INDIAN YOUNG LAWYERS ASSN. versus STATE OF KERALA 561 INDIAN YOUNG LAWYERS ASSOCIATION & ORS.V. THE STATE OF KERALA & ORS.
[2018] 9 S.C.R. 561, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
irrespective of its denominational character, it cannot prevent the entry
of any devotee aspiring to enter and worship.
72. After placing reliance on the decision of this Court in K.S.
Puttaswamy (supra), the Amicus has submitted that the 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
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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 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 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
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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).
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 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
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the exclusionary practice as just a usage and not a religious custom or
essential religious practice.
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).”
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
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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 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.
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
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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.
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 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
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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 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.”
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After so referring, the Court opined thus:
“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.”
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
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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
“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 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.
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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 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 the act of practice is concerned,
primarily, with religious worship, rituals and observations as held in Rev.
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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 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
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or immemorial usage need be asserted or proved…..”
And again:
“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, 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
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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 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.”
108. That apart, this Court, in Government of NCT of Delhi v.
Union of India and others29, observed thus:
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“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.”
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”
 30 (2018) 10 SCALE 386
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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 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 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
 31 (2003) 6 SCC 611
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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 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 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
 32 (1904) AC 515
 33 AIR 1958 SC 731
 34 AIR 1995 SC 464
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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 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:
 35 AIR 1961 SC 1402
 36 (1983) 4 SCC 522
 37 (2002) 8 SCC 106
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“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 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
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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 non-essential
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 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.
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.
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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 conducted poojas in every month
for five days for the first rice feeding ceremony of their children. The
Devaswom Board also took a stand before the High Court that restriction
of entry for women was only during Mandalam, Makaeavilakku and
Vishnu days. The same has also been pointed out by learned Senior
Counsel, Ms. Indira Jaising, 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
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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. “
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 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,
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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 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 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
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(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 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.”
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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 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 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
38 (2012) 7 SCC 683
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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 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 rule-making 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
implementation of the statute, does not confer power on any authority to
 39  AIR 1988 SC 876
 40 AIR 2000 SC 1069
 41 (2009) 15 SCC 570
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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 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
 42 (2006) 4 SCC 517
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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 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 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
[DIPAK MISRA, CJI]
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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 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 practice 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 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.
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(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
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.
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 that arises is whether the complete
exclusion of women between the ages of 10 and 50 from entry, and
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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 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
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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.
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. In chronological sequence, next comes the celebrated Shirur
Math case, viz., The Commissioner, Hindu Religious Endowments,
[R. F. NARIMAN, J.]
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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 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)
 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
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With regard to whether a Math could come within the expression
“religious denomination” under Article 26, this Court laid down the
following tests:
“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)
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.
[R. F. NARIMAN, J.]
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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 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
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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
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
[R. F. NARIMAN, J.]
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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 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
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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 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
[R. F. NARIMAN, J.]
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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:
 “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
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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. 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 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
[R. F. NARIMAN, J.]
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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 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.
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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
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
[R. F. NARIMAN, J.]
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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)
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:
“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
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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)
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
[R. F. NARIMAN, J.]
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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)
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)
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
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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)
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
[R. F. NARIMAN, J.]
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body like a religious denomination or any section thereof, dealt
with by 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 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
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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 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)
[R. F. NARIMAN, J.]
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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—
(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 the
Dawoodi Bohra community under Art. 26(b) of the Constitution.”
                                                                      (at pp. 536-537)
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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 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”
[R. F. NARIMAN, J.]
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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).”
                                                                       (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 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
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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 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
[R. F. NARIMAN, J.]
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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.
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
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so, a claim made by a citizen that a purely secular matter amounts
to a religious 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 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
[R. F. NARIMAN, J.]
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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 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 conscience but to exhibit his belief and
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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 ‘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:
[R. F. NARIMAN, J.]
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“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 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 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.
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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 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
[R. F. NARIMAN, J.]
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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 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 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
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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 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
[R. F. NARIMAN, J.]
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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 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
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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 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 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.
[R. F. NARIMAN, J.]
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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 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 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
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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 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.
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
[R. F. NARIMAN, J.]
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religion cannot be considered as essential parts of religion. Matters that
are essential to religious faith and/or belief are to be judged on evidence
before a court of law by what the community professing the religion
itself has to say as to the essentiality of such belief. One test that has
been evolved would be to remove the particular belief stated to be an
essential belief from the religion – would the religion remain the same or
would it be altered? Equally, if different groups of a religious community
speak with different voices on the essentiality aspect presented before
the Court, the Court is then to decide as to whether such matter is or is
not essential. Religious activities may also be mixed up with secular
activities, in which case the dominant nature of the activity test is to be
applied. The Court should take a common-sense view and be actuated
by considerations of practical necessity.
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 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
 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.
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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 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.”
 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.
[R. F. NARIMAN, J.]
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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 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
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(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?”
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 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
[R. F. NARIMAN, J.]
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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.”
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 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
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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:
“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 in
religious activity. Thus, in the Old Testament, in Chapter 15, Verse 19 of
the book of Leviticus, it is stated:
[R. F. NARIMAN, J.]
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“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 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,
 4 Leviticus 15:19 (King James Version).
 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).
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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 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?
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.
 7 Id.
 8 THE QUR’AN – WITH ANNOTATED INTERPRETATION IN MODERN ENGLISH, 2:222 (Translation
by Ali Ünal, Tughra Books USA, 2015).
[R. F. NARIMAN, J.]
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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 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
 9 Mark 5:25-34 (King James Version).
 10 THE BUNDAHISHN – “CREATION” OR KNOWLEDGE FROM THE ZAND (Translation by E. W.
West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press,
1880, 1892, and 1897).
 11 THE SELECTIONS OF ZADSPRAM (VIZIDAGIHA I ZADSPRAM) (Joseph H. Peterson Ed.,
1995) (Translation by E. W. West, from Sacred Books of the East, vol. 5, 37, and 46,
Oxford University Press, 1880, 1892, and 1897).
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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
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 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
 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].
 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).
[R. F. NARIMAN, J.]
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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 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.
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;
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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 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 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.
[R. F. NARIMAN, J.]
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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”
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.”
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
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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).
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.
DR DHANANJAYA Y CHANDRACHUD, J.
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
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E Submissions
F Essential Religious Practices
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
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 seeks to promote among all citizens
fraternity which would assure the dignity of the individual.
 1 The Constitution (Forty-second) Amendment, 1976
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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 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 than 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
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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 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 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
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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.
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
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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:  first, the entitlement of all persons without exception, second,
the recognition of an equal entitlement; and third, the recognition both
of the freedom of conscience and the right freely to profess, practice
and 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.
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 has segregated matters
of religious practice from secular activities, including those of an
economic, financial or political nature.  The expression “other secular