges is as to what constitutesa religious denomination. The said question has been the subject matterDof several decisions of this Court beginning from Shirur Mutt (supra)wherein the Court observed thus:

“As regards Article 26, the first question is, what is the precisemeaning or connotation of the expression “religious denomination”and whether Math could come within this expression. The word“denomination” has been defined in the Oxford Dictionary to mean‘a collection of individuals classed together under the same name:a religious sect or body having common faith and Organisationand designated by distinctive name. It is well known that thepractice of setting up Maths as centres of the logical teachingwas started by Shri Sankaracharya and was followed by variousteachers since then. After Sankara, came galaxy of religiousteachers and philosophers who founded the different sects andsub-sects of the Hindu religion that we find in India at the presentday. Each one of such sects or sub-sects can certainly be balled areligious denomination, as it is designated by distinctive name, -in many cases it is the name of the founder, -and has commonfaith and common spiritual organization. The followers ofRamanuja, who are known by the name of Shri Vaishnabas,undoubtedly constitute religious denomination; and so do thefollowers of Madhwacharya and other religious teachers. It is afact well established by tradition that the eight UdipiMaths were

founded by Madhwacharya himself and the trustees and thebeneficiaries of these Maths profess to be followers of that teacher.The High Court has found that the Math in question is in chargeof the Sivalli Brahmins who constitute section of the followersof Madhwacharya. As article 26 contemplates not merely areligious denomination but also section thereof, the Math or thespiritual fraternity represented by it can legitimately come withinthe purview of this article.”

90. In S.P. Mittal (supra), the challenge was with regard to thevalidity of the Auroville (Emergency) Provisions Act, 1980 as beingviolative of Articles 25 and 26 of the Constitution. Sri Aurobindo postulatedthe philosophy of cosmic salvation and along with the disciples found theAurobindo Society for preaching and propagating the teachings of SriAurobindo and The Mother through its centres in India as well as abroad.After the death of Sri Aurobindo, the Mother proposed an internationalcultural township, Auroville, in the then Pondicherry. The society receivedfunds as grants from the Central Government, State Government andother organizations in India as well as from outside India for developmentof the township at Auroville. Upon the death of the Mother, theGovernment started receiving complaints about the mismanagement ofthe society and, accordingly, enacted the Auroville (Emergency)Provisions Act, 1980. The Supreme Court, by majority of 4:1, ruledthat neither the society nor the township of Auroville constituted religiousdenomination, for the teachings and utterances of Sri Aurobindo did notconstitute religion and, therefore, taking over of the Auroville by theGovernment did not infringe the society’s right under Articles 25 and 26of the Constitution.

91. The Court referred, inter alia, to the MoA of the societyalong with Rule 9 of the Rules and Regulations of Sri Aurobindo Societywhich dealt with membership and read thus:

“9. Any person or institution for organisation either in India orabroad who subscribes to the aims and objects of the Society, andwhose application for membership is approved by the ExecutiveCommittee, will be member of the Society. The membership isopen to people everywhere without any distinction of nationality,religion, caste, creed or sex.”

AAfter so referring, the Court opined thus:

“The only condition for membership is that the person seeking themembership of the Society must subscribe to the aims and objectsof the Society. It was further urged that what is universal cannotbe religious denomination. In order to constitute separateBdenomination, there must be something distinct from another. Adenomination, argues the counsel, is one which is different fromthe other and if the Society was religious denomination, then theperson seeking admission to the institution would lose his previousreligion. He cannot be member of two religions at one and thesame time. But this is not the position in becoming member ofCthe Society and Auroville. religious denomination must necessarily

be new one and new methodology must be provided for religion.Substantially, the view taken by Sri Aurobindo remains part ofthe Hindu philosophy. There may be certain innovations in hisphilosophy but that would not make it religion on that account.”D92. The Court in S.P Mittal (supra) reiterated and concurredwith the definition of ‘religious denomination’ which was also acceptedin Shirur Mutt (supra) and observed as under:

“The words ‘religious denomination’ in Article 26 of the Constitutionmust take their colour from the word ‘religion’ and if this be so,Ethe expression ‘religious denomination’ must also satisfy threeconditions:

(1) It must be collection of individuals who have system ofbeliefs or doctrines which they regard as conducive to their spiritualwell-being, that is, common faith;F(2) common organisation, and

(3) designation by distinctive name.”

93. In the case of Nallor Marthandam Vellalar and others v.Commissioner, Hindu Religious and Charitable Endowment andGothers[26], the question that arose before the Court was whether the templeat Nellor owned by the Vellala Community of Marthandam constituted a‘religious denomination’ within the meaning of Article 26 of theConstitution. It was argued in this case that the Vellala Communityobserved special religious practices and beliefs which are integral part

26 (2003) 10 SCC 712H

of their religion and that the front mandappam of the sanctorium is opento access only to the members of their community and no one else andoutsiders can offer worship from the outer compound. The Court heldthat the temple at Nellor owned by the Vellala Community of Marthandamdid not constitute religious denomination as there was no evidence toprove that the members of the Vellala Community had common religioustenets peculiar to themselves other than those which are common to theentire Hindu community and further, the Court, following the principlelaid down in S.P. Mittal (supra), observed:

“It is settled position in law, having regard to the various decisionsof this Court that the words

“religious denomination” take their colour from the word `religion’.The expression “religious denomination” must satisfy threerequirements – (1) it must be collection of individuals who have asystem of belief or doctrine which they regard as conducive totheir spiritual well-being, i.e., common faith; (2) commonorganisation; and (3) designation of distinctive name. Itnecessarily follows that the common faith of the community shouldbe based on religion and in that they should have common religioustenets and the basic cord which connects them, should be religionand not merely considerations of caste or community or societalstatus.”

94. As is decipherable form the above decisions of this Court, forany religious mutt, sect, body, sub-sect or any section thereof to bedesignated as religious denomination, it must be collection of individualshaving collective common faith, common organization which adheresto the said common faith, and last but not the least, the said collection ofindividuals must be labeled, branded and identified by distinct name.

95. Though, the respondents have urged that the pilgrims comingto visit the Sabarimala temple being devotees of Lord Ayyappa areaddressed as Ayyappans and, therefore, the third condition for religiousdenomination stands satisfied, is unacceptable. There is no identifiedgroup called Ayyappans. Every Hindu devotee can go to the temple.We have also been apprised that there are other temples for LordAyyappa and there is no such prohibition. Therefore, there is no identifiedsect. Accordingly, we hold, without any hesitation, that Sabarimala templeis public religious endowment and there are no exclusive identifiedfollowers of the cult.

A96. Coming to the first and the most important condition for areligious denomination, i.e., the collection of individuals ought to have asystem of beliefs or doctrines which they regard as conducive to theirspiritual well-being, there is nothing on record to show that the devoteesof Lord Ayyappa have any common religious tenets peculiar tothemselves, which they regard as conducive to their spiritual well-being,Bother than those which are common to the Hindu religion. Therefore,the devotees of Lord Ayyappa are just Hindus and do not constitute aseparate religious denomination. For religious denomination, there mustbe new methodology provided for religion. Mere observance of certainpractices, even though from long time, does not make it distinctCreligion on that account.Enforceability of Fundamental Rights under Article 25(1)against the Travancore Devaswom Board

97. Having stated that the devotees of Lord Ayyappa do notconstitute religious denomination within the meaning of Article 26 andDthat Sabarimala Temple is public temple by virtue of the fact thatSection 15 of the 1950 Act vests all powers of direction, control andsupervision over it in the Travancore Devaswom Board which, in ourforegoing analysis, has been unveiled as ‘other authority’ within themeaning of Article 12, resultantly fundamental rights including thoseEguaranteed under Article 25(1) are enforceable against the TravancoreDevaswom Board and other incorporated Devaswoms including theSabarimala Temple. We have also discussed the secular character ofthe Indian Constitution as well as the broad meaning assigned to theterm religion occurring in various Articles of the Constitution includingArticle 25(1).F

98. Now adverting to the rights guaranteed under Article 25(1) ofthe Constitution, be it clarified that Article 25(1), by employing theexpression ‘all persons’, demonstrates that the freedom of conscienceand the right to freely profess, practise and propagate religion is available,though subject to the restrictions delineated in Article 25(1) itself, toGevery person including women.

99. It needs to be understood that the kernel of Article 26 is‘establishment of religious institution’ so as to acclaim the status ofreligious denomination. Whereas, Article 25(1) guarantees the right topractise religion to every individual and the act of practice is concerned,Hprimarily, with religious worship, rituals and observations as held in Rev.

Stainislaus v. State of Madhya Pradesh and others[27]. Further, it hasbeen held in Shirur Mutt (supra) that the logic underlying the constitutionalguarantee regarding ‘practice’ of religion is that religious practices areas such part of religion as religious faith or doctrines.

100. The right guaranteed under Article 25(1) has nothing to dowith gender or, for that matter, certain physiological factors, specificallyattributable to women. Women of any age group have as much rightas men to visit and enter temple in order to freely practise religion asguaranteed under Article 25(1). When we say so, we are absolutelyalive to the fact that whether any such proposed exclusion of womenfrom entry into religious places forms an essential part of religion wouldbe examined at subsequent stage.

101. We have no hesitation to say that such an exclusionary practiceviolates the right of women to visit and enter temple to freely practiseHindu religion and to exhibit her devotion towards Lord Ayyappa. Thedenial of this right to women significantly denudes them of their right toworship. We concur with the view of the Amicus Curiae, learned seniorcounsel, Mr. Raju Ramachandran, that the right guaranteed under Article25(1) is not only about inter-faith parity but it is also about intra-faithparity. Therefore, the right to practise religion under Article 25(1), in itsbroad contour, encompasses non-discriminatory right which is equallyavailable to both men and women of all age groups professing the samereligion.102. Though not in reference to men or women, yet in the contextof any Hindu worshipper seeking entry in temple which is publicplace of worship for Hindus, the observations of the Supreme Court inNar Hari Shastri and others v. Shri Badrinath Temple Committee[28]are quite instructive wherein the Court opined thus:

“It seems to us that the approach of the court below to this aspectof the case has not been quite proper, and, to avoid any possiblemisconception, we would desire to state succinctly what the correctlegal position is. Once it is admitted, as in fact has been admittedin the present case, that the temple is public place of worship ofthe Hindus, the right of entrance into the temple for purposes of‘darshan’ or worship is right which flows from the nature of theinstitution itself, and for the acquisition of such rights, no custom

27 (1977) 1 SCC 677

28 AIR 1952 SC 245

Aor immemorial usage need be asserted or proved…..”

And again:

“The true position, therefore, is that the plaintiffs’ right of enteringthe temple along with their Yajmans is not precarious or apermissive right depending for its existence upon the arbitraryBdiscretion of the temple authorities; it is legal right in the truesense of the expression but it can be exercised subject to therestrictions which the temple committee may impose in good faithfor maintenance of order and decorum within the temple and forensuring proper performance of customary worship. In our opinion,Cthe plaintiffs are entitled to declaration in this form.”

103. Another authoritative pronouncement in regard to the freedomto practise religion freely without with any fictitious and vagueconstraint is the case of Acharya Jagadishwarananda Avadhuta(supra), wherein the Court observed thus:D“The full concept and scope of religious freedom is that there areno restraints upon the free exercise of religion according to thedictates of one’s conscience or upon the right freely to profess,practice and propagate religion save those imposed under thepolice power of the State and the other provisions of Part II of theEConstitution. This means the right to worship God according tothe dictates of one’s conscience. Man’s relation to his God ismade no concern for the State. Freedom of conscience andreligious belief cannot, however, be, set up to avoid those dutieswhich every citizen owes to the nation; e.g. to receive militarytraining, to take an oath expressing willingness to perform militaryFservice and so on.”

104. Therefore, it can be said without any hesitation or reservationthat the impugned Rule 3(b) of the 1965 Rules, framed in pursuance ofthe 1965 Act, that stipulates exclusion of entry of women of the agegroup of 10 to 50 years, is clear violation of the right of such women toGpractise their religious belief which, in consequence, makes theirfundamental right under Article 25(1) dead letter. It is clear as crystalthat as long as the devotees, irrespective of their gender and/or agegroup, seeking entry to temple of any caste are Hindus, it is their legalright to enter into temple and offer prayers. The women, in the case athand, are also Hindus and so, there is neither any viable nor any legalH

limitation on their right to enter into the Sabarimala Temple as devoteesof Lord Ayyappa and offer their prayers to the deity.

105. When we say so, we may also make it clear that the saidrule of exclusion cannot be justified on the ground that allowing entry towomen of the said age group would, in any way, be harmful or wouldplay 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 theseprecepts that the right guaranteed under Article 25(1) has been madesubject to.

106. The term ‘morality’ occurring in Article 25(1) of theConstitution cannot be viewed with narrow lens so as to confine thesphere of definition of morality to what an individual, section or religioussect may perceive the term to mean. We must remember that whenthere is violation of the fundamental rights, the term ‘morality’ naturallyimplies constitutional morality and any view that is ultimately taken bythe Constitutional Courts must be in conformity with the principles andbasic tenets of the concept of this constitutional morality that gets supportfrom the Constitution.

107. In Manoj Narula (supra), this Court has reflected upon thepredominant role that the concept of constitutional morality plays in ademocratic set-up and opined thus:

“The principle of constitutional morality basically means to bowdown to the norms of the Constitution and not to act in mannerwhich would become violative of the rule of law or reflectible ofaction in an arbitrary manner. It actually works at the fulcrum andguides as laser beam in institution building. The traditions andconventions have to grow to sustain the value of such morality.The democratic values survive and become successful where thepeople at large and the persons-in-charge of the institution arestrictly guided by the constitutional parameters without paving thepath of deviancy and reflecting in action the primary concern tomaintain institutional integrity and the requisite constitutionalrestraints. Commitment to the Constitution is facet ofconstitutional morality.”

108. That apart, this Court, in Government of NCT of Delhi v.Union of India and others[29], observed thus:

29 (2018) 8 SCALE 72

“Constitutional morality in its strictest sense of the term impliesstrict and complete adherence to the constitutional principles asenshrined in various segments of the document. When countryis endowed with Constitution, there is an accompanying promisewhich stipulates that every member of the country right from itscitizens to the high constitutional functionaries must idolize theconstitutional fundamentals. This duty imposed by the Constitutionstems from the fact that the Constitution is the indispensablefoundational base that functions as the guiding force to protectand ensure that the democratic setup promised to thecitizenry remains unperturbed.”

109. Elaborating further, in Navtej Singh Johar and others v.Union of India and others[30], this Court observed:

“The concept of constitutional morality is not limited to the mereobservance of the core principles of constitutionalism as themagnitude and sweep of constitutional morality is not confined tothe provisions and literal text which Constitution contains, ratherit embraces within itself virtues of wide magnitude such as thatof ushering pluralistic and inclusive society, while at the sametime adhering to the other principles of constitutionalism. It isfurther the result of embodying constitutional morality that thevalues of constitutionalism trickle down and percolate through theapparatus of the State for the betterment of each and everyindividual citizen of the State.”

And again:

“115. The society as whole or even minuscule part of thesociety may aspire and prefer different things for themselves.They are perfectly competent to have such freedom to bedifferent, like different things, so on and so forth, provided thattheir different tastes and liking remain within their legal frameworkand neither violates any statute nor results in the abridgement offundamental rights of any other citizen. The Preambular goals ofour Constitution which contain the noble objectives of Justice,Liberty, Equality and Fraternity can only be achieved through thecommitment and loyalty of the organs of the State to the principleof constitutional morality”

INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA[DIPAK MISRA, CJI]

110. The right guaranteed under Article 25(1) has been madesubject to, by the opening words of the Article itself, public order, morality,health and other provisions of Part III of the Constitution. All the threewords, 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 ofwomen devotees of the age group of 10 to 50 years into the Sabarimalatemple for offering their prayers. As regards public morality, we mustmake it absolutely clear that since the Constitution was not shoved, byany external force, upon the people of this country but was rather adoptedand given by the people of this country to themselves, the term publicmorality has to be appositely understood as being synonymous withconstitutional morality.

111. Having said so, the notions of public order, morality and healthcannot be used as colourable device to restrict the freedom to freelypractise religion and discriminate against women of the age group of 10to 50 years by denying them their legal right to enter and offer theirprayers at the Sabarimala temple for the simple reason that public moralitymust yield to constitutional morality.

Whether exclusionary practice is an essential practice as

per Hindu religion

112. We have, in the earlier part of this judgment, determined thatthe devotees of Lord Ayyappa, who though claim to be separate religiousdenomination, do not, as per the tests laid down by this Court in severaldecisions, most prominent of them being S.P. Mittal (supra), constitutea separate religious denomination within the meaning of Article 26 of theConstitution. This leads us to mathematical certainty that the devoteesof Lord Ayyappa are the followers of Hindu religion. Now, what remainsto be seen is whether the exclusion of women of the age group of 10 to50 years is an essential practice under the Hindu religion in the backdropof the peculiar attending circumstances attributable to the Sabarimalatemple. For ascertaining the said question, we first need to understandwhat constitutes an essential practice for particular religion which hasbeen the subject matter of several decisions of this Court. Article 25merely protects the freedom to practise rituals, ceremonies, etc. whichare an integral part of religion as observed by this Court in JohnVallamattom and another v. Union of India[31]. While saying so, theCourt ruled that disposition towards making gift for charitable or religious

31 (2003) 6 SCC 611

Apurpose can be designated as pious act of person, but the samecannot be said to be an integral part of any religion.

113. The role of essential practices to particular religion hasbeen well demonstrated by Lord Halsbury in Free Church of Scotlandv. Overtoun[32] wherein it was observed:

“In the absence of conformity to essentials, the denomination wouldnot be an entity cemented into solidity by harmonious uniformityof opinion, it would be mere incongruous heap of, as it were,grains of sand, thrown together without being united, each of theseintellectual and isolated grains differing from every other, and theCwhole forming but nominally united while really unconnectedmass; fraught with nothing but internal dissimilitude, and mutualand reciprocal contradiction and dissension.”

114. This Court, in Shirur Mutt (supra), for the first time, heldthat what constitutes an essential part of religion will be ascertainedDwith reference to the tenets and doctrines of that religion itself. TheCourt had opined thus:

“In the first place, what constitutes the essential part of religionis primarily to be ascertained with reference to the doctrines ofthat religion itself.”

E115. In Mohd. Hanif Quareshi v. State of Bihar[33], this Courtrejected the argument of the petitioner that sacrifice of cow on Bakr-idwas an essential practice of Mohammedan religion and ruled that it couldbe prohibited by the State under Clause 2(a) of Article 25.

116. Similarly, in State of West Bengal and others v. AshutoshFLahiri and others[34], this Court, while approving the judgment of theHigh Court, observed that the State of West Bengal had wrongly invokedSection 12 of the West Bengal Animal Slaughter Control Act, 1950 onthe ground that exemption of slaughtering healthy cows was required tobe given for the Muslim community. While holding so, the Court opinedthus:G

“...before the State can exercise the exemption power underSection 12 in connection with slaughter of any healthy animalcovered by the Act, it must be shown that such exemption is 32 (1904) AC 515 33 AIR 1958 SC 731H 34 AIR 1995 SC 464

necessary to be granted for sub-serving an essential religious,medicinal or research purpose. If granting of such exemption isnot essential or necessary for effectuating such purpose no suchexemption can be granted so as to by-pass the thrust of the mainprovisions of the Act.”

117. In Durgah Committee, Ajmer and others v. Syed HussainAli and others[35], the Court, although speaking in the context of Article26, warned that some practices, though religious, may have sprung frommerely superstitious beliefs and may, in that sense, be extraneous andunessential accretions to religion itself and unless such practices arefound to constitute an essential and integral part of religion, their claimfor protection as essential practices may have to be carefully scrutinised;in other words, the protection must be confined to such religious practicesas are an essential and an integral part of the religion and no other.

118. The Court, in this case, has excluded such practices fromprotection which, though may have acquired the characteristic of religiouspractices, are found, on careful scrutiny, to be an outcome of somesuperstitious beliefs which may render them unessential and not an integralpart of the religion.

119. In Acharya Jagadishwarananda Avadhuta and others v.Commissioner of Police, Calcutta[36], popularly known as the firstAnanda Marga case, this Court held that Tandav dance in processionsor at public places by the Ananda Margis carrying lethal weapons andhuman skulls was not an essential religious rite of the followers of AnandaMarga and, therefore, the order under Section 144 Cr.PC. prohibitingsuch processions in the interest of public order and morality was notviolative of the rights of the Ananda Marga denomination under Articles25 and 26 of the Constitution more so when the order under Section 144Cr.PC. did not completely ban the processions or gatherings at publicplaces but only prohibited carrying of daggers, trishuls and skulls whichposed danger to public order and morality.

120. In N. Adithayan v. Travancore Devaswom Board andothers[37], the Court very succinctly laid down as to what should be theapproach of the court for deciding what constitutes an essential practiceof religion in the following words: 35 AIR 1961 SC 1402 36 (1983) 4 SCC 522 37 (2002) 8 SCC 106

A“The legal position that the protection under Article 25 and 26extend guarantee for rituals and observances, ceremonies andmodes of worship which are integral parts of religion and as towhat really constitutes an essential part of religion or religiouspractice has to be decided by the Courts with reference to thedoctrine of particular religion or practices regarded as parts ofBreligion...”

(Emphasis is ours)

121. In Commissioner of Police and others v. AcharyaJagadishwarananda Avadhuta and others (supra), being the secondCAnanda Marga case, the Court has elaborately discussed the true natureof an essential practice and has further laid down the test for determiningwhether certain practice can be characterized as essential to particularreligion in order to guarantee protection under the Constitution. The Courthas opined:

D“The protection guaranteed under Articles 25 and 26 of theConstitution is not confined to matters of doctrine or belief butextends to acts done in pursuance of religion and, therefore,contains guarantee for rituals, observances, ceremonies andmodes of worship which are essential or integral part of religion.What constitutes an integral or essential part of religion has to beEdetermined with reference to its doctrines, practices, tenets,historical background etc. of the given religion. (See generally theConstitution bench decisions in The Commissioner v. L T Swamiarof Srirur Mutt 1954 SCR 1005, SSTS Saheb v. State of Bombay1962 (Supp) 2 SCR 496, and Seshammal v. State of Tamilnadu :F[1972]3SCR815 , regarding those aspects that are to be lookedinto so as to determine whether part or practice is essential ornot). What is meant by ‘an essential part or practices of religion’is now the matter for elucidation. Essential part of religion meansthe core beliefs upon which religion is founded. Essential practicemeans those practices that are fundamental to follow religiousGbelief. It is upon the cornerstone of essential parts or practicesthe superstructure of religion is built. Without which, religionwill be no religion. Test to determine whether part or practice isessential to the religion is - to find out whether the nature of religionwill be changed without that part or practice. If the taking awayof that part or practice could result in fundamental change in the

character of that religion or in its belief, then such part could betreated as an essential or integral part. There cannot be additionsor subtractions to such part. Because it is the very essence ofthat religion and alterations will change its fundamental character.It is such permanent essential parts is what is protected by theConstitution. Nobody can say that essential part or practice ofone’s religion has changed from particular date or by an event.Such alterable parts or practices are definitely not the ‘core’ ofreligion where the belief is based and religion is founded upon. Itcould only be treated as mere embellishments to the non-essentialpart or practices.”

122. In the light of the above authorities, it has to be determinedwhether the practice of exclusion of women of the age group of 10 to 50years is equivalent to doctrine of Hindu religion or practice that couldbe regarded as an essential part of the Hindu religion and whether thenature of Hindu religion would be altered without the said exclusionarypractice. The answer to these questions, in our considered opinion, is inthe firm negative. In no scenario, it can be said that exclusion of womenof any age group could be regarded as an essential practice of Hindureligion and on the contrary, it is an essential part of the Hindu religion toallow Hindu women to enter into temple as devotees and followers ofHindu religion and offer their prayers to the deity. In the absence of anyscriptural or textual evidence, we cannot accord to the exclusionarypractice followed at the Sabarimala temple the status of an essentialpractice of Hindu religion.

123. By allowing women to enter into the Sabarimala temple foroffering prayers, it cannot be imagined that the nature of Hindu religionwould be fundamentally altered or changed in any manner. Therefore,the exclusionary practice, which has been given the backing of asubordinate legislation in the form of Rule 3(b) of the 1965 Rules, framedby the virtue of the 1965 Act, is neither an essential nor an integral partof the Hindu religion without which Hindu religion, of which the devoteesof Lord Ayyappa are followers, will not survive.

124. Nobody can say that essential part or practice of one’s religionhas changed from particular date or by an event. Such alterable partsor practices are definitely not the ‘core’ of religion where the belief isbased and religion is founded upon. It could only be treated as mereembellishments to the non-essential part or practices.

A125. This view of ours is further substantiated by the fact thatwhere practice changes with the efflux of time, such practice cannot,in view of the law laid down in Commissioner of Police and others(supra), be regarded as core upon which religion is formed. Therehas to be unhindered continuity in practice for it to attain the status ofessential practice. It is further discernible from the judgment of the HighBCourt in S. Mahendran (supra) that the Devaswom Board had acceptedbefore the High Court that female worshippers of the age group of 10 to50 years used to visit the temple and conducted poojas in every monthfor five days for the first rice feeding ceremony of their children. TheDevaswom Board also took stand before the High Court that restrictionCof entry for women was only during Mandalam, Makaeavilakku andVishnu days. The same has also been pointed out by learned SeniorCounsel, Ms. Indira Jaising, that the impugned exclusionary practice inquestion is ‘custom with some aberrations’ as prior to the passing ofthe Notification in 1950, women of all age groups used to visit theSabarimala temple for the first rice feeding ceremony of their children.D126. Therefore, there seems to be no continuity in the exclusionarypractice followed at the Sabarimala temple and in view of this, it cannotbe treated as an essential practice.

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

127. We may presently deal with the statutory provisions of theKerala Hindu Places of Public Worship (Authorisation of Entry) Act,1965. Section 2 of the said Act is the definition clause and reads asunder:

“2. Definitions.- In this Act, unless the context otherwiseFrequires,-

(a) “Hindu” includes person professing the Buddhist, Sikh orJaina religion;

(b) “place of public worship” means place, by whatever nameknown or to whomsoever belonging, which is dedicated to, or forthe benefit of, or is used generally by, Hindus or any section orclass thereof, for the performance of any religious service or foroffering prayers therein, and includes all lands and subsidiaryshrines, mutts, devasthanams, namaskara mandapams andnalambalams, appurtenant or attached to any such place, and also

any sacred tanks, wells, springs and water courses the waters ofwhich are worshipped or are used for bathing or for worship, butdoes not include “sreekoil”;

(c) “section or class” includes any division, sub-division, caste,sub-caste, sect or denomination whatsoever. “

128. As per clause (a) of Section 2, the term ‘Hindu’ includes aperson professing Buddhist, Sikh or Jaina religion. The word ‘person’occurring in this clause, for the pure and simple reason of logic, mustinclude all genders. Clause (c) defines ‘section or class’ as any division,sub-division, caste, sub-caste, sect or denomination whatsoever. Nowherethe definition of section or class suggests being limited to male division,sub-division, caste and so forth.

129. Section 3 of the Act stipulates that places of public worshipwill be open to all sections and classes of Hindus and reads thus:

“Section 3 : Places of public worship to open to all sectionsand classes of Hindus.-Notwithstanding anything to the contrarycontained in any other law for the time being in force or anycustom or usage or any instrument having effect by virtue of anysuch law or any decree or order of court, every place of publicworship which is open to Hindus generally or to any section orclass thereof, shall be open to all sections and classes of Hindus;and no Hindu of whatsoever section or class shall, in any manner,be prevented, obstructed or discouraged from entering such placeof public worship, or from worshipping or offering prayers thereat,or performing any religious service therein, in the like manner andto the like extent as any other Hindu of whatsoever section orclass may so enter, worship, pray or perform:

Provided that in the case of place of public worship which is atemple founded for the benefit of any religious denomination orsection thereof, the provisions of this section shall be subject tothe right of that religious denomination or section, as the casemay be, to manage its own affairs in matters of religion. “

130. Section 3 of the Act being non-obstante clause declaresthat every place of public worship which is open to Hindus generally orto any section or class thereof shall be open to all sections and classes ofHindus and no Hindu, of whatsoever section or class, shall be prevented,

Aobstructed or discouraged from entering such place of public worship,or from worshipping, offering prayers or performing any religious serviceat such place of public worship in the like manner and to the like extentas any other Hindu of whatsoever section or class may so be eligible toenter, worship, pray or perform.

B131. careful dissection of Section 3 reveals that places of publicworship in the State of Kerala, irrespective of any contrary law, custom,usage or instrument having effect by virtue of any such law or anydecree or order of Court, shall be open to all sections and classes ofHindus. 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)Cwhich, as per our foregoing analysis, includes all the genders, providedthey are Hindus. It further needs to be accentuated that the right providedunder Section 3 due to its non-obstante nature has to be given effect toregardless of any law, custom or usage to the contrary.

132. The proviso to Section 3 stipulates that in case the place ofDpublic worship is temple founded for the benefit of any religiousdenomination or section thereof, then the rights warranted under Section3 becomes subject to the right of that religious denomination or sectionto manage its own affairs in matters of religion. Having said so, wehave, in the earlier part of this judgment, categorically stated that devoteesEand followers of Lord Ayyappa do not constitute religious denominationand, therefore, the proviso to Section 3 cannot be resorted to in the caseat hand.

133. The importance and the gravity of the right stipulated underSection 3 of this Act, for all sections and classes of Hindus which includeFwomen, is very well manifest and evident from the fact that its violationhas been made penal under Section 5 of the 1965 Act which reads asunder:

“Section 5 : Penalty

Whoever, in contravention of Section 3,-G

(a) prevents or attempts to prevent any person belonging to anysection or class of Hindus from entering, worshipping or offeringprayers, performing any religious service, in any place of publicworship; or

(b) obstructs, or causes or attempts to cause obstruction to, or bythreat of obstruction or otherwise discourages, any such personfrom doing or performing any of the acts aforesaid, shall bepublishable with imprisonment which may extent to six months, orwith fine which may extent to five hundred rupees, or with both:

Provided that in case where sentence of fine only is awarded,such fine shall not be less than fifty rupees. “

134. Proceeding ahead, Section 4 of the 1965 Act confers thepower to make regulations for the maintenance of order and decorumand performance of rites and ceremonies with regard to places of publicworship in Kerala:

“Section 4 : Power to make regulations for the maintenanceof order and decorum and the due performance of rites andceremonies in places of public worship

(1) The trustee or any other person in charge of any place publicworship shall have power, subject to the control of the competentauthority and any rules which may be made by that authority, tomake regulations for the maintenance of order and decorum inthe place of public worship and the due observance of the religiousrites and ceremonies performed therein:

Provided that no regulation made under this sub-section shalldiscriminate in any manner whatsoever, against any Hindu on theground that he belongs to particular section or class.

(2) The competent authority referred to in sub-section (1) shallbe,-

(i) In relation to place of public worship situated in any area towhich Part I of the Travancore-Cochin Hindu Religious InstitutionsAct, 1950 (Travancore-Cochin Act XV of 1950), extends, theTravancore Devaswom Board;

(ii) in relation to place of public worship situated in any area towhich Part II of the said Act extends, the Cochin DevaswomBoard; and

(iii) in relation to place of public worship situated in any otherarea in the State of Kerala, the Government.”

A135. The proviso to Section 4 being an exception to Section 4(1)is classic example of situation where the exception is more importantthan the rule itself. It needs to be borne in mind that the language of theproviso to Section 4 of the 1965 Act, in very clear and simple terms,states that the regulations made under clause (1) of Section 4 shall notdiscriminate against any Hindu on the ground that he/she belongs to aBparticular section or class. As stated earlier, particular section or classfor the purposes of this Act includes women of all age groups, for Hinduwomen of any age group also constitute class or section of Hindus.

136. The State of Kerala, by virtue of clause (1) of Section 4, hasframed the Kerala Hindu Places of Public Worship (Authorisation ofCEntry) Rules, 1965. The relevant rule which is also the most prominentbone of contention in the present case is Rule 3(b). The relevant part ofRule 3 reads thus:

“Rule 3. The classes of persons mentioned here under shall notbe entitled to offer worship in any place of public worship or bathDin or use the water of any sacred tank, well, spring or water courseappurtenant to place of public worship whether situate within oroutside precincts thereof, or any sacred place including hill orhill lock, or road, street or pathways which is requisite for obtainingaccess to the place of public worship:

(b) Women at such time during which they are not by custom andusage allowed to enter place of public worship.

F137. The law is well-settled on the point that when rule-makingpower is conferred under any statute on an authority, the said power hasto be exercised within the confines of the statute and no transgression ofthe same is permissible. In this context, we may refer to the decision inUnion of India and others v. S. Srinivasan[38] wherein it has beenruled:G

“At this stage, it is apposite to state about the rule making powersof delegating authority. If rule goes beyond the rule makingpower conferred by the statute, the same has to be declared ultravires. If rule supplants any provision for which power has not

38 (2012) 7 SCC 683H

been conferred, it becomes ultra vires. The basic test is todetermine and consider the source of power which is relatable tothe rule. Similarly, rule must be in accord with the parent statuteas it cannot travel beyond it.”

138. In General Officer Commanding-in-Chief v. Dr. SubhashChandra Yadav[39], the Court held that for rule to have the effect of astatutory provision, it must fulfill two conditions, firstly it must conformto the provisions of the statute under which it is framed and secondly, itmust also come within the scope and purview of the rule making powerof the authority framing the rule and if either of these two conditions isnot fulfilled, the rule so framed would be void. In Kunj Behari LaiButail and others v. State of H.P. and others[40], it has been laid downthat for holding rule to be valid, it must first be determined as to whatis the object of the enactment and then it has to be seen if the rulesframed satisfy the test of having been so framed as to fall within thescope of such general power conferred and if the rule making power isnot expressed in such usual general form, then it shall have to be seenif the rules made are protected by the limits prescribed by the parentact. Another authority which defines the limits and confines within whichthe rule-making authority shall exercise its delegating powers is GlobalEnergy Limited and another v. Central Electricity RegulatoryCommission[41], where the question before the Court was regarding thevalidity of clauses (b) and (f) of Regulation 6- of the Central ElectricityRegulatory Commission (Procedure, Terms and Conditions for Grant ofTrading Licence and other Related Matters) Regulations, 2004. The Courtgave the following opinion:

“It is now well-settled principle of law that the rule-making power“for carrying out the purpose of the Act” is general delegation.Such general delegation may not be held to be laying down anyguidelines. Thus, by reason of such provision alone, theRegulation-making power cannot be exercised so as to bring intoexistence substantive rights or obligations or disabilities which arenot contemplated in terms of the provisions of the said Act.”

139. It was clearly held in this case that the rule-making power,which is provided under statute with the aim of facilitating theimplementation of the statute, does not confer power on any authority to

39 AIR 1988 SC 876

40 AIR 2000 SC 1069 41 (2009) 15 SCC 570

Abring into existence substantive rights or obligations or disabilities whichare not contemplated in terms of the provisions of the said Act. TheCourt, further, went on to hold that:

“The image of law which flows from this framework is its neutralityand objectivity: the ability of law to put sphere of general decision-Bmaking outside the discretionary power of those wieldinggovernmental power. Law has to provide basic level of “legalsecurity” by assuring that law is knowable, dependable and shieldedfrom excessive manipulation. In the contest of rule-making,delegated legislation should establish the structural conditions withinwhich those processes can function effectively. The questionCwhich needs to be asked is whether delegated legislation promotesrational and accountable policy implementation. While we say so,we are not oblivious of the contours of the judicial review of thelegislative Acts. But, we have made all endeavours to keepourselves confined within the well-known parameters.”D140. At this stage, we may also benefit from the observationsmade in State of T.N. and another v. P. Krishnamurthy and others[42]wherein it was stated that where rule is directly inconsistent with amandatory provision of the statute, then, of course, the task of the courtis simple and easy. This implies that if rule is directly hit for beingEviolative of the provisions of the enabling statute, then the Courts neednot have to look in any other direction but declare the said rule as invalidon the said ground alone.

141. Rule 3(b) seeks to protect custom and usage by not allowingwomen, Hindu women to be specific, to enter place of public worshipFat such times during which they are not so allowed to enter by the saidcustom or usage. cursory reading of Rule 3(b) divulges that it is ultravires both Section 3 as well as Section 4 of the 1965 Act, the reasonbeing that Section 3 being non-obstante provision clearly stipulatesthat every place of public worship shall be open to all classes and sectionsof Hindus, women being one of them, irrespective of any custom orGusage to the contrary.

142. That apart, Rule 3(b) is also ultra vires Section 4 of the 1965Act as the proviso to Section 4(1) creates an exception to the effect thatthe regulations/rules made under Section 4(1) shall not discriminate, in 42 (2006) 4 SCC 517H

any manner whatsoever, against any Hindu on the ground that he/shebelongs to particular section or class.

143. The language of both the provisions, that is, Section 3 andthe proviso to Section 4(1) of the 1965 Act, clearly indicates that customand usage must make space to the rights of all sections and classes ofHindus to offer prayers at places of public worship. Any interpretationto the contrary would annihilate the purpose of the 1965 Act and thefundamental right to practise religion guaranteed under Article 25(1). Itis clear as crystal that the provisions of the 1965 Act are liberal in natureso as to allow entry to all sections and classes of Hindus includingScheduled Castes and Scheduled Tribes. But framing of Rule 3(b) ofthe 1965 Rules under the garb of Section 4(1) would violate the verypurpose of the 1965 Act.

Conclusions

144. In view of our aforesaid analysis, we record our conclusionsin seriatim:

(i) In view of the law laid down by this Court in Shirur Mutt(supra) and S.P. Mittal (supra), the devotees of Lord Ayyappado not constitute separate religious denomination. They donot have common religious tenets peculiar to themselves, whichthey regard as conducive to their spiritual well-being, otherthan those which are common to the Hindu religion. Therefore,the devotees of Lord Ayyappa are exclusively Hindus and donot constitute separate religious denomination.

(ii) Article 25(1), by employing the expression ‘all persons’,demonstrates that the freedom of conscience and the right tofreely profess, practise and propagate religion is available,though subject to the restrictions delineated in Article 25(1)itself, to every person including women. The right guaranteedunder Article 25(1) has nothing to do with gender or, for thatmatter, certain physiological factors specifically attributable towomen.

(iii) The exclusionary practice being followed at the Sabrimalatemple by virtue of Rule 3(b) of the 1965 Rules violates theright of Hindu women to freely practise their religion and exhibittheir devotion towards Lord Ayyappa. This denial denudes them

of their right to worship. The right to practise religion underArticle 25(1) is equally available to both men and women of allage groups professing the same religion.

(iv) The impugned Rule 3(b) of the 1965 Rules, framed under the1965 Act, that stipulates exclusion of entiy of women of theBage group of 10 to 50 years, is clear violation of the right ofHindu women to practise their religious beliefs which, inconsequence, makes their fundamental right of religion underArticle 25(1) dead letter.

(v) The term ‘morality’ occurring in Article 25(1) of the ConstitutionCcannot be viewed with narrow lens so as to confine the sphereof definition of morality to what an individual, section orreligious sect may perceive the term to mean. Since theConstitution has been adopted and given by the people of thiscountry to themselves, the term public morality in Article 25has to be appositely understood as being synonymous withDconstitutional morality.

(vi) The notions of public order, morality and health cannot beused as colourable device to restrict the freedom to freelypractise religion and discriminate against women of the agegroup of 10 to 50 years by denying them their legal right toEenter and offer their prayers at the Sabarimala temple.

(vii) The practice of exclusion of women of the age group of 10 to50 years being followed at the Sabarimala Temple cannot beregarded as an essential practice as claimed by the respondentBoard.

F(viii) In view of the law laid down by this Court in the secondAnanda Marga case, the exclusionary practice being followedat the Sabarimala Temple cannot be designated as one, thenon-observance of which will change or alter the nature ofHindu religion. Besides, the exclusionary practice has not beenGobserved with unhindered continuity as the Devaswom Boardhad accepted before the High Court that female worshippersof the age group of 10 to 50 years used to visit the temple andconducted poojas in every month for five days for the first ricefeeding ceremony of their children.

(ix) The exclusionary practice, which has been given the backingof subordinate legislation in the form of Rule 3(b) of the 1965Rules, framed by the virtue of the 1965 Act, is neither anessential nor an integral part of the religion.

(x) careful reading of Rule 3(b) of the 1965 Rules makes itluculent that it is ultra vires both Section 3 as well as Section4 of the 1965 Act, for the simon pure reason that Section 3being non-obstante provision clearly stipulates that every placeof public worship shall be open to all classes and sections ofHindus, women being one of them, irrespective of any customor usage to the contrary.

(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as theproviso to Section 4(1) creates an exception to the effect thatthe regulations/rules made under Section 4(1) shall notdiscriminate, in any manner whatsoever, against any Hindu onthe ground that he/she belongs to particular section or class.

(xii) The language of both the provisions, that is, Section 3 and theproviso to Section 4(1) of the 1965 Act clearly indicate thatcustom and usage must make space to the rights of all sectionsand classes of Hindus to offer prayers at places of publicworship. Any interpretation to the contrary would annihilatethe purpose of the 1965 Act and incrementally impair thefundamental right to practise religion guaranteed under Article25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules isultra vires the 1965 Act.

145. In view of the aforesaid analysis and conclusions, the writpetition is allowed. There shall be no order as to costs.

R. F. NARIMAN, J. (Concurring) 1. The present writ petitionraises far-reaching questions on the ambit of the fundamental rightscontained in Articles 25 and 26 of the Constitution of India. Thesequestions arise in the backdrop of an extremely famous temple atSabarimala in which the idol of Lord Ayyappa is installed. According tothe Respondents, the said temple, though open to all members of thepublic regardless of caste, creed, or religion, is denominational templewhich claims the fundamental right to manage its own affairs in mattersrelating to religion. The question that arises is whether the completeexclusion of women between the ages of 10 and 50 from entry, and

Aconsequently, of worship in this temple, based upon biological factorwhich is exclusive to women only, and which is based upon customallegedly constituting an essential part of religion, can be said to be violativeof their rights under Article 25. Consequently, whether such women arecovered by Section 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965 and whether Rule 3(b) of the KeralaBHindu Places of Public Worship (Authorisation of Entry) Rules, 1965 isviolative of their fundamental right under Article 25(1) and Article 15(1),and ultra vires the parent Act.

2. Before answering the question posed on the facts before us, itis necessary to cover the ground that has been covered by our previousCdecisions on the scope and effect of religious freedom contained inArticles 25 and 26.

3. In one of the earliest judgments dealing with religious freedom,namely, Nar Hari Sastri and Ors. v. Shri Badrinath TempleCommittee, 1952 SCR 849, this Court was concerned with the templeDat Badrinath, which is an ancient temple, being public place of worshipfor Hindus. representative suit was filed under Order I Rule 8 of theCode of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who,as guides or escorts of pilgrims, sought declaration that they cannot beobstructed from entering the precincts of the temple along with theirE“clients” for darshan of the deities inside the temple. This Court held:

“It seems to us that the approach of the court below to this aspectof the case has not been quite proper, and, to avoid any possiblemisconception, we would desire to state succinctly what the correctlegal position is. Once it is admitted, as in fact has been admittedFin the present case, that the temple is public place of worship ofthe Hindus, the right of entrance into the temple for purposes of‘darshan’ or worship is right which flows from the nature of theinstitution itself, and for the acquisition of such rights, no customor immemorial usage need be asserted or proved. As the Pandaas well as his client are both Hindu worshippers, there can beGnothing wrong in the one’s accompanying the other inside thetemple and subject to what we will state presently, the fact thatthe pilgrim, being stranger to the spot, takes the assistance ofthe Panda in the matter of ‘darshan’ or worship of the deities orthat the Panda gets remuneration from his client for the serviceshe renders, does not in any way affect the legal rights of either of

them. In law, it makes no difference whether one performs theact of worship himself or is aided or guided by another in theperformance of them. If the Pandas claim any special right whichis not enjoyed ordinarily by members of the Hindu public, theywould undoubtedly have to establish such rights on the basis ofcustom, usage or otherwise.

This right of entry into public temple is, however, not anunregulated or unrestricted right. It is open to the trustees of apublic temple to regulate the time of public visits and fix certainhours of the day during which alone members of the public wouldbe allowed access to the shrine. The public may also be deniedaccess to certain particularly sacred parts of the temple, e.g., theinner sanctuary or as it is said the ‘Holy of Holies’ where thedeity is actually located. Quite apart from these, it is alwayscompetent to the temple authorities to make and enforce rules toensure good order and decency of worship and preventovercrowding in temple. Good conduct or orderly behaviour isalways an obligatory condition of admission into temple[Vide Kalidas Jivram v. Gor Parjaram, I.L.R. 15 Bom. p. 309;Thackeray v. Harbhum, I.L.R. 8 Bom. p. 432], and this principlehas been accepted by and recognised in the Shri Badrinath TempleAct, section 25 of which provides for framing of bye-laws by thetemple committee inter alia for maintenance of order inside thetemple and regulating the entry of persons within it [Vide Section25(1)(m)].

The true position, therefore, is that the plaintiffs’ right of enteringthe temple along with their Yajmans is not precarious or apermissive right depending for its existence upon the arbitrarydiscretion of the temple authorities; it is legal right in the truesense of the expression but it can be exercised subject to therestrictions which the temple committee may impose in good faithfor maintenance of order and decorum within the temple and forensuring proper performance of customary worship. In our opinion,the plaintiffs are entitled to declaration in this form.”

(at pp. 860-862)

4. In chronological sequence, next comes the celebrated ShirurMath case, viz., The Commissioner, Hindu Religious Endowments,

AMadras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,1954 SCR 1005. This case concerned itself with the settlement of ascheme in connection with Math known as the Shirur Math, which,legislation in the form of the Madras Hindu Religious and CharitableEndowments Act, 1951, sought to interfere with. In history, the ShirurMath is stated to be one of the eight Maths situated at Udipi in theBdistrict of South Kanara and reputed to have been founded by ShriMadhwacharya, the well-known exponent of dualistic theism inHinduism. This judgment being seminal authority for large numberof aspects covered under Articles 25 and 26 needs to be quoted inextenso. The Court first dealt with the individual right contained in ArticleC25 as follows:“We now come to Article 25 which, as its language indicates,secures to every person, subject to public order, health and morality,a freedom not only to entertain such religious belief, as may beapproved of by his judgment and conscience, but also to exhibitDhis belief in such outward acts as he thinks proper and to propagateor disseminate his ideas for the edification of others. question israised as to whether the word “persons” here means individualsonly or includes corporate bodies as well. The question, in ouropinion, is not at all relevant for our present purpose. Mathadhipatiis certainly not corporate body; he is the head of spiritualEfraternity and by virtue of his office has to perform the duties of areligious teacher. It is his duty to practice and propagate the religioustenets, of which he is an adherent and if any provision of lawprevents him from propagating his doctrines, that would certainlyaffect the religious freedom which is guaranteed to every personFunder Article 25. Institutions as such cannot practice or propagatereligion; it can be done only by individual personsand whetherthese persons propagate their personal views or the tenets forwhich the institution stands is really immaterial for purposes ofArticle 25. It is the propagation of belief that is protected, no

matter whether the propagation takes place in church orGmonastery, or in temple or parlour meeting.”[1]

(emphasis supplied) (at p. 1021)

1 In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors.,(1964) 4 SCR 99, majority of 9 Judges held that the S.T.C., which is companyHregistered under the Indian Companies Act, 1956, is not citizen within the meaning of

With regard to whether Math could come within the expression“religious denomination” under Article 26, this Court laid down thefollowing tests:

“As regards Article 26, the first question is, what is the precisemeaning or connotation of the expression “religious denomination”and whether Math could come within this expression. The word“denomination” has been defined in the Oxford Dictionary to mean“a collection of individuals classed together under the same name:a religious sect or body having common faith and organisationand designated by distinctive name”.

It is well known that the practice of setting up Maths as centersof theological teaching was started by Shri Sankaracharya andwas followed by various teachers since then. After Sankara, camea galaxy of religious teachers and philosophers who founded thedifferent sects and sub-sects of the Hindu religion that we find inIndia at the present day. Each one of such sects or sub-sects cancertainly be called religious denomination, as it is designated by—a distinctive name, in many cases it is the name of the founder,and has common faith and common spiritual organization.Thefollowers of Ramanuja, who are known by the name of ShriVaishnabas, undoubtedly constitute religious denomination; andso do the followers of Madhwacharya and other religious teachers.It is fact well established by tradition that the eight Udipi Mathswere founded by Madhwacharya himself and the trustees andthe beneficiaries of these Maths profess to be followers of thatteacher. The High Court has found that the Math in question is incharge of the Sivalli Brahmins who constitute section of thefollowers of Madhwacharya. As Article 26 contemplates notmerely religious denomination but also section thereof, theMath or the spiritual fraternity represented by it can legitimatelycome within the purview of this article.”

(emphasis supplied) (at pp. 1021-1022)

Article 19 of the Constitution of India. In concurring judgment by Hidayatullah, J.,the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1) clearlyrefer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to holdthat in Articles 14, 20, 27 and 31, the word “person” would apply to individuals as wellas to corporations (See p. 147). What is conspicuous by its absence is Article 25(1),which also uses the word “person”, which, as Shirur Math (supra) states above, canapply only to natural persons. Consequently, the argument that an idol can exercisefundamental rights contained in Article 25(1), as urged by some of the Respondents,must be rejected.

CDEF

AWith regard to what constitutes “religion”, “religious practice”,and “essential religious practices”, as opposed to “secular practices”,this Court held:

“It will be seen that besides the right to manage its own affairs inmatters of religion, which is given by clause (b), the next twoclauses of Article 26 guarantee to religious denomination theright to acquire and own property and to administer such propertyin accordance with law. The administration of its property by areligious denomination has thus been placed on different footingfrom the right to manage its own affairs in matters of religion.The latter is fundamental right which no legislature can takeaway, whereas the former can be regulated by laws which thelegislature can validly impose. It is clear, therefore, that questionsmerely relating to administration of properties belonging to areligious group or institution are not matters of religion to whichclause (b) of the Article applies. What then are matters of religion?The word “religion” has not been defined in the Constitution andit is term which is hardly susceptible of any rigid definition. In anAmerican case [Vide Davis v. Benson, 133 US 333 at 342], ithas been said “that the term ‘religion’ has reference to one’s viewsof his relation to his Creator and to the obligations they impose ofreverence for His Being and character and of obedience to Hiswill. It is often confounded with cultus of form or worship of aparticular sect, but is distinguishable from the latter.” We do notthink that the above definition can be regarded as either preciseor adequate. Articles 25 and 26 of our Constitution are based forthe most part upon Article 44(2) of the Constitution of Eire andwe have great doubt whether definition of “religion” as givenabove could have been in the minds of our Constitution-makerswhen they framed the Constitution. Religion is certainly matterof faith with individuals or communities and it is not necessarilytheistic.There are well known religions in India like Buddhismand Jainism which do not believe in God or in any Intelligent FirstCause. religion undoubtedly has its basis in system of beliefsor doctrines which are regarded by those who profess that religionas conducive to their spiritual well being, but it would not be correctto say that religion is nothing else but doctrine or belief. religion

may not only lay down code of ethical rules for its followers toaccept, it might prescribe rituals and observances, ceremoniesand modes of worship which are regarded as integral parts ofreligion, and these forms and observances might extend even tomatters of food and dress.

The guarantee under our Constitution not only protects the freedomof religious opinion but it protects also acts done in pursuance of areligion and this is made clear by the use of the expression “practiceof religion” in Article 25.Latham, C.J. of the High Court ofAustralia while dealing with the provision of section 116 of theAustralian Constitution which inter alia forbids the Commonwealthto prohibit the “free exercise of any religion” made the followingweighty observations [VideAdelaide Company v.Commonwealth, 67 C.L.R. 116, 127]:“It is sometimes suggested in discussions on the subject offreedom of religion that, though the civil Government shouldnot interfere with religious opinions, it nevertheless may dealas it pleases with any acts which are done in pursuance ofreligious belief without infringing the principle of freedom ofreligion. It appears to me to be difficult to maintain thisdistinction as relevant to the interpretation of section 116. Thesection refers in express terms to the exercise of religion, andtherefore it is intended to protect from the operation of anyCommonwealth laws acts which are done in the exercise ofreligion. Thus the section goes far beyond protecting liberty ofopinion. It protects also acts done in pursuance of religiousbelief as part of religion.”

These observations apply fully to the protection of religion asguaranteed by the Indian Constitution. Restrictions by the Stateupon free exercise of religion are permitted both under Articles25 and 26 on grounds of public order, morality and health. Clause(2)(a) of Article 25 reserves the right of the State to regulate orrestrict any economic, financial, political and other secular activitieswhich may be associated with religious practice and there is afurther right given to the State by sub-clause (b) under which theState can legislate for social welfare and reform even though byso doing it might interfere with religious practices. The learned

Attorney-General lays stress upon clause (2)(a) of the Articleand his contention is that all secular activities, which may beassociated with religion but do not really constitute an essentialpart of it, are amenable to State regulation.

The contention formulated in such broad terms cannot, we think,be supported. In the first place, what constitutes the essential partof religion is primarily to be ascertained with reference to thedoctrines of that religion itself.If the tenets of any religious sectof the Hindus prescribe that offerings of food should be given tothe idol at particular hours of the day, that periodical ceremoniesshould be performed in certain way at certain periods of theyear or that there should be daily recital of sacred texts or oblationsto the sacred fire, all these would be regarded as parts of religionand the mere fact that they involve expenditure of money oremployment of priests and servants or the use of marketablecommodities would not make them secular activities partaking ofa commercial or economic character; all of them are religiouspractices and should be regarded as matters of religion within themeaning of Article 26(b). What Article 25(2)(a) contemplates isnot regulation by the State of religious practices as such, thefreedom of which is guaranteed by the Constitution except whenthey run counter to public order, health and morality, but regulationof activities which are economic, commercial or political in theircharacter though they are associated with religious practices. Wemay refer in this connection to few American and Australiancases, all of which arose out of the activities of persons connectedwith the religious association known as “Jehovah’s Witnesses.”

This association of persons loosely organised throughout Australia,U.S.A. and other countries regard the literal interpretation of theBible as fundamental to proper religious beliefs. This belief in thesupreme authority of the Bible colours many of their political ideas.They refuse to take oath of allegiance to the king or otherconstituted human authority and even to show respect to thenational flag, and they decry all wars between nations and allkinds of war activities. In 1941 company of “Jehovah’sWitnesses” incorporated in Australia commenced proclaiming andteaching matters which were prejudicial to war activities and thedefence of the Commonwealth and steps were taken against themunder the National Security Regulations of the State. The legalityof the action of the Government was questioned by means of awrit petition before the High Court and the High Court held thatthe action of the Government was justified and that section 116,which guaranteed freedom of religion under the AustralianConstitution, was not in any way infringed by the National SecurityRegulations [Vide Adelaide Company v. Commonwealth, 67C.L.R. 116, 127]. These were undoubtedly political activities thougharising out of religious belief entertained by particular community.In such cases, as Chief Justice Latham pointed out, the provisionfor protection of religion was not an absolute protection to beinterpreted and applied independently of other provisions of theConstitution. These privileges must be reconciled with the right ofthe State to employ the sovereign power to ensure peace, securityand orderly living without which constitutional guarantee of civilliberty would be mockery.”

(emphasis supplied)

(at pp. 1023-1026)

As to what matters religious denomination enjoys completeautonomy over, this Court said:

“…… As we have already indicated, freedom of religion in ourConstitution is not confined to religious beliefs only; it extends toreligious practices as well subject to the restrictions which theConstitution itself has laid down. Under Article 26(b), therefore, areligious denomination or organization enjoys complete autonomyin the matter of deciding as to what rites and ceremonies areessential according to the tenets of the religion they hold and nooutside authority has any jurisdiction to interfere with their decisionin such matters. Of course, the scale of expenses to be incurredin connection with these religious observances would be matterof administration of property belonging to the religiousdenomination and can be controlled by secular authorities inaccordance with any law laid down by competent legislature;for it could not be the injunction of any religion to destroy theinstitution and its endowments by incurring wasteful expenditureon rites and ceremonies. It should be noticed, however, that underArticle 26(d), it is the fundamental right of religious denominationor its representative to administer its properties in accordance

with law; and the law, therefore, must leave the right ofadministration to the religious denomination itself subject to suchrestrictions and regulations as it might choose to impose. lawwhich takes away the right of administration from the hands of areligious denomination altogether and vests it in any other authoritywould amount to violation of the right guaranteed under clause(d) of Article 26.”

(at pp. 1028-1029)

5. Close on the heels of this judgment, followed the judgment inRatilal Panachand Gandhi v. State of Bombay and Ors., 1954 SCR1055. In this case, two connected appeals – one by the manager of aSwetamber Jain public temple and one by the trustees of the ParsiPunchayet, assailed the constitutional validity of the Bombay Public TrustsAct, 1950. Dealing with the freedoms contained in Articles 25 and 26,this Court held:

“Article 25 of the Constitution guarantees to every person andDnot merely to the citizens of India the freedom of conscience andthe right freely to profess, practise and propagate religion. This issubject, in every case, to public order, health and morality. Furtherexceptions are engrafted upon this right by clause (2) of the Article.Sub-clause (a) of clause (2) saves the power of the State to makeElaws regulating or restricting any economic, financial, political orother secular activity which may be associated with religiouspractice; and sub-clause (b) reserves the State’s power to makelaws providing for social reform and social welfare even thoughthey might interfere with religious practices. Thus, subject to therestrictions which this Article imposes, every person has aFfundamental right under our Constitution not merely to entertainsuch religious belief as may be approved of by his judgment orconscience but to exhibit his belief and ideas in such overt acts asare enjoined or sanctioned by his religion and further to propagatehis religious views for the edification of others. It is immaterialGalso whether the propagation is made by person in his individualcapacity or on behalf of any church or institution. The free exerciseof religion by which is meant the performance of outward acts inpursuance of religious belief, is, as stated above, subject to Stateregulation imposed to secure order, public health and morals ofthe people.What sub-clause (a) of clause (2) of Article 25

contemplates is not State regulation of the religious practices assuch which are protected unless they run counter to public healthor morality but of activities which are really of an economic,commercial or political character though they are associated withreligious practices.

So far as Article 26 is concerned, it deals with particular aspectof the subject of religious freedom. Under this article, any religiousdenomination or section of it has the guaranteed right to establishand maintain institutions for religious and charitable purposes andto manage in its own way all affairs in matters of religion. Rightsare also given to such denomination or section of it to acquireand own movable and immovable properties and to administersuch properties in accordance with law. The language of the twoclauses (b) and (d) of Article 26 would at once bring out thedifference between the two. In regard to affairs in matters ofreligion, the right of management given to religious body is aguaranteed fundamental right which no legislation can take away.On the other hand, as regards administration of property which areligious denomination is entitled to own and acquire, it hasundoubtedly the right to administer such property but only inaccordance with law. This means that the State can regulate theadministration of trust properties by means of laws validly enacted;but here again it should be remembered that under Article 26(d),it is the religious denomination itself which has been given theright to administer its property in accordance with any law whichthe State may validly impose. law, which takes away the rightof administration altogether from the religious denomination andvests it in any other or secular authority, would amount to violationof the right which is guaranteed by Article 26(d) of the Constitution.The moot point for consideration, therefore, is where is the line tobe drawn between what are matters of religion and what are not?Our Constitution-makers have made no attempt to define what‘religion’ is and it is certainly not possible to frame an exhaustivedefinition of the word ‘religion’ which would be applicable to allclasses of persons. As has been indicated in the Madras casereferred to above, the definition of ‘religion’ given by Fields, J. inthe American case of Davis v. Beason [133 U.S. 333], does notseem to us adequate or precise. “The term ‘religion’ “, thus

observed the learned Judge in the case mentioned above, “hasreference to one’s views of his relations to his Creator and to theobligations they impose of reverence for His Being and characterand of obedience to His Will. It is often confounded with cultusor form of worship of particular sect, but is distinguishable fromthe latter”. It may be noted that ‘religion’ is not necessarily theisticand in fact there are well known religions in India like Buddhismand Jainism which do not believe in the existence of God or ofany Intelligent First Cause. religion undoubtedly has its basis ina system of beliefs and doctrines which are regarded by thosewho profess that religion to be conducive to their spiritual wellbeing, but it would not be correct to say, as seems to have beensuggested by one of the learned Judges of the Bombay High Court,that matters of religion are nothing but matters of religious faithand religious belief. religion is not merely an opinion, doctrine orbelief. It has its outward expression in acts as well. We may quotein this connection the observations of Latham, C.J. of the HighCourt of Australia in the case of Adelaide Company v.Commonwealth [67 C.L.R. 116, 124], where the extent ofprotection given to religious freedom by section 116 of theAustralian Constitution came up for consideration.

“It is sometimes suggested in discussions on the subject offreedom of religion that, though the civil Government shouldnot interfere with religious opinions, it nevertheless may dealas it pleases with any acts which are done in pursuance ofreligious belief without infringing the principle of freedom ofreligion. It appears to me to be difficult to maintain thisdistinction as relevant to the interpretation of section 116. Thesection refers in express terms to the exercise of religion, andtherefore it is intended to protect from the operation of anyCommonwealth laws acts which are done in the exercise ofreligion. Thus the section goes far beyond protecting liberty ofopinion. It protects also acts done in pursuance of religiousbelief as part of religion.”

In our opinion, as we have already said in the Madras case, theseobservations apply fully to the provision regarding religious freedomthat is embodied in our Constitution.

Religious practices or performances of acts in pursuance ofreligious belief are as much part of religion as faith or belief inparticular doctrines. Thus if the tenets of the Jain or the Parsireligion lay down that certain rites and ceremonies are to beperformed at certain times and in particular manner, it cannotbe said that these are secular activities partaking of commercialor economic character simply because they involve expenditureof money or employment of priests or the use of marketablecommodities. No outside authority has any right to say that theseare not essential parts of religion and it is not open to the secularauthority of the State to restrict or prohibit them in any mannerthey like under the guise of administering the trust estate. Ofcourse, the scale of expenses to be incurred in connection withthese religious observances may be and is matter of administrationof property belonging to religious institutions; and if the expenseson these heads are likely to deplete the endowed properties oraffect the stability of the institution, proper control can certainlybe exercised by State agencies as the law provides. We mayrefer in this connection to the observation of Davar, J. in the caseof Jamshed ji v. Soonabai [33 Bom. 122], and although theywere made in case where the question was whether the bequestof property by Parsi testator for the purpose of perpetualcelebration of ceremonies like Muktad baj, Vyezashni, etc., whichare sanctioned by the Zoroastrian religion were valid charitablegifts, the observations, we think, are quite appropriate for ourpresent purpose. “If this is the belief of the community” thusobserved the learned Judge, “and it is proved undoubtedly to bethe belief of the Zoroastrian community,—a secular Judge is boundto accept that belief—it is not for him to sit in judgment on thatbelief, he has no right to interfere with the conscience of donorwho makes gift in favour of what he believes to be theadvancement of his religion and the welfare of his community ormankind”. These observations do, in our opinion, afford anindication of the measure of protection that is given by Article26(b) of our Constitution.

The distinction between matters of religion and those of secularadministration of religious properties may, at times, appear to be athin one. But in cases of doubt, as Chief Justice Latham pointed

CDEFG

Aout in the case [Vide Adelaide Company v. The Commonwealth,67 C.L.R. 116, 129] referred to above, the court should take acommon sense view and be actuated by considerations of practicalnecessity. It is in the light of these principles that we will proceedto examine the different provisions of the Bombay Public TrustsAct, the validity of which has been challenged on behalf of theBappellants.”

(at pp. 1062-1066)

6. We now come to the famous Mulki Temple case. In thisjudgment, namely, Sri Venkataramana Devaru and Ors. v. State ofCMysore and Ors., 1958 SCR 895, (“Sri Venkataramana Devaru”),an ancient temple dedicated to Sri Venkataramana, renowned for itssanctity, was before the Court in challenge to the Madras TempleEntry Authorisation Act (V of 1947). It was noticed that the trustees ofthis temple were all members of sect known as the Gowda SaraswathBrahmins. Even though the temple had originally been founded for theDbenefit of certain immigrant families of the Gowda Saraswath Brahmins,in the course of time, however, worshippers consisted of all classes ofHindus. Finding that the said temple is public temple, it was furtherheld that during certain religious ceremonies, persons other than GowdaSaraswath Brahmins had been wholly excluded, as result of which,Ethe temple was held to be religious denomination within the meaning ofArticle 26. The Court then found that if an image becomes defiled or ifthere is any departure or violation of any of the rules relating to worship,as result of entry of certain persons into the temple, an essential religiouspractice can be said to have been affected. The Court held:

F“According to the Agamas, an image becomes defiled if there isany departure or violation of any of the rules relating to worship,and purificatory ceremonies (known as Samprokshana) have tobe performed for restoring the sanctity of the shrine. Vide judgmentof Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar[(1914) 27 MLJ 253]. In Sankaralinga Nadan v. RajaGRajeswara Dorai [(1908) L.R. 35 I.A. 176], it was held by thePrivy Council affirming the judgment of the Madras High Courtthat trustee who agreed to admit into the temple persons whowere not entitled to worship therein, according to the Agamasand the custom of the temple was guilty of breach of trust. Thus,Hunder the ceremonial law pertaining to temples, who are entitled

to enter into them for worship and where they are entitled tostand and worship and how the worship is to be conducted are allmatters of religion.The conclusion is also implicit in Art. 25 whichafter declaring that all persons are entitled freely to profess,practice and propagate religion, enacts that this should not affectthe operation of any law throwing open Hindu religious institutionsof public character to all classes and sections of Hindus. Wehave dealt with this question at some length in view of theargument of the learned Solicitor-General that exclusion of personsfrom temple has not been shown to be matter of religion withreference to the tenets of Hinduism. We must, accordingly holdthat if the rights of the appellants have to be determined solelywith reference to Art 26(b), then section 3 of Act V of 1947,should be held to be bad as infringing it.”

(emphasis supplied)

(at pp. 910-911)

The important question that then had to be decided was whetherdenominational institutions were within the reach of Article 25(2)(b).This was answered in the affirmative. It was then stated:

“…… The fact is that though Art. 25(1) deals with rights ofindividuals, Art. 25(2) is much wider in its contents and hasreference to the rights of communities, and controls both Art.25(1) and Art. 26(b).

The result then is that there are two provisions of equal authority,neither of them being subject to the other. The question is how theapparent conflict between them is to be resolved. The rule ofconstruction is well settled that when there are in an enactmenttwo provisions which cannot be reconciled with each other, theyshould be so interpreted that, if possible, effect could be given toboth. This is what is known as the rule of harmonious construction.Applying this rule, if the contention of the appellants is to beaccepted, then Art. 25(2)(b) will become wholly nugatory in itsapplication to denominational temples, though, as stated above,the language of that Article includes them. On the other hand, ifthe contention of the respondents is accepted, then full effect canbe given to Art. 26(b) in all matters of religion, subject only to thisthat as regards one aspect of them, entry into temple for worship,the rights declared under Art. 25(2)(b) will prevail. While, in the

Aformer case, Art. 25(2)(b) will be put wholly out of operation, inthe latter, effect can be given to both that provision and Art. 26(b).We must accordingly hold that Art. 26(b) must be read subject toArt. 25(2)(b).”

(at pp. 917-918)

BWhen there is no general or total exclusion of members of thepublic from worship in the temple, but exclusion from only certain religiousservices, it was held:

“We have held that the right of denomination to wholly excludemembers of the public from worshipping in the temple, thoughCcomprised in Art. 26(b), must yield to the overriding right declaredby Art. 25(2)(b) in favour of the public to enter into temple forworship. But where the right claimed is not one of general andtotal exclusion of the public from worship in the temple at all timesbut of exclusion from certain religious services, they being limitedDby the rules of the foundation to the members of the denomination,then the question is not whether Art. 25(2)(b) overrides that rightso as extinguish it, but whether it is possible — so to regulate therights of the persons protected by Art. 25(2)(b) as to give effectto both the rights. If the denominational rights are such that togive effect to them would substantially reduce the right conferredEby Art. 25(2)(b), then of course, on our conclusion that Art.25(2)(b) prevails as against Art. 26(b), the denominational rightsmust vanish. But where that is not the position, and after givingeffect to the rights of the denomination what is left to the public ofthe right of worship is something substantial and not merely theFhusk of it, there is no reason why we should not so construe Art.25(2)(b) as to give effect to Art. 26(b) and recognise the rights ofthe denomination in respect of matters which are strictlydenominational, leaving the rights of the public in other respectsunaffected.”

(at pp. 919-920)

7. In Durgah Committee, Ajmer and Anr. v. Syed HussainAli and Ors., (1962) 1 SCR 383, (“Durgah Committee”), this Courtwas faced with challenge to the vires of the Durgah Khwaja SahebAct, 1955. The famous tomb of Khwaja Moin-ud-din Chishti of Ajmerwas managed by group of persons who belonged to the Chishti OrderH

of Soofies. The argument that as people from all religious faiths came toworship at this shrine, and that, therefore, it could not be said to be ashrine belonging to any particular religious denomination, was negatedas follows:

“…… Thus on theoretical considerations it may not be easy tohold that the followers and devotees of the saint who visit theDurgah and treat it as place of pilgrimage can be regarded asconstituting religious denomination or any section thereof.However, for the purpose of the present appeal we propose todeal with the dispute between the parties on the basis that theChishtia sect whom the respondents purport to represent and onwhose behalf — (as well as their own) — they seek to challengethe vires of the Act is section or religious denomination. Thisposition appears to have been assumed in the High Court and wedo not propose to make any departure in that behalf in dealingwith the present appeal.”

(emphasis supplied)

(at p. 401)

8. The judgment in Shirur Math (supra) was followed, as wasSri Venkataramana Devaru (supra), for the determining tests of whatwould constitute “religious denomination” and what could be said to beessential and integral parts of religion as opposed to purely secularpractices. An important sentence was added to what has already beenlaid down in these two judgments:

“…… Similarly, even practices, though religious, may have sprungfrom merely superstitious beliefs and may in that sense beextraneous and unessential accretions to religion itself. ……”

9. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay,1962 Supp. (2) SCR 496, this Court struck down the Bombay Preventionof Excommunication Act, 1949, with Chief Justice Sinha dissenting.Though the learned Chief Justice’s judgment is dissenting judgment,some of the principles laid down by the learned Chief Justice, notdissented from by the majority judgment, are apposite and are, therefore,set out hereunder:-

“…… It is noteworthy that the right guaranteed by Art. 25 is anindividual right as distinguished from the right of an organised

body like religious denomination or any section thereof, dealtwith by Art. 26. Hence, every member of the community has theright, so long as he does not in any way interfere with thecorresponding rights of others, to profess, practice and propagatehis religion, and everyone is guaranteed his freedom of conscience.……… The Constitution has left every person free in the matterof his relation to his Creator, if he believes in one. It is, thus, clearthat person is left completely free to worship God according tothe dictates of his conscience, and that his right to worship as hepleased is unfettered so long as it does not come into conflict withany restraints, as aforesaid, imposed by the State in the interest ofpublic order, etc. person is not liable to answer for the verity ofhis religious views, and he cannot be questioned as to his religiousbeliefs, by the State or by any other person. Thus, though hisreligious beliefs are entirely his own and his freedom to hold thosebeliefs is absolute, he has not the absolute right to act in any wayhe pleased in exercise of his religious beliefs. He has beenguaranteed the right to practice and propagate his religion, subjectto the limitations aforesaid. His right to practice his religion mustalso be subject to the criminal laws of the country, validly passedwith reference to actions which the legislature has declared to beof penal character. Laws made by competent legislature inthe interest of public order and the like, restricting religiouspractices, would come within the regulating power of the State.For example, there may be religious practices of sacrifice of humanbeings, or sacrifice of animals in way deleterious to the well-being of the community at large. It is open to the State to intervene,by legislation, to restrict or to regulate to the extent of completelystopping such deleterious practices. It must, therefore, be heldthat though the freedom of conscience is guaranteed to everyindividual so that he may hold any beliefs he likes, his actions inpursuance of those beliefs may be liable to restrictions in the interestof the community at large, as may be determined by commonconsent, that is to say, by competent legislature. It was on suchhumanitarian grounds, and for the purpose of social reform, thatso called religious practices like immolating widow at the pyreof her deceased husband, or of dedicating virgin girl of tenderyears to God to function as devadasi, or of ostracizing personfrom all social contacts and religious communion on account of

his having eaten forbidden food or taboo, were stopped bylegislation.”

(emphasis supplied)

(at pp. 518-520)

The learned Chief Justice upheld the said Act, stating that the Actis aimed at fulfillment of the individual liberty of conscience guaranteedby Article 25(1) of the Constitution, and not in derogation of it. Also, thelearned Chief Justice stated that the Act really carried out the strictinjunction of Article 17 of the Constitution of India by which untouchabilityhas been abolished, and held that, as excommunication is form ofuntouchability, the Act is protected by Article 17 and must therefore beupheld.

The majority judgment, however, by K.C. Das Gupta, J. held theAct to be constitutionally infirm as it was violative of Article 26(b) asfollows:

“Let us consider first whether the impugned Act contravenes theprovisions of Art. 26(b). It is unnecessary for the purpose of thepresent case to enter into the difficult question whether everycase of excommunication by the Dai on whatever grounds inflictedis matter of religion. What appears however to be clear is thatwhere an excommunication is itself based on religious groundssuch as lapse from the orthodox religious creed or doctrine (similarto what is considered heresy, apostasy or schism under the CanonLaw) or breach of some practice considered as an essential partof the religion by the Dawoodi Bohras in general, excommunicationcannot but be held to be for the purpose of maintaining the strengthof the religion. It necessarily follows that the exercise of this powerof excommunication on religious grounds forms part of themanagement by the community, through its religious head, “of itsown affairs in matters of religion.” The impugned Act makes evensuch excommunications invalid and takes away the power of theDai as the head of the community to excommunicate even onreligious grounds. It therefore, clearly interferes with the right ofthe Dawoodi Bohra community under clause (b) of Art. 26 of theConstitution.”

(at p. 535)

[2018] 9 S.C.R.

Holding that the said law is not referable to Article 25(2)(b), theCourt then held:

“It remains to consider whether the impugned Act comes withinthe saving provisions embodied in clause 2 of Art. 25. The clauseis in these words:-—

“Nothing in this Article shall affect the operation of any existinglaw or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political orother secular activity which may be associated with religiouspractice;

(b) providing for social welfare and reform or the throwing openof Hindu religious institution of public character to all classesand section of Hindus.”

Quite clearly, the impugned Act cannot be regarded as lawregulating or restricting any economic, financial, political or othersecular activity. Indeed, that was not even suggested on behalf ofthe respondent State. It was faintly suggested however that theAct should be considered to be law “providing for social welfareand reform.” The mere fact that certain civil rights which mightbe lost by members of the Dawoodi Bohra community as resultof excommunication even though made on religious grounds andthat the Act prevents such loss, does not offer sufficient basis fora conclusion that it is law “providing for social welfare andreform.” The barring of excommunication on grounds other thanreligious grounds, say, on the breach of some obnoxious socialrule or practice might be measure of social reform and lawwhich bars such excommunication merely might conceivably comewithin the saving provisions of clause 2(b) of Art. 25. But barringof excommunication on religious grounds pure and simple, cannothowever be considered to promote social welfare and reform andconsequently the law insofar as it invalidates excommunicationon religious grounds and takes away the Dai’s power to imposesuch excommunication cannot reasonably be considered to be ameasure of social welfare and reform. As the Act invalidatesexcommunication on any ground whatsoever, including religiousgrounds, it must be held to be in clear violation of the right of theDawoodi Bohra community under Art. 26(b) of the Constitution.”

(at pp. 536-537)

In an illuminating concurring judgment, N. Rajagopala Ayyangar,J. upheld the Act on the ground that excommunication is not so much apunishment but is really used as measure of discipline for themaintenance of the integrity of the Dawoodi Bohra community. It thereforeviolates the right to practice religion guaranteed by Articles 25(1) and 26in that it interferes with the right of the religious head – the Dai – toadminister, as trustee, the property of the denomination so as to excludeexcommunicated persons. The learned Judge, however, drew distinctionbetween the two parts of Article 25(2)(b), stating that the expression“social welfare and reform” could not affect essential parts of religiouspractice as follows:

“But very different considerations arise when one has to dealwith legislation which is claimed to be merely measure “providingfor social welfare and reform.” To start with, it has to be admittedthat this phrase is, as contrasted with the second portion of Art.25(2)(b), far from precise and is flexible in its content. In thisconnection it has to be borne in mind that limitations imposed onreligious practices on the ground of public order, morality or healthhave already been saved by the opening words of Art. 25(1) andthe saving would cover beliefs and practices even thoughconsidered essential or vital by those professing the religion. Iconsider that in the context in which the phrase occurs, it is intendedto save the validity only of those laws which do not invade thebasic and essential practices of religion which are guaranteed bythe operative portion of Art. 25(1) for two reasons: (1) To readthe saving as covering even the basic essential practices of religion,would in effect nullify and render meaningless the entire guaranteeof religious freedom — freedom not merely to profess, but topractice religion, for very few pieces of legislation for abrogatingreligious practices could fail to be subsumed under the caption of“a provision for social welfare or reform.” (2) If the phrase justquoted was intended to have such wide operation as cutting ateven the essentials guaranteed by Art. 25(1), there would havebeen no need for the special provision as to “throwing open ofHindu religious institutions” to all classes and sections of Hindussince the legislation contemplated by this provision would be parexcellence one of social reform.

In my view by the phrase “laws providing for social welfare andreform” it was not intended to enable the legislature to “reform”

Aa religion out of existence or identity. Art. 25(2)(a) having providedfor legislation dealing with “economic, financial, political or secularactivity which may be associated with religious practices”, thesucceeding clause proceeds to deal with other activities of religiousgroups and these also must be those which are associated withreligion. Just as the activities referred to in Art. 25(2)(a) areBobviously not of the essence of the religion, similarly the saving inArt. 25(2)(b) is not intended to cover the basic essentials of thecreed of religion which is protected by Art. 25(1).”

(at pp. 552-553)

C10. As this view is the view of only one learned Judge, and as itdoes not arise for decision in the present case, suffice it to say that thisview will need to be tested in some future case for its validity. It isinstructive to remember that Shirur Math (supra) specifically containeda sentence which stated that there is further right given to the State byArticle 25(2)(b) under which, the State can legislate for social welfareDand reform “even though by so doing it might interfere with religiouspractices”. We, therefore, leave this part of Article 25(2)(b) to be focusedand deliberated upon in some future case.11. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthanand Ors., (1964) 1 SCR 561, otherwise referred to as the NathdwaraETemple case, this Court was concerned with the validity of theNathdwara Temple Act, 1959. Referring to and following some of thejudgments that have already been referred, this Court held that theNathdwara temple was public temple and that as the Act extinguishedthe secular office of the Tilkayat by which he was managing the propertiesFof the Temple, no right under Article 26 could be said to have beeneffected. In an instructive passage, this Court laid down certain tests asto what could be said to be an essential or integral part of religion asopposed to purely secular practice, and laid down what is to be done toseparate what may not always be oil from water. The Court held asfollows:G“In deciding the question as to whether given religious practiceis an integral part of the religion or not, the test always would bewhether it is regarded as such by the community following thereligion or not. This formula may in some cases present difficultiesin its operation. Take the case of practice in relation to food or

dress. If in given proceeding, one section of the communityclaims that while performing certain rites white dress is an integralpart of the religion itself, whereas another section contends thatyellow dress and not the white dress is the essential part of thereligion, how is the Court going to decide the question? Similardisputes may arise in regard to food. In cases where conflictingevidence is produced in respect of rival contentions as to competingreligious practices the Court may not be able to resolve the disputeby blind application of the formula that the community decideswhich practice is an integral part of its religion, because thecommunity may speak with more than one voice and the formulawould, therefore, break down. This question will always have tobe decided by the Court and in doing so, the Court may have toenquire whether the practice in question is religious in characterand if it is, whether it can be regarded as an integral or essentialpart of the religion, and the finding of the Court on such an issuewill always depend upon the evidence adduced before it as to theconscience of the community and the tenets of its religion. It is inthe light of this possible complication which may arise in somecases that this Court struck note of caution in the case of TheDurgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR383, 411], and observed that in order that the practices in questionshould be treated as part of religion they must be regarded bythe said religion as its essential and integral part; otherwise evenpurely secular practices which are not an essential or an integralpart of religion are apt to be clothed with religious form and maymake claim for being treated as religious practices within themeaning of Art. 25(1).

In this connection, it cannot be ignored that what is protectedunder Arts. 25(1) and 26(b) respectively are the religious practicesand the right to manage affairs in matters of religion. If the practicein question is purely secular or the affair which is controlled bythe statute is essentially and absolutely secular in character, itcannot be urged that Art. 25(1) or Art. 26(b) has been contravened.The protection is given to the practice of religion and to thedenomination’s right to manage its own affairs in matters of religion.Therefore, whenever claim is made on behalf of an individualcitizen that the impugned statute contravenes his fundamental right

to practise religion or claim is made on behalf of the denominationthat the fundamental right guaranteed to it to manage its ownaffairs in matters of religion is contravened, it is necessary toconsider whether the practice in question is religious or the affairsin respect of which the right of management is alleged to havebeen contravened are affairs in matters of religion. If the practiceis religious practice or the affairs are the affairs in matter ofreligion, then, of course, the rights guaranteed by Art. 25(1) andArt. 26(b) cannot be contravened.

It is true that the decision of the question as to whether certainpractice is religious practice or not, as well as the question as towhether an affair in question is an affair in matters of religion ornot, may present difficulties because sometimes practices, religiousand secular, are inextricably mixed up. This is more particularlyso in regard to Hindu religion because as is well known, under theprovisions of ancient Smritis, all human actions from birth to deathand most of the individual actions from day-to-day are regardedas religious in character. As an illustration, we may refer to thefact that the Smritis regard marriage as sacrament and not acontract. Though the task of disengaging the secular from thereligious may not be easy, it must nevertheless be attempted indealing with the claims for protection under Arts 25(1) and 26(b).

If the practice which is protected under the former is religiouspractice, and if the right which is protected under the latter is theright to manage affairs in matters of religion, it is necessary thatin judging about the merits of the claim made in that behalf theCourt must be satisfied that the practice is religious and the affairis in regard to matter of religion. In dealing with this problemunder Arts. 25(1) and 26(b), Latham C.J.’s observation in AdelaideCompany of Jehovah’s Witnesses Incorporated v. TheCommonwealth [67 CLR 116, 123], that “what is religion to oneis superstition to another”, on which Mr. Pathak relies, is of norelevance. If an obviously secular matter is claimed to be matterof religion, or if an obviously secular practice is alleged to be areligious practice, the Court would be justified in rejecting theclaim because the protection guaranteed by Art. 25(1) and Art.26(b) cannot be extended to secular practices and affairs in regardto denominational matters which are not matters of religion, and

so, claim made by citizen that purely secular matter amountsto religious practice, or similar claim made on behalf of thedenomination that purely secular matter is an affair in mattersof religion, may have to be rejected on the ground that it is basedon irrational considerations and cannot attract the provisions ofArt. 25(1) or Art 26(b). This aspect of the matter must be bornein mind in dealing with the true scope and effect of Art. 25(1) andArt. 26(b).”

(at pp. 620-623)

12. In Seshammal and Ors. v. State of Tamil Nadu, (1972) 2SCC 11, the validity of the Tamil Nadu Hindu Religious and CharitableEndowments (Amendment) Act, 1970 was questioned by hereditaryArchakas and Mathadhipatis of some ancient temples of Tamil Nadu, asthe Amendment Act did away with the hereditary right of succession tothe office of Archaka even if the Archaka was otherwise qualified. ThisCourt repelled such challenge but in doing so, spoke of the importanceof the consecration of an idol in Hindu temple and the rituals connectedtherewith, as follows:“11. ……… On the consecration of the image in the temple theHindu worshippers believe that the Divine Spirit has descendedinto the image and from then on the image of the deity is fit to beworshipped. Rules with regard to daily and periodical worshiphave been laid down for securing the continuance of the DivineSpirit. The rituals have two-fold object. One is to attract the layworshipper to participate in the worship carried on by the priestor Archaka. It is believed that when congregation of worshippersparticipates in the worship particular attitude of aspiration anddevotion is developed and confers great spiritual benefit. Thesecond object is to preserve the image from pollution, defilementor desecration. It is part of the religious belief of Hindu worshipperthat when the image is polluted or defiled the Divine Spirit in theimage diminishes or even vanishes. That is situation which everydevotee or worshipper looks upon with horror. Pollution ordefilement may take place in variety of ways. According to theAgamas, an image becomes defiled if there is any departure orviolation of any of the rules relating to worship. In fact, purificatoryceremonies have to be performed for restoring the sanctity of theshrine [1958 SCR 895 (910)]. Worshippers lay great store by the

FGH

rituals and whatever other people, not of the faith, may think aboutthese rituals and ceremonies, they are part of the Hindu religiousfaith and cannot be dismissed as either irrational or superstitious.”

Ultimately, it was held that since the appointment of an Archakais secular act, the Amendment Act must be regarded as valid.

13. We now come to very important judgment contained in Rev.Stainislaus v. State of Madhya Pradesh and Ors., (1977) 2 SCR611. This judgment dealt with the constitutional validity of the MadhyaPradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedomof Religion Act, 1967, both of which statutes were upheld by the CourtCstating that they fall within the exception of “public order” as both ofthem prohibit conversion from one religion to another by use of force,allurement, or other fraudulent means. In an instructive passage, thisCourt turned down the argument on behalf of the appellants that theword “propagate” in Article 25(1) would include conversion. The Courtheld:

“We have no doubt that it is in this sense that the word ‘propagate’has been used in Article 25(1), for what the Article grants is notthe right to convert another person to one’s own religion, but totransmit or spread one’s religion by an exposition of its tenets. Ithas to be remembered that Article 25(1) guarantees “freedom ofEconscience” to every citizen, and not merely to the followers ofone particular religion, and that, in turn, postulates that there is nofundamental right to convert another person to one’s own religionbecause if person purposely undertakes the conversion of anotherperson to his religion, as distinguished from his effort to transmitFor spread the tenets of his religion, that would impinge on the“freedom of conscience” guaranteed to all the citizens of thecountry alike.

The meaning of guarantee under Article 25 of the Constitutioncame up for consideration in this Court in Ratilal PanachandGGandhi v. The State of Bombay & Ors. [1954 SCR 1055, 1062-63] and it was held as follows:

“Thus, subject to the restrictions which this Article imposes,every person has fundamental right under our Constitutionnot merely to entertain such religious belief as may be approvedof by his judgment or conscience but to exhibit his belief and

ideas in such overt acts as are enjoined or sanctioned by hisreligion and further to propagate his religious views for theedification of others.”

This Court has given the correct meaning of the Article, and wefind no justification for the view that it grants fundamental rightto convert persons to one’s own religion. It has to be appreciatedthat the freedom of religion enshrined in the Article is not guaranteedin respect of one religion only, but covers all religions alike, and itcan be properly enjoyed by person if he exercises his right in amanner commensurate with the like freedom of persons followingthe other religions. What is freedom for one, is freedom for theother, in equal measure, and there can therefore be no such thingas fundamental right to convert any person to one’s ownreligion.”

(at pp. 616-617)

14. In S.P. Mittal v. Union of India and Ors., (1983) 1 SCC 51,(“S.P. Mittal”), this Court upheld the constitutional validity of theAuroville (Emergency Provisions) Act, 1980. After referring to ShirurMath (supra) and Durgah Committee (supra), the Court laid downthree tests for determining whether temple could be considered to bea religious denomination as follows:

“80. The words ‘religious denomination’ in Article 26 of theConstitution must take their colour from the word ‘religion’ and ifthis be so, the expression ‘religious denomination’ must also satisfythree conditions:

“(1) It must be collection of individuals who have system ofbeliefs or doctrines which they regard as conducive to their spiritualwell-being, that is, common faith;

(2) common organization; and

(3) designation by distinctive name.”

reference was made to Rule 9 of the Rules and Regulations ofthe Sri Aurobindo Society, and to an important argument made, that tobe religious denomination, the person who is member of thedenomination should belong to the religion professed by the denominationand should give up his previous religion. The argument was referred toin paragraph 106 as follows:

“106. Reference was made to Rule 9 of the Rules and Regulationsof Sri Aurobindo Society, which deals with membership of theSociety and provides:

“9. Any person or institution or organisation either in India orabroad who subscribes to the aims and objects of the Society,and whose application for membership is approved by theExecutive Committee, will be member of the Society. Themembership is open to people everywhere without anydistinction of nationality, religion, caste, creed or sex.”

The only condition for membership is that the person seeking theCmembership of the Society must subscribe to the aims and objectsof the Society. It was further urged that what is universal cannotbe religious denomination. In order to constitute separatedenomination, there must be something distinct from another. Adenomination argues the counsel, is one which is different fromthe other and if the Society was religious denomination, then theDperson seeking admission to the institution would lose his previousreligion. He cannot be member of two religions at one and thesame time. But this is not the position in becoming member ofthe Society and Auroville. religious denomination must necessarilybe new one and new methodology must be provided for religion.ESubstantially, the view taken by Sri Aurobindo remains part ofthe Hindu philosophy. There may be certain innovations in hisphilosophy but that would not make it religion on that account.”

After referring to the arguments of both sides, the Court did notanswer the question as to whether the Sri Aurobindo Society was aFreligious denomination, but proceeded on the assumption that it was, andthen held that the Act did not violate either Article 25 or Article 26.

In separate opinion by Chinnappa Reddy, J., without advertingto the argument contained in paragraph 106 of Misra, J.’s judgment, thelearned Judge concluded that “Aurobindoism” could be classified as aGnew sect of Hinduism and the followers of Sri Aurobindo could, therefore,be termed as religious denomination. This was done despite the factthat Sri Aurobindo himself disclaimed that he was founding new religionand that the Society had represented itself as “non-political, non-religiousorganization” and claimed exemption from income tax on the groundthat it was engaged in educational, cultural, and scientific research.

15. We then come to Acharya Jagdishwaranand Avadhuta andOrs. v. Commissioner of Police, Calcutta and Anr., (1983) 4 SCC522. This judgment concerned itself with whether “Ananda Marga” is aseparate religious denomination. After referring to the tests laid down inShirur Math (supra), Durgah Committee (supra), and S.P. Mittal(supra), this Court held that Ananda Margis belong to the Hindu religion,more specifically, being Shaivites, and therefore, could be held to bepersons who satisfy all three tests – namely, that they are collection ofindividuals who have system of beliefs which they regard as conduciveto their spiritual well-being; they have common organization; and adistinctive name. In holding that the Tandava dance cannot be taken tobe an essential religious right of the Anand Margis, this Court inparagraph 14 held:

“14. The question for consideration now, therefore, is whetherperformance of Tandava dance is religious rite or practiceessential to the tenets of the religious faith of the Ananda Margis.We have already indicated that Tandava dance was not acceptedas an essential religious rite of Ananda Margis when in 1955 theAnanda Marga order was first established. It is the specific caseof the petitioner that Shri Ananda Murti introduced Tandava as apart of religious rites of Ananda Margis later in 1966. AnandaMarga as religious order is of recent origin and Tandava danceas part of religious rites of that order is still more recent. It isdoubtful as to whether in such circumstances Tandava dance canbe taken as an essential religious rite of the Ananda Margis. Evenconceding that it is so, it is difficult to accept Mr. Tarkunde’sargument that taking out religious processions with Tandava danceis an essential religious rite of Ananda Margis. In paragraph 17 ofthe writ petition the petitioner pleaded that “Tandava dance lastsfor few minutes where two or three persons dance by liftingone leg to the level of the chest, bringing it down and lifting theother”. In paragraph 18 it has been pleaded that “when the AnandaMargis greet their spiritual preceptor at the airport, etc., theyarrange for brief welcome dance of Tandava wherein one ortwo persons use the skull and symbolic knife and dance for twoor three minutes”. In paragraph 26 it has been pleaded that“Tandava is custom among the sect members and it is customaryperformance and its origin is over four thousand years old, hence

Ait is not new invention of Ananda Margis”. On the basis of theliterature of the Ananda Marga denomination it has been contendedthat there is prescription of the performance of Tandava danceby every follower of Ananda Marga. Even conceding that Tandavadance has been prescribed as religious rite for every follower ofthe Ananda Marga it does not follow as necessary corollaryBthat Tandava dance to be performed in the public is matter ofreligious rite. In fact, there is no justification in any of the writingsof Sri Ananda Murti that Tandava dance must be performed inpublic. At least none could be shown to us by Mr. Tarkunde despitean enquiry by us in that behalf. We are, therefore, not in positionCto accept the contention of Mr. Tarkunde that performance ofTandava dance in procession or at public places is an essentialreligious rite to be performed by every Ananda Margi.”

16. In Sri Adi Visheshwara of Kashi Vishwanath Temple,Varanasi and Ors. v. State of U.P. and Ors., (1997) 4 SCC 606, (“SriDAdi Visheshwara”), this Court upheld the constitutional validity of theUttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. In so doing,they referred to the tests of religious denomination laid down in theprevious judgments of this Court, and then held:

“33. Thus, it could be seen that every Hindu whether believerEof Shaiva form of worship or of panchratna form of worship, hasa right of entry into the Hindu Temple and worship the deity.Therefore, the Hindu believers of Shaiva form of worship are notdenominational worshippers. They are part of the Hindu religiousform of worship.The Act protects the right to perform worship,rituals or ceremonies in accordance with established customs andFpractices. Every Hindu has right to enter the Temple, touch theLinga of Lord Sri Vishwanath and himself perform the pooja. TheState is required under the Act to protect the religious practicesof the Hindu form of worship of Lord Vishwanath, be it in anyform, in accordance with Hindu Shastras, the customs or usagesGobtained in the Temple. It is not restricted to any particulardenomination or sect. Believers of Shaiva form of worship arenot denominational sect or section of Hindus but they areHindus as such. They are entitled to the protection under Articles25 and 26 of the Constitution. However, they are not entitled tothe protection, in particular, of clauses (b) and (d) of Article 26 as

religious denomination in the matter of management,administration and governance of the temples under the Act. TheAct, therefore, is not ultra vires Articles 25 and 26 of theConstitution.”

(emphasis supplied)

17. In N. Adithayan v. Travancore Devaswom Board andOrs., (2002) 8 SCC 106, this Court held the appointment of personwho is not Malayala Brahmin as Pujari or priest of temple inKerala as constitutionally valid. After referring to various authorities ofthis Court, this Court held:

“16. It is now well settled that Article 25 secures to every person,subject of course to public order, health and morality and otherprovisions of Part III, including Article 17 freedom to entertainand exhibit by outward acts as well as propagate and disseminatesuch religious belief according to his judgment and conscience forthe edification of others. The right of the State to impose suchrestrictions as are desired or found necessary on grounds of publicorder, health and morality is inbuilt in Articles 25 and 26 itself.Article 25(2)(b) ensures the right of the State to make lawproviding for social welfare and reform besides throwing open ofHindu religious institutions of public character to all classes andsections of Hindus and any such rights of the State or of thecommunities or classes of society were also considered to needdue regulation in the process of harmonizing the various rights.The vision of the founding fathers of the Constitution to liberatethe society from blind and ritualistic adherence to mere traditionalsuperstitious beliefs sans reason or rational basis has foundexpression in the form of Article 17. The legal position that theprotection under Articles 25 and 26 extends guarantee for ritualsand observances, ceremonies and modes of worship which areintegral parts of religion and as to what really constitutes an essentialpart of religion or religious practice has to be decided by the courtswith reference to the doctrine of particular religion or practicesregarded as parts of religion, came to be equally firmly laid down.

17. Where temple has been constructed and consecrated asper Agamas, it is considered necessary to perform the daily rituals,poojas and recitations as required to maintain the sanctity of the

idol and it is not that in respect of any and every temple any suchuniform rigour of rituals can be sought to be enforced, dehors itsorigin, the manner of construction or method of consecration. Nodoubt only qualified person well versed and properly trained forthe purpose alone can perform poojas in the temple since he hasnot only to enter into the sanctum sanctorum but also touch theidol installed therein. It therefore goes without saying that what isrequired and expected of one to perform the rituals and conductpoojas is to know the rituals to be performed and mantras, asnecessary, to be recited for the particular deity and the method ofworship ordained or fixed therefor. For example, in Saivite templesor Vaishnavite temples, only person who learnt the necessaryrites and mantras conducive to be performed and recited in therespective temples and appropriate to the worship of the particulardeity could be engaged as an Archaka. If traditionally orconventionally, in any temple, all along Brahmin alone wasconducting poojas or performing the job of Santhikaran, it maynot be because person other than the Brahmin is prohibitedfrom doing so because he is not Brahmin, but those others werenot in position and, as matter of fact, were prohibited fromlearning, reciting or mastering Vedic literature, rites or performanceof rituals and wearing sacred thread by getting initiated into theorder and thereby acquire the right to perform homa and ritualisticforms of worship in public or private temples. Consequently, thereis no justification to insist that Brahmin or Malayala Brahmin inthis case, alone can perform the rites and rituals in the temple, aspart of the rights and freedom guaranteed under Article 25 of theConstitution and further claim that any deviation would tantamountto violation of any such guarantee under the Constitution. Therecan be no claim based upon Article 26 so far as the Temple underour consideration is concerned. Apart from this principleenunciated above, as long as anyone well versed and properlytrained and qualified to perform the pooja in manner conduciveand appropriate to the worship of the particular deity, is appointedas Santhikaran dehors his pedigree based on caste, no valid orlegally justifiable grievance can be made in court of law. Therehas been no proper plea or sufficient proof also in this case of anyspecific custom or usage specially created by the founder of theTemple or those who have the exclusive right to administer the

affairs — religious or secular of the Temple in question, leavealone the legality, propriety and validity of the same in the changedlegal position brought about by the Constitution and the law enactedby Parliament. The Temple also does not belong to anydenominational category with any specialized form of worshippeculiar to such denomination or to its credit. For the said reason,it becomes, in sense, even unnecessary to pronounce upon theinvalidity of any such practice being violative of the constitutionalmandate contained in Articles 14 to 17 and 21 of the Constitutionof India.”

Finally, this Court held:

“18. ……… Any custom or usage irrespective of even any proofof their existence in pre-constitutional days cannot be countenancedas source of law to claim any rights when it is found to violatehuman rights, dignity, social equality and the specific mandate ofthe Constitution and law made by Parliament. No usage which isfound to be pernicious and considered to be in derogation of thelaw of the land or opposed to public policy or social decency canbe accepted or upheld by courts in the country.”

18. In Dr. Subramanian Swamy v. State of Tamil Nadu andOrs., (2014) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars(Smarthi Brahmins) to administer the properties of temple dedicatedto Lord Natraja at the Sri Sabanayagar Temple at Chidambaram. ThisCourt noticed, in paragraph 24, that the rights conferred under Article 26are not subject to other provisions of Part III of the Constitution. It thenwent on to extract portion of the Division Bench judgment of the MadrasHigh Court, which held that the Podhu Dikshitars constitute religiousdenomination, or in any event, section thereof, because they are aclosed body, and because no other Smartha Brahmin who is not aDikshitar is entitled to participate in either the administration or in theworship of God. This is their exclusive and sole privilege which has beenrecognized and established for several centuries. Another interestingobservation of this Court was that fundamental rights protected underArticle 26 cannot be waived. Thus, the power to supersede theadministration of religious denomination, if only for certain purposeand for limited duration, will have to be read as regulatory, otherwise,it will violate the fundamental right contained in Article 26.

A19. In Riju Prasad Sarma and Ors. v. State of Assam andOrs., (2015) 9 SCC 461, this Court dealt with customs based on religiousfaith which dealt with families of priests of temple called the MaaKamakhya Temple. After discussing some of the judgments of this Court,a Division Bench of this Court held:

B“61. There is no need to go into all the case laws in respect ofArticles 25 and 26 because by now it is well settled that Article25(2)(a) and Article 26(b) guaranteeing the right to every religiousdenomination to manage its own affairs in matters of religion aresubject to and can be controlled by law contemplated underArticle 25(2)(b) as both the Articles are required to be readCharmoniously. It is also well established that social reforms or theneed for regulations contemplated by Article 25(2) cannot obliterateessential religious practices or their performances and what wouldconstitute the essential part of religion can be ascertained withreference to the doctrine of that religion itself. In support of theDaforesaid established propositions, the respondents have referred

to and relied upon the judgment in Commr., Hindu ReligiousEndowments v. Sri Lakshmindra Thirtha Swamiar of Sri ShirurMutt [AIR 1954 SC 282 : 1954 SCR 1005] and also upon SriVenkataramana Devaru v. State of Mysore [AIR 1958 SC 255: 1958 SCR 895].”

The observation that regulations contemplated by Article 25 cannotobliterate essential religious practices is understandable as regulationsare not restrictions. However, social reform legislation, as has been seenabove, may go to the extent of trumping religious practice, if so found onthe facts of given case. Equally, the task of carrying out reform affectingFreligious belief is left by Article 25(2) in the hands of the State (Seeparagraph 66).

20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v.Government of Tamil Nadu and Anr., (2016) 2 SCC 725, (“Adi SaivaSivachariyargal Nala Sangam”), this Court was concerned with aGGovernment Order issued by the Government of Tamil Nadu, whichstated that any person who is Hindu and possesses the requisitequalification and training, can be appointed as an Archaka in Hindutemples. The Court referred to Article 16(5) of the Constitution, statingthat the exception carved out of the equality principle would cover anHoffice of the temple, which also requires performance of religious

functions. Therefore, an Archaka may, by law, be person professing aparticular religion or belonging to particular denomination. The Courtwent on to hold that although what constitutes essential religious practicemust be decided with reference to what the religious community itselfsays, yet, the ultimate constitutional arbiter of what constitutes essentialreligious practice must be the Court, which is matter of constitutionalnecessity. The Court went on to state that constitutional legitimacy, asdecided by the Courts, must supersede all religious beliefs and practices,and clarified that “complete autonomy”, as contemplated by Shirur Math(supra), of denomination to decide what constitutes essential religiouspractice must be viewed in the context of the limited role of the State inmatters relating to religious freedom as envisaged by Articles 25 and 26of the Constitution, and not of Courts as the arbiter of constitutionalrights and principles.

21. conspectus of these judgments, therefore, leads to thefollowing propositions:

21.1. Article 25 recognises fundamental right in favour of “allpersons” which has reference to natural persons.

21.2. This fundamental right equally entitlesall such persons tothe said fundamental right. Every member of religious community hasa right to practice the religion so long as he does not, in any way, interferewith the -----corresponding right of his co-religionists to do the same.

21.3. The content of the fundamental right is the fleshing out ofwhat is stated in the Preamble to the Constitution as “liberty of thought,belief, faith and worship”. Thus, all persons are entitled to freedom ofconscience and the right to freely profess, practice, and propagate religion.

21.4. The right to profess, practice, and propagate religion willinclude all acts done in furtherance of thought, belief, faith, and worship.

21.5. The content of the right concerns itself with the word“religion”. “Religion” in this Article would mean matters of faith withindividuals or communities, based on system of beliefs or doctrineswhich conduce to spiritual well-being. The aforesaid does not have to betheistic but can include persons who are agnostics and atheists.

21.6. It is only the essential part of religion, as distinguished fromsecular activities, that is the subject matter of the fundamental right.Superstitious beliefs which are extraneous, unnecessary accretions to

Areligion cannot be considered as essential parts of religion. Matters thatare essential to religious faith and/or belief are to be judged on evidencebefore court of law by what the community professing the religionitself has to say as to the essentiality of such belief. One test that hasbeen evolved would be to remove the particular belief stated to be anessential belief from the religion – would the religion remain the same orBwould it be altered? Equally, if different groups of religious communityspeak with different voices on the essentiality aspect presented beforethe Court, the Court is then to decide as to whether such matter is or isnot essential. Religious activities may also be mixed up with secularactivities, in which case the dominant nature of the activity test is to beCapplied. The Court should take common-sense view and be actuatedby considerations of practical necessity.

21.7. The exceptions to this individual right are public order,morality, and health. “Public order” is to be distinguished from “law andorder”. “Public disorder” must affect the public at large as opposed toDcertain individuals. disturbance of public order must cause generaldisturbance of public tranquility. The term “morality” is difficult to define.For the present, suffice it to say that it refers to that which is consideredabhorrent to civilized society, given the mores of the time, by reason ofharm caused by way, inter alia, of exploitation or degradation.[2] “Health”would include noise pollution and the control of disease.E

21.8. Another exception to the fundamental right conferred byArticle 25(1) is the rights that are conferred on others by the otherprovisions of Part III. This would show that if one were to propagateone’s religion in such manner as to convert person of another religiousfaith, such conversion would clash with the other person’s right to freedomFof conscience and would, therefore, be interdicted. Where the practiceof religion is interfered with by the State, Articles 14, 15(1), 19, and 21

2 We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to read theword “morality” as being “constitutional morality” as has been explained in some ofour recent judgments. If so read, it cannot be forgotten that this would bring in, throughthe back door, the other provisions of Part III of the Constitution, which Article 26 isGnot subject to, in contrast with Article 25(1). In any case, the fundamental right underArticle 26 will have to be balanced with the rights of others contained in Part III as amatter of harmonious construction of these rights as was held in Sri VenkataramanaDevaru (supra). But this would only be on case to case basis, without necessarilysubjecting the fundamental right under Article 26 to other fundamental rights containedin Part III.

would spring into action. Where the practice of religion is interferedwith by non-State actors, Article 15(2) and Article 17[3] would spring intoaction.

21.9. Article 25(2) is also an exception to Article 25(1), whichspeaks of the State making laws which may regulate or restrict secularactivity, which includes economic, financial or political activity, whichmay be associated with religious practice – see Article 25(2)(a).

21.10. Another exception is provided under Article 25(2)(b) whichis in two parts. Any law providing for social welfare and reform in areligious community can also affect and/or take away the fundamentalright granted under Article 25(1). further exception is provided onlyinsofar as persons professing the Hindu religion are concerned, which isto throw open all Hindu religious institutions of public character to allclasses and sections of Hindus.

21.11. Contrasted with the fundamental right in Article 25(1) isthe fundamental right granted by Article 26. This fundamental right isnot granted to individuals but to religious denominations or sections thereof.A religious denomination or section thereof is to be determined on thebasis of persons having common faith, common organization, anddesignated by distinct name as denomination or section thereof.Believers of particular religion are to be distinguished fromdenominational worshippers. Thus, Hindu believers of the Shaivite andVaishnavite form of worship are not denominational worshippers butpart of the general Hindu religious form of worship.

21.12. Four separate and distinct rights are given by Article 26 toreligious denominations or sections thereof, namely:

“(a) to establish and maintain institutions for religious andcharitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

3 We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to construeArticle 17 in wider terms than merely including those who were historically untouchablesat the time of framing of the Constitution. We have refrained from doing so because,given our conclusion, based on Article 25(1), this would not directly arise for decisionon the facts of this case.

AAs in Article 25, it is only essential religious matters which areprotected by this Article.

21.13. The fundamental right granted under Article 26 is subjectto the exception of public order, morality, and health. However, since theright granted under Article 26 is to be harmoniously construed with ArticleB25(2)(b), the right to manage its own affairs in matters of religion grantedby Article 26(b), in particular, will be subject to laws made under Article25(2)(b) which throw open religious institutions of public character toall classes and sections of Hindus.

21.14. Thus, it is clear that even though the entry of persons intoa Hindu temple of public character would pertain to management of itsCown affairs in matters of religion, yet such temple entry would be subjectto law throwing open Hindu religious institution of public characterowned and managed by religious denomination or section thereof to allclasses or sections of Hindus. However, religious practices by thereligious denomination or section thereof, which do not have the effectDof either complete ban on temple entry of certain persons, or areotherwise not discriminatory, may pass muster under Article 26(b).Examples of such practices are that only certain qualified persons areallowed to enter the sanctum sanctorum of temple, or timemanagement of temple in which all persons are shut out for certainperiods.E

22. At this stage, it is important to advert to Division Benchjudgment of the Kerala High Court reported as S. Mahendran v. TheSecretary, Travancore Devaswom Board, Thiruvananthapuramand Ors., AIR 1993 Ker 42. petition filed by Shri S. Mahendran wasconverted into PIL by the High Court. The petition complained ofFyoung women offering prayers at the Sabarimala Temple. The DivisionBench set out three questions that arose, as follows:

“12. The questions which require answers in this original petitionare:

(1) Whether woman [sic women] of the age group 10 to 50Gcan be permitted to enter the Sabarimala temple at any periodof the year or during any of the festivals or poojas conductedin the temple.

(2) Whether the denial of entry of that class of woman [sicwomen] amounts to discrimination and [sic is] violative ofArticles 15, 25 and 26 of the Constitution of India, and

(3) Whether directions can be issued by this Court to theDevaswom Board and the Government of Kerala to restrictthe entry of such woman [sic women] to the temple?”

The Division Bench referred to the all-important “Vratham” (41-day penance), which, according to the Division Bench, ladies betweenthe ages of 10 and 50 would not be physically capable of observing. Inparagraph 7, the Division Bench stated that while the old customsprevailed, women did visit the temple, though rarely, as result of which,there was no prohibition. The affidavit filed on behalf of the TravancoreDevaswom Board stated that, even in recent years, many femaleworshippers in the age group of 10 to 50 had gone to the temple for thefirst rice-feeding ceremony of their children. The Board, in fact, used toissue receipts on such occasions on payment of the prescribed charge.However, on the advice of the priest i.e. the Thanthri, changes wereeffected in order to preserve the temple’s sanctity. The Division Benchfound that women, irrespective of their age, were allowed to visit thetemple when it opens for monthly poojas, but were not permitted toenter the temple during Mandalam, Makaravilakku, and Vishu seasons.After examining the evidence of one Thanthri, the Secretary of theAyyappa Seva Sangham, and 75-year old man who had personalknowledge of worshipping at the temple, the Division Bench stated thatthe usage of not permitting women between the age group of 10 to 50 toworship in the temple had been established. This was further sanctifiedby Devaprasnams conducted at Sabarimala by astrologers, who reportedthat the deity does not like young ladies entering the precincts of thetemple. It was then held in paragraph 38 that since women of the agegroup of 10 to 50 years would not be able to observe Vratham for aperiod of 41 days due to physiological reasons, they were not permittedto go on pilgrimage of Sabarimala. It was also held that the deity is inthe form of Naisthik Brahmachari, as result of which, young womenshould not offer worship in the temple, so that even the slightest deviationfrom celibacy and austerity observed by the deity is not caused by thepresence of such women. The conclusion of the Division Bench inparagraph 44 was, therefore, as follows:

“44. Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 and below50 from trekking the holy hills of Sabarimala and offering

worship at Sabarimala Shrine is in accordance with the usageprevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is notviolative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions ofHindu Place of Public Worship (Authorisation of Entry) Act,1965 since there is no restriction between one section andanother section or between one class and another class amongthe Hindus in the matter of entry to temple whereas theprohibition is only in respect of women of particular age groupand not women as class.”

23. In the present writ petition filed before this Court, an affidavitfiled by Thanthri of the Sabarimala temple dated 23.04.2016 makesinteresting reading. According to the affidavit, two Brahmin brothersfrom Andhra Pradesh were tested by Sage Parasuram and were namedD“Tharanam” and “Thazhamon”. The present Thanthri is descendantof the Thazhamon brother, who is authorized to perform rituals in Sasthatemples. The affidavit then refers to the Sabarimala Temple, which isdedicated to Lord Ayyappa, as prominent temple in Kerala which isvisited by over twenty million pilgrims and devotees every year. Thetemple is only open during the first five days of every Malayalam month,Eand during the festivals of Mandalam, Makaravilakku, and Vishu.Significantly, no daily poojas are performed in the said temple. It is statedin the affidavit that Lord Ayyappa had himself explained that thepilgrimage to Sabarimala can be undertaken only by the performance ofVratham, which are religious austerities that train man for evolution toFspiritual consciousness.

Paragraph 10 of the affidavit is important and states as follows:-

“10. I submit that as part of observing “vrutham”, the persongoing on pilgrimage to Sabarimala separates himself from all familyties and becomes student celibate who is under Shastras bannedany contact with females of the fertile age group. Everywherewhen somebody takes on the “vrutham”, either the women leavethe house and take up residence elsewhere or the men separatethemselves from the family so that normal Asauchas in the housedo not affect his “vrutham”. The problem with women is that

they cannot complete the 41 days vrutham because the Asauchamof periods will surely fall within the 41 days. It is not merephysiological phenomenon. It is the custom among all Hindusthat women during periods do not go to Temples or participate inreligious activity. This is as per the statement of the basic Thantrictext of Temple worshipping in Kerala Thanthra Samuchayam,Chapter 10, Verse II. true copy of the relevant page of ThanthraSamuchchaya is attached herewith and marked as Annexure A-1(Pages 30-31).”

The affidavit then goes on to state that the Shastras forbid religiousausterity by menstruating women, which is why women above the ageof 10 and below the age of 50 are not allowed entering into the temple.The affidavit then states, in paragraph 15:

“15. ……… During this period, many women are affected byphysical discomforts like headache, body pain, vomiting sensationetc. In such circumstances, intense and chaste spiritual disciplinesfor forty-one days are not possible. It is for the sake of pilgrimswho practiced celibacy that youthful women are not allowed inthe Sabarimala pilgrimage. ………”

The other reason given in the affidavit for the usage of non-entryof women between these ages is as follows:

“24. That the deity at Sabarimala is in the form of ‘NaishtikBrahmachari’ and that is the reason why young women are notpermitted to offer prayers in the temple as the slightest deviationfrom celibacy and austerity observed by the deity is not causedby the presence of such women. ………”

It will thus be seen that women are barred entry to the temple atSabarimala because of the biological or physiological phenomenon ofmenstruation, which forbids their participation in religious activity. Thesecond reason given is that young women should not, in any manner,deflect the deity, who is in the form of Naisthika Brahmachari, fromcelibacy and austerity.

24. All the older religions speak of the phenomenon of menstruationin women as being impure, which therefore, forbids their participation inreligious activity. Thus, in the Old Testament, in Chapter 15, Verse 19 ofthe book of Leviticus, it is stated:

“19. And if woman have an issue, and her issue in her flesh beblood, she shall be put apart seven days: and whosoever touchethher shall be unclean until the even.”[4]

Similarly, in the Dharmasutra of Vasistha, an interesting legendof how women were made to menstruate is stated as follows:

“A menstruating woman remains impure for three days. She shouldnot apply collyrium on her eyes or oil on her body, or bathe inwater; she should sleep on the floor and not sleep during the day;she should not touch the fire, make rope, brush her teeth, eatmeat, or look at the planets; she should not laugh, do any work, orCrun; and she should drink out of large pot or from her cuppedhands or copper vessel. For it is stated: ‘Indra, after he hadkilled the three-headed son of Tvastr, was seized by sin, and heregarded himself in this manner: “An exceedingly great guiltattaches to me”. And all creatures railed against him: “Brahmin-killer! Brahmin-killer!” He ran to the women and said: “Take overDone-third of this my guilt of killing Brahmin.” They asked: “Whatwill we get?” He replied: “Make wish.” They said: “Let usobtain offspring during our season, and let us enjoy sexualintercourse freely until we give birth.” He replied: “So be it!” Andthey took the guilt upon themselves. That guilt of killing BrahminEmanifests itself every month. Therefore, one should not eat thefood of menstruating woman, for such woman has put on theaspect of the guilt of killing Brahmin’.”[5]

To similar effect are Chapters 9 and 13 of Canto 6 of theBhagavata Purana which read as follows:

“6.9.9. In return for Lord Indra’s benediction that they would beable to enjoy lusty desires continuously, even during pregnancyfor as long as sex is not injurious to the embryo, women acceptedone fourth of the sinful reactions. As result of those reactions,women manifest the signs of menstruation every month.”[6]

“6.13.5. King Indra replied: When I killed Visvarupa, I receivedextensive sinful reactions, but I was favored by the women, land,

4 Leviticus 15:19 (King James Version).

5 DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA264 (Translation by Patrick Olivelle, Oxford University Press, 1999).

6 SRIMAD BHAGAVATAM – SIXTH CANTO (Translation by A.C. Bhaktivedanta SwamiHPrabhupada, The Bhaktivedanta Book Trust, 1976).

trees and water, and therefore I was able to divide the sin amongthem. But now if I kill Vrtrasura, another brahmana, how shall Ifree myself from the sinful reactions?”[7]

Also, in the Qur’an, Chapter 2, Verse 222 states as follows:

“222. They also ask you about (the injunctions concerning)menstruation. Say: “it is state of hurt (and ritual impurity), sokeep away from women during their menstruation and do notapproach them until they are cleansed. When they are cleansed,then (you can) go to them inasmuch as God has commanded you(according to the urge He has placed in your nature, and withinthe terms He has enjoined upon you). Surely God loves thosewho turn to Him in sincere repentance (of past sins and errors),and He loves those who cleanse themselves.”[8]

In the Gospel of Mark, Jesus is said to have cured woman whowas ritualistically unclean, having had an issue of blood for 12 years, asfollows:

“25. And certain woman, which had an issue of blood twelveyears,

26. And had suffered many things of many physicians, and hadspent all that she had, and was nothing bettered, but rather grewworse,

27. When she had heard of Jesus, came in the press behind, andtouched his garment.

28. For she said, If I may touch but his clothes, I shall be whole.

29. And straightway the fountain of her blood was dried up; andshe felt in her body that she was healed of that plague.

30. And Jesus, immediately knowing in himself that virtue hadgone out of him, turned him about in the press, and said, Whotouched my clothes?

31. And his disciples said unto him, Thou seest the multitudethronging thee, and sayest thou, Who touched me?

32. And he looked round about to see her that had done this thing.

8 THE QUR’AN – WITH ANNOTATED INTERPRETATION IN MODERN ENGLISH, 2:222 (Translationby Ali Ünal, Tughra Books USA, 2015).

A33. But the woman fearing and trembling, knowing what wasdone in her, came and fell down before him, and told him all thetruth.

34. And he said unto her, Daughter, thy faith hath made thee whole;go in peace, and be whole of thy plague.”[9]

BOne may immediately notice that the woman touching Jesus waswithout Jesus’s knowledge, for upon coming to know of the woman’stouch, Jesus “knew in himself that virtue had gone out of him”.

Equally, in the Bundahishn, text relating to creation inZoroastrianism, it is stated that primeval prostitute call Jeh, because ofCher misdeeds, brought upon herself, menstruation. Chapter 3, Verses 6to 8 of the Bundahishn are as follows:

“6. And, again, the wicked Jeh shouted thus: ‘Rise up, thou fatherof us! for in that conflict I will shed thus much vexation on therighteous man and the laboring ox that, through my deeds, life willnot be wanted, and I will destroy their living souls (nismo); I willDvex the water, I will vex the plants, I will vex the fire of Ohrmazd,I will make the whole creation of Ohrmazd vexed.’

7. And she so recounted those evil deeds second time, that theevil spirit was delighted and started up from that confusion; andhe kissed Jeh upon the head, and the pollution which they callEmenstruation became apparent in Jeh.

8. He shouted to Jeh thus: ‘What is thy wish? so that I may giveit thee.’ And Jeh shouted to the evil spirit thus: ‘A man is the wish,so give it to me.’”[10]

In the selections of Zadspram, Chapter 34, Verse 31, it is stated:F“31. And [the demon Whore] of evil religion joined herself [to theBlessed Man]; for the defilement of females she joined herself tohim, that she might defile females; and the females, because theywere defiled, might defile the males, and (the males) would turnaside from their proper work.”[11]

9 Mark 5:25-34 (King James Version). 10 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).

11 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).H

However, in the more recent religions such as Sikhism and theBahá’í Faith, more pragmatic view of menstruation is taken, making itclear that no ritualistic impurity is involved. The Sri Guru Granth Sahibdeems menstruation as natural process – free from impurity[12] andessential to procreation.[13] Similarly, in the Bahá’í Faith, the concept ofritual uncleanness has been abolished by Bahá’u’lláh.[14]

25. For the purpose of this case, we have proceeded on the footingthat the reasons given for barring the entry of menstruating women tothe Sabarimala temple are considered by worshippers and Thanthrisalike, to be an essential facet of their belief.

26. The first question that arises is whether the Sabarimala templecan be said to be religious denomination for the purpose of Article 26of the Constitution. We have already seen with reference to the caselaw quoted above, that three things are necessary in order to establishthat particular temple belongs to religious denomination. The templemust consist of persons who have common faith, commonorganization, and are designated by distinct name. In answer to thequestion whether Thanthris and worshippers alike are designated by adistinct name, we were unable to find any answer. When asked whetherall persons who visit the Sabarimala temple have common faith, theanswer given was that all persons, regardless of caste or religion, areworshippers at the said temple. From this, it is also clear that Hindus ofall 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(supra), as Hindus who worship the idol of Lord Ayyappa as part of theHindu religious form of worship but not as denominational worshippers.The same goes for members of other religious communities. We mayremember that in Durgah Committee (supra), this Court had held thatsince persons of all religious faiths visit the Durgah as place ofpilgrimage, it may not be easy to hold that they constitute religiousdenomination or section thereof. However, for the purpose of the

12 2 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 466-467(Translation by Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translatesRaga Asa, Shaloka Mehla 1 at p. 472 of the original text of Sri Guru Granth Sahib]. 13 4 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 975 (Translationby Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Maru,Mehla 1 at p.1022 of the original text of Sri Guru Granth Sahib].

14 KITÁB-I-AQDAS BY BAHÁ’U’LLÁH, note 106 at p. 122 (Translation by Shoghi Effendi,Bahá’í World Centre, 1992).

Aappeal, they proposed to deal with the dispute between the parties onthe basis that the Chishtia sect, whom the respondents represented, werea separate religious denomination, being sub-sect of Soofies. We mayhasten to add that we find no such thing here. We may also add that inS.P. Mittal (supra), the majority judgment did not hold, and therefore,assumed that “Aurobindoism” was religious denomination, given theBfact that the Auroville Foundation Society claimed exemption from incometax on the footing that it was charitable, and not religious organization,and held itself out to be non-religious organization. Also, the powerfulargument addressed, noticed at paragraph 106 of the majority judgment,that persons who joined the Auroville Society did not give up their religion,Calso added great substance to the fact that the Auroville Society couldnot be regarded as religious denomination for the purpose of Article26. Chinnappa Reddy, J. alone, in dissent, held the Auroville Society tobe religious denomination, without adverting to the fact that personswho are part of the Society continued to adhere to their religion.D27. In these circumstances, we are clearly of the view that thereis no distinctive name given to the worshippers of this particular temple;there is no common faith in the sense of belief common to particularreligion or section thereof; or common organization of the worshippersof the Sabarimala temple so as to constitute the said temple into religiousdenomination. Also, there are over thousand other Ayyappa temples inEwhich the deity is worshipped by practicing Hindus of all kinds. It isclear, therefore, that Article 26 does not get attracted to the facts of thiscase.

28. This being the case, even if we assume that there is customor usage for keeping out women of the ages of 10 to 50 from enteringFthe Sabarimala temple, and that this practice is an essential part of theThanthris’ as well as the worshippers’ faith, this practice or usage isclearly hit by Section 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965, which states as follows:

“3. Places of public worship to be open to all section andGclasses of Hindus:— Notwithstanding anything to the contrarycontained in any other law for the time being in force or anycustom or usage or any instrument having effect by virtue of anysuch law or any decree or order of court, every place of publicworship which is open to Hindus generally or to any section orHclass thereof, shall be open to all sections and classes of Hindus;

and no Hindu of whatsoever section or class shall, in any manner,be prevented, obstructed or discouraged from entering such placeof public worship, or from worshipping or offering prayers thereat,or performing any religious service therein, in the like manner andto the like extent as any other Hindu of whatsoever section orclass may enter, worship, pray or perform:

Provided that in the case of public of public worship which isa temple founded for the benefit of any religious denomination orsection thereof, the provisions of this section, shall be subject tothe right of that religious denomination or section as the case maybe, to manage its own affairs in matters of religion.”

Since the proviso to the Section is not attracted on the facts ofthis case, and since the said Act is clearly measure enacted underArticle 25(2)(b), any religious right claimed on the basis of custom andusage as an essential matter of religious practice under Article 25(1),will be subject to the aforesaid law made under Article 25(2)(b). Thesaid custom or usage must therefore, be held to be violative of Section 3and hence, struck down.

29. Even otherwise, the fundamental right of women betweenthe ages of 10 and 50 to enter the Sabarimala temple is undoubtedlyrecognized by Article 25(1). The fundamental right claimed by theThanthris and worshippers of the institution, based on custom and usageunder the selfsame Article 25(1), must necessarily yield to the fundamentalright of such women, as they are equally entitledto the right to practicereligion, which would be meaningless unless they were allowed to enterthe temple at Sabarimala to worship the idol of Lord Ayyappa. Theargument that all women are not prohibited from entering the templecan be of no avail, as women between the age group of 10 to 50 areexcluded completely. Also, the argument that such women can worshipat the other Ayyappa temples is no answer to the denial of theirfundamental right to practice religion as they see it, which includes theirright to worship at any temple of their choice. On this ground also, theright to practice religion, as claimed by the Thanthris and worshippers,must be balanced with and must yield to the fundamental right of womenbetween the ages of 10 and 50, who are completely barred from enteringthe temple at Sabarimala, based on the biological ground of menstruation.

ARule 3(b) of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Rules, 1965 states as follows:

“3. The classes of persons mentioned here under shall not beentitled to offer worship in any place of public worship or bath inor use of water of any sacred tank, well, spring or water courseBappurtenant to place of public worship whether situate within oroutside precincts thereof, or any sacred place including hill orhill lock, or road, street or pathways which is requisite for obtainingaccess to place of public worship:

xxx xxx xxx

(b)Women at such time during which they are not by custom andusage allowed to enter place of public worship.

xxx xxx xxx”

The abovementioned Rule is ultra vires of Section 3 of the KeralaDHindu Places of Public Worship (Authorisation of Entry) Act, 1965, andis hit by Article 25(1) and by Article 15(1) of the Constitution of India asthis Rule discriminates against women on the basis of their sex only.

30.The learned counsel appearing on behalf of the Respondentsstated that the present writ petition, which is in the nature of PIL, is notmaintainable inasmuch as no woman worshipper has come forward withEa plea that she has been discriminated against by not allowing her entryinto the temple as she is between the age of 10 to 50. similar argumentwas raised in Adi Saiva Sivachariyargal Nala Sangam (supra) whichwas repelled in the following terms:

“12. ……… The argument that the present writ petition is foundedon cause relating to appointment in public office and hencenot entertainable as public interest litigation would be too simplistica solution to adopt to answer the issues that have been highlightedwhich concerns the religious faith and practice of large numberof citizens of the country and raises claims of century-old traditionsand usage having the force of law. The above is the second ground,namely, the gravity of the issues that arise, that impel us to makean attempt to answer the issues raised and arising in the writpetitions for determination on the merits thereof.”

The present case raises grave issues relating to women generally,Hwho happen to be between the ages of 10 to 50, and are not allowed

entry into the temple at Sabarimala on the ground of physiological orbiological function which is common to all women between those ages.Since this matter raises far-reaching consequences relating to Articles25 and 26 of the Constitution of India, we have found it necessary todecide this matter on merits. Consequently, this technical plea cannotstand in the way of constitutional court applying constitutional principlesto the case at hand.

31. fervent plea was made by some of the counsels for theRespondents that the Court should not decide this case without anyevidence being led on both sides. Evidence is very much there, in theform of the writ petition and the affidavits that have been filed in the writpetition, both by the Petitioners as well as by the Board, and by theThanthri’s affidavit referred to supra. It must not be forgotten that writpetition filed under either Article 32 or Article 226 is itself not merely apleading, but also evidence in the form of affidavits that are sworn. (SeeBharat Singh and Ors. v. State of Haryana and Ors., 1988 Supp (2)SCR 1050 at 1059).32. The facts, as they emerge from the writ petition and theaforesaid affidavits, are sufficient for us to dispose of this writ petitionon the points raised before us. I, therefore, concur in the judgment of thelearned Chief Justice of India in allowing the writ petition, and declarethat the custom or usage of prohibiting women between the ages of 10to 50 years from entering the Sabarimala temple is violative of Article25(1), and violative of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of theConstitution. Further, it is also declared that Rule 3(b) of the KeralaHindu Places of Public Worship (Authorisation of Entry) Rules, 1965 isunconstitutional being violative of Article 25(1) and Article 15(1) of theConstitution of India.

DR DHANANJAYA Y CHANDRACHUD, J.

INDEX

Conversation within the Constitution: religion, dignity and morality

History: Lord Ayyappa and the Sabarimala Temple

Temple entry and the exclusion of women

The reference

AE Submissions

Essential Religious Practices

The engagement of essential religious practices with constitutionalvalues

Religious Denominations

BH.1 Do the devotees of Lord Ayyappa constitute religiousdenomination?

I Article 17, “Untouchability” and the notions of purity

J The ultra vires doctrineCK The ghost of Narasu

L Deity as bearer of constitutional rights

M road map for the future

N Conclusion

Conversation within the Constitution: religion, dignityDand morality

1. The Preamble to the Constitution portrays the foundationalprinciples: justice, liberty, equality and fraternity. While defining the contentof these principles, the draftspersons laid out broad canvass upon whichthe diversity of our society would be nurtured. Forty two years ago, theEConstitution was amended to accommodate specific reference to itssecular fabric in the Preamble.[1] Arguably, this was only formalrecognition of concept which found expression in diverse facets, asthey were crafted at the birth of the Constitution. Secularism was not anew idea but formal reiteration of what the Constitution always respectedFand accepted: the equality of all faiths. Besides incorporating specificreference to secular republic, the Preamble divulges the position heldby the framers on the interface of religion and the fundamental values ofa constitutional order. The Constitution is not – as it could not have been- oblivious to religion. Religiosity has moved hearts and minds in thehistory of modern India. Hence, in defining the content of liberty, theGPreamble has spoken of the liberty of thought, expression, belief, faithand worship. While recognising and protecting individual liberty, thePreamble underscores the importance of equality, both in terms of statusand opportunity. Above all, it seeks to promote among all citizensfraternity which would assure the dignity of the individual.

1 The Constitution (Forty-second) Amendment, 1976

2. The significance of the Preamble lies both in its setting forththe founding principles of the Constitution as well as in the broad sweepof their content. The Constitution was brought into existence to overseea radical transformation. There would be transformation of politicalpower from colonial regime. There was to be transformation in thestructure of governance. Above all the Constitution envisages atransformation in the position of the individual, as focal point of justsociety. The institutions through which the nation would be governedwould be subsumed in democratic polity where real power both inlegal and political terms would be entrusted to the people. The purposeof adopting democratic Constitution was to allow peaceful transitionfrom colonial power to home rule. In understanding the fundamentalprinciples of the Constitution which find reflection in the Preamble, it iscrucial to notice that the transfer of political power from colonial regimewas but one of the purposes which the framers sought to achieve. Thetransfer of political power furnished the imperative for drafting afundamental text of governance. But the task which the framers assumedwas infinitely more sensitive. They took upon themselves above all, thetask to transform Indian society by remedying centuries of discriminationagainst Dalits, women and the marginalised. They sought to providethem voice by creating culture of rights and political environmentto assert freedom. Above all, placing those who were denuded of theirhuman rights before the advent of the Constitution – whether in theveneer of caste, patriarchy or otherwise – were to be placed in controlof their own destinies by the assurance of the equal protection of law.Fundamental to their vision was the ability of the Constitution to pursuea social transformation. Intrinsic to the social transformation is the roleof each individual citizen in securing justice, liberty, equality and fraternityin all its dimensions.

3. The four founding principles are not disjunctive. Together, thevalues which they incorporate within each principle coalesce in achievingthe fulfilment of human happiness. The universe encompassed by thefour founding principles is larger than the sum total of its parts. TheConstitution cannot be understood without perceiving the complexrelationship between the values which it elevates. So, liberty in mattersof belief, faith and worship, must produce compassionate and humanesociety marked by the equality of status among all its citizens. Thefreedom to believe, to be person of faith and to be human being in

DEF

Aprayer has to be fulfilled in the context of society which does notdiscriminate between its citizens. Their equality in all matters of statusand opportunity gives true meaning to the liberty of belief, faith andworship. Equality between citizens is after all, powerful safeguard topreserve common universe of liberties between citizens, including inmatters of religion. Combined together, individual liberty, equality andBfraternity among citizens are indispensable to social and political orderingin which the dignity of the individual is realised. Our understanding ofthe Constitution can be complete only if we acknowledge the complexrelationship between the pursuit of justice, the protection of liberty,realisation of equality and the assurance of fraternity. Securing the worthCof the individual is crucial to humane society.4. The Constitution as fundamental document of governancehas sought to achieve transformation of society. In giving meaning toits provisions and in finding solutions to the intractable problems of thepresent, it is well to remind ourselves on each occasion that the purposeDof this basic document which governs our society is to bring about aconstitutional transformation. In constitutional transformation, the meansare as significant as are our ends. The means ensure that the process isguided by values. The ends, or the transformation, underlie the vision ofthe Constitution. It is by being rooted in the Constitution’s quest fortransforming Indian society that we can search for answers to the binariesEwhich have polarised our society. The conflict in this case betweenreligious practices and the claim of dignity for women in matters of faithand worship, is essentially about resolving those polarities.

5. Essentially, the significance of this case lies in the issues whichit poses to the adjudicatory role of this Court in defining the boundariesFof religion in dialogue about our public spaces. Does the Constitution,in the protection which it grants to religious faith, allow the exclusion ofwomen of particular age group from temple dedicated to the public?Will the quest for human dignity be incomplete or remain but writ insand if the Constitution accepts the exclusion of women from worship inGa public temple? Will the quest for equality and fraternity be denuded ofits content where women continue to be treated as children of lessergod in exercising their liberties in matters of belief, faith and worship?Will the pursuit of individual dignity be capable of being achieved if wedeny to women equal rights in matters of faith and worship, on the basisof physiological aspect of their existence? These questions are centralH

to understanding the purpose of the Constitution, as they are to definingthe role which is ascribed to the Constitution in controlling the closedboundaries of organised religion.

6. The chapter on Fundamental Rights encompasses the rights to(i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii)Freedom of religion (Articles 25 to 28); (iv) Cultural and educationalrights (Articles 29 and 30); and (v) Constitutional remedies (Article 32).

Article 25 provides thus:

“25. (1) Subject to public order, morality and health and to theother provisions of this Part, all persons are equally entitled tofreedom of conscience and the right freely to profess, practiseand propagate religion.

(2) Nothing in this article shall affect the operation of any existinglaw or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political orother secular activity which may be associated with religiouspractice;

(b) providing for social welfare and reform or the throwing openof Hindu religious institutions of public character to all classesand sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall bedeemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference toHindus shall be construed as including reference to personsprofessing the Sikh, Jaina or Buddhist religion, and the referenceto Hindu religious institutions shall be construed accordingly.”

In clause (1), Article 25 protects the equal entitlement of allpersons to freedom of conscience and to freely profess, protect andpropagate religion. By conferring this right on all persons, the Constitutionemphasises the universal nature of the right. By all persons, theConstitution means exactly what it says : every individual in societywithout distinction of any kind whatsoever is entitled to the right. Byspeaking of an equal entitlement, the Constitution places every individualon an even platform. Having guaranteed equality before the law andthe equal protection of laws in Article 14, the draftspersons specifically

Acontinued the theme of an equal entitlement as an intrinsic element ofthe freedom of conscience and of the right to profess, practice andpropagate religion. There are three defining features of clause (1) ofArticle 25: first, the entitlement of all persons without exception, second,the recognition of an equal entitlement; and third, the recognition bothof the freedom of conscience and the right freely to profess, practiceBand propagate religion. The right under Article 25(1) is evidently anindividual right for, it is in the individual that conscience inheres.Moreover, it is the individual who professes, practices and propagatesreligion. Freedom of religion in Article 25(1) is right which theConstitution recognises as dwelling in each individual or natural person.

7. Yet, the right to the freedom of religion is not absolute. For theConstitution has expressly made it subject to public order, morality andhealth on one hand and to the other provisions of Part III, on the other.The subjection of the individual right to the freedom of religion to theother provisions of the Part is nuanced departure from the positionDoccupied by the other rights to freedom recognised in Articles 14, 15, 19and 21. While guaranteeing equality and the equal protection of laws inArticle 14 and its emanation, in Article 15, which prohibits discriminationon grounds of religion, race, caste, sex or place of birth, the Constitutiondoes not condition these basic norms of equality to the other provisionsof Part III. Similar is the case with the freedoms guaranteed by ArticleE19(1) or the right to life under Article 21. The subjection of the individualright to the freedom of religion under Article 25(1) to the other provisionsof Part III was not matter without substantive content. Evidently, inthe constitutional order of priorities, the individual right to the freedom ofreligion was not intended to prevail over but was subject to the overridingFconstitutional postulates of equality, liberty and personal freedomsrecognised in the other provisions of Part III.

8. Clause (2) of Article 25 protects laws which existed at theadoption of the Constitution and the power of the state to enact laws infuture, dealing with two categories. The first of those categories consistsGof laws regulating or restricting economic, financial, political or othersecular activities which may be associated with religious practices. Thus,in sub-clause (a) of Article 25 (2), the Constitution has segregated mattersof religious practice from secular activities, including those of aneconomic, financial or political nature. The expression “other secular

activity” which follows upon the expression “economic, financial, political”indicates that matters of secular nature may be regulated or restrictedby law. The fact that these secular activities are associated with or, inother words, carried out in conjunction with religious practice, would notput them beyond the pale of legislative regulation. The second categoryconsists of laws providing for (i) social welfare and reform; or (ii) throwingopen of Hindu religious institutions of public character to all classesand sections of Hindus. The expression “social welfare and reform” isnot confined to matters only of the Hindu religion. However, in mattersof temple entry, the Constitution recognised the disabilities which Hindureligion had imposed over the centuries which restricted the rights ofaccess to dalits and to various groups within Hindu society. The effectof clause (2) of Article 25 is to protect the ability of the state to enactlaws, and to save existing laws on matters governed by sub-clauses (a)and (b). Clause (2) of Article 25 is clarificatory of the regulatory powerof the state over matters of public order, morality and health which alreadystand recognised in clause (1). Clause 1 makes the right conferred subjectto public order, morality and health. Clause 2 does not circumscribe theambit of the ‘subject to public order, morality or health’ stipulation inclause 1. What clause 2 indicates is that the authority of the state toenact laws on the categories is not trammelled by Article 25.

9. Article 26, as its marginal note indicates, deals with the “freedomto manage religious affairs”:

“26. Subject to public order, morality and health, every religiousdenomination or any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitablepurposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

Article 26 confers rights on religious denominations and theirsections. The Article covers four distinct facets: (i) establishment andmaintenance of institutions for purposes of religious and charitablenature; (ii) managing the affairs of the denomination in matters of religion;(iii) ownership and acquisition of immovable property; and (iv)administration of the property in accordance with law. Article 26, as in

Athe case of Article 25(1), is prefaced by “subject to public order, moralityand health” stipulation. Article 26(1) does not embody the additionalstipulation found in Article 25(1) viz; “and to the other provisions of thisPart.” The significance of this will be explored shortly.

10. Public order, morality and health are grounds which theBConstitution contemplates as the basis of restricting both the individualright to freedom of religion in Article 25(1) and the right of religiousdenominations under Article 26. The vexed issue is about the content ofmorality in Articles 25 and 26. What meaning should be ascribed to thecontent of the expression ‘morality’ is matter of constitutional moment.In the case of the individual right as well as the right of religiousCdenominations, morality has an overarching position similar to public orderand health because the rights recognised by both the Articles are subjectto those stipulations. Article 25(2) contemplates that the Article will neitheraffect the operation of existing law or prevent the state from enacting alaw for the purposes stipulated in sub-clauses (a) and (b).D11. In defining the content of morality, did the draftspersons engagewith prevailing morality in society? Or does the reference to moralityrefer to something more fundamental? Morality for the purposes ofArticles 25 and 26 cannot have an ephemeral existence. Popular notionsabout what is moral and what is not are transient and fleeting. PopularEnotions about what is or is not moral may in fact be deeply offensive toindividual dignity and human rights. Individual dignity cannot be allowedto be subordinate to the morality of the mob. Nor can the intolerance ofsociety operate as marauding morality to control individual self-expression in its manifest form. The Constitution would not render theexistence of rights so precarious by subjecting them to passing fanciesFor to the aberrations of morality of popular opinion. The draftspersonsof the Constitution would not have meant that the content of moralityshould vary in accordance with the popular fashions of the day. Theexpression has been adopted in constitutional text and it would beinappropriate to give it content which is momentary or impermanent.GThen again, the expression ‘morality’ cannot be equated with prevailingsocial conceptions or those which may be subsumed within mainstreamthinking in society at given time. The Constitution has been adoptedfor society of plural cultures and if its provisions are any indication, it isevident that the text does not pursue either religious theocracy or adominant ideology. In adopting democratic Constitution, the framersH

would have been conscious of the fact that governance by majority isall about the accumulation of political power. Constitutional democraciesdo not necessarily result in constitutional liberalism. While our Constitutionhas adopted democratic form of governance it has at the same timeadopted values based on constitutional liberalism. Central to those valuesis the position of the individual. The fundamental freedoms which PartIII confers are central to the constitutional purpose of overseeing atransformation of society based on dignity, liberty and equality. Hence,morality for the purposes of Articles 25 and 26 must mean that which isgoverned by fundamental constitutional principles.12. The content of morality is founded on the four precepts whichemerge from the Preamble. The first among them is the need to ensurejustice in its social, economic and political dimensions. The second isthe postulate of individual liberty in matters of thought, expression, belief,faith and worship. The third is equality of status and opportunity amongstall citizens. The fourth is the sense of fraternity amongst all citizenswhich assures the dignity of human life. Added to these four precepts isthe fundamental postulate of secularism which treats all religions on aneven platform and allows to each individual the fullest liberty to believeor not to believe. Conscience, it must be remembered, is emphasised bythe same provision. The Constitution is meant as much for the agnosticas it is for the worshipper. It values and protects the conscience of theatheist. The founding faith upon which the Constitution is based is thebelief that it is in the dignity of each individual that the pursuit of happinessis founded. Individual dignity can be achieved only in regime whichrecognises liberty as inhering in each individual as natural right. Humandignity postulates an equality between persons. Equality necessarily isan equality between sexes and genders. Equality postulates right to befree from discrimination and to have the protection of the law in thesame manner as is available to every citizen. Equality above all is aprotective shield against the arbitrariness of any form of authority. Thesefounding principles must govern our constitutional notions of morality.Constitutional morality must have value of permanence which is notsubject to the fleeting fancies of every time and age. If the vision whichthe founders of the Constitution adopted has to survive, constitutionalmorality must have content which is firmly rooted in the fundamentalpostulates of human liberty, equality, fraternity and dignity. These arethe means to secure justice in all its dimensions to the individual citizen.

AOnce these postulates are accepted, the necessary consequence is thatthe freedom of religion and, likewise, the freedom to manage the affairsof religious denomination is subject to and must yield to thesefundamental notions of constitutional morality. In the public lawconversations between religion and morality, it is the overarching senseof constitutional morality which has to prevail. While the ConstitutionBrecognises religious beliefs and faiths, its purpose is to ensure wideracceptance of human dignity and liberty as the ultimate founding faith ofthe fundamental text of our governance. Where conflict arises, thequest for human dignity, liberty and equality must prevail. These, aboveeverything else, are matters on which the Constitution has willed that itsCvalues must reign supreme.13. The expression “subject to” is in the nature of condition orproviso. Making provision subject to another may indicate that theformer is controlled by or is subordinate to the other. In making clause1 of Article 25 subject to the other provisions of Part III withoutDintroducing similar limitation in Article 26, the Constitution should notreadily be assumed to have intended the same result. Evidently theindividual right under Article 25(1) is not only subject to public order,morality and health, but it is also subordinate to the other freedoms thatare guaranteed by Part III. In omitting the additional stipulation in Article26, the Constitution has consciously not used words that would indicateEan intent specifically to make Article 26 subordinate to the other freedoms.This textual interpretation of Article 26, in juxtaposition with Article 25 isgood as far as it goes. But does that by itself lend credence to thetheory that the right of religious denomination to manage its affairs is astandalone right uncontrolled or unaffected by the other fundamentalFfreedoms? The answer to this must lie in the negative. It is one thing tosay that Article 26 is not subordinate to (not ‘subject to’) other freedomsin Part III. But it is quite another thing to assume that Article 26 has noconnect with other freedoms or that the right of religious denominationsis unconcerned with them. To say as matter of interpretation that

provision in law is not subordinate to another is one thing. But the absenceGof words of subjection does not necessarily attribute to the provision astatus independent of cluster of other entitlements, particularly thosebased on individual freedoms. Even where one provision is not subjectto another there would still be ground to read both together so that theyexist in harmony. Constitutional interpretation is all about bringing aH

sense of equilibrium, balance, so that read individually and together theprovisions of the Constitution exist in contemporaneous accord. Unlesssuch an effort were to be made, the synchrony between different partsof the Constitution would not be preserved. In interpreting segment ofthe Constitution devoted exclusively to fundamental rights one musteschew an approach which would result in asynchrony. Co-existenceof freedoms is crucial, in the ultimate analysis, to constitutional orderwhich guarantees them and seeks to elevate them to platform on whichevery individual without distinction can reap their fruit without bar toaccess. Thus, the absence of words in Article 26 which would make itsprovisions subordinate to the other fundamental freedoms neither givesthe right conferred upon religious denominations priority which overridesother freedoms nor does it allow the freedom of religious denominationto exist in an isolated silo. In real life it is difficult to replicate the conditionsof controlled experiment in laboratory. Real life is all aboutcomplexities and uncertainties arising out of the assertions of entitlementsand conflicts of interests among groups of different hues in society. Thefreedoms which find an elaboration in Part III are exercised within asociety which is networked. The freedoms themselves have linkageswhich cannot be ignored. There is, therefore, convincing reason not toallow the provisions of Article 26 to tread in isolation. Article 26 is oneamong large cluster of freedoms which the Constitution has envisagedas intrinsic to human liberty and dignity. In locating the freedom underArticle 26 within group – the religious denomination – the text in factallows us to regard the fundamental right recognised in it as one facet ofthe overall components of liberty in free society.14. This approach to constitutional interpretation which I proposeand follow is acceptable for another reason, as matter of constitutionaldoctrine. Since the decision of eleven judges in Rustom CavasjeeCooper v Union of India[2], it is now settled doctrine that the fundamentalrights contained in Part III are not, as it has been said, water-tightcompartments. Evolving away from the earlier jurisprudence in KGopalan v State of Madras[3] our interpretation of the freedoms is nowgoverned by sense of realism which notices their open-textured contentand indeed, their fluid nature. One freedom shades into and mergeswith another. Fairness as guarantee against arbitrary state actioninfluences the content of the procedure for the deprivation of life under

2 (1970) 1 SCC 248

3 1950 SCR 88

AArticle 21. Though Article 21 speaks only of the deprivation of life orpersonal liberty by procedure established by law, decisions fromManeka Gandhi v Union of India[4], (“Maneka”) have expoundedthat the law must have content which is reasonable. The procedurefor deprivation must be free of the taint of that which is arbitrary. Thisreading of the fundamental rights as constellations emanating from aBcosmos of freedom and as having paths which intersect and mergeenhances the value of freedom itself. Though the principal provisionrelating to equality before the law is embodied in Article 14, the fourarticles which follow it are manifestation of its basic doctrines. Article15 in outlawing discrimination on grounds of religion, race, caste, sexCand place of birth is but manifestation of equality. Equality in mattersof public employment under Article 16 is facet of the basic postulate ofequality. Article 17 gives expression to equality in abolishinguntouchability: practice fundamentally at odds to the notion of an equalsociety. Titles which place some citizens above others are abolished byArticle 18 in manifesting yet another aspect of equality. As we haveDseen, fundamental notion of equality is embodied in Article 25(1) itselfwhen it speaks of an equal entitlement to freely practice, profess andpropagate religion. This sense of equality permeates the other guaranteesof fundamental freedoms as well. Article 19 recognises six freedoms asan entitlement “of all citizens”. Recognizing that right inheres in allEcitizens is constitutional affirmation that every citizen, without exceptionor discrimination of any kind is entitled to those freedoms. Then again,the restrictions on the freedoms contemplated by Articles 19(2) to (6)have to be reasonable. Reasonableness is facet of equality. The equalapplication of law to persons similarly circumstanced is fundamentalpostulate of the protections which are conferred by Articles 20, 21 andF22. Thus the principle which has become an entrenched part of ourconstitutional doctrine after the decision in Bank Nationalization isbased on sure foundation. The freedoms which we possess and thosewhich we exercise are not disjunctive parts, separate from each other.Individuals in society exercise not one but many of the freedoms. AnGindividual exercises multitude of freedoms as composite part of thehuman personality. single act embodies within it the exercise of manychoices reflecting the assertion of manifold freedoms. From thisperspective, it is but short step to hold that all freedoms exist in harmony.Our freedoms are enveloped in the womb created by the Constitution

4 (1978) 1 SCC 248

for the survival of liberty. Hence, the absence of clause of subjectionin Article 26 does not lead to the conclusion that the freedom of religiousdenomination exists as discrete element, divorced from the others.This approach is quite independent of the consideration that even Article26 like Article 25(1) is subject to public order, morality and health. Oncewe hold, following the line which is now part of conventional doctrine,that all freedoms have linkages and exist in state of mutual co-existence,the freedom of religious denominations under Article 26 must be read ina manner which preserves equally, other individual freedoms which maybe impacted by an unrestrained exercise. Hence, the dignity of womenwhich is an emanation of Article 15 and reflection of Article 21 cannotbe disassociated from the exercise of religious freedom under Article 26.

15. Once Articles 25 and 26 are read in the manner in which theyhave been interpreted, the distinction between the articles in terms ofthe presence or absence of clause of subjection should make littlepractical significance to the relationship between the freedom of religionwith the other freedoms recognized in the fundamental rights. If theConstitution has to have meaning, is it permissible for religion – eitheras matter of individual belief or as an organized structure of religiousprecepts – to assert an entitlement to do what is derogatory to women?Dignity of the individual is the unwavering premise of the fundamentalrights. Autonomy nourishes dignity by allowing each individual to makecritical choices for the exercise of liberty. liberal Constitution such asours recognizes wide range of rights to inhere in each individual. Withoutfreedom, the individual would be bereft of her individuality. Anythingthat is destructive of individual dignity is anachronistic to our constitutionalethos. The equality between sexes and equal protection of gender is anemanation of Article 15. Whether or not Article 15 is attracted to aparticular source of the invasion of rights is not of overarching importancefor the simple reason that the fundamental principles which emerge fromthe Preamble, as we have noticed earlier, infuse constitutional moralityinto its content. In our public discourse of individual rights, neither religiousfreedom nor organized religion can be heard to assert an immunity toadhere to fundamental constitutional precepts grounded in dignity andhuman liberty. The postulate of equality is that human beings are createdequal. The postulate is not that all men are created equal but that allindividuals are created equal. To exclude women from worship by allowingthe right to worship to men is to place women in position of subordination.

AThe Constitution, should not become an instrument for the perpetuationof patriarchy. The freedom to believe, the freedom to be person offaith and the freedom of worship, are attributes of human liberty. Facetsof that liberty find protection in Article 25. Religion then cannot becomea cover to exclude and to deny the basic right to find fulfilment in worshipto women. Nor can physiological feature associated with womanBprovide constitutional rationale to deny to her the right to worship whichis available to others. Birth marks and physiology are irrelevant toconstitutional entitlements which are provided to every individual. Toexclude from worship, is to deny one of the most basic postulates ofhuman dignity to women. Neither can the Constitution countenance suchCan exclusion nor can free society accept it under the veneer of religiousbeliefs.16. Much of our jurisprudence on religion has evolved, as weshall see, around what constitutes an essential religious practice. At acertain level an adjudication of what is religious practice seems toDhave emerged from the distinction made in clause 2(a) of Article 25between religious practice and economic, financial, political or othersecular activities which are associated with religious practices. Wherethe state has enacted law by which it claims to have regulated secularactivity associated with religious practice, but not the religious practice,it becomes necessary to decide the issue, where the validity of the law isEchallenged. Similarly, Article 26(b) speaks of “matters of religion” whenit recognises the right of religious denomination to manage them. Inthe context of Article 26(b), this Court has embarked upon course todecide in individual cases whether, what was said to be regulated by thestate was matter of religion which falls within the freedom guaranteedFto the denomination. These compulsions nonetheless have led the courtto don theological mantle. The enquiry has moved from deciding whatis essentially religious to what is an essential religious practice. Donningsuch role is not an easy task when the Court is called upon to decidewhether practice does nor does not form an essential part of religiousbelief. Scriptures and customs merge with bewildering complexity intoGsuperstition and dogma. Separating the grain from the chaff involves acomplex adjudicatory function. Decisions of the Court have attemptedto bring in measure of objectivity by holding that the Court has beencalled upon to decide on the basis of the tenets of the religion itself. Buteven that is not consistent norm.H

17. Our conversations with the Constitution must be restructuredto evolve both with the broadening of the content of liberty and dignityand the role of the Court as an enforcer of constitutional doctrine. Thebasic principle which must guide any analysis in this area is the dominanceof the values of liberty, equality and fraternity as instruments in achievingindividual dignity. Once individual dignity assumes the character of ashining star in the constellation of fundamental rights, the place of religionin public places must be conditioned by India’s unwavering commitmentto constitutional order based on human dignity. Practices which aredestructive of liberty and those which make some citizens less equalthan others can simply not be countenanced. To treat women as childrenof lesser god is to blink at the Constitution itself. Among the fundamentalduties of every citizen recognized by the Constitution is “to renouncepractices derogatory to the dignity of women”.[5] In speaking to the equalitybetween individuals in matters of livelihood, health and remuneration forwork, the Directive Principles speak to the conscience of the Constitution.To allow practices derogatory to the dignity of woman in matters offaith and worship would permit conscious breach of the fundamentalduties of every citizen. We cannot adopt an interpretation of theConstitution which has such an effect. Our inability to state this as amatter of constitutional doctrine is liable to lead us to positions of pretenceor, worse still, hypocrisy. Both are willing allies to push critical issuesunder the carpet. If we are truly to emerge out of the grim shadows ofa society which has subjugated groups of our citizens under the weightof discrimination for centuries, it is time that the Constitution is allowedto speak as it can only do: in forthright manner as compact ofgovernance, for today and the future.

18. Now it is in this background that it would be necessary toexplore the principles which emerge from the precedents of this Courtwhich explain the content of Article 25(1) and Article 26.

History: Lord Ayyappa and the Sabarimala TempleOrigins

19. The Sabarimala Temple, devoted to Lord Ayyappa is templeof great antiquity. The temple is situated over one of the eighteenmountains spread over the Western Ghats known as Sannidhanam.Situated in the district of Pathananthitta in Kerala, the temple nestles ata height of 1260 metres (4135 feet) above sea level. The faithful believe 5 Article 51A(e), The Constitution of India

CDE

Athat Lord Ayyappa’s powers derive from his ascetism, in particular fromhis being celibate. Celibacy is practice adopted by pilgrims before andduring the pilgrimage. Those who believe in Lord Ayyappa and offerprayer are expected to follow strict ‘Vratham’ or vow over period offorty one days which lays down set of practices.

20. The legend of Lord Ayyappa and the birth of the Sabarimalatemple have been explained[6] in the erudite submissions in this case.Although there are numerous Ayyappa Temples in India, the SabarimalaTemple depicts Lord Ayyappa as “Naishtika Brahmacharya”: hispowers derive specifically from abstention from sexual activities.

CThe birth of Lord Ayyappa is described as arising from the unionof Lord Shiva and Lord Vishnu (the form of Mohini). The divine beingsleft the boy in forest near River Pampa. The Pandalam King,Rajasekara, while on hunting trip in the forest along the banks of theRiver Pampa, heard the cries of child. The King reached the banks ofthe river and found the child Ayyappa. The King took the child in andDtook him to the Palace, where the King briefed the Queen about theincident. The couple as well as the people of the Kingdom were happyby the arrival of the new child. Ayyappa, also called ‘Manikanta’ grewup in the palace and was trained in the martial arts and Vedas. The Gururesponsible for Manikanta’s education concluded that the this was notEan ordinary child, but divine power.

Meanwhile, the Queen gave birth to male child named RajaRajan. Impressed with the talents of Manikanta, King Rajasekara decidedto crown him, treating him as the elder child. He ordered the Minister tomake arrangements for the coronation. However, the Minister, desiringFthe throne for himself, attempted to execute plans to prevent thecoronation, all of which failed. Having failed, the Minister approachedthe Queen to persuade her to ensure that her own biological child wascrowned King. The Minister suggested that the Queen pretend that shewas suffering from severe headache, whereupon he would make thephysician prescribe that the milk of tigress be brought to cure her. ToGachieve this, he suggested that Manikanta should be sent to the forest.

21. Manikanta soon left for the forest after promising the Kingthat he would return with the milk of tigress. Manikanta set out on his 6 Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned SeniorCounsel Dr. Abhishek Manu Singhvi for the Respondents; Non-Case Law ConvenienceHCompilation filed by Advocate for Respondent No. 2; Learned Senior Counsel IndiraJaisingh and Learned Counsel R.P. Gupta for the Petitioners

journey after having refused an escort of men that the King had desiredto accompanying him. The King had sent with Manikanta food andcoconuts with three eyes, in the remembrance of Lord Shiva. In theforest, Lord Shiva appeared before Manikanta and told him that thoughhe had done his duty towards the devas, he was left with the task toensure the King’s comfort. Lord Shiva told Manikanta that he could goback to the Palace with Lord Indra in the form of tiger.

When Manikanta was seated on the tiger, and all the female devatasin the disguise of tigresses started their journey to the palace, the schemerswere frightened into confessing their plot. They were convinced of hisdivine origins and prayed for their own salvation and for the safety ofthe Kingdom. Manikanta disappeared. The King refused to eat anythingtill his return. Manikanta appeared in the form of vision before theKing. Filled with emotions of happiness, grief, fear, wonder and ‘Bhakti,the King stood praying for mercy and the blessings of Manikanta. Herepented in front of Manikanta for not having realized his divine powerand for treating him merely as his child. The Lord lovingly embraced theKing who prayed to bless him by freeing him from ego and the worldycycle of rebirth. Manikanta granted him Moksha (salvation). He told theKing that he was destined to return. The King implored Manikanta toallow him to build temple and dedicate it to him. The Lord assented.Manikanta then enlightened the King on the path of Moksha.

22. The Lord shot an arrow that fell at the pinnacle of Sabarimalaand told the King that he could construct temple at Sabarimala, northof the Holy river Pampa and install his deity there. Lord Ayyappa alsoexplained how the Sabarimala pilgrimage shall be undertaken, emphasizingthe importance of the penance or ‘Vratham’ and what the devotees canattain by his ‘darshan’. But before the departure of the Lord, the Kingsecured promise from the Lord that on thai pongal on January 14,every year, his personal jewelry will be adorned on his deity at Sabarimala.

The Pilgrimage

23. Sabarimala follows the system of being open for:

1. The month of Mandalam viz. 17 November to 26 December ofthe normal calendar years of each year;

2. For the first five days of each Malayalam month whichcommunes approximately in the middle of each calendar month;and

[2018] 9 S.C.R.

A3. For the period of Makar Sankranti, viz. approximately fromJanuary to mid January each year.

The followers of Lord Ayyappa undertake holy Pilgrimage whichculminates in prayer at the holy shrine. The pilgrimage takes place infour stages. First, there is formal initiation ceremony that begins aBforty-one day Vratham. This is followed by another formal ceremony atthe end of the Vratham period, called the Irumuti Kattal (tying of bundle),after which the pilgrims set off for their yatra to the Ayyappa Temple atSabarimala. This stage includes the physical travel to the pilgrimage site,bathing in the holy river Pampa at the foot of Mount Sabari and theclimb up Mount Sabari. This involves trek from the Pampa river, climbingC3000 feet to the Sannidhanam, which is trek of around 13 Kms, orthrough forests which is trek of 41 Kms. It ends with the pilgrim’sascending the sacred” eighteen steps to the shrine for the first darshanor glimpse of the deity. The fourth stage is the return journey and thefinal incorporation back into life.

Modern communications have made the task less arduous. In1960, an access road was constructed for vehicles, so that pilgrim candrive right up to the foot of Sabarimala. From here, the holy summit isjust 8 kms away. The Kerala State Transport Corporation runs specialbuses during the season of pilgrimage. The buses connect Pampa directlyEwith almost all the main cities in Kerala, Tamil Nadu and Karnataka.

24. The pilgrimage has three distinctive features: (i) It is almostexclusively male-centric pilgrimage that bars women between the agesof ten and fifty from participating in the rituals; (ii) Though the worshippersof Lord Ayyappa fall broadly within the Hindu tradition, yet males of allFages may participate on an equal footing, regardless of caste, creed orreligion. Muslims and Christians are also known to undertake thispilgrimage, enjoying the same equality; and (iii) The actual journey to thepilgrimage site is preceded by preparatory period of forty-one days.During this period, pilgrims are obliged to wear black clothes and the‘mala’ with which they are initiated, and they must observe celibacy,Gabstinence from meat and intoxicants.

25. Traditionally though the Vratham period extended over forty-one days, nowadays shorter periods are permitted. While it is expectedthat for first time initiaties observe the forty-one day Vratham, othersshorten the term to two weeks or even six days. key essential of the

[DR. DHANANJAYA Y CHANDRACHUD, J.]

Vratham is sathvic lifestyle and brahmacharya. This is believed tobe step towards pure body and mind an effort to be aloof from thematerialistic world, by taking step towards the path of devotion.

The Vratham or penance entails:

(i) Abstaining from physical relations with spouse;

(ii) Abstention from intoxicating drinks, smoking and tamasic food;

(iii) Living in isolation from the rest of the family;

(iv) Refraining from interacting with women in daily life includingthose in the family;

(v) Cooking one’s own food;

(vi) Maintaining hygiene including bathing twice day before

prayers;

(vii) Wearing black mundu and upper garments;

(viii) Partaking of one meal day; and

(ix) Walking barefoot.

The penance is to be carried out in the manner prescribed.Maintaining oneself as ‘pure and unpolluted’, it is believed, would lead tothe path towards attaining Godhead or to be one with Lord Ayyappa.

Temple entry and the exclusion of women

Before proceeding to analyse the questions in this reference, itwould be necessary to outline the history of the case bearing upon thecontroversy.

26. Two notifications were issued by the Travancore DevaswomBoard which read as follows:

Notification dated 21 October 1955

“In accordance with the fundamental principle underlyingthe prathishta (installation) of the venerable, holy and ancienttemple of Sabarimala, Ayyappans who had not observedthe usual vows as well as women who had attained maturitywere not in the habit of entering the above mentioned templefor Darshan (worship) by stepping the Pathinettampadi. Butof late, there seems to have been deviation from this custom

and practice. In order to maintain the sanctity and dignityof this great temple and keep up the past traditions, it ishereby notified that Ayyappans who do not observe the usualVrithams are prohibited from entering the temple by steppingthe Pathinettampadi and women between the ages of tenand fifty-five are forbidden from entering the temple.”[7]

Notification dated 27 November 1956

“In accordance with the fundamental principle underlyingthe prathishta (installation) of the venerable, holy and ancienttemple of Sabarimala, Ayyappans who had not observedCthe usual vows as well as women who had attained maturitywere not in the habit of entering the above-mentioned templefor Darshan (worship) by stepping the Pathinettampadi. Butof late, there seems to have been deviation from this customand practice. In order to maintain the sanctity and dignityof this great temple and keep up the past traditions, it isDhereby notified that Ayyappans who do not observe the usualVritham (vows) are prohibited from entering the temple bystepping the pathinettampadi and women between the agesof ten and fifty five are forbidden from entering the temple.”

In 1965, the Kerala Hindu Places of Public Worship (AuthorizationEof Entry) Act 1965[8] was enacted. The preamble to the Act lays downthat the Act has been enacted to make better provisions for entry of allclasses and sections of Hindu into places of public worship. Section 2contains definitions:

“Section 2. Definitions:- In this Act, unless the context otherwiseFrequires, -

(a) “Hindu” includes person professing the Buddhist, Sikh orJaina religion;

(b) “place of public worship” means place, by whatever nameknown or to whomsoever belonging, which is dedicated to, or forGthe benefit of, or is used generally by, Hindus or any section or

7 The Kerala High Court in S Mahendran v The Secretary, Travancore DevaswomBoard, Thiruvananthapuram, recorded that women between ten and fifty were excludedfrom the Sabarimala temple. The Petitioners and Respondents in the present caseaccept that women between the age of ten and fifty are excluded.H 8 The “1965 Act”

class thereof, for the performance of any religious service or foroffering prayers therein, and includes all lands and subsidiaryshrines, mutts, devasthanams, namaskara mandapams andnalambalams appurtenant or attached to any such place, and alsoany sacred tanks, wells, springs and water courses the waters ofwhich are worshipped, or are used for bathing or for worship, butdoes not include “sreekoil”;

(c) “section or class” includes any division, sub-division, caste,sub-caste, sect or denomination whatsoever.”

Section 3 provides for places of public worship to be open to allsections and classes of Hindus:

“Section 3. Places of public worship to be open to all section andclasses of Hindus:-

Notwithstanding anything to the contrary contained in any otherlaw for the time being in force or any custom or usage or anyinstrument having effect by virtue of any such law or any decreeor order of court, every place of public worship which is open toHindus generally or to any section or class thereof, shall be opento all sections and classes of Hindus; and no Hindu of whatsoeversection or class shall, in any manner, be prevented, obstructed ordiscouraged from entering such place of public worship, or fromworshipping or offering prayers thereat, or performing any religiousservice therein, in the like manner and to the like extent as anyother Hindu of whatsoever section or class may enter, worship,pray or perform:

Provided that in the case of place of public worship which is atemple founded for the benefit of any religious denomination orsection thereof, the provisions of this section, shall be subject tothe right of that religious denomination or section as the case maybe, to manage its own affairs in matters of religion.”

Section 4 deals with the power to make regulations:

“Section 4. Power to make regulations for the maintenance oforder and decorum and the due performance of rites andceremonies in places of public worship:-

(1) The trustee or any other person in charge of any place publicworship shall have power, subject to the control of the competent

Aauthority and any rules which may be made by that authority, tomake regulations for the maintenance of order and the decorumin the place of public worship and the due observance of thereligious rites and ceremonies performed therein:

Provided that no regulation made under this sub-section shallBdiscriminate in any manner whatsoever, against any Hindu on theground that he belongs to particular section or class.

(2) The competent authority referred to in sub-section (1) shallbe,-

(i) in relation to place of public worship situated in any area toCwhich Part I of the Travancore-Cochin Hindu Religious InstitutionsAct, 1950 (Travancore-Cochin Act XV of 1930), extends, theTravancore Devaswom Board;

(ii) in relation to place of public worship situated in any area towhich Part II of the said Act extends, the Cochin DevaswomDBoard; and

(iii) in relation to place of public worship situated in any otherarea in the State of Kerala, the Government.”

The State of Kerala in exercise of the power under Section 4framed the Kerala Hindu Places of Public Worship (Authorization ofEEntry) Rules 1965.[9] Rule 3 of the 1965 Rules is extracted below:

“Rule 3. The classes of persons mentioned here under shall notbe entitled to offer worship in any place of public worship or bathein or use the water of any sacred tank, well, spring or water courseappurtenant to place of public worship whether situate within orFoutside precincts thereof, or any sacred place including hill orhill lock, or road, street or pathways which is requisite for obtainingaccess to the place of public worship-

(a) Persons who are not Hindus.

G(b) Women at such time during which they are not by customand usage allowed to enter place of public worship.

(c) Persons under pollution arising out of birth or death in theirfamilies.

9 The “1965 Rules”H

(d) Drunken or disorderly persons.

(e) Persons suffering from any loathsome or contagious disease.

(f) Persons of unsound mind except when taken for worship underproper control and with the permission of the executive authorityof the place of public worship concerned.

(g) Professional beggars when their entry is solely for the purposeof begging.”

(Emphasis Supplied)

27. The legality of banning the entry of women above the age often and below the age of fifty to offer worship at Sabarimala shrine wassought to be answered in 1992 by Division Bench of the High Court ofKerala in S Mahendran v The Secretary, Travancore DevaswomBoard, Thiruvananthapuram (“Mahendran”).[10] public interestlitigation was entertained by the High Court on the basis of petitionaddressed by one S. Mahendran. Upholding the exclusion of womenfrom the ceremonies and prayer at the shrine, the High Court concluded:

“44. Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 and below50 from trekking the holy hills of Sabarimala and offering worshipat Sabarimala Shrine is in accordance with the usage prevalentfrom time immemorial.

(2) Such restriction imposed by the Devaswom Board is notviolative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions of HinduPlace of Public Worship (Authorisation of Entry) Act, 1965 sincethere is no restriction between one section and another section orbetween one class and another class among the Hindus in thematter of entry to temple whereas the prohibition is only in respectof women of particular age group and not women as class.”[11]

The High Court issued the following directions:-

“In the light of the aforesaid conclusions we direct the firstrespondent, the Travancore Devaswom Board, not to permitwomen above the age of 10 and below the age of 50 to trek the

10 AIR 1993 Ker 42

11 Ibid, at page 57

holy hills of Sabarimala in connection with the pilgrimage to theSabarimala temple and from offering worship at Sabarimala Shrineduring any period of the year. We also direct the 3rd respondent,Government of Kerala, to render all necessary assistance inclusiveof police and to see that the direction which we have issued to theDevaswom Board is implemented and complied with.”

The reference

28. When the present case came up before three judge Benchof this Court, by an order dated 13 October 2017, the following questionswere referred to larger bench:

“1 Whether the exclusionary practice which is based upon abiological factor exclusive to the female gender amounts to“discrimination” and thereby violates the very core of Articles 14,15 and 17 and not protected by ‘morality’ as used in Articles 25and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an“essential religious practice” under Article 25 and whether areligious institution can assert claim in that regard under theumbrella of right to manage its own affairs in the matters ofreligion?

3. Whether Ayyappa Temple has denominational character and,Eif so, is it permissible on the part of ‘religious denomination’managed by statutory board and financed under Article 290-Aof the Constitution of India out of Consolidated Fund of Keralaand Tamil Nadu can indulge in such practices violating constitutionalprinciples/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship(Authorisation of Entry) Rules permits ‘religious denomination’ toban entry of women between the age of 10 to 50 years? And ifso, would it not play foul of Articles 14 and 15(3) of the Constitutionby restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship(Authorization of Entry) Rules, 1965 is ultra vires the Kerala HinduPlaces of Public Worship (Authorisation of Entry) Act, 1965 and,if treated to be intra vires, whether it will be violative of theprovisions of Part III of the Constitution?”

It is these questions that we have been called upon to answer.

Submissions

The Petitioners challenge the exclusion of women between theage group ten and fifty from the Sabarimala Temple as unconstitutional.

Mr Ravi Prakash Gupta,[12] learned Counsel submitted that theexclusion of women between the age group of ten and fifty from theSabarimala Temple is unconstitutional on the following grounds:

i. The devotees of Lord Ayyappa do not constitute religiousdenomination under Article 26 of the Constitution;

ii.The restriction of entry of women into Sabarimala temple doesnot constitute an Essential Religious Practice;

iii. The right under Article 26 and Article 25 must be readharmoniously as laid down in Devaru; and

iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Actand Article 14 and 15 of the Constitution.

Ms Indira Jaising,[13] learned Senior Counsel, submits that theexclusion from the Sabarimala temple is unconstitutional:

i. The exclusionary practice is based on physiological factorsexclusive to the female gender and this violates Articles 14, 15and 21 of the Constitution;

ii.The practice of exclusion based on menstruation constitutes aform of untouchability and is prohibited by Article 17 of theConstitution;

iii. The devotees of Lord Ayyappa do not constitute religiousdenomination under Article 26 of the Constitution;

iv. The practice of excluding women from the Sabarimala templedoes not constitute an Essential Religious Practice;

v.That the impugned custom of excluding women falls within theambit of ‘laws in force’ in Article 13 and is constitutionallyinvalid; and

vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.

12 Appearing for the Petitioners – Indian Young Lawyer’s Association

13 Appearing for the Intervenors – Nikita Azad Arora and Sukhjeet Singh

AMr Raju Ramachandran, learned Senior Counsel who hasassisted the Court as Amicus Curiae made the following submissions:i. That the right of woman to worship is an essential aspect ofher right to worship under Article 25;

ii. That the exclusion of women from Sabarimala temple amountsBto discrimination prohibited under Article 15(1) of theConstitution;

iii. That compulsory disclosure of menstrual status by women is aviolation of their right to privacy under Article 21 of theConstitution;C

iv. The term ‘morality’ in Article 25 and 26 embodies constitutionalmorality;

v. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;

vi. The devotees of Lord Ayyappa do not constitute religiousDdenomination under Article 26 of the Constitution;

vii. The practice of excluding women from the Sabarimala templedoes not constitute an Essential Religious Practice;

viii. The prohibition against untouchability in Article 17 extends tothe denial of entry to women between the age group ten andEfifty;

ix. deity is not juristic person for the purpose of rights enshrinedin Part III of the Constitution; and

x. That there is no requirement of trial as the recordings by theFHigh Court in Mahendran are sufficient.

Mr P V Surendranath,[14] learned Senior Counsel submitted thus:

i. There is no proven custom of excluding women from theSabarimala temple;

ii. The practice of exclusion violates Article 14, 15, 25 and 51 ofGthe Constitution; and

iii. In the case of conflict between fundamental rights andcustoms, the former would prevail in accordance with Article13 of the Constitution.

14 Appearing for the Intervenors – All India Democratic Women’s AssociationH

Mr Jaideep Gupta,[15] learned Senior Counsel submitted:

i. The State Government of Kerala stands by the affidavit filedon 13 November 2007 wherein the State Government wasnot in favour of any discrimination against women;

ii. That women fall within the ambit of ‘section or class’ in Section3 of the 1965 Act;

iii. Article 17 must be given broad interpretation which prohibitsthe exclusion of women;

iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;

v. The devotees of Lord Ayyappa do not constitute religiousdenomination under Article 26 of the Constitution;

vi. The practice of excluding women from the Sabarimala templedoes not constitute an Essential Religious Practice; and

vii. That the impugned custom of excluding women falls withinDthe ambit of Article 13 and is constitutionally invalid.

The Respondents submitted that the practice of excluding womenbetween the age group of ten and fifty from the Sabarimala temple isconstitutionally permissible.

Dr.Abhishek Manu Singhvi,[16] learned Senior Counsel submittedthat the practice of excluding women between the age group of ten andfifty from the Sabarimala temple is constitutional and valid:

i. The exclusion of women is not based on gender and satisfiesthe test of intelligible differentia and nexus to the object soughtto be achieved;

ii.That Article 17 is inapplicable to the case at hand as the Articleis restricted to prohibiting caste and religion-based untouchability;

iii. The Sabarimala temple is denominational temple and theexclusion of women is in exercise of denomination rights underArticle 26 of the Constitution;

iv. Articles 25 and 26 of the Constitution protect religious mattersincluding ceremonial issues and the exclusion of women is anexercise of this right;

15 Appearing for the State of Kerala

16 Appearing on behalf of the Respondent – Travancore Devaswom Board

Av. That Article 13 of the Constitution does not apply to the presentcase; and

vi. That separate trial would be required for the determinationof facts.

Shri K Parasaran,[17] learned Senior Counsel submitted that theBexclusion from the Sabarimala temple is constitutionally permissible:

i. There exists an independent custom that permits the exclusionof women from the Sabarimala temple;

ii.The right to exclude women of particular age group from theCtemple flows from the religious rights of the devotees underArticle 25 of the Constitution and the character of the deity asa Naishtika Brahmacharya;

iii. The custom is protected under Rule 3(b) the 1965 Rules; and

Div. That the notion of equality is enshrined in Article 25, andconsequently, Article 14 and 15 are inapplicable to the presentcase.

Mr K Ramamoorthy, learned Senior Counsel who assisted theCourt as Amicus Curiae made the following submissions:

i. That the exclusion of women between the age group ten andfifty does not violate the rights of the Petitioners under Article25; and

ii.The practice of exclusion is protected under Article 25.

FMr K Radhakrishnan,[18] learned Senior Counsel submitted thatthe exclusion of women between the ages ten and fifty is permissible:i. The impugned practice constitutes an Essential ReligiousPractice; and

Gii. The prohibition of untouchability enshrined in Article 17 isinapplicable.

Mr V Giri,[19] learned Senior Counsel submitted thus:

17 Appearing on behalf of the Respondent – Nair Service Society

18 Appearing on behalf of the Intervenor – Raja of Pandalam

19 Appearing on behalf of the Respondent – the ThantriH

i. The exclusion of women constitutes an Essential ReligiousPractice and is in accordance with character of the deity as aNaishtika Brahmacharya.

Mr J Sai Deepak,[20] learned Counsel submitted that the deity hasconstitutional rights and that the practice of excluding women betweenthe age group of ten and fifty from worship at the Sabarimala temple isconstitutional and permissible:

i. The impugned practice is based on the character of the deityas Naishtika Brahmacharya;

ii. Given the form of the deity, the practice constitutes an EssentialReligious Practice;

iii.The devotees of Lord Ayyappa constitute religiousdenomination under Article 26 of the Constitution;

iv.That the presiding deity of Sabarimala Temple is bearer ofconstitutional rights under Articles 21 and 25 of the Constitution;

v.Article 17 of the Constitution has no applicability as it appliesonly to untouchability based on caste and religion; and

vi.The impugned Rules and Act flow from the right of thedenomination under Article 26 and are constitutionally valid.

Mr V K Biju,[21] learned Counsel submitted that the exclusion isconstitutionally permissible:

i. That the right of the deity as juristic person sitting as NaishtikaBrahmacharya cannot be questioned;

ii.That the exclusion is protected under Article 25 and 26 of theConstitution; and

iii. The issue at hand cannot be decided without determinationof facts that would take place at trial.

Mr Gopal Sankaranarayanan,[22] learned Counsel made the

following submissions:

i. That Article 25 is not applicable to the present case;

ii. That the devotees of Lord Ayyappa constitute religiousdenomination under Article 26 of the Constitution; and

20 Appearing on behalf of K K Sabu and People for Dharma

21 Appearing on behalf of the Lord Ayyappa Devotees

22 Appearing for Intervenor – Usha Nandini

Aiii. The 1965 Act does not apply to the Sabarimala temple; In anycase, the proviso to Rule 3 of the 1965 Rules protects therights of religious denominations.

Essential Religious Practices

29. The doctrine of essential religious practices was first articulatedBin 1954, in Commissioner, Hindu Religious Endowments, Madrasv Sri Lakshmindra Thirtha Swamiar of Shirur Mutt[23] (“ShirurMutt”). seven judge Bench of this Court considered challenge tothe Madras Hindu Religious and Charitable Endowments Act 1951, whichempowered statutory commissioner to frame and settle scheme ifCthey had reason to believe that the religious institution was mismanagingfunds. The Petitioner, the mathadhipati (superior) of the Shirur Muttmonastery, claimed that the law interfered with his right to manage thereligious affairs of the monastery, and therefore violated Article 26(b) ofthe Constitution.

DJustice K Mukherjea, writing for the Court, noted that Article26(b) allowed religious denomination to ‘manage its own affairs inmatters of religion’ and framed question on the ambit of ‘matters ofreligion’:

“16.The language undoubtedly suggests that there could be otherEaffairs of religious denomination or section thereof which arenot matters of religion and to which the guarantee given by thisclause would not apply. The question is, where is the line tobe drawn between what are matters of religion and whatare not?”

(Emphasis supplied)

The Court cited with approval the judgment of the High Court ofAustralia in Adelaide Company of Jehovah’s WitnessesIncorporated v The Commonwealth of Australia[24], which held thatthe Constitution protected not only “liberty of opinion” but also “actsdone in pursuance of religious belief as part of religion.” The court notedGthe importance of both religious belief and the practice that stems fromit, and provided an expansive definition of ‘religion’:

“A religion undoubtedly has its basis in system of beliefs ordoctrines which are regarded by those who profess that religion 23 1954 SCR 1005H 24 [1943] HCA 12

as conducive to their spiritual well-being, but it would not be correctto say that religion is nothing else but doctrine or belief...Theguarantee under our Constitution not only protects thefreedom of religious opinion but it protects also acts donein pursuance of religion and this is made clear by the useof the expression “practice of religion” in article 25.”

(Emphasis supplied)

Drawing distinction between religious and secular practices,the court held that:

“...What constitutes the essential part of religion isprimarily to be ascertained with reference to the doctrinesof that religion itself. If the tenets of any religious sect of theHindus prescribe that offerings of food should be given to the idolat particular hours of the day…all these would be regarded asparts of religion and the mere fact that they involve expenditureof money or employment of priests and servants or the use ofmarketable commodities would not make them secular activitiespartaking of commercial or economic character; all of them arereligious practices and should be regarded as matters of religionwithin the meaning of Article 26(b).”

(Emphasis supplied)

The Court ruled that the freedom of religion guaranteed by theConstitution applied to freedom of both religious belief and practice. Todistinguish between the religious and the secular, the Court looked to thereligion itself, and noted that the views of adherents were crucial to theanalysis of what constituted ‘essential’ aspects of religion.

30. This approach was followed in Ratilal Panachand Gandhi vState of Bombay[25 ](“Ratilal”), where Constitution Bench of this Courtconsidered the constitutionality of the Bombay Public Trusts Act, 1950.The Act sought to regulate and make provisions for the administration ofpublic and religious trusts in the State of Bombay. The Petitionerschallenged the validity of the Act on the grounds that it interfered withtheir freedom of conscience, their right to freely profess, practise andpropagate their religion, and their right to manage their religious affairsunder Articles 25 and 26 of the Constitution. Justice K Mukherjea,speaking for Constitution Bench of this Court, expounded upon themeaning and scope of Article 25:

25 1954 SCR 1055

A“10...Subject to the restrictions which this article imposes, everyperson has fundamental right under our Constitution not merelyto entertain such religious belief as may be approved of by hisjudgment or conscience but to exhibit his belief and ideas in suchovert acts as are enjoined or sanctioned by his religion and furtherto propagate his religious views for the edification of others.”B

Speaking with reference to Article 26, Justice Mukherjea reiteratedthe broad view taken by the Court in Shirur Mutt – that religiousdenominations had ‘complete autonomy’ to decide which religiouspractices were essential for them:

C“Religious practices or performances of acts in pursuance ofreligious beliefs are as much part of religion as faith or belief inparticular doctrines …

23…No outside authority has any right to say that these are notessential parts of religion and it is not open to the secular authorityDof the State to restrict or prohibit them in any manner they likeunder the guise of administering the trust estate.”

The Court, however, recognized the limited role of the Court inthe determination of such question:

“The distinction between matters of religion and those of secularEadministration of religious properties may, at times, appear to be athin one. But in cases of doubt …the court should take acommon sense view and be actuated by considerations ofpractical necessity.” (Emphasis supplied)

31. The late 1950s witnessed two cases that were central to theFevolution of the essential practices doctrine. In Sri VenkataramanaDevaru v State of Mysore[26](“Devaru”), Constitution Bench of thisCourt considered the constitutionality of the Madras Temple EntryAuthorisation Act, 1947, which sought to reform the practice of religiousexclusion of Dalits from denominational temple founded by the GowdaSaraswat Brahmins. The Court accepted the claim that the temple wasGa denominational temple founded for the benefit of the Gowda Saraswats,and proceeded to examine whether exercising the right of religiousdenomination under Article 26(b), they were ‘entitled to exclude othercommunities from entering into it for worship on the ground that it was amatter of religion.’H 26 (1958) SCR 895

Rather than allowing the religious denomination ‘completeautonomy in the matter of deciding as to what rites and ceremonies areessential’, the Court examined scripture and precedent to determinewhether the exclusion of person from entering into temple for worshipwas matter of religion under Hindu Ceremonial Law. JusticeVenkatarama Aiyar reviewed ancient literature, the practice of Hindus,and the role of temples in that practice, and concluded on behalf of theCourt that:

“18…Thus, under the ceremonial law pertaining to temples,who are entitled to enter them for worship and where they areentitled to stand and worship and how the worship is to beconducted are all matters of religion.” (Emphasis supplied)

This firmly established the Court’s role in determining whatconstituted ‘essential’ religious practices. However, the matter did notend here. The Gowda Saraswats claimed their right to manage theirown religious affairs under Article 26(b), whereas the State claimed thatit had constitutional mandate to throw open Hindu temples ‘to all classesand sections of Hindus’ under Article 25(2)(b). Noting that the two are“apparently in conflict”, the Court considered whether the right of areligious denomination to manage its own affairs in matters of religionguaranteed under Article 26(b) was subject to, and could be controlledby, law protected by Article 25(2)(b), throwing open Hindu publictemple to all classes and sections of Hindus:

“Article 26, it was contended, should therefore be construed asfalling wholly outside Art. 25(2)(b), which should be limited toinstitutions other than denominational ones…The answer to thiscontention is that it is impossible to read any such limitation intothe language of Art. 25(2)(b). It applies in terms to all religiousinstitutions of public character without qualification or reserve.As already stated, public institutions would mean not merely templesdedicated to the public as whole but also those founded for thebenefit of sections thereof, and denominational temples would becomprised therein. The language of the Article being plain andunambiguous, it is not open to us to read into it limitations whichare not there, based on priori reasoning as to the probableintention of the Legislature. Such intention can be gathered onlyfrom the words actually used in the statute; and in Court of law,

[2018] 9 S.C.R.

Awhat is unexpressed has the same value as what is unintended.We must therefore hold that denominational institutions are withinArt. 25(2)(b).”

Applying the doctrine of harmonious construction, the Court heldthat the protection under Article 25(2)(b) vanishes in its entirety if it isBheld that Article 26(b) allows no exceptions or is not subject to Article25(2)(b):

“If the denominational rights are such that to give effect to themwould substantially reduce the right conferred by Art. 25(2)(b),then of course, on our conclusion that Art. 25(2)(b) prevails asagainst Art. 26(b), the denominational rights must vanish. ButCwhere that is not the position, and after giving effect to the rightsof the denomination what is left to the public of the right of worshipis something substantial and not merely the husk of it, there is noreason why we should not so construe Art. 25(2)(b) as to giveeffect to Art. 26(b) and recognise the rights of the denominationDin respect of matters which are strictly denominational, leavingthe rights of the public in other respects unaffected.”

32. This case marked nuance of the essential practices doctrinelaid down in Shirur Mutt, where denomination was granted ‘completeautonomy’ to determine which practices it considered to be essential. InShirur Mutt, the autonomy to decide what is essential to religion wasEcoupled with the definition of religion itself, which was to comprehendbelief and practice. In Devaru, the Court laid down crucial precedentin carving out its role in examining the essentiality of such practices.While the Court would take into consideration the views of religiouscommunity in determining whether practice qualified as essential, thisFwould not be determinative.

Prior to Devaru, this Court used the word ‘essential’ to distinguishbetween religious and secular practices in order to circumscribe theextent of state intervention in religious matters. The shift in judicialapproach took place when ‘essentially religious’ (as distinct from theGsecular) became conflated with ‘essential to religion.’ The Court’s enquiryinto the essentiality of the practice in question represented shift in thetest, which now enjoined upon the Court the duty to decide which religiouspractices would be afforded constitutional protection, based on thedetermination of what constitutes an essential religious practice.

33. In Mohd. Hanif Quareshi v State of Bihar[27 ](“Qureshi”),a Constitution Bench of this Court considered whether laws prohibitingcattle slaughter infringed upon the fundamental right to religion of thePetitioners, who were members of the Muslim Qureshi Community. ThePetitioners claimed that these laws were violative of Article 25 of theConstitution as Muslims were compelled by their religion to sacrificecows at Bakr-Id. The Court placed reliance upon Islamic religious textsto determine that the sacrificing of cows at Bakr-Id was not an essentialpractice for Muslims:

“13...No reference is made in the petition to any particular Surahof the Holy Quran which, in terms, requires the sacrifice of acow...What the Holy book enjoins is that people should pray untothe Lord and make sacrifice...It is therefore, optional for Muslimto sacrifice goat for one person or cow or camel for sevenpersons. It does not appear to be obligatory that personmust sacrifice cow. The very fact of an option seems torun counter to the notion of an obligatory duty…”

(Emphasis supplied)

In response to the claim that Muslims had been sacrificing cowssince time immemorial and that this practice was sanctioned by theirreligion and was therefore protected by Article 25, the Court observedthat:

“13…It is part of the known history of India that the MoghulEmperor Babar saw the wisdom of prohibiting the slaughter ofcows as and by way of religious sacrifice and directed his sonHumayun to follow this example...We have, however, nomaterial on the record before us which will enable us tosay, in the face of the foregoing facts, that the sacrifice of acow on that day is an obligatory overt act for Mussalmanto exhibit his religious belief and idea. In the premises, it isnot possible for us to uphold this claim of the petitioners.”

(Emphasis supplied)

The Court looked to the texts and scriptures of the religiouscommunity to conclude that the practice claimed to be essential was notsupported by religious tenets.

34. In Durgah Committee, Ajmer v Syed Hussain Ali[28](“Durgah Committee”), Constitution Bench of this Court considered 27 (1959) SCR 629 28 (1962) 1 SCR 383

Aa challenge to the Durgah Khawaja Saheb Act, 1955, which providedfor the constitution of Committee to manage Muslim Durgah. TheRespondents, who were khadims[29] of the Durgah, contended that theAct barred them from managing the Durgah and receiving offeringsfrom pilgrims, and hence infringed upon their rights under Article 26 asMuslims belonging to the Soofi Chishtia Order. Rather than making aBreference to scriptures, Justice Gajendragadkar, writing for the Court,considered the history of the Ajmer shrine to determine that the right toadminister the property never vested in the Respondents:

“22. Thus it would be clear that from the middle of the 16th Centuryto the middle of the 20th Century the administration andCmanagement of the Durgah Endowment has been true to the samepattern. The said administration has been treated as matter withwhich the State is concerned and it has been left in charge of theMutawallis who were appointed from time to time by the Stateand even removed when they were found to be guilty of misconductor when it was felt that their work was unsatisfactory.”DBefore parting with the judgment, Justice Gajendragadkar issuedan important “note of caution”:

“33…in order that the practices in question should betreated as part of religion they must be regarded by thesaid religion as its essential and integral part; otherwiseEeven purely secular practices which are not an essential oran integral part of religion are apt to be clothed with areligious form and may make claim for being treated asreligious practices within the meaning of Article 26.Similarly,even practices though religious may have sprung fromFmerely superstitious beliefs and may in that sense beextraneous and unessential accretions to religion itself.Unless such practices are found to constitute an essential andintegral part of religion their claim for the protection under Article26 may have to be carefully scrutinised; in other words, theprotection must be confined to such religious practices as are anGessential and an integral part of it and no other.”

(Emphasis supplied)

29 According to the khadims, they were descendants of two followers of the twelfthcentury Sufi saint Khwaja Moinuddin Chisti, whose tomb at Ajmer is known as theDurgah Khwaja Saheb. The khadims also claimed they belonged to religiousdenomination known as the Chishtia Sufis.H

35. This statement pushed the essential religious practices doctrinein new direction. The Court distinguished, for the first time, between‘superstitious beliefs’ and religious practice. Apart from engaging in ajudicial enquiry to determine whether practice claimed to be essentialwas in fact grounded in religious scriptures, beliefs, and tenets, the Courtwould ‘carefully scrutinize’ that the practice claiming constitutionalprotection does not claim superstition as its base. This was considered anecessary safeguard to ensure that superstitious beliefs would not beafforded constitutional protection in the garb of an essential religiouspractice. The Court also emphasized that purely secular matters clothedwith religious form do not enjoy protection as an essential part ofreligion.

36. The test was narrowed down further in Sardar Syedna TaherSaifuddin Saheb v State of Bombay (“Saifuddin”),[30] where this Court,by 4-1 majority, struck down the Bombay Prevention ofExcommunication Act, 1949, which prohibited the practice ofexcommunication within religious communities. The Court held that thepractice of excommunication within the Dawoodi Bohra faith on religiousgrounds fell within ‘matters of religion’ under Article 26(b) and was thusconstitutionally protected. Justice Das Gupta, writing for the majority,emphasized that the practice claimed to be essential must be based strictlyon religious grounds in order to claim constitutional protection:

“43…The barring of excommunication on grounds other thanreligious grounds say, on the breach of some obnoxioussocial rule or practice might be measure of social reformand law which bars such excommunication merely mightconceivably come within the saving provisions of clause2(b) of Art. 25. But barring of excommunication on religiousgrounds pure and simple, cannot however be considered topromote social welfare and reform and consequently the law inso far as it invalidates excommunication on religious grounds andtakes away the Dai’s power to impose such excommunicationcannot reasonably be considered to be measure of social welfareand reform.” (Emphasis supplied)

The Court, therefore, enquired into the basis of excommunication:if its basis was strictly religious, the practice would warrant constitutional 30 1962 Supp (2) SCR 496

Aprotection. If, however, the practice was based on any other ground, itwould be open to the Legislature to prohibit such practice.

37. In strong dissent, Chief Justice Sinha concluded that thematter of excommunication was not purely of religious nature. Clarifyingthat his analysis was confined to the civil rights of the members of theBcommunity, Justice Sinha opined:

“11…The impugned Act, thus, has given full effect to modernnotions of individual freedom to choose one’s way of life and todo away with all those undue and outmoded interferences withliberty of conscience, faith and belief. It is also aimed at ensuringChuman dignity and removing all those restrictions which prevent aperson from living his own life so long as he did not interfere withsimilar rights of others.”

Justice Sinha drew distinction between ‘matters of religion’ asprotected under Article 26(b) and activities associated with religion, thoughDnot intimately connected with it:

“18…Now, Art. 26(b) itself would seem to indicate that religiousdenomination has to deal not only with matters of religion, butother matters connected with religion, like laying down rules andregulations for the conduct of its members and the penaltiesEattached to infringement of those rules, managing property ownedand possessed by the religious community, etc., etc. We havetherefore, to draw line of demarcation between practisesconsisting of rites and ceremonies connected with the particularkind of worship, which is the tenet of the religious community, andpractises in other matters which may touch the religious institutionsFat several points, but which are not intimately concerned withrites and ceremonies the performance of which is an essentialpart of the religion.”

Justice Sinha noticed the extreme consequences that followexcommunication:

“24. On the social aspect of excommunication, one is inclined tothink that the position of an excommunicated person becomesthat of an untouchable in his community, and if that is so, the Actin declaring such practises to be void has only carried out thestrict injunction of Art. 17 of the Constitution, by which

untouchability has been abolished and its practice in any formforbidden. The Article further provides that the enforcement ofany disability arising out of untouchability shall be an offencepunishable in accordance with law. The Act, in this sense, is itslogical corollary and must, therefore, be upheld.”

The decision in Saifuddin is presently pending consideration beforea larger bench.

38. Durgah Committee and Saifuddin established the role ofthis Court in scrutinizing claims of practices essential to religion in orderto deny constitutional protection to those practices that were not strictlybased in religion. Ascertaining what was “essential” to religiousdenomination “according to its own tenets” required scrutiny of itsreligious texts. Durgah Committee laid down that the court would‘carefully scrutinize’ claims to deny constitutional protection to thoseclaims which are religious but spring from superstitious beliefs and arenot essential to religion. Saifuddin laid down that practice groundedon an obnoxious social rule or practice may be within the ambit of socialreform that the State may carry out. This view infuses the doctrine witha safeguard against claims by religious denominations that any practicewith religious undertone would fall within the protection afforded byArticle 26(b) to them to ‘manage its own affairs in matters of religion.’

39. In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan(“Tilkayat”)[31], Constitution Bench of this Court dealt with challengeto Nathdwara Temple Act 1959, which provides for the appointment ofa board to manage the affairs of the temple and its property. ThePetitioner, the spiritual head of the temple, claimed that the temple andits properties were private and that the State legislature was not competentto pass the law. He contended that even if the temple was held to be apublic temple, the Act infringed Articles 25, 26(b) and 26(c) because thetemple was managed by the Tilkayat as head of the Vallabh denomination.The Court relied on firmans (edicts or administrative orders) issued byemperors of the erstwhile Mughal Empire to hold that the temple waspublic and that the Tilkayat was “merely custodian, manager and trusteeof the temple.” Justice Gajendragadkar, writing for the Bench, underlinedwhy the claims of community regarding their religious practices couldnot be accepted without scrutiny:

A“57.In deciding the question as to whether given religious practiceis an integral part of the religion or not, the test always would bewhether it is regarded as such by the community following thereligion or not. This formula may in some cases present difficultiesin its operation...In cases where conflicting evidence is producedin respect of rival contentions as to competing religious practicesBthe Court may not be able to resolve the dispute by blindapplication of the formula that the community decides whichpractice is an integral part of its religion, because the communitymay speak with more than one voice and the formula wouldtherefore break down. The question will always have to be decidedCby the Court…”

In this regard, the Court noted that:

“58...What is protected under Articles 25(1) and 26(b) respectivelyare the religious practices and the right to manage affairs in mattersof religion. If the practice in question is purely secular or the affairDwhich is controlled by the statute is essentially and absolutelysecular in character, it cannot be urged that Article 25(1) or Article26(b) has been contravened.”

Tilkayat set forth an important qualification to the propositionlaid down in Shirur Mutt, which held that adherents themselves mustEbe allowed to determine what was essential to their religion. The Courtobserved that where ‘conflicting evidence is produced in respect of rivalcontentions as to competing religious practices,’ ‘blind application’ ofthe Shirur Mutt formula may not resolve dispute, because personswithin community may have diverse and contrasting conceptions ofFwhat is essential to their religion. It was therefore held to be incumbentupon the Court to determine not only whether practice was religious incharacter, but also whether it could be considered an essential part ofreligion. Beginning with the Shirur Mutt formulation that what is essentialto religion would be determined by the adherents to the faith, the Courtmoved towards doctrine that what is essential “will always have to beGdecided by the Court.” In fact, the Court would determine whether astatute sought to regulate what is “essentially and absolutely secular.”What is religious and what is secular and the boundaries of both werethen to be adjudicated by the Court.

40. In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya[32](“Sastri Yagnapurushadji”), Constitution Bench of this Court wasseized with the issue of whether the Swaminarayan sect could beexempted from the application of the Bombay Hindu Places of PublicWorship (Entry Authorization) Act, 1956, which allowed Dalits to worshipin all temples to which the Act applied. The Petitioners, who weremembers of the Swaminarayan sect, contended that by virtue of being anon-Hindu creed, temples belonging to the sect did not fall within theambit of the Act. Justice Gajendragadkar, writing for the Court, rejectedthis claim:

“55.It may be conceded that the genesis of the suit is the genuineapprehension entertained by the appellants, but as often happensin these matters the said apprehension is founded onsuperstition, ignorance and complete misunderstanding ofthe true teachings of Hindu religion and of the realsignificance of the tenets and philosophy taught bySwaminarayan himself.” (Emphasis supplied)

Quoting Tilak, Justice Gajendragadkar then expounded thedistinctive features of Hinduism:

“40.Tilak faced this complex and difficult problem of defining orat least describing adequately Hindu religion and he evolved aworking formula which may be regarded as fairly adequate andsatisfactory. Said Tilak: “Acceptance of the Vedas withreverence; recognition of the fact that the means or waysto salvation are diverse and realisation of the truth that thenumber of gods to be worshipped is large, that indeed isthe distinguishing feature of Hindu religion.”

(Emphasis supplied)

41. In Acharya Jagdishwaranand Avadhuta v. Commissionerof Police, Calcutta[33](“Avadhuta I”), three judge Bench of this Courtconsidered whether the police could prevent the Ananda Margis fromperforming the ‘tandava dance’ in public, in which adherents dance in apublic procession carrying knives, live snakes, tridents, and skulls. TheCourt enquired ‘whether performance of Tandava dance is religious

32 (1966) 3 SCR 242

33 (1983) 4 SCC 522

Arite or practice essential to the tenets of the religious faith of the AnandaMargis.’ Justice Ranganath Misra, writing for the Court, held that sincethe Ananda Margis were recent religious order, and the tandava dancean even more recent innovation, it could not be considered an essentialreligious practice:B“14.Ananda Marga as religious order is of recent origin andtandava dance as part of religious rites of that order is still morerecent. It is doubtful as to whether in such circumstances tandavadance can be taken as an essential religious rite of the AnandaMargis.

“Even conceding that Tandava dance has been prescribed as aCreligious rite for every follower of Ananda Margis it does notfollow as necessary corollary that Tandava dance to beperformed in the public is matter of religious rite. In fact, thereis no justification in any of the writings of Shri Ananda Murti thattandava dance must be performed in public.”[34]D42. In Sri Adi Visheshwara of Kashi Vishwanath Temple,Varanasi v State of Uttar Pradesh[35] (“Adi Visheshwara”), threejudge Bench of this Court dealt with challenge to the Uttar Pradesh SriKashi Vishwanath Temple Act, 1983, which entrusted the State with themanagement of the temple as opposed to the Pandas (priests). The priestscontended that this violated their right under Article 25(1) and ArticleE26(b) and (d) of the Constitution. Rejecting that the claim and holdingthat the management of temple is secular activity, this Court heldthat the Sri Vishwanath Temple is not denominational temple and thatthe Appellants are not denominational worshippers. In view similar tothat taken by Justice Gajendragadkar in Tilkayat, the Court cautionedFagainst extending constitutional protection to purely secular practicesclothed with religious form:

“28…Sometimes, practices, religious or secular, areinextricably mixed up. This is more particularly so in regard toHindu religion because under the provisions of the ancient Smriti,Ghuman actions from birth to death and most of the individual actionsfrom day-today are regarded as religious in character in one facetor the other. They sometimes claim the religious system or sanctuaryand seek the cloak of constitutional protection guaranteed byArticles 25 and 26. One hinges upon constitutional religious model 34 Ibid, at pages 532-533H 35 (1997) 4 SCC 606

[DR. DHANANJAYA Y CHANDRACHUD, J.]

and another diametrically more on traditional point of view. Thelegitimacy of the true categories is required to be adjudgedstrictly within the parameters of the right of the individualand the legitimacy of the State for social progress, well-being and reforms, social intensification and nationalunity.”[36](Emphasis supplied)

43. In N Adithayan v Travancore Devaswom Board[37](“Travancore Devaswom Board”), two judge Bench of this Courtwas seized with the issue of whether the Travancore Devaswom Boardcould appoint non-Malayala Brahmin as priest of the KongorpillyNeerikode Siva Temple. Justice Doraiswamy Raju, writing for the Court,held that there was no evidence on record to demonstrate that onlyBrahmins were entitled to serve as priests. Rejecting the claim that ShirurMutt laid down the proposition that all practices arising out of religionare afforded constitutional protection, the Court held:

“18…The attempted exercise by the learned Senior Counsel forthe appellant to read into the decisions of this Court in ShirurMutt’s case (supra) and others something more than what it actuallypurports to lay down as if they lend support to assert or protectany and everything claimed as being part of the religious rituals,rites, observances and method of worship and make such claimsimmutable from any restriction or regulation based on the otherprovisions of the Constitution or the law enacted to implementsuch constitutional mandate, deserves only to be rejected as merelya superficial approach by purporting to deride what otherwise hasto have really an overriding effect, in the scheme of rights declaredand guaranteed under Part III of the Constitution of India. Anycustom or usage irrespective of even any proof of theirexistence in pre constitutional days cannot be countenancedas source of law to claim any rights when it is found toviolate human rights, dignity, social equality and the specificmandate of the Constitution and law made by Parliament.

No usage which is found to be pernicious and consideredto be in derogation of the law of the land or opposed topublic policy or social decency can be accepted or upheldby courts in the country.”[38] (Emphasis supplied)

36 Ibid, at page 630

37 (2002) 8 SCC 106

38 Ibid, at pages 124-125

A44. The question of the essential religious nature of the Tandavadance was considered again in 2004, in Commissioner of Police v.Acharya Jagdishwarananda Avadhuta[39](“Avadhuta II”). AfterAvadhuta I, the religious book of the Anand Margis, the Carya-Carya,was revised to prescribe the Anand Tandava as an essentialreligious practice. Laying emphasis on the ‘essential’ nature of the practiceBclaimed, the majority, in 2-1 split verdict, held that the practice must beof such nature that its absence would result in fundamental changein the character of that religion:

“9.Essential part of religion means the core beliefs upon whicha religion is founded. Essential practice means those practicesCthat are fundamental to follow religious belief. It is upon thecornerstone of essential parts or practices that the superstructureof religion is built, without which religion will be no religion.Test to determine whether part or practice is essential toa religion is to find out whether the nature of the religionDwill be changed without that part or practice. If the takingaway of that part or practice could result in fundamentalchange in the character of that religion or in its belief, thensuch part could be treated as an essential or integral part.

There cannot be additions or subtractions to such partbecause it is the very essence of that religion and alterationsEwill change its fundamental character. It is such permanentessential parts which are protected by theConstitution…Such alterable parts or practices aredefinitely not the ‘core’ of religion where the belief is basedand religion is founded upon. It could only be treated asFmere embellishments to the non-essential part orpractices.”[40]

(Emphasis supplied)

The essentiality test came to be linked to the “fundamentalcharacter” of the religion. If the abrogation of practice does not changeGthe fundamental nature of the religion, the practice itself is not essential.

Rejecting the claim of the Anand Margis, the majority held thatthe Ananda Margi order was in existence (1955-66) even without thepractice of the Tandava dance. Hence, such practice would not 39 (2004) 12 SCC 770 40 Ibid, at pages 782-783H

constitute the ‘core’ of the religion. Further, religious groups could notbe permitted to alter their religious doctrine to recognize certain religiouspractices, in order to afford them constitutional protection.

45. In Adi Saiva Sivachariyargal Nala Sangam v. Governmentof Tamil Nadu[41] (“Adi Saiva”), two judge Bench of this Courtconsidered challenge to Government Order issued by the State ofTamil Nadu which permitted ‘any qualified Hindu’ to be appointed asthe Archaka of temple. The Petitioners challenged the GovernmentOrder on the grounds that it violated their right to appoint Archakas fromtheir own denomination in accordance with the Agamas. In determiningthe constitutional validity of the Government Order, this Court held thatany religious belief or practice must pass constitutional muster in orderto be afforded constitutional protection:

“48.The requirement of constitutional conformity is inbuilt and if acustom or usage is outside the protective umbrella afforded andenvisaged by Articles 25 and 26, the law would certainly take itsown course. The constitutional legitimacy, naturally, mustsupersede all religious beliefs or practices.”[42]

(Emphasis supplied)

46. In Shayara Bano v Union of India[43] (“Shayara Bano”), aConstitution Bench of this Court considered whether the practice oftriple talaq was an essential practice to the Hanafi school of SunniMuslims. Based on an examination of Islamic jurisprudence whichestablished that triple talaq constitutes an irregular practice of divorce,the majority opinion, in 3-2 split, held that triple talaq was not an essentialpractice. Justice Nariman, speaking for himself and Justice Lalit, notedthat “a practice does not acquire the sanction of religion simply becauseit is permitted” and applied the essential religious practices test set out inJaved v State of Haryana[44] and Avadhuta II to the practice of tripletalaq:

“54...It is clear that Triple Talaq is only form of Talaq which ispermissible in law, but at the same time, stated to be sinful by thevery Hanafi school which tolerates it. According to Javed (supra),therefore, this would not form part of any essential religious

41 (2016) 2 SCC 725

42 Ibid, at page 755

43 (2017) 9 SCC 1

44 (2003) 8 SCC 369

Apractice. Applying the test stated in Acharya Jagdishwarananda(supra), it is equally clear that the fundamental nature of the Islamicreligion, as seen through an Indian Sunni Muslim’s eyes, will notchange without this practice.”[45]

Justice Kurian Joseph, concurring with Justices Nariman and Lalit,Bheld that on an examination of the Quran and Islamic legal scholarship,the practice of triple talaq could not be considered an essential religiouspractice. He opined that “merely because practice has continued forlong, that by itself cannot make it valid if it has been expressly declaredto be impermissible.”CChief Justice Khehar, who delivered the minority judgment, heldthat the practice of triple talaq is integral to the religion of Hanafi Muslims.He reasoned that:“[T]here can be no dispute on two issues. Firstly, that the practiceof ‘talaq-e-biddat’ has been in vogue since the period of Umar,Dwhich is roughly more than 1400 years ago. Secondly, that ‘talaq-e-biddat’ though bad in theology, was considered as “good” inlaw.”

On the basis of the history and prevalence of triple talaq in practice,Justice Khehar held that even though triple talaq “is consideredEas irreligious within the religious denomination in which the practiceis prevalent, yet the denomination considers it valid in law.”

While the majority based its conclusion on an examination of thesubstantive doctrines of Islam and the theological sanctity of triple talaq,the minority relied on the widespread practice of triple talaq to determineits essentiality. The majority and minority concurred, however, that theFbelief of religious denomination claiming particular practice to beessential must be taken into consideration in the determination of theessentiality of that practice.

47. In its jurisprudence on religious freedom, this Court has evolveda body of principles which define the freedom of religion under ArticleG25 and Article 26 to practices ‘essential’ to the religion. The Constitutionhas been held to protect not only freedom of religious belief, but actsdone in pursuance of those beliefs. While the views of religiousdenomination are to be taken into consideration in determining whethera practice isessential, those views are not determinative of its essentiality.H 45 Ibid, at page 69

The Court has assumed central role in determining what is or is notessential to religious belief. Intrinsic to the role which the Court hascarved out, it has sought to distinguish between what is religious andwhat is secular practice, even if it is associated with religious activity.Going further, the Court has enquired into whether practice is essentialto religion. Essentiality of the practice would, as the Court as held dependson whether the fundamental character of religion would be altered. ifit were not observed. Above all, there is an emphasis on constitutionallegitimacy, which underscores the need to preserve the basic constitutionalvalues associated with the dignity of the individual. The ephemeraldistinction between religion and superstition becomes more coherent interms of the need to preserve fundamental constitutional values associatedwith human liberty.

48. In determining the essentiality of practice, it is crucial toconsider whether the practice is prescribed to be of an obligatory naturewithin that religion. If practice is optional, it has been held that it cannotbe said to be ‘essential’ to religion. practice claimed to be essentialmust be such that the nature of the religion would be altered in theabsence of that practice. If there is fundamental change in the characterof the religion, only then can such practice be claimed to be an ‘essential’part of that religion.

In Tilkayat, this Court noted that ‘whether an affair in question isan affair in matters of religion or not, may present difficulties becausesometimes practices, religious and secular, are inextricably mixed up.’The process of disentangling them in order to adjudicate upon claimsgrounded in Article 25 and Article 26(b) becomes ultimately an exerciseof judicial balancing. Durgah Committee established that in examininga claim that practice is essential to religion, the Court must ‘carefullyscrutinize’ the claims put before it in order to ensure that practices whichhave sprung from ‘superstitious beliefs’, through grounded in religion,will not be afforded constitutional protection. Saifuddin recognized thatwhere purportedly essential practice is based on an ‘obnoxious socialrule or practice’, it would be amenable to measure of social reform.Of crucial importance are the observations in Devaru, where theCourt harmonized the inherent tension between the individual right underArticle 25(2)(b) and the denominational right under Article 26(b). Wherethe protection of denominational rights would substantially reduce theright conferred by Article 25(2)(b), the latter would prevail against the

Aformer. This ensures that the constitutional guarantee under Article25(2)(b) is not destroyed by exclusionary claims which detract fromindividual dignity. That practice claimed to be essential has been carriedon since time immemorial or is grounded in religious texts, does not lendto it constitutional protection unless it passes the test of essentiality.

BG The engagement of essential religious practices withconstitutional values

49. For decades, this Court has witnessed claims resting on theessentiality of practice that militate against the constitutional protectionof dignity and individual freedom under the Constitution. It is the duty ofCthe courts to ensure that what is protected is in conformity withfundamental constitutional values and guarantees and accords withconstitutional morality. While the Constitution is solicitous in its protectionof religious freedom as well as denominational rights, it must beunderstood that dignity, liberty and equality constitute the trinity whichdefines the faith of the Constitution. Together, these three values combineDto define constitutional order of priorities. Practices or beliefs whichdetract from these foundational values cannot claim legitimacy. InGovernment of NCT of Delhi v Union of India[46], one of us(Chandrachud J), observed the importance of constitutional morality asa governing ideal:E“Constitutional morality highlights the need to preserve the trustof the people in institutions of democracy. It encompasses not justthe forms and procedures of the Constitution, but provides an“enabling framework that allows society the possibilities of self-renewal”. It is the governing ideal of institutions of democracyFwhich allows people to cooperate and coordinate to pursueconstitutional aspirations that cannot be achieved single-handedly.”

Our Constitution places the individual at the heart of the discourseon rights. In constitutional order characterized by the Rule of Law, theconstitutional commitment to egalitarianism and the dignity of everyGindividual enjoins upon the Court duty to resolve the inherent tensionsbetween the constitutional guarantee of religious freedom afforded toreligious denominations and constitutional guarantees of dignity andequality afforded to individuals. There are multiplicity of intersectingconstitutional values and interests involved in determining the essentiality

of religious practices. In order to achieve balance between competingrights and interests, the test of essentiality is infused with these necessarylimitations.

50. Is the practice of excluding women between the ages of tenand fifty from undertaking the pilgrimage and praying at the Sabarimalatemple an essential part of religion? The texts and tenets on which theRespondents placed reliance do not indicate that the practice of excludingwomen is an essential part of religion required or sanctioned by thesereligious documents. At best, these documents indicate the celibate natureof Lord Ayyappa at the Sabarimala temple. The connection betweenthis and the exclusion of women is not established on the material itself.51. It was briefly contended that the case at hand required adetermination of fact and law and should be sent to trial. It was contendedthat no new material has been placed before this Court to contradict theholding of the Kerala High Court in Mahendran. The High Courtrecorded findings on the pilgrimage, the inconsistent practice of prohibitingwomen between the age group of ten and fifty, and the collection ofindividuals that offer prayer at the Sabarimala temple. Relying on thefindings of fact recorded in Mahendran and taking note of thesubmissions of the Respondents herein, the question of remanding thecase to trial in this case does not arise.

In regard to the maintainability of the present public interestlitigation, this issue stands answered by the judgment of this Court in AdiSaiva Sivachariyargal v Government of Tamil Nadu,[47] :

“12…The argument that the present writ petition is founded on acause relating to appointment in public office and hence notentertainable as public interest litigation would be too simplistica solution to adopt to answer the issues that have beenhighlighted which concerns the religious faith and practiceof large number of citizens of the country and raises claimsof century-old traditions and usage having the force of law.The above is the second ground, namely, the gravity of the issuesthat arise, that impel us to make an attempt to answer theissues raised and arising in the writ petitions fordetermination on the merits thereof.” (Emphasis supplied)

AOf importance are some of the observations of the Kerala HighCourt in Mahendran The High Court noted that even when old customsprevailed, women were allowed to visit the Temple.[48] It noted an incidentwhere the Maharaja of Travancore, accompanied by the Maharani andthe Divan, had visited the Temple in 1115 M.E. The High Court notedthat the Temple has seen the presence of women worshippers betweenBthe ages of ten and fifty for the first rice-feeding ceremony of theirchildren.[49] The Secretary of the Ayyappa Seva Sangham had deposedthat young women were seen in Sabarimala during the previous ten tofifteen years.[50] former Devaswom Commissioner admitted that thefirst rice-feeding ceremony of her grandchild was conducted at theCSabarimala Temple. The High Court found that during the twenty yearspreceding the decision, women irrespective of age were allowed to visitthe temple when it opened for monthly poojas,[51] but were prohibitedfrom entering the temple only during Mandalam, Makaravilakku andVishu seasons.[52]

DThe High Court thus noted multiple instances wherein womenwere allowed to pray at the Sabarimala temple. These observationsdemonstrate that the practice of excluding women from the Sabarimalatemple was not uniform. This militates against claim that such practiceis of an obligatory nature. That such practice has not been followed onnumerous occasions, also shows that the denial of constitutional protectionEto an exclusionary practice will not result in fundamental change in thecharacter of the religion as required by Avadhuta II.

52. The High Court proceeded on the basis of the ‘completeautonomy’ of the followers in determining the essentiality of the practice[53].This followed the dictum in Shirur Mutt, without taking note of evolutionFof precedent thereafter, which strengthened the role of the Court in thedetermination and put in place essential safeguards to ensure to everyindividual, the constitutional protection afforded by the trinity of dignity,liberty and equality. The approach of the High Court is incorrect. TheHigh Court relied completely on the testimonies of the Thanthris withoutGan enquiry into its basis in religious text or whether the practice claiming

48 Ibid, at para 7 49 Ibid 50 Ibid, at para 32 51 Ibid, at paras 8, 10 52 Ibid, at para 43H 53 Ibid, at para 22

constitutional protection fulfilled the other guidelines laid down by thisCourt. Such an approach militates against the fundamental role of theconstitutional Court as guardian of fundamental rights. Merelyestablishing usage[54] will not afford it constitutional protection as anessential religious practice.It must be proved that the practice is ‘essential’to religion and inextricably connected with its fundamental character.This has not been proved.

This is sufficient reason to hold that the practice of excludingwomen from Sabarimala does not constitute an essential religious practice.However, since the claim in this case has significant bearing on thedignity and fundamental rights of women, an issue of principle must beanalysed.

53. It was brought to the notice of this Court that in earlier days,the prohibition on women was because of non-religious factors.[55] The‘main reason’ as observed by the High Court in Mahendran, is thearduous nature of the journey[56] which according to the Court could notbe completed by women for physiological reasons. This claim falls foulof the requirement that the practice claiming constitutional protectionmust be on strictly religious grounds. Of significant importance, is thatsuch claim is deeply rooted in stereotypical (and constitutionallyflawed) notion that women are the ‘weaker’ sex and may not undertaketasks that are ‘too arduous’ for them. This paternalistic approach iscontrary to the constitutional guarantee of equality and dignity to women.Interpreting the Constitution in accordance with the values that infuse itrequires that the dignity of women, which is an emanation of Article 15and founded in Article 21, cannot be disassociated from the exercise ofreligious freedom. Holding that stereotypical understandings of sex holdno legitimate claim under our Constitution, one of us (Chandrachud J) inNavtej Singh v Union of India,[57] held:

“A discriminatory act will be tested against constitutionalvalues. discrimination will not survive constitutional scrutinywhen it is grounded in and perpetuates stereotypes about aclass constituted by the grounds prohibited in Article 15(1).If any ground of discrimination, whether direct or indirect is

54 Ibid, at para 37

55 Ibid, at para 7

56 Ibid, at paras 38, 43

57 Writ Petition (Criminal) No. 76 of 2016

Afounded on stereotypical understanding of the role of the sex, itwould not be distinguishable from the discrimination which isprohibited by Article 15 on the grounds only of sex. If certaincharacteristics grounded in stereotypes, are to be associated withentire classes of people constituted as groups by any of the groundsprohibited in Article 15(1), that cannot establish permissible reasonBto discriminate.”

54. The Court must lean against granting constitutional protectionto claim which derogates from the dignity of women as equal holdersof rights and protections. In the ethos of the Constitution, it isinconceivable that age could found rational basis to condition the rightCto worship. The ages of ten to fifty have been marked out for exclusionon the ground that women in that age group are likely to be in theprocreative age. Does the Constitution permit this as basis to excludewomen from worship? Does the fact that woman has physiologicalfeature – of being in menstruating age – entitle anybody or group toDsubject her to exclusion from religious worship? The physiological featuresof woman have no significance to her equal entitlements under theConstitution. All women in the age group of ten and fifty may not in anycase fall in the ‘procreative age group’. But that to my mind is again nota matter of substance. The heart of the matter lies in the ability of theConstitution to assert that the exclusion of women from worship isEincompatible with dignity, destructive of liberty and denial of the equalityof all human beings. These constitutional values stand above everythingelse as principle which brooks no exceptions, even when confrontedwith claim of religious belief. To exclude women is derogatory to anequal citizenship.F

55. The Respondents submitted that the deity at Sabarimala is inthe form of Naishtika Brahmacharya: Lord Ayyappa is celibate. Itwas submitted that since celibacy is the foremost requirement for all thefollowers, women between the ages of ten and fifty must not be allowedin Sabarimala. There is an assumption here, which cannot standGconstitutional scrutiny. The assumption in such claim is that deviationfrom the celibacy and austerity observed by the followers would becaused by the presence of women. Such claim cannot be sustained asa constitutionally sustainable argument. Its effect is to impose the burdenof man’s celibacy on woman and construct her as cause for deviationfrom celibacy. This is then employed to deny access to spaces to which

women are equally entitled. To suggest that women cannot keep theVratham is to stigmatize them and stereotype them as being weak andlesser human beings. constitutional court such as this one, must refuseto recognize such claims.

56. Human dignity postulates an equality between persons. Theequality of all human beings entails being free from the restrictive anddehumanizing effect of stereotypes and being equally entitled to theprotection of law. Our Constitution has willed that dignity, liberty andequality serve as guiding light for individuals, the state and this Court.Though our Constitution protects religious freedom and consequent rightsand practices essential to religion, this Court will be guided by the pursuitto uphold the values of the Constitution, based in dignity, liberty andequality. In constitutional order of priorities, these are values on whichthe edifice of the Constitution stands. They infuse our constitutional orderwith vision for the future – of just, equal and dignified society. Intrinsicto these values is the anti-exclusion principle. Exclusion is destructive ofdignity. To exclude woman from the might of worship is fundamentallyat odds with constitutional values.57. It was briefly argued that women between the ages of tenand fifty are not allowed to undertake the pilgrimage or enter Sabarimalaon the ground of the ‘impurity’ associated with menstruation. The stigmaaround menstruation has been built up around traditional beliefs in theimpurity of menstruating women. They have no place in constitutionalorder. These beliefs have been used to shackle women, to deny themequal entitlements and subject them to the dictates of patriarchal order.The menstrual status of woman cannot be valid constitutional basisto deny her the dignity of being and the autonomy of personhood. Themenstrual status of woman is deeply personal and an intrinsic part ofher privacy. The Constitution must treat it as feature on the basis ofwhich no exclusion can be practised and no denial can be perpetrated.No body or group can use it as barrier in woman’s quest for fulfilment,including in her finding solace in the connect with the creator.

Religious Denominations

58. One of the major planks of the response to the petition is thatSabarimala is denominational temple and is entitled to the rights grantedto ‘religious denominations’ by Article 26 of the Constitution.

A59. The rights conferred by Article 26 are not unqualified. Besidesthis, they are distinct from the rights guaranteed by Article 25. In Devaru,this Court elucidated on the application of such right and held thatwhere the denominational rights would substantially diminish Article25(2)(b), the former must yield to the latter. However, when the ambitof Article 25(2)(b) is not substantially affected, the rights of aB“denomination” as distinct “from the rights of the public” may be giveneffect to. However, such rights must be “strictly” denominational in nature.

Over the years, criteria have emerged from judicialpronouncements of this Court on whether collective of individualsqualifies as ‘religious denomination’. In making the determination,Cbenches of this Court have referred to the history and organisation of

the collective seeking denominational status.

60. Shirur Mutt dealt with the status of one of the eight Mathsfounded by Shri Madhavacharya, an exponent of dualist theism in Hindureligion. Justice K Mukherjea undertook an enquiry into the preciseDmeaning of the expression “religious denomination” and whether a“Math” is covered by the expression:

“15… The word “denomination” has been defined in the OxfordDictionary to mean “a collection of individuals classed togetherunder the same name: religious sect or body having commonEfaith and organisation and designated by distinctive name”.

three fold test emerges from the above observations: (i) theexistence of religious sect or body; (ii) common faith shared bythose who belong to the religious sect and common spiritual organisation;and (iii) the existence of distinctive name.F

The Court held that the “spiritual fraternity” represented byfollowers of Shri Madhavacharya, constitute religious denomination:

“15.It is well known that the practice of setting up Maths as centresof theological teaching was started by Shri Sankaracharya andwas followed by various teachers since then. After Sankara, cameGa galaxy of religious teachers and philosophers who founded thedifferent sects and sub-sects of the Hindu religion that we find inIndia at the present day. Each one of such sects or sub-sectscan certainly be called religious denomination, as it isdesignated by distinctive name, — in many cases it is theHname of the founder, — and has common faith and common

spiritual organisation. The followers of Ramanuja, who areknown by the name of Shri Vaishnabas, undoubtedly constitute areligious denomination; and so do the followers of Madhwacharyaand other religious teachers. It is fact well established by traditionthat the eight Udipi Maths were founded by Madhwacharyahimself and the trustees and the beneficiaries of these Mathsprofess to be followers of that teacher...” (Emphasis supplied)

61. In Devaru, Justice Venkatarama Aiyyar considered whetherthe Gowda Saraswath Brahmins, associated with the Sri VenkataramanaTemple, can be regarded as religious denomination. In doing so, theCourt undertook factual enquiry:

“14…Now, the facts found are that the members of this communitymigrated from Gowda Desa first to the Goa region and then tothe south, that they carried with them their idols, and that whenthey were first settled in Moolky, temple was founded and theseidols were installed therein. We are therefore concerned withthe Gowda Saraswath Brahmins not as section of acommunity but as sect associated with the foundation andmaintenance of the Sri Venkataramana Temple, in otherwords, not as mere denomination, but as religiousdenomination. From the evidence of PW 1, it appears that theGowda Saraswath Brahmins have three Gurus, that those inMoolky Petah are followers of the head of the Kashi Mutt, andthat it is he that performs some of the important ceremonies in thetemple. Exhibit is document of the year 1826-27. That showsthat the head of the Kashi Mutt settled the disputes among theArchakas, and that they agreed to do the puja under his orders.The uncontradicted evidence of PW 1 also shows that duringcertain religious ceremonies, persons other than GowdaSaraswath Brahmins have been wholly excluded. Thisevidence leads irresistibly to the conclusion that the templeis denominational one, as contended for by theappellants.” (Emphasis supplied)

This was, in other words, not just sect associated with thecommunity but one associated with the foundation and maintenance ofthe temple. This was coupled with spiritual head who was responsiblefor the performance of religious worship.

AThe Court noted that deed of endowment proved that the templewas founded for the benefit of the Gowda Saraswath community, andconcluded that the Sri Venkateshwara Temple qualified as adenominational temple.

“15... When there is question as to the nature and extent of aBdedication of temple, that has to be determined on the terms ofthe deed of endowment if that is available, and where it is not, onother materials legally admissible; and proof of long anduninterrupted user would be cogent evidence of the terms thereof.Where, therefore, the original deed of endowment is not availableand it is found that all persons are freely worshipping in the templeCwithout let or hindrance, it would be proper inference to makethat they do so as matter of right, and that the original foundationwas for their benefit as well. But where it is proved by productionof the deed, of endowment or otherwise that the original dedicationwas for the benefit of particular community, the fact thatDmembers of other communities were allowed freely to worshipcannot lead to the inference that the dedication was for their benefitas well.…On the findings of the Court below that the foundationwas originally for the benefit of the Gowda Saraswath Brahmincommunity, the fact that other classes of Hindus were admittedfreely into the temple would not have the effect of enlarging theEscope of the dedication into one for the public generally. On aconsideration of the evidence, we see no grounds for differingfrom the finding given by the learned Judges in the court belowthat the suit temple is denominational temple founded for thebenefit of the Gowda Saraswath Brahmins…”

FThe dedication of the temple was for the Gowda SaraswathBrahmins specifically. The temple was not dedicated for followers of allcommunities.

62. In S P Mittal v Union of India (“Mittal”)[58], JusticeRanganath Misra who delivered the opinion of the Court, held that theGfollowers of Sri Aurobindo do not constitute religious denomination.The Court formulated the conditions necessary to be fulfilled to qualifyas ‘religious denomination’:

“80. The words “religious denomination” in Article 26 of theConstitution must take their colour from the word “religion” and ifH 58 1983 1 SCC 51

this be so, the expression “religious denomination” must also satisfythree conditions:

“(1) It must be collection of individuals who have system ofbeliefs or doctrines which they regard as conducive to their spiritualwell-being, that is, common faith;

(2) common organisation; and

(3) designation by distinctive name.”[59]

These tests, as we have seen, are re-statement of the ShirurMutt formulation.

The Court dwelt on the organisation and activities of the AurobindoSociety and emphasised that collective seeking the status of religiousdenomination must be religious institution:

“120. It was further contended that religious denomination mustbe professed by that body but from the very beginning the Societyhas eschewed the word “religion” in its constitution. The Societyprofessed to be scientific research organisation to the donorsand got income tax exemption on the footing that it was not areligious institution. The Society has claimed exemption fromincome tax under Section 80 for the donors and under Section 35for itself on that ground. Ashram Trust was different from AurovilleAshram. The Ashram Trust also applied for income tax exemptionand got it on that very ground. So also Aurobindo Society claimedexemption on the footing that it was not religious institution andgot it. They professed to the Government also that they were nota religious institution in their application for financial assistanceunder the Central Scheme of Assistance to voluntary Hinduorganisations.[60]

121. On the basis of the materials placed before us viz. theMemorandum of Association of the Society, the several applicationsmade by the Society claiming exemption under Section 35 andSection 80 of the Income Tax Act, the repeated utterings of SriAurobindo and the Mother that the Society and Auroville werenot religious institutions and host of other documents there is noroom for doubt that neither the Society nor Auroville constitute

59 Ibid, at page 85

60 Ibid, at page 98

Areligious denomination and the teachings of Sri Aurobindo onlyrepresented his philosophy and not religion.”[61]

The sect was based on shared philosophy and not on commonset of religious beliefs or faith. Hence, the sect was held not to qualify tobe religious denomination.

63. The above tests have been followed in other decisions. InAvadhuta I, three judge bench of this Court held that the AnandaMargis of West Bengal constitute religious denomination under Article26, as they satisfy all the three conditions:

“11. Ananda Marga appears to satisfy all the three conditions viz.Cit is collection of individuals who have system of beliefs whichthey regard as conducive to their spiritual well-being; they have acommon organisation and the collection of these individuals has adistinctive name. Ananda Marga, therefore, can be appropriatelytreated as religious denomination, within the Hindu religion…”[62]

DIn Bramchari Sidheswar Shai v State of West Bengal[63], athree judge Bench of this Court adopted the tests re-stated in Mittal tohold that the followers of Ramakrishna constitute religious denomination:

“57… These Maths and Missions of Ramakrishna composed ofthe followers of principles of Hinduism as expounded, preachedEor practised by Ramakrishna as his disciples or otherwise form acult or sect of Hindu religion. They believe in the birth of sageRamakrishna in Dakshineswar as an Avatar of Rama and Krishnaand follow the principles of Hinduism discovered, expounded,preached and practised by him as those conducive to their spiritualwell-being as the principles of highest Vedanta which surpassedFthe principles of Vedanta conceived and propagated bySankaracharya, Madhavacharya and Ramanujacharya, who wereearlier exponents of Hinduism. Hence, as rightly held by theDivision Bench of the High Court, followers of Ramakrishna,who are collection of individuals, who adhere to systemGof beliefs as conducive to their spiritual well-being, whohave organised themselves collectively and who have an

61 Ibid, at pages 98-99

62 Ibid, at page 530

63 (1995) 4 SCC 646H

organisation of definite name as Ramakrishna Math orRamakrishna Mission could,in our view, be regarded as areligious denomination within Hindu religion...”[64](Emphasis supplied)

In Nallor Marthandam Vellalar v Commissioner, HinduReligious and Charitable Endowments[65] two judge Bench heldthat the Vellala community in Tamil Nadu does not constitute religiousdenomination. Justice Shivraj Patil emphasised that the common faith ofthe community must find its basis in “religion”:

“7. It is settled position in law, having regard to the various decisionsof this Court that the words “religious denomination” take theircolour from the word “religion”. The expression “religiousdenomination” must satisfy three requirements: (1) it must be acollection of individuals who have system of belief or doctrinewhich they regard as conducive to their spiritual well-being i.e. acommon faith; (2) common organisation; and (3) designation ofa distinctive name. It necessarily follows that the commonfaith of the community should be based on religion and inthat they should have common religious tenets and the basiccord which connects them, should be religion and notmerely considerations of caste or community or societalstatus…”[66] (Emphasis supplied)

Though formulated as three-pronged test, fourth elementemerges from the narrative. That is the position of common set ofreligious tenets. Religion is what binds religious denomination. Caste,community and social status do not bring into being religiousdenomination.

64. These precedents indicate the ingredients which must bepresent for set of individuals to be regarded as religious denomination.These are common faith, common organisation and distinctivename brought together under the rubric of religion. common threadwhich runs through them is the requirement of religious identity, whichis fundamental to the character of religious denomination.

64 Ibid, at pages 648-649

65 (2003) 10 SCC 712

66 Ibid, at page 716

AH. 1 Do the devotees of Lord Ayyappa constitute religiousdenomination?

65. Dr Abhishek Manu Singhvi, learned Senior Counsel submittedthat devotees who undertake forty one day penance form adenomination or section called “Ayyappaswamis” and the commonBorganisation is the organisation of ‘Ayyappas’. He submits that the‘Ayyappas’ believe in common faith and hold the belief that if theyundertake the penance of forty-one days in the manner prescribed, bymaintaining themselves pure and unpolluted, they would be one withLord Ayyappa. It has been submitted by Mr K Parasaran, learned SeniorCounsel that the devotees of Lord Ayyappa hold sacred religious beliefCthat the deity at Sabarimala is celibate - Naishtika Brahmachari - whopractises strict penance and the strictest form of celibacy, in which hecannot find himself in the presence of young women.

It has been submitted that Lord Ayyappa has female devotees.Hence, girls below the age of ten and women above the age of fiftyDwould be included as members of the denomination. However, it is unclearas to how they may be considered as members of denomination thatseeks their exclusion. The judgements of this Court lay down that thecollective of individuals must have common faith and set of beliefs thataid their spiritual well-being. It is implausible that women should leaveEthe membership of common faith, which is meant to be conducive totheir spiritual growth for period of forty years and resume membershipat the age of fifty. Such requirement takes away from the spiritualcharacter of the denomination.

66. The decision of the Kerala High Court in Mahendran broughtFon the record several facets which would in fact establish that Ayyappansdo not constitute religious denomination. While it is stated in theimpugned notification that women between the age of ten and fifty fiveare forbidden from entering the temple as matter of custom followedsince time immemorial, the stand taken by the Respondent before theKerala High Court differs to great extent. The Board had submittedGbefore the High Court:

“7. In olden days worshippers visit the temple only after observingpenance for 41 days. Since pilgrims to Sabarimala temple oughtto undergo ‘Vrathams’ or penance for 41 days, usually ladiesbetween the age of 10 and 50 will not be physically capable of

observing vratham for 41 days on physiological grounds. Thereligious practices and customs followed earlier had changed duringthe last 40 years particularly from 1950, the year in which therenovation of the temple took place after the “fire disaster”. Evenwhile the old customs prevailed, women used to visit thetemple though very rarely. The Maharaja of Travancoreaccompanied by the Maharani and the Divan had visitedthe temple in 1115 M.E. There was thus no prohibition forwomen to enter the Sabarimala temple in olden days, butwomen in large number were not visiting the temple. Thatwas not because of any prohibition imposed by Hindureligion but because of other non-religious factors. In recentyears, many worshippers had gone to the temple with ladyworshippers within the age group 10 to 50 for the first rice-feeding ceremony of their children (Chottoonu). The Boardused to issue receipts on such occasions on payment of theprescribed charges. change in the old custom and practicewas brought about by installing flag staff (Dhwajam) in1969. Another change was brought about by the introductionof Padipooja. These were done on the advice of the Thanthri.Changes were also effected in other practices. The practiceof breaking coconuts on the 18 steps was discontinued andworshippers were allowed to crack the coconuts only on astone placed below the eighteen sacred steps (PathinettaamPadi). These changes had been brought about in order to preservethe temple and the precinct in all its gaiety and sanctity.”[67]

(Emphasis supplied)

According to the above extract, in the “olden days” there was no‘religious prohibition’ on the entry of women in the Sabarimala temple.But women visited the temple in fewer numbers for ‘non-religious’reasons. The submission of the Board before the High Court revealsthat the prohibition has not been consistently followed even after thenotification was issued.

“8. For the last 20 years women irrespective of their agewere allowed to visit the temple when it opens for monthlypoojas. They were not permitted to enter the temple duringMandalam, Makaravilakku and Vishu seasons. The rule that

67 Ibid, at page 45

during these seasons no woman who is aged more than 10 andless than 50 shall enter the temple is scrupulously followed.[68]

9. The second respondent, former Devaswom Commissioner Smt.S. Chandrika in her counter-affidavit admitted that the first rice-feeding ceremony of her grandchild was conducted on the 1st ofBChingam 1166 at Sabarimala temple while she was holding thepost of Devaswom Commissioner…The restriction regarding theentry of women in the age group 10 to 50 is there only duringMandalam, Makaravilakku and Vishu. As per the stipulations madeby the Devaswom Board there is no restriction during theremaining period. When monthly poojas are conducted, womenCof all age groups used to visit Sabarimala. On the 1st of Chingam1166 the first rice-feeding ceremony of other children were alsoconducted at the temple. No V.I.P. treatment was given to hergrandchild on that day. The same facility was afforded to othersalso. Her daughter got married on 13-7-1984 and was not begettingDa child for considerably long time. She took vow that the firstrice-feeding ceremony would be performed at Sabarimala in caseshe begets child. Hence the reason why the first rice-feedingceremony of the child delivered by her was performed at thattemple. The entry of young ladies in the temple during monthlypoojas is not against the customs and practices followed in theEtemple…”[69] (Emphasis supplied)

67. The stand of the Board demonstrates that the practice ofexcluding women of particular age group has not been consistentlyfollowed. The basis of the claim that there exists religious denominationof Ayyapans is that the presiding deity is celibate and strict regime ofFforty one days is prescribed for worship. Women between the age groupsof ten and fifty would not for physiological reasons (it is asserted) beable to perform the penance associated with worship and hence theirexclusion is intrinsic to common faith. As indicated earlier, the exclusionof women between the ages of ten and fifty has not been shown to be aGuniform practice or tenet. The material before the Kerala High Court inMahendran in fact indicates that there was no such uniform tenet, downthe ages. Therefore, the claim that the exclusion of women is part of acommon set of religious beliefs held by those who worship the deity is

68 Ibid, at page 45

69 Ibid, at pages 45-46

not established. Above all, what is crucial to religious denomination isa religious sect or body. common faith and spiritual organisation mustbe the chord which unites the adherents together.

68. Justice Rajagopala Ayyangar in his concurring judgementinSaifuddin, emphasised the necessity of an identity of doctrines, creedsand tenets in ‘religious denomination’:

“52…The identity of religious denomination consists in the identityof its doctrines, creeds and tenets and these are intended to ensurethe unity of the faith which its adherents profess and the identityof the religious views are the bonds of the union which binds themtogether as one community.”

The judgement cited the ruling of Lord Halsbury in Free Churchof Scotlandv Overtoun[70] :

“In the absence of conformity to essentials, the denomination wouldnot be an entity cemented into solidity by harmonious uniformityof opinion, it would be mere incongruous heap of, as it were,grains of sand, thrown together without being united, each of theseintellectual and isolated grains differing from every other, and thewhole forming but nominally united while really unconnectedmass; fraught with nothing but internal dissimilitude, and mutualand reciprocal contradiction and dissension.”

69. Adherence to ‘common faith’ would entail that commonset of beliefs have been followed since the conception of the particularsect or denomination. distinctive feature of the pilgrimage is that pilgrimsof all religions participate in the pilgrimage on an equal footing. Muslimsand Christians undertake the pilgrimage. member of any religion canbe part of the collective of individuals who worship Lord Ayyappa.Religion is not the basis of the collective of individuals who worship thedeity. Bereft of religious identity, the collective cannot claim to beregarded as ‘religious denomination’. To be within the fold of Article26, denomination must be religious sect or body. Worship of thepresiding deity is not confined to adherents of particular religion. Coupledwith this is the absence of common spiritual organisation, which is anecessary element to constitute religious denomination. The temple atwhich worship is carried out is dedicated to the public and representstruly, the plural character of society. Everyone, irrespective of religious 70 (1904) AC 515, at page 616

Abelief, can worship the deity. The practices associated with the forms ofworship do not constitute the devotees into religious denomination.

Considering the inability of the collective of individuals to satisfythe judicially-enunciated requirements, we cannot recognise the set ofindividuals who refer to themselves as “Ayyappans” or devotees of LordBAyyappa as ‘religious denomination’.

I Article 17, “Untouchability” and the notions of purity

70. The petitioners and the learned Amicus Curiae Mr. RajuRamachandran urge that the denial of entry to women in the Ayyappatemple at Sabarimala, on the basis of customs, is manifestation ofC“untouchability” and is hence violative of Article 17 of the Constitution.The contention has been countered by the argument that Article 17 isspecifically limited to caste-based untouchability and cannot be expandedto include gender-based exclusion. Understanding these rival positionsrequires the Court to contemplate on the historical background behindthe insertion of Article 17 into the Constitution and the intent of theDframers.

71. Article 17 occupies unique position in our constitutionalscheme. The Article, which prohibits social practice, is located in thechapter on fundamental rights. The framers introduced Article 17, whichEprohibits discriminatory and inhuman social practice, in addition toArticles 14 and 15, which provide for equality and non-discrimination.While there has been little discussion about Article 17 in textbooks onconstitutional law, it is provision which has paramount socialsignificance both in terms of acknowledging the past and in defining thevision of the Constitution for the present and for the future. Article 17Fprovides:

“”Untouchability” is abolished and its practice in any form isforbidden. The enforcement of any disability arising out of“Untouchability” shall be an offence punishable in accordancewith law.”

Article 17 abolished the age old practice of “untouchability”, byforbidding its practice “in any form”. By abolishing “untouchability”, theConstitution attempts to transform and replace the traditional andhierarchical social order. Article 17, among other provisions of theConstitution, envisaged bringing into “the mainstream of society,Hindividuals and groups that would otherwise have remained at society’s

bottom or at its edges”[71]. Article 17 is the constitutional promise ofequality and justice to those who have remained at the lowest rung of atraditional belief system founded in graded inequality. Article 17 isenforceable against everyone – the State, groups, individuals, legalpersons, entities and organised religion – and embodies an enforceableconstitutional mandate. It has been placed on constitutional pedestal ofenforceable fundamental rights, beyond being only directive principle,for two reasons. First, “untouchability” is violative of the basic rights ofsocially backward individuals and their dignity. Second, the framersbelieved that the abolition of “untouchability” is constitutional imperativeto establish an equal social order. Its presence together and on an equalfooting with other fundamental rights, was designed to “give vulnerablepeople the power to achieve collective good”[72]. Article 17 is reflectionof the transformative ideal of the Constitution, which gives expression tothe aspirations of socially disempowered individuals and communities,and provides moral framework for radical social transformation. Article17, along with other constitutional provisions[73], must be seen as therecognition and endorsement of hope for better future for marginalizedcommunities and individuals, who have had their destinies crushed by afeudal and caste-based social order.

72. The framers of the Constitution left the term “untouchability”undefined. The proceedings of the Constituent Assembly suggest thatthis was deliberate. Shiva Rao has recounted[74] the proceedings of theSub-Committee on Fundamental Rights, which was undertaking the taskof preparing the draft provisions on fundamental rights. clause providingfor the abolition of “untouchability” was contained in K M Munshi’sdraft of Fundamental Rights. Clause 4(a) of Article III of his draft provided:

“Untouchability is abolished and the practice thereof is punishableby the law of the Union.”

Clause 1 of Article II of Dr Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person, family,religion or religious usage and custom is abolished.”

71 Granville Austin, The Indian Constitution: Cornerstone of Nation, Oxford UniversityPress (1999), at pages xii-xiii

72 Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford UniversityPress (2008), at page 15

73 Articles 15(2) and 23, The Constitution of India

74 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 202

AWhile discussing the clause on “untouchability” on 29 March 1947,the Sub-Committee on Fundamental Rights accepted Munshi’s draft witha verbal modification that the words “is punishable by the law of theUnion” be substituted by the expression “shall be an offence”.[75]Reflecting on the draft, the constitutional advisor, N Rau, remarkedthat the meaning of “untouchability” would have to be defined in the lawBwhich would be enacted in future to implement the provision. Bearing inmind the comments received, the Sub-Committee when it met on 14April 1947 to consider its draft report, decided to add the words “in anyform” after the word “Untouchability”. This was done specifically inorder “to make the prohibition of practice [of “untouchability”]Ccomprehensive”[76].Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on Fundamental Rights was dealt with by the AdvisoryCommittee, where Jagjivan Ram had an incisive query. While notingthat ordinarily, the term “untouchability” referred to practice prevalentDin Hindu society, he queried whether the intention of the committee wasto abolish untouchability among Hindus, Christians or other communitiesor whether it applied also to ‘inter-communal’ untouchability. Shiva Raohas recounted that the Committee came to the general conclusion that“the purpose of the clause was to abolish untouchability in all itsforms— whether it was untouchability within community or betweenEvarious communities”[77]. In the proceedings, K M Panikkar elaboratedthe point by observing that the clause intended to abolish variousdisabilities arising out of untouchability, irrespective of religion.[78] Heremarked:

“If somebody says that he is not going to touch me, that is not aFcivil right which I can enforce in court of law. There are certaincomplex of disabilities that arise from the practice of untouchabilityin India. Those disabilities are in the nature of civil obligations orcivil disabilities and what we have attempted to provide for is that

75 IbidG 76 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 202

77 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 202

78 Shiva Rao has remarked that Panikkar’s reference was to the depressed classeswho had been converted to Christianity in Travancore-Cochin and Malabar. See BShiva Rao, The Framing of India’s Constitution: Study, Indian Institution of PublicHAdministration (1968), at page 202

these disabilities that exist in regard to the individual, whether hebe Christian, Muslim or anybody else, if he suffers from thesedisabilities, they should be eradicated through the process of law.”[79]

Rajagopalachari suggested minor amendment of the clause, whichsought to make “the imposition of any disability of any kind or any suchcustom of ‘untouchability’” an offence. Taking note of the suggestionsand views expressed, the clause was redrafted as clause 6 in the InterimReport of the Advisory Committee as follows:

“”Untouchability” in any form is abolished and the imposition of

any disability on that account shall be an offence.”

The Interim Report was moved before the Constituent Assemblyby Vallabhbhai Patel on 29 April 1947. Commenting on Clause 6, onemember, Promatha Ranjan Thakur, observed that “untouchability” cannotbe abolished without abolishing the caste system, since “untouchability”is its symptom. Srijut Rohini Kumar Chaudhury, SC Banerjee andDhirendra Nath Datta sought clarification on the definition of the term“untouchability”. Chaudhary even suggested the following amendmentto define the term “untouchability”:

“‘Untouchability’ means any act committed in exercise ofdiscrimination on, grounds of religion, caste or lawful vocation oflife mentioned in clause 4.”

Opposing the amendment, K M Munshi stated that the word“untouchability” has been “put purposely within inverted commas in orderto indicate that the Union legislature when it defines ‘untouchability’ willbe able to deal with it in the sense in which it is normally understood”[80].Subsequently, only three amendments were moved. V Kamath soughtto insert the word “unapproachability” after the term “untouchability”and the words “and every” after the word “any”. S. Nagappa wanted tosubstitute the words “imposition of any disability” with the words“observance of any disability”. P Kunhiraman wanted to add the words“punishable by law” after the word “offence”. Vallabhbhai Patel, whohad moved the clause, considered the amendments to be unnecessaryand observed:

79 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 203

80 Constituent Assembly Debates (29 April 1947)

“The first amendment is by Mr. Kamath. He wants the additionof the word ‘unapproachability’. If untouchability is provided forin the fundamental rights as an offence, all necessary adjustmentswill be made in the law that may be passed by the Legislature. Ido not think it is right or wise to provide for such necessarycorollaries and, therefore, I do not accept this amendment.

The other amendment is by Mr. Nagappa who has suggested thatfor the words “imposition of any disability’’ the words “observanceof any disability’’ may be substituted. I cannot understand hispoint. I can observe one man imposing disability on another, andI will be guilty I have observed it. I do not think such extremethings should be provided for. The removal of untouchability isthe main idea, and if untouchability is made illegal or an offence,it is quite enough.

The next amendment was moved by Mr. Kunhiraman. He hassuggested the insertion of ‘punishable by law’. We have providedDthat imposition of untouchability shall be an offence. Perhaps hisidea is that an offence could be excusable, or sometimes an offencemay be rewarded. Offence is an offence; it is not necessary toprovide that offence should be punishable by law. Sir, I do notaccept this amendment either.

EThen, it was proposed that for the words ‘any form’, the words‘all forms’ be substituted. Untouchability in any form is legalphraseology, and no more addition is necessary.”[81]

After Patel’s explanation, HV Kamath and P Kunhiramanwithdrew their amendments, while the amendment moved by Nagappanwas rejected. Clause 6 was adopted by the Constituent Assembly.However, in the Draft Constitution (dated October 1947) prepared bythe constitutional advisor, N Rau, the third amendment moved byKunhiraman was adopted in effect and after the word “offence” thewords “which shall be punishable in accordance with law” wereinserted.[82] On 30-31 October 1947, the Drafting Committee considered

Gthe “untouchability” provision and redrafted it as article 11. It wasproposed[83] by Dr Ambedkar before the Constituent Assembly as follows:

81 Constituent Assembly Debates (29 April 1947)

82 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 204

83 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofHPublic Administration (1968), at page 205

[DR. DHANANJAYA Y CHANDRACHUD, J.]

“”Untouchability” is abolished and its practice in any form isforbidden. The enforcement of any disability arising out of“untouchability” shall be an offence punishable in accordance withlaw.”

In response to comments and representations received on theDraft Constitution, N Rau reiterated that Parliament would have toenact legislation, which would provide definition of “untouchability”.[84]When the draft Article 11 came for discussion before the ConstituentAssembly on 29 November 1948, one member, Naziruddin Ahmad, soughtto substitute it by the following Article:

“No one shall on account of his religion or caste be treated orregarded as an ‘untouchable’; and its observance in any formmay be made punishable by law.”[85]

The amendment proposed would obviously restrict untouchabilityto its religious and caste-based manifestations. Naziruddin Ahmadsupported his contention by observing that draft Article 11 prepared bythe Drafting Committee was vague, as it provides no legal meaning ofthe term “untouchability”. Stressing that the term was “rather loose”,Ahmad wanted the draft Article to be given “a better shape”. ProfessorKT Shah had similar concern. He observed:

“… I would like to point out that the term ‘untouchability’ isnowhere defined. This Constitution lacks very much in definitionclause; and consequently we are at great loss in understandingwhat is meant by given clause and how it is going to be giveneffect to. You follow up the general proposition about abolishinguntouchability, by saying that it will be in any form an offence andwill be punished at law. Now I want to give the House someinstances of recognised and permitted untouchabilitywhereby particular communities or individuals are for timeplaced under disability, which is actually untouchability.Weall know that at certain periods women are regarded asuntouchables. Is that supposed to be, will it be regarded as anoffence under this article? I think if I am not mistaken, I amspeaking from memory, but I believe I am right that in the Quranin certain ‘Sura’, this is mentioned specifically and categorically.

84 Shiva Rao, The Framing of India’s Constitution: Study, Indian Institution ofPublic Administration (1968), at page 204 85 Ibid, at page 205

Will you make the practice of their religion by the followers of theProphetan offence? Again there are many ceremonies inconnection with funerals and obsequies which make those whohave taken part in them untouchables for while. I do not wish toinflict lecture upon this House on anthropological or connectedmatters; but I would like it to be brought to the notice that thelack of any definition of the term ‘untouchability’ makes itopen for busy bodies and lawyers to make capital out of aclause like this, which I am sure was not the intention ofthe Drafting Committee to make.”[86]

(Emphasis supplied)

Dr Ambedkar neither accepted Naziruddin Ahmad’s amendmentnor replied to the points raised by KT Shah. The amendment proposedby Ahmad was negatived by the Constituent Assembly and the draftArticle as proposed by Dr Ambedkar was adopted. Draft Article 11 hasbeen renumbered as the current Article 17 of the Constitution.

The refusal of the Constituent Assembly to provide any definitemeaning to “untouchability” (despite specific amendments and proposalsvoicing the need for definition) indicates that the framers did not wishto make the term restrictive. The addition of the words “in any form” inthe initial draft prepared by the Sub-Committee on Fundamental RightsEis an unambiguous statement to the effect that the draftspersons wantedto give the term “untouchability” broad scope. reconstruction of theproceedings of the Constituent Assembly suggests that the membersagreed to the Constitutional Advisor’s insistence that the law which is tobe enacted for implementing the provision on “untouchability” wouldprovide definition of the term. The rejection of Naziruddin Ahmad’sFamendment by the members of the Constituent Assembly reflects aconscious effort not to limit the scope of the legislation to be enacted.

73. In order to fully understand the constitutional philosophyunderlying the insertion of Article 17, this Court must also deal with onespecific instance during the proceedings of the Constituent Assembly.GAs mentioned above, while Professor KT Shah gave specific examplesof acts of “untouchability”, including that of women being considereduntouchables “in certain periods”, and argued for specific definition,Dr Ambedkar furnished no reply. This raises the question as to why DrAmbedkar did not accept Naziruddin Ahmad’s amendment and refusedH 86 Constituent Assembly Debates (29 November 1948)

to reply to KT Shah’s remarks. One member of the Constituent Assembly,Monomohan Das, remarked during the debate on the draft Article on“untouchability”:

“…It is an irony of fate that the man who was driven from oneschool to another, who was forced to take his lessons outside theclass room, has been entrusted with this great job of framing theConstitution of free and independent India, and it is he who hasfinally dealt the death blow to this custom of untouchability, ofwhich he was himself victim in his younger days.”[87]

The answers lie in the struggle for social emancipation and justicewhich was the defining symbol of the age, together with the movementfor attaining political freedom but in radical transformation of societyas well. To focus on the former without comprehending the latter wouldbe to miss the inter-connected nature of the document as compact forpolitical and social reform.

74. Reading Dr Ambedkar compels us to look at the other side ofthe independence movement. Besides the struggle for independence fromthe British rule, there was another struggle going on since centuries andwhich still continues. That struggle has been for social emancipation. Ithas been the struggle for the replacement of an unequal social order. Ithas been fight for undoing historical injustices and for rightingfundamental wrongs with fundamental rights. The Constitution of Indiais the end product of both these struggles. It is the foundational document,which in text and spirit, aims at social transformation namely, the creationand preservation of an equal social order. The Constitution representsthe aspirations of those, who were denied the basic ingredients of adignified existence. It contains vision of social justice and lays down aroadmap for successive governments to achieve that vision. Thedocument sets out moral trajectory, which citizens must pursue for therealization of the values of liberty, equality, fraternity and justice. It is anassurance to the marginalized to be able to rise to the challenges ofhuman existence. The Constituent Assembly was enriched by the sharedwisdom and experiences gathered by its members from the ongoingsocial struggle for equality and justice. In particular, as the Chairman ofthe Drafting Committee, Dr Ambedkar brought with himself ideas, valuesand scholarship, which were derived from the experiences and struggleswhich singularly were his own. He drew as well from other social 87 Constituent Assembly Debates (29 November 1948)

Areformers in their movements against social injustice. Some of theseexperiences and literature ought to be discussed in order to understandthe vision behind the philosophy of the Constitution and, particularly,Article 17.

Having himself faced discrimination and stigmatization, DrBAmbedkar had launched an active movement against “untouchability”.In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancingthe rights of those who were neglected by society. Over the followingyears, Dr Ambedkar organised marches demanding rights foruntouchables to drinking water from public resources, and their right toenter temples. These movements were part of the larger demand ofCequality for the untouchables.

In his profound work, “Annihilation of Caste”, while advocatingthe destruction of the caste system, Dr Ambedkar recorded some of the“untouchability” practices by which the Untouchables were subjectedto inhuman treatment:D

“Under the rule of the Peshwas in the Maratha country, theUntouchable was not allowed to use the public streets if Hinduwas coming along, lest he should pollute the Hindu by his shadow.The Untouchable was required to have black thread either onhis wrist or around his neck, as sign or mark to prevent theEHindus from getting themselves polluted by his touch by mistake.In Poona, the capital of the Peshwa, the Untouchable was requiredto carry, strung from his waist, broom to sweep away frombehind himself the dust he trod on, lest Hindu walking on thesame dust should be polluted. In Poona, the Untouchable wasFrequired to carry an earthen pot hung around his neck whereverhe went—for holding his spit, lest his spit falling on the earth shouldpollute Hindu who might unknowingly happen to tread on it.”[88]

His autobiographical notes published after his death with the title“Waiting for Visa”[89], contain reminiscences drawn by Dr AmbedkarGon his own experiences with “untouchability”. Dr Ambedkar mentionsseveral experiences from his childhood. No barber would consent to

88 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government ofMaharashtra, Vol. 1 (2014), at pages 39

89 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government ofMaharashtra, Vol. 12 (2014), at pages 661-691H

shave an untouchable. During his days as an Officer in Baroda State, hewas denied place to stay in quarters.In another note, which washandwritten by Dr Ambedkar and was later published with the title“Frustration”, he wrote:

“The Untouchables are the weariest, most loathed and the mostmiserable people that history can witness. They are spent andsacrificed people… To put it in simple language the Untouchableshave been completely overtaken by sense of utter frustration.As Mathew Arnold says “life consists in the effort to affirm one’sown essence; meaning by this, to develop one’s own existencefully and freely... Failure to affirm ones own essence is simplyanother name for frustration… “ Many people suffer suchfrustrations in their history. But they soon recover from the blightand rise to glory again with new vibrations. The case of theUntouchables stands on different footing. Their frustration isfrustration for ever. It is unrelieved by space or time. In this respectthe story of the Untouchables stands in strange contrast with thatof the Jews.”[90]

In his writing titled “Slaves and Untouchables”[91], he described“untouchability” to be worse than slavery. In his words:

“.. untouchability is obligatory. person is permitted to hold anotheras his slave. There is no compulsion on him if he does not want to.But an Untouchable has no option. Once he is born an Untouchable,he is subject to all the disabilities of an Untouchable…[U]ntouchability is an indirect and therefore the worst form ofslavery… It is enslavement without making the Untouchablesconscious of their enslavement.”[92]

Dr Ambedkar’s thoughts and ideas bear an impact of other socialreformers who preceded him, in particular Jyotirao Phule and SavitribaiPhule. In 1873, in the preface to his book titled “Gulamgiri” (Slavery),Jyotirao Phule made stinging critique on the cause of “untouchability”:

“[The] Sudras and Atisudras were regarded with supreme hatredand contempt, and the commonest rights of humanity were denied

90 Ibid, at pages 733-735

91 Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government ofMaharashtra, Vol. 5 (2014), at pages 9-18

92 Ibid, at page 15

A[to] them. Their touch, nay, even their shadow, is deemed apollution. They are considered as mere chattels, and their life ofno more value than that of meanest reptile… How far the Brahminshave succeeded in their endeavours to enslave the minds of theSudras and Atisudras... For generations past [the Sudras andAtisudras] have borne these chains of slavery and bondage…BThis system of slavery, to which the Brahmins reduced the lowerclasses is in no respect inferior to that which obtained few yearsago in America. In the days of rigid Brahmin dominancy, so latelyas that of the time of the Peshwa, my Sudra brethren had evengreater hardships and oppression practiced upon them than whatCeven the slaves in America had to suffer. To this system of selfishsuperstition and bigotry, we are to attribute the stagnation and allthe evils under which India has been groaning for many centuriespast.”[93]

Savitribai Phule expresses the feeling of resentment among theDmarginalized in form of poem:

“Arise brothers, lowest of low shudras

wake up, arise.

Rise and throw off the shackles

put by custom upon us.Brothers, arise and learn…We will educate our childrenand teach ourselves as well.We will acquire knowledgeof religion and righteousness.

Let the thirst for books and learning

dance in our every vein.

Let each one struggle and forever erase

our low-caste stain.”[94]

93 India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyied.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88 94 Ibid, at page 88H

75. The consistent discourse flowing through these writings reflectsa longstanding fight against subjugation and of atrocities undergone bythe victims of an unequal society. Article 17 is constitutional recognitionof these resentments. The incorporation of Article 17 into the Constitutionis symbolic of valuing the centuries’ old struggle of social reformers andrevolutionaries. It is move by the Constitution makers to find catharsisin the face of historic horrors. It is an attempt to make reparations tothose, whose identity was subjugated by society. Article 17 is revoltagainst social norms, which subjugated individuals into stigmatisedhierarchies. By abolishing “untouchability”, Article 17 protects them froma repetition of history in free nation. The background of Article 17 thuslies in protecting the dignity of those who have been victims ofdiscrimination, prejudice and social exclusion.

Article 17 must be construed from the perspective of its positionas powerful guarantee to preserve human dignity and against thestigmatization and exclusion of individuals and groups on the basis ofsocial hierarchism. Article 17 and Articles 15(2) and 23, provide thesupporting foundation for the arc of social justice. Locating the basis ofArticle 17 in the protection of dignity and preventing stigmatization andsocial exclusion, would perhaps be the apt answer to Professor KT Shah’sunanswered queries. The Constitution has designedly left untouchabilityundefined. Any form of stigmatization which leads to social exclusion isviolative of human dignity and would constitute form of “untouchability”.The Drafting Committee did not restrict the scope of Article 17. Theprohibition of “untouchability”, as part of the process of protecting dignityand preventing stigmatization and exclusion, is the broader notion, whichthis Court seeks to adopt, as underlying the framework of these articles.

76. The practice of “untouchability”, as pointed out by the membersof the Constituent Assembly, is symptom of the caste system. The rootcause of “untouchability” is the caste system.[95] The caste systemrepresents hierarchical order of purity and pollution enforced by social

95 In his paper on “Castes in India: Their Mechanism, Genesis and Development”(1916) presented at the Columbia University, Dr Ambedkar wrote: “The caste problemis vast one, both theoretically and practically. Practically, it is an institution thatportends tremendous consequences. It is local problem, but one capable of muchwider mischief, for as long as caste in India does exist, Hindus will hardly intermarry orhave any social intercourse with outsiders; and if Hindus migrate to other regions onearth, Indian caste would become world problem”. See Dr. Babasaheb Ambedkar:Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014),at pages 5-6

Acompulsion. Purity and pollution constitute the core of caste. While thetop of the caste pyramid is considered pure and enjoys entitlements, thebottom is considered polluted and has no entitlements. Ideas of “purityand pollution” are used to justify this distinction which is self-perpetuality.The upper castes perform rituals that, they believe, assert and maintaintheir purity over lower castes. Rules of purity and pollution are used toBreinforce caste hierarchies.[96] The notion of “purity and pollution”influences who people associate with, and how they treat and are treatedby other people. Dr Ambedkar’s rejection of privileges associated withcaste, in “Annihilation of Caste”[97], is hence battle for human dignity.Dr Ambedkar perceived the caste system to be violative of individualCdignity.[98]In his last address to the Constituent Assembly, he stated thatthe caste system is contrary to the country’s unity and integrity, anddescribed it as bringing “separation in social life”.[99] Individual dignitycannot be based on the notions of purity and pollution. “Untouchability”against lower castes was based on these notions, and violated their dignity.

It is for this reason that Article 17 abolishes “untouchability”, whichDarises out of caste hierarchies. Article 17 strikes at the foundation of thenotions about “purity and pollution”.

77. Notions of “purity and pollution”, entrenched in the castesystem, still continue to dominate society. Though the Constitutionabolished untouchability and other forms of social oppression for theEmarginalised and for the Dalits, the quest for dignity is yet daily struggle.The conditions that reproduce “untouchability” are still in existence.Though the Constitution guarantees to every human being dignity asinalienable to existence, the indignity and social prejudices which Dalitsface continue to haunt their lives. Seventy years after independence, aFsection of Dalits has been forced to continue with the indignity of manualscavenging. In recent work, “Ants Among Elephants: An UntouchableFamily and the Making of Modern India”, Sujatha Gidla describes theindignified life of manual scavenger:

“As their brooms wear down, they have to bend their backs lowerand lower to sweep. When their baskets start to leak, the [human]G 96 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, StuntedDevelopment and the Costs of Caste, Harper Collins (2017), at pages 74-79 97 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Governmentof Maharashtra, Vol. 1 (2014), at pages 23-96

98 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Governmentof Maharashtra, Vol. 12 (2014), at pages 661-691.H 99 Constituent Assembly Debates (25 November 1949)

shit drips down their faces. In the rainy season, the filth runs allover these people, onto their hair, their noses, their moths.Tuberculosis and infectious diseases are endemic among them.”[100]

The demeaning life of manual scavengers is narrated by DianeCoffey and Dean Spears in “Where India Goes: Abandoned Toilets,Stunted Development and the Costs of Caste”[101]. The social reality ofIndia is that manual scavenging castes face two-fold discrimination-one, by society, and other, within the Dalits:

“[M]anual scavengers are considered the lowest-ranking amongthe Dalit castes. The discrimination they face is generally evenworse than that which Dalits from non-scavenging castes face.”[102]

Manual scavengers have been the worst victims of the system of“purity and pollution”. Article 17 was promise to lower castes thatthey will be free from social oppression. Yet for the marginalizedcommunities, little has changed. The list of the daily atrocities committedagainst Dalits is endless. Dalits are being killed for growing moustache,daring to watch upper-caste folk dances, allegedly for owning and ridinga horse and for all kinds of defiance of social order that deprives themof essential humanity.[103]The Dalits and other oppressed sections ofsociety have been waiting long years to see the quest for dignity fulfilled.Security from oppression and an opportunity to lead dignified life is anissue of existence for Dalits and the other marginalized. Post-independence, Parliament enacted legislations[104] to undo the injusticedone to oppressed social groups. Yet the poor implementation[105] of lawresults in continued denial which the law attempted to remedy.

78. Article 17 is social revolutionary provision. It has certainfeatures. The first is that the Article abolishes “untouchability”. Inabolishing it, the Constitution strikes at the root of the institution of

100 Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making ofModern India, Harper Collins (2017), at page 114

101 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, StuntedDevelopment and the Costs of Caste, Harper Collins (2017), at pages 74-79

102 Ibid, at page 78

103 Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017), availableat https://www.outlookindia.com/magazine/story/death-for-moustache/299405

104 Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989;Prohibition of Manual Scavenging Act, 2013

105 As observed in National Campaign for Dalit Human Rights v. Union of India, (2017)

2 SCC 432

Auntouchability. The abolition of untouchability can only be fulfilled bydealing with notions which it encompasses. Notions of “purity andpollution” have been its sustaining force. In abolishing “untouchability”,the Constitution attempts dynamic shift in the social orderings uponwhich prejudice and discrimination were institutionalized. The first featureis moral re-affirmation of human dignity and of society governed byBequal entitlements. The second important feature of Article 17 is thatthe practice of “untouchability” is forbidden. The practice is an emanationof the institution which sustains it. The abolition of the practice as amanifestation is consequence of the abolition of the institution of“untouchability”. The third significant feature is that the practice ofCuntouchability” is forbidden “in any form”. The “in any form” prescriptionhas profound significance in indicating the nature and width of theprohibition. Every manifestation of untouchability without exception lieswithin the fold of the prohibition. The fourth feature of Article 17 is thatthe enforcement of disabilities founded upon “untouchability” shall

constitute an offence punishable in accordance with law. The long armsDof the criminal law will lend teeth to the enforcement of the prohibition.

79. The Constitution has carefully eschewed definition of“untouchability”. The draftspersons realized that even broadly coucheddefinition may be restrictive. definition would become restrictive if thewords used or the instances depicted are not adequate to cover theEmanifold complexities of our social life through which prejudice anddiscrimination is manifest. Hence, even though the attention of theframers was drawn to the fact that “untouchability” is not practicereferable only to the lowest in the caste ordering but also was practicedagainst women (and in the absence of definition, the prohibition wouldFcover all its forms), the expression was designedly left undefined. TheConstitution uses the expression “untouchability” in inverted comas. Theuse of punctuation mark cannot be construed as intent to circumscribethe constitutional width of the expression. The historical backdrop to theinclusion of the provision was provided by centuries of subjugation,discrimination and social exclusion. Article 17 is an intrinsic part of theGsocial transformation which the Constitution seeks to achieve. Hence inconstruing it, the language of the Constitution should not be ascribed acurtailed meaning which will obliterate its true purpose. “Untouchability”in any form is forbidden. The operation of the words used by theConstitution cannot be confined to particular form or manifestation ofH“untouchability”. The Constitution as constantly evolving instrument

has to be flexible to reach out to injustice based on untouchability, in anyof its forms or manifestations. Article 17 is powerful guarantee againstexclusion. As an expression of the anti-exclusion principle, it cannot beread to exclude women against whom social exclusion of the worst kindhas been practiced and legitimized on notions of purity and pollution.

80. The provisions of Article 17 have been adverted to in judicialdecisions. In Devarajiah v Padmanna[106], learned single judge ofthe Mysore High Court observed that the absence of definition of theexpression “untouchability in the Constitution and the use of invertedcommas indicated that “the subject-matter of that Article is notuntouchability in its literal or grammatical sense but the practice as it haddeveloped historically in this country”. The learned single judge held :

“18.Comprehensive as the word ‘untouchables’ in the Act isintended to be, it can only refer to those regarded as untouchablesin the course of historical development. literal construction ofthe term would include persons who are treated as untouchableseither temporarily or otherwise for various reasons, such as theirsuffering from an epidemic or contagious disease or on accountof social observances such as are associated with birth or deathor on account of social boycott resulting from caste or otherdisputes.”[107]

In Jai Singh v Union of India[108],a Full Bench of the RajasthanHigh Court followed the decision of the Mysore High Court in Devarajiahwhile upholding the constitutional validity of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

In State of Karnataka v Appa Balu Ingale[109], two judge Benchof this Court traced the origins of untouchability. The court held that“untouchability is an indirect form of slavery and only an extension ofcaste system”. The court held:

“36. The thrust of Article 17 and the Act is to liberate the societyfrom blind and ritualistic adherence and traditional beliefs whichlost all legal or moral base. It seeks to establish new ideal forsociety – equality to the Dalits, on par with general public, absence

106 AIR 1958 Mys 84 107 Ibid, at page 85 108 AIR 1993 Raj 177 109 1995 Supp (4) SCC 469

[2018] 9 S.C.R.

Aof disabilities, restrictions or prohibitions on grounds of caste orreligion, availability of opportunities and sense of being aparticipant in the mainstream of national life.”[110]

In more recent decision in Adi Saiva Sivachariyargal NalaSangam v Government of Tamil Nadu[111],a two judge Bench construedBArticle 17 in the context of exclusionary caste based practices:

“47.The issue of untouchability raised on the anvil of Article 17 ofthe Constitution stands at the extreme opposite end of the pendulum.Article 17 of the Constitution strikes at caste-based practices built

on superstitions and beliefs that have no rationale or logic…”CWhile these judgments focus on “untouchability” arising out ofcaste based practices, it is important to note that the provisions of Article17 were enforced by means of the Protection of Civil Rights Act 1955[earlier known as the Untouchability (Offences) Act]. Clauses (a) and(b) of Section 3 penalise the act of preventing any person from enteringDa place of public worship and from worshiping or offering prayers insuch place. Section 3 reads thus:

“Section 3 - Punishment for enforcing religious disabilities:

Whoever on the ground of “untouchability” prevents anyperson—E

(a) from entering any place of public worship which is opento other persons professing the same religion of any sectionthereof,as such person; or

(b) from worshipping or offering prayers or performing anyreligious service in any place of public worship, or bathing in,For using the waters of, any sacred tank, well, spring or water-course [river or lake or bathing at any ghat of such tank, water-course, river or lake] in the same manner and to the sameextent as is permissible to the other persons professingthe same religion or any section thereof, as such person,

[shall be punishable with imprisonment for term of not less thanone month and not more than six months and also with fine whichshall be not less than one hundred rupees and not more than fivehundred rupees].

110 Ibid, at page 486H 111 (2016) 2 SCC 725

[DR. DHANANJAYA Y CHANDRACHUD, J.]

Explanation: For the purposes of this section and section 4 personsprofessing the Buddhist, Sikh or Jaina religion or persons professingthe Hindu religion in any of its forms or developments includingVirashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana,Arya Samaj and the Swaminarayan Sampraday shall be deemedto be Hindus.”

(Emphasis supplied)

Section 4 contains punishment for enforcing social disability:

“Section 4 - Punishment for enforcing social disabilities:

Whoever on the ground of “untouchability” enforces against anyperson any disability with regard to—

(v) the use of, or access to, any place used for charitable or apublic purpose maintained wholly or partly out of State funds ordedicated to the use of the general public or [any sectionthereof]; or

(x) the observance of any social or religious custom, usage orceremony or [taking part in, or taking out, any religious,social or cultural procession]; or

[Explanation.—For the purposes of this section, “enforcement ofany disability” includes any discrimination on the ground of“untouchability”.].”

(Emphasis supplied)

Section 7 provides for punishment for other offences arising outof untouchability. Section 7(1)(c) criminalises the encouragement andincitement to the practice of untouchability in “any form whatsoever”.Explanation II stipulates that:

“[Explanation II.—For the purpose of clause (c) person shall bedeemed to incite or encourage the practice of “untouchability”—

(i) if he, directly or indirectly, preaches “untouchability” or itspractice in any form; or

(ii) if he justifies, whether on historical, philosophical orreligious grounds or on the ground of any tradition ofthe caste system or on any other ground, the practice of“untouchability” in any form.]”

(Emphasis supplied)

A“Untouchability” as such is not defined. Hence, reference to“untouchability” must be construed in the context of the provisions ofthe Civil Rights Act to include social exclusions based on notions of“purity and pollution”. In the context of political freedom, Articles 14, 19and 21 represent as it were, golden triangle of liberty. On differentplane, in facing up to the struggle against exclusion or discrimination inBpublic places of worship, Articles 15(2)(b), 17 and 25(2)(b) constitutethe foundation. The guarantee against social exclusion based on notionsof “purity and pollution” is an acknowledgment of the inalienable dignityof every individual. Dignity as facet of Article 21 is firmly entrenchedafter the decision of nine Judges in K S Puttaswamy v Union of IndiaC(“Puttaswamy”)[112].

81. The caste system has been powered by specific forms ofsubjugation of women.[113] The notion of “purity and pollution” stigmatizesthe menstruation of women in Indian society. In the ancient religioustexts[114] and customs, menstruating women have been considered asDpolluting the surroundings. Irrespective of the status of woman,menstruation has been equated with impurity, and the idea of impurity isthen used to justify their exclusion from key social activities.

Our society is governed by the Constitution. The values ofconstitutional morality are non-derogable entitlement. Notions of “purityEand pollution”, which stigmatize individuals, can have no place in aconstitutional regime. Regarding menstruation as polluting or impure,and worse still, imposing exclusionary disabilities on the basis of menstrualstatus, is against the dignity of women which is guaranteed by theConstitution. Practices which legitimise menstrual taboos, due to notionsof “purity and pollution”, limit the ability of menstruating women to attainFthe freedom of movement, the right to education and the right of entry to

112 (2017) 10 SCC 1

113 In his 1916 paper, “Castes in India: Their Mechanism, Genesis and Development”,Dr Ambedkar speaks about the practice of subjugating and humiliating women for thepurpose of reinforcement of the caste system. He advances that women have been usedas medium to perpetuate caste system by citing the specific examples of Sati (theGpractice of burning of the widow on the funeral pyre of her deceased husband), enforcedwidowhood by which widow is not allowed to remarry, and pre-pubertal marriage ofgirls. He believed that the caste-gender nexus was the main culprit behind the oppressionof the lower castes and women and that it had to be uprooted. SeeDr. BabasahebAmbedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra(2014), Vol. 1, at pages 3-22 114 ManusmritiHplaces of worship and, eventually, their access to the public sphere.Women have right to control their own bodies. The menstrual status ofa woman is an attribute of her privacy and person. Women have aconstitutional entitlement that their biological processes must be freefrom social and religious practices, which enforce segregation andexclusion. These practices result in humiliation and violation of dignity.Article 17 prohibits the practice of “untouchability”, which is based onnotions of purity and impurity, “in any form”. Article 17 certainly appliesto untouchability practices in relation to lower castes, but it will alsoapply to the systemic humiliation, exclusion and subjugation faced bywomen. Prejudice against women based on notions of impurity andpollution associated with menstruation is symbol of exclusion. Thesocial exclusion of women, based on menstrual status, is but form ofuntouchability which is an anathema to constitutional values. As anexpression of the anti-exclusion principle, Article 17 cannot be read toexclude women against whom social exclusion of the worst kind hasbeen practiced and legitimized on notions of purity and pollution. Article17 cannot be read in restricted manner. But even if Article 17 were tobe read to reflect particular form of untouchability, that article will notexhaust the guarantee against other forms of social exclusion. Theguarantee against social exclusion would emanate from other provisionsof Part III, including Articles 15(2) and 21.Exclusion of women betweenthe age groups of ten and fifty, based on their menstrual status, fromentering the temple in Sabarimala can have no place in constitutionalorder founded on liberty and dignity.

82. The issue for entry in temple is not so much about the rightof menstruating women to practice their right to freedom of religion, asabout freedom from societal oppression, which comes from stigmatizedunderstanding of menstruation, resulting in “untouchability”. Article 25,which is subject to Part III provisions, is necessarily therefore subject toArticle 17. To use the ideology of “purity and pollution” is violation ofthe constitutional right against “untouchability”.

J The ultra vires doctrine

83. Section 2 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Act 1965 provides thus:

“2. Definitions – In this Act, unless the context otherwise requires,-

(a) “Hindu” includes person professing the Buddhist, Sikh orJaina religion;

ABC

A(b) “place of public worship” means place, by whatever nameknown or to whomsoever belonging, which is dedicated to, or forthe benefit of, or is used generally by, Hindus or any section orclass thereof, for the performance of any religious service or foroffering prayers therein, and includes all lands and subsidiaryshrines, mutts, devasthanams, namaskara mandapams andBnalambalams, appurtenant or attached to any such place, and alsoany sacred tanks, wells, springs and water courses the waters ofwhich are worshipped or are used for bathing or for worship, butdoes not include “sreekoil”;

(c) “section or class”includes any division, sub-division, caste, sub-Ccaste, sect or denomination whatsoever.”

Section 2(c) provides an inclusive definition of the expression“section or class”. As principle of statutory interpretation, the term“includes” is used to expand the scope of the words or phrases whichaccompany. When “includes” is employed in definition clause, theDexpression must be given broad interpretation to give effect to thelegislative intent. “Includes” indicates that the definition must not berestricted.

84. In Ardeshir Bhiwandiwala v State of Bombay,[115] aConstitution Bench of this Court considered whether the Petitioner’sEsalt works could be included within the definition of ‘factory’ in Section2(m) of the Factories Act, 1948. Section 2(m) defines ‘factory’ as “anypremises including the precincts thereof”. This Court rejected theappellant’s claim that the salt works could not have precincts, beingopen lands and not premises:F

“6.The expression “premises including precincts” does notnecessarily mean that the premises must always have precincts.Even buildings need not have any precincts. The word“including” is not term restricting the meaning of theword “premises” but is term which enlarges the scope ofGthe word “premises”. We are therefore of opinion that eventhis contention is not sound and does not lead to the only conclusionthat the word “premises” must be restricted to mean buildingsand be not taken to cover open land as well.”(Emphasis supplied)

In CIT v Taj Mahal Hotel, Secunderabad[116] two judge Benchof this Court considered whether sanitary and pipeline fittings would fallwithin the definition of ‘plant’ under Section 10(5) of the Income TaxAct, 1922. Section 10(5) of the Act provided inter alia that in Section10(2) the word “plant” includes “vehicles, books, scientific apparatusand surgical equipment purchased for the purpose of the business,profession or vocation”. While answering the above question in theaffirmative, this Court held that:

“6.The word “includes” is often used in interpretationclauses in order to enlarge the meaning of the words orphrases occurring in the body of the statute. When it is soused, those words and phrases must be construed ascomprehending not only such things as they signify according totheir nature and import but also those things which the interpretationclause declares that they shall include.”[117] (Emphasis supplied)

In Geeta Enterprises v State of U P,[118] three judge Bench ofthis Court considered whether Section 2(3) of the United ProvincesEntertainment and Betting Tax Act, 1937 which provided that“entertainment includes any exhibitional performance, amusement, gameor sport to which persons are admitted for payment”, would includevideo shows which were being played on video machines at the premisesof the Petitioner. Affirming the above position, this Court cited withapproval, the following interpretation of the word “includes” by theAllahabad High Court in Gopal Krishna Agrawal v State of U P[119]:

“The context in which the word ‘includes’ has been used in thedefinition clauses of the Act does not indicate that the legislatureintended to put restriction or limitation on words like‘entertainment’ or ‘admission to an entertainment’ or ‘paymentfor admission’.”

The same view was expressed by three judge Bench in RegionalDirector, ESIC v High Land Coffee Works of P.F.X. Saldanha &Sons[120].

116 (1971) 3 SCC 550117 Ibid, at pages 552-553 118 (1983) 4 SCC 202 119 (1982) All. L.J. 607 120 (1991) 3 SCC 617

A85. The use of the term ‘includes’ in Section 2(c) indicates thatthe scope of the words ‘section or class’ cannot be confined only to‘division’, ‘sub-division’, ‘caste’, ‘sub-caste’, ‘sect’ or ‘denomination’.‘Section or class’, would be susceptible to broad interpretation thatincludes ‘women’ within its ambit. Section 2(b) uses the expression“Hindus or any section or class thereof”. Plainly, individuals who professBand practise the faith are Hindus. Moreover, every section or class ofHindus is comprehended within the expression. That must necessarilyinclude women who profess and practise the Hindu religion. The wideambit of the expression “section or class” emerges from Section 2(c).Apart from the inclusive definition, the expression includes anydivision,Csub-division, caste, sub-caste, sect or denomination whatsoever. Womenconstitute section or class. The expression ‘section or class’ mustreceive the meaning which is ascribed to it in common parlance. Hence,looked at from any perspective, women would be comprehended withinthat expression.DThe long title of the Act indicates that its object is “to make betterprovisions for the entry of all classes and sections of Hindus into placesof public worship”. The long title is part of the Act and is permissibleaid to construction.[121] The Act was enacted to remedy the restriction onthe right of entry of all Hindus in temples and their right to worship inthem. The legislation is aimed at bringing about social reform. TheElegislature endeavoured to strike at the heart of the social evil of exclusionand sought to give another layer of recognition and protection to thefundamental right of every person to freely profess, practice andpropagate religion under Article 25. Inclusion of women in the definitionof ‘section and class’ in Section 2(c) furthers the object of the law, and

Frecognizes the right of every Hindu to enter and worship in temple. Itis an attempt to pierce through imaginary social constructs formed aroundthe practice of worship, whose ultimate effect is exclusion. just andproper construction of Section 2(c) requires that women be includedwithin the definition of ‘section or class’.

G86. The notifications dated 21 October 1955 and 27 November1956 were issued by the Travancore Devaswom Board before the 1965Act was enacted. The notifications were issued by the Board underSection 31 of the Travancore-Cochin Hindu Religious Institutions Act1950 (“1950 Act”). Section 31 of the 1950 Act reads:

121 Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139

“Management of Devaswoms.- Subject to the provisions of thisPart and the rules made thereunder the Board shall manage theproperties and affairs of the Devaswoms, both incorporated andunincorporated, as heretofore, and arrange for the conduct of thedaily worship and ceremonies and of the festivals in every templeaccording to its usage.”

Both the notifications dated 21 October 1955 and 27 November1956 have the same effect, which is the total prohibition on the entry ofwomen between the ages of ten and fifty into the Sabarimala temple.According to the notifications, the entry of women between the ages often and fifty is in contravention of the customs and practice of the temple.

Section 3 throws open places of public worship to all sections andclasses of Hindus:

“3. Places of public worship to be open to all sections and classesof Hindus –

Notwithstanding anything to the contrary contained in anyother law for the time being in force or any custom or usageor any instrument having effect by virtue of any such law orany decree or order of court, every place of public worship whichis open to Hindus generally or to any section or class thereof,shall be open to all sections and classes of Hindus; and no Hinduof whatsoever section or class shall, in any manner, be prevented,obstructed or discouraged from entering such place of publicworship, or from worshipping or offering prayers thereat, orperforming any religious service therein, in the like manner and tothe like extent as any other Hindu of whatsoever section or classmay so enter, worship, pray or perform:

Provided that in the case of place of public worship which is atemple founded for the benefit of any religious denomination orsection thereof, the provisions of this section shall be subject tothe right of that religious denomination or section, as the casemay be, to manage its own affairs in matters of religion.”

(Emphasis supplied)

Section 3 begins with non-obstante clause, which overrides anycustom or usage or any instrument having effect by virtue of any suchlaw. Every place of public worship, which is open to Hindus or to anysection or class of Hindus generally, shall be open to all sections and

Aclasses of Hindus. No Hindu of any section or class whatsoever, shallbe prevented, obstructed or discouraged from entering place of publicworship or from worshipping or offering prayers or performing anyreligious service in that place of public worship. Hence, all places ofpublic worship which are open to Hindus or to any section or class ofHindus generally have to be open to all sections and classes of HindusB(including women). Hindu women constitute ‘section or class’ underSection 2(c).

The proviso to Section 3 creates an exception by providing that ifthe place of public worship is temple which is founded for the benefitof any religious denomination or section thereof, Section 3 would beCsubject to the right of that religious denomination or section to manageits own affairs in matters of religion. The proviso recognises theentitlement of religious denomination to manage its own affairs inmatters of religion. However, the proviso is attracted only if the followingconditions are satisfied:D(i) The place of public worship is temple; and

(ii) The temple has been founded for the benefit of any religiousdenomination or section thereof.

87. We have held that the devotees of Lord Ayyappa do notEconstitute religious denomination and the Sabarimala temple is not adenominational temple. The proviso has no application. The notificationswhich restrict the entry of women between the ages of ten and fifty inthe Sabarimala temple cannot stand scrutiny and plainly infringe Section3. They prevent any woman between the age of ten and fifty fromentering the Sabarimala temple and from offering prayers. Such aFrestriction would infringe the rights of all Hindu women which arerecognized by Section 3. The notifications issued by the Board prohibitingthe entry of women between ages ten and fifty-five, are ultra viresSection 3.

88. The next question is whether Rule 3(b) of the 1965 Rules isGultra vires the 1965 Act. Rule 3 provides:

“The classes of persons mentioned here under shall not be entitledto offer worship in any place of public worship or bathe in or usethe water of any sacred tank, well, spring or water courseappurtenant to place of public worship whether situate within or

outside precincts thereof, or any sacred place including hill orhill lock, or road, street or pathways which is requisite for obtainingaccess to the place of public worship-

(a) Persons who are not Hindus.

(b) Women at such time during which they are not by customand usage allowed to enter place of public worship.

(c) Persons under pollution arising out of birth or death in theirfamilies.

(d) Drunken or disorderly persons.

(e) Persons suffering from any loathsome or contagious disease.

(f) Persons of unsound mind except when taken for worship underproper control and with the permission of the executive authorityof the place of public worship concerned.

(g) Professional beggars when their entry is solely for the purposeof begging.”

(Emphasis supplied)

By Rule 3(b), women are not allowed to offer worship in anyplace of public worship including hill, hillock or road leading to aplace of public worship or entry into places of public worship at suchtime, if they are, by custom or usage not allowed to enter such place ofpublic worship.

Section 4 provides thus:

“4. Power to make regulations for the maintenance of order anddecorum and the due performance of rites and ceremonies inplaces of public worship –

(1) The trustee or any other person in charge of any place ofpublic worship shall have power, subject to the control of thecompetent authority and any rules which may be made by thatauthority, to make regulations for the maintenance of order anddecorum in the place of public worship and the due observance ofthe religious rites and ceremonies performed therein:

Provided that no regulation made under this sub-section shalldiscriminate in any manner whatsoever, against any Hindu on theground that he belongs to particular section or class.

A(2) The competent authority referred to in sub-section (1) shallbe,-

(i) In relation to place of public worship situated in any area towhich Part I of the Travancore-Cochin Hindu Religious InstitutionsAct, 1950 (Travancore-Cochin Act XV of 1950), extends, theBTravancore Devaswom Board;

(ii) in relation to place of public worship situated in any area towhich Part II of the said Act extends, the Cochin DevaswomBoard; and

(iii) in relation to place of public worship situated in any otherCarea in the State of Kerala, the Government.”

Section 4(1) empowers the trustee or person in charge of aplace of public worship to make regulations for maintenance of orderand decorum and for observance of rites and ceremonies in places ofpublic worship. The regulation making power is not absolute. The provisoDto Section 4(1) prohibits discrimination against any Hindu in any mannerwhatsoever on the ground that he or she belongs to particular sectionor class.

89. When the rule-making power is conferred by legislation on adelegate, the latter cannot make rule contrary to the provisions of theEparent legislation. The rule-making authority does not have the power tomake rule beyond the scope of the enabling law or inconsistent withthe law.[122] Whether delegated legislation is in excess of the powerconferred on the delegate is determined with reference to the specificprovisions of the statute conferring the power and the object of the Actas gathered from its provisions.[123]F

90. Hindu women constitute ‘section or class’ of Hindus underclauses and of Section 2 of the 1965 Act. The proviso to Section4(1) forbids any regulation which discriminates against any Hindu on theground of belonging to particular section or class. Above all, the mandateof Section 3 is that if place of public worship is open to Hindus generallyGor to any section or class of Hindus, it shall be open to all sections orclasses of Hindus. The Sabarimala temple is open to Hindus generallyand in any case to section or class of Hindus. Hence it has to be open

122 Additional District Magistrate v Siri Ram, (2000) 5 SCC 451

123 Maharashtra State Board of Secondary and Higher Education v Paritosh

HBhupeshkumar Sheth, (1984) 4 SCC 27

to allsections or classes of Hindus, including Hindu women. Rule 3(b)gives precedence to customs and usages which allow the exclusion ofwomen “at such time during which they are not… allowed to enter aplace of public worship”. In laying down such prescription, Rule 3(b)directly offends the right of temple entry established by Section 3. Section3 overrides any custom or usage to the contrary. But Rule 3acknowledges, recognises and enforces custom or usage to excludewomen. This is plainly ultra vires.

The object of the Act is to enable the entry of all sections andclasses of Hindus into temples dedicated to, or for the benefit of or usedby any section or class of Hindus. The Act recognizes the rights of allsections and classes of Hindus to enter places of public worship andtheir right to offer prayers. The law was enacted to remedy centuries ofdiscrimination 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 exclusionof women. Rule 3(b) is ultra vires.

K The ghost of Narasu[124]

91. The Respondents have urged that the exclusion of womenfrom the Sabarimala temple constitutes custom, independent of theAct and the 1965 Rules.[125] It was contended that this exclusion is partof ‘institutional worship’ and flows from the character of the deity as aNaishtika Brahmachari. During the proceedings, submission wasaddressed on the ambit of Article 13 and the definition of ‘laws in force’in clause 1 of that Article.

Article 13 of the Constitution reads thus:

“13. (1) All laws in force in the territory of India immediatelybefore the commencement of this Constitution, in so far as theyare inconsistent with the provisions of this Part, shall, to the extentof such inconsistency, be void.

(2) The State shall not make any law which takes away or abridgesthe rights conferred by this Part and any law made in contraventionof this clause shall, to the extent of the contravention, be void.

124 Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is stalking the Supreme Court ofIndia’, Lawyers Collective, 28 May, 2018

125 Written Submissions of Senior Advocate Shri K. Parasaran, at paras 4, 6, 10, 15, 29,39, 41; Additional Affidavit of Travancore Devaswom Board at para 1

A(3) In this article, unless the context otherwise requires,—

(a) “law” includes any Ordinance, order, bye-law, rule, regulation,notification, custom or usage having in the territory of India theforce of law;

(b) “laws in force” includes laws passed or made by LegislatureBor other competent authority in the territory of India before thecommencement of this Constitution and not previously repealed,notwithstanding that any such law or any part thereof may not bethen in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of thisCConstitution made under article 368.”

92. Division Bench of the Bombay High Court in The State ofBombay v Narasu Appa Mali (“Narasu”),[126] considered the ambit ofArticle 13, particularly in the context of custom, usage and personal law.The constitutional validity of the Bombay Prevention of Hindu BigamousDMarriages Act 1946 was considered. It was contended that provisionof personal law which permits polygamy violates the guarantee of non-discrimination under Article 15, and that such practice had becomevoid under Article 13(1) after the Constitution came into force. TheBombay High Court considered the question of “whether in the expressionE‘all laws in force’ appearing in Article 13(1) ‘personal laws’ wereincluded”. Chief Justice Chagla opined that ‘custom or usage’ would beincluded in the definition of ‘laws in force’ in Article 13(1). The learnedChief Justice held:“15…The Solicitor General’s contention is that this definition of“law” only applies to Article 13(2) and not to Article 13(1).FAccording to him it is only the definition of “laws in force” thatapplies to Article 13(1). That contention is difficult to acceptbecause custom or usage would have no meaning if it were appliedto the expression “law” in Article 13(2). The State cannot makeany custom or usage. Therefore, that part of the definition canGonly apply to the expression “laws” in Article 13(1). Therefore, itis clear that if there is any custom or usage which is in force inIndia, which is inconsistent with the fundamental rights, that customor usage is void.”

126 AIR 1952 Bom 84; In the proceedings before the Sessions Judge of South Satara, theaccused was acquitted and the Bombay Prevention of Hindu Bigamous MarriagesHAct 1946 was held invalid. The cases arise from these proceedings

Hence, the validity of custom or usage could be tested for itsconformity with Part III. However, the learned Chief Justice rejectedthe contention that personal law is ‘custom or usage’:

“15…Custom or usage is deviation from personal law and notpersonal law itself. The law recognises certain institutions whichare not in accordance with religious texts or are even opposed tothem because they have been sanctified by custom or usage, butthe difference between personal law and custom or usage is clearand unambiguous.”

Thus, Justice Chagla concluded that “personal law is not includedin the expression “laws in force” used in Article 13(1).”

93. Justice Gajendragadkar (as the learned Judge then was)differed with the Chief Justice’s view that custom or usage falls withinthe ambit of Article 13(1). According to Justice Gajendragadkar, ‘customor usage’ does not fall within the expression ‘laws in force’ in Article13(1):

“26…If custom or usage having the force of law was reallyincluded in the expression “laws in force,” I am unable to seewhy it was necessary to provide for the abolition of untouchabilityexpressly and specifically by Article 17. This article abolishesuntouchability and forbids its practice in any form. It also laysdown that the enforcement of any disability arising out ofuntouchability shall be an offence punishable in accordance withlaw. Untouchability as it was practised amongst the Hindus owedits origin to custom and usage, and there can be no doubt whateverthat in theory and in practice it discriminated against large sectionof Hindus only on the ground of birth. If untouchability thus clearlyoffended against the provisions of Article 15(1) and if it wasincluded in the expression “laws in force”, it would have beenvoid under Article 13(1). In that view it would have been whollyunnecessary to provide for its abolition by Article 17. That is whyI find it difficult to accept the argument that custom or usagehaving the force of law should be deemed to be included in theexpression “laws in force.””

The learned Judge opined that the practice of untouchability owedits origins to custom and usage. If it was intended to include ‘custom orusage’ in the definition of ‘laws in force’ in Article 13(3)(b), the custom

Aof untouchability would offend the non-discrimination guarantee underArticle 15 and be void under Article 13(1). The learned Judge concludedthat this renders Article 17 obsolete. The learned Judge concluded that itwas thus not intended to include ‘custom or usage’ within the ambit of‘laws in force’ in Article 13(1) read with Article 13(3)(b).

BJustice Gajendragadkar held that “even if this view is wrong, itdoes not follow that personal laws are included in the expression “lawsin force””:

“26…It seems to me impossible to hold that either the Hindu orthe Mahomedan law is based on custom or usage having the forceCof law.”The learned Judge read in statutory requirement for ‘laws inforce’ under Article 13(1):

“23…There can be no doubt that the personal laws are in force ina general sense; they are in fact administered by the Courts inDIndia in matters falling within their purview. But the expression“laws in force” is, in my opinion, used in Article 13(1) not in thatgeneral sense. This expression refers to what may compendiouslybe described as statutory laws. There is no doubt that laws whichare included in this expression must have been passed or made byEa Legislature or other competent authority, and unless this test issatisfied it would not be legitimate to include in this expression thepersonal laws merely on the ground that they are administered byCourts in India.”

The learned Judges differed on whether ‘laws in force’ in Article13(1) read with Article 13(3)(b) includes ‘custom or usages’. TheFreasoning of the High Court in recording this conclusion merits closerlook.

94. In K Gopalan v State of Madras,[127] seven judge Benchdealt with the constitutionality of the Preventive Detention Act 1950.The majority upheld the Act on disjunctive reading of the Articles inGPart III of the Constitution. In his celebrated dissent, Justice Fazl Ali,pointed out that the scheme of Part III of the Constitution suggested theexistence of degree of overlap between Articles 19, 21, and 22. Thedissent adopted the view that the fundamental rights are not isolated andseparate but protect common thread of liberty and freedom:H 127 1950 SCR 88

“58.To my mind, the scheme of the Chapter dealing withthe fundamental rights does not contemplate what isattributed to it, namely, that each Article is code by itselfand is independent of the others. In my opinion, it cannotbe said that Articles 19, 20, 21 and 22 do not to some extentoverlap each other. The case of person who is convicted ofan offence will come under Articles 20 and 21 and also underArticle 22 so far as his arrest and detention in custody before trialare concerned. Preventive detention, which is dealt with in Article22, also amounts to deprivation of personal liberty which is referredto in Article 21, and is violation of the right of freedom ofmovement dealt with in Article 19(1)(d)...”

(Emphasis supplied)

The view adopted in Justice Fazl Ali’s dissent was endorsed inRustom Cavasjee Cooper v Union of India.[128] An eleven judge Benchdealt with the question whether the Banking Companies (Acquisitionand Transfer of Undertakings) Ordinance, 1969, and the BankingCompanies (Acquisition and Transfer of Undertakings) Act, 1969impaired the Petitioner’s rights under Articles 14, 19 and 31 of theConstitution. Holding the Act to be unconstitutional, Justice J Shahheld:

“52…The enunciation of rights either express or by implicationdoes not follow uniform pattern. But one thread runs throughthem: they seek to protect the rights of the individual or groups ofindividuals against infringement of those rights within specific limits.Part III of the Constitution weaves pattern of guarantees on thetexture of basic human rights. The guarantees delimit the protectionof those rights in their allotted fields: they do not attempt to enunciatedistinct rights.”[129]

Similarly, in Maneka,a seven judge Bench was faced with aconstitutional challenge to Section 10(3)(c) of the Passports Act 1967.Striking the section down as violating Article 14 of the Constitution, JusticeP N Bhagwati held:

“5…It is said that the freedom to move freely is carved out ofpersonal liberty and, therefore, the expression ‘personal liberty’ inArticle 21 excludes that attribute. In our view, this is not

128 (1970) 1 SCC 248

129 Ibid, at page 289

Acorrect approach. Both are independent fundamental rights,though there is overlapping. There is no question of onebeing carved out of another. The fundamental right of life andpersonal liberty has many attributes and some of them are foundin Article 19. If person’s fundamental right under Article 21 isinfringed, the State can rely upon law to sustain the action, butBthat cannot be complete answer unless the said law satisfies thetest laid down in Article 19(2) so far as the attributes covered byArticle 19(1) are concerned.”[130] (Emphasis supplied)

In the Special Courts Bill Reference,[131] seven judge Bench

of this Court, considered reference under Article 143(1) on the questionCwhether the Special Courts Bill, 1978 or any of its provisions, if enacted,would be constitutionally invalid. Justice Y V Chandrachud (writing forhimself, Justice P N Bhagwati, Justice R S Sarkaria, and Justice MurtazaFazl Ali) held that an attempt must be made to “to harmonize the variousprovisions of the Constitution and not to treat any part of it as otiose orDsuperfluous.” The learned Judge held:

“49…Some amount of repetitiveness or overlapping is inevitablein Constitution like ours which, unlike the American Constitution,is drawn elaborately and runs into minute details. There is,therefore, all the greater reason why, while construing ourEConstitution, care must be taken to see that powers conferred byits different provisions are permitted their full play and any oneprovision is not, by construction, treated as nullifying the existenceand effect of another.”[132]

In Puttaswamy, unanimous verdict by nine judge BenchFdeclared privacy to be constitutionally protected, as facet of liberty,dignity and individual autonomy. The Court held that privacy traces itselfto the guarantee of life and personal liberty in Article 21 of the Constitutionas well as to other facets of freedom and dignity recognized andguaranteed by the fundamental rights contained in Part III. The judgmentof four judges held thus:G

“259…The coalescence of Articles 14, 19 and 21 has broughtinto being jurisprudence which recognises the inter-relationship

130 Ibid, at page 279 131 (1979) 1 SCC 380 132 Ibid, at page 413H

between rights. That is how the requirements of fairness and non-discrimination animate both the substantive and procedural aspectsof Article 21…[133]

260…At substantive level, the constitutional values underlyingeach Article in the Chapter on fundamental rights animate themeaning of the others. This development of the law has followeda natural evolution. The basis of this development after all is thatevery aspect of the diverse guarantees of fundamental rights dealswith human beings. Every element together with others contributesin the composition of the human personality. In the very nature ofthings, no element can be read in manner disjunctive from thecomposite whole.”[134]

Responding to the reasoning employed in Narasu, MBhattacharjee in his work ‘Matrimonial Laws and the Constitution’,[135]writes:

“…the provisions of Article 15(3) may also appear to beunnecessary to the extent that it refers to “children”. Article 15(1)prohibiting discrimination on the ground of religion, race, caste,sex or place of birth does not prohibit any differential treatmenton the ground of age. And, therefore, if age is thus not prohibitedbasis for differentiation, it was not necessary to provide anyexpress saving clause in Article 15(3) to the effect that “nothingin this Article shall prevent the State from making any specialprovisions for children,” because nothing in Article 15(1) or Article15(2) would forbid such special provision…There, the mere factthat some matter has been specifically dealt with by one or moreArticles in Part III or anywhere else, would not, by itself, warrantthe conclusion that the same has not been or cannot be coveredby or included or dealt with again in any other Article or Articlesin Part III or elsewhere.”

95. The rights guaranteed under Part III of the Constitution havethe common thread of individual dignity running through them. There isa degree of overlap in the Articles of the Constitution which recognizefundamental human freedoms and they must be construed in the widest

133 Ibid, at page 477

134 Ibid, at page 478

135 M Bhattacharjee, Matrimonial Laws and the Constitution, Eastern Law House(1996) at page 32

Asense possible. To say then that the inclusion of an Article in theConstitution restricts the wide ambit of the rights guaranteed, cannot besustained. Article 17 was introduced by the framers to incorporate aspecific provision in regard to untouchability. The introduction of Article17 reflects the transformative role and vision of the Constitution. It bringsfocus upon centuries of discrimination in the social structure and positsBthe role of the Constitution to bring justice to the oppressed andmarginalized. The penumbra of particular article in Part III whichdeals with specific facet of freedom may exist elsewhere in Part III.That is because all freedoms share an inseparable connect. They existtogether and it is in their co-existence that the vision of dignity, libertyCand equality is realized. As noted in Puttaswamy, “the ConstituentAssembly thought it fit that some aspects of liberty require moreemphatic declaration so as to restrict the authority of the State to abridgeor curtail them”. The rationale adopted by Justice Gajendragadkar inNarasu for excluding custom and usage from ‘laws in force’ under

Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinallyDand from the perspective of the precedent of this Court.

96. Both Judges in Narasu relied on the phraseology of Section112 of the Government of India Act 1915 which enjoined the High Courtsin Calcutta, Madras, and Bombay to decide certain matters in the exerciseof their original jurisdiction in accordance with the personal law or customEof the parties to the suit, and of the defendant, where the plaintiff anddefendant are subject to different personal laws or custom:

“112. The High Courts at Calcutta, Madras and Bombay, in theexercise of their original jurisdiction in suits against inhabitants ofCalcutta, Madras or Bombay, as the case may be, shall, in mattersFof inheritance and succession to lands, rents and goods, and inmatters of contract and dealing between party and party, whenboth parties are subject to the same personal law or customhaving the force of law, decide according to that personal lawor custom, and when the parties are subject to different personalGlaws or custom having the force of law, decide according tothe law or custom to which the defendant is subject.”(Emphasis supplied)

Relying on the disjunctive use of ‘personal law’ and ‘custom havingthe force of law’ (separated by the use of the word ‘or’), Chief JusticeHChagla opined that despite the legislative precedent of the 1915 Act, the

Constituent Assembly deliberately omitted reference to ‘personal law’in Article 13. Chief Justice Chagla held that this “is very clear pointerto the intention of the Constitution making body to exclude personal lawfrom the purview of Article 13.”

The Constituent Assembly also had legislative precedent of theGovernment of India Act 1935, from which several provisions of theConstitution are designed. Section 292 of that Act, which correspondsbroadly to Article 372(1) of the Constitution reads thus:

“292. Notwithstanding the repeal by this Act of the Governmentof India Act, but subject to the other provisions of this Act, all thelaw in force in British India immediately before thecommencement of Part III of this Act shall continue in force inBritish India until altered or repealed or amended by competentLegislature or other competent authority.”

(Emphasis supplied)

Section 292 of the Act saved ‘all the law in force’ in British Indiaimmediately before the commencement of Part III of that Act. Theexpression “law in force” in that Section was interpreted by the FederalCourt in TheUnited Provinces v Mst.Atiqa Begum.[136] The questionbefore the Court was whether the legislature of the United Provinceswas competent to enact the Regularization of Remissions Act 1938.While construing Section 292 of the Government of India Act 1935 andadverting to the powers of the Provincial Legislature and the CentralLegislature, Justice Suleman held:

“Even though we are not concerned with the wisdom of theLegislature, one cannot help saying that there appears to be noadequate reason why the power to give retrospective effect to anew legislation should be curtailed, limited or minimized, particularlywhen S. 292 applies not only to statutory enactments then in force,but to all laws, including even personal laws, customary laws,and common laws.”[137]

(Emphasis supplied)

The definitional terms ‘law’ and ‘laws in force’ in Article 13(3)(a)and 13(3)(b) have an inclusive definition. It is settled position of statutoryinterpretation, that use of the word ‘includes’ enlarges the meaning of

136 AIR 1941 FC 16 137 Ibid, at page 31

Athe words or phrases used.[138] In his seminal work, ‘Principles of StatutoryInterpretation’, Justice P Singh writes that: “where the word definedis declared to ‘include’ such and such, the definition is prima facieextensive.”[139]

97. In Sant Ram v Labh Singh[140], Constitution Bench of thisBCourt dealt with whether ‘after coming into operation of the Constitution,the right of pre-emption is contrary to the provisions of Art. 19(1)(f)read with Art. 13 of the Constitution’. It was contended that the terms‘law’ and ‘laws in force’ were defined separately and ‘custom or usage’in the definition of ‘law’ cannot be included in the definition of ‘laws inforce’. Rejecting this contention, the Court relied on the expansiveCmeaning imported by the use of ‘includes’ in the definition clauses:“4…The question is whether by defining the composite phrase“laws in force” the intention is to exclude the first definition. Thedefinition of the phrase “laws in force” is an inclusive definitionand is intended to include laws passed or made by LegislatureDor other competent authority before the commencement of theConstitution irrespective of the fact that the law or any part thereofwas not in operation in particular areas or at all. In other words,laws, which were not in operation, though on the statute book,were included in the phrase “laws in force”. But the secondEdefinition does not in any way restrict the ambit of the word “law”in the first clause as extended by the definition of that word. Itmerely seeks to amplify it by including something which, but forthe second definition, would not be included by the firstdefinition…Custom and usage having in the territory of India theforce of the law must be held to be contemplated by the expressionF“all laws in force.”

The use of the term ‘includes’ in the definition of the expression‘law’ and ‘laws in force’ thus imports wide meaning to both. Practiceshaving the force of law in the territory of India are comprehended within“laws in force.” Prior to the adoption of Article 13 in the present form,G 138 Ardeshir Bhiwandiwala v State of Bombay (1961) 3 SCR 592; CIT v Taj MahalHotel, Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC202; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons(1991) 3 SCC 617

139 Justice P Singh, Principles of Statutory Interpretation, Lexis Nexis (2016) at page198 140 (1964) 7 SCR 756H

draft Article 8 included only definition of ‘law’.[141] In October 1948,the Drafting Committee brought in the definition of ‘laws in force’. Thereason for proposing this amendment emerges from the note[142] of theDrafting Committee:

“The expression “laws in force” has been used in clause (1) of 8,but it is not clear if law which has been passed by the Legislaturebut which is not in operation either at all or in particular areaswould be treated as law in force so as to attract the operation ofclause (1) of this article. It is accordingly suggested that definitionof “law in force” on the lines of Explanation I to article 307 shouldbe inserted in clause (3) of this article.”

The reason for separate definition for ‘laws in force’ is crucial.The definition of ‘laws in force’ was inserted to ensure that laws passedby the legislature, but not in operation at all or in particular areas wouldattract the operation of Article 13(1). Justice Gajendragadkar, however,held that ‘laws in force’ in Article 13(1) is compendious expression forstatutory laws. In doing so, the learned Judge overlooked the wide ambitthat was to be attributed to the term ‘laws in force’, by reason of theinclusive definition. The decision of the Constitution Bench in Sant Ramemphasizes precisely this facet. Hence, the view of JusticeGajendragadkar as judge of the Bombay High Court in Narasu cannotbe held to be correct.

98. Recently, in Shayara Bano, Constitution Bench consideredwhether talaq – ul – biddat or ‘triple talaq’, which authorised Muslimman to divorce his wife by pronouncing the word “talaq” thrice, was

141 Shiva Rao, The Framing of India’s Constitution, Vol III, at pages 520, 521. DraftArticle 8 reads:

“8(1) All laws in force immediately before the commencement of thisConstitution in the territory of India, in so far as they are inconsistent with the provisionsof this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rightsconferred by this Part and any law made in contravention of this clause shall, to theextent of the contravention, be void:

*Provided that nothing in this clause shall prevent the State from making anylaw for the removal of any inequality, disparity, disadvantage or discrimination arisingout of any existing law.

(3) In this article, the expression “law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territoryof India or any part thereof.”

142 Shiva Rao, The Framing of India’s Constitution, Vol IV, at pages 26, 27

Alegally invalid. In 3-2 verdict, the majority ruled that triple talaq is notlegally valid. Justice Rohinton Fali Nariman (writing for himself andJustice Lalit) held that the Muslim Personal Law (Shariat) ApplicationAct, 1937 codified the practice of Triple Talaq. The learned Judgeproceeded to examine whether this violated the Constitution:

B“47.It is, therefore, clear that all forms of Talaq recognized andenforced by Muslim personal law are recognized and enforcedby the 1937 Act. This would necessarily include Triple Talaq whenit comes to the Muslim personal law applicable to Sunnis inIndia…[143]

C48.As we have concluded that the 1937 Act is law made by thelegislature before the Constitution came into force, it would fallsquarely within the expression “laws in force” in Article 13(3)(b)and would be hit by Article 13(1) if found to be inconsistent withthe provisions of Part III of the Constitution, to the extent of suchinconsistency.”[144]D

Having concluded that the 1937 Act codified the practice of tripletalaq and that the legislation would consequently fall within the ambit of‘laws in force’ in Article 13(1) of the Constitution, it was held that it was“unnecessary…to decide whether the judgment in Narasu Appa (supra)is good law.”[145] Justice Nariman, however, doubted the correctness ofENarasu in the following observation:

“However, in suitable case, it may be necessary to have re-look at this judgment in that the definition of “law and “laws inforce” are both inclusive definitions, and that at least one part ofthe judgment of P.B. Gajendragadkar, J., (para 26) in which theFlearned Judge opines that the expression “law” cannot be readinto the expression “laws in force” in Article 13(3) is itself nolonger good law.”

99. Custom, usages and personal law have significant impact onthe civil status of individuals. Those activities that are inherently connectedGwith the civil status of individuals cannot be granted constitutional immunitymerely because they may have some associational features which havea religious nature. To immunize them from constitutional scrutiny, is todeny the primacy of the Constitution. 143 Ibid, at page 65 144 Ibid, at page 65H 145 Ibid, at para 51

Our Constitution marks vision of social transformation. It marksa break from the past – one characterized by deeply divided societyresting on social prejudices, stereotypes, subordination and discriminationdestructive of the dignity of the individual. It speaks to the future of avision which is truly emancipatory in nature. In the context of thetransformative vision of the South African Constitution, it has beenobserved that such vision would:

“require complete reconstruction of the state and society,including redistribution of power and resources along egalitarianlines. The challenge of achieving equality within this transformationproject involves the eradication of systemic forms of dominationand material disadvantage based on race, gender, class and othergrounds of inequality. It also entails the development ofopportunities which allow people to realise their full human potentialwithin positive social relationships.”[146]

100. The Indian Constitution is marked by transformative vision.Its transformative potential lies in recognizing its supremacy over allbodies of law and practices that claim the continuation of past whichmilitates against its vision of just society. At the heart of transformativeconstitutionalism, is recognition of change. What transformation in socialrelations did the Constitution seek to achieve? What vision of societydoes the Constitution envisage? The answer to these questions lies inthe recognition of the individual as the basic unit of the Constitution. Thisview demands that existing structures and laws be viewed from theprism of individual dignity.

Did the Constitution intend to exclude any practice from itsscrutiny? Did it intend that practices that speak against its vision of dignity,equality and liberty of the individual be granted immunity from scrutiny?Was it intended that practices that detract from the transformative visionof the Constitution be granted supremacy over it? To my mind, the answerto all these, is in the negative.

The individual, as the basic unit, is at the heart of the Constitution.All rights and guarantees of the Constitution are operationalized and areaimed towards the self-realization of the individual. This makes the anti-exclusion principle firmly rooted in the transformative vision of theConstitution, and at the heart of judicial enquiry. Irrespective of the

146 Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation:Difficulties in the Development of an Indigenous Jurisprudence of Equality, Vol. 14,South African Journal of Human Rights (1988), at page 249

Asource from which practice claims legitimacy, this principle enjoinsthe Court to deny protection to practices that detract from theconstitutional vision of an equal citizenship.

101. The decision in Narasu, in restricting the definition of theterm ‘laws in force’ detracts from the transformative vision of theBConstitution. 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 usagecannot be excluded from ‘laws in force’. The decision in Narasu alsoopined that personal law is immune from constitutional scrutiny. Thisdetracts from the notion that no body of practices can claim supremacyCover the Constitution and its vision of ensuring the sanctity of dignity,liberty and equality. This also overlooks the wide ambit that was to beattributed to the term ‘laws in force’ having regard to its inclusive definitionand constitutional history. As M Seervai notes[147]:

“there is no difference between the expression “existing law”Dand “law in force” and consequently, personal law would be“existing law” and “law in force …custom, usage and statutorylaw are so inextricably mixed up in personal law that it would bedifficult to ascertain the residue of personal law outside them.”

The decision in Narasu, in immunizing uncodified personal lawEand construing the same as distinct from custom, deserves detailedreconsideration in an appropriate case in the future.

102. In the quest towards ensuring the rights guaranteed to everyindividual, Constitutional court such as ours is faced with an additionaltask. Transformative adjudication must provide remedies in individualFinstances that arise before the Court. In addition, it must seek to recognizeand transform the underlying social and legal structures that perpetuatepractices against the constitutional vision. Subjecting personal laws toconstitutional scrutiny is an important step in this direction. Speaking ofthe true purpose of liberty, Dr R Ambedkar stated:

G“What are we having this liberty for? We are having this liberty inorder to reform our social system, which is so full of inequities, sofull of inequalities, discriminations and other things, which conflictwith our fundamental rights.”[148]

147 M Seervai, Constitutional Law of India, Vol. I, at page 677 148 Parliament of India, Constituent Assembly Debates, Vol. VII, at page 781H

Practices, that perpetuate discrimination on the grounds ofcharacteristics that have historically been the basis of discrimination,must not be viewed as part of seemingly neutral legal background.They have to be used as intrinsic to, and not extraneous to, the interpretiveenquiry.

The case before us has raised the question of whether it isconstitutionally permissible to exclude women between the ages of tenand fifty from the Sabarimala Temple. In the denial of equal access, thepractice denies an equal citizenship and substantive equality under theConstitution. The primacy of individual dignity is the wind in the sails ofthe boat chartered on the constitutional course of just and egalitariansocial order.

L Deity as bearer of constitutional rights

103. Mr J Sai Deepak, learned Counsel, urged that the presidingdeity of the Sabarimala Temple, Lord Ayyappa, is bearer of constitutionalrights under Part III of the Constitution. It was submitted that the rightto preserve the celibacy of the deity is protected constitutional rightand extends to excluding women from entering and praying at theSabarimala Temple. It was urged that the right of the deity to follow hisDharma flows from Article 25(1) and Article 26 of the Constitution andany alteration in the practice followed would have an adverse effect onthe fundamental rights of the deity.

104. The law recognizes an idol or deity as juristic persons whichcan own property and can sue and be sued in the Court of law. InPramatha Nath Mullick v Pradyumna Kumar Mullick[149], the PrivyCouncil dealt with the nature of an idol and services due to the idol.Speaking for the Court, Lord Shaw held thus:

“A Hindu idol is, according to long established authority, foundedupon the religious customs of the Hindus, and the recognition thereofby Courts of law, “juristic entity.” It has juridical status withthe power of suing and being sued.”[150]

In Yogendra Nath Naskar v Commissioner of the Income-Tax, Calcutta[151], this Court held thus:

149 (1925) 27 Bom LR 1064

150 Ibid, at page 250

151 (1969) 1 SCC 555

A“6.But so far as the deity stands as the representative and symbolof the particular purpose which is indicated by the donor, it canfigure as legal person. The true legal view is that in that capacityalone the dedicated property vests in it. There is no principle whya deity as such legal person should not be taxed if such legalperson is allowed in law to own property even though in the idealBsense and to sue for the property, to realize rent and to defendsuch property…in the ideal sense.”[152]

K Mukherjea in his seminal work ‘The Hindu Law of Religiousand Charitable Trusts’ writes thus:

C“An idol is certainly juristic person and as the Judicial Committeeobserved in Promotha v Prayumna, “it has juridical status withthe power of suing and being sued.” An idol can hold propertyand obviously it can sue and be sued in respect of it…[Thus] thedeity as juristic person has undoubtedly the right to institute asuit for the protection of its interest.”[153]D

105. The word ‘persons’ in certain statutes have been interpretedto include idols. However, to claim that deity is the bearer ofconstitutional rights is distinct issue, and does not flow as necessaryconsequence from the position of the deity as juristic person for certainpurposes. Merely because deity has been granted limited rights asEjuristic persons under statutory law does not mean that the deitynecessarily has constitutional rights.

In Shirur Mutt, Justice K Mukherjea writing for the Court,made observations on the bearer of the rights under Article 25 of theConstitution:F

“14.We now come to Article 25 which, as its language indicates,secures to every person, subject to public order, health and morality,a freedom not only to entertain such religious belief, as may beapproved of by his judgment and conscience, but also to exhibithis belief in such outward acts as he thinks proper and to propagateGor disseminate his ideas for the edification of others. question israised as to whether the word “persons” here means individualsonly or includes corporate bodies as well….Institutions, as such

152 Ibid, at page 560 153 K Mukherjea “The Hindu Law of Religious and Charitable Trust”, at pages 257,H264

[DR. DHANANJAYA Y CHANDRACHUD, J.]

cannot practise or propagate religion; it can be done onlyby individual persons and whether these persons propagatetheir personal views or the tenets for which the institutionstands is really immaterial for purposes of Article 25. It isthe propagation of belief that is protected, no matter whetherthe propagation takes place in church or monastery, or ina temple or parlour meeting.”(Emphasis supplied)

In Shri S Narayana Deekshitulu v State Of AndhraPradesh[154], two judge Bench of this Court considered theconstitutionality of Sections 34, 35, 37, 39 and 144 of the Andhra PradeshCharitable and Hindu Religious Institutions and Endowments Act, 1987which abolished the hereditary rights of archakas, mirasidars, gamekarsand other office-holders. Upholding the Act, the Court held:

“85.Articles 25 and 26 deal with and protect religious freedom.Religion as used in these articles must be construed in its strictand etymological sense. Religion is that which binds man withhis Cosmos, his Creator or super force. It is difficult and ratherimpossible to define or delimit the expressions ‘religion’ or “mattersof religion” used in Articles 25 and 26. Essentially, religion is amatter of personal faith and belief of personal relations ofan individual with what he regards as Cosmos, his Makeror his Creator which, he believes, regulates the existenceof insentient beings and the forces of the universe.”[155](Emphasis supplied)106. religious denomination or any section thereof has rightunder Article 26 to manage religious affairs. This right vests in acollection of individuals which demonstrate (i) the existence of areligious sect or body; (ii) common faith shared by those who belong tothe religious sect and common spiritual organisation; (iii) the existenceof distinctive name and (iv) common thread of religion. Article 25grants the right to the freedom of conscience and free profession, practiceand propagation of religion. Conscience, as cognitive process that elicitsemotion and associations based on an individual’s beliefs rests only inindividuals. The Constitution postulates every individual as its basic unit.The rights guaranteed under Part III of the Constitution are geared

154 1996 9 SCC 548

155 Ibid, at pages 592-593

Atowards the recognition of the individual as its basic unit. The individualis the bearer of rights under Part III of the Constitution. The deity maybe juristic person for the purposes of religious law and capable ofasserting property rights. However, the deity is not ‘person’ for thepurpose of Part III of the Constitution. The legal fiction which has led tothe recognition of deity as juristic person cannot be extended to theBgamut of rights under Part III of the Constitution.

In any case, the exclusion of women from the Sabarimala templeeffects both, the religious and civic rights of the individual. The anti-exclusion principle would disallow claim based on Article 25 and 26which excludes women from the Sabarimala Temple and hampers theirCexercise of religious freedom. This is in keeping with over-arching liberalvalues of the Constitution and its vision of ensuring an equal citizenship.

M road map for the future

107. The decision in Shirur Mutt defined religion to encompassDmatters beyond conscience and faith. The court recognized that religiouspractices are as much part of religion. Hence, where the tenets of areligious sect prescribe ceremonies at particular hours of the day orregular offerings of food to the deity, this would constitute part ofreligion. The mere fact that these practices involve the expenditure ofmoney would not take away their religious character. The precept thatEreligion encompasses doctrine and ceremony enabled the court to allowreligion broad autonomy in deciding what according to its tenets isintegral or essential. Shirur Mutt was followed by another decision inRatilal. Both cases were decided in the same year.

108. As the jurisprudence of the court evolved, two separate issuesFcame to the fore. The first was the divide between what is religious andsecular. This divide is reflected in Article 25(2)(a) which allows the stateto enact legislation which would regulate or restrict economic, financial,political or “other secular activities” which may be associated withreligious practice. second distinct issue, however, was addressed byGthis Court. That was whether practice is essential to religion. Whilethe religious versus secular divide finds support in constitutional text,neither Article 25 nor Article 26 speaks about practices which areessential to religion. As the jurisprudence of this Court unfolded, thecourt assumed the function of determining whether or not practiceconstitutes an essential and integral part of religion. This set theHdetermination up at the threshold. Something which the court holds notto be essential to religion would not be protected by Article 25, or as thecase may be, Article 26. Matters of religion under Article 26(b) came tobe conflated with what is an essential part of religion. In Qureshi (1959),a Constitution Bench (of which Justice Gajendragadkar was part)emphasised the non-obligatory nature of the practice and held that thesacrificing of cows at Bakr-Id was not an essential practice for theMuslim community. Durgah Committee (1962), Tilkayat (1964) andSastri Yagnapurushadji (1966),Justice Gajendragadkar reserved to thecourt the authority to determine whether practice was religious and, ifit is, whether the practice can be regarded as essential or integral toreligion. In Durgah Committee, Justice Gajendragadkar sought to justifythe exercise of that adjudicatory function by stating that otherwise,practices which may have originated in “merely superstitious beliefs”and would, therefore, be “extraneous and unessential accretions” toreligion would be treated as essential parts of religion. In SastriYagnapurushadji, Chief Justice Gajendragadkar propounded view ofHinduism which in doctrinal terms segregates it from practices whichcould be isolated from rational view of religion. The result whichfollowed was that while at formal level, the court continued to adopt aview which placed credence on the role of the community in decidingwhat constitutes part of its religion, there is super imposed adjudicatoryrole of the court which would determine as to whether something isessential or inessential to religion. In the case of the Avadhuta II, theassumption of this role by the Court came to the forefront in allowing itto reject practice as not being essential, though it had been prescribedin religious text by the founder of the sect.

By reserving to itself the authority to determine practices whichare essential or inessential to religion, the Court assumed reformatoryrole which would allow it to cleanse religion of practices which werederogatory to individual dignity. Exclusions from temple entry could beregarded as matters which were not integral to religion. While doing so,the Court would set up progressive view of religion. This approach isproblematic. The rationale for allowing religious community to definewhat constitutes an essential aspect of its religion is to protect theautonomy of religions and religious denominations. Protecting thatautonomy enhances the liberal values of the Constitution. By enteringupon doctrinal issues of what does or does not constitute an essentialpart of religion, the Court has, as necessary consequence, been requiredto adopt religious mantle. The Court would determine as to whether

Apractice is or is not an essential part of religion. This has enabled theCourt to adopt reformist vision of religion even though it may conflictwith the views held by the religion and by those who practice and professthe faith. The competence of the Court to do so and the legitimacy ofthe assumption of that role may be questionable. The Court discharges aconstitutional (as distinct from an ecclesiastical) role in adjudication.BAdjudicating on what does or does not form an essential part of religionblurs the distinction between the religious-secular divide and the essential/inessential approach. The former has textual origin in Article 25(2)(a).The latter is judicial creation.109. The assumption by the court of the authority to determineCwhether practice is or is not essential to religion has led to ourjurisprudence bypassing what should in fact be the central issue for debate.That issue is whether the Constitution ascribes to religion and to religiousdenominations the authority to enforce practices which exclude groupof citizens. The exclusion may relate to prayer and worship, but mayDextend to matters which bear upon the liberty and dignity of the individual.The Constitution does recognise group rights when it confers rights onreligious denominations in Article 26. Yet the basic question which needsto be answered is whether the recognition of rights inhering in religiousdenominations can impact upon the fundamental values of dignity, libertyand equality which animate the soul of the Constitution.E

In analysing this issue, it is well to remind ourselves that the rightto freedom of religion which is comprehended in Articles 25, 26, 27 and28 is not stand alone right. These Articles of the Constitution are anintegral element of the entire chapter on fundamental rights. Constitutionalarticles which recognise fundamental rights have to be understood as aFseamless 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 realistic senseto the life of the individual as the focus of human freedoms. The right ofa denomination must then be balanced with the individual rights to whichGeach of its members has protected entitlement in Part III.

110. Several articles in the chapter on fundamental rights areaddressed specifically to the state. But significantly, others have ahorizontal application to state as well non-state entities. Article 15(2)embodies guarantee against discrimination on grounds of religion, race,Hcaste, sex or birth place in access to listed public places. Article 17

which abolishes untouchability has horizontal application which isavailable against the state as well as non-state entities. Article 23, Article24 and Article 25(1) are illustrations of horizontal rights intended to securethe dignity of the individual. All these guarantees rest in equilibrium withother fundamental freedoms that the Constitution recognizes: equalityunder Article 14, freedoms under Article 19 and life and personal libertyunder Article 21. The individual right to the freedom of religion underArticle 25 must rest in mutual co-existence with other freedoms whichguarantee above all, the dignity and autonomy of the individual. Article26 guarantees group right – the right of religious denomination. Theco-existence of group right in chapter on fundamental rights whichplaces the individual at the forefront of its focus cannot be matterwithout significance. Would the Constitution have intended to preservethe assertion of group rights even at the cost of denigrating individualfreedoms? Should the freedom conferred upon group - the religiousdenomination under Article 26(b) – have such broad canvas as wouldallow the denomination to practice exclusion that would be destructiveof individual freedom? The answer to this, in my view, would have to bein the negative for the simple reason that it would be impossible toconceive of the preservation of liberal constitutional values while at thesame time allowing group rights to defy those values by practicingexclusion and through customs which are derogatory to dignity. Thisapparent contradiction can be resolved by postulating that notwithstandingthe recognition of group rights in Article 26, the Constitution has neverintended that the assertion of these rights destroy individual dignity andliberty. Group rights have been recognized by the Constitution in order toprovide platform to individuals within those denominations to realizefulfilment and self-determination. Gautam Bhatia[156] in seminal articleon the subject succinctly observes:“While it is true that Article 26(b) makes groups the bearers ofrights, as pointed out above, the Constitution does not state thebasis of doing so. It does not clarify whether groups are grantedrights for the instrumental reason that individuals can only achieveself-determination and fulfilment within the ‘context of choice’[157]

156 Gautam Bhatia, Freedom from community: Individual rights, group life, stateauthority and religious freedom under the Indian Constitution, GlobalConstitutionalism, Cambridge University Press (2016).

157 Taylor, The Politics of Recognition in Multiculturalism: Examining the Politics ofRecognition (A Gutmann ed.) Princeton University Press (1994)

Aprovided by communities, or whether the Constitution treats groups,along with individuals, as constitutive units worthy of equalconcern and respect.[158] The distinction is crucial, because theweight that must be accorded to group integrity, even at the costof blocking individual access to important public goods, can onlybe determined by deciding which vision the Constitution subscribesBto.”

Relevant to the subject which this section explores, Bhatia’s thesisis that the essential religious practices doctrine, which lacks sureconstitutional foundation, has led the court into maze in the process ofunraveling theological principles. While deciding what is or is not essentialCto religion, the court has ventured into areas where it lacks both thecompetence and legitimacy to pronounce on the importance of specificdoctrines or beliefs internal to religion. In making that determination, thecourt essentially imposes an external point of view. Imposition of anexternal perspective about what does or does not constitute an essentialDpart of religion is inconsistent with the liberal values of the Constitutionwhich recognize autonomy in matters of faith and belief.

111. similar critique of the essential religious practices doctrinehas been put forth by Professors Faizan Mustafa and Jagteshwar SinghSohi in recent publication titled “Freedom of Religion in India: CurrentEIssues and Supreme Court Acting as Clergy”.[159] Along similar lines,Jaclyn L Neo in an article titled “Definitional Imbroglios: critique ofthe definition of religion and essential practice tests in religious freedomadjudication”[160] has dealt with the flaws of the essential religiouspractices doctrine. The author notes that definitional tests such as theessential religious practices doctrine are formalistic in nature, leadingFthe court to draw an arbitrary line between protected and non-protectedreligious beliefs or practices:

“The key distinction between adjudicating religious freedom claimsby examining whether the restrictions are permissible under thelimitation clauses and adjudicating claims through definitional

158 R Bhargava, Introduction Multiculturalism in Multiculturalism, Liberalism andDemocracy (R Bhargava et al. eds), Oxford University Press (2007)

159 Faizan Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: CurrentIssues and Supreme Court Acting as Clergy, Brigham Young University Review(2017)

160 Jaclyn L Neo, Definitional imbroglios: critique of the definition of religion andHessential practice tests in religious freedom adjudication, International Journal ofConstitutional Law, Vol. 16 (2018), at pages 574-595

test is that the latter precludes religious freedom claim bydetermining that it falls outside the scope of constitutionalguarantee, before any consideration could be made concerningthe appropriate balance between the right and competing rightsor interests. Definitional tests are often formalistic in that courtsselect particular set of criteria and make decision on the religiousfreedom claim by simply considering whether the religion, beliefor practice falls within these criteria. In doing so, the courtstherefore could be said to risk drawing an arbitrary line betweenprotected and non-protected religions, beliefs or practices.”[161]Associated with this conceptual difficulty in applying the essentialreligious practices test is the issue of competence and legitimacy for thecourt to rule on religious tenets:

“While it may be legitimate for religious courts to apply internalreligious doctrines, civil courts are constitutionally established toadjudicate upon secular constitutional statutory and common lawissues. In religiously pluralistic society, judges cannot presumeto have judicial competence to have theological expertise over allreligions.”[162]

She suggests two stage determination which is explained thus:

“Accordingly, there would be two-stage test in adjudicatingreligious freedom claims that adopts more deferential approachto definition, bearing in mind…a workable approach to religiousfreedom protection in plural societies. In the first stage, asmentioned, the courts should accept group’s self-definition exceptin extreme cases where there is clearly lack of sincerity, fraudor ulterior motive. At the second stage, the courts should apply abalancing, compelling reason inquiry, or proportionality analysis todetermine whether the religious freedom claim is outweighed bycompeting state or public interest.”[163]

deferential approach to what constitutes part of religious tenetswould free the court from the unenviable task of adjudicating uponreligious texts and doctrines. The deference, however, that is attributedto religion is subject to the fundamental principles which emerge from

161 Ibid, at pages 575, 576

162 Ibid, at page 589

163 Ibid, at page 591

Athe quest for liberty, equality and dignity in Part III of the Constitution.Both Article 25(1) and Article 26 are subject to public order, moralityand health. Acting under the rubric of these limitations even the religiousfreedom of denomination is subject to an anti-exclusion principle:

“the anti-exclusion principle holds that the external norm ofBconstitutional anti-discrimination be applied to limit the autonomyof religious groups in situations where these groups are blockingaccess to basic goods.”[164]

The anti-exclusion principle stipulates thus:

“…that the state and the Court must respect the integrity ofCreligious group life (and thereby treat the internal point of religiousadherents as determinative of the form and content of religiouspractices) except where the practices in question lead to theexclusion of individuals from economic, social or cultural life in amanner that impairs their dignity, or hampers their access to basicDgoods.”[165]

112. The anti-exclusion principle allows for due-deference to theability of religion to determine its own religious tenets and doctrines.At the same time, the anti-exclusion principle postulates that where areligious practice causes the exclusion of individuals in manner whichEimpairs their dignity or hampers their access to basic goods, the freedomof religion must give way to the over-arching values of liberalconstitution. The essential religious practices test should merit closelook, again for the above reasons, in an appropriate case in the future.For the present, this judgment has decided the issues raised on the lawas it stands.F

N Conclusion

113. The Constitution embodies vision of social transformation.It represents break from history marked by the indignation anddiscrimination attached to certain identities and serves as bridge to avision of just and equal citizenship. In deeply divided society markedGby intermixing identities such as religion, race, caste, sex and personal

164 Gautam Bhatia, Freedom from community: Individual rights, group life, stateauthority and religious freedom under the Indian Constitution, GlobalConstitutionalism, Cambridge University Press (2016) at page 374 165 Gautam Bhatia, Freedom from community: Individual rights, group life, stateauthority and religious freedom under the Indian Constitution, GlobalHConstitutionalism, Cambridge University Press (2016) at page 382

characteristics as the sites of discrimination and oppression, theConstitution marks perception of new social order. This social orderplaces the dignity of every individual at the heart of its endeavours. Asthe basic unit of the Constitution, the individual is the focal point throughwhich the ideals of the Constitution are realized.

The framers had before them the task of ensuring balancebetween individual rights and claims of communitarian nature. TheConstituent Assembly recognised that the recognition of truly just socialorder situated the individual as the ‘backbone of the state, the pivot,the cardinal center of all social activity, whose happiness and satisfactionshould be the goal of every social mechanism.’[166] In forming the baseand the summit of the social pyramid, the dignity of every individualilluminates the constitutional order and its aspirations for just socialorder. Existing structures of social discrimination must be evaluatedthrough the prism of constitutional morality. The effect and endeavour isto produce society marked by compassion for every individual.

114. The Constitution protects the equal entitlement of all personsto freedom of conscience and to freely profess, protect and propagatereligion. Inhering in the right to religious freedom, is the equal entitlementof all persons, without exception, to profess, practice and propagatereligion. Equal participation of women in exercising their right to religiousfreedom is recognition of this right. In protecting religious freedom, theframers subjected the right to religious freedom to the overridingconstitutional postulates of equality, liberty and personal freedom in PartIII of the Constitution. The dignity of women cannot be disassociatedfrom the exercise of religious freedom. In the constitutional order ofpriorities, the right to religious freedom is to be exercised in mannerconsonant with the vision underlying the provisions of Part III. The equalparticipation of women in worship inheres in the constitutional vision ofa just social order.

115. The discourse of freedom in the Constitution cannot bedenuded of its context by construing an Article in Part III detached fromthe part within which it is situated. Even the right of religiousdenomination to manage its own affairs in matters of religion cannot beexercised in isolation from Part III of the Constitution. The primacy ofthe individual, is the thread that runs through the guarantee of rights. In

166 Pandit Govind Ballabh Pant (Member, Constituent Assembly) in speech to theConstituent Assembly on 24 January, 1947

Abeing located in Part III of the Constitution, the exercise of denominationalrights cannot override and render meaningless constitutional protectionswhich are informed by the overarching values of liberal Constitution.

116. The Constitution seeks to achieve transformed society basedon equality and justice to those who are victims of traditional belief systemsBfounded in graded inequality. It reflects guarantee to protect the dignityof all individuals who have faced systematic discrimination, prejudiceand social exclusion. Construed in this context, the prohibition againstuntouchability marks powerful guarantee to remedy the stigmatizationand exclusion of individuals and groups based on hierarchies of the socialstructure. Notions of purity and pollution have been employed toCperpetuate discrimination and prejudice against women. They have noplace in constitutional order. In acknowledging the inalienable dignityand worth of every individual, these notions are prohibited by the guaranteeagainst untouchability and by the freedoms that underlie the Constitution.

In civic as in social life, women have been subjected to prejudice,Dstereotypes and social exclusion. In religious life, exclusionary traditionalcustoms assert claim to legitimacy which owes its origin to patriarchalstructures. These forms of discrimination are not mutually exclusive.The intersection of identities in social and religious life produces uniqueform of discrimination that denies women an equal citizenship under theEConstitution. Recognizing these forms of intersectional discrimination isthe first step towards extending constitutional protection againstdiscrimination attached to intersecting identities.

117. In the dialogue between constitutional freedoms, rights arenot isolated silos. In infusing each other with substantive content, theyFprovide cohesion and unity which militates against practices that departfrom the values that underlie the Constitution – justice, liberty, equalityand fraternity. Substantive notions of equality require the recognition ofand remedies for historical discrimination which has pervaded certainidentities. Such notion focuses on not only distributive questions, but onthe structures of oppression and domination which exclude these identitiesGfrom participation in an equal life. An indispensable facet of an equallife, is the equal participation of women in all spheres of social activity.

The case at hand asks important questions of our conversationwith the Constitution. In dialogue about our public spaces, it raises thequestion of the boundaries of religion under the Constitution. The questH

for equality is denuded of its content if practices that exclude womenare treated to be acceptable. The Constitution cannot allow practices,irrespective of their source, which are derogatory to women. Religioncannot become cover to exclude and to deny the right of every womanto find fulfillment in worship. In his speech before the ConstituentAssembly on 25 November 1949, Dr R Ambedkar sought answers tothese questions: ‘How long shall we continue to live this life ofcontradictions? How long shall we continue to deny equality in our socialand economic life?’[167] Sixty eight years after the advent of theConstitution, we have held that in providing equality in matters of faithand worship, the Constitution does not allow the exclusion of women.118. Liberty in matters of belief, faith and worship, must producea compassionate and humane society marked by the equality of statusof all its citizens. The Indian Constitution sought to break the shackles ofsocial hierarchies. In doing so, it sought to usher an era characterized bya commitment to freedom, equality and justice. The liberal values of theConstitution secure to each individual an equal citizenship. This recognizesthat the Constitution exists not only to disenable entrenched structuresof discrimination and prejudice, but to empower those who traditionallyhave been deprived of an equal citizenship. The equal participation ofwomen in every sphere of the life of the nation subserves that premise.

119. I hold and declare that:

1) The devotees of Lord Ayyappa do not satisfy the judiciallyenunciated requirements to constitute religious denomination underArticle 26 of the Constitution;

2) claim for the exclusion of women from religious worship,even if it be founded in religious text, is subordinate to the constitutionalvalues of liberty, dignity and equality. Exclusionary practices are contraryto constitutional morality;

3) In any event, the practice of excluding women from the templeat Sabarimala is not an essential religious practice. The Court must declineto grant constitutional legitimacy to practices which derogate from thedignity of women and to their entitlement to an equal citizenship;

4) The social exclusion of women, based on menstrual status, is aform of untouchability which is an anathema to constitutional values.

167 Dr. R Ambedkar in speech to the Constituent Assembly on 25 November 1949

ANotions of “purity and pollution”, which stigmatize individuals, have noplace in constitutional order;

5) The notifications dated 21 October 1955 and 27 November1956 issued by the Devaswom Board, prohibiting the entry of womenbetween the ages of ten and fifty, are ultra vires Section 3 of the KeralaBHindu Places of Public Worship (Authorisation of Entry) Act 1965 andare even otherwise unconstitutional; and

6) Hindu women constitute ‘section or class’ of Hindus underclauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965Rules enforces custom contrary to Section 3 of the 1965 Act. ThisCdirectly offends the right of temple entry established by Section 3. Rule3(b) is ultra vires the 1965 Act.

Acknowledgment

Before concluding, I acknowledge the efforts of the counsel forthe parties who appeared in this case – Ms Indira Jaising, Dr. AbhishekDManu Singhvi, Mr K Parasaran, Mr Jaideep Gupta, Mr V Giri, Mr P VSurendranath, and Mr K Radhakrishnan, Senior Counsel; and Mr RaviPrakash Gupta, Mr J Sai Deepak, Mr V K Biju, and Mr GopalSankaranarayanan, learned Counsel. I acknowledge the dispassionateassistance rendered by Mr Raju Ramachandran and Mr K Ramamoorthy,ESenior Counsel who appeared as Amicus Curiae. Their knowledge anderudition have enriched my own learning.

INDU MALHOTRA, J.

1. The present Writ Petition has been filed in public interest by aregistered association of Young Lawyers. The Intervenors in theFApplication for Intervention have averred that they are gender rightsactivists working in and around the State of Punjab, with focus onissues of gender equality and justice, sexuality, and menstrualdiscrimination.

The Petitioners have interalia stated that they learnt of the practiseGof restricting the entry of women in the age group of 10 to 50 years inthe Sabarimala Temple in Kerala from three newspaper articles writtenby BarkhaDutt (Scent of Woman, Hindustan Times; July 1, 2006),Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and VirSanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times;July 2, 2006).H

The Petitioners have challenged the Constitutional validity of Rule3(b) of the Kerala Hindu Places of Public Worship (Authorisation ofEntry) Rules, 1965 (hereinafter referred to as “the 1965 Rules”), whichrestricts the entry of women into the Sabarimala Temple as beingultravires Section 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965 (hereinafter referred to as “the 1965Act”).

Further, the Petitioners have prayed for the issuance of Writ ofMandamus to the State of Kerala, the Travancore Devaswom Board,the Chief Thanthri of Sabarimala Temple and the District Magistrate ofPathanamthitta to ensure that female devotees between the age groupof 10 to 50 years are permitted to enter the Sabarimala Temple withoutany restriction.

2. SUBMISSIONSOF PETITIONERSAND INTERVENORS

The Petitioners and the Intervenors were represented by Mr. R.P.Gupta, and Ms. Indira Jaising, Senior Advocate. Mr. Raju Ramachandran,learned Senior Advocate appeared as Amicus Curiae who supportedthe case of the Petitioners.

(i) In the Writ Petition, the Petitioners state that the present casepertains to centuries old customof prohibiting entry of womenbetween the ages of 10 years to 50 years into the SabarimalaTemple of Lord Ayyappa.

The customary practise, as codified in Rule 3(b) of the 1965Rules read with the Notifications issued by the TravancoreDevaswom Board dated October 21, 1955 and November 27,1956, does not meet the tests of Articles 14, 15 and 21 of theConstitution.

This exclusionary practise violates Article 14 asthe classificationlacks Constitutional object. It is manifestly arbitrary as it isbased on physiological factors alone, and does not serve anyvalid object.

(ii) The customary practise violates Article 15(1) of the Constitutionas it is based on ‘sex’ alone.

The practise also violates Article 15(2)(b) since the SabarimalaTemple is public place of worship being open and dedicated

Ato the public and is partly funded by the State under Article290A.

(iii) Article 25 guarantees the Fundamental Right to an individualto worship or follow any religion.

The 1965 Act has been passed in furtherance of the goalsBenshrined in Article 25(2)(b) as ‘measure of social reform’.The Act contains no prohibition against women from enteringany public temple.

(iv) Rule 3(b) of the 1965 Rules is ultravires the Act insofar as itprohibits the entry of women.C

(v) The Petitioners contend that religious denomination musthave the following attributes:

• It has its own property & establishment capable of successionby its followers.

• It has its distinct identity clearly distinguishable from anyestablished religion.

• It has its own set of followers who are bound by distinct set ofbeliefs, practises, rituals or beliefs.

E• It has the hierarchy of its own administration, not controlled byany outside agency.

It wascontended that the devotees of Lord Ayyappa do notconstitute religious denomination under Article 26 as they do not havea common faith, or distinct name. The devotees of Lord Ayyappa areFnot unified on the basis of some distinct set of practises. Every templein India has its own different set of rituals. It differs from region toregion. minor difference in rituals and ceremonies does not makethem separate religious denomination.

The devotees of Lord Ayyappa do not form religiousGdenomination since the tests prescribed by this Court have not beensatisfied in this case. Even assuming that the devotees of Lord Ayyappaconstitute religious denomination, their rights under Article 26(b) wouldbe subject to Article 25(2)(b) in line with the decision of this Court in SriVenkataramana Devaru & Ors. v. State of Mysore & Ors.[1].

1 1958 SCR 895 : AIR 1958 SC 255H

It was further submitted that there are no exclusive followers ofthis Temple except general Hindu followers visiting any Hindu temple.

Reliance was placed on the judgments of this Court in SardarSyedna Taher Saifuddin Saheb v. State of Bombay[2], Raja BiraKishore Deb, Hereditary Superintendent, Jagannath Temple, P.O.and District Puri v. State of Orissa[3], and in S. P. Mittal v. Union ofIndia & Ors.[4].

(vi) Even if the Sabarimala Temple is taken to be religiousdenomination, the restriction on the entry of women is not anessential religious practise.

The prohibition on women between the ages of 10 to 50 years

from entering the templedoes not constitute the core foundationof the assumed religious denomination. Any law or custom tobe protected under Article 26 must have Constitutionallegitimacy.

(vii)The exclusionary practise is violative of Article 21, as it hasthe impact of casting stigma on women as they are consideredto be polluted, which has huge psychological impact on them,and undermines their dignity under Article 21.

The exclusionary practise is violative of Article 17 as it is

direct form of “Untouchability”. Excluding women from publicplaces such as temples, based on menstruation, is form of‘untouchability’. This Article is enforceable both against non-State as well as State actors.

(viii) Mr. Raju Ramachandran, learned Amicus Curiae, submittedthat the Sabarimala Temple is place of public worship. It ismanaged and administered by statutory body i.e. theTravancore Devaswom Board. According to him, publictemple by its very character is established, and maintained forthe benefit of its devotees. The right of entry emanates fromthis public character, and is legal right which is not dependentupon the temple authorities.

The Travancore Devaswom Board is statutorily createdauthority under the Travancore – Cochin Hindu Religious 2 1962 Supp (2) SCR 496 : AIR 1962 SC 853 3 (1964) 7 SCR 32 : AIR 1964 SC 1501

4 (1983) 1 SCC 51

AInstitutions Act, 1950, and receives an annual payment fromthe Consolidated Fund of India under Article 290A. It wouldsquarely fall within the ambit of “other authorities” in Article12, and is duty bound to give effect to the Fundamental Rights.

(ix) The Fundamental Right to worship under Article 25(1) is aBnon-discriminatory right, and is equally available to both menand women alike. The right of woman to enter the Templeas devotee is an essential aspect of her right to worship, andis necessary concomitant of the right to equality guaranteedby Articles 15.

The non-discriminatory right of worship is not dependent uponthe will of the State to provide for social welfare or reformunder Article 25(2)(b).

Article 25(2)(b) is not merely an enabling provision, but providesa substantive right. The exclusion of women cannot be classifiedDas an essential religious practise in the absence of any scripturalevidence being adduced on the part of the Respondents.

(x) The exclusionary practise results in discrimination againstwomen as class, since significant section of women areexcluded from entering the Temple. Placing reliance on theE“impact test” enunciated by this Court in Bennett Coleman &Co. & Ors. v. Union of India & Ors.[5], he submitted that thediscrimination is only on the ground of “sex” since the biologicalfeature of menstruation emanates from the characteristics ofthe particular sex.

(xi)Article 17 prohibits untouchability “in any form” in order toFabolish all practises based on notions of purity, and pollution.The exclusion of menstruating women is on the same footingas the exclusion of oppressed classes.

(xii)The term “morality” used in Articles 25 and 26 refers toConstitutional Morality, and not an individualised or sectionalisedGsense of morality. It must be informed by Articles 14, 15, 17,38, and 51A.

(xiii) Mr. Ramachandran, learned Amicus Curiae submitted thatRule 3(b) of the 1965 Act is ultravires Section 3 of the 1965

5 (1972) 2 SCC 788H

Act insofar as it seeks to protect customs and usages,whichSection 3 specifically over-rides. The justification for Rule 3cannot flow from the proviso to Section 3, since the provisocan only be interpreted in line with the decision of this Court inSri Venkataramana Devaru & Ors. v. State of Mysore &Ors. (supra). It is ultravires Section 4 since it provides thatthe Rules framed thereunder cannot be discriminatory againstany section or class.

3. SUBMISSIONSOFTHE RESPONDENTS

The State of Kerala was represented by Mr. Jaideep Gupta, SeniorAdvocate. The Travancore Dewaswom Board was represented by Dr.A.M. Singhvi, Senior Advocate.The Chief Thanthri was represented byMr. V. Giri, Senior Advocate.The Nair Service Society was representedby Mr. K. Parasaran, Senior Advocate.The Raja of Pandalam wasrepresented by Mr. K. Radhakrishnan.Mr. J. Sai Deepak appeared onbehalf of Respondent No. 18 and Intervenor by the name of People forDharma.Mr. Ramamurthy, Senior Advocate appeared as Amicus Curiaewho supported the case of the Respondents.

4. The State of Kerala filed two Affidavits in the present WritPetition.

The State of Kerala filed an Affidavit dated November 13, 2007supporting the cause of the Petitioners.The State however prayed forthe appointment of an “appropriate commission” to submit suggestions/views on whether entry of women between the ages of 10 to 50 yearsshould be permitted. Some of the averments made in the said Affidavitare pertinent to note, and are being reproduced herein below for reference:

“…As such, Government cannot render an independentdirection against the present prevailing custom, regard beinghad to the finality of the said judgment [Kerala High Court’sdecision in S. Mahendran (supra)] over the disputed questionsof facts which requires the necessity of adducing evidencealso…

…Thus, Government is of the opinion that no body should beprohibited from their right to worship, but considering thefact that the matter of entry to Sabarimala is practisefollowed for so many years and connected with the belief

Aand values accepted by the people and since there is bindingHigh Court judgment in that regard, Government felt that thisHon’ble Court may be requested to appoint an appropriatecommission consisting of eminent scholars with authenticknowledge in Hinduism and reputed and uncorrupt socialreformers to submit suggestions/views on the issue whether itBis open to all women, irrespective of their age to enter the”temple and make worship…

(Emphasis supplied)

In the subsequent Additional Affidavit dated February 4, 2016Cfiled by the State, it was submitted that the assertions made in the previousAffidavit dated November 13, 2007 erroneously sought to support thePetitioners. It was submitted that it was not open for the StateGovernment to take stand at variance with its position before the KeralaHigh Court in S. Mahendran v. The Secretary, Travancore DevaswomBoard, Thiruvananthapuram & Ors.[6]and in contravention of theDdirections issued therein. It was asserted that the practise of restrictingthe entry of women between the ages of 10 to 50 years is an essentialand integral part of the customs and usages of the Temple, which isprotected under Articles 25 and 26 of the Constitution. Being religiouscustom, it is also immune from challenge under other provisions of PartEIII of the Constitution in light of the ruling of this Court in Riju PrasadSharma & Ors. v. State of Assam & Ors.[7].

However, during the course of hearing before the three-JudgeBench at the time of reference, it was submitted that the State would betaking the stand stated in the Affidavit dated November 13, 2007.F

5. The submissions made by the Respondent No.2 – TravancoreDevaswom Board, Respondent No. 4 – the Thanthri of the Temple,Respondent No. 6 – the Nair Service Society, Respondent Nos. 18 and19 are summarised hereinbelow:

(i) The Sabarimala Temple, dedicated to Lord Ayyappa, is aGprominent temple in Kerala which is visited by over twenty million pilgrimsand devotees every year. As per centuries old tradition of this temple,and the ‘acharas’, beliefs and customs followed by this Temple, womenin the age group of 10 to 50 years are not permitted to enter this Temple. 6 AIR 1993 Ker 42 7 (2015) 9 SCC 461H

This is attributable to the manifestation of the deity at theSabarimala Temple which is in the form of ‘Naishtik Bramhachari’,who practises strict penance, and the severest form of celibacy.

According to legend, it is believed that Lord Ayyappa, the presidingdeity of Sabarimala had his human sojourn at Pandalam as the son ofthe King of Pandalam, known by the name of Manikandan, who foundhim as radiant faced infant on the banks of the river Pampa, wearinga bead (‘mani’) around his neck. Manikandan’s feats and achievementsconvinced the King and others of his divine origin.

The Lord told the King that he could construct temple atSabarimala, north of the holy river Pampa, and install the deity there.The King duly constructed the temple at Sabarimala and dedicated it toLord Ayyappa. The deity of Lord Ayyappa in Sabarimala Temple wasinstalled in the form of ‘Naishtik Brahmachari’ i.e. an eternal celibate.

Lord Ayyappa is believed to have explained the manner in whichthe pilgrimage to the Sabarimala Temple is to be undertaken, afterobserving 41-day ‘Vratham’.

It is believed that Lord Ayyappa himself undertook the 41-day‘Vratham’ before he went to Sabarimala Temple to merge with the deity.The whole process of the pilgrimage undertaken by pilgrim is to replicatethe journey of Lord Ayyappa. The mode and manner of worship at thisTemple as revealed by the Lord himself is chronicled in the ‘SthalPurana’ i.e. the ‘Bhuthanatha Geetha’.

The 41 day “Vratham” is centuries old custom and practiseundertaken by the pilgrims referred to as ‘Ayyappans’. The object ofthis ‘Vratham’ is to discipline and train the devotees for the evolution ofspiritual consciousness leading to self-realization. Before embarking onthe pilgrimage to this shrine, key essential of the ‘Vratham’ isobservance of ‘Sathvic’ lifestyle and ‘Brahmacharya’ so as to keepthe body and mind pure. basic requirement of the ‘Vratham’ is towithdraw from the materialistic world and step onto the spiritual path.

When pilgrim undertakes the ‘Vratham’, the pilgrim separateshimself from the women-folk in the house, including his wife, daughter,or other female members in the family.

The “Vratham” or penance consists of:

A• Forsaking all physical relations with one’s spouse;

• Giving up anything that is intoxicating, including alcohol, cigarettesand ‘tamasic’ food;

• Living separately from the rest of the family in an isolated roomBor separate building;

• Refraining from interacting with young women in daily life,including one’s daughter, sister,or other young women relatives;

• Cooking one’s own food;

• Observing cleanliness, including bathing twice day beforeprayers;

• Wearing black mundu and upper garments;

• Having only one meal day;

D• Walking barefoot.

On the 41[st] day, after puja, the pilgrim takes the irimudi (consistingof rice and other provisions for one’s own travel, alongwith coconutfilled with ghee and puja articles) and starts the pilgrimage to climb the18 steps to reach the ‘Sannidhanam’, for darshan of the deity. ThisEinvolves walking from River Pampa, climbing 3000 feet to theSannidhanam, which is climb of around 13 kilometres through denseforests.

As part of this system of spiritual discipline, it is expresslystipulated that women between the ages of 10 to 50 years should notundertake this pilgrimage.F

(ii) This custom or usage is understood to have been prevalentsincethe inception of this Temple, which is since the past severalcenturies.Reliance was placed on comprehensive thesis by RadhikaSekar on this Temple.[8] Relevant extracts from the thesis are reproducedhereinbelow:G

“The cultus members maintain the strictest celibacy beforethey undertake their journey through the forests to theSabarimala shrine. This emphasis on celibacy could be in 8 Radhika Sekar, The Process of Pilgrimage: The AyyappaCultus and SabarimalaiYatra (Faculty of Graduate Studies, Department of Sociology and Anthropology atHCarleton University, Ottawa, Ontario; October 1987)

order to gain protection from other forest spirits, for asmentioned earlier, Yaksas are said to protect “sages andcelibates…

…Though there is no formal declaration, it is understood thatthe Ayyappa (as he is now called) will follow the strictestcelibacy, abstain from intoxicants and meat, and participateonly in religious activities.He may continue to work at hisprofession, but he may not indulge in social enterprises.Ayyappas are also required to eat only once day (at noon)and to avoid garlic, onion and stale food. In the evening,they may eat fruit or something very light. As far as the dresscode is concerned, degree of flexibility is allowed duringthe vratam period. The nature of one’s profession does notalways permit this drastic change in dress code. For example,Ayyappas in the army or police force wear their regularuniforms and change into black only when off duty. Black orblue vestis and barefootedness are, however, insisted uponduring the actual pilgrimage……The rule of celibacy is taken very seriously and includescelibacy in thought and action. Ayyappas are advised to lookupon all women older than them as mothers and those youngeras daughters or sisters. Menstrual taboos are now strictlyimposed….. Sexual cohabitation is also forbidden. Duringthe vratam, Ayyappas not only insist on these taboos beingrigidly followed but they go step further and insist onphysical separation. It is not uncommon for wife, daughteror sister to be sent away during her menses if male memberof the household has taken the vratam….”

(Emphasis supplied)

In the Memoir of the Survey of the Travancore and Cochin Stateswritten by Lieutenants Ward and Conner,reference has been maderegarding the custom and usage prevalent at Sabarimala Temple. TheMemoir of the Survey was originally published in two parts in 1893 and1901 giving details of the statistical and geographical surveys of theTravancore and Cochin States. Reference was sought to be made to thefollowing excerpt from the survey:

A“…old women and young girls, may approach the temple, butthose who have attained puberty and to certain time of lifeare forbid to approach, as all sexual intercourse in that vicinityis averse to this deity…”[9]

(iii) Dr.Singhvisubmitted that practise started in hoary antiquity,Band continued since time immemorial without interruption, becomes ausage and custom. Reliance, in this regard, was placed on the judgmentsof Ewanlangki-E-Rymbaiv. Jaintia Hills District Council & Ors.[10 ],Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa[11 ], and Salekh

Chand (Dead) by LRs v. Satya Gupta & Ors.[12].The custom and usage of restricting the entry of women in theCage group of 10 to 50 years followed in the Sabarimala Temple is pre-constitutional. As per Article 13(3)(a) of the Constitution, “law” includescustom or usage, and would have the force of law.

The characteristics and elements of valid custom are that itmust be of immemorial existence, it must be reasonable, certain andDcontinuous. The customs and usages, religious beliefs and practises asmentioned above are peculiar to the Sabarimala Temple, and haveadmittedly been followed since centuries.

(iv) The exclusion of women in this Temple is not absolute oruniversal. It is limited to particular age group in one particular temple,Ewith the view to preserve the character of the deity. Women outside theage group of 10 to 50 years are entitled to worship at the SabarimalaTemple. The usage and practise is primary to preserve the sacred formand character of the deity. It was further submitted that the objection tothis custom is not being raised by the worshippers of Lord Ayyappa, butby social activists.F

(v) It was further submitted that there are about 1000 templesdedicated to the worship of Lord Ayyappa, where the deity is not in the’form of ‘Naishtik Brahmachari. In those temples, the mode andmanner of worship differs from Sabarimala Temple, since the deity hasmanifested himself in different form. There is no similar restriction onGthe entry of women in the other Temples of Lord Ayyappa, where womenof all ages can worship the deity.

9 Lieutenants Ward and Conner, Memoir of the Survey of the Travancore and CochinStates (First Reprint 1994, Government of Kerala) at p. 137

10 (2006) 4 SCC 748

11 (2006) 13 SCC 627H 12 (2008) 13 SCC 119

(vi) Mr. Parasaran, Senior Advocate submitted that the restrictionon entry of women is part of the essential practise of this Temple, andthe pilgrimage undertaken. It is clearly intended to keep the pilgrimsaway from any distraction related to sex, as the dominant objective ofthe pilgrimage is the creation of circumstances in all respects for thesuccessful practise of the spiritual self-discipline.

The limited restriction on the entry of women from 10 to 50 years,in the Sabarimala Temple is matter of ‘religion’ and ‘religious faith andpractise’, and the fundamental principles underlying the ‘prathishtha’(installation) of the Sabarimala Temple, as well as the custom and usageof worship of the deity - Lord Ayyappa.

(vii) With respect to the contention that the custom is violative ofwomen’s right to gender equality, Mr. V. Giri, Senior Advocate interaliasubmitted that if women as class were prohibited from participation, itwould amount to social discrimination. However, this is not so in thepresent case. Girls below 10 years, and women after 50 years can freelyenter this Temple, and offer worship Further, there is no similar restrictionon the entry of women at the other Temples of Lord Ayyappa.

The classification of women between the ages of 10 to 50 years,and men of the same age group, has reasonable nexus with the objectsought to be achieved, which is to preserve the identity and manifestationof the Lord as ‘Naishtik Brahmachari’.

(viii) It was submitted by the Respondents that in order to preservethe character of the deity, and the sanctity of the idol at the SabarimalaTemple, the limited restriction is imposed on the entry of women onlyduring the period notified by the Travancore Devaswom Board. Thereis no absolute restriction on women per se. Such practise is consistentwith the ‘Nishta’or ‘Naishtik Buddhi’ of the deity. This being theunderlying reason behind the custom, there is no derogation of the dignityof women. It is only to protect the manifestation and form of the deity,which is sacred and divine, and preserve the penance undertaken by thedevotees.

(ix) It was further submitted that it is the duty of the TravancoreDevaswom Board under Section 31 of the Travancore - Cochin HinduReligious Institutions Act, 1950 to administer the temple in accordancewith the custom and usage of the Temple.

A(x) It was submitted that issues of law and fact should be decidedby competent civil court, after examination of documentary and otherevidence.

(xi) Mr. Parasaran, Senior Advocate further submitted that religionis matter of faith. Religious beliefs are held to be sacred by those whoBhave faith. Reliance was placed on the judgment of this Court inCommissioner, Hindu Religious Endowments, Madras v. SriLakshmindra Swamiar Thirtha Swamiar of Shirur Mutt (supra)wherein the definition of religion from an American case was extractedi.e. “the term ‘religion’ has reference to one’s views of his relationto his Creator and to the obligations they impose of reverence forCHis Being and character and of obedience to His Will”.

Learned Senior Counsel also relied upon the case of SriVenkataramana Devaru & Ors. v. State of Mysore & Ors. (supra)wherein it was observed as follows:

D“The Gods have distinct forms ascribed to them and theirworship at home and in temples is ordained as certain meansof attaining salvation.”

In Tilkayat Shri Govindlalji Maharaj etc.v. State of Rajasthan& Ors.[13], emphasis was laid on the mode of worship adopted whenELord Krishna was worshipped in the form of child.

Religion does not merely lay down code of ethical rules for itsfollowers to accept, but also includes rituals and observances, ceremoniesand modes of worship which are regarded as integral parts of the religion.

(xii) The words ‘religious denomination’ in Article 26 of theFConstitution must take their colour from the word “religion”; and if thisbe so, the expression ‘religious denomination’ must satisfy three conditionsas laid down in S.P. Mittal v. Union of India & Ors. (supra):

“80. (1) It must be collection of individuals who have asystem of beliefs or doctrines which they regard as conduciveGto their spiritual well-being, that is, common faith;

(2) common organisation; and

(3) designation by distinctive name.”

13 (1964) 1 SCR 561 at 582 : AIR 1963 SC 1638H

Religious maths, religious sects, religious bodies, sub-sects or anysection thereof have been held to be religious denominations. Reliancewas placed on the judgments in Commissioner., Hindu ReligiousEndowments, Madras v. Sri Lakshmindra Thirtha Swamiar of SriShirur Mutt (supra); Durgah Committee, Ajmer & Anr. v. Syed HussainAli & Ors.,[14] and Dr. Subramanian Swamy v. State of T.N. & Ors.[15].

Relying on the judgment in Sri Venkataramana Devaru & Ors.v. State of Mysore & Ors. case (supra), Dr. Singhvi submitted thatreligion, in this formulation, is much wider concept, and includes:

• Ceremonial law relating to the construction of Temples;

• Installation of Idols therein;

• Place of consecration of the principle deity;

• Where the other Devatas are to be installed;

• Conduct of worship of the deities;

• Where the worshippers are to stand for worship;

• Purificatory ceremonies and their mode and manner ofperformance;

• Who are entitled to enter for worship; where they are entitled tostand and worship; and, how the worship is to be conducted.

(xiii) It was categorically asserted by the Respondents that thedevotees of Lord Ayyappa constitute religious denomination, who followthe ‘Ayyappan Dharma’, where all male devotees are called‘Ayyappans’ and all female devotees below 10 years and above 50years of age are called ‘Malikapurams’. devotee has to abide by thecustoms and usages of this Temple, if he is to mount the‘pathinettupadikal’ and enter the Sabarimala Temple.

This set of beliefs and faiths of the ‘Ayyappaswamis’, and theorganization of the worshippers of Lord Ayyappa constitute distinctreligious denomination, having distinct practises.

(xiv) It was further submitted that the status of this temple as areligious denomination, was settled by the judgment of the Division Benchof the Kerala High Court in S. Mahendran v. The Secretary, 14 (1962) 1 SCR 383 : AIR 1961 SC 1402 15 (2014) 5 SCC 75

ATravancore Devaswom Board & Ors. (supra). The High Court decidedthe case after recording both documentary and oral evidence. The thenThanthri – Sri Neelakandaru, who had installed the deity was examinedby the High Court as C.W.6, who stated that women during the agegroup of 10 to 50 years were prohibited from entering the temple muchbefore the 1950s.B

This judgment being declaration of the status of this temple as areligious denomination, is judgment in rem. The said judgment has notbeen challenged by any party. Hence, it would be binding on all parties,including the Petitioners herein.

The following observation from the judgment of this Court in Dr.CSubramanian Swamy v. State of Tamil Nadu & Ors. (supra) wasrelied upon:

“The declaration that Dikshitars are religious denominationor section thereof is in fact declaration of their status andmaking such declaration is in fact judgment in rem.”D

(Internal quotations omitted)

(xv) Unlike Article 25, which is subject to the other provisions ofPart III of the Constitution, Article 26 is subject only to public order,morality, and health, and not to the other provisions of the Constitution.As result, the Fundamental Rights of the denomination is not subject toEArticles 14 or 15 of the Constitution.

With respect to Article 25(1), it was submitted that the worshippersof Lord Ayyappa are entitled to the freedom of conscience, and the rightto profess, practise and propagate their religion. The right to professtheir faith by worshipping at the Sabarimala Temple, can be guaranteedFonly if the character of the deity as ‘Naishtik Brahmachari’ ispreserved. If women between the age of 10 to 50 years are permittedentry, it would result in changing the very character/nature of the deity,which would directly impinge on the right of the devotees to practisetheir religion guaranteed by Article 25(1) of the Constitution.

The right of the devotees under Article 25(1) cannot be madesubject to the claim of the Petitioners to enter the temple under Articles14 and 15 of the Constitution, since they do not profess faith in the deityof this Temple, but claim merely to be social activists.

(xvi) Article 25(2)(b) declares that nothing in Article 25(1) shallprevent the State from making any law providing for social welfare and

reform or the throwing open of Hindu religious institutions of publiccharacter to all classes and sections of Hindus. The ‘throwing open’ to‘all classes and sections of Hindus’ was intended to redress caste-basedprejudices and injustices in society.

Article 25(2)(b) cannot be interpreted to mean that customs andusages forming an essential part of the religion, are to be overridden.

Article 25(2)(b) would have no application since there is no ban,but only limited restriction during the notified period, based on faith,custom and belief, which has been observed since time immemorial.

(xvii) The Respondents submitted that the plea of the Petitionerswith reference to Article 17, was wholly misconceived. The object andcore of Article 17 was to prohibit untouchability based on ‘caste’ in theHindu religion. No such caste-based or religion-based untouchability ispractised at the Sabarimala Temple.

The customs practised by the devotees at the Sabarimala Templedo not flow from any practise associated with untouchability under Article17. The custom is not based on any alleged impurity or disability. Hence,the contention was liable to be rejected.

6. DISCUSSIONANDANALYSIS

We have heard the arguments of the Counsel representing variousparties, and perused the pleadings and written submissions filed by them.

6.1. The issues raised in the present Writ Petition have far-reachingramifications and implications, not only for the Sabarimala Temple inKerala, but for all places of worship of various religions in this country,which have their own beliefs, practises, customsand usages, which maybe considered to be exclusionary in nature. In secular polity, issueswhich are matters of deep religious faith and sentiment, must not ordinarilybe interfered with by Courts.

6.2. In the past, the Courts,in the context of Hindu temples, havebeen asked to identify the limits of State action under Articles 25 and 26on the administration, control and management of the affairs of temples,including the appointment of archakas. For instance, in the case of AdiSaiva Sivachariyargal Nala Sangam & Ors. v. Government of TamilNadu & Anr.[16], this Court was asked to consider the issue of appointmentof archakas in Writ Petitions filed by an association of archakas andindividual archakas of Sri Meenakshi Amman Temple of Madurai. 16 (2016) 2 SCC 725

AThe present case is PIL filed by an association of lawyers, whohave invoked the writ jurisdiction of this Court to review certain practisesbeing followed by the SabarimalaTemple on the grounds of genderdiscrimination against women during the age-band of 10 to 50 years.

7. MAINTAINABILITY& JUSTICIABILITY

B7.1. Article 25 of the Constitution guarantees to all persons thefreedom of conscience, and the right freely to profess, practise andpropagate religion. This is however subject to public order, morality andhealth, and to the other provisions of Part III of the Constitution.

7.2. The right to move the Supreme Court under Article 32 forviolation of Fundamental Rights, must be based on pleading that theCPetitioners’personal rights to worshipin this Temple have been violated.The Petitioners do not claim to be devotees of the Sabarimala Templewhere Lord Ayyappais believed to have manifestedhimself as ‘Naishtik’Brahmachari. To determine the validity of long-standing religiouscustoms and usages of sect, at the instance of an association/IntervenorsDwho are “involved in social developmental activities especiallyactivities related to upliftment of women and helping them becomeaware of their rights”[17], would require this Court to decide religiousquestions at the behest of persons who do not subscribe to this faith.The right to worship, claimed by the Petitioners has to be predicatedon the basis of affirmation of belief in the particular manifestation ofEthe deity in this Temple.

7.3. The absence of this bare minimum requirement must notbeviewed as mere technicality, but an essential requirement to maintain achallenge for impugning practises of any religious sect, or denomination.Permitting PILs in religious matterswould open the floodgates toFinterlopers to question religious beliefs and practises, even if the petitioneris not believer of particular religion, or worshipper of particularshrine. The perils are even graver for religious minorities if such petitionsare entertained.

Dr.A.M. Singhvi, Senior Advocate appeared on behalf oftheTravancore Devaswom Board, and submitted an illustrative list ofGvarious religious institutions where restrictions on the entry of both menand women exist on the basis of religious beliefsand practises beingfollowed since time immemorial.[18]

17 Paragraph 2 of the Writ Petition.

18 Annexure C-8 in the Non-Case Law Convenience Compilation submitted by Dr.A.M. Singhvi, Senior Advocate enlists places of worship where women are notHallowed.

7.4. In matters of religion and religious practises,Article 14 canbe invoked only by persons who are similarly situated, that is, personsbelonging to the same faith, creed, or sect. The Petitioners do not statethat they are devotees of Lord Ayyappa, who are aggrieved by thepractises followed in the Sabarimala Temple. The right to equality underArticle 14 in matters of religion and religious beliefs has to be vieweddifferently. It has to be adjudged amongst the worshippers of particularreligion or shrine, who are aggrieved by certain practises which arefound to be oppressive or pernicious.

7.5. Article 25(1) confers on every individual the right to freelyprofess, practise and propagate his or her religion.[19 ]The right of anindividual to worship specific manifestation of the deity, in accordancewith the tenets of that faith or shrine, is protected by Article 25(1) of theConstitution. If person claims to have faith in certain deity, the samehas to be articulated in accordance with the tenets of that faith.

In the present case, the worshippers of this Temple believe in themanifestation of the deity as ‘Naishtik Brahmachari’. The devoteesof this Temple have not challenged the practises followed by this Temple,based onthe essential characteristics of the deity.

7.6. The right to practise one’sreligion is Fundamental Rightguaranteed by Part III of the Constitution, without reference to whetherreligion or the religious practisesare rational or not. Religious practisesare Constitutionally protected under Articles 25 and 26(b). Courts normallydo not delve into issues of religious practises, especially in the absenceof an aggrieved personfrom that particular religious faith, or sect.

In Hans Muller of Nurenburg v. Superintendent, PresidencyJail, Calcutta &Ors.[20], this Court held that person can impugn aparticular law under Article 32 only if he is aggrieved by it.

This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple inPehowa, Haryana and Pushkar, Rajasthan; Bhavani Deeksha Mandapam in Vijaywada;Patbausi Satra in Assam; Mangala Chandi Temple in Bokaro, Jharkhand.

Annexure C-7 in the Non-Case Law Convenience Compilation submitted by Dr.A.M. Singhvi, Senior Advocate enlists places of worship where women are notallowed. This list includes the Temple of Lord Brahma in Pushkar, Rajasthan; theBhagati Maa Temple in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple inKerala; the Chakkulathukavu Temple in Kerala; and the Mata Temple in Muzaffarpur,Bihar.

19 H.M. Seervai, Constitutional Law of India : Critical Commentary, Vol. II (4th Ed.,Reprint 1999), at Pg. 1274, para 12.35. 20 (1955) 1 SCR 1284 : AIR 1955 SC 367.

A7.7. Precedents under Article 25 have arisen against State action,and not been rendered in PIL.

An illustrative list of such precedents is provided hereinbelow:(i) In Commissioner, Hindu Religious Endowments, Madras v.Shri Lakshimdra Thirtha Swamiar of Sri Shirur Mutt (supra), thisCourt had interpreted Articles 25 and 26 at the instance of theMathadhipati or superior of the Shirur Mutt who was in-charge ofmanaging its affairs. The Mathadhipati was aggrieved by actions takenby the Hindu Religious Endowments Board, which he claimed wereviolative of Articles 25 and 26.

(ii) In Sri Venkataramana Devaru & Ors. v. State of Mysore &Ors.(supra), this Court dealt with the question whether the rights underArticle 26(b) are subject to Article 25(2)(b), at the instance of the Templeof Sri Venkataramana and its trustees who belonged to the sect knownas Gowda Saraswath Brahmins.

(iii) In Mahant Moti Das v. S.P. Sahi, The Special Officer InCharge of Hindu Religious trust & Ors.[21], this Court considered theConstitutional validity of actions taken by the Bihar State Board ofReligious Trusts under the Bihar Hindu Religious Trusts Act, 1950 asbeing violative of the Fundamental Rights of Mahants of certain MathsEor Asthals guaranteed, inter alia, under Articles 25 and 26.

(iv) In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali &Ors. (supra), this Court was called upon to decide the Constitutionalityof the Durgah Khwaja Saheb Act, 1955 in view of Articles 25 and 26,inter alia, at the instance of Khadims of the Tomb of KhwajaMoin-ud-din Chisti of Ajmer. The Khadims claimed to be part of aFreligious denomination by the name of Chishtia Soofies.

(v) In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay(supra), this Court was called upon to test the Constitutionality of theBombay Prevention of Excommunication Act, 1949 on the ground that itviolated Fundamental Rights guaranteed under Articles 25 and 26 to theGpetitioner who was the Dai-ul-Mutlaq or Head Priest of the DawoodiBohra Community.

(vi) In Bijoe Emmanuel & Ors. v. State of Kerala & Ors.[22],three children belonging to sect of Christianity called Jehovah’s 21 1959 Supp (2) SCR 563 :AIR 1959 SC 942H 22 (1986) 3 SCC 615

Witnesses had approached the Kerala High Court by way of Writ Petitionsto challenge the action of the Headmistress of their school, who hadexpelled them for not singing the National Anthem during the morningassembly. The children challenged the action of the authorities as beingviolative of their rights under Articles 19(1)(a) and Article 25. This Courtheld that the refusal to sing the National Anthem emanated from thegenuine and conscientious religious belief of the children, which wasprotected under Article 25(1).

In pluralistic society comprising of people with diverse faiths,beliefs and traditions, to entertain PILs challenging religious practisesfollowed by any group, sect or denomination, could cause serious damageto the Constitutional and secular fabric of this country.

8. APPLICABILITYOFARTICLE 14 IN MATTERSOF RELIGIONANDRELIGIOUS PRACTISES

8.1. Religious customs and practises cannot be solely tested onthe touchstone of Article 14 and the principles of rationality embeddedtherein. Article 25 specifically provides the equal entitlement of everyindividual to freely practise their religion. Equal treatment under Article 25is conditioned by the essential beliefs and practises of any religion. Equalityin matters of religion must be viewed in the context of the worshippersof the same faith.

8.2. The twin-test for determining the validity of classificationunder Article 14 is:

• The classification must be founded on an intelligible differentia;and

• It must have rational nexus with the object sought to beachieved by the impugned law.

The difficulty lies in applying thetests under Article 14 to religiouspractises which are also protected as Fundamental Rights under ourConstitution. The right to equality claimed by the Petitioners underArticle 14 conflicts with the rights of the worshippers of this shrine whichis also Fundamental Right guaranteed by Articles 25, and 26 of theConstitution. It would compel the Court to undertake judicial reviewunder Article 14 to delineate the rationality of the religious beliefs orpractises, which would be outside the ken of the Courts. It is not for thecourts to determine which of these practises of faith are to be struck

Adown, except if they are pernicious, oppressive, or social evil, like Sati.

8.3. The submissions made by the Counsel for the Petitioners ispremised on the view that this practise constitutes gender discriminationagainst women. On the other hand, the Respondents submit that thepresent case deals with the right of the devoteesof this denomination orBsect, as the case may be, to practise their religion in accordance with thetenets and beliefs, which are considered to be “essential” religiouspractises of this shrine.

8.4. The Petitioners and Intervenors havecontended that the agegroup of 10 to 50 years is arbitrary, and cannot stand the rigours ofCArticle 14. This submission cannot be accepted, since the prescriptionof this age-band is the only practical way of ensuring that the limitedrestriction on the entry of women is adhered to.

8.5. The right to gender equality to offer worship to Lord Ayyappaisprotected by permitting women of all ages, to visit temples where he hasDnot manifested himself in the form of ‘Naishtik Brahamachari’, andthere is no similar restriction in those temples.It is pertinent to mentionthat the Respondents, in this context, have submitted that there are over1000 temples of Lord Ayyappa, where he has manifested in other forms,and this restriction does not apply.

8.6. The prayers of the Petitioners if acceded to, in its true effect,amounts to exercising powers of judicial review in determining the validityof religious beliefs and practises, which would be outside the ken of thecourts.The issue of what constitutes an essential religious practise is forthe religious community to decide.

9. APPLICABILITYOFARTICLE 15F

9.1. Article 15 of the Constitution prohibits differential treatmentof persons on the ground of ‘sex’ alone.

The limited restriction on the entry of women during the notifiedage-groupbut in the deep-rooted belief of the worshippers that the deityGin the Sabarimala Temple has manifested in the form of ‘NaishtikBrahmachari’.

9.2. With respect to the right under Article 15, Mr. RajuRamachandran, Amicus Curiae had submitted that the Sabarimala Templewould be included in the phrase “places of public resort”, as it occursHin Article 15(2)(b).

In this regard, reference may be made to the debates of theConstituent Assembly on this issue. Draft Article 9 which correspondsto Article 15 of the Constitution, is extracted for ready reference:

“9.Prohibition of discrimination on grounds of religion, race,caste or sex – The State shall not discriminate against anycitizen on grounds only of religion, race, caste, sex or any ofthem

(1) In particular, no citizen shall, on grounds only of religion,race, caste, sex or any of them, be subject to any disability,liability, restriction or condition with regard to—

a. access to shops, public restaurants, hotels and placesof public entertainments, or

b. the use of wells, tanks, roads and places of public resortmaintained wholly or partly out of the revenues of the Stateor dedicated to the use of the general public.

(2) Nothing in this article shall prevent the State from makingany special provision for women and children.”[23]

Professor K.T. Shah proposed Amendment No. 293 for substitutionof sub-clauses (a) & (b) as follows:

“any place of public use or resort, maintained wholly or partlyout of the revenues of the State, or in any way aided,recognised, encouraged or protected by the State, or placededicatedto the use of general public like schools, colleges,libraries, temples, hospitals, hotels and restaurants, placesof public entertainment, recreation or amusement, like theatresand cinema-houses or concert-halls; public parks, gardensor museums; roads, wells, tanks or canals; bridges, posts andtelegraphs, railways, tramways and bus services; and thelike.”[24]

(Emphasis supplied)

23 Draft Constitution of India, Drafting Committee of the Constituent Assembly ofIndia (Manager Government of India Press, New Delhi, 1948) available at http://1 4 . 1 3 9 . 6 0 . 1 1 4 : 8 0 8 0 / j s p u i / i t s t r m / 1 2 3 4 5 6 7 8 9 / 9 6 6 / 7 /Fundamental%20Rights%20%285-12%29.pdf

24 Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29,1948)

AThe Vice-President took up Amendment No. 296 for vote, whichwas moved for addition to sub-clause (a). The Amendment was proposedas under:

“After the words of Public entertainment the words or placesof worshipbe inserted.”[25]

(Emphasis supplied and internal quotations omitted)Amendment No. 301 was also proposed by Mr. Tajamul Hussainfor inclusion of: “places of worship”, “Dharamshalas, and Musafirkhanas”at the end of sub-clause (a).[26]

All these proposals were voted upon, and rejected by theCConstituent Assembly.[27] The Assembly considered it fit not to include‘places of worship’ or ‘temples’ within the ambit of Draft Article 9 ofthe Constitution.

The conscious deletion of “temples” and “places of worship”from the Draft Article 9(1) has to be given due consideration. Thecontention of the learned Amicus Curiae that the Sabarimala TempleDwould be included within the ambit of ‘places of public resort’ underArticle 15(2) cannot be accepted.

10. ROLEOF COURTSIN MATTERS CONCERNING RELIGION

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

In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra),this Court noted that the personal views of judges are irrelevant inascertaining whether particular religious belief or practise must receiveFthe protection guaranteed under Article 25(1). The following observationsof Chinnappa Reddy, J. are instructive in understanding the true role ofthis Court in matters of religion:

“19…We may refer here to the observations of Latham, C.J. inAdelaide Company of Jehovah’s Witnesses v. TheGCommonwealth, decision of the Australian High Courtquoted by Mukherjea, J. in the Shirur Mutt case. Latham,C.J. had said:

25 Statement of Vice-President, Constituent Assembly Debates (November 29, 1948)

26 Statement of Mr. Mohd. Tahir, Constituent Assembly Debates (November 29,1948)

27 Constituent Assembly Debates (November 29, 1948)

The Constitution protects religion within communityorganised under Constitution, so that the continuanceof such protection necessarily assumes the continuance ofthe community so organised. This view makes it possible toreconcile religious freedom with ordered government.Itdoes not mean that the mere fact that the CommonwealthParliament passes law in the belief that it will promotepeace, order and good government of Australia precludesany consideration by court of the question whether thatquestion by Parliament would remove all reality from theconstitutional guarantee. That guarantee is intended to limitthe sphere of action of the legislature. The interpretationand application of the guarantee cannot, under ourConstitution, be left to Parliament. If the guarantee is tohave any real significance it must be left to the courts ofjustice to determine its meaning and to give effect to it bydeclaring the invalidity of laws which infringes it and bydeclining to enforce them. The courts will therefore havethe responsibility of determining whether particular lawcan fairly be regarded, as law to protect the existence ofthe community, or whether, on the other hand, it is lawfor prohibiting the free exercise of any religion…

What Latham, C.J. has said about the responsibility of thecourt accords with what we have said about the function ofthe court when claim to the Fundamental Rights guaranteedby Article 25 is put forward…

…20…In Ratilal’s case we also notice that Mukherjea, J.quoted as appropriate Davar, J.’s following observations inJamshed Ji v. Soonabai:

If this is the belief of the Zoroastrian community, - secular–Judge is bound to accept that belief it is not for him to sitin judgment on that belief, he has no right to interfere withthe conscience of donor who makes gift in favour ofwhat he believes to be the advancement of his religion andthe welfare of his community or mankind.

We do endorse the view suggested by Davar, J.’s observationthat the question is not whether particular religious belief

is genuinely and conscientiously held as part of theprofession or practise of religion. Our personal views andreactions are irrelevant. If the belief is genuinely andconscientiously held it attracts the protection of Article 25but subject, of course, to the inhibitions contained therein.”

(Emphasis supplied; internal quotations and footnotes omitted)

10.2. At this juncture, it would be apposite to deal with certainobservations made by Gajendragadkar, J. in Durgah Committee, Ajmer& Anr. v. Syed Hussain Ali & Ors. (supra), and Tilkayat ShriGovindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra).

In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali &Ors. (supra), reference was made as to how practises emanatingfrom superstition “…may in that sense be extraneous, and unessentialaccretions to religion itself…”.[28]

DSimilarly, in Tilkayat Shri Govindlalji Maharaj etc. v. State ofRajasthan & Ors. (supra), an argument was made by Senior AdvocateG.S. Pathak relying on the statement of Latham, C.J. in AdelaideCompany of Jehovah’s Witnesses Incorporated v. The Commonwealth”[29](supra) that “…what is religion to one is superstition to another….The argument was rejected by Gajendragadkar, J. as being “…of noErelevance…”.[30]

Mr. H.M. Seervai, well-known Constitutional expert and jurist, inhis seminal treatise titled ‘Constitutional Law of India: CriticalCommentary’, has remarked that the observations of Gajendragadkar, J.in Durgah Committee, Ajmer &Anr. v. Syed Hussain Ali & Ors. (supra)Fare obiter. It is inconsistent with the observations of Mukherjea, J. inthe previous decision of Constitution Bench of seven Judges inCommissioner, Hindu Religious Endowments, Madrasv. ShriLakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), and aConstitution Bench of five Judges in RatilalPanachand Gandhi v. TheGState of Bombay & Ors.[31]. Mr. Seervai comments as under:

28 (1962) 1 SCR 383 :AIR 1961 SC 1402 : at paragraph 33

29 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59

30 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59

31 1954 SCR 1055 : AIR 1954 SC 388

“12.18…Although it was wholly unnecessary to do so,Gajendragadkar, J. said:

…it may not be out of place incidentally to strike note ofcaution and observe that in order that the practises inquestion should be treated as part of religion they mustbe regarded by the said religion as its essential and integralpart; otherwise even purely secular practises which arenot an essential or an integral part of religion are apt tobe clothed with religious form and may make claim forbeing treated as religious practises within the meaning ofArticle 26. Similarly, even practises though religious mayhave sprung from merely superstitious beliefs and may inthat sense be extraneous and unessential accretions toreligion itself. Unless such practises are found to constitutean essential and integral part of religion their claim forthe protection under Article 26 may have to be carefullyscrutinised; in other words, the protection must be confinedto such religious practises as are an essential and anintegral part of it and no other.

It is submitted that the above obiter runs directly counter tothe judgment of Mukherjea, J.in the Shirur Mutt Case andsubstitutes the view of the court for the view of thedenomination on what is essentially matter of religion. Thereference to superstitious practises is singularly unfortunate,for what is ‘superstition’ to one section of the public may be amatter of fundamental religious belief to another.Thus, fornearly 300 years bequests for masses for the soul of testatorwere held void as being for superstitious uses, till that viewwas overruled by the House of Lords in Bourne v. Keane. It issubmitted that in dealing with the practise of religion protectedby provisionslike those contained in s. 116, Commonwealthof Australia Act or in Article 26(b) of our Constitution, it isnecessary to bear in mind the observations of Latham C.J.quoted earlier, namely, that those provisions must be regarded

as operating in relation to all aspects of religion, irrespectiveof varying opinions in the community as to the truth of aparticular religious doctrine or the goodness of conductprescribed by particular religionor as to the propriety of

ABC

any particular religious observance. The obiter ofGajendragadkar J. in the Durgah Committee case is alsoinconsistent with the observations of Mukherjea J. in RatilalGandhi Case, that the decision in Jamshedjiv.Soonabaiafforded an indication of the measure of protection given byArticle 26(b).”[32]

(Emphasis supplied)

Mr. Seervai also criticised the observations of this Court in TilkayatShri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra)as follows:

“12.66 In Tilkayat Shri Govindlalji v. RajasthanGajendragadkar J. again adverted to the rights under Arts.25(1) and 26(b) and stated that if matter was obviouslysecular and not religious, Court would be justified inrejecting its claim to be religious practise, as based onDirrational considerations. It is submitted that the real questionis whether the religious denomination looks upon it as anessential part of its religion, and however irrational it mayappear to persons who do not share that religious belief, theview of the denomination must prevail, for, it is not open to acourt to describe as irrational that which is part of aEdenomination’s religion.The actual decision in the case, thatthe right to manage the property was secular matter, iscorrect, but that is because, as pointed out by Mukherjea J.,Art. 26(b) when constrasted with Art. 26(c) and (d) showsthat matters of religious belief and practises are distinct andFseparate from the management of property of religiousdenomination. The distinction between religious belief andpractises which cannot be controlled, and the managementof the property of religious denomination which can becontrolled to limited extent, is recognised by the Article itselfand must be enforced.But this distinction is not relevant toGthe question whether religious practise is itself irrationalor secular.”[33]

(Emphasis supplied)

32 H.M. Seervai, Constitutional Law of India : Critical Commentary, Vol. II (4th Ed.,Reprint 1999), paragraph 12.18 at p. 1267-1268H 33 Id. at paragraph 12.66 at p. 1283

J. Duncan M. Derrett, well-known Professor of Oriental Laws,highlights the problems in applying the “essential practises test” in hisbook titled ‘Religion, Law and State in Modern India’as follows:

“In other words the courts can determine what is an integralpart of religion and what is not. The word essential is now infamiliar use for this purpose. As we shall there is context inwhich the religious community is allowed freedom to determinewhat is ‘essential’ to its belief and practise, but the individualhas no freedom to determine what is essential to his religion,for if it were otherwise and if the law gave any protection toreligion as determined on this basis the State’s power to protectand direct would be at an end. Therefore, the courts candiscard as non-essentials anything which is not proved to their–satisfaction and they are not religious leaders or in any—relevant fashion qualified in such mattersto be essential,with the result that it would have no Constitutional protection.The Constitution does not say freely to profess, practise andpropagate the essentials of religion, but this is how it isconstrued.”[34]

(Emphasis supplied and internal quotations omitted)

10.3. The House of Lords in Regina v. Secretary of State forEducation and Employment & Ors.[35], held that the court ought not toembark upon an enquiry into the validity or legitimacy of asserted beliefson the basis of objective standards or rationality. The relevant extractfrom the decision of the House of Lords is reproduced hereinbelow:

“It is necessary first to clarify the court’s role in identifying areligious belief calling for protection under article 9. Whenthe genuineness of claimant’s professed belief is an issue inthe proceedings the court will enquire into and decide thisissue as question of fact. This is limited inquiry. The Courtis concerned to ensure an assertion of religious belief is madein good faith: neither fictitious, nor capricious, and that it isnot an artifice, to adopt the felicitous phrase of Iacobucci Jin the decision of the Supreme Court of Canada in SyndicatNorthcrest v. Amselem (2004) 241 DLR (4[th]) 1, 27, para 52.But, emphatically, it is not for the Court to embark on an

34 J. Duncan M. Derett, Religion, Law and the State in India (1968), at p. 447

35 [2005] UKHL 15

Ainquiry into the asserted belief and judge its validity by someobjective standard such as the source material upon whichthe claimant founds his belief or the orthodox teaching of thereligion in question or the extent to which the claimant’s beliefconforms to or differs from the views of others professing thesame religion. Freedom of religion protects the subjected beliefBof an individual. As Iacobucci J also noted, at page 28, para54, religious belief is intensely personal and can easily varyfrom one individual to another. Each individual is at libertyto hold his own religious beliefs, however irrational orinconsistent they may seem to some, however surprising. TheCEuropean Court of Human Rights has rightly noted that inprinciple, the right to freedom of religion as understood inthe Convention rules out any appreciation by the State of thelegitimacy of religious beliefs or of the manner in which theseare expressed: Metropolitan Church of Bessarabia v Moldova(2002) 35 EHRR 306, 335, para 117. The relevance ofDobjective factors such as source material is, at most, that theymay throw light on whether the professed belief is genuinelyheld.”

(Emphasis supplied and internal quotations omitted)

E10.4. In Eddie C. Thomas v. Review Board of the IndianaEmployment Security Division[36], the U.S. Supreme Court was dealingwith case where the Petitioner, who had terminated his job on accountof his religious beliefs which forbade him from partaking in the productionof armaments, was denied unemployment compensation benefits by theState. The Court noted that the determination of what constitutes aFreligious belief or practise is very “difficult and delicate task”, andnoted as follows about the role of Constitutional Court:

“…The determination of what is religious belief or practiseis more often than not difficult and delicate task…However,the resolution of that question is not to turn upon judicialGperception of the particular belief or practise in question;religious beliefs need not be acceptable, logical, consistent,or comprehensible to others in order to merit First Amendmentprotection…

…The Indiana court also appears to have given significantweight to the fact that another Jehovah’s Witness had noscruples about working on tank turrets; for that other Witness,at least, such work was scripturally acceptable. Intrafaithdifferences of that kind are not uncommon among followersof particular creed, and the judicial process is singularlyill equipped to resolve such differences in relation to theReligious Clauses…Particularly in this sensitive area, it is notwithin the judicial function and judicial competence to inquirewhether the petitioner or his fellow worker more correctlyperceived the commands of their common faith. Courts arenot arbiters of scriptural interpretation.”(Emphasis supplied; internal quotations, and footnotes omitted)This view was re-iterated by the U.S. Supreme Court in thefollowing decisions:

• United States v. Edwin D. Lee[37], wherein it was held as follows:

“…It is not within the judicial function and judicialcompetence, however, to determine whether appellee orthe Government has the proper interpretation of the Amish”faith; courts are not arbiters of scriptural interpretation…

(Emphasis supplied; internal quotations omitted)

• Robert L. Hernandez v. Commissioner of Internal Revenue[38],wherein the Court noted:

“…It is not within the judicial ken to question the centralityofparticular beliefs or practises to faith or the validity”of particular litigants interpretations of those creeds...

(Emphasis supplied; internal quotations omitted)

• Employment Division, Department of Human Resources ofOregon v. Alfred L. Smith[39], wherein Scalia, J. noted as follows:

“…It is no more appropriate for judges to determine thecentrality of religious beliefs before applying compellinginterest test in the free exercise field, than it would be for

37 455 U.S. 252 (1982) 38 490 U.S. 680 (1989) 39 494 U.S. 872 (1990)

Athem to determine the importance of ideas before applyingthe compelling interest test in the free speech field. Whatprinciple of law or logic can be brought to bear tocontradict believer’s assertion that particular act iscentral to his personal faith? Judging the centrality ofdifferent religious practises is akin to the unacceptableBbusiness of evaluating the relative merits of differingreligious claims…As we reaffirmed only last Term, it is notwithin the judicial ken to question the centrality ofparticular beliefs or practises to faith, or the validity ofparticular litigants interpretations of thoseCcreeds…Repeatedly and in many different contexts we havewarned that courts must not presume to determine the placeof particular belief in religion or the plausibility of a”religious claim…

(Emphasis supplied; internal quotations omitted)

10.5. The observations of Chinnappa Reddy, J. in Bijoe Emmanuel& Ors. v. State of Kerala & Ors. (supra) are instructive in understandingthe nature of the protection afforded under Article 25, and the role of theCourt in interpreting the same. The relevant extract from the opinion ofChinnappa Reddy, J. is extracted hereinbelow:E

“18. Article 25 is an article of faith in the Constitution,incorporated in recognition of the principle that the real testof true democracy is the ability of even an insignificantminority to find its identity under the country’s Constitution.This has to borne in mind in interpreting Article 25…”

10.6. reference to the following extracts from the judgment ofKhehar, C.J.I. in Shayara Bano v. Union of India & Ors.[40] is alsoinstructive with respect to the role of Courtsin matters concerning religiousfaiths and beliefs:

“389. It is not difficult to comprehend what kind of challengesGwould be raised by rationalist assailing practises of differentfaiths on diverse grounds, based on all kinds of enlightenedsensibilities. We have to be guarded lest we find our consciencetraversing into every nook and corner of religious practises,and Personal Law. Can court, based on righteous

40 (2017) 9 SCC 1

endeavour, declare that matter of faith be replaced, or becompletely done away with?...This wisdom emerging fromjudgments rendered by this Court is unambiguous namely, thatwhile examining the issues falling in the realm of religiouspractises or Personal Law, it is not for court to make a-choice of something which it considers as forwardlookingor non-fundamentalist. It is not for court to determinewhether religious practises were prudent or progressive orregressive. Religion and Personal Law, must be perceived, as”it is accepted by the followers of the faith…

(Emphasis supplied and internal quotations omitted)

10.7. The following extract from the concurring judgment ofChinnappa Reddy, J. in S.P. Mittal v. Union of India & Ors. (supra) ispertinent with respect to the approach to be adopted by Courts whilstdealing with matters concerning religion:

“2…What is religion to some is pure dogma to others and whatis religion to others is pure superstition to some others…Butmy views about religion, my prejudices and my predilections,if they be such, are entirely irrelevant. So are the views of thecredulous, the fanatic, the bigot and the zealot. So also theviews of the faithful, the devout, the acharya, the moulvi, thepadre and the bhikhshu each of whom may claim his as theonly true or revealed religion. For our purpose, we areconcerned with what the people of the Socialist, Secular,Democratic Republic of India, who have given each of itscitizens freedom of conscience and the right to freely profess,practise and propagate religion and who have given everyreligious denomination the right to freely manage its religiousaffairs, mean by the expressions religion and religiousdenomination. We are concerned with what these expressionsare designed to mean in Articles 25 and 26 of the Constitution.Any freedom or right involving the conscience must naturallyreceive wide interpretation and the expression religion andreligious denomination must therefore, be interpreted in no”narrow, stifling sense but in liberal, expansive way.

(Emphasis supplied and internal quotations omitted)

A10.8. The Constitution lays emphasis on social justice and equality.It has specifically provided for social welfare and reform, and throwingopen of Hindu religious institutions of public character to all classesand sections of Hindus through the process of legislation in Article25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provisionwhich permits the State to redress social inequalities and injustices byBframing legislation.

It is therefore difficult to accept the contention that Article 25(2)(b)is capable of application without reference to an actual legislation. Whatis permitted by Article 25(2) is State made law on the grounds specifiedtherein, and not judicial intervention.

10.9. In the present case, the 1965 Act is legislation framed inpursuance of Article 25(2)(b) which provides for the throwing open ofHindu places of public worship. The proviso to Section 3 of the 1965Act carves out an exception to the applicability of the general rulecontained in Section 3, with respect to religious denominations, or sect(s)Dthereof, so as to protect their right to manage their religious affairs withoutoutside interference.

Rule 3(b) gives effect to the proviso of Section 3 insofar as itmakes provision for restricting the entry of women at such times whenthey are not by custom or usage allowed to enter of place of publicEworship.

10.10. The Respondents claim the right to worship in theSabarimala Temple under Article 25(1) in accordance with their beliefsand practises as per the tenets of their religion. These practises areconsidered to be essential or integral to that Temple. Any interferenceFwith the same would conflict with their right guaranteed by Article 25(1)to worship Lord Ayyappa in the form of ‘Naishtik Brahmachari’.

10.11. In other jurisdictions also, where State made laws werechallenged on grounds of public morality, the Courts have refrained fromstriking down the same on the ground that it is beyond the ken of theCourts.

10.12. For instance, the U.S. Supreme Court in Church of LukumiBabalu Aye v. City of Hialeah,[41] an animal cruelty law made by theCity Council was struck down as being violative of the Free Exerciseclause. The Court held:H41 508 U.S. 520 (1993)

“The extent to which the Free Exercise clause requiresGovernment to refrain from impeding religious exercise definesnothing less than the respective relationships in ourConstitutional democracy of the individual to Government,and to God. ‘ Neutral, generally applicable ’ laws, drafted asthey are from the perspective of the non-adherent, have theunavoidable potential of putting the believer to choicebetween God and Government. Our cases now presentcompeting answers to the question when Government, whilepursuing secular ends may compel disobedience to what onebelieves religion commands.”

(Emphasis supplied)

10.13. Judicial review of religious practises ought not to beundertaken, as the Court cannot impose its morality or rationality withrespect to the form of worship of deity. Doing so would negate thefreedom to practise one’s religion according to one’s faith and beliefs. Itwould amount to rationalising religion, faith and beliefs, which is outsidethe ken of Courts.

11. CONSTITUTIONAL MORALITYIN MATTERSOF RELIGIONINA SECULARPOLITY

11.1. The Petitionershave contended that the practise of restrictingwomen of particular age group runs counter to the underlying themeof equality and non-discrimination, which is contrary to ConstitutionalMorality. Rule 3(b) of the 1965 Rules has been challenged as beingviolative ofConstitutional Morality.

11.2. India is country comprising of diverse religions, creeds,sects each of which have their faiths, beliefs, and distinctive practises.Constitutional Morality in secular polity would comprehend the freedomof every individual, group, sect, or denomination to practise their religionin accordance with their beliefs, and practises.

11.3. The Preambleto the Constitution secures to all citizens ofthis country liberty of thought, expression, belief, faith and worship. Article25 in Part III of the Constitution make freedom of conscience aFundamental Right guaranteed to all persons who are equally entitled tothe right to freely profess, practise and propagate their respective religion.This freedom is subject to public order, morality and health, and to theother provisions of Part III of the Constitution.

AArticle 26 guarantees the freedom to every religious denomination,or any sect thereof, the right to establish and maintain institutions forreligious purposes, manage its own affairs in matters of religion, ownand acquire movable and immovable property, and to administer suchproperty in accordance with law. This right is subject to public order,morality and health. The right under Article 26 is not subject to Part IIIBof the Constitution.

11.4. The framers of the Constitution were aware of the richhistory and heritage of this country being secular polity, with diversereligions and faiths, which were protected within the fold of Articles 25and 26. State interference was not permissible, except as provided byCArticle 25(2)(b) of the Constitution, where the State may make lawproviding for social welfare and reform.

11.5. The concept of Constitutional Morality refers to the moralvalues underpinning the text of the Constitution, which are instructive inascertaining the true meaning of the Constitution, and achieve the objectsDcontemplated therein.

11.6. Constitutional Morality in pluralistic society and secularpolity would reflect that the followers of various sects have the freedomto practise their faith in accordance with the tenets of their religion. It isirrelevant whether the practise is rational or logical. Notions of rationalityEcannot be invoked in matters of religion by courts.

11.7. The followers of this denomination, or sect, as the case maybe, submit that the worshippers of this deity in Sabarimala Temple evenindividually have the right to practise and profess their religion underArticle 25(1) in accordance with the tenets of their faith, which isFprotected as Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet ofConstitutional Morality. However, the concept of equality and non-discrimination in matters of religion cannot be viewed in isolation. Underour Constitutional scheme, balance is required to be struck betweenGthe principles of equality and non-discrimination on the one hand, andthe protection of the cherished liberties of faith, belief, and worshipguaranteed by Articles 25 and 26 to persons belonging to all religions ina secular polity, on the other hand. Constitutional morality requires theharmonisation or balancing of all such rights, to ensure that the religiousbeliefs of none are obliterated or undermined.H

Constitution Bench of five-Judges in Sahara India Real EstateCorporation Limited & Ors. v. Securities and Exchange Board ofIndia & Anr.[42] had highlighted the role of this Court as an institutiontasked with balancing the various Fundamental Rights, guaranteed underPart III. It was noted that:

“25. At the outset, it may be stated that Supreme Court is notonly the sentinel of the fundamental rights but also abalancing wheel between the rights, subject to socialcontrol…under our Constitution no right in Part III is absolute.Freedom of expression is not an absolute value under ourConstitution. It must not be forgotten that no single value, nomatter exalted, can bear the full burden of upholding ademocratic system of government. Underlying ourconstitutional system are number of important values, all ofwhich help to guarantee our liberties, but in ways whichsometimes conflict. Under our Constitution, probably, novalues are absolute. Allimportant values, therefore, must bequalified and balanced against other important, and oftencompeting, values.”

The Constitutional necessity of balancing various FundamentalRights has also been emphasised in the decision of this Court inSubramaniam Swamy v. Union of India, Ministry of Law & Ors.[43].

In Acharya Maharajshri Narendra Prasadji AnandprasadjiMaharaj & Ors. v. The State of Gujarat & Ors.[44], ConstitutionBench, in the context of Article 26, noted that it is duty of this Court tostrike balance, and ensure that Fundamental Rights of one personco-exist in harmony with the exercise of Fundamental Rights of others.

It is the Constitutional duty of the Court to harmonise the rights ofall persons, religious denominations or sects thereof, to practise theirreligion according to their beliefs and practises.

12. RELIGIOUS DENOMINATION

12.1. Article 26 of the Constitution guarantees the freedom toevery religious denomination, or sect thereof, the right to establish andmaintain institutions for religious or charitable purposes, and to manage

42 (2012) 10 SCC 603 43 (2016) 7 SCC 221 44 (1975) 1 SCC 11

Atheir own affairs in matters of religion. The right conferred under Article26 is subject to public order, morality and health, and not to any otherprovisions in Part III of the Constitution.

12.2. religious denomination or organisation enjoys completeautonomy in matters of deciding what rites and ceremonies are essentialBaccording to the tenets of that religion. The only restriction imposed ison the exercise of the right being subject to public order, morality andhealth under Article 26.

The Respondents assert that the devotees of the SabarimalaTemple constitute religious denomination, or sect thereof, and areCentitled to claim protection under Article 26 of the Constitution.

12.3. Article 26 refers not only to religious denominations, butalso to sects thereof. Article 26 guarantees that every religiousdenomination, or sect thereof, shall have the right inter alia to manageits own affairs in matters of religion. This right is made subject to publicDorder, morality, and health.

The Travancore Devaswom Board, and the other Respondentshave asserted that the followers of the Sabarimala Temple constitute areligious denomination having distinct faith, well- identified practises,being followed since time immemorial. The worshippers of this shrineobserve the tenets of this faith, and are addressed as “Ayyappans.”EThe Notifications issued by the Travancore Devaswom Board in 1955and1956 refer to the devotees of the Sabarimala Temple as“Ayyappans”.

Given the identical phraseology, only the Notification datedNovember 27, 1956 is set out herein below for ready reference:F“

“NOTIFICATION

In accordance with the fundamental principles underlying thePrathishta (installation) of the venerable holy and ancienttemple of Sabarimala, Ayyappanswho had not observed theusual vows as well as women who had attained maturity werenot in the habit of entering the above mentioned temple forDarsan (worship) by stepping the Pathinettampadi. But oflate, there seems to have been deviation from this customand practise. In order to maintain the sanctity and dignity ofthis great temple and keep up the past traditions, it is herebynotified that Ayyappans who do not observe the usual Vritham

(vows) are prohibited from entering the temple by steppingthe pathinettampadi and women between the ages of ten andfifty five are forbidden from entering the temple.

Ambalapuzha27-11-‘56 Assistant Devaswon Commissioner.”

(Emphasis supplied)

The worshippers of Lord Ayyappa at the Sabarimala Templetogether constitute religious denomination, or sect thereof, as the casemaybe,follow common faith, and have common beliefs and practises.These beliefs and practises are based onthe belief that Lord Ayyappahasmanifested himself in the form of ‘Naishtik Brahmachari’.Thepractises include the observance by the Ayyappans of the 41-day‘Vratham’,which includes observing abstinence and seclusion from thewomen-folk, including one’s spouse, daughter, or other relatives. Thispilgrimage includes bathing in the holy River Pampa, and ascending the18 sacred steps leading to the sanctum sanctorum.

The restriction on women between the ages of 10 to 50 yearsfrom entering the Temple has to be understood in this context.

12.4. The expression “religious denomination” as interpreted inCommissioner, Hindu Religious Endowments, Madras v. SriLakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), was “acollection of individuals classed together under the same name : areligious sect or body having common faith and organisation anddesignated by distinctive name”.[45] The Court held that each of thesects or sub-sects of the Hindu religion could be called religiousdenomination, as such sects or sub-sects, had distinctive name.12.5. In S.P. Mittal v. Union of India & Ors. (supra), this Court,while relying upon the judgment in Commissioner, Hindu ReligiousEndowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiarof Shirur Mutt (supra), held that the words ‘religious denomination’ inArticle 26 of the Constitution must take their colour from the word‘religion’, and if this be so, the expression ‘religious denomination’ mustsatisfy three conditions:

“80.(1) It must be collection of individuals who have systemof beliefs or doctrines which they regard as conducive to theirspiritual well-being, that is, common faith;

45 1954 SCR 1005, at paragraph 15

A(2) common organisation; and

(3) designation by distinctive name.”

12.6. On somewhat different note, Ayyangar, J. in Sardar SyednaTaher Saifuddin Saheb v. State of Bombay (supra) in his separatejudgment, expressed this term to mean identity of its doctrines, creeds,Band tenets, which are intended to ensure the unity of the faith which itsadherents profess, and the identity of the religious views which bindthem together as one community.

12.7. The meaning ascribed to religious denomination by this Courtin Commissioner, Hindu Religious Endowments case (supra), andCsubsequent cases is not strait-jacket formula, but working formula.Itprovides guidance to ascertain whether group would fall within areligious denomination or not.

12.8. If there are clear attributes that there exists sect, which isidentifiable as being distinct by its beliefs and practises, and having aDcollection of followers who follow the same faith, it would be identifiedas ‘religious denomination’.

In this context, reference may be made to the concurring judgmentof Chinnappa Reddy, J. in the decision of this Court in S.P. Mittal v.Union of India & Ors. (supra) wherein he noted that the judicial definitionEof religious denomination laid down by this Court is, unlike statutorydefinition, mere explanation. After observing that any freedom or rightinvolving the conscience must be given wide interpretation, and theexpressions ‘religion’ and ‘religious denomination’ must be interpretedin “liberal, expansive way”:

F“21…the expression religious denomination may be definedwith less difficulty. As we mentioned earlier Mukherjea, J.,borrowed the meaning of the word denomination from theOxford Dictionary and adopted it to define religiousdenomination as collection of individuals classed togetherunder the same name, religious sect or body having aGcommon faith and organisation and designated by distinctivename. The followers of Ramanuja, the followers ofMadhwacharya, the followers of Vallabha, the Chistia Soofieshave been found or assumed by the Court to be religiousdenominations. It will be noticed that these sects possess noHdistinctive names except that of their founder-teacher and

had no special organisation except vague, loose – un-knitone. The really distinctive feature about each one of these-sects was shared belief in the tenets taught by the teacherfounder. We take care to mention here that whatever theordinary features of religious denomination may beconsidered to be, all are not of equal importance and surelythe common faith of the religious body is more important thanthe other features…Religious denomination has not to oweallegiance to any parent religion. The entire following of areligion may be no more than the religious denomination. Thismay be particularly be so in the case of small religious groupsor developing religions, that is, religions in the formativestage.”

(Emphasis supplied and internal quotationsomitted)

12.9. The Respondents have made out strong and plausible casethat the worshippers of the Sabarimala Temple have the attributes of areligious denomination, or sect thereof, for the reasons enumeratedhereinbelow:

i. The worshippers of Lord Ayyappaat Sabarimala Templeconstitute religious denomination, or sect thereof, as the casemaybe, following the ‘Ayyappan Dharma’. They are designatedby distinctive name wherein all male devotees are called‘Ayyappans’; all female devotees below the age of 10 yearsand above the age of 50 years, are called ‘Malikapurnams’. Apilgrim on their maiden trip to Sabarimala Temple is called a‘Kanni Ayyappan’. The devotees are referred toas‘Ayyappaswamis’. devotee has to observe the ‘Vratham’,and follow the code of conduct, before embarking upon the‘Pathinettu Padikal’ to enter the Temple at Sabarimala.

ii.Thedevotees follow an identifiable set of beliefs, customs andusages,and code of conduct which are being practised sincetime immemorial, and are founded in common faith.Thereligious practises being followed in this Temple are founded onthe belief that the Lord has manifested himself in the form of a‘Naishtika Brahmachari’. It is because of this nishtha, thatwomen between the ages of 10 to 50 years, are not permitted toenter the temple.

AThe practises followed by this religious denomination, or sectthereof, as the case maybe,constitute code of conduct, whichis part of the essential spiritual discipline related to thispilgrimage. As per the customs and usages practised in theSabarimala Temple, the 41-day ‘Vratham’ is conditionprecedent for undertaking the pilgrimage to the SabarimalaBTemple.

The Respondents submit that the beliefs and practises beingfollowed by them have been imparted by the deity himself tothe King of Pandalam who constructed this Temple. Theteachings of the Lord are scripted in the Sthal Purana of thisCTemple, known as the‘Bhuthanatha Geetha’.

Reference to the custom and usage restricting the entry ofwomen belonging to the age group of 10 to 50 years isdocumented in the Memoir of the Survey of the Travancoreand Cochin States[46] published in two parts in 1893 andD1901written by Lieutenants Ward and Conner.

iii. This Temple owned vast landed properties from which theTemple was being maintained. These were taken over by theState, subject to the obligation to pay annuities to the Templefrom the coffers of the State, as is evident from the DevaswomEProclamation[47] dated 12[th] April 1922 issued by the Maharaja ofTravancore, on which reliance was placed by Mr. J. Sai Deepak,Advocate.

When the erstwhile State of Travancore merged with the Unionof India, the obligation of paying annuities for the landedFproperties, was transferred to the Government of India.

iv. TheTemple is managed by the Travancore Devaswom Board.It does not receive funds from the Consolidated Fund of India,which would give it the character of ‘State’ or ‘other authorities’under Article 12 of the Constitution.

In any event, Article 290A does not in any manner take awaythe denominational character of the Sabarimala Temple, or theFundamental Rights under Article 26.

46 Supra note 9

47Annexure I, Written Submissions by J. Sai Deepak, learned Advocate on Behalf ofHK.K. Sabu (Respondent No. 18), and People for Dharma (Intervenor).

12.10. The issue whether the Sabarimala Temple constitutes a‘religious denomination’, or sect thereof, is mixed question of factand law. It is trite in law that question of fact should not be decided inwrit proceedings. The proper forum to ascertain whether certain sectconstitutes religious denomination or not, would be more appropriatelydetermined by civil court, where both parties are given the opportunityof leading evidence to establish their case.

In Arya Vyasa Sabha & Ors. v. Commissioner of HinduCharitable and Religious Institutions & Endowments, Hyderabad&Ors.[48], this Court had noted that the High Court was correct in leavingthe question open, of whether the petitioners constituted religiousdenomination for determination by competent civil court on the groundthat it was disputed question of fact which could not be appropriatelydetermined in proceedings under Article 226.

12.11. This Court has identified the rights of group of devoteesas constituting religious denomination in the context of single temple,as illustrated hereinbelow:

In (supra), the Sri Venkataramana Temple at Moolky wasconsidered to be denominational temple, and the Gowda SaraswathBrahmins were held to constitute religious denomination.

Similarly, in Dr. Subramaniam Swamy v. State of Tamil Nadu(supra) the Podhu Dikshitars were held to constitute religiousdenomination in the context of the Sri Sabanayagar Temple atChidambaram.

12.12. The contention of the Petitioners that since the visitors tothe temple are not only from the Hindu religion, but also from otherreligions, the worshippers of this Temple would not constitute separatereligious sect.

This argument does not hold water since it is not uncommon forpersons from different religious faiths to visit shrines of other religions.This by itself would not take away the right of the worshippers of thisTemple who may constitute religious denomination, or sect thereof.

12.13. TheConstitution ensures place for diverse religions,creeds, denominations and sects thereof to co-exist in secular society.It is necessary that the term ‘religious denomination’ should receive an 48 (1976) 1 SCC 292

Ainterpretation which is in furtherance of the Constitutional object of apluralistic society.

13. ESSENTIALPRACTISESDOCTRINE

This Court has applied the ‘essential practises’ test to affordprotection to religious practises.B

13.1. The ‘essential practises’ test was formulated inCommissioner, Hindu Religious Endowments, Madras v. SriLakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra).

Before articulating the test, this Court drew on the words “practiseCof religion” in Article 25(1) to hold that the Constitution protects not onlythe freedom of religious belief, but also acts done in pursuance of areligion. In doing so, it relied on an extract from the decision of Latham,C.J. of the High Court of Australia in Adelaide Company of Jehovah’sWitnesses Incorporated v. The Commonwealth.[49] The original extractrelied upon has been reproduced hereinbelow:D

“5.It is sometimes suggested in discussions on the subject offreedom of religion that, though the civil government shouldnot interfere with religious opinions, it nevertheless may dealas it pleases with any acts which are done in pursuance ofreligious belief without infringing the principle of freedom ofEreligion. It appears to me to be difficult to maintain thisdistinction as relevant to the interpretation of s. 116. Thesection refers in express terms to the exercise of religion, andtherefore it is intended to protect from the operation of anyCommonwealth laws acts which are done in the exercise ofreligion. Thus the section goes far beyond protecting libertyFof opinion. It protects also acts done in pursuance of religiousbelief as part of religion.”

(Emphasis supplied)

This Court then went on to formulate the ‘essential practises testGin the following words:

“20…what constitutes the essential part of religion isprimarily to be ascertained with reference to the doctrines ofthat religion itself. If the tenets of any religious sect of theHindus prescribe that offerings of food should be given toH 49 67 CLR 116

the idol at particular hours of the day, that periodicalceremonies should be performed in certain way at certainperiods of the year or that there should be daily recital ofsacred texts or oblations to the sacred fire, all these would beregarded as parts of religion…all of them are religiouspractises and should be regarded as matters of religion withinthe meaning of Article 26(b)…

…23. Under Article 26(b), therefore, religious denominationor organization enjoys complete autonomy in the matter ofdeciding as to what rites and ceremonies are essentialaccording to the tenets of the religion they hold and no outsideauthority has any jurisdiction to interfere with their decisionin such matters.”

(Emphasis supplied)

13.2. The ‘essential practises test’ was reiterated in RatilalPanachand Gandhi v. The State of Bombay & Ors.[50], where thenarrow definition of “religion” given by the Bombay High Court wasdiscarded.It was held that all religious practises or performances of actsin pursuance of religious beliefs were as much part of religion, as faithor belief in particular doctrines. This Court re-iterated the ‘essentialpractises test’ in the following words:

“13…Thus if the tenets of the Jain or the Parsi religion laydown that certain rites and ceremonies are to be performedat certain times and in particular manner, it cannot be saidthat these are secular activities partaking of commercial oreconomic character simply because they involve expenditureof money or employment of priests or the use of marketablecommodities. No outside authority has any right to say thatthese are not essential parts of religion and it is not open tothe secular authority of the State to restrict or prohibit themin any manner they like under the guise of administering thetrust estate…We may refer in this connection to the observationof Davar, J. in the case of Jamshed ji v. Soonabaiandalthough they were made in case where the question waswhether the bequest of property by Parsi testator for thepurpose of perpetual celebration of ceremonies like Muktad

50 (1954) SCR 1055 : AIR 1954 SC 388

bag, Vyezashni, etc., which are sanctioned by the Zoroastrianreligion were valid and charitable gifts, the observations, wethink, are quite appropriate for our present purpose. If this isthe belief of the community thus observed the learned judge,and it is proved undoubtedly to be the belief of the Zoroastrian-–community, secular judge is bound to accept that belief it is not for him to sit in judgment on that belief, he has noright to interfere with the conscience of donor who makes agift in favour of what he believes to be the advancement ofthe religion and the welfare of his community or mankind.These observations do in our opinion afford an indication ofthe measure of protection that is given by Article 26(b) of ourConstitution.”

(Emphasis supplied and internal quotations omitted)

13.3. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali& Ors. (supra), the ‘essential practises test’ was discussed by aDConstitution Bench in the following words:

“33…Whilst we are dealing with this point it may not be out ofplace incidentally to strike note of caution and observethat in order that the practises in question should be treatedas part of religion they must be regarded by the said religionEas its essential and integral part; otherwise even purely secularpractises which are not an essential or an integral part ofreligion are apt to be clothed with religious form and maymake claim for being treated as religious practises withinthe meaning of Article 26. Similarly, even practises thoughFreligious may have sprung from merely superstitious beliefsand may in that sense be extraneous and unessentialaccretions to religion itself.Unless such practises are foundto constitute an essential and integral part of religion theirclaim for the protection under Article 26 may have to becarefully scrutinised; in other words, the protection must beGconfined to such religious practises as are an essential andan integral part of it and no other.”

(Emphasis supplied)

This Court affirmed the ‘essential practises test’ as laid in theprevious decisions in Commissioner, Hindu Religious Endowments,H

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(supra), and Ratilal Panachand Gandhi v. The State of Bombay &Ors.(supra) insofar as it emphasised on the autonomy of religions toidentify essential or integral practises.

13.4. In Tilkayat Shri Govindlalji Maharaj etc. v. State ofRajasthan & Ors. (supra), it was clarified that courts will intervenewhere conflicting evidence is produced in respect of rival contentions asto competing religious practises. It was held that:

“57. In deciding the question as to whether given religiouspractise is an integral part of the religion or not, the testalways would be whether it is regarded as such by thecommunity following the religion or not.This formula may insome cases present difficulties in its operation. Take the caseof practise in relation to food or dress. If in givenproceeding, one section of the community claims that whileperforming certain rites white dress is an integral part of thereligion itself, whereas another section contends that yellowdress and not the white dress is the essential part of religion,how is the Court going to decide the question? Similar disputesmay arise in regard to food. In cases where conflictingevidence is produced in respect of rival contentions as tocompeting religious practises the Court may not be able toresolve the dispute by blind application of the formula thatthe community decides which practise in [sic] an integral partof its religion, because the community may speak with morethan one voice and the formula would, therefore, break down.This question will always have to be decided by the Courtand in doing so, the Court may have to enquire whether thepractise in question is religious in character, and if it is,whether it can be regarded as an integral or essential part ofthe religion, and the finding of the Court on such an issuewill always depend upon the evidence adduced before it asto the conscience of the community and the tenets of itsreligion…”

(Emphasis supplied)

13.5. In Bijoe Emmanuel &Ors. v. State of Kerala & Ors.(supra), this Court emphasised that for religious practise to receive

Aprotection under Article 25(1) it must be “genuinely”, and “conscientiously”held by persons claiming such rights. This Court had noted that suchreligious beliefs and practises must be consistently and not “idly” held,and should not emanate out of “perversity”. In doing so, it re-affirmedthat the Constitutional fabric of our country permits religious beliefs andpractises to exist, regardless of whether or not they appeal to the rationalBsensibilities of this Court, or others.

It would also be instructive to refer to the decision of the SupremeCourt of Alaska in Carlos Frank v. State of Alaska[51] wherein the useof moose meat at funeral potlatch, religious ceremony, was held tobe practise deeply rooted in religion, based on the evidence adducedCbefore the District Court. The Court had noted that the State of Alaskahad failed to illustrate any compelling interest which would justify itscurtailment, with the result that the case was remanded with instructionsto dismiss the complaint against Frank for unlawful transportation ofmoose meat. The Court had underscored the importance of the sincerityDof Frank’s religious belief, and held that it would be sufficient that apractise be deeply rooted in religious belief for it to receive the protectionof the free exercise clause under the U.S. Constitution.

13.6. Reference is required to be made to the doctrines and tenetsof religion, its historical background, and the scriptural texts to ascertainEthe ‘essentiality’ of religious practises.

The ‘essential practisestest’ in its application would have to bedetermined by the tenets of the religion itself. The practises and beliefswhich are considered to be integral by the religious community are to beregarded as “essential”, and afforded protection under Article 25.

The only way to determine the essential practises test would bewith reference to the practises followed since time immemorial, whichmay have been scripted in the religious texts of this temple. If any practisein particular temple can be traced to antiquity, and is integral to thetemple, it must be taken to be an essential religious practise of that temple.

G13.7. The Temple Thanthri, the Travancore Devaswom Board,and believers of Lord Ayyappahave submitted that the limited restrictionon access of women during the notified age of 10 to 50 years,is religiouspractise which is centraland integral to the tenets of this shrine, since thedeity has manifested himself in the form of ‘Naishtik Brahmachari’.H 51 604 P.2d 1068 (1979)

13.8. The practise of restricting the entry of women belonging tothe age-group of 10 to 50 years, was challenged as being violative ofArticles 15, 25, and 26 of the Constitution before Division Bench ofthe Kerala High Court in S. Mahendran v. The Secretary, TravancoreDevaswom Board, Thiruvanathapuram & Ors. (supra).

The Court held that the issue whether the practises were an integralpart of the religion or not had to be decided on the basis of evidence.The High Court relied on the decision of this Court in Tilkayat ShriGovindalji Maharaj v. State of Rajasthan (supra) wherein it washeld that the question whether the practise is religious in character, andwhether it can be regarded as an integral or essential part of the religion,will depend upon the evidence adduced before court, with respect tothe tenets of the religion.

The High Court held that the restriction on the entry of womenbetween the ages of 10 to 50 years was in accordance with the practiseprevalent since time immemorial, and was not violative of Articles 15,25, and 26 of the Constitution.

religion can lay down code of ethics, and also prescribe rituals,observances, ceremonies and modes of worship. These observancesand rituals are also regarded as an integral part of religion. If the tenetsof religion lay down that certain ceremonies are to be performed atcertain times in particular manner, those ceremonies are matters ofreligion, and are to be protected as religious belief.

The High Court took into consideration the testimony of threepersons who had direct and personal knowledge about the practises ofthe temple. One of them was the then Thanthri of the Temple, whocould authoritatively testify about the practises of the temple. His personalknowledge extended to period of more than 40 years. The secondAffidavit was affirmed by the Secretary of the AyyappaSevaSanghamwho had been regular pilgrim of the shrine for period of 60 years. Asenior member of the Pandalam Palace also testified about the practisefollowed, and the views of the members of the Palace who haveconstructed the Temple. The testimony of these witnesses establishedthat the practiseof restriction on the entry of women during the notifiedage-group was being followed since the past several centuries.

The High Court recorded that vital reason for imposing thisrestriction on young women as deposed by the Thanthri of the Temple,

Aas well as other witnesses, was that the deity at the Sabarimala Templewas in the form of ‘Naishtik Brahmachari’ which means studentwho has to live in the house of his preceptor, and studies the Vedas,living the life of utmost austerity and discipline. The deity is in the formof ‘Yogi’ or ‘Naishtik Brahmachari’. The High Court noted that thispractiseof restricting the entry of women is admitted to have beenBprevalent since the past several centuries.

The High Court concluded by holding:

“Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 andCbelow 50 from trekking the holy hills of Sabarimala andoffering worship at Sabarimala Shrine is in accordancewith the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is notviolative of Articles 15, 25 and 26 of the Constitution ofDIndia.

(3) Such restriction is also not violative of the provisions ofHindu Place of Public Worship (Authorisation of Entry)Act, 1965 since there is no restriction between one sectionand another section or between one class and another classEamong the Hindus in the matter of entry to Temple whereasthe prohibition is only in respect of women of particularage group and not women as class.”

In view of the conclusions summarised above, the High Courtdirected the Travancore Devaswom Board not to permit women belongingFto the age-group of 10 to 50 years “… to trek the holy hills ofSabarimala in connection with the pilgrimage…”. The Judgment ofthe Kerala High Court was not challenged any further, and has attainedfinality.

The findings contained in the Judgment of the Kerala High CourtGdeciding Writ Petition under Article 226 were findings in rem, and theprinciple of res judicata would apply.[52]

In thiscontext, it is pertinent to note that this Court, in Daryao &Ors. v. State of U.P. & Ors.[53], had held as follows: 52 Dr Subramaniam Swamy v. State of Tamil Nadu & Ors., (2014) 5 SCC 75.H 53 (1962) 1 SCR 574 : AIR 1961 SC 1457

“26. We must now proceed to state our conclusion on thepreliminary objection raised by the respondents. We hold thatif writ petition filed by party under Article 226 isconsidered on the merits as contested matter and is dismissedthe decision thus pronounced would continue to bind theparties unless it is otherwise modified or reversed by appealor other appropriate proceedings permissible under theConstitution. It would not be open to party to ignore thesaid judgment and move this Court under Article 32 by anoriginal petition made on the same facts and for obtainingthe same or similar orders or writs.”

Thus viewed, such findings of fact ought not to be re-opened in aPetition filed under Article 32.

13.9. The practise of celibacy and austerity is the uniquecharacteristic 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 formsor manifestations. Worship of each of these forms is unique, and not allforms are worshipped by all persons.

The form of the deity in any temple is of paramount importance.For instance, Lord Krishna in the temple at Nathdwara is in the form ofa child. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan(supra), this Court noted that Lord Krishna was the deity who wasworshipped in the Shrinathji Temple in Nathdwara. It was noted that:

“…believing in the paramount importance and efficacy ofBhakti, the followers of Vallabha attend the worship andservices of the Nidhi Swaroops or idols from day-to-day inthe belief that such devotional conduct would ultimately leadto their salvation.”

In Venkataramana Devaru & Ors. v. State of Mysore & Ors.(supra), this Court had observed that Gods have distinct forms ascribedto them, and their worship at home, and in temples, is ordained as certainmeans of salvation.

Worship has two elements – the worshipper, and the worshipped.The right to worship under Article 25 cannot be claimed in the absenceof the deity in the particular form in which he has manifested himself.

A13.10. Religion is matter of faith, and religious beliefs are heldto be sacred by those who share the same faith. Thought, faith andbelief are internal, while expression and worship are externalmanifestations thereof.

13.11. In the case of the Sabarimala Temple, the manifestation isBin the form of ‘Naishtik Brahmachari’. The belief in deity, and theform in which he has manifested himself is 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 andCpropagate his religion, as per the tenets of that religion.

13.12. In the present case, the celibate nature of the deity at theSabarimala 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 theDSurvey of the Travancore and Cochin States[54] written by LieutenantsWard and Conner published in two parts in 1893 and 1901.

13.13. The religious practise of restricting the entry of womenbetween the ages of 10 to 50 years, is in pursuance of an ‘essentialreligious practise’ followed by the Respondents. The said restriction hasEbeen consistently, followed at the Sabarimala Temple, as is borne outfrom the Memoir of the Survey of the Travancore and CochinStatespublished in two parts in 1893 and 1901. The Kerala High Court inthe case of S. Mahendran v. The Secretary, Travancore DevaswomBoard, Thiruvananthapuram & Ors. (supra) has recorded as follows:

“The testimony of three persons who have direct and personalFknowledge about the usage in the temple is therefore availablebefore this Court. Of them one is the Thanthri of the templewho can authoritatively speak about the usage followed inthe temple. His knowledge extends to period of more than40 years. The Secretary of the AyyappaSevaSangham hadGbeen regular pilgrim to Sabarimala shrine for period of60 years. senior member of the Pandalam palace has alsotestified about the practise followed and the view of themembers of the palace to which the temple at one timebelonged. The testimony of these witnesses would therefore

54 Supra note 9

conclusively establish the usage followed in the temple of notpermitting women of the age group 10 to 50 to worship in thetemple.It necessarily flows that women of that age group werealso not permitted either to enter the precincts of the templeor to trek Sabarimala for the purpose of pilgrimage.”

(Emphasis supplied)

13.14. In the present case, the character of the temple atSabarimala is unique on the basis of centuries old religious practisesfollowed to preserve the manifestation of the deity, and the worshipassociated with it. Any interference with the mode and manner of worshipof this religious denomination, or sect, would impact the character of theTemple, and affect the beliefs and practises of the worshippers of thisTemple.

13.15. Based on the material adduced before this Court, theRespondents have certainly made out plausible case that the practiseof restricting entry of women between the age group of 10 to 50 years isan essential religious practise of the devotees of Lord Ayyappa at theSabarimala Temple being followed since time immemorial.

14. ARTICLE 17

14.1. The contention of the Petitioners that the restriction imposedon the entry of women during the notified age group, tantamounts to aform of ‘Untouchability’ under Article 17 of the Constitution, is liable tobe rejected for the reasons stated hereinafter.

14.2. All forms of exclusion would not tantamount to untouchability.Article 17 pertains to untouchability based on caste prejudice.Literallyor historically, untouchability was never understood to apply to womenas class.The right asserted by the Petitioners is different from the rightasserted by Dalits in the temple entry movement. The restriction onwomen within certain age-band, is based upon the historical origin andthe beliefs and practises of the Sabarimala Temple.

14.3. In the present case, women of the notified age group areallowed entry into all other temples of Lord Ayyappa. The restriction onthe entry of women during the notified age group in this Temple is basedon the unique characteristic of the deity, and not founded on any socialexclusion. The analogy sought to be drawn by comparing the rights ofDalits with reference to entry to temples and women is whollymisconceived and unsustainable.

AThe right asserted by Dalits was in pursuance of right againstsystematic social exclusion and for social acceptance per se.

In the case of temple entry, social reform preceded the statutoryreform, and not the other way about. The social reform was spearheadedby great religious as well as national leaders like Swami VivekanandaBand Mahatma Gandhi. The reforms were based upon societal morality,much before Constitutional Morality came into place.

14.4. Article 11 of the Draft Constitution corresponds to Article17 of our present Constitution.[55] perusal of the Constituent Assemblydebates on Article 11 of the Draft Constitution would reflect that“untouchability” refers to caste-based discrimination faced by Harijans,Cand not women as contended by the Petitioners.

During the debates, Mr. V.I. Muniswamy Pillai had stated:

“…Sir, under the device of caste distinction, certain sectionof people have been brought under the rope of untouchability,who have been suffering for ages under tyranny of so-calledDcaste Hindus, and all those people who style themselves aslandlords and zamindars, and were thus not allowed theordinary rudimentary facilities required for human being…I am sure, Sir, by adoption of this clause, many Hindu whois Harijan, who is scheduled class man will feel that heEhas been elevated in society and has now got place insociety…”[56]Dr. Monomohan Das, quotes Mahatma Gandhi while undeniablyaccepting the meaning of “Untouchability” as intended under theConstitution:F“…Gandhiji said I do not want to be reborn, but if I am reborn,I wish that I should be born as Harijan, as an untouchable,so that I may lead continuous struggle, life-long struggleagainst the oppressions and indignities that have been heapedupon these classes of people.

55 “11. “Untouchability” is abolished and its practice in any form is forbidden. TheGenforcement of any disability arising out of “Untouchability” shall be an offencepunishable in accordance with law.”

Draft Constitution of India, Drafting Committee of the Constituent Assembly of India(Manager Government of India Press, New Delhi, 1948) available at http://1 4 . 1 3 9 . 6 0 . 1 1 4 : 8 0 8 0 / j s p u i / i t s t r m / 1 2 3 4 5 6 7 8 9 / 9 6 6 / 7 /Fundamental%20Rights%20%285-12%29.pdf 56 Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (NovemberH29, 1948)

… Not only Mahatma Gandhi, but also great men andphilosophers of this ancient land, Swami Vivekananda, RajaRam Mohan Roy, Rabindranath Tagore and others, who leda relentless struggle against this heinous custom, would alsobe very much pleased today to see that independent India,Free India, has at last finally done away with this malignantsore on the body of Indian Society.”[57]

Mr. Seervai, in his seminal commentary, states that“Untouchability” must not be interpreted in its literal or grammaticalsense, but refers to the practise as it developed historically in Indiaamongst Hindus. He further states that Article 17 must be read with theUntouchability (Offences) Act, 1955, which punishes offences committedin relation to member of Scheduled Caste.[58]

Professor M.P. Jain also interprets Article 17 in similar manner.He states:

“Therefore, treating of persons as untouchables eithertemporarily or otherwise for various reasons, e.g., sufferingfrom an epidemic or contagious disease, or socialobservances associated with birth or death, or social boycottresulting from caste or other disputes do no come within thepurview of Art. 17. Art. 17 is concerned with those regardeduntouchables in the course of historic developments.”[59]

14.5. It is clear that Article 17 refers to the practise ofUntouchability as committed in the Hindu community against Harijansor people from depressed classes, and not women, as contended by thePetitioners.

14.6. Explaining the background to Article 17, this Court in SriVenkataramana Devaru & Ors. v. State of Mysore & Ors.(supra)observed:

“23. …. one of the problems which had been exercising theminds of the Hindu social reformers during the periodpreceding the Constitution was the existence in their midst of

57 Statement of Dr.Monomohan Das, Constituent Assembly Debates (November 29,1948)

58 H.M. Seervai, Constitutional Law of India : Critical Commentary, Vol. I (4th Ed.,Reprint 1999), paragraph 9.418 at p. 691

59 M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal andSamaraditya Pal; 2010), at p. 1067

Acommunities which were classed as untouchables. customwhich denied to large sections of Hindus the right to use publicroads and institutions to which all the other Hindus had aright of access, purely on grounds of birth could not beconsidered reasonable and defended on any sounddemocratic principle, and efforts were being made to secureBits abolition by legislation. This culminated in the enactmentof Article 17, which is as follows: “Untouchability” isabolished and its practise in any form is forbidden. Theenforcement of any disability arising out of ‘Untouchability’shall be an offence punishable in accordance with law.”

C14.7. Not single precedent has been shown to interpret Article17 in the manner contended by the Petitioners.

It is also relevant to mention that the Counsel for the State ofKerala did not support this submission.

15. RULE 3(B) OFTHE 1965 RULESISNOTULTRAVIRESTHEACTD15.1. Section 3 of the 1965 Act reads as follows:

“3.Places of public worship to be open to all sections andclasses of Hindus:-Nothwithstanding anything to the contrarycontained in any other law for the time being in force or anycustom or usage or any instrumenthaving effect by virtue ofEany such law or any decree or order of court, every place ofpublic worship which is open to Hindus generally or to anysection or class thereof, shall be open to all sections andclasses of Hindus; and no Hindu of whatsoever section orclass shall, in any manner, be prevented, obstructed ordiscouraged from entering such place of public worship, orFfrom worshipping or offering prayers thereat, or performingany religious service therein, in the like manner and to thelike extent as any other Hindu of whatsoever section or classmay so enter, worship, pray or perform:

Provided that in the case of place of public worship which

is temple founded for the benefit of any religiousdenomination or section thereof, the provisions of this sectionshall be subject to the right of that religious denomination orsection, as the case may be, to manage its own affair in mattersof religion”

(Emphasis supplied)

The relevant extract of Rule 3 of the 1965 Rules is also reproducedhereinbelow:

“Rule 3. The classes of persons mentioned here under shallnot be entitled to offer worship in any place of public worshipor bath in or use the water of any sacred tank, well, spring orwater course appurtenant to place of public worshipwhether situate within or outside precincts thereof, or anysacred place including hill or hill lock, or road, street orpathways which is requisite for obtaining access to the placeof public worship-

(a) …..

(b) Women at such time during which they are not by customand usage allowed to enter place of public worship.

(Emphasis supplied)

Section 3(b) of the 1965 Act provides that every place of publicworship which is open to Hindus generally, or to any section or classthereof, shall be open to all sections and classes of Hindus; and no Hinduof whatsoever section or class shall, in any manner be prevented,obstructed or discouraged from entering such place of public worship orfrom worshipping or from offering prayers there or performing anyreligious service therein, in the like manner and to the like extent as anyother Hindu of whatsoever section or class may enter, worship, pray orperform.

The proviso to Section 3 of the 1965 Act carves out an exceptionin the case of public worship in temple founded for the benefit of anyreligious denomination or section thereof. The provisions of the mainsection would be subject to the right of religious denomination or sectionto manage its own affairs in the matters of religion.

ASection 2(c)[60] of the 1965 Act, defines “section or class” to includeany division, sub-division, caste, sub caste, sect, or denominationwhatsoever. Section 4(1)[61], empowers the making of regulations for themaintenance of orders and decorum in the place of public worship andthe due observance of the religious rites and ceremonies performedtherein. The proviso to Section 3 of the 1965 Act provides that no suchBregulation shall discriminate in any manner whatsoever, against any Hinduon the ground that he belongs to particular section or class.

15.2. The proviso carves out an exception to the Section 3 itself.The declaration that places of public worship shall be open to Hindus ofall sections and classes is not absolute, but subject to the right of religiousCdenomination to “manage its own affairs in matters of religion”.Section 3 must be viewed in the Constitutional context where thelegislature has framed an enabling legislation under Article 25(2)(b) whichhas been made expressly subject to religious practises peculiar to adenomination under Article 26(b).

15.3. Rule 3(b) is statutory recognition of pre-existing customand usage being followed by this Temple. Rule 3(b) is within the ambitof the proviso to Section 3 of the 1965 Act, as it recognises pre-existingcustoms and usages including past traditions which have been practisedsince time immemorial qua the Temple. The Travancore DevaswomEBoard submits that these practises are integral and essential to the Temple.

15.4. The Petitioners have not challenged the proviso to Section 3as being unconstitutional on any ground. The proviso to Section 3 makesan exception in cases of religious denominations, or sects thereof tomanage their affairs in matters of religion.F

15.5. The Notification dated November 27, 1956 issued by theTravancore Devaswom Board restricts the entry of women between

60 "2. Definitions –

…(c) “section or class” includes any division, sub-division, caste, sub-caste, sector denomination whatsoever.”G 61 ""

61 ""4. Power to make regulations for the maintenance of order and decorum and the dueperformance of rites and ceremonies in places of public worship –

(1)The trustee or any other person in charge of any place of public worshipshall have power, subject to the control of the competent authority andany rules which may be made by that authority, to make regulations forthe maintenance of order and decorum in the place of public worshipand the due observance of the religious rites and ceremonies performedHtherein…”

the ages of 10 to 55 years as custom and practise integral to thesanctity of the Temple, and having the force of law under Article 13(3)(a)of the Constitution. The High Court in S. Mahendran v. The Secretary,Travancore Devaswom Board, Thiruvananthapuram & Ors. (supra)noted that this practise of restricting the entry of women is admitted tohave been prevalent since the past several centuries. These practisesare protected by the proviso to Section 3 of the 1965 Act which is giveneffect to by Rule 3(b) of the 1965 Rules.

15.6. The contention of the Petitioners that Rule 3(b) is ultravires Section 3 of the 1965 Act, fails to take into consideration the provisoto Section 3 of the 1965 Act. Section 3 applies to all places of publicworship, whereas the proviso applies to temples founded for the benefitof any religious denomination or sect thereof. Hence, the contentions ofthe Petitioners that Rule 3(b) is ultravires Section 3 of the 1965 Act isrejected.

16. The summary of the aforesaid analysis is as follows:

(i) The Writ Petition does not deserve to be entertained for wantof standing. The grievances raised are non-justiciable at thebehest of the Petitioners and Intervenors involved herein.

(ii) The equality doctrine enshrined under Article 14 does notoverride the Fundamental Right guaranteed by Article 25 toevery individual to freely profess, practise and propagate theirfaith, in accordance with the tenets of their religion.

(iii) Constitutional Morality in secular polity would imply theharmonisation of the Fundamental Rights,which include the rightof every individual, religious denomination, or sect, to practisetheir faith and belief in accordance with the tenets of theirreligion, irrespective of whether the practise is rational or logical.

(iv) The Respondents and the Intervenors have made out plausiblecase that the Ayyappans or worshippers of the SabarimalaTemple satisfy the requirements of being religiousdenomination, or sect thereof, which is entitled to the protectionprovided by Article 26. This is mixed question of fact and lawwhich ought to be decided before competent court of civiljurisdiction.

(v) The limited restriction on the entry of women during the notifiedage-group does notfall within the purview of Article 17 of the Constitution.

(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the1965 Act, since the proviso carves out an exception in the case of publicworship in temple for the benefit of any religious denomination or sectBthereof, to manage their affairs in matters of religion.

17. In light of the aforesaid discussion and analysis, the Writ Petitioncannot be entertained on the grounds enumerated hereinabove.

It is ordered accordingly.

Nidhi Jain

Writ Petition allowed.