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
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(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.”
Section 4(1) empowers the trustee or a person in charge of a
place of public worship to make regulations for maintenance of order
and decorum and for observance of rites and ceremonies in places of
public worship. The regulation making power is not absolute. The proviso
to Section 4(1) prohibits discrimination against any Hindu in any manner
whatsoever on the ground that he or she belongs to a particular section
or class.
89. When the rule-making power is conferred by legislation on a
delegate, the latter cannot make a rule contrary to the provisions of the
parent legislation. The rule-making authority does not have the power to
make a rule beyond the scope of the enabling law or inconsistent with
the law.122 Whether delegated legislation is in excess of the power
conferred on the delegate is determined with reference to the specific
provisions of the statute conferring the power
and the object of the Act
as gathered from its provisions.123
90. Hindu women constitute a ‘section or class’ of Hindus under
clauses b and c of Section 2 of the 1965 Act.  The proviso to Section
4(1) forbids any regulation which discriminates against any Hindu on the
ground of belonging to a particular section or class. Above all, the mandate
of Section 3 is that if a place of public worship is open to Hindus generally
or to any section or class of Hindus, it shall be open to all sections or
classes of Hindus. The Sabarimala temple is open to Hindus generally
and in any case to a section or class of Hindus. Hence it has to be open
 122 Additional District Magistrate v Siri Ram, (2000) 5 SCC 451
 123 Maharashtra State Board of Secondary and Higher Education v Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27
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to all sections or classes of Hindus, including Hindu women. Rule 3(b)
gives precedence to customs and usages which allow the exclusion of
women “at such time during which they are not… allowed to enter a
place of public worship”. In laying down such a prescription, Rule 3(b)
directly offends the right of temple entry established by Section 3. Section
3 overrides any custom or usage to the contrary. But Rule 3
acknowledges, recognises and enforces a custom or usage to exclude
women. This is plainly ultra vires.
The object of the Act is to enable the entry of all sections and
classes of Hindus into temples dedicated to, or for the benefit of or used
by any section or class of Hindus. The Act recognizes the rights of all
sections and classes of Hindus to enter places of public worship and
their right to offer prayers. The law was enacted to remedy centuries of
discrimination and is an emanation of Article 25(2)(b) of the Constitution.
The broad and liberal object of the Act cannot be shackled by the exclusion
of women. Rule 3(b) is ultra vires.
K The ghost of Narasu124
91. The Respondents have urged that the exclusion of women
from the Sabarimala temple constitutes a custom, independent of the
Act and the 1965 Rules.125 It was contended that this exclusion is part
of ‘institutional worship’ and flows from the character of the deity as a
Naishtika Brahmachari. During the proceedings, a submission was
addressed on
the ambit of Article 13 and the definition of ‘laws in force’
in clause 1 of that Article.
Article 13 of the Constitution reads thus:
“13. (1) All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
 124 Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is stalking the Supreme Court of
India’, Lawyers Collective, 28 May, 2018
 125 Written Submissions of Senior Advocate Shri K. Parasaran, at paras 4, 6, 10, 15, 29,
39, 41; Additional Affidavit of Travancore Devaswom Board at para 1
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;
(b) “laws in force” includes laws passed or made by a Legislature
or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
92. A Division Bench of the Bombay High Court in The State of
Bombay v Narasu Appa Mali (“Narasu”),126 considered the ambit of
Article 13, particularly in the context of custom, usage and personal law.
The constitutional validity of the Bombay Prevention of Hindu Bigamous
Marriages Act 1946 was considered. It was contended that a provision
of personal law which permits polygamy violates the guarantee of non-
discrimination under Article 15, and that such a practice had become
void under Article 13(1) after the Constitution came into force. The
Bombay High Court considered the question of “whether in the expression
‘all laws in force’ appearing in Article 13(1) ‘personal laws’ were
included”. Chief Justice Chagla opined that ‘custom or usage’ would be
included in the definition of ‘laws in force’ in
Article 13(1). The learned
Chief Justice held:
“15…The Solicitor General’s contention is that this definition of
“law” only applies to Article 13(2) and not to Article 13(1).
According to him it is only the definition of “laws in force” that
applies to Article 13(1). That contention is difficult to accept
because custom or usage would have no meaning if it were applied
to the expression “law” in Article 13(2). The State cannot make
any custom or usage. Therefore, that part of the definition can
only apply to the expression “laws” in Article 13(1). Therefore, it
is clear that if there is any custom or usage which is in force in
India, which is inconsistent with the fundamental rights, that custom
or usage is void.”
 126 AIR 1952 Bom 84; In the proceedings before the Sessions Judge of South Satara, the
accused was acquitted and the Bombay Prevention of Hindu Bigamous Marriages
Act 1946 was held invalid. The cases arise from these proceedings
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Hence, the validity of a custom or usage could be tested for its
conformity with Part III. However, the learned Chief Justice rejected
the contention that personal law is ‘custom or usage’:
“15…Custom or usage is deviation from personal law and not
personal law itself. The law recognises certain institutions which
are not in accordance with religious texts or are even opposed to
them because they have been sanctified by custom or usage, but
the difference between personal law and custom or usage is clear
and unambiguous.”
Thus, Justice Chagla concluded that “personal law is not included
in the expression “laws in force” used in Article 13(1).”
93. Justice Gajendragadkar (as the learned Judge then was)
differed with the Chief Justice’s view that custom or usage falls within
the ambit of Article 13(1). According to Justice Gajendragadkar, ‘custom
or usage’ does not fall within the expression ‘laws in force’ in Article
13(1):
“26…If custom or usage having the force of law was really
included in the expression “laws in force,” I am unable to see
why it was necessary to provide for the abolition of untouchability
expressly and specifically by Article 17. This article abolishes
untouchability and forbids its practice in any form. It also lays
down that the enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance with
law. Untouchability as it was practised amongst the
Hindus owed
its origin to custom and usage, and there can be no doubt whatever
that in theory and in practice it discriminated against a large section
of Hindus only on the ground of birth. If untouchability thus clearly
offended against the provisions of Article 15(1) and if it was
included in the expression “laws in force”, it would have been
void under Article 13(1). In that view it would have been wholly
unnecessary to provide for its abolition by Article 17. That is why
I find it difficult to accept the argument that custom or usage
having the force of law should be deemed to be included in the
expression “laws in force.””
The learned Judge opined that the practice of untouchability owed
its origins to custom and usage. If it was intended to include ‘custom or
usage’ in the definition of ‘laws in force’ in Article 13(3)(b), the custom
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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of untouchability would offend the non-discrimination guarantee under
Article 15 and be void under Article 13(1). The learned Judge concluded
that this renders Article 17 obsolete. The learned Judge concluded that it
was thus not intended to include ‘custom or usage’ within the ambit of
‘laws in force’ in Article 13(1) read with Article 13(3)(b).
Justice Gajendragadkar held that “even if this view is wrong, it
does not follow that personal laws are included in the expression “laws
in force””:
“26…It seems to me impossible to hold that either the Hindu or
the Mahomedan law is based on custom or usage having the force
of law.”
The learned Judge read in a statutory requirement for ‘laws in
force’ under Article 13(1):
“23…There can be no doubt that the personal laws are in force in
a general sense; they are in fact administered by the Courts in
India in matters falling within their purview. But the expression
“laws in force” is, in my opinion, used in Article 13(1) not in that
general sense. This expression refers to what may compendiously
be described as statutory laws. There is no doubt that laws which
are included in this expression must have been passed or made by
a Legislature or other competent authority, and unless this test is
satisfied it would not be legitimate to include in this expression the
personal laws merely on the ground that they are administered by
Courts in India.”
The learned Judges differed on
whether ‘laws in force’ in Article
13(1) read with Article 13(3)(b) includes ‘custom or usages’. The
reasoning of the High Court in recording this conclusion merits a closer
look.
94. In A K Gopalan v State of Madras,127 a seven judge Bench
dealt with the constitutionality of the Preventive Detention Act 1950.
The majority upheld the Act on a disjunctive reading of the Articles in
Part III of the Constitution. In his celebrated dissent, Justice Fazl Ali,
pointed out that the scheme of Part III of the Constitution suggested the
existence of a degree of overlap between Articles 19, 21, and 22. The
dissent adopted the view that the fundamental rights are not isolated and
separate but protect a common thread of liberty and freedom:
 127 1950 SCR 88
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“58.To my mind, the scheme of the Chapter dealing with
the fundamental rights does not contemplate what is
attributed to it, namely, that each Article is a code by itself
and is independent of the others. In my opinion, it cannot
be said that Articles 19, 20, 21 and 22 do not to some extent
overlap each other. The case of a person who is convicted of
an offence will come under Articles 20 and 21 and also under
Article 22 so far as his arrest and detention in custody before trial
are concerned. Preventive detention, which is dealt with in Article
22, also amounts to deprivation of personal liberty which is referred
to in Article 21, and is a violation of the right of freedom of
movement dealt with in Article 19(1)(d)...”
   (Emphasis supplied)
The view adopted in Justice Fazl Ali’s dissent was endorsed in
Rustom Cavasjee Cooper v Union of India.128 An eleven judge Bench
dealt with the question whether the Banking Companies (Acquisition
and Transfer of Undertakings) Ordinance, 1969, and the Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1969
impaired the Petitioner’s rights under Articles 14, 19 and 31 of the
Constitution. Holding the Act to be unconstitutional, Justice J C Shah
held:
“52…The enunciation of rights either express or by implication
does not follow a uniform pattern. But one thread runs through
them: they seek to protect the rights of the individual or groups of
individuals
against infringement of those rights within specific limits.
Part III of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection
of those rights in their allotted fields: they do not attempt to enunciate
distinct rights.”129
Similarly, in Maneka,a seven judge Bench was faced with a
constitutional challenge to Section 10(3)(c) of the Passports Act 1967.
Striking the section down as violating Article 14 of the Constitution, Justice
P N Bhagwati held:
“5…It is said that the freedom to move freely is carved out of
personal liberty and, therefore, the expression ‘personal liberty’ in
Article 21 excludes that attribute. In our view, this is not a
 128 (1970) 1 SCC 248
 129 Ibid, at page 289
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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correct approach. Both are independent fundamental rights,
though there is overlapping. There is no question of one
being carved out of another. The fundamental right of life and
personal liberty has many attributes and some of them are found
in Article 19. If a person’s fundamental right under Article 21 is
infringed, the State can rely upon a law to sustain the action, but
that cannot be a complete answer unless the said law satisfies the
test laid down in Article 19(2) so far as the attributes covered by
Article 19(1) are concerned.”130  (Emphasis supplied)
In the Special Courts Bill Reference,131 a seven judge Bench
of this Court, considered a reference under Article 143(1) on the question
whether the Special Courts Bill, 1978 or any of its provisions, if enacted,
would be constitutionally invalid. Justice Y V Chandrachud (writing for
himself, Justice P N Bhagwati, Justice R S Sarkaria, and Justice Murtaza
Fazl Ali) held that an attempt must be made to “to harmonize the various
provisions of the Constitution and not to treat any part of it as otiose or
superfluous.” The learned Judge held:
“49…Some amount of repetitiveness or overlapping is inevitable
in a Constitution like ours which, unlike the American Constitution,
is drawn elaborately and runs into minute details. There is,
therefore, all the greater reason why, while construing our
Constitution, care must be taken to see that powers conferred by
its
different provisions are permitted their full play and any one
provision is not, by construction, treated as nullifying the existence
and effect of another.”132
In Puttaswamy, a unanimous verdict by a nine judge Bench
declared privacy to be constitutionally protected, as a facet of liberty,
dignity and individual autonomy. The Court held that privacy traces itself
to the guarantee of life and personal liberty in Article 21 of the Constitution
as well as to other facets of freedom and dignity recognized and
guaranteed by the fundamental rights contained in Part III. The judgment
of four judges held thus:
“259…The coalescence of Articles 14, 19 and 21 has brought
into being a jurisprudence which recognises the inter-relationship
 130 Ibid, at page 279
 131 (1979) 1 SCC 380
 132 Ibid, at page 413
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between rights. That is how the requirements of fairness and non-
discrimination animate both the substantive and procedural aspects
of Article 21…133
260…At a substantive level, the constitutional values underlying
each Article in the Chapter on fundamental rights animate the
meaning of the others. This development of the law has followed
a natural evolution. The basis of this development after all is that
every aspect of the diverse guarantees of fundamental rights deals
with human beings. Every element together with others contributes
in the composition of the human personality. In the very nature of
things, no element can be read in a manner disjunctive from the
composite whole.”134
Responding to the reasoning employed in Narasu, A M
Bhattacharjee in his work ‘Matrimonial Laws and the Constitution’,135
writes:
“…the provisions of Article 15(3) may also appear to be
unnecessary to the extent that it refers to “children”. Article 15(1)
prohibiting discrimination on the ground of religion, race, caste,
sex or place of birth does not prohibit any differential treatment
on the ground of age. And, therefore, if age is thus not a prohibited
basis for differentiation, it was not necessary to provide any
express saving clause in Article 15(3) to the effect that “nothing
in this Article shall prevent the State from making any special
provisions for children,” because nothing in Article 15(1) or Article
15(2) would
forbid such special provision…There, the mere fact
that some matter has been specifically dealt with by one or more
Articles in Part III or anywhere else, would not, by itself, warrant
the conclusion that the same has not been or cannot be covered
by or included or dealt with again in any other Article or Articles
in Part III or elsewhere.”
95. The rights guaranteed under Part III of the Constitution have
the common thread of individual dignity running through them. There is
a degree of overlap in the Articles of the Constitution which recognize
fundamental human freedoms and they must be construed in the widest
 133 Ibid, at page 477
 134 Ibid, at page 478
 135 A M Bhattacharjee, Matrimonial Laws and the Constitution, Eastern Law House
(1996) at page 32
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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sense possible. To say then that the inclusion of an Article in the
Constitution restricts the wide ambit of the rights guaranteed, cannot be
sustained. Article 17 was introduced by the framers to incorporate a
specific provision in regard to untouchability. The introduction of Article
17 reflects the transformative role and vision of the Constitution. It brings
focus upon centuries of discrimination in the social structure and posits
the role of the Constitution to bring justice to the oppressed and
marginalized. The penumbra of a particular article in Part III which
deals with a specific facet of freedom may exist elsewhere in Part III.
That is because all freedoms share an inseparable connect. They exist
together and it is in their co-existence that the vision of dignity, liberty
and equality is realized. As noted in Puttaswamy, “the Constituent
Assembly thought it fit that some aspects of liberty require a more
emphatic declaration so as to restrict the authority of the State to abridge
or curtail them”. The rationale adopted by Justice Gajendragadkar in
Narasu for excluding custom and usage from ‘laws in force’ under
Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally
and from the perspective of the precedent of this Court.
96. Both Judges in Narasu relied on the phraseology of Section
112 of the Government of India Act 1915 which enjoined the High Courts
in Calcutta, Madras, and Bombay to
decide certain matters in the exercise
of their original jurisdiction in accordance with the personal law or custom
of the parties to the suit, and of the defendant, where the plaintiff and
defendant are subject to different personal laws or custom:
“112. The High Courts at Calcutta, Madras and Bombay, in the
exercise of their original jurisdiction in suits against inhabitants of
Calcutta, Madras or Bombay, as the case may be, shall, in matters
of inheritance and succession to lands, rents and goods, and in
matters of contract and dealing between party and party, when
both parties are subject to the same personal law or custom
having the force of law, decide according to that personal law
or custom, and when the parties are subject to different personal
laws or custom having the force of law, decide according to
the law or custom to which the defendant is subject.”
(Emphasis supplied)
Relying on the disjunctive use of ‘personal law’ and ‘custom having
the force of law’ (separated by the use of the word ‘or’), Chief Justice
Chagla opined that despite the legislative precedent of the 1915 Act, the
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Constituent Assembly deliberately omitted a reference to ‘personal law’
in Article 13. Chief Justice Chagla held that this “is a very clear pointer
to the intention of the Constitution making body to exclude personal law
from the purview of Article 13.”
The Constituent Assembly also had a legislative precedent of the
Government of India Act 1935, from which several provisions of the
Constitution are designed. Section 292 of that Act, which corresponds
broadly to Article 372(1) of the Constitution reads thus:
“292. Notwithstanding the repeal by this Act of the Government
of India Act, but subject to the other provisions of this Act, all the
law in force in British India immediately before the
commencement of Part III of this Act shall continue in force in
British India until altered or repealed or amended by a competent
Legislature or other competent authority.”
(Emphasis supplied)
Section 292 of the Act saved ‘all the law in force’ in British India
immediately before the commencement of Part III of that Act. The
expression “law in force” in that Section was interpreted by the Federal
Court in TheUnited Provinces v Mst.Atiqa Begum.136 The question
before the Court was whether the legislature of the United Provinces
was competent to enact the Regularization of Remissions Act 1938.
While construing Section 292 of the Government of India Act 1935 and
adverting to the powers of the Provincial Legislature and the
Central
Legislature, Justice Suleman held:
“Even though we are not concerned with the wisdom of the
Legislature, one cannot help saying that there appears to be no
adequate reason why the power to give retrospective effect to a
new legislation should be curtailed, limited or minimized, particularly
when S. 292 applies not only to statutory enactments then in force,
but to all laws, including even personal laws, customary laws,
and common laws.”137
(Emphasis supplied)
The definitional terms ‘law’ and ‘laws in force’ in Article 13(3)(a)
and 13(3)(b) have an inclusive definition. It is a settled position of statutory
interpretation, that use of the word ‘includes’ enlarges the meaning of
 136 AIR 1941 FC 16
 137 Ibid, at page 31
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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the words or phrases used.138 In his seminal work, ‘Principles of Statutory
Interpretation’, Justice G P Singh writes that: “where the word defined
is declared to ‘include’ such and such, the definition is prima facie
extensive.”139
97. In Sant Ram v Labh Singh140, a Constitution Bench of this
Court dealt with whether ‘after coming into operation of the Constitution,
the right of pre-emption is contrary to the provisions of Art. 19(1)(f)
read with Art. 13 of the Constitution’. It was contended that the terms
‘law’ and ‘laws in force’ were defined separately and ‘custom or usage’
in the definition of ‘law’ cannot be included in the definition of ‘laws in
force’. Rejecting this contention, the Court relied on the expansive
meaning imported by the use of ‘includes’ in the definition clauses:
“4…The question is whether by defining the composite phrase
“laws in force” the intention is to exclude the first definition. The
definition of the phrase “laws in force” is an inclusive definition
and is intended to include laws passed or made by a Legislature
or other competent authority before the commencement of the
Constitution irrespective of the fact that the law or any part thereof
was not in operation in particular areas or at all. In other words,
laws, which were not in operation, though on the statute book,
were included in the phrase “laws in force”. But the second
definition does not in any way restrict the ambit of the
word “law”
in the first clause as extended by the definition of that word. It
merely seeks to amplify it by including something which, but for
the second definition, would not be included by the first
definition…Custom and usage having in the territory of India the
force of the law must be held to be contemplated by the expression
“all laws in force.”
The use of the term ‘includes’ in the definition of the expression
‘law’ and ‘laws in force’ thus imports a wide meaning to both. Practices
having the force of law in the territory of India are comprehended within
“laws in force.” Prior to the adoption of Article 13 in the present form,
 138 Ardeshir H Bhiwandiwala v State of Bombay (1961) 3 SCR 592; CIT v Taj Mahal
Hotel, Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC
202; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons
(1991) 3 SCC 617
 139 Justice G P Singh, Principles of Statutory Interpretation, Lexis Nexis (2016) at page
198
 140 (1964) 7 SCR 756
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draft Article 8 included only a definition of ‘law’.141 In October 1948,
the Drafting Committee brought in the definition of ‘laws in force’. The
reason for proposing this amendment emerges from the note142 of the
Drafting Committee:
“The expression “laws in force” has been used in clause (1) of 8,
but it is not clear if a law which has been passed by the Legislature
but which is not in operation either at all or in particular areas
would be treated as a law in force so as to attract the operation of
clause (1) of this article. It is accordingly suggested that a definition
of “law in force” on the lines of Explanation I to article 307 should
be inserted in clause (3) of this article.”
The reason for a separate definition for ‘laws in force’ is crucial.
The definition of ‘laws in force’ was inserted to ensure that laws passed
by the legislature, but not in operation at all or in particular areas would
attract the operation of Article 13(1). Justice Gajendragadkar, however,
held that ‘laws in force’ in Article 13(1) is a compendious expression for
statutory laws. In doing so, the learned Judge overlooked the wide ambit
that was to be attributed to the term ‘laws in force’, by reason of the
inclusive definition. The decision of the Constitution Bench in Sant Ram
emphasizes precisely this facet. Hence, the view of Justice
Gajendragadkar as a judge of the Bombay High Court in Narasu cannot
be held to be correct.
98. Recently, in Shayara Bano, a Constitution Bench considered
whether talaq – ul – biddat or ‘triple talaq’, which authorised a Muslim
man to divorce his wife by pronouncing the word “talaq” thrice, was
 141 Shiva Rao, The Framing of India’s Constitution, Vol III, at pages 520, 521. Draft
Article 8 reads:
“8(1) All laws in force immediately before the commencement of this
Constitution in the territory of India, in so far as they are inconsistent with the provisions
of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void:
*Provided that nothing in this clause shall prevent the State from making any
law for the removal of any inequality, disparity, disadvantage or discrimination arising
out of any existing law.
(3) In this article, the expression “law” includes any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having the force of law in the territory
of India or any part thereof.”
 142 Shiva Rao, The Framing of India’s Constitution, Vol IV, at pages 26, 27
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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legally invalid. In a 3-2 verdict, the majority ruled that triple talaq is not
legally valid. Justice Rohinton Fali Nariman (writing for himself and
Justice Lalit) held that the Muslim Personal Law (Shariat) Application
Act, 1937 codified the practice of Triple Talaq. The learned Judge
proceeded to examine whether this violated the Constitution:
“47.It is, therefore, clear that all forms of Talaq recognized and
enforced by Muslim personal law are recognized and enforced
by the 1937 Act. This would necessarily include Triple Talaq when
it comes to the Muslim personal law applicable to Sunnis in
India…143
48.As we have concluded that the 1937 Act is a law made by the
legislature before the Constitution came into force, it would fall
squarely within the expression “laws in force” in Article 13(3)(b)
and would be hit by Article 13(1) if found to be inconsistent with
the provisions of Part III of the Constitution, to the extent of such
inconsistency.”144
Having concluded that the 1937 Act codified the practice of triple
talaq and that the legislation would consequently fall within the ambit of
‘laws in force’ in Article 13(1) of the Constitution, it was held that it was
“unnecessary…to decide whether the judgment in Narasu Appa (supra)
is good law.”145 Justice Nariman, however, doubted the correctness of
Narasu in the following observation:
“However, in a suitable case, it may be necessary to have a re-
look at this
judgment in that the definition of “law and “laws in
force” are both inclusive definitions, and that at least one part of
the judgment of P.B. Gajendragadkar, J., (para 26) in which the
learned Judge opines that the expression “law” cannot be read
into the expression “laws in force” in Article 13(3) is itself no
longer good law.”
99. Custom, usages and personal law have a significant impact on
the civil status of individuals. Those activities that are inherently connected
with the civil status of individuals cannot be granted constitutional immunity
merely because they may have some associational features which have
a religious nature. To immunize them from constitutional scrutiny, is to
deny the primacy of the Constitution.
 143 Ibid, at page 65
 144 Ibid, at page 65
 145 Ibid, at para 51
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Our Constitution marks a vision of social transformation. It marks
a break from the past – one characterized by a deeply divided society
resting on social prejudices, stereotypes, subordination and discrimination
destructive of the dignity of the individual. It speaks to the future of a
vision which is truly emancipatory in nature. In the context of the
transformative vision of the South African Constitution, it has been
observed that such a vision would:
“require a complete reconstruction of the state and society,
including a redistribution of power and resources along egalitarian
lines. The challenge of achieving equality within this transformation
project involves the eradication of systemic forms of domination
and material disadvantage based on race, gender, class and other
grounds of inequality. It also entails the development of
opportunities which allow people to realise their full human potential
within positive social relationships.”146
100. The Indian Constitution is marked by a transformative vision.
Its transformative potential lies in recognizing its supremacy over all
bodies of law and practices that claim the continuation of a past which
militates against its vision of a just society. At the heart of transformative
constitutionalism, is a recognition of change. What transformation in social
relations did the Constitution seek to achieve? What vision of society
does the Constitution envisage? The
answer to these questions lies in
the recognition of the individual as the basic unit of the Constitution. This
view demands that existing structures and laws be viewed from the
prism of individual dignity.
Did the Constitution intend to exclude any practice from its
scrutiny? Did it intend that practices that speak against its vision of dignity,
equality and liberty of the individual be granted immunity from scrutiny?
Was it intended that practices that detract from the transformative vision
of the Constitution be granted supremacy over it? To my mind, the answer
to all these, is in the negative.
The individual, as the basic unit, is at the heart of the Constitution.
All rights and guarantees of the Constitution are operationalized and are
aimed towards the self-realization of the individual. This makes the anti-
exclusion principle firmly rooted in the transformative vision of the
Constitution, and at the heart of judicial enquiry. Irrespective of the
 146 Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation:
Difficulties in the Development of an Indigenous Jurisprudence of Equality, Vol. 14,
South African Journal of Human Rights (1988), at page 249
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source from which a practice claims legitimacy, this principle enjoins
the Court to deny protection to practices that detract from the
constitutional vision of an equal citizenship.
101. The decision in Narasu, in restricting the definition of the
term ‘laws in force’ detracts from the transformative vision of the
Constitution. Carving out ‘custom or usage’ from constitutional scrutiny,
denies the constitutional vision of ensuring the primacy of individual dignity.
The decision in Narasu, is based on flawed premises. Custom or usage
cannot be excluded from ‘laws in force’. The decision in Narasu also
opined that personal law is immune from constitutional scrutiny. This
detracts from the notion that no body of practices can claim supremacy
over the Constitution and its vision of ensuring the sanctity of dignity,
liberty and equality. This also overlooks the wide ambit that was to be
attributed to the term ‘laws in force’ having regard to its inclusive definition
and constitutional history. As H M Seervai notes147:
“there is no difference between the expression “existing law”
and “law in force” and consequently, personal law would be
“existing law” and “law in force …custom, usage and statutory
law are so inextricably mixed up in personal law that it would be
difficult to ascertain the residue of personal law outside them.”
The decision in Narasu, in immunizing uncodified personal law
and construing the same as distinct
from custom, deserves detailed
reconsideration in an appropriate case in the future.
102. In the quest towards ensuring the rights guaranteed to every
individual, a Constitutional court such as ours is faced with an additional
task. Transformative adjudication must provide remedies in individual
instances that arise before the Court. In addition, it must seek to recognize
and transform the underlying social and legal structures that perpetuate
practices against the constitutional vision. Subjecting personal laws to
constitutional scrutiny is an important step in this direction.  Speaking of
the true purpose of liberty, Dr B R Ambedkar stated:
“What are we having this liberty for? We are having this liberty in
order to reform our social system, which is so full of inequities, so
full of inequalities, discriminations and other things, which conflict
with our fundamental rights.”148
 147 H M Seervai, Constitutional Law of India, Vol. I, at page 677
 148 Parliament of India, Constituent Assembly Debates, Vol. VII, at page 781
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Practices, that perpetuate discrimination on the grounds of
characteristics that have historically been the basis of discrimination,
must not be viewed as part of a seemingly neutral legal background.
They have to be used as intrinsic to, and not extraneous to, the interpretive
enquiry.
The case before us has raised the question of whether it is
constitutionally permissible to exclude women between the ages of ten
and fifty from the Sabarimala Temple. In the denial of equal access, the
practice denies an equal citizenship and substantive equality under the
Constitution. The primacy of individual dignity is the wind in the sails of
the boat chartered on the constitutional course of a just and egalitarian
social order.
L Deity as a bearer of constitutional rights
103. Mr J Sai Deepak, learned Counsel, urged that the presiding
deity of the Sabarimala Temple, Lord Ayyappa, is a bearer of constitutional
rights under Part III of the Constitution. It was submitted that the right
to preserve the celibacy of the deity is a protected constitutional right
and extends to excluding women from entering and praying at the
Sabarimala Temple. It was urged that the right of the deity to follow his
Dharma flows from Article 25(1) and Article 26 of the Constitution and
any alteration in the practice followed would have an adverse effect on
the fundamental rights of the deity.
104. The law recognizes an idol or deity as a juristic
persons which
can own property and can sue and be sued in the Court of law. In
Pramatha Nath Mullick v Pradyumna Kumar Mullick149, the Privy
Council dealt with the nature of an idol and services due to the idol.
Speaking for the Court, Lord Shaw held thus:
“A Hindu idol is, according to long established authority, founded
upon the religious customs of the Hindus, and the recognition thereof
by Courts of law, a “juristic entity.” It has a juridical status with
the power of suing and being sued.”150
In Yogendra Nath Naskar v Commissioner of the Income-
Tax, Calcutta151, this Court held thus:
 149 (1925) 27 Bom LR 1064
 150 Ibid, at page 250
 151 (1969) 1 SCC 555
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“6.But so far as the deity stands as the representative and symbol
of the particular purpose which is indicated by the donor, it can
figure as a legal person. The true legal view is that in that capacity
alone the dedicated property vests in it. There is no principle why
a deity as such a legal person should not be taxed if such a legal
person is allowed in law to own property even though in the ideal
sense and to sue for the property, to realize rent and to defend
such property…in the ideal sense.”152
B K Mukherjea in his seminal work ‘The Hindu Law of Religious
and Charitable Trusts’ writes thus:
“An idol is certainly a juristic person and as the Judicial Committee
observed in Promotha v Prayumna, “it has a juridical status with
the power of suing and being sued.” An idol can hold property
and obviously it can sue and be sued in respect of it…[Thus] the
deity as a juristic person has undoubtedly the right to institute a
suit for the protection of its interest.”153
105. The word ‘persons’ in certain statutes have been interpreted
to include idols. However, to claim that a deity is the bearer of
constitutional rights is a distinct issue, and does not flow as a necessary
consequence from the position of the deity as a juristic person for certain
purposes. Merely because a deity has been granted limited rights as
juristic persons under statutory law does not mean that the deity
necessarily has constitutional rights.
In
Shirur Mutt, Justice B K Mukherjea writing for the Court,
made observations on the bearer of the rights under Article 25 of the
Constitution:
“14.We now come to Article 25 which, as its language indicates,
secures to every person, subject to public order, health and morality,
a freedom not only to entertain such religious belief, as may 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….Institutions, as such
 152 Ibid, at page 560
 153 B K Mukherjea “The Hindu Law of Religious and Charitable Trust”, at pages 257,
264
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cannot practise 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.”
(Emphasis supplied)
In Shri A S Narayana Deekshitulu v State Of Andhra
Pradesh154, a two judge Bench of this Court considered the
constitutionality of Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act, 1987
which abolished the hereditary rights of archakas, mirasidars, gamekars
and other office-holders. Upholding the Act, the Court held:
“85.Articles 25 and 26 deal with and protect religious freedom.
Religion as used in these articles must be construed in its strict
and etymological sense. Religion is that which binds a man with
his Cosmos, his Creator or super force. It is difficult and rather
impossible to define or delimit the expressions ‘religion’ or “matters
of religion” used in Articles 25 and 26. Essentially, religion is a
matter of personal faith and belief of personal relations of
an individual with what he regards as Cosmos, his Maker
or his Creator which, he believes, regulates the existence
of insentient beings and the forces of the universe.”155
(Emphasis supplied)
106. A religious denomination or any section thereof has a right
under Article 26 to manage religious affairs. This right vests in a
collection of individuals which demonstrate (i) the existence of a
religious sect or body; (ii) a common faith shared by those who belong to
the religious sect and a common spiritual organisation; (iii) the existence
of a distinctive name and (iv) a common thread of religion. Article 25
grants the right to the freedom of conscience and free profession, practice
and propagation of religion. Conscience, as a cognitive process that elicits
emotion and associations based on an  individual’s beliefs rests only in
individuals. The Constitution postulates every individual as its basic unit.
The rights guaranteed under Part III of the Constitution are geared
 154 1996 9 SCC 548
 155 Ibid, at pages 592-593
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towards the recognition of the individual as its basic unit. The individual
is the bearer of rights under Part III of the Constitution. The deity may
be a juristic person for the purposes of religious law and capable of
asserting property rights. However, the deity is not a ‘person’ for the
purpose of Part III of the Constitution. The legal fiction which has led to
the recognition of a deity as a juristic person cannot be extended to the
gamut of rights under Part III of the Constitution.
In any case, the exclusion of women from the Sabarimala temple
effects both, the religious and civic rights of the individual. The anti-
exclusion principle would disallow a claim based on Article 25 and 26
which excludes women from the Sabarimala Temple and hampers their
exercise of religious freedom. This is in keeping with over-arching liberal
values of the Constitution and its vision of ensuring an equal citizenship.
M A road map for the future
107. The decision in Shirur Mutt defined religion to encompass
matters beyond conscience and faith. The court recognized that religious
practices are as much a part of religion. Hence, where the tenets of a
religious sect prescribe ceremonies at particular hours of the day or
regular offerings of food to the deity, this would constitute a part of
religion. The mere fact that these practices involve the expenditure of
money would not take away their religious character. The precept that
religion encompasses doctrine and ceremony enabled the court to allow
religion a broad autonomy in deciding what according to its tenets is
integral or essential. Shirur Mutt was followed by another decision in
Ratilal. Both cases were decided in the same year.
108. As the jurisprudence of the court evolved, two separate issues
came to the fore. The first was the divide between what is religious and
secular. This divide is reflected in Article 25(2)(a) which allows the state
to enact legislation which would regulate or restrict economic, financial,
political or “other secular activities” which may be associated with
religious practice. A second distinct issue, however, was addressed by
this Court. That was whether a practice is essential to religion. While
the religious versus secular divide finds support in constitutional text,
neither Article 25 nor Article 26 speaks about practices which are
essential to religion. As the jurisprudence of this Court unfolded, the
court assumed the function of determining whether or not a practice
constitutes an essential and integral part of religion. This set the
determination up at the threshold.  Something which the court holds not
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to be essential to religion would not be protected by Article 25, or as the
case may be, Article 26. Matters of religion under Article 26(b) came to
be conflated with what is an essential part of religion. In Qureshi (1959),
a Constitution Bench (of which Justice Gajendragadkar was a part)
emphasised the non-obligatory nature of the practice and held that the
sacrificing of cows at Bakr-Id was not an essential practice for the
Muslim community.   Durgah Committee (1962), Tilkayat (1964) and
Sastri Yagnapurushadji (1966),Justice Gajendragadkar reserved to the
court the authority to determine whether a practice was religious and, if
it is, whether the practice can be regarded as essential or integral to
religion. In Durgah Committee, Justice Gajendragadkar sought to justify
the exercise of that adjudicatory function by stating that otherwise,
practices which may have originated in “merely superstitious beliefs”
and would, therefore, be “extraneous and unessential accretions” to
religion would be treated as essential parts of religion. In Sastri
Yagnapurushadji, Chief Justice Gajendragadkar propounded a view of
Hinduism which in doctrinal terms segregates it from practices which
could be isolated from a rational view of religion. The result which
followed was that while at a formal level, the court continued to adopt a
view which placed credence on the role of the community in deciding
what constitutes a part of
its religion, there is a super imposed adjudicatory
role of the court which would determine as to whether something is
essential or inessential to religion. In the case of the Avadhuta II, the
assumption of this role by the Court came to the forefront in allowing it
to reject a practice as not being essential, though it had been prescribed
in a religious text by the founder of the sect.
By reserving to itself the authority to determine practices which
are essential or inessential to religion, the Court assumed a reformatory
role which would allow it to cleanse religion of practices which were
derogatory to individual dignity.  Exclusions from temple entry could be
regarded as matters which were not integral to religion.  While doing so,
the Court would set up a progressive view of religion. This approach is
problematic.  The rationale for allowing a religious community to define
what constitutes an essential aspect of its religion is to protect the
autonomy of religions and religious denominations.  Protecting that
autonomy enhances the liberal values of the Constitution.  By entering
upon doctrinal issues of what does or does not constitute an essential
part of religion, the Court has, as a necessary consequence, been required
to adopt a religious mantle.  The Court would determine as to whether a
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practice is or is not an essential part of religion.  This has enabled the
Court to adopt a reformist vision of religion even though it may conflict
with the views held by the religion and by those who practice and profess
the faith.  The competence of the Court to do so and the legitimacy of
the assumption of that role may be questionable. The Court discharges a
constitutional (as distinct from an ecclesiastical) role in adjudication.
Adjudicating on what does or does not form an essential part of religion
blurs the distinction between the religious-secular divide and the essential/
inessential approach. The former has a textual origin in Article 25(2)(a).
The latter is a judicial creation.
109. The assumption by the court of the authority to determine
whether a practice is or is not essential to religion has led to our
jurisprudence bypassing what should in fact be the central issue for debate.
That issue is whether the Constitution ascribes to religion and to religious
denominations the authority to enforce practices which exclude a group
of citizens. The exclusion may relate to prayer and worship, but may
extend to matters which bear upon the liberty and dignity of the individual.
The Constitution does recognise group rights when it confers rights on
religious denominations in Article 26. Yet the basic question which needs
to be answered is whether the recognition of rights inhering in religious
denominations can
impact upon the fundamental values of dignity, liberty
and equality which animate the soul of the Constitution.
In analysing this issue, it is well to remind ourselves that the right
to freedom of religion which is comprehended in Articles 25, 26, 27 and
28 is not a stand alone right.  These Articles of the Constitution are an
integral element of the entire chapter on fundamental rights.  Constitutional
articles which recognise fundamental rights have to be understood as a
seamless web.  Together, they build the edifice of constitutional liberty.
Fundamental human freedoms in Part III are not disjunctive or isolated.
They exist together. It is only in cohesion that they bring a realistic sense
to the life of the individual as the focus of human freedoms. The right of
a denomination must then be balanced with the individual rights to which
each of its members has a protected entitlement in Part III.
110. Several articles in the chapter on fundamental rights are
addressed specifically to the state.  But significantly, others have a
horizontal application to state as well non-state entities. Article 15(2)
embodies a guarantee against discrimination on grounds of religion, race,
caste, sex or birth place in access to listed public places. Article 17
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which abolishes untouchability has a horizontal application which is
available against the state as well as non-state entities. Article 23, Article
24 and Article 25(1) are illustrations of horizontal rights intended to secure
the dignity of the individual. All these guarantees rest in equilibrium with
other fundamental freedoms that the Constitution recognizes: equality
under Article 14, freedoms under Article 19 and life and personal liberty
under Article 21. The individual right to the freedom of religion under
Article 25 must rest in mutual co-existence with other freedoms which
guarantee above all, the dignity and autonomy of the individual. Article
26 guarantees a group right – the right of a religious denomination. The
co-existence of a group right in a chapter on fundamental rights which
places the individual at the forefront of its focus cannot be a matter
without significance.  Would the Constitution have intended to preserve
the assertion of group rights even at the cost of denigrating individual
freedoms? Should the freedom conferred upon a group - the religious
denomination under Article 26(b) – have such a broad canvas as would
allow the denomination to practice exclusion that would be destructive
of individual freedom? The answer to this, in my view, would have to be
in the negative for the simple reason that it would be impossible to
conceive of the preservation of liberal constitutional values
while at the
same time allowing group rights to defy those values by practicing
exclusion and through customs which are derogatory to dignity. This
apparent contradiction can be resolved by postulating that notwithstanding
the recognition of group rights in Article 26, the Constitution has never
intended that the assertion of these rights destroy individual dignity and
liberty. Group rights have been recognized by the Constitution in order to
provide a platform to individuals within those denominations to realize
fulfilment and self-determination. Gautam Bhatia156 in a seminal article
on the subject succinctly observes:
“While it is true that Article 26(b) makes groups the bearers of
rights, as pointed out above, the Constitution does not state the
basis of doing so. It does not clarify whether groups are granted
rights for the instrumental reason that individuals can only achieve
self-determination and fulfilment within the ‘context of choice’157
 156 Gautam Bhatia, Freedom from community: Individual rights, group life, state
authority and religious freedom under the Indian Constitution, Global
Constitutionalism, Cambridge University Press (2016).
 157 C Taylor, The Politics of Recognition in Multiculturalism: Examining the Politics of
Recognition (A Gutmann ed.) Princeton University Press (1994)
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provided by communities, or whether the Constitution treats groups,
along with individuals, as constitutive units worthy of equal
concern and respect.158 The distinction is crucial, because the
weight that must be accorded to group integrity, even at the cost
of blocking individual access to important public goods, can only
be determined by deciding which vision the Constitution subscribes
to.”
Relevant to the subject which this section explores, Bhatia’s thesis
is that the essential religious practices doctrine, which lacks a sure
constitutional foundation, has led the court into a maze in the process of
unraveling theological principles. While deciding what is or is not essential
to religion, the court has ventured into areas where it lacks both the
competence and legitimacy to pronounce on the importance of specific
doctrines or beliefs internal to religion. In making that determination, the
court essentially imposes an external point of view. Imposition of an
external perspective about what does or does not constitute an essential
part of religion is inconsistent with the liberal values of the Constitution
which recognize autonomy in matters of faith and belief.
111. A similar critique of the essential religious practices doctrine
has been put forth by Professors Faizan Mustafa and Jagteshwar Singh
Sohi in a recent publication titled “Freedom of Religion in India: Current
Issues and Supreme Court Acting as
Clergy”.159  Along similar lines,
Jaclyn L Neo in an article titled “Definitional Imbroglios: A critique of
the definition of religion and essential practice tests in religious freedom
adjudication”160 has dealt with the flaws of the essential religious
practices doctrine. The author notes that definitional tests such as the
essential religious practices doctrine are formalistic in nature, leading
the court to draw an arbitrary line between protected and non-protected
religious beliefs or practices:
“The key distinction between adjudicating religious freedom claims
by examining whether the restrictions are permissible under the
limitation clauses and adjudicating claims through a definitional
 158 R Bhargava, Introduction Multiculturalism in Multiculturalism, Liberalism and
Democracy (R Bhargava et al. eds), Oxford University Press (2007)
 159 Faizan Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: Current
Issues and Supreme Court Acting as Clergy, Brigham Young University Review
(2017)
 160 Jaclyn L Neo, Definitional imbroglios: A critique of the definition of religion and
essential practice tests in religious freedom adjudication, International Journal of
Constitutional Law, Vol. 16 (2018), at pages 574-595
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test is that the latter precludes a religious freedom claim by
determining that it falls outside the scope of a constitutional
guarantee, before any consideration could be made concerning
the appropriate balance between the right and competing rights
or interests. Definitional tests are often formalistic in that courts
select a particular set of criteria and make a decision on the religious
freedom claim by simply considering whether the religion, belief
or practice falls within these criteria. In doing so, the courts
therefore could be said to risk drawing an arbitrary line between
protected and non-protected religions, beliefs or practices.”161
Associated with this conceptual difficulty in applying the essential
religious practices test is the issue of competence and legitimacy for the
court to rule on religious tenets:
“While it may be legitimate for religious courts to apply internal
religious doctrines, civil courts are constitutionally established to
adjudicate upon secular constitutional statutory and common law
issues. In a religiously pluralistic society, judges cannot presume
to have judicial competence to have theological expertise over all
religions.”162
She suggests a two stage determination which is explained thus:
“Accordingly, there would be a two-stage test in adjudicating
religious freedom claims that adopts a more deferential approach
to definition, bearing in mind…a workable approach to
religious
freedom protection in plural societies. In the first stage, as
mentioned, the courts should accept a group’s self-definition except
in extreme cases where there is clearly a lack of sincerity, fraud
or ulterior motive. At the second stage, the courts should apply a
balancing, compelling reason inquiry, or proportionality analysis to
determine whether the religious freedom claim is outweighed by
competing state or public interest.”163
A deferential approach to what constitutes a part of religious tenets
would free the court from the unenviable task of adjudicating upon
religious texts and doctrines. The deference, however, that is attributed
to religion is subject to the fundamental principles which emerge from
 161 Ibid, at pages 575, 576
 162 Ibid, at page 589
 163 Ibid, at page 591
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the quest for liberty, equality and dignity in Part III of the Constitution.
Both Article 25(1) and Article 26 are subject to public order, morality
and health. Acting under the rubric of these limitations even the religious
freedom of a denomination is subject to an anti-exclusion principle:
“the anti-exclusion principle holds that the external norm of
constitutional anti-discrimination be applied to limit the autonomy
of religious groups in situations where these groups are blocking
access to basic goods.”164
The anti-exclusion principle stipulates thus:
“…that the state and the Court must respect the integrity of
religious group life (and thereby treat the internal point of religious
adherents as determinative of the form and content of religious
practices) except where the practices in question lead to the
exclusion of individuals from economic, social or cultural life in a
manner that impairs their dignity, or hampers their access to basic
goods.”165
112. The anti-exclusion principle allows for due-deference to the
ability of a religion to determine its own religious tenets and doctrines.
At the same time, the anti-exclusion principle postulates that where a
religious practice causes the exclusion of individuals in a manner which
impairs their dignity or hampers their access to basic goods, the freedom
of religion must give way to the over-arching values of a liberal
constitution. The essential religious
practices test should merit a close
look, again for the above reasons, in an appropriate case in the future.
For the present, this judgment has decided the issues raised on the law
as it stands.
N Conclusion
113. The Constitution embodies a vision of social transformation.
It represents a break from a history marked by the indignation and
discrimination attached to certain identities and serves as a bridge to a
vision of a just and equal citizenship. In a deeply divided society marked
by intermixing identities such as religion, race, caste, sex and personal
 164 Gautam Bhatia, Freedom from community: Individual rights, group life, state
authority and religious freedom under the Indian Constitution, Global
Constitutionalism, Cambridge University Press (2016) at page 374
 165 Gautam Bhatia, Freedom from community: Individual rights, group life, state
authority and religious freedom under the Indian Constitution, Global
Constitutionalism, Cambridge University Press (2016) at page 382
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characteristics as the sites of discrimination and oppression, the
Constitution marks a perception of a new social order. This social order
places the dignity of every individual at the heart of its endeavours. As
the basic unit of the Constitution, the individual is the focal point through
which the ideals of the Constitution are realized.
The framers had before them the task of ensuring a balance
between individual rights and claims of a communitarian nature. The
Constituent Assembly recognised that the recognition of a truly just social
order situated the individual as the ‘backbone of the state, the pivot,
the cardinal center of all social activity, whose happiness and satisfaction
should be the goal of every social mechanism.’166 In forming the base
and the summit of the social pyramid, the dignity of every individual
illuminates the constitutional order and its aspirations for a just social
order. Existing structures of social discrimination must be evaluated
through the prism of constitutional morality. The effect and endeavour is
to produce a society marked by compassion for every individual.
114. The Constitution protects the equal entitlement of all persons
to a freedom of conscience and to freely profess, protect and propagate
religion. Inhering in the right to religious freedom, is the equal entitlement
of all persons, without exception, to profess, practice and propagate
religion. Equal
participation of women in exercising their right to religious
freedom is a recognition of this right. In protecting religious freedom, the
framers subjected the right to religious freedom to the overriding
constitutional postulates of equality, liberty and personal freedom in Part
III of the Constitution. The dignity of women cannot be disassociated
from the exercise of religious freedom. In the constitutional order of
priorities, the right to religious freedom is to be exercised in a manner
consonant with the vision underlying the provisions of Part III. The equal
participation of women in worship inheres in the constitutional vision of
a just social order.
115. The discourse of freedom in the Constitution cannot be
denuded of its context by construing an Article in Part III detached from
the part within which it is situated. Even the right of a religious
denomination to manage its own affairs in matters of religion cannot be
exercised in isolation from Part III of the Constitution. The primacy of
the individual, is the thread that runs through the guarantee of rights. In
 166 Pandit Govind Ballabh Pant (Member, Constituent Assembly) in a speech to the
Constituent Assembly on 24 January, 1947
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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being located in Part III of the Constitution, the exercise of denominational
rights cannot override and render meaningless constitutional protections
which are informed by the overarching values of a liberal Constitution.
116. The Constitution seeks to achieve a transformed society based
on equality and justice to those who are victims of traditional belief systems
founded in graded inequality. It reflects a guarantee to protect the dignity
of all individuals who have faced systematic discrimination, prejudice
and social exclusion. Construed in this context, the prohibition against
untouchability marks a powerful guarantee to remedy the stigmatization
and exclusion of individuals and groups based on hierarchies of the social
structure. Notions of purity and pollution have been employed to
perpetuate discrimination and prejudice against women. They have no
place in a constitutional order. In acknowledging the inalienable dignity
and worth of every individual, these notions are prohibited by the guarantee
against untouchability and by the freedoms that underlie the Constitution.
In civic as in social life, women have been subjected to prejudice,
stereotypes and social exclusion. In religious life, exclusionary traditional
customs assert a claim to legitimacy which owes its origin to patriarchal
structures. These forms of discrimination are not mutually exclusive.
The intersection of identities in social and religious
life produces a unique
form of discrimination that denies women an equal citizenship under the
Constitution. Recognizing these forms of intersectional discrimination is
the first step towards extending constitutional protection against
discrimination attached to intersecting identities.
117. In the dialogue between constitutional freedoms, rights are
not isolated silos. In infusing each other with substantive content, they
provide a cohesion and unity which militates against practices that depart
from the values that underlie the Constitution – justice, liberty, equality
and fraternity. Substantive notions of equality require the recognition of
and remedies for historical discrimination which has pervaded certain
identities. Such a notion focuses on not only distributive questions, but on
the structures of oppression and domination which exclude these identities
from participation in an equal life. An indispensable facet of an equal
life, is the equal participation of women in all spheres of social activity.
The case at hand asks important questions of our conversation
with the Constitution. In a dialogue about our public spaces, it raises the
question of the boundaries of religion under the Constitution. The quest
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for equality is denuded of its content if practices that exclude women
are treated to be acceptable. The Constitution cannot allow practices,
irrespective of their source, which are derogatory to women. Religion
cannot become a cover to exclude and to deny the right of every woman
to find fulfillment in worship. In his speech before the Constituent
Assembly on 25 November 1949, Dr B R Ambedkar sought answers to
these questions: ‘How long shall we continue to live this life of
contradictions? How long shall we continue to deny equality in our social
and economic life?’167 Sixty eight years after the advent of the
Constitution, we have held that in providing equality in matters of faith
and worship, the Constitution does not allow the exclusion of women.
118. Liberty in matters of belief, faith and worship, must produce
a compassionate and humane society marked by the equality of status
of all its citizens. The Indian Constitution sought to break the shackles of
social hierarchies. In doing so, it sought to usher an era characterized by
a commitment to freedom, equality and justice. The liberal values of the
Constitution secure to each individual an equal citizenship. This recognizes
that the Constitution exists not only to disenable entrenched structures
of discrimination and prejudice, but to empower those who traditionally
have been deprived of an equal citizenship. The equal participation of
women in every
sphere of the life of the nation subserves that premise.
119. I hold and declare that:
1) The devotees of Lord Ayyappa do not satisfy the judicially
enunciated requirements to constitute a religious denomination under
Article 26 of the Constitution;
2) A claim for the exclusion of women from religious worship,
even if it be founded in religious text, is subordinate to the constitutional
values of liberty, dignity and equality. Exclusionary practices are contrary
to constitutional morality;
3) In any event, the practice of excluding women from the temple
at Sabarimala is not an essential religious practice. The Court must decline
to grant constitutional legitimacy to practices which derogate from the
dignity of women and to their entitlement to an equal citizenship;
4) The social exclusion of women, based on menstrual status, is a
form of untouchability which is an anathema to constitutional values.
 167 Dr. B R Ambedkar in a speech to the Constituent Assembly on 25 November 1949
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Notions of “purity and pollution”, which stigmatize individuals, have no
place in a constitutional order;
5) The notifications dated 21 October 1955 and 27 November
1956 issued by the Devaswom Board, prohibiting the entry of women
between the ages of ten and fifty, are ultra vires Section 3 of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and
are even otherwise unconstitutional; and
6) Hindu women constitute a ‘section or class’ of Hindus under
clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965
Rules enforces a custom contrary to Section 3 of the 1965 Act. This
directly offends the right of temple entry established by Section 3. Rule
3(b) is ultra vires the 1965 Act.
Acknowledgment
Before concluding, I acknowledge the efforts of the counsel for
the parties who appeared in this case – Ms Indira Jaising, Dr. Abhishek
Manu Singhvi, Mr K Parasaran, Mr Jaideep Gupta, Mr V Giri, Mr P V
Surendranath, and Mr K Radhakrishnan, Senior Counsel; and Mr Ravi
Prakash Gupta, Mr J Sai Deepak, Mr V K Biju, and Mr Gopal
Sankaranarayanan, learned Counsel. I acknowledge the dispassionate
assistance rendered by Mr Raju Ramachandran and Mr K Ramamoorthy,
Senior Counsel who appeared as Amicus Curiae. Their knowledge and
erudition have enriched my own learning. 
INDU MALHOTRA, J.
1. The present Writ Petition has been filed in public interest by a
registered association of Young Lawyers. The
Intervenors in the
Application for Intervention have averred that they are gender rights
activists working in and around the State of Punjab, with a focus on
issues of gender equality and justice, sexuality, and menstrual
discrimination.
The Petitioners have interalia stated that they learnt of the practise
of restricting the entry of women in the age group of 10 to 50 years in
the Sabarimala Temple in Kerala from three newspaper articles written
by BarkhaDutt (Scent of a Woman, Hindustan Times; July 1, 2006),
Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and Vir
Sanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times;
July 2, 2006).
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The Petitioners have challenged the Constitutional validity of Rule
3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965 (hereinafter referred to as “the 1965 Rules”), which
restricts the entry of women into the Sabarimala Temple as being
ultravires Section 3 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 (hereinafter referred to as “the 1965
Act”).
Further, the Petitioners have prayed for the issuance of a Writ of
Mandamus to the State of Kerala, the Travancore Devaswom Board,
the Chief Thanthri of Sabarimala Temple and the District Magistrate of
Pathanamthitta to ensure that female devotees between the age group
of 10 to 50 years are permitted to enter the Sabarimala Temple without
any restriction.
2. SUBMISSIONS OF PETITIONERS AND INTERVENORS
The Petitioners and the Intervenors were represented by Mr. R.P.
Gupta, and Ms. Indira Jaising, Senior Advocate. Mr. Raju Ramachandran,
learned Senior Advocate appeared as Amicus Curiae who supported
the case of the Petitioners.
(i) In the Writ Petition, the Petitioners state that the present case
pertains to a centuries old customof prohibiting entry of women
between the ages of 10 years to 50 years into the Sabarimala
Temple of Lord Ayyappa.
The customary practise, as codified in Rule 3(b) of the 1965
Rules read with the Notifications issued by the Travancore
Devaswom Board dated October 21, 1955 and
November 27,
1956, does not meet the tests of Articles 14, 15 and 21 of the
Constitution.
This exclusionary practise violates Article 14 asthe classification
lacks a Constitutional object. It is manifestly arbitrary as it is
based on physiological factors alone, and does not serve any
valid object.
(ii) The customary practise violates Article 15(1) of the Constitution
as it is based on ‘sex’ alone.
The practise also violates Article 15(2)(b) since the Sabarimala
Temple is a public place of worship being open and dedicated
[INDU MALHOTRA, J.]
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to the public and is partly funded by the State under Article
290A.
(iii) Article 25 guarantees the Fundamental Right to an individual
to worship or follow any religion.
The 1965 Act has been passed in furtherance of the goals
enshrined in Article 25(2)(b) as a ‘measure of social reform’.
The Act contains no prohibition against women from entering
any public temple.
(iv) Rule 3(b) of the 1965 Rules is ultravires the Act insofar as it
prohibits the entry of women.
(v) The Petitioners contend that a religious denomination must
have the following attributes:
• It has its own property & establishment capable of succession
by its followers.
• It has its distinct identity clearly distinguishable from any
established religion.
• It has its own set of followers who are bound by a distinct set of
beliefs, practises, rituals or beliefs.
• It has the hierarchy of its own administration, not controlled by
any outside agency.
It wascontended that the devotees of Lord Ayyappa do not
constitute a religious denomination under Article 26 as they do not have
a common faith, or a distinct name. The devotees of Lord Ayyappa are
not unified on the basis of some distinct set of practises.  Every temple
in India has its own different set of rituals.  It differs from region to
region.  A minor difference in rituals and ceremonies does not make
them a separate religious denomination.
The devotees of Lord Ayyappa do not form a religious
denomination since the tests prescribed by this Court have not been
satisfied in this case. Even assuming that the devotees of Lord Ayyappa
constitute a religious denomination, their rights under Article 26(b) would
be subject to Article 25(2)(b) in line with the decision of this Court in Sri
Venkataramana Devaru & Ors. v. State of Mysore & Ors.1.
 1 1958 SCR 895 : AIR 1958 SC 255
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It was further submitted that there are no exclusive followers of
this Temple except general Hindu followers visiting any Hindu temple.
Reliance was placed on the judgments of this Court in Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay2, Raja Bira
Kishore Deb, Hereditary Superintendent, Jagannath Temple, P.O.
and District Puri v. State of Orissa3, and in S. P. Mittal v. Union of
India & Ors.4.
(vi) Even if the Sabarimala Temple is taken to be a religious
denomination, the restriction on the entry of women is not an
essential religious practise.
  The prohibition on women between the ages of 10 to 50 years
from entering the templedoes not constitute the core foundation
of the assumed religious denomination. Any law or custom to
be protected under Article 26 must have Constitutional
legitimacy.
(vii)The exclusionary practise is violative of Article 21, as it has
the impact of casting a stigma on women as they are considered
to be polluted, which has a huge psychological impact on them,
and undermines their dignity under Article 21.
   The exclusionary practise is violative of Article 17 as it is a
direct form of  “Untouchability”. Excluding women from public
places such as temples, based on menstruation, is a form of
‘untouchability’. This Article is enforceable both against non-
State as well as State actors.
(viii) Mr. Raju Ramachandran, learned Amicus Curiae, submitted
that the Sabarimala Temple is a
place of public worship. It is
managed and administered by a statutory body i.e. the
Travancore Devaswom Board. According to him, a public
temple by its very character is established, and maintained for
the benefit of its devotees. The right of entry emanates from
this public character, and is a legal right which is not dependent
upon the temple authorities.
   The Travancore Devaswom Board is a statutorily created
authority under the Travancore – Cochin Hindu Religious
 2 1962 Supp (2) SCR 496 : AIR 1962 SC 853
 3 (1964) 7 SCR 32 : AIR 1964 SC 1501
 4 (1983) 1 SCC 51
[INDU MALHOTRA, J.]
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Institutions Act, 1950, and receives an annual payment from
the Consolidated Fund of India under Article 290A. It would
squarely fall within the ambit of “other authorities” in Article
12, and is duty bound to give effect to the Fundamental Rights.
(ix) The Fundamental Right to worship under Article 25(1) is a
non-discriminatory right, and is equally available to both men
and women alike. The right of a woman to enter the Temple
as a devotee is an essential aspect of her right to worship, and
is a necessary concomitant of the right to equality guaranteed
by Articles 15.
  The non-discriminatory right of worship is not dependent upon
the will of the State to provide for social welfare or reform
under Article 25(2)(b).
      Article 25(2)(b) is not merely an enabling provision, but provides
a substantive right. The exclusion of women cannot be classified
as an essential religious practise in the absence of any scriptural
evidence being adduced on the part of the Respondents.
(x) The exclusionary practise results in discrimination against
women as a class, since a significant section of women are
excluded from entering the Temple. Placing reliance on the
“impact test” enunciated by this Court in Bennett Coleman &
Co. & Ors. v. Union of India & Ors.5, he submitted that the
discrimination is only on the ground of “sex” since the biological
feature of menstruation emanates from the characteristics of
the particular sex.
(xi)Article 17 prohibits untouchability “in any form” in order to
abolish all practises based on notions of purity, and pollution.
The exclusion of menstruating women is on the same footing
as the exclusion of oppressed classes.
(xii)The term “morality” used in Articles 25 and 26 refers to
Constitutional Morality, and not an individualised or sectionalised
sense of morality. It must be informed by Articles 14, 15, 17,
38, and 51A.
(xiii) Mr. Ramachandran, learned Amicus Curiae submitted that
Rule 3(b) of the 1965 Act is ultravires Section 3 of the 1965
 5  (1972) 2 SCC 788
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Act insofar as it seeks to protect customs and usages,which
Section 3 specifically over-rides. The justification for Rule 3
cannot flow from the proviso to Section 3, since the proviso
can only be interpreted in line with the decision of this Court in
Sri Venkataramana Devaru & Ors. v.  State of Mysore &
Ors. (supra). It is ultravires Section 4 since it provides that
the Rules framed thereunder cannot be discriminatory against
any section or class.
3. SUBMISSIONS OF THE RESPONDENTS
The State of Kerala was represented by Mr. Jaideep Gupta, Senior
Advocate. The Travancore Dewaswom Board was represented by Dr.
A.M. Singhvi, Senior Advocate.The Chief Thanthri was represented by
Mr. V. Giri, Senior Advocate.The Nair Service Society was represented
by Mr. K. Parasaran, Senior Advocate.The Raja of Pandalam was
represented by Mr. K. Radhakrishnan.Mr. J. Sai Deepak appeared on
behalf of Respondent No. 18 and Intervenor by the name of People for
Dharma.Mr. Ramamurthy, Senior Advocate appeared as Amicus Curiae
who supported the case of the Respondents.
4. The State of Kerala filed two Affidavits in the present Writ
Petition.
The State of Kerala filed an Affidavit dated November 13, 2007
supporting the cause of the Petitioners.The State however prayed for
the appointment of an “appropriate commission” to submit suggestions/
views on whether entry of women between the ages of 10 to 50 years
should be permitted. Some of the
averments made in the said Affidavit
are pertinent to note, and are being reproduced herein below for reference:
“…As such, Government cannot render an independent
direction against the present prevailing custom, regard being
had to the finality of the said judgment [Kerala High Court’s
decision in S. Mahendran (supra)] over the disputed questions
of facts which requires the necessity of adducing evidence
also…
…Thus, Government is of the opinion that no body should be
prohibited from their right to worship, but considering the
fact that the matter of entry to Sabarimala is a practise
followed for so many years and connected with the belief
[INDU MALHOTRA, J.]
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and values accepted by the people and since there is a binding
High Court judgment in that regard, Government felt that this
Hon’ble Court may be requested to appoint an appropriate
commission consisting of eminent scholars with authentic
knowledge in Hinduism and reputed and uncorrupt social
reformers to submit suggestions/views on the issue whether it
is open to all women, irrespective of their age to enter the
temple and make worship…”
               (Emphasis supplied)
In the subsequent Additional Affidavit dated February 4, 2016
filed by the State, it was submitted that the assertions made in the previous
Affidavit dated November 13, 2007 erroneously sought to support the
Petitioners. It was submitted that it was not open for the State
Government to take a stand at variance with its position before the Kerala
High Court in S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthapuram & Ors.6and in contravention of the
directions issued therein. It was asserted that the practise of restricting
the entry of women between the ages of 10 to 50 years is an essential
and integral part of the customs and usages of the Temple, which is
protected under Articles 25 and 26 of the Constitution. Being a religious
custom, it is also immune from challenge under other provisions of Part
III of the Constitution in light of the ruling of this Court in Riju Prasad
Sharma & Ors. v. State of Assam & Ors.7.
However,
during the course of hearing before the three-Judge
Bench at the time of reference, it was submitted that the State would be
taking the stand stated in the Affidavit dated November 13, 2007.
5. The submissions made by the Respondent No.2 – Travancore
Devaswom Board, Respondent No. 4 – the Thanthri of the Temple,
Respondent No. 6 – the Nair Service Society, Respondent Nos. 18 and
19 are summarised hereinbelow:
(i) The Sabarimala Temple, dedicated to Lord Ayyappa, is a
prominent temple in Kerala which is visited by over twenty million pilgrims
and devotees every year. As per a centuries old tradition of this temple,
and the ‘acharas’, beliefs and customs followed by this Temple, women
in the age group of 10 to 50 years are not permitted to enter this Temple.
 6 AIR 1993 Ker 42
 7  (2015) 9 SCC 461
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This is attributable to the manifestation of the deity at the
Sabarimala Temple which is in the form of a ‘Naishtik Bramhachari’,
who practises strict penance, and the severest form of celibacy.
According to legend, it is believed that Lord Ayyappa, the presiding
deity of Sabarimala had his human sojourn at Pandalam as the son of
the King of Pandalam, known by the name of Manikandan, who found
him as a radiant faced infant on the banks of the river Pampa, wearing
a bead (‘mani’) around his neck. Manikandan’s feats and achievements
convinced the King and others of his divine origin.
The Lord told the King that he could construct a temple at
Sabarimala, north of the holy river Pampa, and install the deity there.
The King duly constructed the temple at Sabarimala and dedicated it to
Lord Ayyappa.  The deity of Lord Ayyappa in Sabarimala Temple was
installed in the form of a ‘Naishtik Brahmachari’ i.e. an eternal celibate.
Lord Ayyappa is believed to have explained the manner in which
the pilgrimage to the Sabarimala Temple is to be undertaken, after
observing a 41-day ‘Vratham’.
It is believed that Lord Ayyappa himself undertook the 41-day
‘Vratham’ before he went to Sabarimala Temple to merge with the deity.
The whole process of the pilgrimage undertaken by a pilgrim is to replicate
the journey of Lord Ayyappa. The mode and manner of worship at this
Temple as revealed by the Lord himself is chronicled in the
‘Sthal
Purana’ i.e. the ‘Bhuthanatha Geetha’.
The 41 day “Vratham” is a centuries old custom and practise
undertaken by the pilgrims referred to as ‘Ayyappans’. The object of
this ‘Vratham’ is to discipline and train the devotees for the evolution of
spiritual consciousness leading to self-realization. Before embarking on
the pilgrimage to this shrine, a key essential of the ‘Vratham’ is
observance of a ‘Sathvic’ lifestyle and ‘Brahmacharya’ so as to keep
the body and mind pure. A basic requirement of the ‘Vratham’ is to
withdraw from the materialistic world and step onto the spiritual path.
When a pilgrim undertakes the ‘Vratham’, the pilgrim separates
himself from the women-folk in the house, including his wife, daughter,
or other female members in the family.
The “Vratham” or penance consists of:
[INDU MALHOTRA, J.]
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• Forsaking all physical relations with one’s spouse;
• Giving up anything that is intoxicating, including alcohol, cigarettes
and ‘tamasic’ food;
• Living separately from the rest of the family in an isolated room
or a separate building;
• Refraining from interacting with young women in daily life,
including one’s daughter, sister,or other young women relatives;
• Cooking one’s own food;
• Observing cleanliness, including bathing twice a day before
prayers;
• Wearing a black mundu and upper garments;
• Having only one meal a day;
• Walking barefoot.
On the 41st day, after puja, the pilgrim takes the irimudi (consisting
of rice and other provisions for one’s own travel, alongwith a coconut
filled with ghee and puja articles) and starts the pilgrimage to climb the
18 steps to reach the ‘Sannidhanam’, for darshan of the deity.  This
involves walking from River Pampa, climbing 3000 feet to the
Sannidhanam, which is a climb of around 13 kilometres through dense
forests.
As a part of this system of spiritual discipline, it is expressly
stipulated that women between the ages of 10 to 50 years should not
undertake this pilgrimage.
(ii) This custom or usage is understood to have been prevalentsince
the inception of this Temple, which is since the past several
centuries.Reliance was placed on a comprehensive thesis by Radhika
Sekar on this Temple.8 Relevant extracts from the thesis are reproduced
hereinbelow:
“The cultus
members maintain the strictest celibacy before
they undertake their journey through the forests to the
Sabarimala shrine.  This emphasis on celibacy could be in
 8 Radhika Sekar, The Process of Pilgrimage: The AyyappaCultus and Sabarimalai
Yatra (Faculty of Graduate Studies, Department of Sociology and Anthropology at
Carleton University, Ottawa, Ontario; October 1987)
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order to gain protection from other forest spirits, for as
mentioned earlier, Yaksas are said to protect “sages and
celibates…
…Though there is no formal declaration, it is understood that
the Ayyappa (as he is now called) will follow the strictest
celibacy, abstain from intoxicants and meat, and participate
only in religious activities.  He may continue to work at his
profession, but he may not indulge in social enterprises.
Ayyappas are also required to eat only once a day (at noon)
and to avoid garlic, onion and stale food.  In the evening,
they may eat fruit or something very light.  As far as the dress
code is concerned, a degree of flexibility is allowed during
the vratam period. The nature of one’s profession does not
always permit this drastic change in dress code.  For example,
Ayyappas in the army or police force wear their regular
uniforms and change into black only when off duty. Black or
blue vestis and barefootedness are, however, insisted upon
during the actual pilgrimage…
…The rule of celibacy is taken very seriously and includes
celibacy in thought and action. Ayyappas are advised to look
upon all women older than them as mothers and those younger
as daughters or sisters. Menstrual taboos are now strictly
imposed….. Sexual cohabitation is also forbidden.  During
the vratam, Ayyappas not only insist on these taboos being
rigidly followed but they go a step further and insist on
physical
separation.  It is not uncommon for a wife, daughter
or sister to be sent away during her menses if a male member
of the household has taken the vratam….”
                                                                 (Emphasis supplied)
In the Memoir of the Survey of the Travancore and Cochin States
written by Lieutenants Ward and Conner,reference has been made
regarding the custom and usage prevalent at Sabarimala Temple. The
Memoir of the Survey was originally published in two parts in 1893 and
1901 giving details of the statistical and geographical surveys of the
Travancore and Cochin States. Reference was sought to be made to the
following excerpt from the survey:
[INDU MALHOTRA, J.]
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“…old women and young girls, may approach the temple, but
those who have attained puberty and to a certain time of life
are forbid to approach, as all sexual intercourse in that vicinity
is averse to this deity…”9
(iii) Dr.Singhvisubmitted that a practise started in hoary antiquity,
and continued since time immemorial without interruption, becomes a
usage and custom. Reliance, in this regard, was placed on the judgments
of Ewanlangki-E-Rymbaiv. Jaintia Hills District Council & Ors.10 ,
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa11 , and Salekh
Chand (Dead) by LRs v.  Satya Gupta & Ors.12.
The custom and usage of restricting the entry of women in the
age group of 10 to 50 years followed in the Sabarimala Temple is pre-
constitutional. As per Article 13(3)(a) of the Constitution, “law” includes
custom or usage, and would have the force of law.
The characteristics and elements of a valid custom are that it
must be of immemorial existence, it must be reasonable, certain and
continuous. The customs and usages, religious beliefs and practises as
mentioned above are peculiar to the Sabarimala Temple, and have
admittedly been followed since centuries.
(iv) The exclusion of women in this Temple is not absolute or
universal. It is limited to a particular age group in one particular temple,
with the view to preserve the character of the deity. Women outside the
age group of 10 to 50 years are entitled to worship at the
Sabarimala
Temple. The usage and practise is primary to preserve the sacred form
and character of the deity. It was further submitted that the objection to
this custom is not being raised by the worshippers of Lord Ayyappa, but
by social activists.
(v) It was further submitted that there are about 1000 temples
dedicated to the worship of Lord Ayyappa, where the deity is not in the
form of a ‘Naishtik Brahmachari’.  In those temples, the mode and
manner of worship differs from Sabarimala Temple, since the deity has
manifested himself in a different form. There is no similar restriction on
the entry of women in the other Temples of Lord Ayyappa, where women
of all ages can worship the deity.
 9 Lieutenants Ward and Conner, Memoir of the Survey of the Travancore and Cochin
States (First Reprint 1994, Government of Kerala) at p. 137
 10 (2006) 4 SCC 748
 11 (2006) 13 SCC 627
 12 (2008) 13 SCC 119
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(vi) Mr. Parasaran, Senior Advocate submitted that the restriction
on entry of women is a part of the essential practise of this Temple, and
the pilgrimage undertaken. It is clearly intended to keep the pilgrims
away from any distraction related to sex, as the dominant objective of
the pilgrimage is the creation of circumstances in all respects for the
successful practise of the spiritual self-discipline.
The limited restriction on the entry of women from 10 to 50 years,
in the Sabarimala Temple is a matter of ‘religion’ and ‘religious faith and
practise’, and the fundamental principles underlying the ‘prathishtha’
(installation) of the Sabarimala Temple, as well as the custom and usage
of worship of the deity - Lord Ayyappa.
(vii) With respect to the contention that the custom is violative of
women’s right to gender equality, Mr. V. Giri, Senior Advocate interalia
submitted that if women as a class were prohibited from participation, it
would amount to social discrimination. However, this is not so in the
present case. Girls below 10 years, and women after 50 years can freely
enter this Temple, and offer worship Further, there is no similar restriction
on the entry of women at the other Temples of Lord Ayyappa.
The classification of women between the ages of 10 to 50 years,
and men of the same age group, has a reasonable nexus with the object
sought to be achieved, which is to preserve the identity and
manifestation
of the Lord as a ‘Naishtik Brahmachari’.
(viii) It was submitted by the Respondents that in order to preserve
the character of the deity, and the sanctity of the idol at the Sabarimala
Temple, the limited restriction is imposed on the entry of women only
during the period notified by the Travancore Devaswom Board. There
is no absolute restriction on women per se. Such practise is consistent
with the ‘Nishta’or ‘Naishtik Buddhi’ of the deity. This being the
underlying reason behind the custom, there is no derogation of the dignity
of women. It is only to protect the manifestation and form of the deity,
which is sacred and divine, and preserve the penance undertaken by the
devotees.
(ix) It was further submitted that it is the duty of the Travancore
Devaswom Board under Section 31 of the Travancore - Cochin Hindu
Religious Institutions Act, 1950 to administer the temple in accordance
with the custom and usage of the Temple.
[INDU MALHOTRA, J.]
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(x) It was submitted that issues of law and fact should be decided
by a competent civil court, after examination of documentary and other
evidence.
(xi) Mr. Parasaran, Senior Advocate further submitted that religion
is a matter of faith.  Religious beliefs are held to be sacred by those who
have faith. Reliance was placed on the judgment of this Court in
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt (supra)
wherein the definition of religion from an American case was extracted
i.e. “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”.
Learned Senior Counsel also relied upon the case of Sri
Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra)
wherein it was observed as follows:
“The Gods have distinct forms ascribed to them and their
worship at home and in temples is ordained as certain means
of attaining salvation.”
In Tilkayat Shri Govindlalji Maharaj etc.v. State of Rajasthan
& Ors.13,  emphasis was laid on the mode of worship adopted when
Lord Krishna was worshipped in the form of a child.
Religion does not merely lay down a code of ethical rules for its
followers to accept, but also includes rituals and observances, ceremonies
and modes of worship which are regarded as integral parts of the religion.
(xii) 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 satisfy three conditions
as laid down in S.P. Mittal v. Union of India & Ors. (supra):
“80. (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.”
 13 (1964) 1 SCR 561 at 582 : AIR 1963 SC 1638
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Religious maths, religious sects, religious bodies, sub-sects or any
section thereof have been held to be religious denominations. Reliance
was placed on the judgments in Commissioner., Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt (supra); Durgah Committee, Ajmer & Anr. v. Syed Hussain
Ali & Ors.,14 and Dr. Subramanian Swamy v. State of T.N. & Ors.15.
Relying on the judgment in Sri Venkataramana Devaru & Ors.
v. State of Mysore & Ors. case (supra), Dr. Singhvi submitted that
religion, in this formulation, is a much wider concept, and includes:
• Ceremonial law relating to the construction of Temples;
• Installation of Idols therein;
• Place of consecration of the principle deity;
• Where the other Devatas are to be installed;
• Conduct of worship of the deities;
• Where the worshippers are to stand for worship;
• Purificatory ceremonies and their mode and manner of
performance;
• Who are entitled to enter for worship; where they are entitled to
stand and worship; and, how the worship is to be conducted.
(xiii) It was categorically asserted by the Respondents that the
devotees of Lord Ayyappa constitute a religious denomination, who follow
the ‘Ayyappan Dharma’, where all male devotees are called
‘Ayyappans’ and all female devotees below 10 years and above 50
years of age are called ‘Malikapurams’. A devotee has to abide by the
customs and usages of this Temple, if he
is to mount the
‘pathinettupadikal’ and enter the Sabarimala Temple.
This set of beliefs and faiths of the ‘Ayyappaswamis’, and the
organization of the worshippers of Lord Ayyappa constitute a distinct
religious denomination, having distinct practises.
(xiv) It was further submitted that the status of this temple as a
religious denomination, was settled by the judgment of the Division Bench
of the Kerala High Court in S. Mahendran v. The Secretary,
 14 (1962) 1 SCR 383 : AIR 1961 SC 1402
 15 (2014) 5 SCC 75
[INDU MALHOTRA, J.]
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Travancore Devaswom Board & Ors. (supra). The High Court decided
the case after recording both documentary and oral evidence. The then
Thanthri – Sri Neelakandaru, who had installed the deity was examined
by the High Court as C.W.6, who stated that women during the age
group of 10 to 50 years were prohibited from entering the temple much
before the 1950s.
This judgment being a declaration of the status of this temple as a
religious denomination, is a judgment in rem. The said judgment has not
been challenged by any party. Hence, it would be binding on all parties,
including the Petitioners herein.
The following observation from the judgment of this Court in Dr.
Subramanian Swamy v.  State of Tamil Nadu & Ors. (supra) was
relied upon:
“The declaration that Dikshitars are religious denomination
or section thereof is in fact a declaration of their status and
making such declaration is in fact a judgment in rem.”
   (Internal quotations omitted)
(xv) Unlike Article 25, which is subject to the other provisions of
Part III of the Constitution, Article 26 is subject only to public order,
morality, and health, and not to the other provisions of the Constitution.
As a result, the Fundamental Rights of the denomination is not subject to
Articles 14 or 15 of the Constitution.
With respect to Article 25(1), it was submitted that the worshippers
of Lord Ayyappa are entitled to the freedom of conscience, and the right
to profess,
practise and propagate their religion. The right to profess
their faith by worshipping at the Sabarimala Temple, can be guaranteed
only if the character of the deity as a ‘Naishtik Brahmachari’ is
preserved.  If women between the age of 10 to 50 years are permitted
entry, it would result in changing the very character/nature of the deity,
which would directly impinge on the right of the devotees to practise
their religion guaranteed by Article 25(1) of the Constitution.
The right of the devotees under Article 25(1) cannot be made
subject to the claim of the Petitioners to enter the temple under Articles
14 and 15 of the Constitution, since they do not profess faith in the deity
of this Temple, but claim merely to be social activists.
(xvi) Article 25(2)(b) declares that nothing in Article 25(1) shall
prevent the State from making any law providing for social welfare and
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reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. The ‘throwing open’ to
‘all classes and sections of Hindus’ was intended to redress caste-based
prejudices and injustices in society.
Article 25(2)(b) cannot be interpreted to mean that customs and
usages forming an essential part of the religion, are to be overridden.
Article 25(2)(b) would have no application since there is no ban,
but only a limited restriction during the notified period, based on faith,
custom and belief, which has been observed since time immemorial.
(xvii) The Respondents submitted that the plea of the Petitioners
with reference to Article 17, was wholly misconceived. The object and
core of Article 17 was to prohibit untouchability based on ‘caste’ in the
Hindu religion. No such caste-based or religion-based untouchability is
practised at the Sabarimala Temple.
The customs practised by the devotees at the Sabarimala Temple
do not flow from any practise associated with untouchability under Article
17. The custom is not based on any alleged impurity or disability.  Hence,
the contention was liable to be rejected.
6. DISCUSSION AND ANALYSIS
We have heard the arguments of the Counsel representing various
parties, and perused the pleadings and written submissions filed by them.
6.1. The issues raised in the present Writ Petition have far-reaching
ramifications and
implications, not only for the Sabarimala Temple in
Kerala, but for all places of worship of various religions in this country,
which have their own beliefs, practises, customsand usages, which may
be considered to be exclusionary in nature. In a secular polity, issues
which are matters of deep religious faith and sentiment, must not ordinarily
be interfered with by Courts.
6.2. In the past, the Courts,in the context of Hindu temples, have
been asked to identify the limits of State action under Articles 25 and 26
on the administration, control and management of the affairs of temples,
including the appointment of archakas. For instance, in the case of Adi
Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil
Nadu & Anr.16, this Court was asked to consider the issue of appointment
of archakas in Writ Petitions filed by an association of archakas and
individual archakas of Sri Meenakshi Amman Temple of Madurai.
 16 (2016) 2 SCC 725
[INDU MALHOTRA, J.]
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The present case is a PIL filed by an association of lawyers, who
have invoked the writ jurisdiction of this Court to review certain practises
being followed by the SabarimalaTemple on the grounds of gender
discrimination against women during the age-band of 10 to 50 years.
7. MAINTAINABILITY& JUSTICIABILITY
7.1. Article 25 of the Constitution guarantees to all persons the
freedom of conscience, and the right freely to profess, practise and
propagate religion. This is however subject to public order, morality and
health, and to the other provisions of Part III of the Constitution.
7.2. The right to move the Supreme Court under Article 32 for
violation of Fundamental Rights, must be based on a pleading that the
Petitioners’personal rights to worshipin this Temple have been violated.
The Petitioners do not claim to be devotees of the Sabarimala Temple
where Lord Ayyappais believed to have manifestedhimself as a ‘Naishtik
Brahmachari’. To determine the validity of long-standing religious
customs and usages of a sect, at the instance of an association/Intervenors
who are “involved in social developmental activities especially
activities related to upliftment of women and helping them become
aware of their rights”17, would require this Court to decide religious
questions at the behest of persons who do not subscribe to this faith.
The right to worship, claimed by the Petitioners has to be predicated
on the basis of
affirmation of a belief in the particular manifestation of
the deity in this Temple.
7.3. The absence of this bare minimum requirement must notbe
viewed as a mere technicality, but an essential requirement to maintain a
challenge for impugning practises of any religious sect, or denomination.
Permitting PILs in religious matterswould open the floodgates to
interlopers to question religious beliefs and practises, even if the petitioner
is not a believer of a particular religion, or a worshipper of a particular
shrine. The perils are even graver for religious minorities if such petitions
are entertained.
Dr.A.M. Singhvi, Senior Advocate appeared on behalf of
theTravancore Devaswom Board, and submitted an illustrative list of
various religious institutions where restrictions on the entry of both men
and women exist on the basis of religious beliefsand practises being
followed since time immemorial.18
 17 Paragraph 2 of the Writ Petition.
 18 Annexure C-8 in the Non-Case Law Convenience Compilation submitted by Dr.
A.M. Singhvi, Senior Advocate enlists places of worship where women are not
allowed.
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7.4. In matters of religion and religious practises,Article 14 can
be invoked only by persons who are similarly situated, that is, persons
belonging to the same faith, creed, or sect. The Petitioners do not state
that they are devotees of Lord Ayyappa, who are aggrieved by the
practises followed in the Sabarimala Temple. The right to equality under
Article 14 in matters of religion and religious beliefs has to be viewed
differently. It has to be adjudged amongst the worshippers of a particular
religion or shrine, who are aggrieved by certain practises which are
found to be oppressive or pernicious.
7.5. Article 25(1) confers on every individual the right to freely
profess, practise and propagate his or her religion.19 The right of an
individual to worship a specific manifestation of the deity, in accordance
with the tenets of that faith or shrine, is protected by Article 25(1) of the
Constitution. If a person claims to have faith in a certain deity, the same
has to be articulated in accordance with the tenets of that faith.
In the present case, the worshippers of this Temple believe in the
manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees
of this Temple have not challenged the practises followed by this Temple,
based onthe essential characteristics of the deity.
7.6. The right to practise one’sreligion is a Fundamental Right
guaranteed by Part III of the Constitution, without reference to
whether
religion or the religious practisesare rational or not. Religious practises
are Constitutionally protected under Articles 25 and 26(b). Courts normally
do not delve into issues of religious practises, especially in the absence
of an aggrieved personfrom that particular religious faith, or sect.
In Hans Muller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta &Ors.20, this Court held that a person can impugn a
particular law under Article 32 only if he is aggrieved by it.
This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple in
Pehowa, Haryana and Pushkar, Rajasthan; Bhavani Deeksha Mandapam in Vijaywada;
Patbausi Satra in Assam; Mangala Chandi Temple in Bokaro, Jharkhand.
   Annexure C-7 in the Non-Case Law Convenience Compilation submitted by Dr.
A.M. Singhvi, Senior Advocate enlists places of worship where women are not
allowed. This list includes the Temple of Lord Brahma in Pushkar, Rajasthan; the
Bhagati Maa Temple in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple in
Kerala; the Chakkulathukavu Temple in Kerala; and the Mata Temple in Muzaffarpur,
Bihar.
 19 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed.,
Reprint 1999), at Pg. 1274, para 12.35.
 20 (1955) 1 SCR 1284 : AIR 1955 SC 367.
[INDU MALHOTRA, J.]
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7.7. Precedents under Article 25 have arisen against State action,
and not been rendered in a PIL.
An illustrative list of such precedents is provided hereinbelow:
(i) In Commissioner, Hindu Religious Endowments, Madras v.
Shri Lakshimdra Thirtha Swamiar of Sri Shirur Mutt (supra), this
Court had interpreted Articles 25 and 26 at the instance of the
Mathadhipati or superior of the Shirur Mutt who was in-charge of
managing its affairs. The Mathadhipati was aggrieved by actions taken
by the Hindu Religious Endowments Board, which he claimed were
violative of Articles 25 and 26.
(ii) In Sri Venkataramana Devaru & Ors. v. State of Mysore &
Ors.(supra), this Court dealt with the question whether the rights under
Article 26(b) are subject to Article 25(2)(b), at the instance of the Temple
of Sri Venkataramana and its trustees who belonged to the sect known
as Gowda Saraswath Brahmins.
(iii) In Mahant Moti Das v. S.P. Sahi, The Special Officer In
Charge of Hindu Religious trust & Ors.21, this Court considered the
Constitutional validity of actions taken by the Bihar State Board of
Religious Trusts under the Bihar Hindu Religious Trusts Act, 1950 as
being violative of the Fundamental Rights of Mahants of certain Maths
or Asthals guaranteed, inter alia, under Articles 25 and 26.
(iv) In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali &
Ors. (supra), this Court was called upon to decide the Constitutionality
of the Durgah
Khwaja Saheb Act, 1955 in view of Articles 25 and 26,
inter alia, at the instance of Khadims of the Tomb of Khwaja
Moin-ud-din Chisti of Ajmer. The Khadims claimed to be a part of a
religious denomination by the name of Chishtia Soofies.
(v) In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay
(supra), this Court was called upon to test the Constitutionality of the
Bombay Prevention of Excommunication Act, 1949 on the ground that it
violated Fundamental Rights guaranteed under Articles 25 and 26 to the
petitioner who was the Dai-ul-Mutlaq or Head Priest of the Dawoodi
Bohra Community.
(vi) In Bijoe Emmanuel & Ors. v. State of Kerala & Ors.22,
three children belonging to a sect of Christianity called Jehovah’s
 21 1959 Supp (2) SCR 563 :AIR 1959 SC 942
 22 (1986) 3 SCC 615
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Witnesses had approached the Kerala High Court by way of Writ Petitions
to challenge the action of the Headmistress of their school, who had
expelled them for not singing the National Anthem during the morning
assembly. The children challenged the action of the authorities as being
violative of their rights under Articles 19(1)(a) and Article 25. This Court
held that the refusal to sing the National Anthem emanated from the
genuine and conscientious religious belief of the children, which was
protected under Article 25(1).
In a pluralistic society comprising of people with diverse faiths,
beliefs and traditions, to entertain PILs challenging religious practises
followed by any group, sect or denomination, could cause serious damage
to the Constitutional and secular fabric of this country.
8. APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION AND
RELIGIOUS PRACTISES
8.1. Religious customs and practises cannot be solely tested on
the touchstone of Article 14 and the principles of rationality embedded
therein. Article 25 specifically provides the equal entitlement of every
individual to freely practise their religion. Equal treatment under Article 25
is conditioned by the essential beliefs and practises of any religion. Equality
in matters of religion must be viewed in the context of the worshippers
of the same faith.
8.2. The twin-test for determining the validity of a classification
under Article 14 is:
• The
classification must be founded on an intelligible differentia;
and
• It must have a rational nexus with the object sought to be
achieved by the impugned law.
The difficulty lies in applying thetests under Article 14 to religious
practises which are also protected as Fundamental Rights under our
Constitution. The right to equality claimed by the Petitioners under
Article 14 conflicts with the rights of the worshippers of this shrine which
is also a Fundamental Right guaranteed by Articles 25, and 26 of the
Constitution. It would compel the Court to undertake judicial review
under Article 14 to delineate the rationality of the religious beliefs or
practises, which would be outside the ken of the Courts. It is not for the
courts to determine which of these practises of a faith are to be struck
[INDU MALHOTRA, J.]
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down, except if they are pernicious, oppressive, or a social evil, like Sati.
8.3. The submissions made by the Counsel for the Petitioners is
premised on the view that this practise constitutes gender discrimination
against women. On the other hand, the Respondents submit that the
present case deals with the right of the devoteesof this denomination or
sect, as the case may be, to practise their religion in accordance with the
tenets and beliefs, which are considered to be “essential” religious
practises of this shrine.
8.4. The Petitioners and Intervenors havecontended that the age
group of 10 to 50 years is arbitrary, and cannot stand the rigours of
Article 14. This submission cannot be accepted, since the prescription
of this age-band is the only practical way of ensuring that the limited
restriction on the entry of women is adhered to.
8.5. The right to gender equality to offer worship to Lord  Ayyappais
protected by permitting women of all ages, to visit temples where he has
not manifested himself in the form of a ‘Naishtik Brahamachari’, and
there is no similar restriction in those temples.It is pertinent to mention
that the Respondents, in this context, have submitted that there are over
1000 temples of Lord Ayyappa, where he has manifested in other forms,
and this restriction does not apply.
8.6. The prayers of the Petitioners if acceded to, in its true effect,
amounts to exercising powers of judicial review
in determining the validity
of religious beliefs and practises, which would be outside the ken of the
courts.The issue of what constitutes an essential religious practise is for
the religious community to decide.
9. APPLICABILITY OF ARTICLE 15
9.1. Article 15 of the Constitution prohibits differential treatment
of persons on the ground of ‘sex’ alone.
The limited restriction on the entry of women during the notified
age-groupbut in the deep-rooted belief of the worshippers that the deity
in the Sabarimala Temple has manifested in the form of a ‘Naishtik
Brahmachari’.
9.2. With respect to the right under Article 15, Mr. Raju
Ramachandran, Amicus Curiae had submitted that the Sabarimala Temple
would be included in the phrase “places of public resort”, as it occurs
in Article 15(2)(b).
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In this regard, reference may be made to the debates of the
Constituent Assembly on this issue. Draft Article 9 which corresponds
to Article 15 of the Constitution, is extracted for ready reference:
“9.Prohibition of discrimination on grounds of religion, race,
caste or sex – The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex or any of
them
(1) In particular, no citizen shall, on grounds only of religion,
race, caste, sex or any of them, be subject to any disability,
liability, restriction or condition with regard to—
a. access to shops, public restaurants, hotels and places
of public entertainments, or
b. the use of wells, tanks, roads and places of public resort
maintained wholly or partly out of the revenues of the State
or dedicated to the use of the general public.
(2) Nothing in this article shall prevent the State from making
any special provision for women and children.”23
Professor K.T. Shah proposed Amendment No. 293 for substitution
of sub-clauses (a) & (b) as follows:
“any place of public use or resort, maintained wholly or partly
out of the revenues of the State, or in any way aided,
recognised, encouraged or protected by the State, or place
dedicated to the use of general public like schools, colleges,
libraries, temples, hospitals, hotels and restaurants, places
of public entertainment, recreation or amusement, like theatres
and cinema-houses or
concert-halls; public parks, gardens
or museums; roads, wells, tanks or canals; bridges, posts and
telegraphs, railways, tramways and bus services; and the
like.”24
   (Emphasis supplied)
 23 Draft Constitution of India, Drafting Committee of the Constituent Assembly of
India (Manager Government of India Press, New Delhi, 1948) available at http://
1 4 . 1 3 9 . 6 0 . 1 1 4 : 8 0 8 0 / j s p u i / b i t s t r e a m / 1 2 3 4 5 6 7 8 9 / 9 6 6 / 7 /
Fundamental%20Rights%20%285-12%29.pdf
 24 Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29,
1948)
[INDU MALHOTRA, J.]
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The Vice-President took up Amendment No. 296 for vote, which
was moved for addition to sub-clause (a). The Amendment was proposed
as under:
“After the words of Public entertainment the words or places
of worship be inserted.”25
                    (Emphasis supplied and internal quotations omitted)
Amendment No. 301 was also proposed by Mr. Tajamul Hussain
for inclusion of: “places of worship”, “Dharamshalas, and Musafir
khanas”at the end of sub-clause (a).26
All these proposals were voted upon, and rejected by the
Constituent Assembly.27 The Assembly considered it fit not to include
‘places of worship’ or ‘temples’ within the ambit of Draft Article 9 of
the Constitution.
The conscious deletion of  “temples” and “places of worship”
from the Draft Article 9(1) has to be given due consideration. The
contention of the learned Amicus Curiae that the Sabarimala Temple
would be included within the ambit of ‘places of public resort’ under
Article 15(2) cannot be accepted.
10. ROLE OF COURTS IN MATTERS CONCERNING RELIGION
10.1. The role of Courts in matters concerning religion and religious
practises under our secular Constitutional set up is to afford protection
under Article 25(1) to those practises which are regarded as “essential”
or “integral” by the devotees, or the religious community itself.
In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra),
this Court noted that the personal views of judges are irrelevant in
ascertaining whether a particular religious belief or practise must receive
the protection guaranteed under Article 25(1). The following observations
of Chinnappa Reddy, J. are instructive in understanding the true role of
this Court in matters of religion:
“19…We may refer here to the observations of Latham, C.J. in
Adelaide Company of Jehovah’s Witnesses v. The
Commonwealth, a decision of the Australian High Court
quoted by Mukherjea, J. in the Shirur Mutt case. Latham,
C.J. had said:
 25 Statement of Vice-President, Constituent Assembly Debates (November 29, 1948)
 26 Statement of Mr. Mohd. Tahir, Constituent Assembly Debates (November 29,
1948)
 27 Constituent Assembly Debates (November 29, 1948)
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The Constitution protects religion within a community
organised under a Constitution, so that the continuance
of such protection necessarily assumes the continuance of
the community so organised. This view makes it possible to
reconcile religious freedom with ordered government. It
does not mean that the mere fact that the Commonwealth
Parliament passes a law in the belief that it will promote
peace, order and good government of Australia precludes
any consideration by a court of the question whether that
question by Parliament would remove all reality from the
constitutional guarantee. That guarantee is intended to limit
the sphere of action of the legislature. The interpretation
and application of the guarantee cannot, under our
Constitution, be left to Parliament. If the guarantee is to
have any real significance it must be left to the courts of
justice to determine its meaning and to give effect to it by
declaring the invalidity of laws which infringes it and by
declining to enforce them. The courts will therefore have
the responsibility of determining whether a particular law
can fairly be regarded, as a law to protect the existence of
the community, or whether, on the other hand, it is a law
for prohibiting the free exercise of any religion…
What Latham, C.J. has said about the responsibility of the
court accords with what we have said about the function of
the court when a claim to the Fundamental
Rights guaranteed
by Article 25 is put forward…
…20…In Ratilal’s case we also notice that Mukherjea, J.
quoted as appropriate Davar, J.’s following observations in
Jamshed Ji v. Soonabai:
If this is 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.
We do endorse the view suggested by Davar, J.’s observation
that the question is not whether a particular religious belief
[INDU MALHOTRA, J.]
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is genuinely and conscientiously held as a part of the
profession or practise of religion. Our personal views and
reactions are irrelevant. If the belief is genuinely and
conscientiously held it attracts the protection of Article 25
but subject, of course, to the inhibitions contained therein.”
     (Emphasis supplied; internal quotations and footnotes omitted)
10.2. At this juncture, it would be apposite to deal with certain
observations made by Gajendragadkar, J. in Durgah Committee, Ajmer
& Anr. v. Syed Hussain Ali & Ors. (supra), and Tilkayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra).
In Durgah Committee, Ajmer & Anr. v.  Syed Hussain Ali &
Ors. (supra), a reference was made as to how practises emanating
from superstition “…may in that sense be extraneous, and unessential
accretions to religion itself…”.28
Similarly, in Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. (supra), an argument was made by Senior Advocate
G.S. Pathak relying on the statement of Latham, C.J. in Adelaide
Company of Jehovah’s Witnesses Incorporated v. The Commonwealth
(supra) that “…what is religion to one is superstition to another…”29.
The argument was rejected by Gajendragadkar, J. as being “…of no
relevance…”.30
Mr. H.M. Seervai, well-known Constitutional expert and jurist, in
his seminal treatise titled ‘Constitutional Law of India: A Critical
Commentary’, has remarked that the observations
of Gajendragadkar, J.
in Durgah Committee, Ajmer &Anr. v. Syed Hussain Ali & Ors. (supra)
are obiter. It is inconsistent with the observations of Mukherjea, J. in
the previous decision of a Constitution Bench of seven Judges in
Commissioner, Hindu Religious Endowments, Madrasv. Shri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), and a
Constitution Bench of five Judges in RatilalPanachand Gandhi v. The
State of Bombay & Ors.31. Mr. Seervai comments as under:
 28 (1962) 1 SCR 383 :AIR 1961 SC 1402 : at paragraph 33
 29 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59
 30 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59
 31 1954 SCR 1055 : AIR 1954 SC 388
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“12.18…Although it was wholly unnecessary to do so,
Gajendragadkar, J. said:
…it may not be out of place incidentally to strike a note of
caution and observe that in order that the practises 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 practises 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 practises within the meaning of
Article 26. Similarly, even practises though religious may
have sprung from merely superstitious beliefs and may in
that sense be extraneous and unessential accretions to
religion itself. Unless such practises are found to constitute
an essential and integral part of a religion their claim for
the protection under Article 26 may have to be carefully
scrutinised; in other words, the protection must be confined
to such religious practises as are an essential and an
integral part of it and no other.
It is submitted that the above obiter runs directly counter to
the judgment of Mukherjea, J.in the Shirur Mutt Case and
substitutes the view of the court for the view of the
denomination on what is essentially a matter of religion. The
reference to superstitious practises is singularly unfortunate,
for what is ‘superstition’ to one section of the public may be a
matter of
fundamental religious belief to another. Thus, for
nearly 300 years bequests for masses for the soul of a testator
were held void as being for superstitious uses, till that view
was overruled by the House of Lords in Bourne v. Keane. It is
submitted that in dealing with the practise of religion protected
by provisions like those contained in s. 116, Commonwealth
of Australia Act or in Article 26(b) of our Constitution, it is
necessary to bear in mind the observations of Latham C.J.
quoted earlier, namely, that those provisions must be regarded
as operating in relation to all aspects of religion, irrespective
of varying opinions in the community as to the truth of a
particular religious doctrine or the goodness of conduct
prescribed by a particular religion or as to the propriety of
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any particular religious observance. The obiter of
Gajendragadkar J. in the Durgah Committee case is also
inconsistent with the observations of Mukherjea J. in Ratilal
Gandhi Case, that the decision in Jamshedjiv.Soonabai
afforded an indication of the measure of protection given by
Article 26(b).”32
   (Emphasis supplied)
Mr. Seervai also criticised the observations of this Court in Tilkayat
Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra)
as follows:
“12.66 In Tilkayat Shri Govindlalji v. Rajasthan
Gajendragadkar J. again adverted to the rights under Arts.
25(1) and 26(b) and stated that if a matter was obviously
secular and not religious, a Court would be justified in
rejecting its claim to be a religious practise, as based on
irrational considerations. It is submitted that the real question
is whether the religious denomination looks upon it as an
essential part of its religion, and however irrational it may
appear to persons who do not share that religious belief, the
view of the denomination must prevail, for, it is not open to a
court to describe as irrational that which is a part of a
denomination’s religion. The actual decision in  the case, that
the right to manage the property was a secular matter, is
correct, but that is because, as pointed out by Mukherjea J.,
Art. 26(b) when constrasted with Art. 26(c) and (d) shows
that matters of religious belief and practises are distinct and
separate
from the management of property of a religious
denomination. The distinction between religious belief and
practises which cannot be controlled, and the management
of the property of a religious denomination which can be
controlled to a limited extent, is recognised by the Article itself
and must be enforced. But this distinction is not relevant to
the question whether a religious practise is itself irrational
or secular.”33
                                                                 (Emphasis supplied)
 32 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed.,
Reprint 1999), paragraph 12.18 at p. 1267-1268
 33 Id. at paragraph 12.66 at p. 1283
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J. Duncan M. Derrett, a well-known Professor of Oriental Laws,
highlights the problems in applying the “essential practises test” in his
book titled ‘Religion, Law and State in Modern India’as follows:
“In other words the courts can determine what is an integral
part of religion and what is not. The word essential is now in
familiar use for this purpose. As we shall there is a context in
which the religious community is allowed freedom to determine
what is ‘essential’ to its belief and practise, but the individual
has no freedom to determine what is essential to his religion,
for if it were otherwise and if the law gave any protection to
religion as determined on this basis the State’s power to protect
and direct would be at an end. Therefore, the courts can
discard as non-essentials anything which is not proved to their
satisfaction – and they are not religious leaders or in any
relevant fashion qualified in such matters—to be essential,
with the result that it would have no Constitutional protection.
The Constitution does not say freely to profess, practise and
propagate the essentials of religion, but this is how it is
construed.”34
                   (Emphasis supplied and internal quotations omitted)
10.3. The House of Lords in Regina v. Secretary of State for
Education and Employment & Ors.35, held that the court ought not to
embark upon an enquiry into the validity or legitimacy of asserted beliefs
on
the basis of objective standards or rationality. The relevant extract
from the decision of the House of Lords is reproduced hereinbelow:
“It is necessary first to clarify the court’s role in identifying a
religious belief calling for protection under article 9. When
the genuineness of a claimant’s professed belief is an issue in
the proceedings the court will enquire into and decide this
issue as a question of fact. This is a limited inquiry. The Court
is concerned to ensure an assertion of religious belief is made
in good faith: neither fictitious, nor capricious, and that it is
not an artifice, to adopt the felicitous phrase of Iacobucci J
in the decision of the Supreme Court of Canada in Syndicat
Northcrest v. Amselem (2004) 241 DLR (4th) 1, 27, para 52.
But, emphatically, it is not for the Court to embark on an
 34 J. Duncan M. Derett, Religion, Law and the State in India (1968), at p. 447
 35 [2005] UKHL 15
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inquiry into the asserted belief and judge its validity by some
objective standard such as the source material upon which
the claimant founds his belief or the orthodox teaching of the
religion in question or the extent to which the claimant’s belief
conforms to or differs from the views of others professing the
same religion. Freedom of religion protects the subjected belief
of an individual. As Iacobucci J also noted, at page 28, para
54, religious belief is intensely personal and can easily vary
from one individual to another. Each individual is at liberty
to hold his own religious beliefs, however irrational or
inconsistent they may seem to some, however surprising. The
European Court of Human Rights has rightly noted that in
principle, the right to freedom of religion as understood in
the Convention rules out any appreciation by the State of the
legitimacy of religious beliefs or of the manner in which these
are expressed: Metropolitan Church of Bessarabia v Moldova
(2002) 35 EHRR 306, 335, para 117. The relevance of
objective factors such as source material is, at most, that they
may throw light on whether the professed belief is genuinely
held.”
     (Emphasis supplied and internal quotations omitted)
10.4. In Eddie C. Thomas v. Review Board of the Indiana
Employment Security Division36, the U.S. Supreme Court was dealing
with a case where the Petitioner, who had terminated his job on account
of his religious
beliefs which forbade him from partaking in the production
of armaments, was denied unemployment compensation benefits by the
State. The Court noted that the determination of what constitutes a
religious belief or practise is a very “difficult and delicate task”, and
noted as follows about the role of a Constitutional Court:
“…The determination of what is a religious belief or practise
is more often than not a difficult and delicate task…However,
the resolution of that question is not to turn upon a judicial
perception of the particular belief or practise in question;
religious beliefs need not be acceptable, logical, consistent,
or comprehensible to others in order to merit First Amendment
protection…
 36 450 U.S. 707 (1981)
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…The Indiana court also appears to have given significant
weight to the fact that another Jehovah’s Witness had no
scruples about working on tank turrets; for that other Witness,
at least, such work was scripturally acceptable. Intrafaith
differences of that kind are not uncommon among followers
of a particular creed, and the judicial process is singularly
ill equipped to resolve such differences in relation to the
Religious Clauses…Particularly in this sensitive area, it is not
within the judicial function and judicial competence to inquire
whether the petitioner or his fellow worker more correctly
perceived the commands of their common faith. Courts are
not arbiters of scriptural interpretation.”
   (Emphasis supplied; internal quotations, and footnotes omitted)
This view was re-iterated by the U.S. Supreme Court in the
following decisions:
• United States v. Edwin D. Lee37, wherein it was held as follows:
“…It is not within the judicial function and judicial
competence, however, to determine whether appellee or
the Government has the proper interpretation of the Amish
faith; courts are not arbiters of scriptural interpretation…”
                         (Emphasis supplied; internal quotations omitted)
• Robert L. Hernandez v. Commissioner of Internal Revenue38,
wherein the Court noted:
“…It is not within the judicial ken to question the centrality
ofparticular beliefs or practises to a faith or the validity
of particular litigants interpretations of those creeds...”
                        (Emphasis supplied; internal quotations omitted)
• Employment Division, Department of Human Resources of
Oregon v. Alfred L. Smith39, wherein Scalia, J. noted as follows:
“…It is no more appropriate for judges to determine the
centrality of religious beliefs before applying a compelling
interest test in the free exercise field, than it would be for
 37 455 U.S. 252 (1982)
 38 490 U.S. 680 (1989)
 39 494 U.S. 872 (1990)
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them to determine the importance of ideas before applying
the compelling interest test in the free speech field. What
principle of law or logic can be brought to bear to
contradict a believer’s assertion that a particular act is
central to his personal faith? Judging the centrality of
different religious practises is akin to the unacceptable
business of evaluating the relative merits of differing
religious claims…As we reaffirmed only last Term, it is not
within the judicial ken to question the centrality of
particular beliefs or practises to a faith, or the validity of
particular 
litigants 
interpretations 
of 
those
creeds…Repeatedly and in many different contexts we have
warned that courts must not presume to determine the place
of a particular belief in a religion or the plausibility of a
religious claim…”
                         (Emphasis supplied; internal quotations omitted)
10.5. The observations of Chinnappa Reddy, J. in Bijoe Emmanuel
& Ors. v. State of Kerala & Ors. (supra) are instructive in understanding
the nature of the protection afforded under Article 25, and the role of the
Court in interpreting the same. The relevant extract from the opinion of
Chinnappa Reddy, J. is extracted hereinbelow:
“18. Article 25 is an article of faith in the Constitution,
incorporated in recognition of the principle that the real test
of a true democracy is the ability of even an insignificant
minority to find its
identity under the country’s Constitution.
This has to borne in mind in interpreting Article 25…”
10.6. A reference to the following extracts from the judgment of
Khehar, C.J.I. in Shayara Bano v. Union of India & Ors.40  is also
instructive with respect to the role of Courtsin matters concerning religious
faiths and beliefs:
“389. It is not difficult to comprehend what kind of challenges
would be raised by rationalist assailing practises of different
faiths on diverse grounds, based on all kinds of enlightened
sensibilities. We have to be guarded lest we find our conscience
traversing into every nook and corner of religious practises,
and Personal Law. Can a court, based on a righteous
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endeavour, declare that a matter of faith be replaced, or be
completely done away with?...This wisdom emerging from
judgments rendered by this Court is unambiguous namely, that
while examining the issues falling in the realm of religious
practises or Personal Law, it is not for a court to make a
choice of something which it considers as forward-looking
or non-fundamentalist. It is not for a court to determine
whether religious practises were prudent or progressive or
regressive. Religion and Personal Law, must be perceived, as
it is accepted by the followers of the faith…”
                   (Emphasis supplied and internal quotations omitted)
10.7. The following extract from the concurring judgment of
Chinnappa Reddy, J. in S.P. Mittal v. Union of India & Ors. (supra) is
pertinent with respect to the approach to be adopted by Courts whilst
dealing with matters concerning religion:
“2…What is religion to some is pure dogma to others and what
is religion to others is pure superstition to some others…But
my views about religion, my prejudices and my predilections,
if they be such, are entirely irrelevant. So are the views of the
credulous, the fanatic, the bigot and the zealot. So also the
views of the faithful, the devout, the acharya, the moulvi, the
padre and the bhikhshu each of whom may claim his as the
only true or revealed religion. For our purpose, we are
concerned with what the people of the Socialist,
Secular,
Democratic Republic of India, who have given each of its
citizens freedom of conscience and the right to freely profess,
practise and propagate religion and who have given every
religious denomination the right to freely manage its religious
affairs, mean by the expressions religion and religious
denomination. We are concerned with what these expressions
are designed to mean in Articles 25 and 26 of the Constitution.
Any freedom or right involving the conscience must naturally
receive a wide interpretation and the expression religion and
religious denomination must therefore, be interpreted in no
narrow, stifling sense but in a liberal, expansive way.”
                   (Emphasis supplied and internal quotations omitted)
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10.8. The Constitution lays emphasis on social justice and equality.
It has specifically provided for social welfare and reform, and throwing
open of Hindu religious institutions of a public character to all classes
and sections of Hindus through the process of legislation in Article
25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision
which permits the State to redress social inequalities and injustices by
framing legislation.
It is therefore difficult to accept the contention that Article 25(2)(b)
is capable of application without reference to an actual legislation. What
is permitted by Article 25(2) is State made law on the grounds specified
therein, and not judicial intervention.
10.9. In the present case, the 1965 Act is a legislation framed in
pursuance of Article 25(2)(b) which provides for the throwing open of
Hindu places of public worship. The proviso to Section 3 of the 1965
Act carves out an exception to the applicability of the general rule
contained in Section 3, with respect to religious denominations, or sect(s)
thereof, so as to protect their right to manage their religious affairs without
outside interference.
Rule 3(b) gives effect to the proviso of Section 3 insofar as it
makes a provision for restricting the entry of women at such times when
they are not by custom or usage allowed to enter of place of public
worship.
10.10. The Respondents claim the right to worship in the
Sabarimala Temple under Article 25(1) in accordance with their beliefs
and practises as per the tenets of their religion. These practises are
considered to be essential or integral to that Temple. Any interference
with the same would conflict with their right guaranteed by Article 25(1)
to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.
10.11. In other jurisdictions also, where State made laws were
challenged on grounds of public morality, the Courts have refrained from
striking down the same on the ground that it is beyond the ken of the
Courts.
10.12. For instance, the U.S. Supreme Court in Church of Lukumi
Babalu Aye v. City of Hialeah,41 an animal cruelty law made by the
City Council was struck down as being violative of the Free Exercise
clause. The Court held:
41 508 U.S. 520 (1993)
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“The extent to which the Free Exercise clause requires
Government to refrain from impeding religious exercise defines
nothing less than the respective relationships in our
Constitutional democracy of the individual to Government,
and to God. ‘ Neutral, generally applicable ’ laws, drafted as
they are from the perspective of the non-adherent, have the
unavoidable potential of putting the believer to a choice
between God and Government. Our cases now present
competing answers to the question when Government, while
pursuing secular ends may compel disobedience to what one
believes religion commands.”
                                                                (Emphasis supplied)
10.13. Judicial review of religious practises ought not to be
undertaken, as the Court cannot impose its morality or rationality with
respect to the form of worship of a deity. Doing so would negate the
freedom to practise one’s religion according to one’s faith and beliefs. It
would amount to rationalising religion, faith and beliefs, which is outside
the ken of Courts.
11. CONSTITUTIONAL MORALITY IN MATTERS OF RELIGION IN A SECULAR
POLITY
11.1. The Petitionershave contended that the practise of restricting
women of a particular age group runs counter to the underlying theme
of equality and non-discrimination, which is contrary to Constitutional
Morality. Rule 3(b) of the 1965 Rules has been challenged as being
violative
ofConstitutional Morality.
11.2. India is a country comprising of diverse religions, creeds,
sects each of which have their faiths, beliefs, and distinctive practises.
Constitutional Morality in a secular polity would comprehend the freedom
of every individual, group, sect, or denomination to practise their religion
in accordance with their beliefs, and practises.
11.3. The Preambleto the Constitution secures to all citizens of
this country liberty of thought, expression, belief, faith and worship. Article
25 in Part III of the Constitution make freedom of conscience a
Fundamental Right guaranteed to all persons who are equally entitled to
the right to freely profess, practise and propagate their respective religion.
This freedom is subject to public order, morality and health, and to the
other provisions of Part III of the Constitution.
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Article 26 guarantees the freedom to every religious denomination,
or any sect thereof, the right to establish and maintain institutions for
religious purposes, manage its own affairs in matters of religion, own
and acquire movable and immovable property, and to administer such
property in accordance with law. This right is subject to public order,
morality and health. The right under Article 26 is not subject to Part III
of the Constitution.
11.4. The framers of the Constitution were aware of the rich
history and heritage of this country being a secular polity, with diverse
religions and faiths, which were protected within the fold of Articles 25
and 26. State interference was not permissible, except as provided by
Article 25(2)(b) of the Constitution, where the State may make law
providing for social welfare and reform.
11.5. The concept of Constitutional Morality refers to the moral
values underpinning the text of the Constitution, which are instructive in
ascertaining the true meaning of the Constitution, and achieve the objects
contemplated therein.
11.6. Constitutional Morality in a pluralistic society and secular
polity would reflect that the followers of various sects have the freedom
to practise their faith in accordance with the tenets of their religion. It is
irrelevant whether the practise is rational or logical. Notions of rationality
cannot be invoked in matters of religion by courts.
11.7. The followers
of this denomination, or sect, as the case may
be, submit that the worshippers of this deity in Sabarimala Temple even
individually have the right to practise and profess their religion under
Article 25(1) in accordance with the tenets of their faith, which is
protected as a Fundamental Right.
11.8. Equality and non-discrimination are certainly one facet of
Constitutional Morality. However, the concept of equality and non-
discrimination in matters of religion cannot be viewed in isolation. Under
our Constitutional scheme, a balance is required to be struck between
the principles of equality and non-discrimination on the one hand, and
the protection of the cherished liberties of faith, belief, and worship
guaranteed by Articles 25 and 26 to persons belonging to all religions in
a secular polity, on the other hand. Constitutional morality requires the
harmonisation or balancing of all such rights, to ensure that the religious
beliefs of none are obliterated or undermined.
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A Constitution Bench of five-Judges in Sahara India Real Estate
Corporation Limited & Ors. v. Securities and Exchange Board of
India & Anr.42 had highlighted the role of this Court as an institution
tasked with balancing the various Fundamental Rights, guaranteed under
Part III. It was noted that:
“25. At the outset, it may be stated that Supreme Court is not
only the sentinel of the fundamental rights but also a
balancing wheel between the rights, subject to social
control…under our Constitution no right in Part III is absolute.
Freedom of expression is not an absolute value under our
Constitution. It must not be forgotten that no single value, no
matter exalted, can bear the full burden of upholding a
democratic system of government. Underlying our
constitutional system are a number of important values, all of
which help to guarantee our liberties, but in ways which
sometimes conflict. Under our Constitution, probably, no
values are absolute. Allimportant values, therefore, must be
qualified and balanced against other important, and often
competing, values.”
The Constitutional necessity of balancing various Fundamental
Rights has also been emphasised in the decision of this Court in
Subramaniam Swamy v. Union of India, Ministry of Law & Ors.43.
In Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj & Ors. v. The State of Gujarat & Ors.44, a Constitution
Bench, in the context of Article 26, noted that
it is a duty of this Court to
strike a balance, and ensure that Fundamental Rights of one person
co-exist in harmony with the exercise of Fundamental Rights of others.
It is the Constitutional duty of the Court to harmonise the rights of
all persons, religious denominations or sects thereof, to practise their
religion according to their beliefs and practises.
12. RELIGIOUS DENOMINATION
12.1. Article 26 of the Constitution guarantees the freedom to
every religious denomination, or sect thereof, the right to establish and
maintain institutions for religious or charitable purposes, and to manage
 42 (2012) 10 SCC 603
 43 (2016) 7 SCC 221
 44 (1975) 1 SCC 11
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their own affairs in matters of religion. The right conferred under Article
26 is subject to public order, morality and health, and not to any other
provisions in Part III of the Constitution.
12.2. A religious denomination or organisation enjoys complete
autonomy in matters of deciding what rites and ceremonies are essential
according to the tenets of that religion. The only restriction imposed is
on the exercise of the right being subject to public order, morality and
health under Article 26.
The Respondents assert that the devotees of the Sabarimala
Temple constitute a religious denomination, or a sect thereof, and are
entitled to claim protection under Article 26 of the Constitution.
12.3. Article 26 refers not only to religious denominations, but
also to sects thereof. Article 26 guarantees that every religious
denomination, or sect thereof, shall have the right inter alia to manage
its own affairs in matters of religion. This right is made subject to public
order, morality, and health.
The Travancore Devaswom Board, and the other Respondents
have asserted that the followers of the Sabarimala Temple constitute a
religious denomination having a distinct faith, well- identified practises,
being followed since time immemorial. The worshippers of this shrine
observe the tenets of this faith, and are addressed as “Ayyappans.”
The Notifications issued by the Travancore Devaswom Board in 1955
and1956 refer to the
devotees of the Sabarimala Temple as
“Ayyappans”.
Given the identical phraseology, only the Notification dated
November 27, 1956 is set out herein below for ready reference:
“
NOTIFICATION
In accordance with the fundamental principles underlying the
Prathishta (installation) of the venerable holy and ancient
temple of Sabarimala, Ayyappans who had not observed the
usual vows as well as women who had attained maturity were
not in the habit of entering the above mentioned temple for
Darsan (worship) by stepping the Pathinettampadi. But of
late, there seems to have been a deviation from this custom
and practise. In order to maintain the sanctity and dignity of
this great temple and keep up the past traditions, it is hereby
notified that Ayyappans who do not observe the usual Vritham
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(vows) are prohibited from entering the temple by stepping
the pathinettampadi and women between the ages of ten and
fifty five are forbidden from entering the temple.
Ambalapuzha
27-11-‘56
  Assistant Devaswon Commissioner.”
                                                                (Emphasis supplied)
The worshippers of Lord Ayyappa at the Sabarimala Temple
together constitute a religious denomination, or sect thereof, as the case
maybe,follow a common faith, and have common beliefs and practises.
These beliefs and practises are based onthe belief that Lord Ayyappahas
manifested himself in the form of a ‘Naishtik Brahmachari’.The
practises include the observance by the Ayyappans of the 41-day
‘Vratham’,which includes observing abstinence and seclusion from the
women-folk, including one’s spouse, daughter, or other relatives. This
pilgrimage includes bathing in the holy River Pampa, and ascending the
18 sacred steps leading to the sanctum sanctorum.
The restriction on women between the ages of 10 to 50 years
from entering the Temple has to be understood in this context.
12.4. The expression “religious denomination” as interpreted in
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), was “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”.45 The Court held that each of the
sects or sub-sects of the Hindu religion could be called a religious
denomination, as such sects or sub-sects, had a distinctive name.
12.5. In S.P. Mittal v. Union of India & Ors. (supra), this Court,
while relying upon the judgment in Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar
of Shirur Mutt (supra), held that 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
satisfy three conditions:
“80.(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;
 45 1954 SCR 1005, at paragraph 15
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(2) common organisation; and
(3) designation by a distinctive name.”
12.6. On a somewhat different note, Ayyangar, J. in Sardar Syedna
Taher Saifuddin Saheb v. State of Bombay (supra) in his separate
judgment, expressed this term to mean identity of its doctrines, creeds,
and tenets, which are intended to ensure the unity of the faith which its
adherents profess, and the identity of the religious views which bind
them together as one community.
12.7. The meaning ascribed to religious denomination by this Court
in Commissioner, Hindu Religious Endowments case (supra), and
subsequent cases is not a strait-jacket formula, but a working formula.It
provides guidance to ascertain whether a group would fall within a
religious denomination or not.
12.8. If there are clear attributes that there exists a sect, which is
identifiable as being distinct by its beliefs and practises, and having a
collection of followers who follow the same faith, it would be identified
as a ‘religious denomination’.
In this context, reference may be made to the concurring judgment
of Chinnappa Reddy, J. in the decision of this Court in S.P. Mittal v.
Union of India & Ors. (supra) wherein he noted that the judicial definition
of a religious denomination laid down by this Court is, unlike a statutory
definition, a mere explanation. After observing that any freedom or right
involving the conscience must be given a wide interpretation, and the
expressions ‘religion’ and ‘religious denomination’ must be interpreted
in a “liberal, expansive way”:
“21…the expression religious denomination may be defined
with less difficulty. As we mentioned earlier Mukherjea, J.,
borrowed the meaning of the word denomination from the
Oxford Dictionary and adopted it to define religious
denomination as 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. The followers of Ramanuja, the followers of
Madhwacharya, the followers of Vallabha, the Chistia Soofies
have been found or assumed by the Court to be religious
denominations. It will be noticed that these sects possess no
distinctive names except that of their founder-teacher and
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had no special organisation except a vague, loose – un-knit
one. The really distinctive feature about each one of these
sects was a shared belief in the tenets taught by the teacher-
founder. We take care to mention here that whatever the
ordinary features of a religious denomination may be
considered to be, all are not of equal importance and surely
the common faith of the religious body is more important than
the other features…Religious denomination has not to owe
allegiance to any parent religion. The entire following of a
religion may be no more than the religious denomination. This
may be particularly be so in the case of small religious groups
or developing religions, that is, religions in the formative
stage.”
                    (Emphasis supplied and internal quotationsomitted)
12.9. The Respondents have made out a strong and plausible case
that the worshippers of the Sabarimala Temple have the attributes of a
religious denomination, or sect thereof, for the reasons enumerated
hereinbelow:
i. The worshippers of Lord Ayyappaat Sabarimala Temple
constitute a religious denomination, or sect thereof, as the case
maybe, following the ‘Ayyappan Dharma’. They are designated
by a distinctive name wherein all male devotees are called
‘Ayyappans’; all female devotees below the age of 10 years
and above the age of 50 years, are called ‘Malikapurnams’. A
pilgrim on their maiden trip to Sabarimala Temple is
called a
‘Kanni Ayyappan’. The devotees are referred to
as‘Ayyappaswamis’. A devotee has to observe the ‘Vratham’,
and follow the code of conduct, before embarking upon the
‘Pathinettu Padikal’ to enter the Temple at Sabarimala.
ii.Thedevotees follow an identifiable set of beliefs, customs and
usages,and code of conduct which are being practised since
time immemorial, and are founded in a common faith.The
religious practises being followed in this Temple are founded on
the belief that the Lord has manifested himself in the form of a
‘Naishtika Brahmachari’. It is because of this nishtha, that
women between the ages of 10 to 50 years, are not permitted to
enter the temple.
[INDU MALHOTRA, J.]
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The practises followed by this religious denomination, or sect
thereof, as the case maybe,constitute a code of conduct, which
is a part of the essential spiritual discipline related to this
pilgrimage. As per the customs and usages practised in the
Sabarimala Temple, the 41-day ‘Vratham’ is a condition
precedent for undertaking the pilgrimage to the Sabarimala
Temple.
The Respondents submit that the beliefs and practises being
followed by them have been imparted by the deity himself to
the King of Pandalam who constructed this Temple. The
teachings of the Lord are scripted in the Sthal Purana of this
Temple, known as the‘Bhuthanatha Geetha’.
Reference to the custom and usage restricting the entry of
women belonging to the age group of 10 to 50 years is
documented in the Memoir of the Survey of the Travancore
and Cochin States46 published in two parts in 1893 and
1901written by Lieutenants Ward and Conner.
iii. This Temple owned vast landed properties from which the
Temple was being maintained. These were taken over by the
State, subject to the obligation to pay annuities to the Temple
from the coffers of the State, as is evident from the Devaswom
Proclamation47 dated 12th April 1922 issued by the Maharaja of
Travancore, on which reliance was placed by Mr. J. Sai Deepak,
Advocate.
When the erstwhile State of Travancore merged with the Union
of India, the obligation of paying annuities for the landed
properties, was
transferred to the Government of India.
iv. TheTemple is managed by the Travancore Devaswom Board.
It does not receive funds from the Consolidated Fund of India,
which would give it the character of ‘State’ or ‘other authorities’
under Article 12 of the Constitution.
In any event, Article 290A does not in any manner take away
the denominational character of the Sabarimala Temple, or the
Fundamental Rights under Article 26.
 46 Supra note 9
 47Annexure I, Written Submissions by J. Sai Deepak, learned Advocate on Behalf of
K.K. Sabu (Respondent No. 18), and People for Dharma (Intervenor).
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12.10. The issue whether the Sabarimala Temple constitutes a
‘religious denomination’, or a sect thereof, is a mixed question of fact
and law. It is trite in law that a question of fact should not be decided in
writ proceedings. The proper forum to ascertain whether a certain sect
constitutes a religious denomination or not, would be more appropriately
determined by a civil court, where both parties are given the opportunity
of leading evidence to establish their case.
In Arya Vyasa Sabha & Ors. v. Commissioner of Hindu
Charitable and Religious Institutions & Endowments, Hyderabad
&Ors.48, this Court had noted that the High Court was correct in leaving
the question open, of whether the petitioners constituted a religious
denomination for determination by a competent civil court on the ground
that it was a disputed question of fact which could not be appropriately
determined in proceedings under Article 226.
12.11. This Court has identified the rights of a group of devotees
as constituting a religious denomination in the context of a single temple,
as illustrated hereinbelow:
In (supra), the Sri Venkataramana Temple at Moolky was
considered to be a denominational temple, and the Gowda Saraswath
Brahmins were held to constitute a religious denomination.
Similarly, in Dr. Subramaniam Swamy v. State of Tamil Nadu
(supra) the Podhu Dikshitars were held to constitute a religious
denomination in the context of the
Sri Sabanayagar Temple at
Chidambaram.
12.12. The contention of the Petitioners that since the visitors to
the temple are not only from the Hindu religion, but also from other
religions, the worshippers of this Temple would not constitute a separate
religious sect.
This argument does not hold water since it is not uncommon for
persons from different religious faiths to visit shrines of other religions.
This by itself would not take away the right of the worshippers of this
Temple who may constitute a religious denomination, or sect thereof.
12.13. TheConstitution ensures a place for diverse religions,
creeds, denominations and sects thereof to co-exist in a secular society.
It is necessary that the term ‘religious denomination’ should receive an
 48 (1976) 1 SCC 292
[INDU MALHOTRA, J.]
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interpretation which is in furtherance of the Constitutional object of a
pluralistic society.
13. ESSENTIAL PRACTISES DOCTRINE
This Court has applied the ‘essential practises’ test to afford
protection to religious practises.
13.1. The ‘essential practises’ test was formulated in
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra).
Before articulating the test, this Court drew on the words “practise
of religion” in Article 25(1) to hold that the Constitution protects not only
the freedom of religious belief, but also acts done in pursuance of a
religion. In doing so, it relied on an extract from the decision of Latham,
C.J. of the High Court of Australia in Adelaide Company of Jehovah’s
Witnesses Incorporated v. The Commonwealth.49 The original extract
relied upon has been reproduced hereinbelow:
“5.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 s. 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.”
                                                                (Emphasis supplied)
This Court then went on to formulate the ‘essential practises test
in the following words:
“20…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
 49 67 CLR 116
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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…all of them are religious
practises and should be regarded as matters of religion within
the meaning of Article 26(b)…
…23. 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.”
                                                                 (Emphasis supplied)
13.2. The ‘essential practises test’ was reiterated in Ratilal
Panachand Gandhi v. The State of Bombay & Ors.50, where the
narrow definition of “religion” given by the Bombay High Court was
discarded.It was held that all religious practises or performances of acts
in pursuance of religious beliefs were as much a part of religion, as faith
or belief in particular doctrines. This Court re-iterated the ‘essential
practises test’ in the following words:
“13…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…We may refer in this connection to the observation
of Davar, J. in the case of Jamshed ji v. Soonabai 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
 50 (1954) SCR 1055 : AIR 1954 SC 388
[INDU MALHOTRA, J.]
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bag, Vyezashni, etc., which are sanctioned by the Zoroastrian
religion were valid and 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
the 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.”
                     (Emphasis supplied and internal quotations omitted)
13.3. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali
& Ors. (supra), the ‘essential practises test’ was discussed by a
Constitution Bench in the following words:
“33…Whilst we are dealing with this point it may not be out of
place incidentally to strike a note of caution and observe
that in order that the practises 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
practises 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 practises within
the meaning of Article 26. Similarly, even practises though
religious may have sprung from merely superstitious beliefs
and may in that sense be extraneous and unessential
accretions to religion itself. Unless such practises are found
to constitute an essential and integral part of a religion their
claim for the protection under Article 26 may have to be
carefully scrutinised; in other words, the protection must be
confined to such religious practises as are an essential and
an integral part of it and no other.”
                                                                 (Emphasis supplied)
This Court affirmed the ‘essential practises test’ as laid in the
previous decisions in Commissioner, Hindu Religious Endowments,
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Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(supra), and Ratilal Panachand Gandhi v. The State of Bombay &
Ors.(supra) insofar as it emphasised on the autonomy of religions to
identify essential or integral practises.
13.4. In Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. (supra), it was clarified that courts will intervene
where conflicting evidence is produced in respect of rival contentions as
to competing religious practises. It was held that:
“57. In deciding the question as to whether a given religious
practise 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 practise in relation to food or dress. If in a given
proceeding, one section of the community claims that while
performing certain rites white dress is an integral part of the
religion itself, whereas another section contends that yellow
dress and not the white dress is the essential part of 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 practises the Court may not be able to
resolve the dispute by a blind application of the formula that
the community decides which
practise in [sic] 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
practise 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…”
                                                                 (Emphasis supplied)
13.5. In Bijoe Emmanuel &Ors. v.  State of Kerala & Ors.
(supra), this Court emphasised that for a religious practise to receive
[INDU MALHOTRA, J.]
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protection under Article 25(1) it must be “genuinely”, and “conscientiously”
held by persons claiming such rights. This Court had noted that such
religious beliefs and practises must be consistently and not “idly” held,
and should not emanate out of “perversity”. In doing so, it re-affirmed
that the Constitutional fabric of our country permits religious beliefs and
practises to exist, regardless of whether or not they appeal to the rational
sensibilities of this Court, or others.
It would also be instructive to refer to the decision of the Supreme
Court of Alaska in Carlos Frank v. State of Alaska51 wherein the use
of moose meat at a funeral potlatch, a religious ceremony, was held to
be a practise deeply rooted in religion, based on the evidence adduced
before the District Court. The Court had noted that the State of Alaska
had failed to illustrate any compelling interest which would justify its
curtailment, with the result that the case was remanded with instructions
to dismiss the complaint against Frank for unlawful transportation of
moose meat. The Court had underscored the importance of the sincerity
of Frank’s religious belief, and held that it would be sufficient that a
practise be deeply rooted in religious belief for it to receive the protection
of the free exercise clause under the U.S. Constitution.
13.6. Reference is required to be made to the doctrines and tenets
of a religion, its historical background,
and the scriptural texts to ascertain
the ‘essentiality’ of religious practises.
The ‘essential practisestest’ in its application would have to be
determined by the tenets of the religion itself. The practises and beliefs
which are considered to be integral by the religious community are to be
regarded as “essential”, and afforded protection under Article 25.
The only way to determine the essential practises test would be
with reference to the practises followed since time immemorial, which
may have been scripted in the religious texts of this temple. If any practise
in a particular temple can be traced to antiquity, and is integral to the
temple, it must be taken to be an essential religious practise of that temple.
13.7. The Temple Thanthri, the Travancore Devaswom Board,
and believers of Lord Ayyappahave submitted that the limited restriction
on access of women during the notified age of 10 to 50 years,is a religious
practise which is centraland integral to the tenets of this shrine, since the
deity has manifested himself in the form of a ‘Naishtik Brahmachari’.
 51 604 P.2d 1068 (1979)
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13.8. The practise of restricting the entry of women belonging to
the age-group of 10 to 50 years, was challenged as being violative of
Articles 15, 25, and 26 of the Constitution before a Division Bench of
the Kerala High Court in S. Mahendran v. The Secretary, Travancore
Devaswom Board, Thiruvanathapuram & Ors. (supra).
The Court held that the issue whether the practises were an integral
part of the religion or not had to be decided on the basis of evidence.
The High Court relied on the decision of this Court in Tilkayat Shri
Govindalji Maharaj v. State of Rajasthan (supra) wherein it was
held that the question whether the practise is religious in character, and
whether it can be regarded as an integral or essential part of the religion,
will depend upon the evidence adduced before a court, with respect to
the tenets of the religion.
The High Court held that the restriction on the entry of women
between the ages of 10 to 50 years was in accordance with the practise
prevalent since time immemorial, and was not violative of Articles 15,
25, and 26 of the Constitution.
A religion can lay down a code of ethics, and also prescribe rituals,
observances, ceremonies and modes of worship. These observances
and rituals are also regarded as an integral part of religion. If the tenets
of a religion lay down that certain ceremonies are to be performed at
certain times in a particular manner, those ceremonies are matters
of
religion, and are to be protected as a religious belief.
The High Court took into consideration the testimony of three
persons who had direct and personal knowledge about the practises of
the temple. One of them was the then Thanthri of the Temple, who
could authoritatively testify about the practises of the temple. His personal
knowledge extended to a period of more than 40 years. The second
Affidavit was affirmed by the Secretary of the AyyappaSevaSangham
who had been a regular pilgrim of the shrine for a period of 60 years. A
senior member of the Pandalam Palace also testified about the practise
followed, and the views of the members of the Palace who have
constructed the Temple. The testimony of these witnesses established
that the practiseof restriction on the entry of women during the notified
age-group was being followed since the past several centuries.
The High Court recorded that a vital reason for imposing this
restriction on young women as deposed by the Thanthri of the Temple,
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as well as other witnesses, was that the deity at the Sabarimala Temple
was in the form of a ‘Naishtik Brahmachari’ which means a student
who has to live in the house of his preceptor, and studies the Vedas,
living the life of utmost austerity and discipline. The deity is in the form
of a ‘Yogi’ or ‘Naishtik Brahmachari’. The High Court noted that this
practiseof restricting the entry of women is admitted to have been
prevalent since the past several centuries.
The High Court concluded by holding:
“Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 and
below 50 from trekking the holy hills of Sabarimala and
offering worship at Sabarimala Shrine is in accordance
with the usage prevalent from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not
violative of Articles 15, 25 and 26 of the Constitution of
India.
(3) Such restriction is also not violative of the provisions of
Hindu Place of Public Worship (Authorisation of Entry)
Act, 1965 since there is no restriction between one section
and another section or between one class and another class
among the Hindus in the matter of entry to a Temple whereas
the prohibition is only in respect of women of a particular
age group and not women as a class.”
In view of the conclusions summarised above, the High Court
directed the Travancore Devaswom Board not to permit women belonging
to the age-group of 10 to 50 years “… to
trek the holy hills of
Sabarimala in connection with the pilgrimage…”. The Judgment of
the Kerala High Court was not challenged any further, and has attained
finality.
The findings contained in the Judgment of the Kerala High Court
deciding a Writ Petition under Article 226 were findings in rem, and the
principle of res judicata would apply.52
In thiscontext, it is pertinent to note that this Court, in Daryao &
Ors. v. State of U.P. & Ors.53, had held as follows:
 52 Dr Subramaniam Swamy v. State of Tamil Nadu & Ors., (2014) 5 SCC 75.
 53 (1962) 1 SCR 574 : AIR 1961 SC 1457
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“26. We must now proceed to state our conclusion on the
preliminary objection raised by the respondents. We hold that
if a writ petition filed by a party under Article 226 is
considered on the merits as a contested matter and is dismissed
the decision thus pronounced would continue to bind the
parties unless it is otherwise modified or reversed by appeal
or other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the
said judgment and move this Court under Article 32 by an
original petition made on the same facts and for obtaining
the same or similar orders or writs.”
Thus viewed, such findings of fact ought not to be re-opened in a
Petition filed under Article 32.
13.9. The practise of celibacy and austerity is the unique
characteristic of the deity in the Sabarimala Temple.
Hindu deities have both physical/temporal and philosophical form.
The same deity is capable of having different physical and spiritual forms
or manifestations. Worship of each of these forms is unique, and not all
forms are worshipped by all persons.
The form of the deity in any temple is of paramount importance.
For instance, Lord Krishna in the temple at Nathdwara is in the form of
a child. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan
(supra), this Court noted that Lord Krishna was the deity who was
worshipped in the Shrinathji Temple in Nathdwara. It was noted that:
“…believing in the paramount importance and efficacy of
Bhakti, the followers of Vallabha attend the worship and
services of the Nidhi Swaroops or idols from day-to-day in
the belief that such devotional conduct would ultimately lead
to their salvation.”
In Venkataramana Devaru & Ors. v. State of Mysore & Ors.
(supra), this Court had observed that Gods have distinct forms ascribed
to them, and their worship at home, and in temples, is ordained as certain
means of salvation.
Worship has two elements – the worshipper, and the worshipped.
The right to worship under Article 25 cannot be claimed in the absence
of the deity in the particular form in which he has manifested himself.
[INDU MALHOTRA, J.]
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13.10. Religion is a matter of faith, and religious beliefs are held
to be sacred by those who share the same faith. Thought, faith and
belief are internal, while expression and worship are external
manifestations thereof.
13.11. In the case of the Sabarimala Temple, the manifestation is
in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the
form in which he has manifested himself is a fundamental right protected
by Article 25(1) of the Constitution.
The phrase “equally entitled to”, as it occurs in Article 25(1),
must mean that each devotee is equally entitled to profess, practise and
propagate his religion, as per the tenets of that religion.
13.12. In the present case, the celibate nature of the deity at the
Sabarimala Temple has been traced by the Respondents to the Sthal
Purana of this Temple chronicled in the ‘Bhuthanatha Geetha’.
Evidence of these practises are also documented in the Memoir of the
Survey of the Travancore and Cochin States54 written by Lieutenants
Ward and Conner published in two parts in 1893 and 1901.
13.13. The religious practise of restricting the entry of women
between the ages of 10 to 50 years, is in pursuance of an ‘essential
religious practise’ followed by the Respondents. The said restriction has
been consistently, followed at the Sabarimala Temple, as is borne out
from the Memoir of the Survey of the Travancore and Cochin
Statespublished in two parts in 1893 and
1901. The Kerala High Court in
the case of S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthapuram & Ors. (supra) has recorded as follows:
“The testimony of three persons who have direct and personal
knowledge about the usage in the temple is therefore available
before this Court. Of them one is the Thanthri of the temple
who can authoritatively speak about the usage followed in
the temple. His knowledge extends to a period of more than
40 years. The Secretary of the AyyappaSevaSangham had
been a regular pilgrim to Sabarimala shrine for a period of
60 years. A senior member of the Pandalam palace has also
testified about the practise followed and the view of the
members of the palace to which the temple at one time
belonged. The testimony of these witnesses would therefore
 54 Supra note 9
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conclusively establish the usage followed in the temple of not
permitting women of the age group 10 to 50 to worship in the
temple. It necessarily flows that women of that age group were
also not permitted either to enter the precincts of the temple
or to trek Sabarimala for the purpose of pilgrimage.”
                                                                 (Emphasis supplied)
13.14. In the present case, the character of the temple at
Sabarimala is unique on the basis of centuries old religious practises
followed to preserve the manifestation of the deity, and the worship
associated with it. Any interference with the mode and manner of worship
of this religious denomination, or sect, would impact the character of the
Temple, and affect the beliefs and practises of the worshippers of this
Temple.
13.15. Based on the material adduced before this Court, the
Respondents have certainly made out a plausible case that the practise
of restricting entry of women between the age group of 10 to 50 years is
an essential religious practise of the devotees of Lord Ayyappa at the
Sabarimala Temple being followed since time immemorial.
14. ARTICLE 17
14.1. The contention of the Petitioners that the restriction imposed
on the entry of women during the notified age group, tantamounts to a
form of ‘Untouchability’ under Article 17 of the Constitution, is liable to
be rejected for the reasons stated hereinafter.
14.2.
All forms of exclusion would not tantamount to untouchability.
Article 17 pertains to untouchability based on caste prejudice.Literally
or historically, untouchability was never understood to apply to women
as a class.The right asserted by the Petitioners is different from the right
asserted by Dalits in the temple entry movement. The restriction on
women within a certain age-band, is based upon the historical origin and
the beliefs and practises of the Sabarimala Temple.
14.3. In the present case, women of the notified age group are
allowed entry into all other temples of Lord Ayyappa. The restriction on
the entry of women during the notified age group in this Temple is based
on the unique characteristic of the deity, and not founded on any social
exclusion. The analogy sought to be drawn by comparing the rights of
Dalits with reference to entry to temples and women is wholly
misconceived and unsustainable.
[INDU MALHOTRA, J.]
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The right asserted by Dalits was in pursuance of right against
systematic social exclusion and for social acceptance per se.
In the case of temple entry, social reform preceded the statutory
reform, and not the other way about. The social reform was spearheaded
by great religious as well as national leaders like Swami Vivekananda
and Mahatma Gandhi. The reforms were based upon societal morality,
much before Constitutional Morality came into place.
14.4. Article 11 of the Draft Constitution corresponds to Article
17 of our present Constitution.55 A perusal of the Constituent Assembly
debates on Article 11 of the Draft Constitution would reflect that
“untouchability” refers to caste-based discrimination faced by Harijans,
and not women as contended by the Petitioners.
During the debates, Mr. V.I. Muniswamy Pillai had stated:
“…Sir, under the device of caste distinction, a certain section
of people have been brought under the rope of untouchability,
who have been suffering for ages under tyranny of so-called
caste Hindus, and all those people who style themselves as
landlords and zamindars, and were thus not allowed the
ordinary rudimentary facilities required for a human being…
I am sure, Sir, by adoption of this clause, many a Hindu who
is a Harijan, who is a scheduled class man will feel that he
has been elevated in society and has now got a place in
society…”56
Dr. Monomohan Das, quotes Mahatma Gandhi while
undeniably
accepting the meaning of “Untouchability” as intended under the
Constitution:
“…Gandhiji said I do not want to be reborn, but if I am reborn,
I wish that I should be born as a Harijan, as an untouchable,
so that I may lead a continuous struggle, a life-long struggle
against the oppressions and indignities that have been heaped
upon these classes of people.
 55 “11. “Untouchability” is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.”
Draft Constitution of India, Drafting Committee of the Constituent Assembly of India
(Manager Government of India Press, New Delhi, 1948) available at http://
1 4 . 1 3 9 . 6 0 . 1 1 4 : 8 0 8 0 / j s p u i / b i t s t r e a m / 1 2 3 4 5 6 7 8 9 / 9 6 6 / 7 /
Fundamental%20Rights%20%285-12%29.pdf
 56 Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November
29, 1948)
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… Not only Mahatma Gandhi, but also great men and
philosophers of this ancient land, Swami Vivekananda, Raja
Ram Mohan Roy, Rabindranath Tagore and others, who led
a relentless struggle against this heinous custom, would also
be very much pleased today to see that independent India,
Free India, has at last finally done away with this malignant
sore on the body of Indian Society.”57
Mr. Seervai, in his seminal commentary, states that
“Untouchability” must not be interpreted in its literal or grammatical
sense, but refers to the practise as it developed historically in India
amongst Hindus. He further states that Article 17 must be read with the
Untouchability (Offences) Act, 1955, which punishes offences committed
in relation to a member of a Scheduled Caste.58
Professor M.P. Jain also interprets Article 17 in a similar manner.
He states:
“Therefore, treating of persons as untouchables either
temporarily or otherwise for various reasons, e.g., suffering
from an epidemic or a contagious disease, or social
observances associated with birth or death, or social boycott
resulting from caste or other disputes do no come within the
purview of Art. 17. Art. 17 is concerned with those regarded
untouchables in the course of historic developments.”59
14.5. It is clear that Article 17 refers to the practise of
Untouchability as committed in the Hindu community against Harijans
or people from depressed classes, and not
women, as contended by the
Petitioners.
14.6. Explaining the background to Article 17, this Court in Sri
Venkataramana Devaru & Ors. v. State of Mysore & Ors.(supra)
observed:
“23. …. one of the problems which had been exercising the
minds of the Hindu social reformers during the period
preceding the Constitution was the existence in their midst of
 57 Statement of Dr.Monomohan Das, Constituent Assembly Debates (November 29,
1948)
 58 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. I (4th Ed.,
Reprint 1999), paragraph 9.418 at p. 691
 59 M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and
Samaraditya Pal; 2010), at p. 1067
[INDU MALHOTRA, J.]
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communities which were classed as untouchables. A custom
which denied to large sections of Hindus the right to use public
roads and institutions to which all the other Hindus had a
right of access, purely on grounds of birth could not be
considered reasonable and defended on any sound
democratic principle, and efforts were being made to secure
its abolition by legislation. This culminated in the enactment
of Article 17, which is as follows: “Untouchability” is
abolished and its practise in any form is forbidden. The
enforcement of any disability arising out of ‘Untouchability’
shall be an offence punishable in accordance with law.”
14.7. Not a single precedent has been shown to interpret Article
17 in the manner contended by the Petitioners.
It is also relevant to mention that the Counsel for the State of
Kerala did not support this submission.
15. RULE 3(B) OF THE 1965 RULES IS NOT ULTRAVIRES THE ACT
15.1. Section 3 of the 1965 Act reads as follows:
“3.Places of public worship to be open to all sections and
classes of Hindus:-Nothwithstanding anything to the contrary
contained in any other law for the time being in force or any
custom or usage or any instrumenthaving 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 affair in matters
of religion”
   (Emphasis supplied)
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The relevant extract of Rule 3 of the 1965 Rules is also reproduced
hereinbelow:
“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-
(a) …..
(b) Women at such time during which they are not by custom
and usage allowed to enter a place of public worship.
(c)…..
(d)….
(e)…..
(f)…..
(g)….”
                                                                 (Emphasis supplied)
Section 3(b) of the 1965 Act provides 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, in any manner be prevented,
obstructed or discouraged from entering such place of public worship or
from worshipping or from offering prayers there 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.
The proviso to Section 3 of the 1965 Act carves out an exception
in the case of public worship
in a temple founded for the benefit of any
religious denomination or section thereof. The provisions of the main
section would be subject to the right of a religious denomination or section
to manage its own affairs in the matters of religion.
[INDU MALHOTRA, J.]
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Section 2(c)60 of the 1965 Act, defines “section or class” to include
any division, sub-division, caste, sub caste, sect, or denomination
whatsoever.  Section 4(1)61, empowers the making of regulations for the
maintenance of orders and decorum in the place of public worship and
the due observance of the religious rites and ceremonies performed
therein.  The proviso to Section 3 of the 1965 Act provides that no such
regulation shall discriminate in any manner whatsoever, against any Hindu
on the ground that he belongs to a particular section or class.
15.2. The proviso carves out an exception to the Section 3 itself.
The declaration that places of public worship shall be open to Hindus of
all sections and classes is not absolute, but subject to the right of a religious
denomination to “manage its own affairs in matters of religion”.
Section 3 must be viewed in the Constitutional context where the
legislature has framed an enabling legislation under Article 25(2)(b) which
has been made expressly subject to religious practises peculiar to a
denomination under Article 26(b).
15.3. Rule 3(b) is a statutory recognition of a pre-existing custom
and usage being followed by this Temple. Rule 3(b) is within the ambit
of the proviso to Section 3 of the 1965 Act, as it recognises pre-existing
customs and usages including past traditions which have been practised
since time immemorial qua the Temple. The Travancore Devaswom
Board
submits that these practises are integral and essential to the Temple.
15.4. The Petitioners have not challenged the proviso to Section 3
as being unconstitutional on any ground. The proviso to Section 3 makes
an exception in cases of religious denominations, or sects thereof to
manage their affairs in matters of religion.
15.5. The Notification dated November 27, 1956 issued by the
Travancore Devaswom Board restricts the entry of women between
 60 "2. Definitions –
…(c) “section or class” includes any division, sub-division, caste, sub-caste, sect
or denomination whatsoever.”
 61 "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 of 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…”