Indian Young Lawyers Association vs The State Of Kerala

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 373 OF 2006

Indian Young Lawyers Association …Petitioner(s) & Ors.

VERSUS

The State of Kerala & Ors. …Respondent(s)

JUDGMENT

Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)

Introduction

The irony that is nurtured by the society is to impose a rule,

however unjustified, and proffer explanation or justification to

substantiate the substratum of the said rule. Mankind, since

time immemorial, has been searching for explanation or

justification to substantiate a point of view that hurts humanity.

The theoretical human values remain on paper.

Signature Not Verified Digitally signed by

Historically, CHETAN KUMAR Date: 2018.09.28 15:49:38 IST

women have been treated with inequality and that is why, many Reason:

have fought for their rights. Susan B. Anthony, known for her 2

feminist activity, succinctly puts, “Men, their rights, and nothing

more; women, their rights, and nothing less.” It is a 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 in their search for divinity and spirituality. In the

theatre of life, it seems, man has put the autograph and there is

no space for a woman even to put her signature. There is

inequality on the path of approach to understand the divinity.

The attribute of devotion to divinity cannot be subjected to the

rigidity and stereotypes of gender. The dualism that persists in

religion by glorifying and venerating women as goddesses on one

hand and by imposing rigorous sanctions on the other hand in

matters of devotion has to be abandoned. Such a dualistic

approach and an entrenched mindset results in indignity to

women and degradation of their status. The society has to

undergo a perceptual shift from being the propagator of

hegemonic patriarchal notions of demanding more exacting

standards of purity and chastity solely from women to be the

cultivator of equality where the woman is in no way considered

frailer, lesser or inferior to man. The law and the society are 3

bestowed with the Herculean task to act as levellers in this

regard and for the same, one has to remember the wise saying of

Henry Ward Beecher that deals with the changing perceptions of

the world in time. He says:

“Our days are a kaleidoscope. Every instant a change takes place in the contents. New harmonies, new contrasts, new combinations of every sort. Nothing ever happens twice alike. The most familiar people stand each moment in some new relation to each other, to their work, to surrounding objects. The most tranquil house, with the most serene inhabitants, living upon the utmost regularity of system, is yet exemplifying infinite diversities.”1

3. Any relationship with the Creator is a transcendental one

crossing all socially created artificial barriers and not a

negotiated relationship bound by terms and conditions. Such a

relationship and expression of devotion cannot be circumscribed

by dogmatic notions of biological or physiological factors arising

out of rigid socio-cultural attitudes which do not meet the

constitutionally prescribed tests. Patriarchy in religion cannot be

permitted to trump over the element of pure devotion borne out

of faith and the freedom to practise and profess one‟s religion.

The subversion and repression of women under the garb of

biological or physiological factors cannot be given the seal of

1 Henry Ward Beecher, 1813-1887 - Eyes and Ears 4

legitimacy. Any rule based on discrimination or segregation of

women pertaining to biological characteristics is not only

unfounded, indefensible and implausible but can also never pass

the muster of constitutionality.

4. It is a universal truth that faith and religion do not

countenance discrimination but religious practices are

sometimes seen as perpetuating patriarchy thereby negating the

basic tenets of faith and of gender equality and rights. The

societal attitudes too centre and revolve around the patriarchal

mindset thereby derogating the status of women in the social and

religious milieu. All religions are simply different paths to reach

the Universal One. Religion is basically a way of life to realize

one‟s identity with the Divinity. However, certain dogmas and

exclusionary practices and rituals have resulted in incongruities

between the true essence of religion or faith and its practice that

has come to be permeated with patriarchal prejudices.

Sometimes, in the name of essential and integral facet of the

faith, such practices are zealously propagated.

The Reference 5

5. Having stated so, we will focus on the factual score. The

instant writ petition preferred under Article 32 of the

Constitution seeks issuance of directions against the Government

of Kerala, Devaswom Board of Travancore, Chief Thanthri of

Sabarimala Temple and the District Magistrate of Pathanamthitta

to ensure entry of female devotees between the 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 custom

and usage; to declare Rule 3(b) of the Kerala Hindu Places of

Public Worship (Authorisation of Entry) Rules, 1965 (for short,

“the 1965 Rules”) framed in exercise of the powers conferred by

Section 4 of the Kerala Hindu Places of Public Worship

(Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as

unconstitutional being violative of Articles 14, 15, 25 and 51A(e)

of the Constitution of India and further to pass directions for the

safety of women pilgrims.

6. The three-Judge Bench in Indian Young Lawyers

Association and others v. State of Kerala and others2,

keeping in view the gravity of the issues involved, sought the

assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy,

2 (2017) 10 SCC 689 6

learned senior counsel as Amici Curiae. Thereafter, the three-

Judge Bench analyzed the decision and the reasons ascribed by

the Kerala High Court in S. Mahendran v. The Secretary,

Travancore Devaswom Board, Thiruvananthpuram and

others3 wherein similar contentions were raised. The Bench took

note of the two affidavits dated 13.11.2007 and 05.02.2016 and

the contrary stands taken therein by the Government of Kerala.

7. After recording the submissions advanced by the learned

counsel for the petitioners, the respondents as well as by the

learned Amici Curiae, the three-Judge Bench considered the

questions formulated by the counsel for the parties and,

thereafter, framed the following questions for the purpose of

reference to the Constitution Bench:

“1. Whether the exclusionary practice which is based upon a biological 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 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3 AIR 1993 Kerala 42 7

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

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

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

8. Because of the aforesaid reference, the matter has been

placed before us.

9. It is also worthy to note here that the Division Bench of the

High Court of Kerala, in S. Mahendran (supra), upheld the

practice of banning entry of women belonging to the age group of

10 to 50 years in the Sabarimala temple during any time of the

year. The High Court posed the following questions: 8

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

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

(3) Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry 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 a Yogi or a Bramchari according to the Thanthri of the temple. He stated that there are Sasta temples at Achankovil, Aryankavu and Kulathupuzha, but the deities there are in different forms. Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised by the Travancore Devaswom Board, while examined as C.W. 1 stated that God in Sabarimala is in the form of aNaisthikBramchari. That, according to him, is the reason why young women are not permitted to offer prayers in the temple.

41. Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.”

And again:

“… We are therefore of the opinion that the usage of woman of the age group 10 to 50 not being permitted to enter the temple and its precincts had been made 9

applicable throughout the year and there is no reason why they should be permitted to offer worship during specified days when they are not in a position to observe penance for 41 days due to physiological reasons. In short, woman after menarche up to menopause are not entitled to enter the temple and offer prayars there at any time of the year.”

11. Analysing so, the High Court recorded its conclusions which

read thus:

“(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

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

Submissions on behalf of the Petitioners

12. Learned counsel appearing for the petitioners have alluded

to the geographical location, historical aspect along with the

Buddhist connection of the Sabarimala temple and the religious

history of Lord Ayyappa. They have, for the purpose of 10

appreciating the functioning of the Sabarimala temple, also taken

us through the history of Devaswom in Travancore. As regards

the statutory backing of the Devaswom Boards, the petitioners

have drawn the attention of this Court to the „Travancore -

Cochin Hindu Religious Institutions Act, 1950‟, Section 4 of the

said Act contemplates a Devaswom Board for bringing all

incorporated and unincorporated Devaswoms and other Hindu

religious institutions except Sree Padmanabhaswamy Temple.

13. It has been put forth by them that the aforesaid enactment

has been subject to various amendments over a period of time,

the last amendment being made in the year 2007 vide Amending

Act of 2007 [published under Notification No. 2988/Leg.A1/2007

in K.G. ext. No. 694 dated 12.04.2007] which led to the inclusion

of women into the management Board. The petitioners have also

referred to Section 29A of the said Act which stipulates that all

appointments of officers and employees in the Devaswom

Administrative Service of the Board shall be made from a select

list of candidates furnished by the Kerala Public Service

Commission. It has been submitted by the petitioners that after

the 1950 Act, no individual Devaswom Board can act differently

both in matters of religion and administration as they have lost 11

their distinct character and Sabarimala no more remained a

temple of any religious denomination after the tak over of its

management.

14. As far as the funding aspect is considered, it is contended

that prior to the adoption of the Constitution, both the

Travancore and Tamil Nadu Devaswom Boards were funded by

the State but after six years of the adoption of the Constitution,

the Parliament, in the exercise of its constituent power, inserted

Article 290-A vide the 7th Amendment whereby a sum of rupees

forty six lakhs and fifty thousand only is allowed to be charged

upon the Consolidated Fund of the State of Kerala which is paid

to the Travancore Devaswom Board. It has been asseverated by

the petitioners that after the insertion of Article 290-A in the

Constitution and the consequent State funding, no individual

ill-practice could be carried on in any temple associated with the

statutory Devaswom Board even in 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 which is against the

constitutional principles.

15. It is urged that since all Devaswoms are Hindu Temples and

they are bound to follow the basic tenets of Hindu religion, 12

individual ill-practice of any temple contrary to the basic tenets

of Hindu religion is impermissible, after it being taken over by

statutory board and state funding in 1971. It is propounded that

for the purpose of constituting a „religious denomination; not only

the practices followed by that denomination should be different

but its administration should also be distinct and separate.

Thus, even if some practices are distinct in temples attached to

statutory board, since its administration is centralized under the

Devaswom Board, it cannot attain a distinct identity of a separate

religious denomination.

16. It is contended that in legal and constitutional parlance, for

the purpose of constituting a religious denomination, there has to

be strong bondage among the members of its denomination. Such

denomination must be clearly distinct following a particular set of

rituals/practices/usages having their own religious institutions

including managing their properties in accordance with law.

Further, the petitioners have averred that religious denomination

which closely binds its members with certain rituals/practices

must also be owning some property with perpetual succession

which, as per the petitioners, the Constitution framers kept in

mind while framing Article 26 of the Constitution and, 13

accordingly, religious denominations have been conferred four

rights under clauses (a) to (d) of Article 26. These rights, it is

submitted, are not disjunctive and exclusive in nature but are

collectively conferred to establish their identity. To buttress this

view, the petitioners have placed reliance on the views of the

views of H.M. Seervai4 wherein the learned author has stated that

the right to acquire property is implicit in clause (a) as no

religious institution could be created without property and

similarly, how one could manage its own affairs in matters of

religion under clause (b) if there is no religious institution. Thus,

for a religious denomination claiming separate and distinct

identity, it must own some property requiring constitutional

protection.

17. The petitioners have pressed into service the decisions of

this Court in Sardar Syedna Taher Saifuddin Saheb v. State

of Bombay5, Raja Bira Kishore Deb v. State of Orissa6,

Shastri Yagnapurushadiji and others v. Muldas Bhundardas

Vaishya and another7 and S.P. Mittal v. Union of India and

others8 wherein the concept of religious denomination was

4 Third Edition, Vol. 1, 1983 pg. 931 5 [1962] Suppl. 2 SCR 496 6 (1964) 7 SCR 32 7 (1966) 3 SCR 242 : AIR 1966 SC 1119 8 (1983) 1 SCC 51 14

discussed by this Court. It is the stand of the petitioners that

some mere difference in practices carried out at Hindu Temples

cannot accord to them the status of separate religious

denominations.

18. The contention of the petitioners is that Sabarimala Temple

is not a separate religious denomination, for the religious

parctices performed in Sabarimala Temple at the time of „Puja‟

and other religious ceremonies are akin to any other practice

performed in any Hindu Temple. It does not have its separate

administration, but is administered by or through a statutory

body constituted under the „Travancore - Cochin Hindu Religious

Institutions Act, 1950‟ and further, as per Section 29(3A) of the

said Act, the Devaswom Commissioner is required to submit

reports to the government, once in three months, with respect to

the working of the Board.

19. They have placed reliance on the decision of this Court in

The Commissioner Hindu Religious Endowments, Madras v.

Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt9

wherein it was observed thus:

9

[1954] SCR 1005 15

“The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”

20. As per the petitioners, this Court in Shirur Mutt (supra),

while giving freedom under clauses (a) and (b) of Article 26, made

it clear that what is protected is only the „essential part‟ of

religion or, in other words, the essence of „practice‟ practised by a

religious denomination and, therefore, the petitioners submit that

before any religious practice is examined on the touchstone of

constitutional principles, it has to be ascertained positively

whether the said practice is, in pith and substance, really the

„essence‟ of the said religion.

16

21. The petitioners have also cited the judgment in Durgah

Committee, Ajmer v. Syed Hussain Ali10 wherein

Gajendragadkar, J. clarified that clauses (c) and (d) do not create

any new right in favour of religious denominations but only

safeguard their rights. Similarly, in matters of religious affairs, it

is observed that the same is also not sacrosanct as there may be

many ill-practices like superstitions which may, in due course of

time, become mere accretions to the basic theme of that religious

denomination. After so citing, the petitioners have submitted that

even if any accretion added for any historical reason has become

an essence of the said religious denomination, the same shall not

be protected under Article 26(b) if it is so abhorring and is

against the basic concept of our Constitution.

22. It is also the case of the petitioners that discrimination in

matters of entry to temples is neither a ritual nor a ceremony

associated with Hindu religion as this religion does not

discriminate against women but, on the contrary, Hindu religion

accords to women a higher pedestal in comparison to men and

such a discrimination is totally anti-Hindu, for restriction on the

entry of women is not the essence of Hindu religion. It has also

10 (1962) 1 SCR 383 17

been submitted by the petitioners that even if Sabarimala temple

is taken as a religious denomination, their basic tenets are not

confined to taking of oath of celibacy for certain period of

pilgrimage as all pilgrims are allowed freely in the temple and

there is no such practice of not seeing the sight of women during

this period.

23. Further, mere sight of women cannot affect one‟s celibacy if

one has taken oath of it, otherwise such oath has no meaning

and moreover, the devotees do not go to the Sabarimala temple

for taking the oath of celibacy but for seeking the blessings of

Lord Ayyappa. Maintaining celibacy is only a ritual for some who

want to practise it and for which even the temple administration

has not given any justification. On the contrary, according to the

temple administration, since women during menstrual period

cannot trek very difficult mountainous terrain in the dense forest

and that too for several weeks, this practice of not permitting

them has started.

24. It is averred by the petitioners that though no right is

absolute, yet entry to temple may be regulated and there cannot

be any absolute prohibition or complete exclusionary rule from

entry of women to a temple. For substantiating this view, the 18

petitioners have pressed into service the judgment of this Court

in Shirur Mutt (supra), the relevant portion of which reads thus:

“We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of any religious institution or place of worship for the purpose of exercising any power conferred, or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary the Holy of Holies" as it is said, the sanctity of which is `zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution.”

25. The judgment of this Court in Sri Venkatramana Devaru

v. State of Mysore and others11 has been cited to submit that a

religious denomination cannot completely exclude or prohibit any 11 (1958) SCR 895 : 1958 AIR 55 19

class or section for all times. All that a religious denomination

may do is to restrict the entry of a particular class or section in

certain rituals. The relevant portion of Devaru (supra) reads as

under:

“We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, ,then the question is not whether Art. 25(2)(b) over-rides that right so as to extinguish it, but whether it is possible-so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk 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 of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.” (Emphasis is ours) 20

26. After referring to Sections 3 and 4 of the Kerala Hindu

Places of 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 complete exclusion/prohibition of any woman. In other

words, if at such time during which, by any custom or usage, any

woman was not allowed, then the said custom or usage shall

continue and to substantiate this claim, the petitioners have

cited the example that if during late night, by custom or usage,

women are not allowed to enter temple, the said custom or usage

shall continue, however, it does not permit complete prohibition

on entry of women. Further, the petitioners have submitted that

any other interpretation of Rule 3(b) would render the said rule

open to challenge as it would not only be violative of the Kerala

Hindu Places of Public Worship (Authorization of Entry) Rules,

1965 but also of Article 25(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 the

exclusionary practice of preventing women between the age of 10 21

to 50 years based on physiological factors exclusively to be found

in female gender violates Article 14 of the Constitution of India,

for such a classification does not have a constitutional object. It

is also the case of the applicant/intervenor that even if it is said

that there is classification between men and women as separate

classes, there cannot be any further sub-classification among

women on the basis of physiological factors such as

menstruation by which women below 10 years and above 50

years are allowed.

28. It has been averred by the applicant/intervenor that as per

Article 14, any law being discriminatory in nature has to have the

existence of an intelligible differentia and the same must bear a

rational nexus with the object sought to be achieved. The object

as has been claimed is to prevent the deity from being polluted,

which, in the view of the applicant/intervenor, runs counter to

the constitutional object of justice, liberty, equality and fraternity

as enshrined in the Preamble to our Constitution. That apart, the

applicant/intervenor has submitted that though the classification

based on menstruation may be intelligible, yet the object sought

to be achieved being constitutionally invalid, the question of

nexus need not be delved into.

22

29. Referring to the decision of this Court in Deepak Sibal v.

Punjab University and another12, the applicant/intervenor has

submitted that the exclusionary practice per se violates the

sacrosanct principle of equality of women and equality before law

and the burden of proving that it does not so violate is on the

respondent no. 2, the Devaswom Board, which the said

respondent has not been able to discharge.

30. It has also been asseverated by the applicant/intervenor

that the exclusionary practice is manifestly arbitrary in view of

the judgment of this Court in Shayara Bano v. Union of India

and others13 as it is solely based on physiological factors and,

therefore, neither serves any valid object nor satisfies the test of

reasonable classification under Article 14 of the Constitution.

31. It has also been put forth by the applicant/intervenor that

the exclusionary practice per se violates Article 15(1) of the

Constitution which amounts to discrimination on the basis of sex

as the physiological feature of menstruation is exclusive to

females alone. In support of the said submission, the

applicant/intervenor has placed reliance upon the judgments of

this Court in Anuj Garg and others v. Hotel Association of

12 (1989) 2 SCC 145 13 (2017) 9 SCC 1 23

India and others14 and Charu Khurana and others v. Union

of India and others15, to accentuate that gender bias in any

form is opposed to constitutional norms.

32. It is also the case of the applicant/intervenor that

exclusionary practice has the impact of casting a stigma on

women of menstruating age for it considers them polluted and

thereby has a huge psychological impact on them which

resultantly leads to violation of Article 17 as the expression „in

any form‟ in Article 17 includes untouchability based on social

factors and is wide enough to cover menstrual discrimination

against women. It has further been submitted by

applicant/intervenor that Article 17 applies to both State and

non-State actors and has been made operative through a Central

legislation in the form of Protection of Civil Rights Act, 1955. The

judgment of the High Court in S. Mahendran (supra), in the view

of the applicant/intervenor, is not in consonance with the

provisions of the 1955 Act.

33. Drawing support from the decisions of this Court in

National Legal Services Authority v. Union of India and

14 (2008) 3 SCC 1 15 (2015) 1 SCC 192 24

others16 and Justice K.S. Puttaswamy and another v. Union

of India and others17, the applicant/intervenor has averred that

the exclusionary practice pertaining to women is violative of

Article 21 of the Constitution as it impacts the ovulating and

menstruating women to have a normal social day to day

rendezvous 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

violates the rights of Hindu women under Article 25 of the

Constitution as they have the right to enter Hindu temples

dedicated to the public. As per the applicant/intervenor, there is

a catena of judgments by this Court wherein the rights of entry

into temples of all castes have been upheld on the premise that

they are Hindus and similarly, women who assert the right to

enter the Sabarimala temple are also Hindus.

35. The applicant/intervenor has referred to Section 4 of the

Kerala Places of Public Worship (Authorization of Entry) Act,

1965 and Rule 3(b) made under the said section which disentitles

certain categories of people from entering any place of public

16 (2014) 5 SCC 438 17 (2017) 10 SCC 1 25

worship and this includes women who, by custom or usage, are

not allowed to enter a place of public worship. It has further been

submitted by the applicant/intervenor that Rule 3(b) is ultra vires

the 1965 Act and is also unconstitutional for it violates Articles

14, 15, 17, 21 and 25 of the Constitution in so far as it prohibits

women from entering a public temple. The said Rule 3(b), as per

the applicant/intervenor, is not an essential practice protected

under Article 26 of the Constitution for it is not a part of religion

as the devotees of Lord Ayyappa are just Hindus and they do not

constitute a separate religious denomination under Article 26 of

the Constitution as they do not have a common faith or a distinct

name. To substantiate this view, the applicant/intervenor has

drawn the attention of this Court to the judgment in S.P. Mittal

(supra).

36. It has been submitted by the applicant/intervenor that even

if we assume that Sabarimala is a religious denomination, the

exclusion of women is not an essential practice as it does not

satisfy the test of essential practice as has been laid down by this

Court in Commissioner of Police and others v Acharya

Jagadishwarananda Avadhuta and another18.

18

(2004) 12 SCC 770 26

37. Referring to the judgment of this Court in Devaru (supra),

the applicant/intervenor has submitted that the right to manage

its own affairs conferred upon a religious denomination under

Article 26(b) is subject to be rights guaranteed to Hindu women

under Article 25(2)(b). As per the applicant/intervenor, a

harmonious construction of Articles 25 and 26 of the

Constitution reveals that neither Article 26 enables the State to

make a law excluding any women from the right to worship in

any public temple nor does it protect any custom that

discriminates against women and, thus, such exclusion amounts

to destruction of the rights of women to practise religion

guaranteed under Article 25.

38. The applicant/intervenor has also drawn the attention of

this Court to the Convention on Elimination of all forms of

Discrimination Against Women (CEDAW) and the fact that India

is a party to this Convention for emphasizing that it is the

obligation of the State to eradicate taboos relating to

menstruation based on customs or traditions and further the

State should refrain from invoking the plea of custom or tradition

to avoid their obligation. The judgment of this Court in Vishaka 27

and others v. State of Rajasthan and others19 has been cited

to submit that international conventions must be followed when

there is a void in the domestic law or when there is any

inconsistency in the norms for construing 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 of the Constitution cannot be frozen and it must

continuously evolve with the changing times. Further, the

applicant submits that merely because Article 26 does not specify

that it is subject to Part III or Article 25 of the Constitution, it

cannot be said that it is insulated against Part III and especially

Articles 14, 15 19, 21 and 25 of the Constitution. To emphasize

the same, the applicant/intervenor has relied upon the

observations made in Devaru case where the Court has stated

that the rule of construction is well settled that when there are

two provisions in an enactment which cannot be reconciled with

each other, they should be so interpreted that, if possible, effect

could be given to both. The Court observed that applying this

rule of harmonious construction, if the contention of the

19 (1997) 6 SCC 241 28

appellants is to be accepted, then Art. 25(2)(b) will become wholly

nugatory in its application to denominational temples, though, as

stated above, the language of that Article includes them. The

Court further observed that if the contention of the respondents

is accepted, then full effect can be given to Article 26(b) in all

matters of religion, subject only to this that as regards one aspect

of them, entry into a temple for worship, the rights declared

under Article 25(2)(b) will prevail and therefore while, in the

former case, Article 25(2)(b) will be put wholly out of operation, in

the latter, 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 subject to Article 25(2)(b).

Submissions on behalf of Respondent No. 1

40. The State of Kerala, the first respondent herein, as indicated

earlier, had taken contrary stands at different times. An affidavit

was filed on 13.11.2007 which indicated that the Government

was not in favour of discrimination towards any woman or any

section of the society. The said stand was changed in the

affidavit dated 5.2.2016 taking the stand that the earlier affidavit

was contrary to the judgment of the Kerala High Court. On

7.11.2016 on a query being made by the Court, the learned 29

counsel for the State submitted that it wanted to place reliance

on the original affidavit dated 13.11.2007. It is contended by Mr.

Jaideep Gupta, learned senior counsel appearing for the State of

Kerala, that the 1965 Act and the Rules framed thereunder are in

consonance with Article 25(2)(b) of the Constitution. Reference

has been made to Section 3 of the Act, for the said provision

deals with places of public worship to be open to Hindus

generally or any section or class thereof. The concept of

prohibition is not conceived of. It is urged by Mr. Gupta that

there is no restriction in view of the legislation in the field. In

essence, the stand of the State is that it does not conceive of any

discrimination as regards the 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 a

temple of great antiquity dedicated to Lord Ayyappa who the

petitioner avers to be a deity depicting “a hyper masculine God

born out of the union of two male Gods Shiva and Mohini, where

Mohini is Vishnu in a female form.”

42. Thereafter, the respondent no. 2 reiterated the submissions

of the respondent no. 4 pertaining to the observance of 41 days 30

„Vruthum‟ and the fact that the Sabarimala Temple is supposed

to depict „Naishtika Brahmacharya‟. In addition to this, the

respondent no. 2 has also referred to a Ph.D thesis by Radhika

Sekar in the Department of Sociology and Anthropology at

Carleton University, Ottawa, Ontario in October 1987 titled “The

Process of Pilgrimage : The Ayyappa Cultus and Sabarimala

Yatra” which has established the very raison d’etre for the

existence of the denominational Temple of Sabarimala based

upon deep penance, celibacy and abstinence by all visitors, male

and female. The respondent no. 2 has also drawn the attention of

the Court to the fact that the Sabarimala temple is open only

during specific defined periods, that is, on the Malayalam month

viz. 17th November to 26th December, for the first five days of

each Malayalam month which starts approximately in the middle

of each English calendar month and also during the period of

Makar Sankranti, viz. approximately from January 1 to mid-

January of each year.

Submissions on behalf of Respondent No. 4

43. At the outset, the respondent no. 4 has drawn the attention

of the Court to the history of Kerala in general and Sabarimala in

particular and has highlighted the existence of stone inscriptions 31

which state that the priest Kantaru Prabhakaru had made an

idol consecration at Sabarimala years back and after the

rampage of fire at Sabarimala, it was Kantaru Shankaru who

consecrated the existing idol in Sabarimala. The respondent no. 4

has submitted that the Thantri is the vedic head priest of Hindu

temples in Kerala and the popularity of any temple depends to a

great extent on the Thantri and Santhikkaran (Archaka) who

must be able to induce a spiritual reverence among worshippers

and explain the significance of the Mantras they recite and poojas

they perform.

44. The respondent no. 4 has averred that the custom and

usage of young women (aged between 10 to 50 years) not being

allowed to enter the Sabarimala temple has its traces in the basic

tenets of the establishment of the temple, the deification of Lord

Ayyappa and His worship. As per the respondent no. 4, Ayyappa

had explained the manner in which the Sabarimala pilgrimage

was to be undertaken emphasizing the importance of „Vrutham‟

which are special observances that need to be followed in order to

achieve spiritual refinement, and that as a part of the „Vruthum‟,

the person going on pilgrimage separates himself from all family

ties for 41 days and during the said period either the woman 32

leaves the house or the man resides elsewhere in order to

separate himself from all family ties. Thereafter, the respondent

no. 4 has pointed out that the problem with women is that they

cannot complete the 41 days Vruthum as their periods would

eventually fall within the said period and it is a custom among all

Hindus that women do not go to temples or participate in

religious activities during periods and the same is substantiated

by the statement of the basic Thantric text of temple worshipping

in Kerala Thantra Samuchayam, Chapter 10, Verse II.

45. The respondent no. 4 has emphasized that the observance

of 41 days Vruthum is a condition precedent for the pilgrimage

which has been an age old custom and anyone who cannot fulfill

the said Vruthum cannot enter the temple and, hence, women

who have not attained puberty and those who are in menopause

alone can undertake the pilgrimage at Sabarimala. The

respondent no. 4 has also averred that the said condition of

observance of 41days Vruthum is not applicable to women alone

and even men who cannot observe the 41 days Vruthum due to

births and deaths in the family, which results in breaking of

Vruthum, are also not allowed to take the pilgrimage that year. 33

46. The respondent no. 4 has also drawn the attention of the

Court to the fact that religious customs as well as the traditional

science of Ayurveda consider menstrual period as an occasion for

rest for women and a period of uncleanliness of the body and

during this period, women are affected by several discomforts

and, hence, observance of intense spiritual discipline for 41 days

is not possible. The respondent no. 4 has also contented that it is

for the sake of pilgrims who practise celibacy that young women

are not allowed in the Sabarimala pilgrimage.

47. The respondent no. 4, thereafter, contends that the

prohibition is not a social discrimination but is only a part of the

essential spiritual discipline related to this particular pilgrimage

and is clearly intended to keep the mind of the pilgrims away

from the distraction related to sex as the dominant objective of

the pilgrimage is the creation of circumstances in all respects for

the successful practice of spiritual self-discipline.

48. The respondent no. 4 has also averred that for climbing the

18 holy steps, one has to carry the irumudikettu (the sacred

package of offerings) and for making the pilgrimage really

meaningful, austerities for a period of 41 days have to be

observed and, hence, for a meaningful pilgrimage, it is always 34

prudent if women of the forbidden age group hold themselves

back.

49. The respondent no. 4 further submits that „devaprasanam‟

is a ritual performed for answering questions pertaining to

religious practices when the Thantris are also unable to take

decisions and that „devaprasanams‟ conducted in the past also

reveal that the deity does not want young women to enter the

precincts of the temple. As per the respondent no. 4, the

philosophy involved in evolving a particular aspect of power in a

temple is well reflected in the following mantra chanting during

the infusion of divine power:

“O the Supreme Lord! It is well known that You pervade everything and everywhere‟ yet I am invoking You in this bimbhamvery much like a fan that gathers and activates the all-pervading air at a particular spot. At the fire latent in wood expresses itself through friction, O Lord be specially active in this bimbhamas a result of sacred act.”

50. The respondent no. 4 is of the view that it is the particular

characteristic of the field of power, its maintenance and impact

which the „Devaprasanam‟ deals with and „Devaprasanam‟

confirms that the practice of women of particular age group not

participating in the temple should be maintained. 35

51. To bolster his stand, the respondent no. 4 has also placed

reliance upon the decision of the Kerala High Court in S.

Mahendran (supra) wherein the then Thantri Shri Neelakandaru

had deposed as C.W 6 and he stated that the present idol was

installed by his paternal uncle Kantaru Shankaru and he

confirmed that women of age group 10 to 50 years were not

allowed to enter the temple even before 1950s. The said witness

also deposed that his paternal uncle had instructed him and the

temple officials to follow the old customs and usages.

52. The respondent no. 4 has also drawn the attention of the

Court to the opinion of this Court in Seshammal and others v.

State of Tamil Nadu20, wherein it was observed that on the

consecration of the image in the temple, the Hindu worshippers

believe that the divine spirit has descended into the image and

from then on, the image of the deity is fit to be worshipped and

the rules with regard to daily and periodical worship have been

laid down for securing the continuance of the divine spirit and as

per the Agamas, an image becomes defiled if there is any

departure or violation of any of the rules relating to worship.

53. The respondent no. 4 has also submitted that the deity at

Sabarimala in the form of „Naishtik Brahmachari‟ and that is also 20 (1972) 2 SCC 11 36

a reason why young women are not allowed inside the temple so

as to prevent even the slightest deviation from celibacy and

austerity observed by 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

and his main submission is that this Court may remove the

restriction which bars women between the age group of 10 to 50

years from entering the Sabarimala temple for all days barring

the period between 16th November to 14th January (60 days) as

during the said period, Lord Ayyappa sits in the Sabarimala

temple and Lord Ayyappa visits other temples all across the

country during the remaining days. The applicant/intervenor

further highlights that during the said period, the pilgrims

coming to the temple must strictly follow the rituals which

includes taking a 41 days Vruthum and one of the rituals

pertains to not touching the ladies including daughters and wives

as well. The applicant/intervenor has further submitted that if

the restriction under Section 3(b) of the Kerala Hindu Places of

Worship (Authorization of Entry) Rules, 1965 is allowed to

operate only for the said period of 60 days, it would not amount

to any violation of Articles 14, 15 and 17 of the Constitution and 37

it would also be well within the ambit 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-

Devaswom Board that the writ jurisdiction does not lie in the

present matter, the petitioners submit that the validity of Section

3(b) could not have been challenged in suit proceedings as the

present writ petition has been filed against the State authorities

and the Chief Thantri who has been impleaded as the respondent

no. 4 is appointed by a Statutory Board; and since now „custom

and usage‟ fall under the ambit of Article 13, they have become

subject to the constitutional provisions contained in Part III

whose violation can only be challenged in writ jurisdiction.

56. Thereafter, the petitioners have submitted that the

respondent no. 2 has merely pressed the theory of intelligible

differentia to justify encircling of women of prohibited age without

elaborating the object sought to be achieved and whether the

differentia even has any nexus with the object and the object of

preventing deflecting of the idol from the stage of celibacy cannot

be achieved from the present classification.

38

57. Further, the petitioners have submitted that the respondent

no. 2 has wrongly stated that the Sabarimala temple is a

religious denomination, for any temple under a statutory board

like a Devaswom Board and financed out of the Consolidated

Fund of Kerala and whose employees are employed by the Kerala

Service Commission cannot claim to be an independent „religious

denomination‟.

58. Besides, the petitioners have contended that several ill-

practices in existence and falling within the ambit of religion as

cited by the respondent no. 2 may not be acceptable today and

the said practices have not come up before this Court and should

not be taken cognizance of. Further, it is the view of the

petitioners that the said practices cannot be held to be the

essence of religion as they had evolved out of convenience and, in

due course of time, have become crude accretions. To prove its

point, the petitioners have cited the examples of the practices of

dowry and restriction of women from entering mosques which,

although had come into existence due to certain factors existing

at the relevant time, no longer apply.

59. Thereafter, the petitioners have contended that if

Sabarimala does not come in the category of religious 39

denomination, then it cannot claim the right under Article 26 and

it would come within the purview of Article 12 making it subject

to Articles 14 and 15 and, hence, the State would be restrained

from denying equal protection of law and cannot discriminate on

the basis of sex. Even if it is concluded that Sabarimala is a

religious denomination, then as per the Devaru case, there has

to be a harmonious construction between Articles 25 and 26 of

the Constitution and, thus, to completely deny women of the age

group of 10 to 50 years from entering the temple would be

impermissible as per the Devaru case. Finally, the petitioners

have submitted that in legal and constitutional parlance, after

coming into effect of the Constitution of India, „dignity of women‟

under Article 51A(e) is an essential ingredient of constitutional

morality.

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

60. The applicant/intervenor has submitted that the law

relating to entry into temple for darshan is separate and distinct

from the law relating to management of religious affairs. The

former is governed by Article 25 and the latter is governed by

Article 26. Further, the applicant/intervenor has pointed out that

even those institutions which are held to be denominations and 40

claim protection under Article 26 cannot deny entry to any

person for the purpose of darshan and the ex facie denial of

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 the

question whether Sabarimala is a denomination or not is

irrelevant for the reason that even if it is concluded that

Sabarimala is a 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 cannot be said to be an

essential aspect of the Hindu religion. Further, the

applicant/intervenor has also averred that Sabarimala does not

satisfy the test of religious denomination as laid down in S.P.

Mittal (supra).

62. The applicant/intervenor has also submitted that the

respondents, by referring to the practice as a custom with

aberrations, have themselves suggested that there has been no

continuity in the applicability of the said custom and that it has

also been established in the evidence before the High Court that

women irrespective of their age were permitted to enter the

Sabarimala for the first rice feeding ceremony of their children 41

and it is only since the last 60 years after the passing of the

Notification in 1955 that women between the age of 10 to 50

years were prohibited from entering the temple. The

applicant/intervenor has also pointed out that even if the said

practice is considered to be a custom, it has to still pass the test

of constitutional morality and constitutional legitimacy and the

applicant/intervenor has relied upon the decision of this 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 an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas. Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong asprescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question do not proscribe any group of citizens from being appointed as Archakas on the basis of caste or class the sanctity of Article 17 or any other provision of Part III of the Constitution or even theProtection of Civil Rights Act, 1955 will not be 21 (2016) 2 SCC 725 42

violated. What has been said in Seshammal [Seshammal v. State of T.N., (1972) 2 SCC 11] (supra) is that if any prescription with regard to appointment of Archakas is made by the Agamas, Section 28 of the Tamil Nadu Act mandates the trustee to conduct the temple affairs in accordance with such custom or usage. The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”

63. In reply to the contention of the respondents that the basis

for exclusion of women is that women cannot observe the 41 days

Vruthum and also on the ground that Ayyappa is a celibate God,

the applicant/intervenor has submitted that the meaning of

celibacy is the abstinence from sex and the respondents by

suggesting that women cannot practice Vruthum which requires

abstinence from sex are stigmatizing women and stereotyping

them as being weak and lesser human beings than men. Hence,

the classification, in view of the applicant/intervenor, is not

based on intelligible differentia.

64. The applicant/intervenor has also submitted that

menstruating women and untouchables are being treated as

similar in terms of entry to temple and, hence, the custom in

dispute amounts to „untouchability‟.

43

65. The applicant/intervenor has, thereafter, drawn the

attention of the Court to the fact that although the respondents

aver that they do not intend to discriminate on the basis of

gender, yet the Court has to test the violation of the fundamental

rights not on the basis of intention but the impact of the

impugned action. The applicant/intervenor has stated that the

respondents have wrongly placed reliance upon the decision in

T.M.A. Pai Foundation and others v. State of Karnataka and

others22 as in the present case, the issue is not one pertaining to

the rights of minorities but concerning the unconstitutional acts

of the majority.

66. The applicant/intervenor has also submitted that the age-

old practice of considering women as impure while they are

menstruating amounts to untouchability and stigmatizes them as

lesser human beings and is, therefore, violative of Articles14, 15,

17 and 21 of the Constitution.

Submissions 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 a public temple being used as a place of

22 (1995) 5 SCC 220 44

worship where members of the public are admitted as a matter of

right and entry thereto is not restricted to any particular

denomination or part thereof. As per the learned Amicus, the

public character of the temple gives birth to the right of the

devotees to enter it for the purpose of darshan or worship and

this universal right to entry is not a permissive right dependent

upon the temple authorities but a legal right in the true sense of

the expression. To advance this view, the learned Amicus has

relied upon the decisions of this Court in Deoki Nandan v.

Murlidhar and others23 and Sri Radhakanta Deb and

another v. Commissioner of Hindu Religious Endowments,

Orissa24.

68. As regards the nature of the right claimed by the petitioners

herein, learned Senior Advocate, Mr. Raju Ramchandran, the

learned Amicus, has submitted that it is the freedom of

conscience and the right to practise and profess their religion

which is recognized under Article 25 of the Constitution of India.

This right, as per the learned Amicus, encompasses the liberty of

belief, faith and worship, pithily declared as a constitutional

vision in the Preamble to the Constitution of India.

23

AIR 1957 SC 133 24 (1981) 2 SCC 226 45

69. Learned Senior Advocate Mr. Raju Ramchandran, the

learned Amicus, submits that the right of a woman to visit and

enter a temple as a devotee of the deity and as a believer in

Hindu faith is an essential aspect of her right to worship without

which her right to worship is significantly denuded. Article 25

pertinently declares that all persons are „equally‟ entitled to freely

practise religion. This, in view of the learned Amicus, implies not

just inter-faith but intra-faith parity. Therefore, the primary right

under Article 25(1) is a 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

in keeping the understanding of untouchability in Article 17

open-textured was to abolish all practices based on the notion of

purity and pollution. This Article proscribes untouchability „in

any form‟ as prohibited and the exclusion of menstruating

women from religious spaces and practices is no less a form of

discrimination than the exclusion of oppressed castes. After

referring to Section 7(c) of the Civil Rights Act, 1955, which

criminalizes the encouragement and incitement to practise

untouchability in „any form whatsoever‟ and the Explanation II

appended to the said Section, the learned Amicus has submitted 46

that untouchability cannot be understood in a pedantic sense

but must be understood in the context of the Civil Rights Act to

include any exclusion based on the notions of purity and

pollution.

71. It is also the view of the learned Amicus that the phrase

„equally entitled to‟ in Article 25(1) finds resonance in Section 3(a)

of the Civil Rights Act, 1955 which criminalizes exclusion of

people to those places which are “open to other persons

professing the same religion or any section thereof, as such

person” and prevention of worship “in the same manner and to

the same extent as is permissible to other persons professing 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, inter alia, „by whatever name belonging to any religious

denomination or any section thereof, for the performance of any

religious service‟ and, therefore, the Amicus submits that a

temple is a public temple and irrespective of its denominational

character, it cannot prevent the entry of any devotee aspiring to

enter and worship.

47

72. After placing reliance on the decision of this Court in K.S.

Puttaswamy (supra), the Amicus has submitted that the

exclusionary practice in its implementation results in involuntary

disclosure by women of both their menstrual status and age

which amounts to forced disclosure that consequently violates

the right to dignity and privacy embedded in Article 21 of the

Constitution of India.

73. It has also been submitted by the Amicus Curiae that

Article 25(2)(b) is not a mere enabling provision but is a

substantive right as it creates an exception for laws providing for

social reform or throwing open of Hindu religious institutions of a

public character to all classes and sections of Hindus and

thereby embodies the constitutional intent of abhorring

exclusionary practices. Further, referring to the judgment of this

Court in Devaru (supra), the learned Amicus has submitted that

Article 25(2)(b) does not merely seek to prevent exclusionary

practices on the basis of caste only, for the rights under Part III of

the Constitution must be given a broad meaning and any

exception must be given a narrow construction.

74. Further, it has been submitted by the learned Amicus that

the exclusionary practice in the present case cannot be justified 48

either on the grounds of health, public order or morality for the

term „morality‟ used in Article 25 or 26 is not an individualized or

sectionalized sense of morality subject to varying practices and

ideals of every religion but it is the morality informed by the

constitutional vision. The judgments of this Court in Adi Saiva

Sivachariyargal Nala Sangam (supra), Manoj Narula v.

Union of India25 and National Legal Services Authority

(supra) have been pressed into service by the Amicus to

accentuate that any subjective reading of the term „morality‟ in

the context of Article 25 would make the liberty of faith and

worship otiose and the exclusion of women as in the present case

is a matter of institutional practice and not morality.

75. The Amicus has also cited the judgments of this Court in

Acharya Jagadishwarananda Avadhuta (supra) to submit

that in order to claim protection of the doctrine of essential

religious practices, the practice to exclude women from entry to

the Sabarimala temple must be shown by the respondents to be

so fundamental to the religious belief without which the religion

will not survive. On the contrary, no scriptural evidence has

25 (2014) 9 SCC 1 49

been led by the respondents herein to demonstrate that the

exclusion of women is an essential part of their religion.

76. After referring to Section 3 of the Kerala Hindu Places of

Public Worship (Authorization of Entry) Act, 1965 which makes a

place of worship open to all sections and classes, Mr. Raju

Ramchandran, learned senior counsel, is of the view that the said

Section is nothing but a statutory enunciation of rights embodied

under Article 25(2)(b) and similarly, the emphasis on the word

„like‟ in Section 3 is the statutory reflection of the phrase „equally‟

found in Article 25(1). That apart, it is the case of the learned

Amicus curiae that the expression „section‟ or „class‟ in Section

2(c) of the 1965 Act must necessarily include all sexes if Section

3 is to be in consonance with a woman‟s right to worship under

Article 25 and in consonance with Article 15. As per the learned

Amicus, women between the age of 10 to 50 years are a section

or class of Hindus who are within the inclusive provision of

Section 3 and the proviso to Section 3 brings in the right

conferred in Article 26, for the inter-play between Section 3 and

the proviso must be governed by how Articles 25(2)(b) and 26 are

reconciled by the judgment of this Court in Devaru (supra). 50

77. It have been asseverated by Mr. Raju Ramchandran, learned

senior counsel, that Rule 3(b) of the Kerala Hindu Places of

Public Worship (Authorization of Entry) Rules, 1965 is ultra vires

Sections 3 and 4 of the 1965 Act, for the reason that it protects

„custom and usage‟ which may prohibit entry when Section 3

expressly overrides custom and usage. The said rule, in view of

the learned Amicus, discriminates against women when Section 4

makes it clear that rules made under it cannot be discriminatory

against any section or class. It is submitted that the power

entrusted under the 1965 Act to make rules, inter alia, for due

observance of religious rights and ceremonies is for the

furtherance of a devotee‟s right to worship under Article 25,

whereas to the contrary, Rule 3(b), by saving „custom and usage‟,

militates against the very purpose of the 1965 Act which is to

protect the right to worship guaranteed under Article 25.

78. It has also been pointed out that there is another Rule,

similar to Rule 3(b), in the form of Rule 6(c) framed under the

1950 Act, which was relied upon by the High Court and this Rule

6(c) has not been assailed by the petitioners in the present writ

petition, but in view of the learned Amicus, this Rule 6(c) would 51

also be unconstitutional for the same reason that Rule 3(b) is

unconstitutional.

79. The burden to prove that the devotees of Lord Ayyappa form

a denomination within the meaning of Article 26, as per the

learned Amicus, is on the respondents, which they have failed to

discharge as none of the three tests for determination of

denominational status, i.e., (i) common faith, (ii) common

organization and (iii) designation by a distinctive name, have

been established by the respondents. Further, the Amicus has

submitted that the decision of the Kerala High Court in S.

Mahendran (supra) does not indicate finding of a denominational

status.

80. It is also submitted by the learned Amicus that Devaswom

Board in its counter affidavit before the Kerala High Court in S.

Mahendran (supra), had asserted, as is reflected vide para 7 of

the judgment, that there was no such prohibition against women

entering the temple and that there was no evidence to suggest

any binding religious practice and, likewise, the High Court, in its

judgment vide para 34, found the exclusionary practice as just a

usage and not a religious custom or essential religious practice. 52

81. The learned Amicus also averred that even if we are to

assume that the devotees of Lord Ayyappa constitute a separate

denomination, the rights conferred under Article 26 being subject

to the constitutional standard of morality, exclusion of women

from entry would violate this standard of morality for a

denomination‟s right to manage its affairs in matters of religion

under Article 26(b) is subject to Article 25(2)(b) as has been

succinctly explained by this Court in Devaru (supra) by

observing thus:

“And lastly, it is argued that whereas Article 25 deals with the rights of individuals, Article 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Article 25(2)(b). This contention ignores the true nature of the right conferred by Article 25(2)(b). That is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b). The fact is that though Article 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Article 25(1) and Article 26(b).” 53

Submissions of learned Amicus Curiae, Senior Advocate Mr. K. Ramamoorthy

82. It has been asseverated by learned Senior Advocate Mr. K.

Ramamoorthy, learned Amicus curiae, that in all prominent

Hindu temples in India, there had been some religious practices

based on religious beliefs, which are essential part of the Hindu

religion as considered by people for a long time. It has been

submitted that the devotees of Lord Ayyappa could also be

brought within the ambit of religious denomination who have

been following the impugned religious practice which has been

essential part of religion.

83. Mr. K. Ramamoorthy, learned senior counsel, has submitted

that the petitioners herein have not disputed that the impugned

religious practice in Sabarimala temple is not a religious practice

based on religious belief for several centuries, rather the

petitioners have only argued that such a practice is violative of

Article 25 of the Constitution. It is also submitted by Mr. K.

Ramamoorthy that in any of the judgments cited by the

petitioners, the question never arose as to what the religious

practice on the basis of religious belief is and, accordingly, the

question as to whether religious practices based on religious 54

beliefs in all prominent temples in India are violative of

Articles14, 15, 17, 21 and 25 of the Constitution is to be

considered herein.

84. It has been put forth by Mr. K. Ramamoorthy that the

protection of 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 a guarantee for rituals,

observations, ceremonies and modes of worship which are

integral parts of religion. It has been submitted that what

constitutes an essential part of a religious practice is to be

decided with reference to the practices which are regarded by a

large section of the community for several centuries and,

therefore, would have to be treated as a part of the religion.

85. It has also been averred that Ayyappa temple by itself is a

denomination as contemplated under Article 26 having regard to

the nature of worship and the practices followed by the temple

and similarly, the devotees of Ayyappa temple would also

constitute a denomination who have accepted the impugned

religious practice based on religious belief which has been in

vogue for several centuries unbroken and accepted by all sections

of Hindus.

55

86. It has been submitted that it is too late in the day to

contend that religious practice based on religious faith, adhered

to and followed by millions of Hindus for so long in consonance

with the natural rights of men and women is violative of

fundamental rights. It is also the case of the Amicus Mr. K.

Ramamoorthy that to project such a religious practice as being

contrary to natural law is a shock to the judgment of the

community, as calling such a religious practice contrary to

fundamental rights amounts to offending the common sense and

wisdom of our ancestors in faithfully following the command of

the divine. Further, no group or individual can force other

Hindus to follow their view in the domain of religious faith.

87. As regards the challenge raised by the petitioners against

Rule 3(b) of the Kerala Hindu Places of Public Worship

(Authorization of Entry) Rules, 1965, it is asseverated by Mr. K.

Ramamoorthy that the question which arises is whether the

State Government, with reference to such a religious practice,

could make a rule so that the general public would know the

denominational character of the temple and the religious practice

followed by the temple.

56

Followers of Lord Ayyappa do not constitute a religious denomination

88. Article 26 of the Constitution of India guarantees to every

religious denomination the right (a) to establish and maintain

institutions for religious and charitable 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. However, these rights are

subject to public order, morality and health.

89. The important question that emerges is as to what

constitutes a religious denomination. The said question has been

the subject matter of 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 precise meaning or connotation of the expression "religious denomination" and whether a 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 a common faith and Organisation and designated by a distinctive name. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such 57

sects or sub-sects can certainly be balled a religious denomination, as it is designated by a distinctive name, -in many cases it is the name of the founder, - and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight UdipiMaths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.”

90. In S.P. Mittal (supra), the challenge was with regard to the

validity of the Auroville (Emergency) Provisions Act, 1980 as

being violative of Articles 25 and 26 of the Constitution. Sri

Aurobindo postulated the philosophy of cosmic salvation and

along with the disciples found the Aurobindo Society for

preaching and propagating the teachings of Sri Aurobindo and

The Mother through its centres in India as well as abroad. After

the death of Sri Aurobindo, the Mother proposed an international

cultural township, Auroville, in the then Pondicherry. The society

received funds as grants from the Central Government, State 58

Government and other organizations in India as well as from

outside India for development of the township at Auroville. Upon

the death of the Mother, the Government started receiving

complaints about the mismanagement of the society and,

accordingly, enacted the Auroville (Emergency) Provisions Act,

1980. The Supreme Court, by a majority of 4:1, ruled that neither

the society nor the township of Auroville constituted a religious

denomination, for the teachings and utterances of Sri Aurobindo

did not constitute a religion and, therefore, taking over of the

Auroville by the Government did not infringe the society‟s right

under Articles 25 and 26 of the Constitution.

91. The Court referred, inter alia, to the MoA of the society along

with Rule 9 of the Rules and Regulations of Sri Aurobindo Society

which dealt with membership and read thus:

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

After so referring, the Court opined thus:

59 “The only condition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society. It was further urged that what is universal cannot be a religious denomination. In order to constitute a separate denomination, there must be something distinct from another. A denomination, argues the counsel, is one which is different from the other and if the Society was a religious denomination, then the person seeking admission to the institution would lose his previous religion. He cannot be a member of two religions at one and the same time. But this is not the position in becoming a member of the Society and Auroville. A religious denomination must necessarily be a new one and new methodology must be provided for a religion. Substantially, the view taken by Sri Aurobindo remains a part of the Hindu philosophy. There may be certain innovations in his philosophy but that would not make it a religion on that account.”

92. The Court in S.P Mittal (supra) reiterated and concurred

with the definition of „religious denomination‟ which was also

accepted in Shirur Mutt (supra) and observed as under:

"The words 'religious denomination' in Article 26 of the Constitution must take their colour from the word 'religion' and if this be so, the expression 'religious denomination' must also satisfy three conditions:

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

(2) common organisation, and

(3) designation by a distinctive name."

60 93. In the case of Nallor Marthandam Vellalar and others v.

Commissioner, Hindu Religious and Charitable Endowment

and others26, the question that arose before the Court was

whether the temple at Nellor owned by the Vellala Community of

Marthandam constituted a „religious denomination‟ within the

meaning of Article 26 of the Constitution. It was argued in this

case that the Vellala Community observed special religious

practices and beliefs which are integral part of their religion and

that the front mandappam of the sanctorium is open to access

only to the members of their community and no one else and

outsiders can offer worship from the outer compound. The Court

held that the temple at Nellor owned by the Vellala Community of

Marthandam did not constitute a religious denomination as there

was no evidence to prove that the members of the Vellala

Community had common religious tenets peculiar to themselves

other than those which are common to the entire Hindu

community and further, the Court, following the principle laid

down in S.P. Mittal (supra), observed:

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

26 (2003) 10 SCC 712 61

"religious denomination" take their colour from the word `religion'. The expression "religious denomination" must satisfy three requirements – (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status.”

94. As is decipherable form the above decisions of this Court,

for any religious mutt, sect, body, sub-sect or any section thereof

to be designated as a religious denomination, it must be a

collection of individuals having a collective common faith, a

common organization which adheres to the said common faith,

and last but not the least, the said collection of individuals must

be labeled, branded and identified by a distinct name.

95. Though, the respondents have urged that the pilgrims

coming to visit the Sabarimala temple being devotees of Lord

Ayyappa are addressed as Ayyappans and, therefore, the third

condition for a religious denomination stands satisfied, is

unacceptable. There is no identified group called Ayyappans.

Every Hindu devotee can go to the temple. We have also been

apprised that there are other temples for Lord Ayyappa and there 62

is no such prohibition. Therefore, there is no identified sect.

Accordingly, we hold, without any hesitation, that Sabarimala

temple is a public religious endowment and there are no

exclusive identified followers of the cult.

96. Coming to the first and the most important condition for a

religious denomination, i.e., the collection of individuals ought to

have a system of beliefs or doctrines which they regard as

conducive to their spiritual well-being, there is nothing on record

to show that the devotees of Lord Ayyappa have any common

religious tenets peculiar to themselves, which they regard as

conducive to their spiritual well-being, other than those which

are common to the Hindu religion. Therefore, the devotees of Lord

Ayyappa are just Hindus and do not constitute a separate

religious denomination. For a religious denomination, there must

be new methodology provided for a religion. Mere observance of

certain practices, even though from a long time, does not make it

a distinct religion on that account.

Enforceability of Fundamental Rights under Article 25(1) against the Travancore Devaswom Board

97. Having stated that the devotees of Lord Ayyappa do not

constitute a religious denomination within the meaning of Article

26 and that Sabarimala Temple is a public temple by virtue of the 63

fact that Section 15 of the 1950 Act vests all powers of direction,

control and supervision over it in the Travancore Devaswom

Board which, in our foregoing analysis, has been unveiled as

„other authority‟ within the meaning of Article 12, resultantly

fundamental rights including those guaranteed under Article

25(1) are enforceable against the Travancore Devaswom Board

and other incorporated Devaswoms including the Sabarimala

Temple. We have also discussed the secular character of the

Indian Constitution as well as the broad meaning assigned to the

term religion occurring in various Articles of the Constitution

including Article 25(1).

98. Now adverting to the rights guaranteed under Article 25(1)

of the Constitution, be it clarified that Article 25(1), by employing

the expression „all persons‟, demonstrates that the freedom of

conscience and the right to freely profess, practise and propagate

religion is available, though subject to the restrictions delineated

in Article 25(1) itself, to every person including women.

99. It needs to be understood that the kernel of Article 26 is

„establishment of a religious institution‟ so as to acclaim the

status of religious denomination. Whereas, Article 25(1)

guarantees the right to practise religion to every individual and 64

the act of practice is concerned, primarily, with religious worship,

rituals and observations as held in Rev. Stainislaus v. State of

Madhya Pradesh and others27. Further, it has been held in

Shirur Mutt (supra) that the logic underlying the constitutional

guarantee regarding „practice‟ of religion is that religious

practices are as such a part of religion as religious faith or

doctrines.

100. The right guaranteed under Article 25(1) has nothing to do

with gender or, for that matter, certain physiological factors,

specifically attributable to women. Women of any age group have

as much a right as men to visit and enter a temple in order to

freely practise a religion as guaranteed under Article 25(1). When

we say so, we are absolutely alive to the fact that whether any

such proposed exclusion of women from entry into religious

places forms an essential part of a religion would be examined at

a subsequent stage.

101. We have no hesitation to say that such an exclusionary

practice violates the right of women to visit and enter a temple to

freely practise Hindu religion and to exhibit her devotion towards

Lord Ayyappa. The denial of this right to women significantly

denudes them of their right to worship. We concur with the view 27 (1977) 1 SCC 677 65

of the Amicus Curiae, learned senior counsel, Mr. Raju

Ramachandran, that the right guaranteed under Article 25(1) is

not only about inter-faith parity but it is also about intra-faith

parity. Therefore, the right to practise religion under Article 25(1),

in its broad contour, encompasses a non-discriminatory right

which is equally available to both men and women of all age

groups professing the same religion.

102. Though not in reference to men or women, yet in the context

of any Hindu worshipper seeking entry in a temple which is a

public place of worship for Hindus, the observations of the

Supreme Court in Nar Hari Shastri and others v. Shri

Badrinath Temple Committee28 are quite instructive wherein

the Court opined thus:

“It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan' or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved…..” And again:

28 AIR 1952 SC 245 66

“The true position, therefore, is that the plaintiffs' right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form.”

103. Another authoritative pronouncement in regard to the

freedom to practise a religion freely without with any fictitious

and vague constraint is the case of Acharya

Jagadishwarananda Avadhuta (supra), wherein the Court

observed thus:

“The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one's conscience or upon the right freely to profess, practice and propagate religion save those imposed under the police power of the State and the other provisions of Part II of the Constitution. This means the right to worship God according to the dictates of one's conscience. Man's relation to his God is made no concern for the State. Freedom of conscience and religious belief cannot, however, be, set up to avoid those duties which every citizen owes to the nation; e.g. to receive military training, to take an oath expressing willingness to perform military service and so on.”

104. Therefore, it can be said without any hesitation or

reservation that the impugned Rule 3(b) of the 1965 Rules, 67

framed in pursuance of the 1965 Act, that stipulates exclusion of

entry of women of the age group of 10 to 50 years, is a clear

violation of the right of such women to practise their religious

belief which, in consequence, makes their fundamental right

under Article 25(1) a dead letter. It is clear as crystal that as long

as the devotees, irrespective of their gender and/or age group,

seeking entry to a temple of any caste are Hindus, it is their legal

right to enter into a temple and offer prayers. The women, in the

case at hand, are also Hindus and so, there is neither any viable

nor any legal limitation on their right to enter into the

Sabarimala Temple as devotees of Lord Ayyappa and offer their

prayers to the deity.

105. When we say so, we may also make it clear that the said

rule of exclusion cannot be justified on the ground that allowing

entry to women of the said age group would, in any way, be

harmful or would play a jeopardizing role to public order,

morality, health or, for that matter, any other provision/s of Part

III of the Constitution, for it is to these precepts that the right

guaranteed under Article 25(1) has been made subject to.

106. The term „morality‟ occurring in Article 25(1) of the

Constitution cannot be viewed with a narrow lens so as to confine 68

the sphere of definition of morality to what an individual, a

section or religious sect may perceive the term to mean. We must

remember that when there is a violation of the fundamental

rights, the term „morality‟ naturally implies constitutional

morality and any view that is ultimately taken by the

Constitutional Courts must be in conformity with the principles

and basic tenets of the concept of this constitutional morality

that gets support from the Constitution.

107. In Manoj Narula (supra), this Court has reflected upon the

predominant role that the concept of constitutional morality

plays in a democratic set-up and opined thus:

“The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.” 69

108. That apart, this Court, in Government of NCT of Delhi v.

Union of India and others29, observed thus:

“Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed.”

109. Elaborating further, in Navtej Singh Johar and others v.

Union of India and others30, this Court observed:

“The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.”

29 (2018) 8 SCALE 72 30 (2018) 10 SCALE 386 70

And again:

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

110. The right guaranteed under Article 25(1) has been made

subject to, by the opening words of the Article itself, public order,

morality, health and other provisions of Part III of the

Constitution. All the three words, that is, order, morality and

health are qualified by the word „public‟. Neither public order nor

public health will be at peril by allowing entry of women devotees

of the age group of 10 to 50 years into the Sabarimala temple for

offering their prayers. As regards public morality, we must make

it absolutely clear that since the Constitution was not shoved, by

any external force, upon the people of this country but was

rather adopted and given by the people of this country to 71

themselves, the term public morality has to be appositely

understood as being synonymous with constitutional morality.

111. Having said so, the notions of public order, morality and

health cannot be used as colourable device to restrict the

freedom to freely practise religion and discriminate against

women of the age group of 10 to 50 years by denying them their

legal right to enter and offer their prayers at the Sabarimala

temple for the simple reason that public morality must yield to

constitutional morality.

Whether exclusionary practice is an essential practice as per Hindu religion

112. We have, in the earlier part of this judgment, determined

that the devotees of Lord Ayyappa, who though claim to be a

separate religious denomination, do not, as per the tests laid

down by this Court in several decisions, most prominent of them

being S.P. Mittal (supra), constitute a separate religious

denomination within the meaning of Article 26 of the

Constitution. This leads us to a mathematical certainty that the

devotees of Lord Ayyappa are the followers of Hindu religion.

Now, what remains to be seen is whether the exclusion of women

of the age group of 10 to 50 years is an essential practice under 72

the Hindu religion in the backdrop of the peculiar attending

circumstances attributable to the Sabarimala temple. For

ascertaining the said question, we first need to understand what

constitutes an essential practice for a particular religion which

has been the subject matter of several decisions of this Court.

Article 25 merely protects the freedom to practise rituals,

ceremonies, etc. which are an integral part of a religion as

observed by this Court in John Vallamattom and another v.

Union of India31. While saying so, the Court ruled that a

disposition towards making gift for charitable or religious

purpose can be designated as a pious act of a person, but the

same cannot be said to be an integral part of any religion.

113. The role of essential practices to a particular religion has

been well demonstrated by Lord Halsbury in Free Church of

Scotland v. Overtoun32 wherein it was observed:

"In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with

31 (2003) 6 SCC 611 32 (1904) AC 515 73

nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension."

114. This Court, in Shirur Mutt (supra), for the first time, held

that what constitutes an essential part of a religion will be

ascertained with reference to the tenets and doctrines of that

religion itself. The Court had opined thus:

"In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself."

115. In Mohd. Hanif Quareshi v. State of Bihar33, this Court

rejected the argument of the petitioner that sacrifice of cow on

Bakr-id was an essential practice of Mohammedan religion and

ruled that it could be prohibited by the State under Clause 2(a) of

Article 25.

116. Similarly, in State of West Bengal and others v.

Ashutosh Lahiri and others34, this Court, while approving the

judgment of the High Court, observed that the State of West

Bengal had wrongly invoked Section 12 of the West Bengal

Animal Slaughter Control Act, 1950 on the ground that

exemption of slaughtering healthy cows was required to be given

33 AIR 1958 SC 731 34 AIR 1995 SC 464 74

for the Muslim community. While holding so, the Court opined

thus:

"...before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is necessary to be granted for sub-serving an essential religious, medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose no such exemption can be granted so as to by-pass the thrust of the main provisions of the Act."

117. In Durgah Committee, Ajmer and others v. Syed

Hussain Ali and others35, the Court, although speaking in the

context of Article 26, warned that some practices, though

religious, may have sprung from merely superstitious beliefs and

may, in that sense, be extraneous and unessential accretions to

religion itself and unless such practices are found to constitute

an essential and integral part of a religion, their claim for

protection as essential practices may have to be carefully

scrutinised; in other words, the protection must be confined to

such religious practices as are an essential and an integral part

of the religion and no other.

118. The Court, in this case, has excluded such practices from

protection which, though may have acquired the characteristic of 35 AIR 1961 SC 1402 75

religious practices, are found, on careful scrutiny, to be an

outcome of some superstitious beliefs which may render them

unessential and not an integral part of the religion.

119. In Acharya Jagadishwarananda Avadhuta and others

v. Commissioner of Police, Calcutta36, popularly known as the

first Ananda Marga case, this Court held that Tandav dance in

processions or at public places by the Ananda Margis carrying

lethal weapons and human skulls was not an essential religious

rite of the followers of Ananda Marga and, therefore, the order

under Section 144 Cr.PC. prohibiting such processions in the

interest of public order and morality was not violative of the

rights of the Ananda Marga denomination under Articles 25 and

26 of the Constitution more so when the order under Section 144

Cr.PC. did not completely ban the processions or gatherings at

public places but only prohibited carrying of daggers, trishuls

and skulls which posed danger to public order and morality.

120. In N. Adithayan v. Travancore Devaswom Board and

others37, the Court very succinctly laid down as to what should

be the approach of the court for deciding what constitutes an

essential practice of a religion in the following words: 36

(1983) 4 SCC 522 37 (2002) 8 SCC 106 76

"The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion..."

(Emphasis is ours)

121. In Commissioner of Police and others v. Acharya

Jagadishwarananda Avadhuta and others (supra), being the

second Ananda Marga case, the Court has elaborately discussed

the true nature of an essential practice and has further laid down

the test for determining whether a certain practice can be

characterized as essential to a particular religion in order to

guarantee protection under the Constitution. The Court has

opined:

"The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See generally the Constitution bench decisions in The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and 77

Seshammal v. State of Tamilnadu :

[1972]3SCR815 , regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by 'an essential part or practices of a religion' is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded.

Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. Nobody can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices.”

122. In the light of the above authorities, it has to be determined

whether the practice of exclusion of women of the age group of 10

to 50 years is equivalent to a doctrine of Hindu religion or a

practice that could be regarded as an essential part of the Hindu 78

religion and whether the nature of Hindu religion would be

altered without the said exclusionary practice. The answer to

these questions, in our considered opinion, is in the firm

negative. In no scenario, it can be said that exclusion of women

of any age group could be regarded as an essential practice of

Hindu religion and on the contrary, it is an essential part of the

Hindu religion to allow Hindu women to enter into a temple as

devotees and followers of Hindu religion and offer their prayers to

the deity. In the absence of any scriptural or textual evidence, we

cannot accord to the exclusionary practice followed at the

Sabarimala temple the status of an essential practice of Hindu

religion.

123. By allowing women to enter into the Sabarimala temple for

offering prayers, it cannot be imagined that the nature of Hindu

religion would be fundamentally altered or changed in any

manner. Therefore, the exclusionary practice, which has been

given the backing of a subordinate legislation in the form of Rule

3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is

neither an essential nor an integral part of the Hindu religion

without which Hindu religion, of which the devotees of Lord

Ayyappa are followers, will not survive.

79

124. Nobody can say that essential part or practice of one's

religion has changed from a particular date or by an event. Such

alterable parts or practices are definitely not the 'core' of religion

where the belief is based and religion is founded upon. It could

only be treated as mere embellishments to the non-essential part

or practices.

125. This view of ours is further substantiated by the fact that

where a practice changes with the efflux of time, such a practice

cannot, in view of the law laid down in Commissioner of Police

and others (supra), be regarded as a core upon which a religion

is formed. There has to be unhindered continuity in a practice for

it to attain the status of essential practice. It is further

discernible from the judgment of the High Court in S.

Mahendran (supra) that the Devaswom Board had accepted

before the High Court that female worshippers of the age group of

10 to 50 years used to visit the temple and conduced poojas in

every month for five days for the first rice feeding ceremony of

their children. The Devaswom Board also took a stand before the

High Court that restriction of entry for women was only during

Mandalam, Makaeavilakku and Vishnu days. The same has also

been pointed out by learned Senior Counsel, Ms. Indira Jaising, 80

that the impugned exclusionary practice in question is a 'custom

with some aberrations' as prior to the passing of the Notification

in 1950, women of all age groups used to visit the Sabarimala

temple for the first rice feeding ceremony of their children.

126. Therefore, there seems to be no continuity in the

exclusionary practice followed at the Sabarimala temple and in

view of this, it cannot be 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 the

Kerala Hindu Places of Public Worship (Authorisation of Entry)

Act, 1965. Section 2 of the said Act is the definition clause and

reads as under:

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

(a) "Hindu" includes a person professing the Buddhist, Sikh or Jaina religion;

(b) "place of public worship" means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams, appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped or are used for 81

bathing or for worship, but does not include a "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 a

person professing Buddhist, Sikh or Jaina religion. The word

'person' occurring in this clause, for the pure and simple reason

of logic, must include all genders. Clause (c) defines 'section or

class' as any division, sub-division, caste, sub-caste, sect or

denomination whatsoever. Nowhere the definition of section or

class suggests being limited to male division, sub-division, caste

and so forth.

129. Section 3 of the Act stipulates that places of public worship

will be open to all sections and classes of Hindus and reads thus:

“Section 3 : Places of public worship to open to all sections and classes of Hindus.-Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or 82

offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:

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

130. Section 3 of the Act being a non-obstante clause declares

that every place of public worship which is open to Hindus

generally or to any section or class thereof shall be open to all

sections and classes of Hindus and no Hindu, of whatsoever

section or class, shall be prevented, obstructed or discouraged

from entering such place of public worship, or from worshipping,

offering prayers or performing any religious service at such place

of public worship in the like manner and to the like extent as any

other Hindu of whatsoever section or class may so be eligible to

enter, worship, pray or perform.

131. A careful dissection of Section 3 reveals that places of public

worship in the State of Kerala, irrespective of any contrary law,

custom, usage or instrument having effect by virtue of any such 83

law or any decree or order of Court, shall be open to all sections

and classes of Hindus. The definition of 'section or class' and

'Hindu' has to be imported, for the purposes of Section 3, from

the definition clauses 2(a) and 2(c) which, as per our foregoing

analysis, includes all the genders, provided they are Hindus. It

further needs to be accentuated that the right provided under

Section 3 due to its non-obstante nature has to be given effect to

regardless of any law, custom or usage to the contrary.

132. The proviso to Section 3 stipulates that in case the place of

public worship is a temple founded for the benefit of any religious

denomination or section thereof, then the rights warranted under

Section 3 becomes subject to the right of that religious

denomination or section to manage its own affairs in matters of

religion. Having said so, we have, in the earlier part of this

judgment, categorically stated that devotees and followers of Lord

Ayyappa do not constitute a religious denomination and,

therefore, the proviso to Section 3 cannot be resorted to in the

case at hand.

133. The importance and the gravity of the right stipulated under

Section 3 of this Act, for all sections and classes of Hindus which

include women, is very well manifest and evident from the fact 84

that its violation has been made penal under Section 5 of the

1965 Act which reads as under:

“Section 5 : Penalty Whoever, in contravention of Section 3,-

(a) prevents or attempts to prevent any person belonging to any section or class of Hindus from entering, worshipping or offering prayers, performing any religious service, in any place of public worship; or

(b) obstructs, or causes or attempts to cause obstruction to, or by threat of obstruction or otherwise discourages, any such person from doing or performing any of the acts aforesaid, shall be publishable with imprisonment which may extent to six months, or with fine which may extent to five hundred rupees, or with both:

Provided that in a case where a 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 the

power to make regulations for the maintenance of order and

decorum and performance of rites and ceremonies with regard to

places of public worship in Kerala:

“Section 4 : Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship (1) The trustee or any other person in charge of any place public worship shall have power, subject to the control of the competent authority and any rules which 85

may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein:

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

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

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

(ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and

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

135. The proviso to Section 4 being an exception to Section 4(1)

is a classic example of a situation where the exception is more

important than the rule itself. It needs to be borne in mind that

the language of the proviso 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 not discriminate against any Hindu

on the ground that he/she belongs to a particular section or 86

class. As stated earlier, a particular section or class for the

purposes of this Act includes women of all age groups, for Hindu

women of any age group also constitute a class or section of

Hindus.

136. The State of Kerala, by virtue of clause (1) of Section 4, has

framed the Kerala Hindu Places of Public Worship (Authorisation

of Entry) Rules, 1965. The relevant rule which is also the most

prominent bone of contention in the present case is Rule 3(b).

The relevant part of Rule 3 reads thus:

“Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship:

x x x

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

x x x”

137. The law is well-settled on the point that when a rule-making

power is conferred under any statute on an authority, the said

power has to be exercised within the confines of the statute and 87

no transgression of the same is permissible. In this context, we

may refer to the decision in Union of India and others v. S.

Srinivasan38 wherein it has been ruled:

"At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it."

138. In General Officer Commanding-in-Chief v. Dr. Subhash

Chandra Yadav39, the Court held that for a rule to have the

effect of a statutory provision, it must fulfill two conditions, firstly

it must conform to the provisions of the statute under which it is

framed and secondly, it must also come within the scope and

purview of the rule making power of the authority framing the

rule and if either of these two conditions is not fulfilled, the rule

so framed would be void. In Kunj Behari Lai Butail and others

v. State of H.P. and others40, it has been laid down that for

holding a rule to be valid, it must first be determined as to what

is the object of the enactment and then it has to be seen if the

38 (2012) 7 SCC 683 39 AIR 1988 SC 876 40 AIR 2000 SC 1069 88

rules framed satisfy the test of having been so framed as to fall

within the scope of such general power conferred and if the rule

making power is not expressed in such a usual general form,

then it shall have to be seen if the rules made are protected by

the limits prescribed by the parent act. Another authority which

defines the limits and confines within which the rule-making

authority shall exercise its delegating powers is Global Energy

Limited and another v. Central Electricity Regulatory

Commission41, where the question before the Court was

regarding the validity of clauses (b) and (f) of Regulation 6- A of

the Central Electricity Regulatory Commission (Procedure, Terms

and Conditions for Grant of Trading Licence and other Related

Matters) Regulations, 2004. The Court gave the following opinion:

"It is now a well-settled principle of law that the rulemaking power "for carrying out the purpose of the Act" is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the Regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not 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 a statute with the aim of facilitating the

41 (2009) 15 SCC 570 89

implementation of the statute, does not confer power on any

authority to bring into existence substantive rights or obligations

or disabilities which are not contemplated in terms of the

provisions of the said Act. The Court, further, went on to hold

that:

"The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision- making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rule- making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of the legislative Acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters."

140. At this stage, we may also benefit from the observations

made in State of T.N. and another v. P. Krishnamurthy and

others42 wherein it was stated that where a rule is directly

inconsistent with a mandatory provision of the statute, then, of

course, the task of the court is simple and easy. This implies that

if a rule is directly hit for being violative of the provisions of the

42 (2006) 4 SCC 517 90

enabling statute, then the Courts need not have to look in any

other direction but declare the said rule as invalid on the said

ground alone.

141. Rule 3(b) seeks to protect custom and usage by not allowing

women, Hindu women to be specific, to enter a place of public

worship at such times during which they are not so allowed to

enter by the said custom or usage. A cursory reading of Rule 3(b)

divulges that it is ultra vires both Section 3 as well as Section 4 of

the 1965 Act, the reason being that Section 3 being a non-

obstante provision clearly stipulates that every place of public

worship shall be open to all classes and sections of Hindus,

women being one of them, irrespective of any custom or usage to

the contrary.

142. That apart, Rule 3(b) is also ultra vires Section 4 of the 1965

Act as the proviso to Section 4(1) creates an exception to the

effect that the regulations/rules made under Section 4(1) shall

not discriminate, in any manner whatsoever, against any Hindu

on the ground that he/she belongs to a particular section or

class.

143. The language of both the provisions, that is, Section 3 and

the proviso to Section 4(1) of the 1965 Act, clearly indicates that 91

custom and usage must make space to the rights of all sections

and classes of Hindus to offer prayers at places of public worship.

Any interpretation to the contrary would annihilate the purpose

of the 1965 Act and the fundamental right to practise religion

guaranteed under Article 25(1). It is clear as crystal that the

provisions of the 1965 Act are liberal in nature so as to allow

entry to all sections and classes of Hindus including Scheduled

Castes and Scheduled Tribes. But framing of Rule 3(b) of the

1965 Rules under the garb of Section 4(1) would violate the very

purpose of the 1965 Act.

Conclusions

144. In view of our aforesaid analysis, we record our conclusions

in 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

Ayyappa do not constitute a separate religious

denomination. They do not have common religious tenets

peculiar to themselves, which they regard as conducive to

their spiritual well-being, other than those which are

common to the Hindu religion. Therefore, the devotees of 92

Lord Ayyappa are exclusively Hindus and do not constitute

a separate religious denomination.

(ii) Article 25(1), by employing the expression 'all persons',

demonstrates that the freedom of conscience and the right

to freely profess, practise and propagate religion is available,

though subject to the restrictions delineated in Article 25(1)

itself, to every person including women. The right

guaranteed under Article 25(1) has nothing to do with

gender or, for that matter, certain physiological factors

specifically attributable to women.

(iii) The exclusionary practice being followed at the Sabrimala

temple by virtue of Rule 3(b) of the 1965 Rules violates the

right of Hindu women to freely practise their religion and

exhibit their devotion towards Lord Ayyappa. This denial

denudes them of their right to worship. The right to practise

religion under Article 25(1) is equally available to both men

and women of all age groups professing the same religion.

(iv) The impugned Rule 3(b) of the 1965 Rules, framed under

the 1965 Act, that stipulates exclusion of entiy of women of

the age group of 10 to 50 years, is a clear violation of the

right of Hindu women to practise their religious beliefs 93

which, in consequence, makes their fundamental right of

religion under Article 25(1) a dead letter.

(v) The term 'morality' occurring in Article 25(1) of the

Constitution cannot be viewed with a narrow lens so as to

confine the sphere of definition of morality to what an

individual, a section or religious sect may perceive the term

to mean. Since the Constitution has been adopted and

given by the people of this country to themselves, the term

public morality in Article 25 has to be appositely understood

as being synonymous with constitutional morality.

(vi) The notions of public order, morality and health cannot be

used as colourable device to restrict the freedom to freely

practise religion and discriminate against women of the age

group of 10 to 50 years by denying them their legal right to

enter and offer their prayers at the Sabarimala temple.

(vii) The practice of exclusion of women of the age group of 10 to

50 years being followed at the Sabarimala Temple cannot be

regarded as an essential part as claimed by the respondent

Board.

(viii) In view of the law laid down by this Court in the second

Ananda Marga case, the exclusionary practice being 94

followed at the Sabarimala Temple cannot be designated as

one, the non-observance of which will change or alter the

nature of Hindu religion. Besides, the exclusionary practice

has not been observed with unhindered continuity as the

Devaswom Board had accepted before the High Court that

female worshippers of the age group of 10 to 50 years used

to visit the temple and conducted poojas in every month for

five days for the first rice feeding ceremony of their children.

(ix) The exclusionary practice, which has been given the

backing of a subordinate legislation in the form of Rule 3(b)

of the 1965 Rules, framed by the virtue of the 1965 Act, is

neither an essential nor an integral part of the religion.

(x) A careful reading of Rule 3(b) of the 1965 Rules makes it

luculent that it is ultra vires both Section 3 as well as

Section 4 of the 1965 Act, for the simon pure reason that

Section 3 being a non-obstante provision clearly stipulates

that every place of public worship shall be open to all

classes and sections of Hindus, women being one of them,

irrespective of any custom or usage to the contrary.

(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the

proviso to Section 4(1) creates an exception to the effect that 95

the regulations/rules made under Section 4(1) shall not

discriminate, in any manner whatsoever, against any Hindu

on the ground that he/she belongs to a particular section or

class.

(xii) The language of both the provisions, that is, Section 3 and

the proviso to Section 4(1) of the 1965 Act clearly indicate

that custom and usage must make space to the rights of all

sections and classes of Hindus to offer prayers at places of

public worship. Any interpretation to the contrary would

annihilate the purpose of the 1965 Act and incrementally

impair the fundamental right to practise religion guaranteed

under Article 25(1). Therefore, we hold that Rule 3(b) of the

1965 Rules is ultra vires the 1965 Act.

145. In view of the aforesaid analysis and conclusions, the writ

petition is allowed. There shall be no order as to costs.

.………………………….CJI.

(Dipak Misra)

.…………………………….J. (A.M. Khanwilkar) New Delhi;

September 28, 2018 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 373 OF 2006

INDIAN YOUNG LAWYERS ASSOCIATION AND ORS. … PETITIONERS

VERSUS

THE STATE OF KERALA AND ORS. … RESPONDENTS

JUDGMENT

R.F. Nariman, J. (Concurring)

1. The present writ petition raises far-reaching questions on the

ambit of the fundamental rights contained in Articles 25 and 26 of the

Constitution of India. These questions arise in the backdrop of an

extremely famous temple at Sabarimala in which the idol of Lord

Ayyappa is installed. According to the Respondents, the said temple,

though open to all members of the public regardless of caste, creed, or

religion, is a denominational temple which claims the fundamental right

to manage its own affairs in matters relating to religion. The question 1 that arises is whether the complete exclusion of women between the

ages of 10 and 50 from entry, and consequently, of worship in this

temple, based upon a biological factor which is exclusive to women

only, and which is based upon custom allegedly constituting an

essential part of religion, can be said to be violative of their rights

under Article 25. Consequently, whether such women are covered by

Section 3 of the Kerala Hindu Places of Public Worship (Authorisation

of Entry) Act, 1965 and whether Rule 3(b) of the Kerala Hindu Places

of Public Worship (Authorisation of Entry) Rules, 1965 is violative 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, it

is necessary to cover the ground that has been covered by our

previous decisions on the scope and effect of religious freedom

contained in Articles 25 and 26.

3. In one of the earliest judgments dealing with religious freedom,

namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple

Committee, 1952 SCR 849, this Court was concerned with the temple

at Badrinath, which is an ancient temple, being a public place of

2 worship for Hindus. A representative suit was filed under Order I Rule

8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi

Pandas who, as guides or escorts of pilgrims, sought a declaration that

they cannot be obstructed from entering the precincts of the temple

along with their ―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 aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of ‗darshan‘ or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved. As the Panda as well as his client are both Hindu worshippers, there can be nothing wrong in the one‘s accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of ‗darshan‘ or worship of the deities or that the Panda gets remuneration from his client for the services he renders, does not in any way affect the legal rights of either of them. In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.

3 This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the ‗Holy of Holies‘ where the deity is actually located. Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple. Good conduct or orderly behaviour is always an obligatory condition of admission into a 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 principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye-laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it [Vide Section 25(1)(m)].

The true position, therefore, is that the plaintiffs‘ right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form.‖ (at pp. 860-862)

4

4. In chronological sequence, next comes the celebrated Shirur

Math case, viz., The Commissioner, Hindu Religious Endowments,

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,

1954 SCR 1005. This case concerned itself with the settlement of a

scheme in connection with a Math known as the Shirur Math, which,

legislation in the form of the Madras Hindu Religious and Charitable

Endowments Act, 1951, sought to interfere with. In history, the Shirur

Math is stated to be one of the eight Maths situated at Udipi in the

district of South Kanara and reputed to have been founded by Shri

Madhwacharya, the well-known exponent of dualistic theism in

Hinduism. This judgment being a seminal authority for a large number

of aspects covered under Articles 25 and 26 needs to be quoted in

extenso. The Court first dealt with the individual right contained in

Article 25 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 be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word ―persons‖ here means individuals only or includes corporate bodies as well. The 5 question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.‖1 (emphasis supplied) (at p. 1021) With regard to whether a Math could come within the expression

―religious denomination‖ under Article 26, this Court laid down the

following tests:

1 In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., (1964) 4 SCR 99, a majority of 9 Judges held that the S.T.C., which is a company registered under the Indian Companies Act, 1956, is not a citizen within the meaning of Article 19 of the Constitution of India. In a concurring judgment by Hidayatullah, J., the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1) clearly refer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to hold that in Articles 14, 20, 27 and 31, the word ―person‖ would apply to individuals as well as 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, can apply only to natural persons. Consequently, the argument that an idol can exercise fundamental rights contained in Article 25(1), as urged by some of the Respondents, must be rejected.

6 ―As regards Article 26, the first question is, what is the precise meaning or connotation of the expression ―religious denomination‖ and whether a 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 a common faith and organisation and designated by a distinctive name‖. It is well known that the practice of setting up Maths as centers of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, — in many cases it is the name of the founder, and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As Article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.‖ (emphasis supplied) (at pp. 1021-1022) 7 With 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 in matters of religion, which is given by clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies. What then are matters of religion? The word ―religion‖ has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case [Vide Davis v. Benson, 133 US 333 at 342], it has been said ―that the term ‗religion‘ has reference to one‘s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.‖ We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44(2) of the Constitution of Eire and we have great 8 doubt whether a definition of ―religion‖ as given above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.

The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ―practice of religion‖ in Article 25. Latham, C.J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the ―free exercise of any religion‖ made the following weighty observations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]:

―It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of 9 religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.‖

These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part 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 part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any 10 religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with 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 the Bible as fundamental to proper religious beliefs. This belief in the supreme authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of ―Jehovah‘s Witnesses‖ incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them 11 under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]. These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.‖ (emphasis supplied) (at pp. 1023-1026)

As to what matters a religious denomination enjoys complete

autonomy over, this Court said:

―…… As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and 12 no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a 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 in

Ratilal Panachand Gandhi v. State of Bombay and Ors., 1954 SCR

1055. In this case, two connected appeals – one by the manager of a

Swetamber Jain public temple and one by the trustees of the Parsi

Punchayet, assailed the constitutional validity of the Bombay Public

Trusts Act, 1950. Dealing with the freedoms contained in Articles 25

and 26, this Court held:

13 ―Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess, practise and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by clause (2) of the Article. Sub-clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and sub- clause (b) reserves the State‘s power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people. What sub-clause (a) of clause (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religious practices.

So far as Article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. 14 Under this article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration 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 the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.

The moot point for consideration, therefore, is where is the line to be 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 exhaustive definition of the word ‗religion‘ which would be applicable to all classes of persons. As has been indicated in the Madras case referred to 15 above, the definition of ‗religion‘ given by Fields, J. in the American case of Davis v. Beason [133 U.S. 333], does not seem to us adequate or precise. ―The term ‗religion‘ ‖, thus observed the learned Judge in the case mentioned above, ―has reference to one‘s views of his relations to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His Will. It is often confounded with cultus or form of worship of a particular sect, but is distinguishable from the latter‖. It may be noted that ‗religion‘ is not necessarily theistic and in fact there are well known religions in India like Buddhism and Jainism which do not believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well. We may quote in this connection the observations of Latham, C.J. of the High Court of Australia in the case of Adelaide Company v. Commonwealth [67 C.L.R. 116, 124], where the extent of protection given to religious freedom by section 116 of the Australian Constitution came up for consideration.

―It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears 16 to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.‖

In our opinion, as we have already said in the Madras case, these observations apply fully to the provision regarding religious freedom that is embodied in our Constitution.

Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly 17 be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of Jamshed ji v. Soonabai [33 Bom. 122], and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think, are quite appropriate for our present purpose. ―If this is the belief of the community‖ thus observed the learned Judge, ―and it is proved undoubtedly to be the belief of the Zoroastrian community,—a secular Judge is bound to accept that belief—it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind‖. These observations do, in our opinion, afford an indication of the measure of protection that is given by Article 26(b) of our Constitution.

The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one.

But in cases of doubt, as Chief Justice Latham pointed out in the case [Vide Adelaide Company v.

The Commonwealth, 67 C.L.R. 116, 129] referred to above, the court should take a common sense view and be actuated by considerations of practical necessity. It is in the light of these principles that we will proceed to examine the different provisions of the Bombay Public Trusts Act, the validity of which has been challenged on behalf of the appellants.‖ (at pp. 1062-1066)

18

6. We now come to the famous Mulki Temple case. In this

judgment, namely, Sri Venkataramana Devaru and Ors. v. State of

Mysore and Ors., 1958 SCR 895, (―Sri Venkataramana Devaru‖), an

ancient temple dedicated to Sri Venkataramana, renowned for its

sanctity, was before the Court in a challenge to the Madras Temple

Entry Authorisation Act (V of 1947). It was noticed that the trustees of

this temple were all members of a sect known as the Gowda

Saraswath Brahmins. Even though the temple had originally been

founded for the benefit of certain immigrant families of the Gowda

Saraswath Brahmins, in the course of time, however, worshippers

consisted of all classes of Hindus. Finding that the said temple is a

public temple, it was further held that during certain religious

ceremonies, persons other than Gowda Saraswath Brahmins had

been wholly excluded, as a result of which, the temple was held to be

a religious denomination within the meaning of Article 26. The Court

then found that if an image becomes defiled or if there is any departure

or violation of any of the rules relating to worship, as a result of entry of

certain persons into the temple, an essential religious practice can be

said to have been affected. The Court held:

19

―According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokshana) have to be performed for restoring the sanctity of the shrine. Vide judgment of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar [(1914) 27 MLJ 253]. In Sankaralinga Nadan v. Raja Rajeswara Dorai [(1908) L.R. 35 I.A. 176], it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust. Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practice and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must, accordingly hold that if the rights of the appellants have to be determined solely with 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)

20 The important question that then had to be decided was whether

denominational 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 of individuals, Art. 25(2) is much wider in its contents and has reference 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 the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Art. 25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25(2)(b) will prevail. While, in the former case, Art. 25(2)(b) will be put wholly out of operation, in the 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 to Art. 25(2)(b).‖ (at pp. 917-918) 21 When there is no general or total exclusion of members of the public

from worship in the temple, but exclusion from only certain religious

services, it was held:

―We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as extinguish it, but whether it is possible — so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk 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 of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.‖ (at pp. 919-920) 22

7. In Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali

and Ors., (1962) 1 SCR 383, (―Durgah Committee‖), this Court was

faced with a challenge to the vires of the Durgah Khwaja Saheb Act,

1955. The famous tomb of Khwaja Moin-ud-din Chishti of Ajmer was

managed by a group of persons who belonged to the Chishti Order of

Soofies. The argument that as people from all religious faiths came to

worship at this shrine, and that, therefore, it could not be said to be a

shrine belonging to any particular religious denomination, was negated

as follows:

―…… Thus on theoretical considerations it may not be easy to hold that the followers and devotees of the saint who visit the Durgah and treat it as a place of pilgrimage can be regarded as constituting a religious denomination or any section thereof. However, for the purpose of the present appeal we propose to deal with the dispute between the parties on the basis that the Chishtia sect whom the respondents purport to represent and on whose behalf — (as well as their own) — they seek to challenge the vires of the Act is a section or a religious denomination. This position appears to have been assumed in the High Court and we do not propose to make any departure in that behalf in dealing with the present appeal.‖ (emphasis supplied) (at p. 401)

23

8. The judgment in Shirur Math (supra) was followed, as was Sri

Venkataramana Devaru (supra), for the determining tests of what

would constitute a ―religious denomination‖ and what could be said to

be essential and integral parts of religion as opposed to purely secular

practices. An important sentence was added to what has already been

laid down in these two judgments:

―…… Similarly, even practices, though religious, may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. ……‖ (at p. 412)

9. In Sardar Syedna Taher Saifuddin Saheb v. State of

Bombay, 1962 Supp. (2) SCR 496, this Court struck down the

Bombay Prevention of Excommunication Act, 1949, with Chief Justice

Sinha dissenting. Though the learned Chief Justice‘s judgment is a

dissenting judgment, some of the principles laid down by the learned

Chief Justice, not dissented from by the majority judgment, are

apposite and are, therefore, set out hereunder:-

―…… It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by 24 Art. 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience. ……… The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc. A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus, though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs. He has been guaranteed the right to practice and propagate his religion, subject to the limitations aforesaid. His right to practice his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the legislature has declared to be of a penal character. Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a 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 completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may 25 be liable to restrictions in the interest of the community at large, as may be determined by common consent, that is to say, by a competent legislature. It was on such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a God to function as a devadasi, or of ostracizing a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.‖ (emphasis supplied) (at pp. 518-520)

The learned Chief Justice upheld the said Act, stating that the Act is

aimed at fulfillment of the individual liberty of conscience guaranteed

by Article 25(1) of the Constitution, and not in derogation of it. Also, the

learned Chief Justice stated that the Act really carried out the strict

injunction of Article 17 of the Constitution of India by which

untouchability has been abolished, and held that, as excommunication

is a form of untouchability, the Act is protected by Article 17 and must

therefore be upheld.

The majority judgment, however, by K.C. Das Gupta, J. held the Act to

be constitutionally infirm as it was violative of Article 26(b) as follows:

―Let us consider first whether the impugned Act contravenes the provisions of Art. 26(b). It is 26 unnecessary for the purpose of the present case to enter into the difficult question whether every case of excommunication by the Dai on whatever grounds inflicted is a matter of religion. What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, ―of its own affairs in matters of religion.‖ The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under clause (b) of Art. 26 of the Constitution.‖ (at p. 535)

Holding that the said law is not referable to Article 25(2)(b), the Court

then held:

―It remains to consider whether the impugned Act comes within the saving provisions embodied in clause 2 of Art. 25. The clause is in these words:—

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

27

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institution of a public character to all classes and section of Hindus.‖

Quite clearly, the impugned Act cannot be regarded as a law regulating or restricting any economic, financial, political or other secular activity. Indeed, that was not even suggested on behalf of the respondent State. It was faintly suggested however that the Act should be considered to be a law ―providing for social welfare and reform.‖ The mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss, does not offer sufficient basis for a conclusion that it is a law ―providing for social welfare and reform.‖ The barring of excommunication on grounds other than religious grounds, say, on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of clause 2(b) of Art. 25. But barring of excommunication on religious grounds pure and simple, cannot however be considered to promote social welfare and reform and consequently the law insofar as it invalidates excommunication on religious grounds and takes away the Dai's power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform. As the Act invalidates excommunication on any ground whatsoever, including religious grounds, it must be held to be in clear violation of the right of

28 the Dawoodi 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 a

punishment but is really used as a measure of discipline for the

maintenance of the integrity of the Dawoodi Bohra community. It

therefore violates the right to practice religion guaranteed by Articles

25(1) and 26 in that it interferes with the right of the religious head –

the Dai – to administer, as trustee, the property of the denomination so

as to exclude excommunicated persons. The learned Judge, however,

drew a distinction between the two parts of Article 25(2)(b), stating that

the expression ―social welfare and reform‖ could not affect essential

parts of religious practice as follows:

―But very different considerations arise when one has to deal with legislation which is claimed to be merely a measure ―providing for social welfare and reform.‖ To start with, it has to be admitted that this phrase is, as contrasted with the second portion of Art. 25(2)(b), far from precise and is flexible in its content. In this connection it has to be borne in mind that limitations imposed on religious practices on the ground of public order, morality or health have already been saved by the opening words of Art. 25(1) and the saving would cover beliefs and

29 practices even though considered essential or vital by those professing the religion. I consider that in the context in which the phrase occurs, it is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1) for two reasons: (1) To read the saving as covering even the basic essential practices of religion, would in effect nullify and render meaningless the entire guarantee of religious freedom — a freedom not merely to profess, but to practice religion, for very few pieces of legislation for abrogating religious practices could fail to be subsumed under the caption of ―a provision for social welfare or reform.‖ (2) If the phrase just quoted was intended to have such a wide operation as cutting at even the essentials guaranteed by Art. 25(1), there would have been no need for the special provision as to ―throwing open of Hindu religious institutions‖ to all classes and sections of Hindus since the legislation contemplated by this provision would be par excellence one of social reform.

In my view by the phrase ―laws providing for social welfare and reform‖ it was not intended to enable the legislature to ―reform‖ a religion out of existence or identity. Art. 25(2)(a) having provided for legislation dealing with ―economic, financial, political or secular activity which may be associated with religious practices‖, the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion. Just as the activities referred to in Art. 25(2)(a) are obviously not of the essence of the religion, similarly the saving in Art. 25(2)(b) is not intended to cover the basic essentials of the creed of a religion which is protected by Art. 25(1).‖

30 (at pp. 552-553)

10. As this view is the view of only one learned Judge, and as it

does not arise for decision in the present case, suffice it to say that this

view will need to be tested in some future case for its validity. It is

instructive to remember that Shirur Math (supra) specifically

contained a sentence which stated that there is a further right given to

the State by Article 25(2)(b) under which, the State can legislate for

social welfare and reform ―even though by so doing it might interfere

with religious practices‖. We, therefore, leave this part of Article

25(2)(b) to be focused and deliberated upon in some future case.

11. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan

and Ors., (1964) 1 SCR 561, otherwise referred to as the Nathdwara

Temple case, this Court was concerned with the validity of the

Nathdwara Temple Act, 1959. Referring to and following some of the

judgments that have already been referred, this Court held that the

Nathdwara temple was a public temple and that as the Act

extinguished the secular office of the Tilkayat by which he was

managing the properties of the Temple, no right under Article 26 could

be said to have been effected. In an instructive passage, this Court 31 laid down certain tests as to what could be said to be an essential or

integral part of religion as opposed to purely secular practice, and laid

down what is to be done to separate what may not always be oil from

water. The Court held as follows:

―In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the 32 light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of The Durgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383, 411], and observed that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 25(1).

In this connection, it cannot be ignored that what is protected under Arts. 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Art. 25(1) or Art. 26(b) has been contravened. The protection is given to the practice of religion and to the denomination‘s right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matter of religion, then, of course, the rights guaranteed by Art. 25(1) and Art. 26(b) cannot be contravened.

33 It is true that the decision of the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day-to-day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may not be easy, it must nevertheless be attempted in dealing with the claims for protection under Arts 25(1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under Arts. 25(1) and 26(b), Latham C.J.‘s observation in Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth [67 CLR 116, 123], that ―what is religion to one is superstition to another‖, on which Mr. Pathak relies, is of no relevance. If an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim because the protection guaranteed by Art. 25(1) and Art. 26(b) cannot be extended to secular practices and affairs in regard to denominational matters which are not matters of religion, and so, a claim made by a citizen that a purely secular matter amounts to a religious 34 practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of Art. 25(1) or Art 26(b). This aspect of the matter must be borne in mind in dealing with the true scope and effect of Art. 25(1) and Art. 26(b).‖ (at pp. 620-623)

12. In Seshammal and Ors. v. State of Tamil Nadu, (1972) 2

SCC 11, the validity of the Tamil Nadu Hindu Religious and Charitable

Endowments (Amendment) Act, 1970 was questioned by hereditary

Archakas and Mathadhipatis of some ancient temples of Tamil Nadu,

as the Amendment Act did away with the hereditary right of succession

to the office of Archaka even if the Archaka was otherwise qualified.

This Court repelled such challenge but in doing so, spoke of the

importance of the consecration of an idol in a Hindu temple and the

rituals connected therewith, as follows:

―11. ……… On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of the deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit. The rituals have a two-fold object. One is to attract the lay worshipper to participate in the worship carried on 35 by the priest or Archaka. It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in a variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine [1958 SCR 895 (910)]. Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu religious faith and cannot be dismissed as either irrational or superstitious.‖

Ultimately, it was held that since the appointment of an Archaka is a

secular act, the Amendment Act must be regarded as valid.

13. We now come to a very important judgment contained in Rev.

Stainislaus v. State of Madhya Pradesh and Ors., (1977) 2 SCR

611. This judgment dealt with the constitutional validity of the Madhya

Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa

Freedom of Religion Act, 1967, both of which statutes were upheld by

the Court stating that they fall within the exception of ―public order‖ as 36 both of them prohibit conversion from one religion to another by use of

force, allurement, or other fraudulent means. In an instructive passage,

this Court turned down the argument on behalf of the appellants that

the word ―propagate‖ in Article 25(1) would include conversion. The

Court held:

―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 not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees ―freedom of conscience‖ to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one‘s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ―freedom of conscience‖ guaranteed to all the citizens of the country alike.

The meaning of guarantee under Article 25 of the Constitution came up for consideration in this Court in Ratilal Panachand Gandhi 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 a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or 37 conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.‖

This Court has given the correct meaning of the Article, and we find no justification for the view that it grants a fundamental right to convert persons to one's own religion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion.‖ (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 the

Auroville (Emergency Provisions) Act, 1980. After referring to Shirur

Math (supra) and Durgah Committee (supra), the Court laid down

three tests for determining whether a temple could be considered to be

a religious denomination as follows:

―80. The words ‗religious denomination‘ in Article 26 of the Constitution must take their colour from the word ‗religion‘ and if this be so, the expression 38 ‗religious denomination‘ must also satisfy three conditions:

―(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;

(2) common organization; and (3) designation by a distinctive name.‖

A reference was made to Rule 9 of the Rules and Regulations of the

Sri Aurobindo Society, and to an important argument made, that to be

a religious denomination, the person who is a member of the

denomination should belong to the religion professed by the

denomination and should give up his previous religion. The argument

was referred to in paragraph 106 as follows:

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

―9. Any person or institution or organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application for membership is approved by the Executive Committee, will be member of the Society. The membership is open to people everywhere without any distinction of nationality, religion, caste, creed or sex.‖

The only condition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society. It 39 was further urged that what is universal cannot be a religious denomination. In order to constitute a separate denomination, there must be something distinct from another. A denomination argues the counsel, is one which is different from the other and if the Society was a religious denomination, then the person seeking admission to the institution would lose his previous religion. He cannot be a member of two religions at one and the same time. But this is not the position in becoming a member of the Society and Auroville. A religious denomination must necessarily be a new one and new methodology must be provided for a religion. Substantially, the view taken by Sri Aurobindo remains a part of the Hindu philosophy. There may be certain innovations in his philosophy but that would not make it a religion on that account.‖

After referring to the arguments of both sides, the Court did not answer

the question as to whether the Sri Aurobindo Society was a religious

denomination, but proceeded on the assumption that it was, and then

held that the Act did not violate either Article 25 or Article 26.

In a separate opinion by Chinnappa Reddy, J., without adverting to the

argument contained in paragraph 106 of Misra, J.‘s judgment, the

learned Judge concluded that ―Aurobindoism‖ could be classified as a

new sect of Hinduism and the followers of Sri Aurobindo could,

therefore, be termed as a religious denomination. This was done

despite the fact that Sri Aurobindo himself disclaimed that he was 40 founding a new religion and that the Society had represented itself as

a ―non-political, non-religious organization‖ and claimed exemption

from income tax on the ground that it was engaged in educational,

cultural, and scientific research.

15. We then come to Acharya Jagdishwaranand Avadhuta and

Ors. v. Commissioner of Police, Calcutta and Anr., (1983) 4 SCC

522. This judgment concerned itself with whether ―Ananda Marga‖ is a

separate religious denomination. After referring to the tests laid down

in Shirur 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 be persons who satisfy all three tests – namely, that they are a

collection of individuals who have a system of beliefs which they

regard as conducive to their spiritual well-being; they have a common

organization; and a distinctive name. In holding that the Tandava

dance cannot be taken to be an essential religious right of the Anand

Margis, this Court in paragraph 14 held:

―14. The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the 41 religious faith of the Ananda Margis. We have already indicated that Tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established. It is the specific case of the petitioner that Shri Ananda Murti introduced Tandava as a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a religious order is of recent origin and Tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances Tandava dance can be taken as an essential religious rite of the Ananda Margis. Even conceding that it is so, it is difficult to accept Mr. Tarkunde‘s argument that taking out religious processions with Tandava dance is an essential religious rite of Ananda Margis. In paragraph 17 of the writ petition the petitioner pleaded that ―Tandava dance lasts for a few minutes where two or three persons dance by lifting one leg to the level of the chest, bringing it down and lifting the other‖. In paragraph 18 it has been pleaded that ―when the Ananda Margis greet their spiritual preceptor at the airport, etc., they arrange for a brief welcome dance of Tandava wherein one or two persons use the skull and symbolic knife and dance for two or three minutes‖. In paragraph 26 it has been pleaded that ―Tandava is a custom among the sect members and it is a customary performance and its origin is over four thousand years old, hence it is not a new invention of Ananda Margis‖. On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of the performance of Tandava dance by every follower of Ananda Marga. Even conceding that Tandava dance has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a necessary corollary that Tandava dance to be performed in the public is a matter of religious 42 rite. In fact, there is no justification in any of the writings of Sri Ananda Murti that Tandava dance must be performed in public. At least none could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf. We are, therefore, not in a position to accept the contention of Mr. Tarkunde that performance of Tandava dance in a procession or at public places is an essential religious 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, (―Sri

Adi Visheshwara‖), this Court upheld the constitutional validity of the

Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. In so doing,

they referred to the tests of a religious denomination laid down in the

previous judgments of this Court, and then held:

―33. Thus, it could be seen that every Hindu whether a believer of Shaiva form of worship or of panchratna form of worship, has a right of entry into the Hindu Temple and worship the deity. Therefore, the Hindu believers of Shaiva form of worship are not denominational worshippers. They are part of the Hindu religious form of worship. The Act protects the right to perform worship, rituals or ceremonies in accordance with established customs and practices. Every Hindu has right to enter the Temple, touch the Linga of Lord Sri Vishwanath and himself perform the pooja. The State is required under the Act to protect the religious practices of the Hindu form of worship of Lord Vishwanath, be it in any form, in accordance with Hindu Shastras, the customs or usages obtained in the Temple. It is not restricted to 43 any particular denomination or sect. Believers of Shaiva form of worship are not a denominational sect or a section of Hindus but they are Hindus as such. They are entitled to the protection under Articles 25 and 26 of the Constitution. However, they are not entitled to the protection, in particular, of clauses (b) and (d) of Article 26 as a religious denomination in the matter of management, administration and governance of the temples under the Act. The Act, therefore, is not ultra vires Articles 25 and 26 of the Constitution.‖ (emphasis supplied)

17. In N. Adithayan v. Travancore Devaswom Board and Ors.,

(2002) 8 SCC 106, this Court held the appointment of a person who is

not a Malayala Brahmin as a Pujari or priest of a temple in Kerala as

constitutionally valid. After referring to various authorities of this 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 other provisions of Part III, including Article 17 freedom to entertain and exhibit by outward acts as well as propagate and disseminate such religious belief according to his judgment and conscience for the edification of others. The right of the State to impose such restrictions as are desired or found necessary on grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the State to make a law providing for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and any such 44 rights of the State or of the communities or classes of society were also considered to need due regulation in the process of harmonizing the various rights. The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down.

17. Where a temple has been constructed and consecrated as per 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 such uniform rigour of rituals can be sought to be enforced, dehors its origin, the manner of construction or method of consecration. No doubt only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying that what is required and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed therefor. For example, in Saivite temples or Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to be performed and recited in the respective temples 45 and appropriate to the worship of the particular deity could be engaged as an Archaka. If traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples. Consequently, there is no justification to insist that a Brahmin or Malayala Brahmin in this case, alone can perform the rites and rituals in the temple, as part of the rights and freedom guaranteed under Article 25 of the Constitution and further claim that any deviation would tantamount to violation of any such guarantee under the Constitution. There can be no claim based upon Article 26 so far as the Temple under our consideration is concerned. Apart from this principle enunciated above, as long as anyone well versed and properly trained and qualified to perform the pooja in a manner conducive and appropriate to the worship of the particular deity, is appointed as Santhikaran dehors his pedigree based on caste, no valid or legally justifiable grievance can be made in a court of law. There has been no proper plea or sufficient proof also in this case of any specific custom or usage specially created by the founder of the Temple or those who have the exclusive right to administer the affairs — religious or secular of the Temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category 46 with any specialized form of worship peculiar to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21 of the Constitution of India.‖

Finally, this Court held:

―18. ……… Any custom or usage irrespective of even any proof of their existence in pre-

constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.‖

18. In Dr. Subramanian Swamy v. State of Tamil Nadu and Ors.,

(2014) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars

(Smarthi Brahmins) to administer the properties of a temple dedicated

to Lord Natraja at the Sri Sabanayagar Temple at Chidambaram. This

Court noticed, in paragraph 24, that the rights conferred under Article

26 are not subject to other provisions of Part III of the Constitution. It

then went on to extract a portion of the Division Bench judgment of the

Madras High Court, which held that the Podhu Dikshitars constitute a

47 religious denomination, or in any event, a section thereof, because

they are a closed body, and because no other Smartha Brahmin who

is not a Dikshitar is entitled to participate in either the administration or

in the worship of God. This is their exclusive and sole privilege which

has been recognized and established for several centuries. Another

interesting observation of this Court was that fundamental rights

protected under Article 26 cannot be waived. Thus, the power to

supersede the administration of a religious denomination, if only for a

certain purpose and for a limited duration, will have to be read as

regulatory, otherwise, it will violate the fundamental right contained in

Article 26.

19. In Riju Prasad Sarma and Ors. v. State of Assam and Ors.,

(2015) 9 SCC 461, this Court dealt with customs based on religious

faith which dealt with families of priests of a temple called the Maa

Kamakhya Temple. After discussing some of the judgments of this

Court, a Division Bench of this Court held:

―61. There is no need to go into all the case laws in respect of Articles 25 and 26 because by now it is well settled that Article 25(2)(a) and Article 26(b) guaranteeing the right to every religious denomination to manage its own affairs in matters of 48 religion are subject to and can be controlled by a law contemplated under Article 25(2)(b) as both the Articles are required to be read harmoniously. It is also well established that social reforms or the need for regulations contemplated by Article 25(2) cannot obliterate essential religious practices or their performances and what would constitute the essential part of a religion can be ascertained with reference to the doctrine of that religion itself. In support of the aforesaid established propositions, the respondents have referred to and relied upon the judgment in Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005] and also upon Sri Venkataramana Devaru v. State of Mysore [AIR 1958 SC 255 : 1958 SCR 895].‖

The observation that regulations contemplated by Article 25 cannot

obliterate essential religious practices is understandable as regulations

are not restrictions. However, social reform legislation, as has been

seen above, may go to the extent of trumping religious practice, if so

found on the facts of a given case. Equally, the task of carrying out

reform affecting religious belief is left by Article 25(2) in the hands of

the State (See paragraph 66).

20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v.

Government of Tamil Nadu and Anr., (2016) 2 SCC 725, (―Adi

Saiva Sivachariyargal Nala Sangam‖), this Court was concerned

49 with a Government Order issued by the Government of Tamil Nadu,

which stated that any person who is a Hindu and possesses the

requisite qualification and training, can be appointed as an Archaka in

Hindu temples. The Court referred to Article 16(5) of the Constitution,

stating that the exception carved out of the equality principle would

cover an office of the temple, which also requires performance of

religious functions. Therefore, an Archaka may, by law, be a person

professing a particular religion or belonging to a particular

denomination. The Court went on to hold that although what

constitutes essential religious practice must be decided with reference

to what the religious community itself says, yet, the ultimate

constitutional arbiter of what constitutes essential religious practice

must be the Court, which is a matter of constitutional necessity. The

Court went on to state that constitutional legitimacy, as decided by the

Courts, must supersede all religious beliefs and practices, and clarified

that ―complete autonomy‖, as contemplated by Shirur Math (supra), of

a denomination to decide what constitutes essential religious practice

must be viewed in the context of the limited role of the State in matters

relating to religious freedom as envisaged by Articles 25 and 26 of the

50 Constitution, and not of Courts as the arbiter of constitutional rights

and principles.

21. A conspectus of these judgments, therefore, leads to the

following propositions:

21.1. Article 25 recognises a fundamental right in favour of ―all

persons‖ which has reference to natural persons.

21.2. This fundamental right equally entitles all such persons to the

said fundamental right. Every member of a religious community has a

right to practice the religion so long as he does not, in any way,

interfere with the corresponding right of his co-religionists to do the

same.

21.3. The content of the fundamental right is the fleshing out of what

is stated in the Preamble to the Constitution as ―liberty of thought,

belief, faith and worship‖. Thus, all persons are entitled to freedom of

conscience and the right to freely profess, practice, and propagate

religion.

21.4. The right to profess, practice, and propagate religion will include

all acts done in furtherance of thought, belief, faith, and worship.

51 21.5. The content of the right concerns itself with the word ―religion‖.

―Religion‖ in this Article would mean matters of faith with individuals or

communities, based on a system of beliefs or doctrines which conduce

to spiritual well-being. The aforesaid does not have to be theistic but

can include persons who are agnostics and atheists.

21.6. It is only the essential part of religion, as distinguished from

secular activities, that is the subject matter of the fundamental right.

Superstitious beliefs which are extraneous, unnecessary accretions to

religion cannot be considered as essential parts of religion. Matters

that are essential to religious faith and/or belief are to be judged on

evidence before a court of law by what the community professing the

religion itself has to say as to the essentiality of such belief. One test

that has been evolved would be to remove the particular belief stated

to be an essential belief from the religion – would the religion remain

the same or would it be altered? Equally, if different groups of a

religious community speak with different voices on the essentiality

aspect presented before the Court, the Court is then to decide as to

whether such matter is or is not essential. Religious activities may also

be mixed up with secular activities, in which case the dominant nature

52 of the activity test is to be applied. The Court should take a common-

sense view and be actuated by 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 and order‖.

―Public disorder‖ must affect the public at large as opposed to certain

individuals. A disturbance of public order must cause a general

disturbance of public tranquility. The term ―morality‖ is difficult to

define. For the present, suffice it to say that it refers to that which is

considered abhorrent to civilized society, given the mores of the time,

by reason of harm caused by way, inter alia, of exploitation or

degradation.2 ―Health‖ would include noise pollution and the control of

disease.

21.8. Another exception to the fundamental right conferred by Article

25(1) is the rights that are conferred on others by the other provisions

of Part III. This would show that if one were to propagate one‘s religion

2 We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to read the word ―morality‖ as being ―constitutional morality‖ as has been explained in some of our recent judgments. If so read, it cannot be forgotten that this would bring in, through the back door, the other provisions of Part III of the Constitution, which Article 26 is not subject to, in contrast with Article 25(1). In any case, the fundamental right under Article 26 will have to be balanced with the rights of others contained in Part III as a matter of harmonious construction of these rights as was held in Sri Venkataramana Devaru (supra). But this would only be on a case to case basis, without necessarily subjecting the fundamental right under Article 26 to other fundamental rights contained in Part III.

53 in such a manner as to convert a person of another religious faith,

such conversion would clash with the other person‘s right to freedom

of conscience and would, therefore, be interdicted. Where the practice

of religion is interfered with by the State, Articles 14, 15(1), 19, and 21

would spring into action. Where the practice of religion is interfered

with by non-State actors, Article 15(2) and Article 173 would spring into

action.

21.9. Article 25(2) is also an exception to Article 25(1), which speaks

of the State making laws which may regulate or restrict secular activity,

which includes economic, financial or political activity, which may be

associated with religious practice – see Article 25(2)(a).

21.10. Another exception is provided under Article 25(2)(b) which is in

two parts. Any law providing for social welfare and reform in a religious

community can also affect and/or take away the fundamental right

granted under Article 25(1). A further exception is provided only insofar

as persons professing the Hindu religion are concerned, which is to

3 We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to construe Article 17 in wider terms than merely including those who were historically untouchables at 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 decision on the facts of this case.

54 throw open all Hindu religious institutions of a public character to all

classes and sections of Hindus.

21.11. Contrasted with the fundamental right in Article 25(1) is the

fundamental right granted by Article 26. This fundamental right is not

granted to individuals but to religious denominations or sections

thereof. A religious denomination or section thereof is to be

determined on the basis of persons having a common faith, a common

organization, and designated by a distinct name as a denomination or

section thereof. Believers of a particular religion are to be

distinguished from denominational worshippers. Thus, Hindu believers

of the Shaivite and Vaishnavite form of worship are not denominational

worshippers but part of the general Hindu religious form of worship.

21.12. Four separate and distinct rights are given by Article 26 to

religious denominations or sections thereof, namely:

―(a) to establish and maintain institutions for religious and charitable 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.‖

55 As in Article 25, it is only essential religious matters which are

protected by this Article.

21.13. The fundamental right granted under Article 26 is subject to the

exception of public order, morality, and health. However, since the

right granted under Article 26 is to be harmoniously construed with

Article 25(2)(b), the right to manage its own affairs in matters of

religion granted by Article 26(b), in particular, will be subject to laws

made under Article 25(2)(b) which throw open religious institutions of a

public character to all classes and sections of Hindus.

21.14. Thus, it is clear that even though the entry of persons into a

Hindu temple of a public character would pertain to management of its

own affairs in matters of religion, yet such temple entry would be

subject to a law throwing open a Hindu religious institution of a public

character owned and managed by a religious denomination or section

thereof to all classes or sections of Hindus. However, religious

practices by the religious denomination or section thereof, which do

not have the effect of either a complete ban on temple entry of certain

persons, or are otherwise not discriminatory, may pass muster under

Article 26(b). Examples of such practices are that only certain qualified

56 persons are allowed to enter the sanctum sanctorum of a temple, or

time management of a temple in which all persons are shut out for

certain periods.

22. At this stage, it is important to advert to a Division Bench

judgment of the Kerala High Court reported as S. Mahendran v. The

Secretary, Travancore Devaswom Board, Thiruvananthapuram

and Ors., AIR 1993 Ker 42. A petition filed by Shri S. Mahendran was

converted into a PIL by the High Court. The petition complained of

young women offering prayers at the Sabarimala Temple. The Division

Bench set out three questions that arose, as follows:

―12. The questions which require answers in this original petition are:

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

(2) Whether the denial of entry of that class of woman [sic women] amounts to discrimination and [sic is] violative of Articles 15, 25 and 26 of the Constitution of India, and (3) Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman [sic women] to the temple?‖ 57 The Division Bench referred to the all-important ―Vratham‖ (41-day

penance), which, according to the Division Bench, ladies between the

ages of 10 and 50 would not be physically capable of observing. In

paragraph 7, the Division Bench stated that while the old customs

prevailed, women did visit the temple, though rarely, as a result of

which, there was no prohibition. The affidavit filed on behalf of the

Travancore Devaswom Board stated that, even in recent years, many

female worshippers in the age group of 10 to 50 had gone to the

temple for the first rice-feeding ceremony of their children. The Board,

in fact, used to issue receipts on such occasions on payment of the

prescribed charge. However, on the advice of the priest i.e. the

Thanthri, changes were effected in order to preserve the temple‘s

sanctity. The Division Bench found that women, irrespective of their

age, were allowed to visit the temple when it opens for monthly poojas,

but were not permitted to enter the temple during Mandalam,

Makaravilakku, and Vishu seasons. After examining the evidence of

one Thanthri, the Secretary of the Ayyappa Seva Sangham, and a 75-

year old man who had personal knowledge of worshipping at the

temple, the Division Bench stated that the usage of not permitting 58 women between the age group of 10 to 50 to worship in the temple

had been established. This was further sanctified by Devaprasnams

conducted at Sabarimala by astrologers, who reported that the deity

does not like young ladies entering the precincts of the temple. It was

then held in paragraph 38 that since women of the age group of 10 to

50 years would not be able to observe Vratham for a period of 41 days

due to physiological reasons, they were not permitted to go on a

pilgrimage of Sabarimala. It was also held that the deity is in the form

of a Naisthik Brahmachari, as a result of which, young women should

not offer worship in the temple, so that even the slightest deviation

from celibacy and austerity observed by the deity is not caused by the

presence of such women. The conclusion of the Division Bench in

paragraph 44 was, therefore, as follows:

―44. Our conclusions are as follows:

(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

59 (3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.‖

23. In the present writ petition filed before this Court, an affidavit

filed by a Thanthri of the Sabarimala temple dated 23.04.2016 makes

interesting reading. According to the affidavit, two Brahmin brothers

from Andhra Pradesh were tested by Sage Parasuram and were

named ―Tharanam‖ and ―Thazhamon‖. The present Thanthri is a

descendant of the Thazhamon brother, who is authorized to perform

rituals in Sastha temples. The affidavit then refers to the Sabarimala

Temple, which is dedicated to Lord Ayyappa, as a prominent temple in

Kerala which is visited by over twenty million pilgrims and devotees

every year. The temple is only open during the first five days of every

Malayalam month, and during the festivals of Mandalam,

Makaravilakku, and Vishu. Significantly, no daily poojas are performed

in the said temple. It is stated in the affidavit that Lord Ayyappa had

himself explained that the pilgrimage to Sabarimala can be undertaken

60 only by the performance of Vratham, which are religious austerities

that train man for evolution to spiritual consciousness.

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

―10. I submit that as part of observing ―vrutham‖, the person going on pilgrimage to Sabarimala separates himself from all family ties and becomes a student celibate who is under Shastras banned any contact with females of the fertile age group. Everywhere when somebody takes on the ―vrutham‖, either the women leave the house and take up residence elsewhere or the men separate themselves from the family so that normal Asauchas in the house do not affect his ―vrutham‖. The problem with women is that they cannot complete the 41 days vrutham because the Asaucham of periods will surely fall within the 41 days. It is not a mere physiological phenomenon. It is the custom among all Hindus that women during periods do not go to Temples or participate in religious activity. This is as per the statement of the basic Thantric text of Temple worshipping in Kerala Thanthra Samuchayam, Chapter 10, Verse II. A true copy of the relevant page of Thanthra Samuchchaya is attached herewith and marked as Annexure A-1 (Pages 30-

31).‖

The affidavit then goes on to state that the Shastras forbid religious

austerity by menstruating women, which is why women above the age

of 10 and below the age of 50 are not allowed entering into the temple.

The affidavit then states, in paragraph 15:

61

―15. ……… During this period, many women are affected by physical discomforts like headache, body pain, vomiting sensation etc. In such circumstances, intense and chaste spiritual disciplines for forty-one days are not possible. It is for the sake of pilgrims who practiced celibacy that youthful women are not allowed in the Sabarimala pilgrimage. ………‖

The other reason given in the affidavit for the usage of non-entry of

women between these ages is as follows:

―24. That the deity at Sabarimala is in the form of a ‗Naishtik Brahmachari‘ and that is the reason why young women are not permitted to offer prayers in the temple as the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women. ………‖

It will thus be seen that women are barred entry to the temple at

Sabarimala because of the biological or physiological phenomenon of

menstruation, which forbids their participation in religious activity. The

second reason given is that young women should not, in any manner,

deflect the deity, who is in the form of a Naisthika Brahmachari, from

celibacy and austerity.

24. All the older religions speak of the phenomenon of menstruation

in women as being impure, which therefore, forbids their participation

62 in religious activity. Thus, in the Old Testament, in Chapter 15, Verse

19 of the book of Leviticus, it is stated:

―19. And if a woman have an issue, and her issue in her flesh be blood, she shall be put apart seven days: and whosoever toucheth her shall be unclean until the even.‖4

Similarly, in the Dharmasutra of Vasistha, an interesting legend of how

women were made to menstruate is stated as follows:

―A menstruating woman remains impure for three days. She should not apply collyrium on her eyes or oil on her body, or bathe in water; she should sleep on the floor and not sleep during the day; she should not touch the fire, make a rope, brush her teeth, eat meat, or look at the planets; she should not laugh, do any work, or run; and she should drink out of a large pot or from her cupped hands or a copper vessel. For it is stated: ‗Indra, after he had killed the three-headed son of Tvastr, was seized by sin, and he regarded himself in this manner: ―An exceedingly great guilt attaches to me‖. And all creatures railed against him: ―Brahmin-killer! Brahmin-killer!‖ He ran to the women and said: ―Take over one-third of this my guilt of killing a Brahmin.‖ They asked: ―What will we get?‖ He replied: ―Make a wish.‖ They said: ―Let us obtain offspring during our season, and let us enjoy sexual intercourse freely until we give birth.‖ He replied: ―So be it!‖ And they took the guilt upon themselves. That guilt of killing a Brahmin manifests itself every

4 Leviticus 15:19 (King James Version).

63 month. Therefore, one should not eat the food of a menstruating woman, for such a woman has put on the aspect of the guilt of killing a Brahmin‘.‖5

To similar effect are Chapters 9 and 13 of Canto 6 of the Bhagavata

Purana which read as follows:

―6.9.9. In return for Lord Indra‘s benediction that they would be able to enjoy lusty desires continuously, even during pregnancy for as long as sex is not injurious to the embryo, women accepted one fourth of the sinful reactions. As a result of those reactions, women manifest the signs of menstruation every month.‖6 ―6.13.5. King Indra replied: When I killed Visvarupa, I received extensive sinful reactions, but I was favored by the women, land, trees and water, and therefore I was able to divide the sin among them. But now if I kill Vrtrasura, another brahmana, how shall I free 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 a state of hurt (and ritual impurity), so keep away from women during their menstruation and do not approach them 5 DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 264 (Translation by Patrick Olivelle, Oxford University Press, 1999).

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

7 Id.

64 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 within the terms He has enjoined upon you). Surely God loves those who 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 a woman who was

ritualistically unclean, having had an issue of blood for 12 years, as

follows:

―25. And a certain woman, which had an issue of blood twelve years,

26. And had suffered many things of many physicians, and had spent all that she had, and was nothing bettered, but rather grew worse,

27. When she had heard of Jesus, came in the press behind, and touched 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; and she felt in her body that she was healed of that plague.

30. And Jesus, immediately knowing in himself that virtue had gone out of him, turned him about in the press, and said, Who touched my clothes?

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

65

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

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

33. But the woman fearing and trembling, knowing what was done in her, came and fell down before him, and told him all the truth.

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

One may immediately notice that the woman touching Jesus was

without Jesus‘s knowledge, for upon coming to know of the woman‘s

touch, Jesus ―knew in himself that virtue had gone out of him‖.

Equally, in the Bundahishn, a text relating to creation in

Zoroastrianism, it is stated that a primeval prostitute call Jeh, because

of her misdeeds, brought upon herself, menstruation. Chapter 3,

Verses 6 to 8 of the Bundahishn are as follows:

―6. And, again, the wicked Jeh shouted thus: ‗Rise up, thou father of us! for in that conflict I will shed thus much vexation on the righteous man and the laboring ox that, through my deeds, life will not be wanted, and I will destroy their living souls (nismo); I will vex the water, I will vex the plants, I will vex the

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

66 fire of Ohrmazd, I will make the whole creation of Ohrmazd vexed.‘

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

8. He shouted to Jeh thus: ‗What is thy wish? so that I may give it 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:

―31. And [the demon Whore] of evil religion joined herself [to the Blessed Man]; for the defilement of females she joined herself to him, that she might defile females; and the females, because they were defiled, might defile the males, and (the males) would turn aside from their proper work.‖11

However, in the more recent religions such as Sikhism and the Bahá‘í

Faith, a more pragmatic view of menstruation is taken, making it clear

that no ritualistic impurity is involved. The Sri Guru Granth Sahib

deems menstruation as a natural process – free from impurity12 and

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).

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 translates Raga Asa, Shaloka Mehla 1 at p. 472 of the original text of Sri Guru Granth Sahib].

67 essential to procreation.13 Similarly, in the Bahá‘í Faith, the concept of

ritual uncleanness has been abolished by Bahá‘u‘lláh.14

25. For the purpose of this case, we have proceeded on the footing

that the reasons given for barring the entry of menstruating women to

the Sabarimala temple are considered by worshippers and Thanthris

alike, to be an essential facet of their belief.

26. The first question that arises is whether the Sabarimala temple

can be said to be a religious denomination for the purpose of Article 26

of the Constitution. We have already seen with reference to the case

law quoted above, that three things are necessary in order to establish

that a particular temple belongs to a religious denomination. The

temple must consist of persons who have a common faith, a common

organization, and are designated by a distinct name. In answer to the

question whether Thanthris and worshippers alike are designated by a

distinct name, we were unable to find any answer. When asked

whether all persons who visit the Sabarimala temple have a common

13 4 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 975 (Translation by 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).

68 faith, the answer given was that all persons, regardless of caste or

religion, are worshippers at the said temple. From this, it is also clear

that Hindus of all kinds, Muslims, Christians etc., all visit the temple as

worshippers, without, in any manner, ceasing to be Hindus, Christians

or Muslims. They can therefore be regarded, as has been held in Sri

Adi Visheshwara (supra), as Hindus who worship the idol of Lord

Ayyappa as part of the Hindu religious form of worship but not as

denominational worshippers. The same goes for members of other

religious communities. We may remember that in Durgah Committee

(supra), this Court had held that since persons of all religious faiths

visit the Durgah as a place of pilgrimage, it may not be easy to hold

that they constitute a religious denomination or a section thereof.

However, for the purpose of the appeal, they proposed to deal with the

dispute between the parties on the basis that the Chishtia sect, whom

the respondents represented, were a separate religious denomination,

being a sub-sect of Soofies. We may hasten to add that we find no

such thing here. We may also add that in S.P. Mittal (supra), the

majority judgment did not hold, and therefore, assumed that

―Aurobindoism‖ was a religious denomination, given the fact that the

Auroville Foundation Society claimed exemption from income tax on 69 the footing that it was a charitable, and not a religious organization,

and held itself out to be a non-religious organization. Also, the

powerful argument addressed, noticed at paragraph 106 of the

majority judgment, that persons who joined the Auroville Society did

not give up their religion, also added great substance to the fact that

the Auroville Society could not be regarded as a religious

denomination for the purpose of Article 26. Chinnappa Reddy, J.

alone, in dissent, held the Auroville Society to be a religious

denomination, without adverting to the fact that persons who are a part

of the Society continued to adhere to their religion.

27. In these circumstances, we are clearly of the view that there is

no distinctive name given to the worshippers of this particular temple;

there is no common faith in the sense of a belief common to a

particular religion or section thereof; or common organization of the

worshippers of the Sabarimala temple so as to constitute the said

temple into a religious denomination. Also, there are over a thousand

other Ayyappa temples in which the deity is worshipped by practicing

Hindus of all kinds. It is clear, therefore, that Article 26 does not get

attracted to the facts of this case.

70

28. This being the case, even if we assume that there is a custom

or usage for keeping out women of the ages of 10 to 50 from entering

the Sabarimala temple, and that this practice is an essential part of the

Thanthris‘ as well as the worshippers‘ faith, this practice or usage is

clearly hit by Section 3 of the Kerala Hindu Places of Public Worship

(Authorisation of Entry) Act, 1965, which states as follows:

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

Provided that in the case of a public of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section, shall be subject to the right of that religious denomination or section as the

71 case may be, to manage its own affairs in matters of religion.‖

Since the proviso to the Section is not attracted on the facts of this

case, and since the said Act is clearly a measure enacted under Article

25(2)(b), any religious right claimed on the basis of custom and usage

as an essential matter of religious practice under Article 25(1), will be

subject to the aforesaid law made under Article 25(2)(b). The said

custom or usage must therefore, be held to be violative of Section 3

and hence, struck down.

29. Even otherwise, the fundamental right of women between the

ages of 10 and 50 to enter the Sabarimala temple is undoubtedly

recognized by Article 25(1). The fundamental right claimed by the

Thanthris and worshippers of the institution, based on custom and

usage under the selfsame Article 25(1), must necessarily yield to the

fundamental right of such women, as they are equally entitled to the

right to practice religion, which would be meaningless unless they

were allowed to enter the temple at Sabarimala to worship the idol of

Lord Ayyappa. The argument that all women are not prohibited from

entering the temple can be of no avail, as women between the age

72 group of 10 to 50 are excluded completely. Also, the argument that

such women can worship at the other Ayyappa temples is no answer

to the denial of their fundamental right to practice religion as they see

it, which includes their right to worship at any temple of their choice.

On this ground also, the right to practice religion, as claimed by the

Thanthris and worshippers, must be balanced with and must yield to

the fundamental right of women between the ages of 10 and 50, who

are completely barred from entering the temple at Sabarimala, based

on the biological ground of menstruation.

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation

of Entry) Rules, 1965 states as follows:

―3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath in or use of water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to place of public worship:

xxx xxx xxx

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

xxx xxx xxx‖ 73 The abovementioned Rule is ultra vires of Section 3 of the Kerala

Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and

is hit by Article 25(1) and by Article 15(1) of the Constitution of India as

this Rule discriminates against women on the basis of their sex only.

30. The learned counsel appearing on behalf of the Respondents

stated that the present writ petition, which is in the nature of a PIL, is

not maintainable inasmuch as no woman worshipper has come

forward with a plea that she has been discriminated against by not

allowing her entry into the temple as she is between the age of 10 to

50. A similar argument was raised in Adi Saiva Sivachariyargal Nala

Sangam (supra) which was repelled in the following terms:

―12. ……… The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be too simplistic a solution to adopt to answer the issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century- old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof.‖ 74 The present case raises grave issues relating to women generally,

who happen to be between the ages of 10 to 50, and are not allowed

entry into the temple at Sabarimala on the ground of a physiological or

biological function which is common to all women between those ages.

Since this matter raises far-reaching consequences relating to Articles

25 and 26 of the Constitution of India, we have found it necessary to

decide this matter on merits. Consequently, this technical plea cannot

stand in the way of a constitutional court applying constitutional

principles to the case at hand.

31. A fervent plea was made by some of the counsels for the

Respondents that the Court should not decide this case without any

evidence being led on both sides. Evidence is very much there, in the

form of the writ petition and the affidavits that have been filed in the

writ petition, both by the Petitioners as well as by the Board, and by

the Thanthri‘s affidavit referred to supra. It must not be forgotten that a

writ petition filed under either Article 32 or Article 226 is itself not

merely a pleading, but also evidence in the form of affidavits that are

sworn. (See Bharat Singh and Ors. v. State of Haryana and Ors.,

1988 Supp (2) SCR 1050 at 1059).

75 32. The facts, as they emerge from the writ petition and the

aforesaid affidavits, are sufficient for us to dispose of this writ petition

on the points raised before us. I, therefore, concur in the judgment of

the learned Chief Justice of India in allowing the writ petition, and

declare that the custom or usage of prohibiting women between the

ages of 10 to 50 years from entering the Sabarimala temple is violative

of Article 25(1), and violative of the Kerala Hindu Places of Public

Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b)

of the Constitution. Further, it is also declared that Rule 3(b) of the

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

1965 is unconstitutional being violative of Article 25(1) and Article

15(1) of the Constitution of India.

………………………..……J. (R.F. Nariman)

New Delhi;

September 28, 2018.

76 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 373 OF 2006

INDIAN YOUNG LAWYERS ASSOCIATION ...PETITIONERS AND ORS

VERSUS

THE STATE OF KERALA AND ORS ...RESPONDENTS

JUDGMENT

INDEX

A Conversation within the Constitution: religion, dignity and morality

B History: Lord Ayyappa and the Sabarimala Temple

C Temple entry and the exclusion of women

D The reference

E Submissions

F Essential Religious Practices

1 G The engagement of essential religious practices with constitutional values

H Religious Denominations

H.1 Do the devotees of Lord Ayyappa constitute a religious denomination?

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

J The ultra vires doctrine

K The ghost of Narasu

L Deity as a bearer of constitutional rights

M A road map for the future

N Conclusion

2 PART A

Dr Dhananjaya Y Chandrachud, J

A Conversation within the Constitution: religion, dignity and morality

1 The Preamble to the Constitution portrays the foundational principles:

justice, liberty, equality and fraternity. While defining the content of these

principles, the draftspersons laid out a broad canvass upon which the diversity

of our society would be nurtured. Forty two years ago, the Constitution was

amended to accommodate a specific reference to its secular fabric in the

Preamble.1 Arguably, this was only a formal recognition of a concept which

found expression in diverse facets, as they were crafted at the birth of the

Constitution. Secularism was not a new idea but a formal reiteration of what the

Constitution always respected and accepted: the equality of all faiths. Besides

incorporating a specific reference to a secular republic, the Preamble divulges

the position held by the framers on the interface of religion and the fundamental

values of a constitutional order. The Constitution is not – as it could not have

been - oblivious to religion. Religiosity has moved hearts and minds in the

history of modern India. Hence, in defining the content of liberty, the Preamble

has spoken of the liberty of thought, expression, belief, faith and worship. While

recognising and protecting individual liberty, the Preamble underscores the

importance of equality, both in terms of status and opportunity. Above all, it

1 The Constitution (Forty-second) Amendment, 1976

3 PART A

seeks to promote among all citizens fraternity which would assure the dignity

of the individual.

2 The significance of the Preamble lies both in its setting forth the founding

principles of the Constitution as well as in the broad sweep of their content. The

Constitution was brought into existence to oversee a radical transformation.

There would be a transformation of political power from a colonial regime. There

was to be a transformation in the structure of governance. Above all the

Constitution envisages a transformation in the position of the individual, as a

focal point of a just society. The institutions through which the nation would be

governed would be subsumed in a democratic polity where real power both in

legal and political terms would be entrusted to the people. The purpose of

adopting a democratic Constitution was to allow a peaceful transition from a

colonial power to home rule. In understanding the fundamental principles of the

Constitution which find reflection in the Preamble, it is crucial to notice that the

transfer of political power from a colonial regime was but one of the purposes

which the framers sought to achieve. The transfer of political power furnished

the imperative for drafting a fundamental text of governance. But the task which

the framers assumed was infinitely more sensitive. They took upon themselves

above all, the task to transform Indian society by remedying centuries of

discrimination against Dalits, women and the marginalised. They sought to

provide them a voice by creating a culture of rights and a political environment

to assert freedom. Above all, placing those who were denuded of their human

4 PART A

rights before the advent of the Constitution – whether in the veneer of caste,

patriarchy or otherwise – were to be placed in control of their own destinies by

the assurance of the equal protection of law. Fundamental to their vision was

the ability of the Constitution to pursue a social transformation. Intrinsic to the

social transformation is the role of each individual citizen in securing justice,

liberty, equality and fraternity in all its dimensions.

3 The four founding principles are not disjunctive. Together, the values

which they incorporate within each principle coalesce in achieving the fulfilment

of human happiness. The universe encompassed by the four founding principles

is larger the sum total of its parts. The Constitution cannot be understood without

perceiving the complex relationship between the values which it elevates. So,

liberty in matters of belief, faith and worship, must produce a compassionate

and humane society marked by the equality of status among all its citizens. The

freedom to believe, to be a person of faith and to be a human being in prayer

has to be fulfilled in the context of a society which does not discriminate between

its citizens. Their equality in all matters of status and opportunity gives true

meaning to the liberty of belief, faith and worship. Equality between citizens is

after all, a powerful safeguard to preserve a common universe of liberties

between citizens, including in matters of religion. Combined together, individual

liberty, equality and fraternity among citizens are indispensable to a social and

political ordering in which the dignity of the individual is realised. Our

understanding of the Constitution can be complete only if we acknowledge the

5 PART A

complex relationship between the pursuit of justice, the protection of liberty,

realisation of equality and the assurance of fraternity. Securing the worth of the

individual is crucial to a humane society.

4 The Constitution as a fundamental document of governance has sought

to achieve a transformation of society. In giving meaning to its provisions and

in finding solutions to the intractable problems of the present, it is well to remind

ourselves on each occasion that the purpose of this basic document which

governs our society is to bring about a constitutional transformation. In a

constitutional transformation, the means are as significant as are our ends. The

means ensure that the process is guided by values. The ends, or the

transformation, underlie the vision of the Constitution. It is by being rooted in

the Constitution’s quest for transforming Indian society that we can search for

answers to the binaries which have polarised our society. The conflict in this

case between religious practices and the claim of dignity for women in matters

of faith and worship, is essentially about resolving those polarities.

5 Essentially, the significance of this case lies in the issues which it poses

to the adjudicatory role of this Court in defining the boundaries of religion in a

dialogue about our public spaces. Does the Constitution, in the protection which

it grants to religious faith, allow the exclusion of women of a particular age group

from a temple dedicated to the public? Will the quest for human dignity be

incomplete or remain but a writ in sand if the Constitution accepts the exclusion

6 PART A

of women from worship in a public temple? Will the quest for equality and

fraternity be denuded of its content where women continue to be treated as

children of a lesser god in exercising their liberties in matters of belief, faith and

worship? Will the pursuit of individual dignity be capable of being achieved if

we deny to women equal rights in matters of faith and worship, on the basis of

a physiological aspect of their existence? These questions are central to

understanding the purpose of the Constitution, as they are to defining the role

which is ascribed to the Constitution in controlling the closed boundaries 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 educational rights (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 the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

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

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

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

7 PART A

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

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

In clause (1), Article 25 protects the equal entitlement of all persons to a

freedom of conscience and to freely profess, protect and propagate religion. By

conferring this right on all persons, the Constitution emphasises the universal

nature of the right. By all persons, the Constitution means exactly what it says :

every individual in society without distinction of any kind whatsoever is entitled

to the right. By speaking of an equal entitlement, the Constitution places every

individual on an even platform. Having guaranteed equality before the law and

the equal protection of laws in Article 14, the draftspersons specifically

continued the theme of an equal entitlement as an intrinsic element of the

freedom of conscience and of the right to profess, practice and propagate

religion. There are three defining features of clause (1) of Article 25: firstly, the

entitlement of all persons without exception, secondly, the recognition of an

equal entitlement; and thirdly, the recognition both of the freedom of conscience

and the right freely to profess, practice and propagate religion. The right under

Article 25(1) is evidently an individual right for, it is in the individual that a

conscience inheres. Moreover, it is the individual who professes, practices and

propagates religion. Freedom of religion in Article 25(1) is a right which the

Constitution recognises as dwelling in each individual or natural person.

8 PART A

7 Yet, the right to the freedom of religion is not absolute. For the

Constitution has expressly made it subject to public order, morality and health

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 the other provisions of the Part

is a nuanced departure from the position occupied by the other rights to freedom

recognised in Articles 14, 15, 19 and 21. While guaranteeing equality and the

equal protection of laws in Article 14 and its emanation, in Article 15, which

prohibits discrimination on grounds of religion, race, caste, sex or place of birth,

the Constitution does not condition these basic norms of equality to the other

provisions of Part III. Similar is the case with the freedoms guaranteed by Article

19(1) or the right to life under Article 21. The subjection of the individual right

to the freedom of religion under Article 25(1) to the other provisions of Part III

was not a matter without substantive content. Evidently, in the constitutional

order of priorities, the individual right to the freedom of religion was not intended

to prevail over but was subject to the overriding constitutional postulates of

equality, liberty and personal freedoms recognised in the other provisions of

Part III.

8 Clause (2) of Article 25 protects laws which existed at the adoption of the

Constitution and the power of the state to enact laws in future, dealing with two

categories. The first of those categories consists of laws regulating or restricting

economic, financial, political or other secular activities which may be associated

with religious practices. Thus, in sub-clause (a) of Article 25 (2), the Constitution

9 PART A

has segregated matters of religious practice from secular activities, including

those of an economic, financial or political nature. The expression “other

secular activity” which follows upon the expression “economic, financial,

political” indicates that matters of a secular nature may be regulated or restricted

by law. The fact that these secular activities are associated with or, in other

words, carried out in conjunction with religious practice, would not put them

beyond the pale of legislative regulation. The second category consists of laws

providing for (i) social welfare and reform; or (ii) throwing open of Hindu religious

institutions of a public character to all classes and sections of Hindus. The

expression “social welfare and reform” is not confined to matters only of the

Hindu religion. However, in matters of temple entry, the Constitution recognised

the disabilities which Hindu religion had imposed over the centuries which

restricted the rights of access to dalits and to various groups within Hindu

society. The effect of clause (2) of Article 25 is to protect the ability of the state

to enact laws, and to save existing laws on matters governed by sub-clauses

(a) and (b). Clause (2) of Article 25 is clarificatory of the regulatory power of the

state over matters of public order, morality and health which already stand

recognised in clause (1). Clause 1 makes the right conferred subject to public

order, morality and health. Clause 2 does not circumscribe the ambit of the

‘subject to public order, morality or health’ stipulation in clause 1. What clause

2 indicates is that the authority of the state to enact laws on the categories is

not trammelled by Article 25.

10 PART A

9 Article 26, as its marginal note indicates, deals with the “freedom to

manage religious affairs”:

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

(a) to establish and maintain institutions for religious and charitable 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.”

Article 26 confers rights on religious denominations and their sections. The

Article covers four distinct facets: (i) establishment and maintenance of

institutions for purposes of a religious and charitable nature; (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 the case of Article 25(1), is prefaced by a “subject to

public order, morality and health” stipulation. Article 26(1) does not embody the

additional stipulation found in Article 25(1) viz; “and to the other provisions of

this Part.” The significance of this will be explored shortly.

10 Public order, morality and health are grounds which the Constitution

contemplates as the basis of restricting both the individual right to freedom of

religion in Article 25(1) and the right of religious denominations under Article 26.

The vexed issue is about the content of morality in Articles 25 and 26. What

meaning should be ascribed to the content of the expression ‘morality’ is a

11 PART A

matter of constitutional moment. In the case of the individual right as well as

the right of religious denominations, morality has an overarching position similar

to public order and health because the rights recognised by both the Articles are

subject to those stipulations. Article 25(2) contemplates that the Article will

neither affect the operation of existing law or prevent the state from enacting a

law for the purposes stipulated in sub-clauses (a) and (b).

11 In defining the content of morality, did the draftspersons engage with

prevailing morality in society? Or does the reference to morality refer to

something more fundamental? Morality for the purposes of Articles 25 and 26

cannot have an ephemeral existence. Popular notions about what is moral and

what is not are transient and fleeting. Popular notions about what is or is not

moral may in fact be deeply offensive to individual dignity and human rights.

Individual dignity cannot be allowed to be subordinate to the morality of the mob.

Nor can the intolerance of society operate as a marauding morality to control

individual self-expression in its manifest form. The Constitution would not

render the existence of rights so precarious by subjecting them to passing

fancies or to the aberrations of a morality of popular opinion. The draftspersons

of the Constitution would not have meant that the content of morality should

vary in accordance with the popular fashions of the day. The expression has

been adopted in a constitutional text and it would be inappropriate to give it a

content which is momentary or impermanent. Then again, the expression

‘morality’ cannot be equated with prevailing social conceptions or those which

12 PART A

may be subsumed within mainstream thinking in society at a given time. The

Constitution has been adopted for a society of plural cultures and if its provisions

are any indication, it is evident that the text does not pursue either a religious

theocracy or a dominant ideology. In adopting a democratic Constitution, the

framers would have been conscious of the fact that governance by a majority is

all about the accumulation of political power. Constitutional democracies do not

necessarily result in constitutional liberalism. While our Constitution has

adopted a democratic form of governance it has at the same time adopted

values based on constitutional liberalism. Central to those values is the position

of the individual. The fundamental freedoms which Part III confers are central

to the constitutional purpose of overseeing a transformation of a society based

on dignity, liberty and equality. Hence, morality for the purposes of Articles 25

and 26 must mean that which is governed by fundamental constitutional

principles.

12 The content of morality is founded on the four precepts which emerge

from the Preamble. The first among them is the need to ensure justice in its

social, economic and political dimensions. The second is the postulate of

individual liberty in matters of thought, expression, belief, faith and worship.

The third is equality of status and opportunity amongst all citizens. The fourth

is the sense of fraternity amongst all citizens which assures the dignity of

human life. Added to these four precepts is the fundamental postulate of

secularism which treats all religions on an even platform and allows to each

13 PART A

individual the fullest liberty to believe or not to believe. Conscience, it must be

remembered, is emphasised by the same provision. The Constitution is meant

as much for the agnostic as it is for the worshipper. It values and protects the

conscience of the atheist. The founding faith upon which the Constitution is

based is the belief that it is in the dignity of each individual that the pursuit of

happiness is founded. Individual dignity can be achieved only in a regime which

recognises liberty as inhering in each individual as a natural right. Human dignity

postulates an equality between persons. Equality necessarily is an equality

between sexes and genders. Equality postulates a right to be free from

discrimination and to have the protection of the law in the same manner as is

available to every citizen. Equality above all is a protective shield against the

arbitrariness of any form of authority. These founding principles must govern

our constitutional notions of morality. Constitutional morality must have a value

of permanence which is not subject to the fleeting fancies of every time and age.

If the vision which the founders of the Constitution adopted has to survive,

constitutional morality must have a content which is firmly rooted in the

fundamental postulates of human liberty, equality, fraternity and dignity. These

are the means to secure justice in all its dimensions to the individual citizen.

Once these postulates are accepted, the necessary consequence is that the

freedom of religion and, likewise, the freedom to manage the affairs of a

religious denomination is subject to and must yield to these fundamental notions

of constitutional morality. In the public law conversations between religion and

morality, it is the overarching sense of constitutional morality which has to

14 PART A

prevail. While the Constitution recognises religious beliefs and faiths, its

purpose is to ensure a wider acceptance of human dignity and liberty as the

ultimate founding faith of the fundamental text of our governance. Where a

conflict arises, the quest for human dignity, liberty and equality must prevail.

These, above everything else, are matters on which the Constitution has willed

that its values must reign supreme.

13 The expression “subject to” is in the nature of a condition or proviso.

Making a provision subject to another may indicate that the former is controlled

by or is subordinate to the other. In making clause 1 of Article 25 subject to the

other provisions of Part III without introducing a similar limitation in Article 26,

the Constitution should not readily be assumed to have intended the same

result. Evidently the individual right under Article 25(1) is not only subject to

public order, morality and health, but it is also subordinate to the other freedoms

that are guaranteed by Part III. In omitting the additional stipulation in Article

26, the Constitution has consciously not used words that would indicate an

intent specifically to make Article 26 subordinate to the other freedoms. This

textual interpretation of Article 26, in juxtaposition with Article 25 is good as far

as it goes. But does that by itself lend credence to the theory that the right of a

religious denomination to manage its affairs is a standalone right uncontrolled

or unaffected by the other fundamental freedoms? The answer to this must lie

in the negative. It is one thing to say that Article 26 is not subordinate to (not

‘subject to’) other freedoms in Part III. But it is quite another thing to assume

15 PART A

that Article 26 has no connect with other freedoms or that the right of religious

denominations is unconcerned with them. To say as a matter of interpretation

that a provision in law is not subordinate to another is one thing. But the absence

of words of subjection does not necessarily attribute to the provision a status

independent of a cluster of other entitlements, particularly those based on

individual freedoms. Even where one provision is not subject to another there

would still be a ground to read both together so that they exist in harmony.

Constitutional interpretation is all about bringing a sense of equilibrium, a

balance, so that read individually and together the provisions of the Constitution

exist in contemporaneous accord. Unless such an effort were to be made, the

synchrony between different parts of the Constitution would not be preserved.

In interpreting a segment of the Constitution devoted exclusively to fundamental

rights one must eschew an approach which would result in asynchrony. Co-

existence of freedoms is crucial, in the ultimate analysis, to a constitutional order

which guarantees them and seeks to elevate them to a platform on which every

individual without distinction can reap their fruit without a bar to access. Thus,

the absence of words in Article 26 which would make its provisions subordinate

to the other fundamental freedoms neither gives the right conferred upon

religious denominations a priority which overrides other freedoms nor does it

allow the freedom of a religious denomination to exist in an isolated silo. In real

life it is difficult to replicate the conditions of a controlled experiment in a

laboratory. Real life is all about complexities and uncertainties arising out of the

assertions of entitlements and conflicts of interests among groups of different

16 PART A

hues in society. The freedoms which find an elaboration in Part III are exercised

within a society which is networked. The freedoms themselves have linkages

which cannot be ignored. There is, therefore, a convincing reason not to allow

the provisions of Article 26 to tread in isolation. Article 26 is one among a large

cluster of freedoms which the Constitution has envisaged as intrinsic to human

liberty and dignity. In locating the freedom under Article 26 within a group – the

religious denomination – the text in fact allows us to regard the fundamental

right recognised in it as one facet of the overall components of liberty in a free

society.

14 This approach to constitutional interpretation which I propose and follow

is acceptable for another reason, as a matter of constitutional doctrine. Since

the decision of eleven judges in Rustom Cavasjee Cooper v Union of India2,

it is now settled doctrine that the fundamental rights contained in Part III are not,

as it has been said, water-tight compartments. Evolving away from the earlier

jurisprudence in A K Gopalan v State of Madras3 our interpretation of the

freedoms is now governed by a sense of realism which notices their open-

textured content and indeed, their fluid nature. One freedom shades into and

merges with another. Fairness as a guarantee against arbitrary state action

influences the content of the procedure for the deprivation of life under Article

21. Though Article 21 speaks only of the deprivation of life or personal liberty by

a procedure established by law, decisions from Maneka Gandhi v Union of

2(1970) 1 SCC 248 3 1950 SCR 88

17 PART A

India4, (“Maneka”) have expounded that the law must have a content which is

reasonable. The procedure for deprivation must be free of the taint of that which

is arbitrary. This reading of the fundamental rights as constellations emanating

from a cosmos of freedom and as having paths which intersect and merge

enhances the value of freedom itself. Though the principal provision relating to

equality before the law is embodied in Article 14, the four articles which follow it

are a manifestation of its basic doctrines. Article 15 in outlawing discrimination

on grounds of religion, race, caste, sex and place of birth is but a manifestation

of equality. Equality in matters of public employment under Article 16 is a facet

of the basic postulate of equality. Article 17 gives expression to equality in

abolishing untouchability: a practice fundamentally at odds to the notion of an

equal society. Titles which place some citizens above others are abolished by

Article 18 in manifesting yet another aspect of equality. As we have seen, a

fundamental notion of equality is embodied in Article 25(1) itself when it speaks

of an equal entitlement to freely practice, profess and propagate religion. This

sense of equality permeates the other guarantees of fundamental freedoms as

well. Article 19 recognises six freedoms as an entitlement “of all citizens”.

Recognizing that a right inheres in all citizens is a constitutional affirmation that

every citizen, without exception or 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 a facet of equality. The

equal application of law to persons similarly circumstanced is a fundamental

4 (1978) 1 SCC 248

18 PART A

postulate of the protections which are conferred by Articles 20, 21 and 22. Thus

the principle which has become an entrenched part of our constitutional doctrine

after the decision in Bank Nationalization is based on a sure foundation. The

freedoms which we possess and those which we exercise are not disjunctive

parts, separate from each other. Individuals in society exercise not one but

many of the freedoms. An individual exercises a multitude of freedoms as a

composite part of the human personality. A single act embodies within it the

exercise of many choices reflecting the assertion of manifold freedoms. From

this perspective, it is but a short step to hold that all freedoms exist in harmony.

Our freedoms are enveloped in the womb created by the Constitution for the

survival of liberty. Hence, the absence of a clause of subjection in Article 26

does not lead to the conclusion that the freedom of a religious denomination

exists as a discrete element, divorced from the others. This approach is quite

independent of the consideration that even Article 26 like Article 25(1) is subject

to public order, morality and health. Once we hold, following the line which is

now part of conventional doctrine, that all freedoms have linkages and exist in

a state of mutual co-existence, the freedom of religious denominations under

Article 26 must be read in a manner which preserves equally, other individual

freedoms which may be impacted by an unrestrained exercise. Hence, the

dignity of women which is an emanation of Article 15 and a reflection of Article

21 cannot be disassociated from the exercise of religious freedom under Article

26.

19 PART A

15 Once Articles 25 and 26 are read in the manner in which they have been

interpreted, the distinction between the articles in terms of the presence or

absence of a clause of subjection should make little practical significance to the

relationship between the freedom of religion with the other freedoms recognized

in the fundamental rights. If the Constitution has to have a meaning, is it

permissible for religion – either as a matter of individual belief or as an organized

structure of religious precepts – to assert an entitlement to do what is derogatory

to women? Dignity of the individual is the unwavering premise of the

fundamental rights. Autonomy nourishes dignity by allowing each individual to

make critical choices for the exercise of liberty. A liberal Constitution such as

ours recognizes a wide range of rights to inhere in each individual. Without

freedom, the individual would be bereft of her individuality. Anything that is

destructive of individual dignity is anachronistic to our constitutional ethos. The

equality between sexes and equal protection of gender is an emanation of

Article 15. Whether or not Article 15 is attracted to a particular source of the

invasion of rights is not of overarching importance for the simple reason that the

fundamental principles which emerge from the Preamble, as we have noticed

earlier, infuse constitutional morality into its content. In our public discourse of

individual rights, neither religious freedom nor organized religion can be heard

to assert an immunity to adhere to fundamental constitutional precepts

grounded in dignity and human liberty. The postulate of equality is that human

beings are created equal. The postulate is not that all men are created equal

but that all individuals are created equal. To exclude women from worship by

20 PART A

allowing the right to worship to men is to place women in a position of

subordination. The Constitution, should not become an instrument for the

perpetuation of patriarchy. The freedom to believe, the freedom to be a person

of faith and the freedom of worship, are attributes of human liberty. Facets of

that liberty find protection in Article 25. Religion then cannot become a cover to

exclude and to deny the basic right to find fulfilment in worship to women. Nor

can a physiological feature associated with a woman provide a constitutional

rationale to deny to her the right to worship which is available to others. Birth

marks and physiology are irrelevant to constitutional entitlements which are

provided to every individual. To exclude from worship, is to deny one of the most

basic postulates of human dignity to women. Neither can the Constitution

countenance such an exclusion nor can a free society accept it under the veneer

of religious beliefs.

16 Much of our jurisprudence on religion has evolved, as we shall see,

around what constitutes an essential religious practice. At a certain level an

adjudication of what is a religious practice seems to have emerged from the

distinction made in clause 2(a) of Article 25 between a religious practice and

economic, financial, political or other secular activities which are associated with

religious practices. Where the state has enacted a law by which it claims to have

regulated a secular activity associated with a religious practice, but not the

religious practice, it becomes necessary to decide the issue, where the validity

of the law is challenged. Similarly, Article 26(b) speaks of “matters of religion”

21 PART A

when it recognises the right of a religious denomination to manage them. In the

context of Article 26(b), this Court has embarked upon a course to decide in

individual cases whether, what was said to be regulated by the state was a

matter of religion which falls within the freedom guaranteed to the denomination.

These compulsions nonetheless have led the court to don a theological mantle.

The enquiry has moved from deciding what is essentially religious to what is an

essential religious practice. Donning such a role is not an easy task when the

Court is called upon to decide whether a practice does nor does not form an

essential part of a religious belief. Scriptures and customs merge with

bewildering complexity into superstition and dogma. Separating the grain from

the chaff involves a complex adjudicatory function. Decisions of the Court have

attempted to bring in a measure of objectivity by holding that the Court has been

called upon to decide on the basis of the tenets of the religion itself. But even

that is not a consistent norm.

17 Our conversations with the Constitution must be restructured to evolve

both with the broadening of the content of liberty and dignity and the role of the

Court as an enforcer of constitutional doctrine. The basic principle which must

guide any analysis in this area is the dominance of the values of liberty, equality

and fraternity as instruments in achieving individual dignity. Once individual

dignity assumes the character of a shining star in the constellation of

fundamental rights, the place of religion in public places must be conditioned by

India’s unwavering commitment to a constitutional order based on human

22 PART A

dignity. Practices which are destructive of liberty and those which make some

citizens less equal than others can simply not be countenanced. To treat

women as children of a lesser god is to blink at the Constitution itself. Among

the fundamental duties of every citizen recognized by the Constitution is “to

renounce practices derogatory to the dignity of women”.5 In speaking to the

equality between individuals in matters of livelihood, health and remuneration

for work, the Directive Principles speak to the conscience of the Constitution.

To allow practices derogatory to the dignity of a woman in matters of faith and

worship would permit a conscious breach of the fundamental duties of every

citizen. We cannot adopt an interpretation of the Constitution which has such

an effect. Our inability to state this as a matter of constitutional doctrine is liable

to lead us to positions of pretence or, worse still, hypocrisy. Both are willing

allies to push critical issues under the carpet. If we are truly to emerge out of

the grim shadows of a society which has subjugated groups of our citizens under

the weight of discrimination for centuries, it is time that the Constitution is

allowed to speak as it can only do: in a forthright manner as a compact of

governance, for today and the future.

18 Now it is in this background that it would be necessary to explore the

principles which emerge from the precedents of this Court which explain the

content of Article 25(1) and Article 26.

5 Article 51A(e), The Constitution of India

23 PART B

B History: Lord Ayyappa and the Sabarimala Temple

Origins

19 The Sabarimala Temple, devoted to Lord Ayyappa is a temple of great

antiquity. The temple is situated over one of the eighteen mountains spread over

the Western Ghats known as Sannidhanam. Situated in the district of

Pathananthitta in Kerala, the temple nestles at a height of 1260 metres (4135

feet) above sea level. The faithful believe that Lord Ayyappa’s powers derive

from his ascetism, in particular from his being celibate. Celibacy is a practice

adopted by pilgrims before and during the pilgrimage. Those who believe in Lord

Ayyappa and offer prayer are expected to follow a strict ‘Vratham’ or vow over

a period of forty one days which lays down a set of practices.

20 The legend of Lord Ayyappa and the birth of the Sabarimala temple have

been explained6 in the erudite submissions in this case. Although there are

numerous Ayyappa Temples in India, the Sabarimala Temple depicts Lord

Ayyappa as a “Naishtika Brahmacharya”: his powers derive specifically from

abstention from sexual activities.

The birth of Lord Ayyappa is described as arising from the union of Lord Shiva

and Lord Vishnu (the form of Mohini). The divine beings left the boy in a forest

6 Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned Senior Counsel Dr. Abhishek Manu Singhvi for the Respondents; Non-Case Law Convenience Compilation filed by Advocate for Respondent No. 2; Learned Senior Counsel Indira Jaisingh and Learned Counsel R.P. Gupta for the Petitioners

24 PART B

near River Pampa. The Pandalam King, Rajasekara, while on a hunting trip in

the forest along the banks of the River Pampa, heard the cries of a child. The

King reached the banks of the river and found the child Ayyappa. The King took

the child in and took him to the Palace, where the King briefed the Queen about

the incident. The couple as well as the people of the Kingdom were happy by

the arrival of the new child. Ayyappa, also called ‘Manikanta’ grew up in the

palace and was trained in the martial arts and Vedas. The Guru responsible for

Manikanta’s education concluded that the this was not an ordinary child, but a

divine power.

Meanwhile, the Queen gave birth to a male child named Raja Rajan. Impressed

with the talents of Manikanta, King Rajasekara decided to crown him, treating

him as the elder child. He ordered the Minister to make arrangements for the

coronation. However, the Minister, desiring the throne for himself, attempted to

execute plans to prevent the coronation, all of which failed. Having failed, the

Minister approached the Queen to persuade her to ensure that her own

biological child was crowned King. The Minister suggested that the Queen

pretend that she was suffering from a severe headache, whereupon he would

make the physician prescribe that the milk of a tigress be brought to cure her.

To achieve this, he suggested that Manikanta should be sent to the forest.

21 Manikanta soon left for the forest after promising the King that he would

return with the milk of a tigress. Manikanta set out on his journey after having

refused an escort of men that the King had desired to accompanying him. The

25 PART B

King had sent with Manikanta food and coconuts with three eyes, in the

remembrance of Lord Shiva. In the forest, Lord Shiva appeared before

Manikanta and told him that though he had done his duty towards the devas, he

was left with the task to ensure the King’s comfort. Lord Shiva told Manikanta

that he could go back to the Palace with Lord Indra in the form of a tiger.

When Manikanta was seated on the tiger, and all the female devatas in the

disguise of tigresses started their journey to the palace, the schemers were

frightened into confessing their plot. They were convinced of his divine origins

and prayed for their own salvation and for the safety of the Kingdom. Manikanta

disappeared. The King refused to eat anything till his return. Manikanta

appeared in the form of a vision before the King. Filled with emotions of

happiness, grief, fear, wonder and ‘Bhakti, the King stood praying for mercy and

the blessings of Manikanta. He repented in front of Manikanta for not having

realized his divine power and for treating him merely as his child. The Lord

lovingly embraced the King who prayed to bless him by freeing him from ego

and the worldy cycle of rebirth. Manikanta granted him Moksha (salvation). He

told the King that he was destined to return. The King implored Manikanta to

allow him to build a 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 Sabarimala and told the

King that he could construct a temple at Sabarimala, north of the Holy river

Pampa and install his deity there. Lord Ayyappa also explained how the

26 PART B

Sabarimala pilgrimage shall be undertaken, emphasizing the importance of the

penance or ‘Vratham’ and what the devotees can attain by his ‘darshan’. But

before the departure of the Lord, the King secured a 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 of the normal

calendar years of each year;

2. For the first five days of each Malayalam month which communes

approximately in the middle of each calendar month; and

3. For the period of Makar Sankranti, viz. approximately from January to mid

January each year.

The followers of Lord Ayyappa undertake a holy Pilgrimage which culminates in

a prayer at the holy shrine. The pilgrimage takes place in four stages. First, there

is a formal initiation ceremony that begins a forty-one day Vratham. This is

followed by another formal ceremony at the 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 at Sabarimala. This stage includes the physical travel

to the pilgrimage site, bathing in the holy river Pampa at the foot of Mount Sabari

27 PART B

and the climb up Mount Sabari. This involves a trek from the Pampa river,

climbing 3000 feet to the Sannidhanam, which is a trek of around 13 Kms, or

through forests which is a trek of 41 Kms. It ends with the pilgrim’s ascending

the sacred” eighteen steps to the shrine for the first darshan or glimpse of the

deity. The fourth stage is the return journey and the final incorporation back into

life.

Modern communications have made the task less arduous. In 1960, an access

road was constructed for vehicles, so that a pilgrim can drive right up to the foot

of Sabarimala. From here, the holy summit is just 8 kms away. The Kerala State

Transport Corporation runs special buses during the season of pilgrimage. The

buses connect Pampa directly with almost all the main cities in Kerala, Tamil

Nadu and Karnataka.

24 The pilgrimage has three distinctive features: (i) It is almost exclusively a

male-centric pilgrimage that bars women between the ages of ten and fifty from

participating in the rituals; (ii) Though the worshippers of Lord Ayyappa fall

broadly within the Hindu tradition, yet males of all ages may participate on an

equal footing, regardless of caste, creed or religion. Muslims and Christians are

also known to undertake this pilgrimage, enjoying the same equality; and (iii)

The actual journey to the pilgrimage site is preceded by a preparatory period of

forty-one days. During this period, pilgrims are obliged to wear black clothes

28 PART B

and the ‘mala’ with which they are initiated, and they must observe celibacy,

abstinence from meat and intoxicants.

25 Traditionally though the Vratham period extended over forty-one days,

nowadays shorter periods are permitted. While it is expected that for first time

initiaties observe the forty-one day Vratham, others shorten the term to two

weeks or even six days. A key essential of the Vratham is a sathvic lifestyle and

brahmacharya. This is believed to be a step towards a pure body and mind an

effort to be aloof from the materialistic world, by taking a step towards the path

of devotion.

The Vratham or penance entails:

(i) Abstaining from physical relations with a 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 including those

in the family;

(v) Cooking one’s own food;

(vi) Maintaining hygiene including bathing twice a day before prayers;

(vii) Wearing a black mundu and upper garments;

(viii) Partaking of one meal a day; and

(ix) Walking barefoot.

29 PART C

The penance is to be carried out in the manner prescribed. Maintaining oneself

as ‘pure and unpolluted’, it is believed, would lead to the path towards attaining

Godhead or to be one with Lord Ayyappa.

C Temple entry and the exclusion of women

Before proceeding to analyse the questions in this reference, it would be

necessary to outline the history of the case bearing upon the controversy.

26 Two notifications were issued by the Travancore Devaswom Board which

read as follows:

Notification dated 21 October 1955

“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vrithams are prohibited from entering the temple by stepping the Pathinettampadi and women between the ages of ten and fifty- five are forbidden from entering the temple.”7

Notification dated 27 November 1956

7 The Kerala High Court in S Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram, recorded that women between ten and fifty were excluded from the Sabarimala temple. The Petitioners and Respondents in the present case accept that women between the age of ten and fifty are excluded.

30 PART C

“In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple.”

In 1965, the Kerala Hindu Places of Public Worship (Authorization of Entry) Act

19658 was enacted. The preamble to the Act lays down that the Act has been

enacted to make better provisions for entry of all classes and sections of Hindu

into places of public worship. Section 2 contains definitions:

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

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

(b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped, or are used for bathing or for worship, but does not include a “sreekoil”;

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

8 The “1965 Act”

31 PART C

Section 3 provides for places of public worship to be open to all sections and

classes of Hindus:

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

Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may enter, worship, pray or perform:

Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section, shall be subject to the right of that religious denomination or section as the case may be, 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 of order and decorum and the due performance of rites and ceremonies in places of public worship:-

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

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

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

32 PART C

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

(ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and

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

The State of Kerala in exercise of the power under Section 4 framed the Kerala

Hindu Places of Public Worship (Authorization of Entry) Rules 1965.9 Rule 3 of

the 1965 Rules is extracted below:

“Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship-

(a) Persons who are not Hindus.

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

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

(d) Drunken or disorderly persons.

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

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

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

(Emphasis Supplied)

9 The “1965 Rules”

33 PART C

27 The legality of banning the entry of women above the age of ten and

below the age of fifty to offer worship at Sabarimala shrine was sought to be

answered in 1992 by a Division Bench of the High Court of Kerala in S

Mahendran v The Secretary, Travancore Devaswom Board,

Thiruvananthapuram (“Mahendran”).10 A public interest litigation was

entertained by the High Court on the basis of a petition addressed by one S.

Mahendran. Upholding the exclusion of women from 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 below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.”11

The High Court issued the following directions:-

“In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”

10 AIR 1993 Ker 42 11 Ibid, at page 57

34 PART D

D The reference

28 When the present case came up before a three judge Bench of this Court,

by an order dated 13 October 2017, the following questions were referred to a

larger bench:

“1 Whether the exclusionary practice which is based upon a biological 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 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ 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' to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by 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 Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

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

35 PART E

E Submissions

The Petitioners challenge the exclusion of women between the age group ten

and fifty from the Sabarimala Temple as unconstitutional.

Mr Ravi Prakash Gupta,12 learned Counsel submitted that the exclusion of

women between the age group of ten and fifty from the Sabarimala Temple is

unconstitutional on the following grounds:

i. The devotees of Lord Ayyappa do not constitute a religious denomination

under Article 26 of the Constitution;

ii. The restriction of entry of women into Sabarimala temple does not

constitute an Essential Religious Practice;

iii. The right under Article 26 and Article 25 must be read harmoniously as

laid down in Devaru; and

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

and 15 of the Constitution.

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

36 PART E

Ms Indira Jaising,13 learned Senior Counsel, submits that the exclusion from

the Sabarimala temple is unconstitutional:

i. The exclusionary practice is based on physiological factors exclusive to

the female gender and this violates Articles 14, 15 and 21 of the

Constitution;

ii. The practice of exclusion based on menstruation constitutes a form of

untouchability and is prohibited by Article 17 of the Constitution;

iii. The devotees of Lord Ayyappa do not constitute a religious denomination

under Article 26 of the Constitution;

iv. The practice of excluding women from the Sabarimala temple does not

constitute an Essential Religious Practice;

v. That the impugned custom of excluding women falls within the ambit of

‘laws in force’ in Article 13 and is constitutionally invalid; and

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

Mr Raju Ramachandran, learned Senior Counsel who has assisted the Court

as Amicus Curiae made the following submissions:

i. That the right of a woman to worship is an essential aspect of her right to

worship under Article 25;

ii. That the exclusion of women from Sabarimala temple amounts to

discrimination prohibited under Article 15(1) of the Constitution;

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

37 PART E

iii. That compulsory disclosure of menstrual status by women is a violation

of their right to privacy under Article 21 of the Constitution;

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

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

vi. The devotees of Lord Ayyappa do not constitute a religious denomination

under Article 26 of the Constitution;

vii. The practice of excluding women from the Sabarimala temple does not

constitute an Essential Religious Practice;

viii. The prohibition against untouchability in Article 17 extends to the denial

of entry to women between the age group ten and fifty;

ix. A deity is not a juristic person for the purpose of rights enshrined in Part

III of the Constitution; and

x. That there is no requirement of trial as the recordings by the High 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 the Sabarimala

temple;

ii. The practice of exclusion violates Article 14, 15, 25 and 51 of the

Constitution; and

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

38 PART E

iii. In the case of a conflict between fundamental rights and customs, the

former would prevail in accordance with Article 13 of the Constitution.

Mr Jaideep Gupta,15 learned Senior Counsel submitted:

i. The State Government of Kerala stands by the affidavit filed on 13

November 2007 wherein the State Government was not in favour of any

discrimination against women;

ii. That women fall within the ambit of ‘section or class’ in Section 3 of the

1965 Act;

iii. Article 17 must be given a broad interpretation which prohibits the

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 a religious denomination

under Article 26 of the Constitution;

vi. The practice of excluding women from the Sabarimala temple does not

constitute an Essential Religious Practice; and

vii. That the impugned custom of excluding women falls within the ambit of

Article 13 and is constitutionally invalid.

15 Appearing for the State of Kerala

39 PART E

The Respondents submitted that the practice of excluding women between the

age group of ten and fifty from the Sabarimala temple is constitutionally

permissible.

Dr. Abhishek Manu Singhvi,16 learned Senior Counsel submitted that the

practice of excluding women between the age group of ten and fifty from the

Sabarimala temple is constitutional and valid:

i. The exclusion of women is not based on gender and satisfies the test of

intelligible differentia and nexus to the object sought to be achieved;

ii. That Article 17 is inapplicable to the case at hand as the Article is

restricted to prohibiting caste and religion-based untouchability;

iii. The Sabarimala temple is a denominational temple and the exclusion of

women is in exercise of denomination rights under Article 26 of the

Constitution;

iv. Articles 25 and 26 of the Constitution protect religious matters including

ceremonial issues and the exclusion of women is an exercise of this right;

v. That Article 13 of the Constitution does not apply to the present case; and

vi. That a separate trial would be required for the determination of facts.

16 Appearing on behalf of the Respondent – Travancore Devaswom Board

40 PART E

Shri K Parasaran,17 learned Senior Counsel submitted that the exclusion from

the Sabarimala temple is constitutionally permissible:

i. There exists an independent custom that permits the exclusion of women

from the Sabarimala temple;

ii. The right to exclude women of a particular age group from the temple

flows from the religious rights of the devotees under Article 25 of the

Constitution and the character of the deity as a Naishtika Brahmacharya;

iii. The custom is protected under Rule 3(b) the 1965 Rules; and

iv. That the notion of equality is enshrined in Article 25, and consequently,

Article 14 and 15 are inapplicable to the present case.

Mr K Ramamoorthy, learned Senior Counsel who assisted the Court as Amicus

Curiae made the following submissions:

i. That the exclusion of women between the age group ten and fifty does

not violate the rights of the Petitioners under Article 25; and

ii. The practice of exclusion is protected under Article 25.

Mr K Radhakrishnan,18 learned Senior Counsel submitted that the exclusion of

women between the ages ten and fifty is permissible:

i. The impugned practice constitutes an Essential Religious Practice; and

17 Appearing on behalf of the Respondent – Nair Service Society 18 Appearing on behalf of the Intervenor – Raja of Pandalam

41 PART E

ii. The prohibition of untouchability enshrined in Article 17 is inapplicable.

Mr V Giri,19 learned Senior Counsel submitted thus:

i. The exclusion of women constitutes an Essential Religious Practice and

is in accordance with character of the deity as a Naishtika

Brahmacharya.

Mr J Sai Deepak,20 learned Counsel submitted that the deity has constitutional

rights and that the practice of excluding women between the age group of ten

and fifty from worship at the Sabarimala temple is constitutional and

permissible:

i. The impugned practice is based on the character of the deity as a

Naishtika Brahmacharya;

ii. Given the form of the deity, the practice constitutes an Essential

Religious Practice;

iii. The devotees of Lord Ayyappa constitute a religious denomination under

Article 26 of the Constitution;

iv. That the presiding deity of Sabarimala Temple is a bearer of

constitutional rights under Articles 21 and 25 of the Constitution;

v. Article 17 of the Constitution has no applicability as it applies only to

untouchability based on caste and religion; and

19 Appearing on behalf of the Respondent – the Thantri 20 Appearing on behalf of K K Sabu and People for Dharma

42 PART E

vi. The impugned Rules and Act flow from the right of the denomination

under Article 26 and are constitutionally valid.

Mr V K Biju,21 learned Counsel submitted that the exclusion is constitutionally

permissible:

i. That the right of the deity as a juristic person sitting as a Naishtika

Brahmacharya cannot be questioned;

ii. That the exclusion is protected under Article 25 and 26 of the

Constitution; and

iii. The issue at hand cannot be decided without a determination of 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 a religious denomination

under Article 26 of the Constitution; and

iii. The 1965 Act does not apply to the Sabarimala temple; In any case,

the proviso to Rule 3 of the 1965 Rules protects the rights of religious

denominations.

21 Appearing on behalf of the Lord Ayyappa Devotees 22 Appearing for Intervenor – Usha Nandini

43 PART F

F Essential Religious Practices

29 The doctrine of essential religious practices was first articulated in 1954,

in Commissioner, Hindu Religious Endowments, Madras v Sri

Lakshmindra Thirtha Swamiar of Shirur Mutt23 (“Shirur Mutt”). A seven

judge Bench of this Court considered a challenge to the Madras Hindu Religious

and Charitable Endowments Act 1951, which empowered a statutory

commissioner to frame and settle a scheme if they had reason to believe that

the religious institution was mismanaging funds. The Petitioner, the

mathadhipati (superior) of the Shirur Mutt monastery, claimed that the law

interfered with his right to manage the religious affairs of the monastery, and

therefore violated Article 26(b) of the Constitution.

Justice B K Mukherjea, writing for the Court, noted that Article 26(b) allowed a

religious denomination to ‘manage its own affairs in matters of religion’ and

framed a question on the ambit of ‘matters of religion’:

“16.The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and what are not?”

(Emphasis supplied)

23 1954 SCR 1005

44 PART F

The Court cited with approval the judgment of the High Court of Australia in

Adelaide Company of Jehovah’s Witnesses Incorporated v The

Commonwealth of Australia24, which held that the Constitution protected not

only “liberty of opinion” but also “acts done in pursuance of religious belief as

part of religion.” The court noted the importance of both religious belief and the

practice that stems from it, and provided an expansive definition of ‘religion’:

“A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief...The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in article 25.” (Emphasis supplied)

Drawing a distinction between religious and secular practices, the court held

that:

“...What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day…all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).” (Emphasis supplied)

24 [1943] HCA 12

45 PART F

The Court ruled that the freedom of religion guaranteed by the Constitution

applied to freedom of both religious belief and practice. To distinguish between

the religious and the secular, the Court looked to the religion itself, and noted

that the views of adherents were crucial to the analysis of what constituted

‘essential’ aspects of religion.

30 This approach was followed in Ratilal Panachand Gandhi v State of

Bombay25 (“Ratilal”), where a Constitution Bench of this Court considered the

constitutionality of the Bombay Public Trusts Act, 1950. The Act sought to

regulate and make provisions for the administration of public and religious trusts

in the State of Bombay. The Petitioners challenged the validity of the Act on the

grounds that it interfered with their freedom of conscience, their right to freely

profess, practise and propagate their religion, and their right to manage their

religious affairs under Articles 25 and 26 of the Constitution. Justice B K

Mukherjea, speaking for a Constitution Bench of this Court, expounded upon

the meaning and scope of Article 25:

“10...Subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.”

25 1954 SCR 1055

46 PART F

Speaking with reference to Article 26, Justice Mukherjea reiterated the broad

view taken by the Court in Shirur Mutt – that religious denominations had

‘complete autonomy’ to decide which religious practices were essential for

them:

“Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines …

23…No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”

The Court, however, recognized the limited role of the Court in the determination

of such a question:

“The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one. But in cases of doubt …the court should take a common sense view and be actuated by considerations of practical necessity.” (Emphasis supplied)

31 The late 1950s witnessed two cases that were central to the evolution of

the essential practices doctrine. In Sri Venkataramana Devaru v State of

Mysore26 (“Devaru”), a Constitution Bench of this Court considered the

constitutionality of the Madras Temple Entry Authorisation Act, 1947, which

sought to reform the practice of religious exclusion of Dalits from a

denominational temple founded by the Gowda Saraswat Brahmins. The Court

26 (1958) SCR 895

47 PART F

accepted the claim that the temple was a denominational temple founded for

the benefit of the Gowda Saraswats, and proceeded to examine whether

exercising the right of a religious denomination under Article 26(b), they were

‘entitled to exclude other communities from entering into it for worship on the

ground that it was a matter of religion.’

Rather than allowing the religious denomination ‘complete autonomy in the

matter of deciding as to what rites and ceremonies are essential’, the Court

examined scripture and precedent to determine whether the exclusion of a

person from entering into a temple for worship was a matter of religion under

Hindu Ceremonial Law. Justice Venkatarama Aiyar reviewed ancient literature,

the practice of Hindus, and the role of temples in that practice, and concluded

on behalf of the Court that:

“18…Thus, under the ceremonial law pertaining to temples, who are entitled to enter them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion.” (Emphasis supplied)

This firmly established the Court’s role in determining what constituted

‘essential’ religious practices. However, the matter did not end here. The Gowda

Saraswats claimed their right to manage their own religious affairs under Article

26(b), whereas the State claimed that it had a constitutional mandate to throw

open Hindu temples ‘to all classes and sections of Hindus’ under Article

25(2)(b). Noting that the two are “apparently in conflict”, the Court considered

whether the right of a religious denomination to manage its own affairs in

48 PART F

matters of religion guaranteed under Article 26(b) was subject to, and could be

controlled by, a law protected by Article 25(2)(b), throwing open a Hindu public

temple to all classes and sections of Hindus:

“Article 26, it was contended, should therefore be construed as falling wholly outside Art. 25(2)(b), which should be limited to institutions other than denominational ones… The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25(2)(b). It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein. The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature. Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended. We must therefore hold that denominational institutions are within Art. 25(2)(b).”

Applying the doctrine of harmonious construction, the Court held that the

protection under Article 25(2)(b) vanishes in its entirety if it is held that Article

26(b) allows no exceptions or is not subject to Article 25(2)(b):

“If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk 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 of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.”

49 PART F

32 This case marked a nuance of the essential practices doctrine laid down

in Shirur Mutt, where a denomination was granted ‘complete autonomy’ to

determine which practices it considered to be essential. In Shirur Mutt, the

autonomy to decide what is essential to religion was coupled with the definition

of religion itself, which was to comprehend belief and practice. In Devaru, the

Court laid down a crucial precedent in carving out its role in examining the

essentiality of such practices. While the Court would take into consideration the

views of a religious community in determining whether a practice qualified as

essential, this would not be determinative.

Prior to Devaru, this Court used the word ‘essential’ to distinguish between

religious and secular practices in order to circumscribe the extent of state

intervention in religious matters. The shift in judicial approach took place when

‘essentially religious’ (as distinct from the secular) became conflated with

‘essential to religion.’ The Court’s enquiry into the essentiality of the practice in

question represented a shift in the test, which now enjoined upon the Court the

duty to decide which religious practices would be afforded constitutional

protection, based on the determination of what constitutes an essential religious

practice.

33 In Mohd. Hanif Quareshi v State of Bihar27 (“Qureshi”), a Constitution

Bench of this Court considered whether laws prohibiting cattle slaughter

27(1959) SCR 629

50 PART F

infringed upon the fundamental right to religion of the Petitioners, who were

members of the Muslim Qureshi Community. The Petitioners claimed that these

laws were violative of Article 25 of the Constitution as Muslims were compelled

by their religion to sacrifice cows at Bakr-Id. The Court placed reliance upon

Islamic religious texts to determine that the sacrificing of cows at Bakr-Id was

not an essential practice for Muslims:

“13...No reference is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow...What the Holy book enjoins is that people should pray unto the Lord and make sacrifice...It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty…” (Emphasis supplied)

In response to the claim that Muslims had been sacrificing cows since time

immemorial and that this practice was sanctioned by their religion and was

therefore protected by Article 25, the Court observed that:

“13…It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example...We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.”

(Emphasis supplied)

51 PART F

The Court looked to the texts and scriptures of the religious community to

conclude that the practice claimed to be essential was not supported by religious

tenets.

34 In Durgah Committee, Ajmer v Syed Hussain Ali28 (“Durgah

Committee”), a Constitution Bench of this Court considered a challenge to the

Durgah Khawaja Saheb Act, 1955, which provided for the constitution of a

Committee to manage a Muslim Durgah. The Respondents, who were

khadims29 of the Durgah, contended that the Act barred them from managing

the Durgah and receiving offerings from pilgrims, and hence infringed upon their

rights under Article 26 as Muslims belonging to the Soofi Chishtia Order. Rather

than making a reference to scriptures, Justice Gajendragadkar, writing for the

Court, considered the history of the Ajmer shrine to determine that the right to

administer the property never vested in the Respondents:

“22. Thus it would be clear that from the middle of the 16th Century to the middle of the 20th Century the administration and management of the Durgah Endowment has been true to the same pattern. The said administration has been treated as a matter with which the State is concerned and it has been left in charge of the Mutawallis who were appointed from time to time by the State and even removed when they were found to be guilty of misconduct or when it was felt that their work was unsatisfactory.”

28 (1962) 1 SCR 383 29 According to the khadims, they were descendants of two followers of the twelfth century Sufi saint Khwaja Moinuddin Chisti, whose tomb at Ajmer is known as the Durgah Khwaja Saheb. The khadims also claimed they belonged to a religious denomination known as the Chishtia Sufis.

52 PART F

Before parting with the judgment, Justice Gajendragadkar issued an important

“note of caution”:

“33…in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (Emphasis supplied)

35 This statement pushed the essential religious practices doctrine in a new

direction. The Court distinguished, for the first time, between ‘superstitious

beliefs’ and religious practice. Apart from engaging in a judicial enquiry to

determine whether a practice claimed to be essential was in fact grounded in

religious scriptures, beliefs, and tenets, the Court would ‘carefully scrutinize’ that

the practice claiming constitutional protection does not claim superstition as its

base. This was considered a necessary safeguard to ensure that superstitious

beliefs would not be afforded constitutional protection in the garb of an essential

religious practice. The Court also emphasized that purely secular matters

clothed with a religious form do not enjoy protection as an essential part of

religion.

53 PART F

36 The test was narrowed down further in Sardar Syedna Taher Saifuddin

Saheb v State of Bombay (“Saifuddin”),30 where this Court, by a 4-1 majority,

struck down the Bombay Prevention of Excommunication Act, 1949, which

prohibited the practice of excommunication within religious communities. The

Court held that the practice of excommunication within the Dawoodi Bohra faith

on religious grounds fell within ‘matters of religion’ under Article 26(b) and was

thus constitutionally protected. Justice Das Gupta, writing for the majority,

emphasized that the practice claimed to be essential must be based strictly on

religious grounds in order to claim constitutional protection:

“43…The barring of excommunication on grounds other than religious grounds say, on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of clause 2(b) of Art. 25. But barring of excommunication on religious grounds pure and simple, cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dai's power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform.” (Emphasis supplied)

The Court, therefore, enquired into the basis of excommunication: if its basis

was strictly religious, the practice would warrant constitutional protection. If,

however, the practice was based on any other ground, it would be open to the

Legislature to prohibit such a practice.

30 1962 Supp (2) SCR 496

54 PART F

37 In a strong dissent, Chief Justice Sinha concluded that the matter of

excommunication was not purely of a religious nature. Clarifying that his

analysis was confined to the civil rights of the members of the community,

Justice Sinha opined:

“11…The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.”

Justice Sinha drew a distinction between ‘matters of religion’ as protected under

Article 26(b) and activities associated with religion, though not intimately

connected with it:

“18…Now, Art. 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc. We have therefore, to draw a line of demarcation between practises consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practises in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”

Justice Sinha noticed the extreme consequences that follow excommunication:

“24. On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practises to be void has only carried out the strict injunction of Art. 17 of the Constitution, by

55 PART F

which untouchability has been abolished and its practice in any form forbidden. The Article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld.”

The decision in Saifuddin is presently pending consideration before a larger

bench.

38 Durgah Committee and Saifuddin established the role of this Court in

scrutinizing claims of practices essential to religion in order to deny

constitutional protection to those practices that were not strictly based in

religion. Ascertaining what was “essential” to a religious denomination

“according to its own tenets” required a scrutiny of its religious texts. Durgah

Committee laid down that the court would ‘carefully scrutinize’ claims to deny

constitutional protection to those claims which are religious but spring from

superstitious beliefs and are not essential to religion. Saifuddin laid down that

a practice grounded on an obnoxious social rule or practice may be within the

ambit of social reform that the State may carry out. This view infuses the

doctrine with a safeguard against claims by religious denominations that any

practice with a religious undertone would fall within the protection afforded by

Article 26(b) to them to ‘manage its own affairs in matters of religion.’

56 PART F

39 In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan (“Tilkayat”)31,

a Constitution Bench of this Court dealt with a challenge to Nathdwara Temple

Act 1959, which provides for the appointment of a board to manage the affairs

of the temple and its property. The Petitioner, the spiritual head of the temple,

claimed that the temple and its properties were private and that the State

legislature was not competent to pass the law. He contended that even if the

temple was held to be a public temple, the Act infringed Articles 25, 26(b) and

26(c) because the temple was managed by the Tilkayat as head of the Vallabh

denomination. The Court relied on firmans (edicts or administrative orders)

issued by emperors of the erstwhile Mughal Empire to hold that the temple was

public and that the Tilkayat was “merely a custodian, manager and trustee of

the temple.” Justice Gajendragadkar, writing for the Bench, underlined why the

claims of a community regarding their religious practices could not be accepted

without scrutiny:

“57.In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation...In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would therefore break down. The question will always have to be decided by the Court…”

31 (1964) 1 SCR 561

57 PART F

In this regard, the Court noted that:

“58...What is protected under Articles 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25(1) or Article 26(b) has been contravened.”

Tilkayat set forth an important qualification to the proposition laid down in

Shirur Mutt, which held that adherents themselves must be allowed to

determine what was essential to their religion. The Court observed that where

‘conflicting evidence is produced in respect of rival contentions as to competing

religious practices,’ a ‘blind application’ of the Shirur Mutt formula may not

resolve a dispute, because persons within a community may have diverse and

contrasting conceptions of what is essential to their religion. It was therefore

held to be incumbent upon the Court to determine not only whether a practice

was religious in character, but also whether it could be considered an essential

part of religion. Beginning with the Shirur Mutt formulation that what is essential

to religion would be determined by the adherents to the faith, the Court moved

towards a doctrine that what is essential “will always have to be decided by the

Court.” In fact, the Court would determine whether a statute sought to regulate

what is “essentially and absolutely secular.” What is religious and what is

secular and the boundaries of both were then to be adjudicated by the Court.

58 PART F

40 In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya32 (“Sastri

Yagnapurushadji”), a Constitution Bench of this Court was seized with the

issue of whether the Swaminarayan sect could be exempted from the

application of the Bombay Hindu Places of Public Worship (Entry Authorization)

Act, 1956, which allowed Dalits to worship in all temples to which the Act

applied. The Petitioners, who were members of the Swaminarayan sect,

contended that by virtue of being a non-Hindu creed, temples belonging to the

sect did not fall within the ambit of the Act. Justice Gajendragadkar, writing for

the Court, rejected this claim:

“55.It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.” (Emphasis supplied)

Quoting Tilak, Justice Gajendragadkar then expounded the distinctive features

of Hinduism:

“40.Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. Said Tilak: "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion.” (Emphasis supplied)

32 (1966) 3 SCR 242

59 PART F

41 In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police,

Calcutta33 (“Avadhuta I”), a three judge Bench of this Court considered

whether the police could prevent the Ananda Margis from performing the

‘tandava dance’ in public, in which adherents dance in a public procession

carrying knives, live snakes, tridents, and skulls. The Court enquired ‘whether

performance of Tandava dance is a religious rite or practice essential to the

tenets of the religious faith of the Ananda Margis.’ Justice Ranganath Misra,

writing for the Court, held that since the Ananda Margis were a recent religious

order, and the tandava dance an even more recent innovation, it could not be

considered an essential religious practice:

“14.Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis.

“Even conceding that Tandava dance has been prescribed as a religious rite for every follower of Ananda Margis it does not follow as a necessary corollary that Tandava dance to be performed in the public is a matter of religious rite. In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public.”34

42 In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v

State of Uttar Pradesh35 (“Adi Visheshwara”), a three judge Bench of this

Court dealt with a challenge to the Uttar Pradesh Sri Kashi Vishwanath Temple

Act, 1983, which entrusted the State with the management of the temple as

33 (1983) 4 SCC 522 34 Ibid, at pages 532-533 35 (1997) 4 SCC 606

60 PART F

opposed to the Pandas (priests). The priests contended that this violated their

right under Article 25(1) and Article 26(b) and (d) of the Constitution. Rejecting

that the claim and holding that the management of a temple is a secular activity,

this Court held that the Sri Vishwanath Temple is not a denominational temple

and that the Appellants are not denominational worshippers. In a view similar to

that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned against

extending constitutional protection to purely secular practices clothed with a

religious form:

“28…Sometimes, practices, religious or secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, human actions from birth to death and most of the individual actions from day-today are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model and another diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity.”36 (Emphasis supplied)

43 In N Adithayan v Travancore Devaswom Board37 (“Travancore

Devaswom Board”), a two judge Bench of this Court was seized with the issue

of whether the Travancore Devaswom Board could appoint a non-Malayala

Brahmin as priest of the Kongorpilly Neerikode Siva Temple. Justice

36 Ibid, at page 630 37 (2002) 8 SCC 106

61 PART F

Doraiswamy Raju, writing for the Court, held that there was no evidence on

record to demonstrate that only Brahmins were entitled to serve as priests.

Rejecting the claim that Shirur Mutt laid down the proposition that all practices

arising out of religion are afforded constitutional protection, the Court held:

“18…The attempted exercise by the learned Senior Counsel for the appellant to read into the decisions of this Court in Shirur Mutt's case (supra) and others something more than what it actually purports to lay down as if they lend support to assert or protect any and everything claimed as being part of the religious rituals, rites, observances and method of worship and make such claims immutable from any restriction or regulation based on the other provisions of the Constitution or the law enacted to implement such constitutional mandate, deserves only to be rejected as merely a superficial approach by purporting to deride what otherwise has to have really an overriding effect, in the scheme of rights declared and guaranteed under Part III of the Constitution of India. Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”38 (Emphasis supplied)

44 The question of the essential religious nature of the Tandava dance was

considered again in 2004, in Commissioner of Police v. Acharya

Jagdishwarananda Avadhuta39 (“Avadhuta II”). After Avadhuta I, the

religious book of the Anand Margis, the Carya-Carya, was revised to prescribe

the Anand Tandava as an essential religious practice. Laying emphasis on the

‘essential’ nature of the practice claimed, the majority, in a 2-1 split verdict, held

38 Ibid, at pages 124-125 39 (2004) 12 SCC 770

62 PART F

that the practice must be of such a nature that its absence would result in a

fundamental change in the character of that religion:

“9.Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.

There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution…Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.”40 (Emphasis supplied)

The essentiality test came to be linked to the “fundamental character” of the

religion. If the abrogation of a practice does not change the fundamental nature

of the religion, the practice itself is not essential.

Rejecting the claim of the Anand Margis, the majority held that the Ananda Margi

order was in existence (1955-66) even without the practice of the Tandava

dance. Hence, such a practice would not constitute the ‘core’ of the religion.

40 Ibid, at pages 782-783

63 PART F

Further, religious groups could not be permitted to alter their religious doctrine

to recognize certain religious practices, in order to afford them constitutional

protection.

45 In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil

Nadu41 (“Adi Saiva”), a two judge Bench of this Court considered a challenge

to a Government Order issued by the State of Tamil Nadu which permitted ‘any

qualified Hindu’ to be appointed as the Archaka of a temple. The Petitioners

challenged the Government Order on the grounds that it violated their right to

appoint Archakas from their own denomination in accordance with the Agamas.

In determining the constitutional validity of the Government Order, this Court

held that any religious belief or practice must pass constitutional muster in order

to be afforded constitutional protection:

“48.The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”42 (Emphasis supplied)

46 In Shayara Bano v Union of India43 (“Shayara Bano”), a Constitution

Bench of this Court considered whether the practice of triple talaq was an

essential practice to the Hanafi school of Sunni Muslims. Based on an

examination of Islamic jurisprudence which established that triple talaq

41 (2016) 2 SCC 725 42 Ibid, at page 755 43 (2017) 9 SCC 1

64 PART F

constitutes an irregular practice of divorce, the majority opinion, in a 3-2 split,

held that triple talaq was not an essential practice. Justice Nariman, speaking

for himself and Justice Lalit, noted that “a practice does not acquire the sanction

of religion simply because it is permitted” and applied the essential religious

practices test set out in Javed v State of Haryana44 and Avadhuta II to the

practice of triple talaq:

“54...It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”45

Justice Kurian Joseph, concurring with Justices Nariman and Lalit, held that on

an examination of the Quran and Islamic legal scholarship, the practice of triple

talaq could not be considered an essential religious practice. He opined that

“merely because a practice has continued for long, that by itself cannot make it

valid if it has been expressly declared to be impermissible.”

Chief Justice Khehar, who delivered the minority judgment, held that 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 practice of ‘talaq-e-biddat’ has been in vogue since the period

44 (2003) 8 SCC 369 45 Ibid, at page 69

65 PART F

of Umar, which is roughly more than 1400 years ago. Secondly, that ‘talaq-e-biddat’ though bad in theology, was considered as “good” in law.”

On the basis of the history and prevalence of triple talaq in practice, Justice

Khehar held that even though triple talaq “is considered as irreligious within the

religious denomination in which the practice is prevalent, yet the denomination

considers it valid in law.”

While the majority based its conclusion on an examination of the substantive

doctrines of Islam and the theological sanctity of triple talaq, the minority relied

on the widespread practice of triple talaq to determine its essentiality. The

majority and minority concurred, however, that the belief of a religious

denomination claiming a particular practice to be essential must be taken into

consideration in the determination of the essentiality of that practice.

47 In its jurisprudence on religious freedom, this Court has evolved a body

of principles which define the freedom of religion under Article 25 and Article 26

to practices ‘essential’ to the religion. The Constitution has been held to protect

not only freedom of religious belief, but acts done in pursuance of those beliefs.

While the views of a religious denomination are to be taken into consideration

in determining whether a practice is essential, those views are not determinative

of its essentiality. The Court has assumed a central role in determining what is

or is not essential to religious belief. Intrinsic to the role which the Court has

66 PART F

carved out, it has sought to distinguish between what is religious and what is a

secular practice, even if it is associated with a religious activity. Going further,

the Court has enquired into whether a practice is essential to religion.

Essentiality of the practice would, as the Court as held depend on whether the

fundamental character of a religion would be altered. if it were not observed.

Above all, there is an emphasis on constitutional legitimacy, which underscores

need to preserve the basic constitutional values associated with the dignity of

the individual. The ephemeral distinction between religion and superstition

becomes more coherent in terms of the need to preserve fundamental

constitutional values associated with human liberty.

48 In determining the essentiality of a practice, it is crucial to consider

whether the practice is prescribed to be of an obligatory nature within that

religion. If a practice is optional, it has been held that it cannot be said to be

‘essential’ to a religion. A practice claimed to be essential must be such that the

nature of the religion would be altered in the absence of that practice. If there is

a fundamental change in the character of the religion, only then can such a

practice be claimed to be an ‘essential’ part of that religion.

In Tilkayat, this Court noted that ‘whether an affair in question is an affair in

matters of religion or not, may present difficulties because sometimes practices,

religious and secular, are inextricably mixed up.’ The process of disentangling

them in order to adjudicate upon claims grounded in Article 25 and Article 26(b) 67 PART F

becomes ultimately an exercise of judicial balancing. Durgah Committee

established that in examining a claim that a practice is essential to religion, the

Court must ‘carefully scrutinize’ the claims put before it in order to ensure that

practices which have sprung from ‘superstitious beliefs’, through grounded in

religion, will not be afforded constitutional protection. Saifuddin recognized that

where a purportedly essential practice is based on an ‘obnoxious social rule or

practice’, it would be amenable to a measure of social reform.

Of crucial importance are the observations in Devaru, where the Court

harmonized the inherent tension between the individual right under Article

25(2)(b) and the denominational right under Article 26(b). Where the protection

of denominational rights would substantially reduce the right conferred by Article

25(2)(b), the latter would prevail against the former. This ensures that the

constitutional guarantee under Article 25(2)(b) is not destroyed by exclusionary

claims which detract from individual dignity. That a practice claimed to be

essential has been carried on since time immemorial or is grounded in religious

texts, does not lend to it constitutional protection unless it passes the test of

essentiality.

68 PART G

G The engagement of essential religious practices with constitutional values

49 For decades, this Court has witnessed claims resting on the essentiality

of a practice that militate against the constitutional protection of dignity and

individual freedom under the Constitution. It is the duty of the courts to ensure

that what is protected is in conformity with fundamental constitutional values

and guarantees and accords with constitutional morality. While the Constitution

is solicitous in its protection of religious freedom as well as denominational

rights, it must be understood that dignity, liberty and equality constitute the trinity

which defines the faith of the Constitution. Together, these three values

combine to define a constitutional order of priorities. Practices or beliefs which

detract from these foundational values cannot claim legitimacy. In Government

of NCT of Delhi v Union of India46, one of us (Chandrachud J), observed the

importance of constitutional morality as a governing ideal:

“Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self-renewal”. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly.”

Our Constitution places the individual at the heart of the discourse on rights. In

a constitutional order characterized by the Rule of Law, the constitutional

46 (2018) 8 SCALE 72

69 PART G

commitment to egalitarianism and the dignity of every individual enjoins upon

the Court a duty to resolve the inherent tensions between the constitutional

guarantee of religious freedom afforded to religious denominations and

constitutional guarantees of dignity and equality afforded to individuals. There

are a multiplicity of intersecting constitutional values and interests involved in

determining the essentiality of religious practices. In order to achieve a balance

between competing rights and interests, the test of essentiality is infused with

these necessary limitations.

50 Is the practice of excluding women between the ages of ten and fifty from

undertaking the pilgrimage and praying at the Sabarimala temple an essential

part of religion? The texts and tenets on which the Respondents placed reliance

do not indicate that the practice of excluding women is an essential part of

religion required or sanctioned by these religious documents. At best, these

documents indicate the celibate nature of Lord Ayyappa at the Sabarimala

temple. The connection between this and the exclusion of women is not

established on the material itself.

51 It was briefly contended that the case at hand required a determination of

fact and law and should be sent to trial. It was contended that no new material

has been placed before this Court to contradict the holding of the Kerala High

Court in Mahendran. The High Court recorded findings on the pilgrimage, the

inconsistent practice of prohibiting women between the age group of ten and

70 PART G

fifty, and the collection of individuals that offer prayer at the Sabarimala

temple. Relying on the findings of fact recorded in Mahendran and taking note

of the submissions of the Respondents herein, the question of remanding the

case to a trial in this case does not arise.

In regard to the maintainability of the present public interest litigation, this issue

stands answered by the judgment of this Court in Adi Saiva Sivachariyargal v

Government of Tamil Nadu,47 :

“12…The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be too simplistic a solution to adopt to answer the issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century-old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof.” (Emphasis supplied)

Of importance are some of the observations of the Kerala High Court in

Mahendran The High Court noted that even when old customs prevailed,

women were allowed to visit the Temple.48 It noted an incident where the

Maharaja of Travancore, accompanied by the Maharani and the Divan, had

visited the Temple in 1115 M.E. The High Court noted that the Temple has seen

the presence of women worshippers between the ages of ten and fifty for the

47 (2016) 2 SCC 725 48 Ibid, at para 7

71 PART G

first rice-feeding ceremony of their children.49 The Secretary of the Ayyappa

Seva Sangham had deposed that young women were seen in Sabarimala

during the previous ten to fifteen years.50 A former Devaswom Commissioner

admitted that the first rice-feeding ceremony of her grandchild was conducted

at the Sabarimala Temple. The High Court found that during the twenty years

preceding the decision, women irrespective of age were allowed to visit the

temple when it opened for monthly poojas,51 but were prohibited from entering

the temple only during Mandalam, Makaravilakku and Vishu seasons.52

The High Court thus noted multiple instances wherein women were allowed to

pray at the Sabarimala temple. These observations demonstrate that the

practice of excluding women from the Sabarimala temple was not uniform. This

militates against a claim that such a practice is of an obligatory nature. That

such practice has not been followed on numerous occasions, also shows that

the denial of constitutional protection to an exclusionary practice will not result

in a fundamental change in the character of the religion as required by

Avadhuta II.

52 The High Court proceeded on the basis of the ‘complete autonomy’ of the

followers in determining the essentiality of the practice 53. This followed the

dictum in Shirur Mutt, without taking note of evolution of precedent thereafter,

49 Ibid 50 Ibid, at para 32 51 Ibid, at paras 8, 10 52 Ibid, at para 43 53 Ibid, at para 22

72 PART G

which strengthened the role of the Court in the determination and put in place

essential safeguards to ensure to every individual, the constitutional protection

afforded by the trinity of dignity, liberty and equality. The approach of the High

Court is incorrect. The High Court relied completely on the testimonies of the

Thanthris without an enquiry into its basis in religious text or whether the

practice claiming constitutional protection fulfilled the other guidelines laid down

by this Court. Such an approach militates against the fundamental role of the

constitutional Court as a guardian of fundamental rights. Merely establishing a

usage54 will not afford it constitutional protection as an essential 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 excluding women from

Sabarimala does not constitute an essential religious practice. However, since

the claim in this case has a significant bearing on the dignity and fundamental

rights of women, an issue of principle must be analysed.

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 the arduous nature of the

54 Ibid, at para 37 55 Ibid, at para 7

73 PART G

journey56 which according to the Court could not be completed by women for

physiological reasons. This claim falls foul of the requirement that the practice

claiming constitutional protection must be on strictly religious grounds. Of

significant importance, is that such a claim is deeply rooted in a stereotypical

(and constitutionally flawed) notion that women are the ‘weaker’ sex and may

not undertake tasks that are ‘too arduous’ for them. This paternalistic approach

is contrary to the constitutional guarantee of equality and dignity to women.

Interpreting the Constitution in accordance with the values that infuse it requires

that the dignity of women, which is an emanation of Article 15 and founded in

Article 21, cannot be disassociated from the exercise of religious freedom.

Holding that stereotypical understandings of sex hold no legitimate claim under

our Constitution, one of us (Chandrachud J) in Navtej Singh v Union of India,57

held:

“A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate.”

56 Ibid, at paras 38, 43 57 Writ Petition (Criminal) No. 76 of 2016

74 PART G

54 The Court must lean against granting constitutional protection to a claim

which derogates from the dignity of women as equal holders of rights and

protections. In the ethos of the Constitution, it is inconceivable that age could

found a rational basis to condition the right to worship. The ages of ten to fifty

have been marked out for exclusion on the ground that women in that age group

are likely to be in the procreative age. Does the Constitution permit this as basis

to exclude women from worship? Does the fact that a woman has a

physiological feature – of being in a menstruating age – entitle anybody or a

group to subject her to exclusion from religious worship? The physiological

features of a woman have no significance to her equal entitlements under the

Constitution. All women in the age group of ten and fifty may not in any case

fall in the ‘procreative age group’. But that to my mind is again not a matter of

substance. The heart of the matter lies in the ability of the Constitution to assert

that the exclusion of women from worship is incompatible with dignity,

destructive of liberty and a denial of the equality of all human beings. These

constitutional values stand above everything else as a principle which brooks

no exceptions, even when confronted with a claim of religious belief. To exclude

women is derogatory to an equal citizenship.

55 The Respondents submitted that the deity at Sabarimala is in the form of

a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since

celibacy is the foremost requirement for all the followers, women between the

ages of ten and fifty must not be allowed in Sabarimala. There is an assumption

75 PART G

here, which cannot stand constitutional scrutiny. The assumption in such a claim

is that a deviation from the celibacy and austerity observed by the followers

would be caused by the presence of women. Such a claim cannot be sustained

as a constitutionally sustainable argument. Its effect is to impose the burden of

a man’s celibacy on a woman and construct her as a cause for deviation from

celibacy. This is then employed to deny access to spaces to which women are

equally entitled. To suggest that women cannot keep the Vratham is to

stigmatize them and stereotype them as being weak and lesser human beings.

A constitutional court such as this one, must refuse to recognize such claims.

56 Human dignity postulates an equality between persons. The equality of

all human beings entails being free from the restrictive and dehumanizing effect

of stereotypes and being equally entitled to the protection of law. Our

Constitution has willed that dignity, liberty and equality serve as a guiding light

for individuals, the state and this Court. Though our Constitution protects

religious freedom and consequent rights and practices essential to religion, this

Court will be guided by the pursuit to uphold the values of the Constitution,

based in dignity, liberty and equality. In a constitutional order of priorities, these

are values on which the edifice of the Constitution stands. They infuse our

constitutional order with a vision for the future – of a just, equal and dignified

society. Intrinsic to these values is the anti-exclusion principle. Exclusion is

destructive of dignity. To exclude a woman from the might of worship is

fundamentally at odds with constitutional values.

76 PART H

57 It was briefly argued that women between the ages of ten and fifty are not

allowed to undertake the pilgrimage or enter Sabarimala on the ground of the

‘impurity’ associated with menstruation. The stigma around menstruation has

been built up around traditional beliefs in the impurity of menstruating women.

They have no place in a constitutional order. These beliefs have been used to

shackle women, to deny them equal entitlements and subject them to the

dictates of a patriarchal order. The menstrual status of a woman cannot be a

valid constitutional basis to deny her the dignity of being and the autonomy of

personhood. The menstrual status of a woman is deeply personal and an

intrinsic part of her privacy. The Constitution must treat it as a feature on the

basis of which no exclusion can be practised and no denial can be perpetrated.

No body or group can use it as a barrier in a woman’s quest for fulfilment,

including in her finding solace in the connect with the creator.

H Religious Denominations

58 One of the major planks of the response to the petition is that Sabarimala

is a denominational temple and is entitled to the rights granted to ‘religious

denominations’ by Article 26 of the Constitution.

59 The rights conferred by Article 26 are not unqualified. Besides this, they

are distinct from the rights guaranteed by Article 25. In Devaru, this Court

elucidated on the application of such a right and held that where the

denominational rights would substantially diminish Article 25(2)(b), the former

77 PART H

must yield to the latter. However, when the ambit of Article 25(2)(b) is not

substantially affected, the rights of a “denomination” as distinct “from the rights

of the public” may be given effect to. However, such rights must be “strictly”

denominational in nature.

Over the years, criteria have emerged from judicial pronouncements of this

Court on whether a collective of individuals qualifies as a ‘religious

denomination’. In making the determination, benches 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 Maths founded by

Shri Madhavacharya, an exponent of dualist theism in Hindu religion. Justice B

K Mukherjea undertook an enquiry into the precise meaning of the expression

“religious denomination” and whether a “Math” is covered by the expression:

“15… 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 a common faith and organisation and designated by a distinctive name”.

A three fold test emerges from the above observations: (i) the existence of a

religious sect or body; (ii) a common faith shared by those who belong to the

religious sect and a common spiritual organisation; and (iii) the existence of a

distinctive name.

78 PART H

The Court held that the “spiritual fraternity” represented by followers of Shri

Madhavacharya, constitute a religious denomination:

“15.It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, — in many cases it is the name of the founder, — and has a common faith and common spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher...” (Emphasis supplied)

61 In Devaru, Justice Venkatarama Aiyyar considered whether the Gowda

Saraswath Brahmins, associated with the Sri Venkataramana Temple, can be

regarded as a religious denomination. In doing so, the Court undertook a factual

enquiry:

“14…Now, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols were installed therein. We are therefore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple, in other words, not as a mere denomination, but as a religious denomination. From the evidence of PW 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in Moolky Petah are followers of the head of the Kashi Mutt, and that it is he that performs some of the important ceremonies in the temple. Exhibit A is a document of the year 1826-27. That shows that

79 PART H

the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders. The uncontradicted evidence of PW 1 also shows that during certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded. This evidence leads irresistibly to the conclusion that the temple is a denominational one, as contended for by the appellants.” (Emphasis supplied)

This was, in other words, not just a sect associated with the community but one

associated with the foundation and maintenance of the temple. This was

coupled with a spiritual head who was responsible for the performance of

religious worship.

The Court noted that a deed of endowment proved that the temple was founded

for the benefit of the Gowda Saraswath community, and concluded that the Sri

Venkateshwara Temple qualified as a denominational temple.

“15... When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed, of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well.…On the findings of the Court below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally. On a

80 PART H

consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins…”

The dedication of the temple was for the Gowda Saraswath Brahmins

specifically. The temple was not dedicated for followers of all communities.

62 In S P Mittal v Union of India (“Mittal”)58, Justice Ranganath Misra who

delivered the opinion of the Court, held that the followers of Sri Aurobindo do

not constitute a religious denomination. The Court formulated the conditions

necessary to be fulfilled to qualify as ‘religious denomination’:

“80. The words “religious denomination” in Article 26 of the Constitution must take their colour from the word “religion” and if this be so, the expression “religious denomination” must also satisfy three conditions:

“(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation; and (3) designation by a distinctive name.”59

These tests, as we have seen, are a re-statement of the Shirur Mutt

formulation.

The Court dwelt on the organisation and activities of the Aurobindo Society and

emphasised that a collective seeking the status of a religious denomination

must be a religious institution:

58 1983 1 SCC 51 59 Ibid, at page 85

81 PART H

“120. It was further contended that a religious denomination must be professed by that body but from the very beginning the Society has eschewed the word “religion” in its constitution.

The Society professed to be a scientific research organisation to the donors and got income tax exemption on the footing that it was not a religious institution. The Society has claimed exemption from income tax under Section 80 for the donors and under Section 35 for itself on that ground. Ashram Trust was different from Auroville Ashram. The Ashram Trust also applied for income tax exemption and got it on that very ground. So also Aurobindo Society claimed exemption on the footing that it was not a religious institution and got it. They professed to the Government also that they were not a religious institution in their application for financial assistance under the Central Scheme of Assistance to voluntary Hindu organisations.60

121. On the basis of the materials placed before us viz. the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under Section 35 and Section 80 of the Income Tax Act, the repeated utterings of Sri Aurobindo and the Mother that the Society and Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion.”61

The sect was based on a shared philosophy and not on a common set of

religious beliefs or faith. Hence, the sect was held not to qualify to be a religious

denomination.

63 The above tests have been followed in other decisions. In Avadhuta I, a

three judge bench of this Court held that the Ananda Margis of West Bengal

constitute a religious denomination under Article 26, as they satisfy all the three

conditions:

60 Ibid, at page 98 61 Ibid, at pages 98-99

82 PART H

“11. Ananda Marga appears to satisfy all the three conditions viz. it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being;

they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion…”62

In Bramchari Sidheswar Shai v State of West Bengal63, a three judge Bench

of this Court adopted the tests re-stated in Mittal to hold that the followers of

Ramakrishna constitute a religious denomination:

“57… These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as his disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those conducive to their spiritual well-being as the principles of highest Vedanta which surpassed the principles of Vedanta conceived and propagated by Sankaracharya, Madhavacharya and Ramanujacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna, who are a collection of individuals, who adhere to a system of beliefs as conducive to their spiritual well-being, who have organised themselves collectively and who have an organisation of definite name as Ramakrishna Math or Ramakrishna Mission could, in our view, be regarded as a religious denomination within Hindu religion...”64 (Emphasis supplied)

In Nallor Marthandam Vellalar v Commissioner, Hindu Religious and

Charitable Endowments65 a two judge Bench held that the Vellala community

62 Ibid, at page 530 63 (1995) 4 SCC 646 64 Ibid, at pages 648-649 65 (2003) 10 SCC 712

83 PART H

in Tamil Nadu does not constitute a religious denomination. Justice Shivraj Patil

emphasised that the common faith of the community must find its basis in

“religion”:

“7. It is settled position in law, having regard to the various decisions of this Court that the words “religious denomination” take their colour from the word “religion”. The expression “religious denomination” must satisfy three requirements: (1) it must be a collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being i.e. a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status…”66 (Emphasis supplied)

Though formulated as a three-pronged test, a fourth element emerges from the

narrative. That is the position of a common set of religious tenets. Religion is

what binds a religious denomination. Caste, community and social status do not

bring into being a religious denomination.

64 These precedents indicate the ingredients which must be present for a

set of individuals to be regarded as a religious denomination. These are a

common faith, a common organisation and a distinctive name brought together

under the rubric of religion. A common thread which runs through them is the

requirement of a religious identity, which is fundamental to the character of a

religious denomination.

66 Ibid, at page 716

84 PART H

H. 1 Do the devotees of Lord Ayyappa constitute a religious denomination?

65 Dr Abhishek Manu Singhvi, learned Senior Counsel submitted that

devotees who undertake a forty one day penance form a denomination or

section called “Ayyappaswamis” and the common organisation is the

organisation of ‘Ayyappas’. He submits that the ‘Ayyappas’ believe in a common

faith and hold the belief that if they undertake the penance of forty-one days in

the manner prescribed, by maintaining themselves pure and unpolluted, they

would be one with Lord Ayyappa. It has been submitted by Mr K Parasaran,

learned Senior Counsel that the devotees of Lord Ayyappa hold a sacred

religious belief that the deity at Sabarimala is celibate - a Naishtika Brahmachari

- who practises strict penance and the strictest form of celibacy, in which he

cannot 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 fifty would be included as

members of the denomination. However, it is unclear as to how they may be

considered as members of a denomination that seeks their exclusion. The

judgements of this Court lay down that the collective of individuals must have a

common faith and set of beliefs that aid their spiritual well-being. It is implausible

that women should leave the membership of a common faith, which is meant to

be conducive to their spiritual growth for a period of forty years and resume

85 PART H