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
A
B
C
D
E
F
G
H
561
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
561
[2018] 9 S.C.R. 561
INDIAN YOUNG LAWYERS ASSOCIATION & ORS.
v.
THE STATE OF KERALA & ORS.
(Writ Petition (Civil) No. 373 of 2006)
SEPTEMBER 28, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Constitution of India:
Arts. 25, 26 and 15 –Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 – ss. 3, 4 – Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules, 1965 – r. 3(b) –
Sabarimala temple wherein idol of Lord Ayyappa installed – r 3(b)
protecting custom and usage which prohibit entry of women between
the age of 10 to 50 years to Sabrimala temple, based upon a
biological ground of menstruation – Validity of  – Held: (Per Dipak
Misra, CJI) s. 3 being a non-obstante clause stipulates that every
place of public worship shall be open to all classes and sections of
Hindus, women being one of them, irrespective of any custom or
usage to the contrary – Language of both the s. 3 and the proviso
to s. 4(1) clearly indicate that custom and usage must make space
to the rights of all sections and classes of Hindus to offer prayers
at places of public worship – Any interpretation to the contrary
would annihilate the purpose of the 1965 Act and incrementally
impair the fundamental right to practise religion guaranteed u/Art.
25(1) – Thus, r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also
ultra vires s. 4 of the 1965 Act as the
proviso to s. 4(1) creates an
exception to the effect that the regulations/rules made u/s. 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu on
the ground that he/she belongs to a particular section or class –
Said practise is violative of the fundamental right of Hindu women
to freely practise their religion under Art. 25(1) and exhibit their
devotion towards Lord Ayyappa – This denial denudes them of their
right to worship – Held: (Per Nariman, J.) Custom or usage of
prohibiting women between the ages of 10 to 50 years from entering
the Sabarimala temple is violative of Art. 25(1), and violative of the
A
B
C
D
E
F
G
H
562
SUPREME COURT REPORTS
[2018] 9 S.C.R.
1965 Act – r. 3(b) whereby women by custom and usage are not
allowed to enter a place of public worship, is unconstitutional being
violative of Art. 25(1) and Art. 15(1) – Practice or usage of keeping
out women is violative of s. 3 and is struck down – Since proviso to
the Section is not attracted on the facts of the case, and since the
said Act is clearly a measure enacted u/Art. 25(2)(b), any religious
right claimed on the basis of custom and usage as an essential matter
of religious practice u/Art. 25(1), will be subject to the law made u/
Art. 25(2)(b) – Held: (Per Chandrachud, J.) Notifications issued
by the Devaswom Board, prohibiting the entry of women between
the ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and are
even otherwise unconstitutional – Hindu women constitute a ‘section
or class’ of Hindus u/s. 2 – Rule 3(b) of enforces a custom contrary
to s. 3, which directly offends the right of temple entry established
by s. 3, thus, is ultra vires the 1965 Act – Claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
and equality – Exclusionary practices are contrary to constitutional
morality – Practice of excluding women from the temple at
Sabarimala is not an essential religious practice – Social exclusion
of women, based on menstrual status, is a form of untouchability
which is an
anathema to constitutional values – Held: (Per Indu
Malhotra J.: Dissenting) Denial of entry of women in the age group
of 10 to 50 years in Sabarimala temple is not violative of Art. 14 –
Sabarimala temple constitutes a religious denomination – Practise
of restricting entry of women between the age group of 10 to 50
years is an essential religious practise of the devotees of Lord
Ayyappa at Sabarimala Temple – r.3(b) is a statutory recognition of
a pre-existing custom and usage being followed by this Temple – r.
3(b) is within the ambit of the proviso to s. 3.
Art. 26 – Religious denomination – Determination of –
Devotees of Lord Ayyappa, if constitute a religious denomination –
Held: (Per Dipak Misra, CJI) Devotees of Lord Ayyappa do not
have an identified group or sect – They do not have common
religious tenets peculiar to themselves, which they regard as
conducive to their spiritual well–being, other than those which are
common to the Hindu religion – Thus, the devotees of Lord Ayyappa
are exclusively Hindus and do not constitute a separate religious
A
B
C
D
E
F
G
H
563
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
denomination – Held: (Per Nariman, J.) There is no distinctive name
given to the worshippers of Sabrimala temple; there is no common
faith in the sense of a belief common to a particular religion or
section thereof; or common organization of the worshippers of the
Sabarimala temple so as to constitute the said temple into a religious
denomination – Also, there are over a thousand other Ayyappa
temples in which the deity is worshipped by practicing Hindus of
all kinds – Thus, Article 26 not attracted – (Per Chandrachud, J.)
Worship of the presiding deity is not confined to adherents of a
particular religion – Practices associated with the forms of worship
do not constitute the devotees into a religious denomination –
Considering the inability of the collective of individuals to satisfy
the judicially-enunciated requirements, the set of individuals who
refer to themselves as “Ayyappans” or devotees of Lord Ayyappa
as a ‘religious denomination’ cannot be recognized – Held: (Per
Indu Malhotra J.: Dissenting) If there are clear attributes that there
exists a sect, which is identifiable as being distinct by its beliefs and
practices, and having a collection of followers who follow the same
faith, it would be identifiable as a religious denomination – On
facts, respondents have made out a strong and plausible case that
the worshippers of the Sabarimala Temple have the attributes of a
religious denomination, or sect
thereof.
Arts. 25 and 26 – Essential Religious Practices under Art. 25
– Determination of – Practice of exclusion of women of the age
group of 10 to 50 years being followed at the Sabarimala Temple –
Held: (Per Dipak Misra, CJI) There seems to be no continuity in
the exclusionary practice followed at the Sabarimala temple and
thus, it cannot be treated as an essential practice – On the contrary,
it is an essential part of the Hindu religion to allow Hindu women to
enter into a temple as devotees and followers of Hindu religion and
offer their prayers to the deity – Moreso, in the absence of any
scriptural or textual evidence, the exclusionary practice followed
at the Sabarimala temple, cannot be accorded the status of an
essential practice of Hindu religion – By allowing women to enter
into the Sabarimala temple for offering prayers, it cannot be
imagined that the nature of Hindu religion would be fundamentally
altered or changed in any manner – Held: (Per Nariman, J.) Only
the essential part of religion, as distinguished from secular activities,
A
B
C
D
E
F
G
H
564
SUPREME COURT REPORTS
[2018] 9 S.C.R.
is the subject matter of the fundamental right – Matters essential to
religious faith and/or belief are to be judged on evidence before a
court of law by what the community professing the religion itself
has to say as to the essentiality of such belief – One test would be to
remove the particular belief stated to be an essential belief from the
religion, would the religion remain the same or would it be altered –
In case religious activities are mixed up with secular activities, the
dominant nature of activity test is to be applied – Court to take a
common sense view and be actuated by considerations of practical
necessity – Held: (Per Chandrachud, J.) In determining the
essentiality of a practice, it is to be considered whether the practice
is prescribed to be of an obligatory nature – If a practice is optional,
it cannot be said to be ‘essential’ to a religion – If there is a
fundamental change in the character of the religion, only then can
such a practice be claimed to be an ‘essential’ part of that religion
– Texts and tenets do not indicate that the practice of excluding
women is an essential part of the religion – Practice of excluding
women is not uniform and militates against a claim that such practice
is obligatory – Hence, no fundamental change in character of
religion – Essential religious practices test enables the Court to
adopt a reformist vision of religion even though it may conflict with
the views
held by the religion – Competence of the Court to do so
and the legitimacy of the assumption of that role may be questionable
– Test merits a closer look in future – Held: (Per Indu Malhotra J.:
Dissenting) ‘Essential practises test’ have to be determined by the
tenets of the religion itself – Practises followed since time immemorial,
which may have been scripted in the religious texts of this temple,
are to be regarded as “essential”, and afforded protection u/Art.
25 – Thus, the practise of restricting entry of women between the
age group of 10 to 50 years is an essential religious practise of the
devotees of Lord Ayyappa at Sabarimala Temple.
Art. 25(1) – Expression ‘all persons under’ – Meaning of –
Held:(Per Dipak Misra, CJI) Expression ‘all persons’, demonstrates
that the freedom of conscience and the right to freely profess, practise
and propagate religion is available, though subject to the restrictions
delineated in Art. 25(1) itself, to every person including women –
Rights guaranteed u/Art. 25(1) has nothing to do with gender –
Held: (Per Nariman, J.) Art. 25 recognises a fundamental right in
favour of “all persons” which has reference to natural persons –
A
B
C
D
E
F
G
H
565
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Every member of a religious community has a right to practice the
religion so long as he does not, in any way, interfere with the
corresponding right of his co-religionists to do the same.
Art. 25(1) – Expression – Held: (Per Chandrachud, J.] ‘all
persons under’ – By all persons, the Constitution means that every
individual in society without distinction of any kind is entitled to a
freedom of conscience and to freely profess, protect and propogate
religion – Three defining features of clause (1) of Article 25 are,
first, the entitlement of all persons without exception; second, the
recognition of an equal entitlement; and third, the recognition both
of the freedom of conscience and the right freely to profess, practice
and propogate religion.
Art. 17 – Untouchability– Denial of entry to women in the
age group of 10 to 50 in the Ayyappa temple at Sabarimala, if a
manifestation of “untouchability” and thus, violative of Art. 17 –
Held: (Per Chandrachud, J.) Art. 17 prohibits the practice of
“untouchability”, which is based on notions of purity and impurity,
“in any form” – Notions of “purity and pollution”, which stigmatize
individuals, can have no place in a constitutional regime - Prejudice
against women based on notions of impurity and pollution
associated with menstruation is a symbol of social exclusion – It is
a form of untouchability which is an anathema to constitutional
values – Held: (Per Indu
Malhotra J.: Dissenting) Limited
restriction on the entry of women during the notified age-group
does not fall within the purview of Art. 17 – Art. 17 refers to practice
of untouchability as committed in the Hindu community against
Harijans or people from depressed classes, and not women –
Restriction on women within a certain age-band, is based upon the
historical origin and beliefs and practices of the sabrimala temple,
on the unique characteristic of the deity, and not founded on any
social exclusion – Women of the notified age group are allowed
entry into all other temples of Lord Ayyappa.
Art. 25(1) – Term ‘morality’ in Art. 25(1) – Held: (Per Dipak
Misra, CJI) Cannot be viewed with a narrow lens so as to confine
the sphere of definition of morality to what an individual, a section
or religious sect may perceive the term to mean – Since the
Constitution has been adopted and given by the people of this
country to themselves, the term public morality in Art. 25 has to be
appositely understood as being synonymous with constitutional
A
B
C
D
E
F
G
H
566
SUPREME COURT REPORTS
[2018] 9 S.C.R.
morality – Notions of public order, morality and health cannot be
used as colourable device to restrict the freedom to freely practise
religion and discriminate against women of the age group of 10 to
50 years by denying them their legal right to enter and offer their
prayers at the Sabarimala Temple.
Art. 25(1) – Term ‘morality’ – Held: (Per Chandrachud, J.)
Popular notions about what is or is not moral may in fact be deeply
offensive to individual dignity and human rights – Individual dignity
cannot be allowed to be subordinate to the morality of the mob and
should not vary in accordance with the popular fashions of the day
– Overarching sense of constitutional morality with the quest for
human dignity, liberty and equality must prevail.
Arts. 25(2)(b) and 26(b) – Right to manage its own affairs in
matters of religion under Art. 26 – Held: (Per Nariman, J.) Right
granted u/Art. 26 to be harmoniously construed with Art. 25(2)(b)
– Right to manage its own affairs in matters of religion granted by
Art. 26(b), to be subject to laws made u/Art. 25(2)(b) which throw
open religious institutions of a public character to all classes and
sections of Hindus – Thus, even though the entry of persons into a
Hindu temple of a public character would pertain to management
of its own affairs in matters of religion, yet such temple entry would
be subject to a law throwing open a Hindu religious institution of a
public character owned
and managed by a religious denomination
or section thereof to all classes or sections of Hindus – However,
religious practices by the religious denomination or section thereof,
which do not have the effect of either a complete ban on temple
entry of certain persons, or are otherwise not discriminatory, may
pass muster u/Art. 26(b).
Art. 25(2)(b) and 26(b) – Right to manage its own affairs in
matters of religion u/Art. 26 – Held: (Per Chandrachud, J.) Absence
of a clause of subjection in Article 26 does not lead to the conclusion
that the freedom of a religious denomination exists as a discrete
element, divorced from the others freedoms – Article 26 is one among
a large cluster of freedoms which the Constitution has envisaged as
intrinsic to human liberty and dignity – Freedom of religious
denominations under Article 26 must be read in a manner which
preserves equally, other individual freedoms – Dignity of women
which an emanation of Article 15 and a reflection of Article 21
A
B
C
D
E
F
G
H
567
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
cannot be disassociated from the exercise of religious freedom under
Article 26.
Art. 32 – Writ petition under – Issue that women who happen
to be between the ages of 10 and 50, not allowed entry into the
temple at Sabarimala – Plea raised that that the Court should not
decide this case without any evidence being led on both sides –
Held: (Per Nariman, J.) Evidence is very much there, in the form of
the writ petition and the affidavits filed in the writ petition by the
petitioners as well as by the Board, and by the Thanthri – Writ petition
filed is itself not merely a pleading, but also evidence in the form of
affidavits that are sworn.
Arts. 25 and 26 – Engagement of essential religious practices
with constitutional values – Exclusion of women between the age
group ten and fifty from the Sabarimala temple – Held: (Per
Chandrachud, J.) Exclusion is destructive of dignity – To exclude a
woman from the might of worship is fundamentally at odds with
constitutional values – Physiological features of a woman have no
significance to her equal entitlements under the Constitution –
Menstrual status of a woman cannot be a valid constitutional basis
to deny her the dignity of being and the autonomy of personhood –
Menstrual status of a woman is deeply personal and an intrinsic
part of her privacy – Constitution must treat it as a feature on the
basis of which no exclusion can be practised and no denial can be
perpetrated.
Art. 13 – Term ‘laws in force’ – Custom or usage if falls within
the ambit of ‘laws in force’ u/Art.13(1) – Plea that the exclusion of
women from the Sabarimala temple constitutes a custom, independent
of the Act and the 1965 Rules – Held: (Per Chandrachud, J.) Carving
out ‘custom or usage’ from constitutional scrutiny, denies the
constitutional vision of ensuring the primacy of individual dignity
– Decision in Narasu case that custom or usage not included in the
ambit of laws in force, is based on flawed premises – Custom or
usage cannot be excluded from ‘laws in force’– Decision in Narasu
case, in immunizing uncodified personal law and construing the
same as distinct from custom, overlooked the wide ambit that was to
be attributed to the term ‘laws in force’.
Arts. 25 and 26 – Deity as a bearer of constitutional rights –
Held: (Per Chandrachud, J.) Word ‘persons’ in certain statutes have
A
B
C
D
E
F
G
H
568
SUPREME COURT REPORTS
[2018] 9 S.C.R.
been interpreted to include idols – Merely because a deity has been
granted limited rights as juristic persons under statutory law does
not mean that the deity necessarily has constitutional rights – Deity
may be a juristic person for the purposes of religious law and
capable of asserting property rights – However, deity is not a
‘person’ for the purpose of Part III.
Arts. 32, 25 and 14 – PIL filed challenging the practise of
restricting the entry of women in the age group of 10 to 50 years in
the Sabarimala Temple – Maintainability and justiciability of – Held:
(Per Indu Malhotra J.: Dissenting) Right to move the Supreme
Court u/Art. 32 for violation of fundamental rights, must be based
on a pleading that the petitioners’ personal rights to worship in this
Temple have been violated – This is an essential requirement to
maintain the challenge – Courts normally do not delve into issues
of religious practises, especially in the absence of an aggrieved
person from that particular religious faith, or sect – In matters of
religion and religious practises, Art. 14 can be invoked only by
persons who are similarly situated, that is, persons belonging to the
same faith, creed, or sect – Petitioners–association/Intervenors do
not claim to be devotees of Lord Ayyappa in the Sabarimala Temple,
who are aggrieved by the practises followed in the Sabarimala
Temple.
Art. 14 – Matters of religion and religious practice –
Applicability
of Art. 14 – Denial of entry to women in age group of
10 to 50 years in Sabrimala temple – Held: (Per Indu Malhotra J.:
Dissenting) Is not violative of Art. 14 – Religious customs and
practises cannot be solely tested on the touchstone of Article 14
and the principles of rationality embedded therein – Religious
community is to decide as to what constitutes essential religious
practice – Equality in matters of religion to be viewed in the context
of the worshippers of the same faith – It is not for the courts to
determine which of these practises of a faith are to be struck down,
except if they are pernicious, oppressive, or a social evil – Right to
gender equality to offer worship to Lord Ayyappa is protected by
permitting women of all ages, to visit temples where he has not
manifested himself in the form of a ‘Naishtik Brahamachari’, and
there is no similar restriction in those temples.
Art. 15 – Prohibition of discrimination on grounds of religion,
A
B
C
D
E
F
G
H
569
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
race, caste or sex – Applicability of Art. 15 – Submission that
Sabrimala temple would be included in phrase ‘places of public
resort – Held: (Per Indu Malhotra J.: Dissenting) Cannot be
accepted – Conscious decision by the Constituent Assembly not to
include ‘places of worship’ or ‘temples’ within the ambit of draft
Article 9, to be given due consideration.
Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965:
r.3(b) – Kerala Hindu Places of Public Worship (Authorisation
of Entry) Act 1965 – s. 3 – r. 3(b) whereby women by custom and
usage not allowed to enter a place of public worship – r. 3(b) if
ultra vires s. 3 of the 1965 Act, whereby places of worship to be
open to all section and classes of Hindus – Held: (Per Dipak Misra,
CJI) r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also ultra vires
s. 4 of the 1965 Act – Held: (Per Nariman, J.) Rule 3(b) is ultra
vires of s. 3 of the 1965 Act, and is hit by Art. 25(1) and by Art.15(1)
as this Rule discriminates against women on the basis of their sex
only – Held: (Per Chandrachud, J.) Term ‘includes’ in s.2(c) has to
be given a broad interpretation – The expression ‘section or class’
includes women – Proviso to s.3 creates an exception – Lord Ayyappa
do not constitute a religious denomination and the Sabrimala temple
is not a denominational temple – Hence, notifications issued by the
Board prohibiting the entry of  woman between ages
ten and
fifty-five, are ultra vires s.3 – Rule 3(b) gives precedence to customs
and usages which allow the exclusion of women “at such time during
which they are not allowed to enter a place of public worship” – In
laying down such a prescription, Rule 3(b) directly offends the right
of temple entry established by Section 3, thus, r. 3(b) is ultra vires
the Act – Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is not
ultra vires s. 3 of the 1965 Act, since the proviso carves out an
exception in the case of public worship in a temple for the benefit
of any religious denomination or sect thereof, to manage their
affairs in matters of religion – Declaration that places of public
worship shall be open to Hindus of all sections and classes is not
absolute, but subject to the right of a religious denomination to
“manage its own affairs in matters of religion” – r.3(b) is a statutory
recognition of a pre-existing custom and usage being followed by
this Temple – r. 3(b) is within the ambit of the proviso to s. 3.
A
B
C
D
E
F
G
H
570
SUPREME COURT REPORTS
[2018] 9 S.C.R.
r. 3(b) whereby women not allowed to enter a place of worship
– Challenged to, as being violative of constitutional morality – Held:
(Per Indu Malhotra J.: Dissenting) Constitutional Morality in a
pluralistic society and secular polity would reflect that the followers
of various sects have the freedom to practise their faith in
accordance with the tenets of their religion – Equality and non-
discrimination are facet of Constitutional Morality, which cannot
be viewed in isolation – Balance is to be struck between the
principles of equality and non-discrimination on the one hand, and
the protection of the cherished liberties of faith, belief, and worship
guaranteed by Arts 25 and 26 to persons belonging to all religions
in a secular polity, on the other hand – Constitutional morality
requires the harmonisation or balancing of all such rights, to ensure
that the religious beliefs of none are obliterated or undermined – It
is the Constitutional duty of the Court to harmonise these rights.
Judicial Review: Matters concerning religion and religious
practice under the secular constitutional set up  – Role of courts –
Held: (Per Indu Malhotra J.: Dissenting) Is to afford protection u/
Art. 25(1) to those practises which are regarded as “essential” or
“integral” by the devotees, or the religious community itself – Art.
25(2)(b) permits the State to redress social inequalities and injustices
by framing legislation –Art. 25(2)
permits State made law on the
grounds specified therein, and not judicial intervention – On facts,
practice of exclusion of women of the age group of 10 to 50 years
being followed at the Sabrimala temple are considered to be essential
or integral to that Temple – Any interference with the same would
conflict with their right guaranteed by Art. 25(1) to worship Lord
Ayyappa in the form of a ‘Naishtik Brahmachari’ – Judicial review
of religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form of
worship of a deity – Doing so would negate the freedom to practise
one’s religion according to one’s faith and beliefs – It would amount
to rationalising religion, faith and beliefs, which is outside the ken
of the courts.
Allowing the Writ Petition, the Court
HELD: Per Dipak Misra CJI (for himself and Khanwilkar
J.):
Followers of Lord Ayyappa do not constitute a religious
A
B
C
D
E
F
G
H
571
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
denomination:
1.1 In view of the law laid down by this Court in Shirur
Mutt’s case and S.P. Mittal’s case, the devotees of Lord Ayyappa
do not constitute a separate religious denomination. They do not
have common religious tenets peculiar to themselves, which they
regard as conducive to their spiritual well-being, other than those
which are common to the Hindu religion. Therefore, the devotees
of Lord Ayyappa are exclusively Hindus and do not constitute a
separate religious denomination. [Para 144 (i)][673-D-E]
1.2 For any religious mutt, sect, body, sub-sect or any
section thereof to be designated as a religious denomination, it
must be a collection of individuals having a collective common
faith, a common organization which adheres to the said common
faith, and last but not the least, the said collection of individuals
must be labeled, branded and identified by a distinct name. The
most important condition for a religious denomination, i.e., the
collection of individuals ought to have a system of beliefs or
doctrines which they regard as conducive to their spiritual well-
being. For a religious denomination, there must be new
methodology provided for a religion. Mere observance of certain
practices, even though from a long time, does not make it a
distinct religion on that account. [Paras 94, 96][655-E-F; 656-A-C]
1.3 The submission that the pilgrims coming to visit the
Sabarimala temple being devotees of
Lord Ayyappa are addressed
as Ayyappans and, therefore, the third condition for a religious
denomination stands satisfied, is unacceptable. There is no
identified group called Ayyappans. Every Hindu devotee can go
to the temple. There are other temples for Lord Ayyappa and
there is no such prohibition. Therefore, there is no identified
sect. Thus, the Sabarimala temple is a public religious endowment
and there are no exclusive identified followers of the cult. [Para
95][655-F-H]
S.P. Mittal v. Union of India and others (1983) 1 SCC
51 : [1983] 1 SCR 729; The Commissioner Hindu
Religious Endowments, Madras v. Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt  [1954] SCR 1005
– relied on.
A
B
C
D
E
F
G
H
572
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Nallor Marthandam 
Vellalar 
and others 
v.
Commissioner, Hindu Religious and Charitable
Endowment and others (2003) 10 SCC 712 : [2003]
1 Suppl.  SCR 920 – referred to.
Enforceability of Fundamental Rights u/Art. 25(1) against
the Devaswom Board
2.1 Having stated that the devotees of Lord Ayyappa do
not constitute a religious denomination within the meaning of
Article 26 and that Sabarimala Temple is a public temple by virtue
of the fact that Section 15 of the Travancore Cochin Hindu
Religious Institutions Act, 1950 vests all powers of direction,
control and supervision over it in the Travancore Devaswom
Board which, has been unveiled as ‘other authority’ within the
meaning of Article 12, resultantly fundamental rights including
those guaranteed under Article 25(1) are enforceable against the
Travancore Devaswom Board and other incorporated Devaswoms
including the Sabarimala Temple. [Para 97][656-D-E]
2.2 Article 25(1), by employing the expression ‘all persons’,
demonstrates that the freedom of conscience and the right to
freely profess, practise and propagate religion is available, though
subject to the restrictions delineated in Article 25(1) itself, to
every person including women. It needs to be understood that
the kernel of Article 26 is ‘establishment of a religious institution’
so as to acclaim the status of religious denomination. Whereas,
Article 25(1) guarantees the right to practise religion to every
individual and the act of practice is concerned, primarily, with
religious worship, rituals. The right guaranteed under Article
25(1) has nothing to do with gender or, for that matter, certain
physiological factors, specifically attributable to women. Women
of any age group have as much a right as men to visit and enter a
temple in order to freely practise a religion as guaranteed under
Article 25(1). [Paras 98, 99, 100][656-F-H; 657-B]
Rev. Stainislaus v. State of Madhya Pradesh and others
(1977) 1 SCC 677 : [1977] 2 SCR  611; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005 – referred to.
A
B
C
D
E
F
G
H
573
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
2.3 The practice of exclusion of women from entry into
religious places violates the right of women to visit and enter a
temple to freely practise Hindu religion and to exhibit her
devotion towards Lord Ayyappa. The denial of this right to women
significantly denudes them of their right to worship. The right
guaranteed under Article 25(1) is not only about inter-faith parity
but it is also about intra-faith parity. Therefore, the right to practise
religion under Article 25(1), in its broad contour, encompasses a
non-discriminatory right which is equally available to both men
and women of all age groups professing the same religion. [Paras
101][657-C-E]
Nar Hari Shastri and others v. Shri Badrinath Temple
Committee AIR 1952 SC 245 : 1952  SCR  849; Acharya
Jagadishwarananda 
Avadhuta 
and 
others 
v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984]  1  SCR  447 – referred to.
2.4 The impugned Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, framed in
pursuance of the 1965 Act, stipulates exclusion of entry of women
of the age group of 10 to 50 years, is a clear violation of the right
of such women to practise their religious belief which, in
consequence, makes their fundamental right under Article 25(1)
a dead letter. It is clear as crystal that as long as the devotees,
irrespective of their gender and/or age group, seeking entry to a
temple of any caste are
Hindus, it is their legal right to enter into
a temple and offer prayers. The women, in the case at hand, are
also Hindus and so, there is neither any viable nor any legal
limitation on their right to enter into the Sabarimala Temple as
devotees of Lord Ayyappa and offer their prayers to the deity.
The said rule of exclusion cannot be justified on the ground that
allowing entry to women of the said age group would, in any way,
be harmful or would play a jeopardizing role to public order,
morality, health or, for that matter, any other provision/s of Part
III of the Constitution, for it is to these precepts that the right
guaranteed under Article 25(1) has been made subject to. [Paras
104, 105][658-F-H; 659-A-B]
2.5 The term ‘morality’ occurring in Article 25(1) cannot
be viewed with a narrow lens so as to confine the sphere of
A
B
C
D
E
F
G
H
574
SUPREME COURT REPORTS
[2018] 9 S.C.R.
definition of morality to what an individual, a section or religious
sect may perceive the term to mean. When there is a violation of
the fundamental rights, the term ‘morality’ naturally implies
constitutional morality and any view that is ultimately taken by
the Constitutional Courts must be in conformity with the principles
and basic tenets of the concept of this constitutional morality that
gets support from the Constitution. [Paras 106][659-C-D]
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965; Government of NCT of Delhi v.
Union of India and others  (2018) 8 SCALE 72; Navtej
Singh Johar and others v. Union of India and others
(2018) 10 SCALE 386 – referred to.
2.6 The right guaranteed under Article 25(1) has been made
subject to, by the opening words of the Article itself, public order,
morality, health and other provisions of Part III of the
Constitution. All the three words, that is, order, morality and health
are qualified by the word ‘public’. Neither public order nor public
health will be at peril by allowing entry of women devotees of the
age group of 10 to 50 years into the Sabarimala temple for offering
their prayers. As regards public morality, it is made absolutely
clear that since the Constitution was not shoved, by any external
force, upon the people of this country but was rather adopted and
given by the people of this country to themselves, the term public
morality has to be
appositely understood as being synonymous
with constitutional morality. The notions of public order, morality
and health cannot be used as colourable device to restrict the
freedom to freely practise religion and discriminate against
women of the age group of 10 to 50 years by denying them their
legal right to enter and offer their prayers at the Sabarimala temple
for the simple reason that public morality must yield to
constitutional morality. [Paras 110, 111][661-A-D]
Whether exclusionary practice is an essential practice as
per Hindu religion
3.1 In no scenario, it can be said that exclusion of women
of any age group could be regarded as an essential practice of
Hindu religion and on the contrary, it is an essential part of the
Hindu religion to allow Hindu women to enter into a temple as
A
B
C
D
E
F
G
H
575
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
devotees and followers of Hindu religion and offer their prayers
to the deity. In the absence of any scriptural or textual evidence,
the exclusionary practice followed at the Sabarimala temple,
cannot be accorded the status of an essential practice of Hindu
religion. By allowing women to enter into the Sabarimala temple
for offering prayers, it cannot be imagined that the nature of Hindu
religion would be fundamentally altered or changed in any manner.
Therefore, the exclusionary practice, which has been given the
backing of a subordinate legislation in the form of Rule 3(b),
framed by the virtue of the 1965 Act, is neither an essential nor
an integral part of the Hindu religion without which Hindu religion,
of which the devotees of Lord Ayyappa are followers, will not
survive. [Paras 122-123][665-D-G]
3.2 Nobody can say that essential part or practice of one’s
religion has changed from a particular date or by an event. Such
alterable parts or practices are definitely not the ‘core’ of religion
where the belief is based and religion is founded upon. It could
only be treated as mere embellishments to the non-essential part
or practices. [Para 124][665-G-H]
3.3 Where a practice changes with the efflux of time, such
a practice cannotbe regarded as a core upon which a religion is
formed. There has to be unhindered continuity in a practice for it
to attain the status of essential practice. It is further discernible
from the judgment of the High Court in S. Mahendran’s case that
the Devaswom Board had accepted before the High Court that
female worshippers of the age group of 10 to 50 years used to
visit the temple and conducted poojas in every month for five
days for the first rice feeding ceremony of their children. The
Devaswom Board also took a stand before the High Court that
restriction of entry for women was only during Mandalam,
Makaeavilakku and Vishnu days. The impugned exclusionary
practice in question is a ‘custom with some aberrations’ as prior
to the passing of the Notification in 1950, women of all age groups
used to visit the Sabarimala temple for the first rice feeding
ceremony of their children. Therefore, there seems to be no
continuity in the exclusionary practice followed at the Sabarimala
temple and in view thereof, it cannot be treated as an essential
practice. [Paras 125, 126][666-A-D]
A
B
C
D
E
F
G
H
576
SUPREME COURT REPORTS
[2018] 9 S.C.R.
3.4 In view of the law laid down by this Court in the second
Ananda Marga case, the exclusionary practice being followed at
the Sabarimala Temple cannot be designated as one, the non-
observance of which will change or alter the nature of Hindu
religion. Besides, the exclusionary practice has not been
observed with unhindered continuity as the Devaswom Board
had accepted before the High Court that female worshippers of
the age group of 10 to 50 years used to visit the temple and
conducted poojas in every month for five days for the first rice
feeding ceremony of their children. [Para 144(viii)][674-F-H]
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019 – relied on.
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993
Kerala 42 – approved.
John Vallamattom and another v. Union of India (2003)
6 SCC 611 : [2003] 1 Suppl. SCR 638; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Mohd. Hanif Quareshi v. State
of Bihar AIR 1958 SC 731 :  [1959] SCR  629; State
of West Bengal and others v. Ashutosh Lahiri and others
AIR 1995 SC 464 : [1994] 5 Suppl. SCR  515 ; Durgah
Committee, Ajmer and others v. Syed Hussain Ali and
others AIR 1961 SC 1402 : 1962  SCR  383; N.
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [ 2002]
3  Suppl.  SCR 76; Acharya
Jagadishwarananda 
Avadhuta 
and 
others 
v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR  447 – referred to.
Free Church of Scotland v. Overtoun (1904) AC 515 –
referred to.
Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules
4.1 As per Section 2(a) of the 1965 Act, the term ‘Hindu’
includes a person professing Buddhist, Sikh or Jaina religion.
A
B
C
D
E
F
G
H
577
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
The word ‘person’ occurring therein for the pure and simple
reason of logic, must include all genders.Clause (c) defines
‘section or class’ as any division, sub-division, caste, sub-caste,
sect or denomination whatsoever. Nowhere the definition of
section or class suggests being limited to male division, sub-
division, caste and so forth. [Para 128][666-E; 667-B-C]
4.2 Section 3 of the Act being a non-obstante clause declares
that every place of public worship which is open to Hindus
generally or to any section or class thereof shall be open to all
sections and classes of Hindus  and no Hindu,  of whatsoever
section or class, shall be prevented, obstructed or discouraged
from entering such place of public worship, or from worshipping,
offering prayers or performing any religious service at such place
of public worship in the like manner and to the like extent as any
other Hindu of whatsoever section or class may so be eligible to
enter, worship, pray or perform. A careful dissection of Section 3
reveals that places of public worship  in the State of Kerala,
irrespective of any contrary law, custom, usage or  instrument
having effect by virtue of any such law or any decree or order of
Court, shall be open to all sections and classes of Hindus. The
definition of ‘section or class’ and ‘Hindu’ has to be imported, for
the purposes of Section 3, from the definition clauses 2(a) and
2(c) which, includes all the
genders, provided they are Hindus.
The right provided under Section 3 due to its non-obstante nature
has to be given effect to regardless of any law, custom or usage
to the contrary. [Paras 130, 131][667-G-H; 668-A-D]
4.3 The proviso to Section 3 stipulates that in case the place
of public worship is a temple founded for the benefit of any
religious denomination or section thereof, then the rights
warranted under Section 3 becomes subject to the right of that
religious denomination or section to manage its own affairs in
matters of religion. Having stated that devotees and followers of
Lord Ayyappa do not constitute a religious denomination and,
therefore, the proviso to Section 3 cannot be resorted to in the
case at hand. [Para 132][668-D-E]
4.4 The importance and the gravity of the right stipulated
under Section 3 of this Act, for all sections and classes of Hindus
which include women, is very well manifest and evident from the
A
B
C
D
E
F
G
H
578
SUPREME COURT REPORTS
[2018] 9 S.C.R.
fact that its violation has been made penal under Section 5 of the
1965 Act. Section 4 confers the power to make regulations for
the maintenance of order and decorum and performance of rites
and ceremonies with regard to places of public worship in Kerala.
The proviso to Section 4 being an exception to Section 4(1) is an
example where the exception is more important than the rule
itself. The language of the proviso to Section 4, in very clear and
simple terms, states that the regulations made under Section 4(1)
shall not discriminate against any Hindu on the ground that he/
she belongs to a particular section or class. A particular section
or class includes women of all age groups, for Hindu women of
any age group also constitute a class or section of Hindus. [Paras
133-135][668-G-H; 669-B-C; 670-A-B]
4.5 The law is well-settled on the point that when a rule-
making power is conferred under any statute on an authority, the
said power has to be exercised within the confines of the statute
and no transgression of the same is permissible. The exclusionary
practice, which has been given the backing of a subordinate
legislation in the form of Rule 3(b), framed by the virtue of the
1965 Act, is neither an essential nor an integral part of the
religion.A cursory reading of Rule 3(b) divulges that it is ultravires
both Section 3 as well as Section 4, the reason being that Section
3 being a non-obstante provision clearly
stipulates that every
place of public worship shall be open to all classes and sections
of Hindus, women being one of them, irrespective of any custom
or usage to the contrary. That apart, Rule 3(b) is also ultravires
Section 4 as the proviso to Section 4(1) creates an exception to
the effect that the regulations/rules made under Section 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu
on the ground that he/she belongs to a particular section or class.
[Paras 137, 141, 142, 144(ix)][670-F-G; 675-A; 672-F-G; 673-A]
Union of India and ors v. S. Srinivasan (2012) 7 SCC
683 : [2012] 6 SCR 34; General Officer Commanding-
in-Chief v. Dr. Subhash Chandra Yadav AIR 1988 SC
876 : [1988] 3 SCR 62; Kunj Behari Lai Butail and ors
v. State of H.P. AIR 2000 SC 1069 : [2000] 1 SCR
1054; Global Energy Limited and anr v. Central
Electricity Regulatory Commission (2009) 15 SCC 570
A
B
C
D
E
F
G
H
579
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
: [2009] 9 SCR 22; State of T.N. and anr v. P.
Krishnamurthy and ors (2006) 4 SCC 517 : [2006] 3
SCR 396 – referred to.
4.6 The language of both the provisions, that is, Section 3
and the proviso to Section 4(1) of the 1965 Act, clearly indicates
that custom and usage must make space to the rights of all
sections and classes of Hindus to offer prayers at places of public
worship. Any interpretation to the contrary would annihilate the
purpose of the 1965 Act and incrementally impair the fundamental
right to practise religion guaranteed under Article 25(1). It is
clear as crystal that the provisions of the 1965 Act are liberal in
nature so as to allow entry to all sections and classes of Hindus
including Scheduled Castes and Scheduled Tribes. But framing
of Rule 3(b) under the garb of Section 4(1) would violate the very
purpose of the 1965 Act. Thus, Rule 3(b) is ultra vires the 1965
Act. [Paras 143, 144(xii)][673-A-C; 675-F]
Indian Young Lawyers Association and others v. State
of Kerala and others
(2017) 10 SCC 689; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay
[1962] Suppl. 2 SCR 496; Raja Bira Kishore Deb v.
State of Orissa
(1964) 7 SCR 32; Shastri
Yagnapurushadiji and others v. Muldas Bhundardas
Vaishya and another (1966) 3 SCR 242 ; Durgah
Committee, Ajmer v. Syed Hussain Ali (1962) 1 SCR
383; Sri Venkatramana Devaru v. State of Mysore and
others [1958] SCR 895; Deepak Sibal v. Punjab
University
and another (1989) 2 SCC 145 : [1989] 1
SCR 689; Shayara Bano v. Union of India and others
(2017) 9 SCC 1 : [2017] 7 SCR 797; Anuj Garg and
others v. Hotel Association of India and others (2008)
3 SCC 1 : [2007] 12 SCR 991; Charu Khurana and
others v. Union of India and others (2015) 1 SCC 192
: [2014] 12  SCR 259; National Legal Services Authority
v. Union of India and others (2014) 5 SCC 438; Justice
K. S. Puttaswamy and another v. Union of India and
others (2017) 10 SCC 1; Vishaka and others v. State of
Rajasthan and others (1997) 6 SCC 241 : [1997] 3
 Suppl.  SCR  404; Seshammal and others v. State of
A
B
C
D
E
F
G
H
580
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Tamil Nadu (1972) 2 SCC 11 : [1972]  3  SCR  815;
Adi Saiva Sivachariyargal Nala Sangam and others v.
Government of Tamil Nadu and others (2016) 2 SCC
725 : [2015] 11 SCR 1110; T.M.A. Pai Foundation and
others v. State of Karnataka and others (1995) 5 SCC
220 : [1995]  2  Suppl.  SCR  608; Deoki Nandan v.
Murlidhar and others AIR 1957 SC 133 : [1956]  SCR 
756; Sri Radhakanta Deb and another v. Commissioner
of Hindu Religious Endowments, Orissa (1981) 2 SCC
226 : [1981] 2  SCR  826 – referred to.
Eyes and Ears 1813-1887 by Henry Ward Beecher–
referred to.
Per R.F. Nariman, J. (Concurring):
1. The custom or usage of prohibiting women between the
ages of 10 to 50 years from entering the Sabarimala temple is
violative of Article 25(1), and violative of the Kerala Hindu Places
of Public Worship (Authorisation of Entry) Act, 1965 made under
Article 25(2)(b) of the Constitution; and that Rule 3(b) of the
Kerala Hindu Places of Public Worship (Authorisation of Entry)
Rules, 1965 is unconstitutional being violative of Article 25(1)
and Article 15(1) of the Constitution. [Para 32][723-E-F]
2.1 Article 25 of the Constitution recognises a fundamental
right in favour of “all persons” which has reference to natural
persons. This fundamental right equally entitles all such persons
to the said fundamental right. Every member of a religious
community has a right to practice the religion so long as he does
not, in any way, interfere
with the corresponding right of his co-
religionists to do the same. The content of the fundamental right
is the fleshing out of what is stated in the Preamble to the
Constitution as “liberty of thought, belief, faith and worship”.
Thus, all persons are entitled to freedom of conscience and the
right to freely profess, practice, and propagate religion. The right
to profess, practice, and propagate religion will include all acts
done in furtherance of thought, belief, faith, and worship. The
content of the right concerns itself with the word “religion”, which
would mean matters of faith with individuals or communities,
based on a system of beliefs or doctrines which conduce to spiritual
A
B
C
D
E
F
G
H
581
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
well-being. It does not have to be theistic but can include persons
who are agnostics and atheists. [Paras 21.1-21.5][709-D-G]
2.2 It is only the essential part of religion, as distinguished
from secular activities, that is the subject matter of the
fundamental right. Superstitious beliefs which are extraneous,
unnecessary accretions to religion cannot be considered as
essential parts of religion. Matters that are essential to religious
faith and/or belief are to be judged on evidence before a court of
law by what the community professing the religion itself has to
say as to the essentiality of such belief. One test that has been
evolved would be to remove the particular belief stated to be an
essential belief from the religion, would the religion remain the
same or would it be altered. Equally, if different groups of a
religious community speak with different voices on the
essentiality aspect presented before the Court, the Court is then
to decide as to whether such matter is or is not essential. Religious
activities may also be mixed up with secular activities, in which
case the dominant nature of the activity test is to be applied. The
Court should take a common-sense view and be actuated by
considerations of practical necessity. [Para 21.6][709-G-H; 710-
A-C]
2.3 The exceptions to the individual right are public order,
morality, and health. “Public order” is to be distinguished from
“law and order”.
“Public disorder” must affect the public at large
as opposed to certain individuals. A disturbance of public order
must cause a general disturbance of public tranquility. The term
“morality” is difficult to define. For the present, it refers to that
which is considered abhorrent to civilized society, given the
mores of the time, by reason of harm caused by way, of exploitation
or degradation. Health would include noise pollution and the
control of disease. [Para 21.7][710-C-E]
2.4 Another exception to the fundamental right conferred
by Article 25(1) is the rights that are conferred on others by the
other provisions of Part III. This would show that if one were to
propagate one’s religion in such a manner as to convert a person
of another religious faith, such conversion would clash with the
other person’s right to freedom of conscience and would,
therefore, be interdicted. Where the practice of religion is
A
B
C
D
E
F
G
H
582
SUPREME COURT REPORTS
[2018] 9 S.C.R.
interfered with by the State, Articles 14, 15(1), 19, and 21 would
spring into action. Where the practice of religion is interfered
with by non-State actors, Article 15(2) and Article 17 would spring
into action. Article 25(2) is also an exception to Article 25(1),
which speaks of the State making laws which may regulate or
restrict secular activity, which includes economic, financial or
political activity, which may be associated with religious practice.
Another exception is provided under Article 25(2)(b) which is in
two parts. Any law providing for social welfare and reform in a
religious community can also affect and/or take away the
fundamental right granted under Article 25(1). A further exception
is provided only insofar as persons professing the Hindu religion
are concerned, which is to throw open all Hindu religious
institutions of a public character to all classes and sections of
Hindus. [Paras 21.8-21.10][710-E-F; 711-A-C]
2.5 Contrasted with the fundamental right in Article 25(1)
is the fundamental right granted by Article 26. This fundamental
right is not granted to individuals but to religious denominations
or sections thereof. A religious denomination or section thereof
is to be determined on the basis of persons having a common
faith, a common organization, and designated by a distinct name
as a denomination or section thereof. Believers of a particular
religion are to be distinguished from
denominational worshippers.
Thus, Hindu believers of the Shaivite and Vaishnavite form of
worship are not denominational worshippers but part of the
general Hindu religious form of worship. [Para 21.11][711-D-E]
2.6 Four separate and distinct rights are given by Article
26 to religious denominations or sections thereof, namely to
establish and maintain institutions for religious and charitable
purposes; to manage its own affairs in matters of religion; to own
and acquire movable and immovable property; and to administer
such property in accordance with law.” In Article 25, only essential
religious matters are protected. [Para 21.12][711-F-G; 712-A]
2.7The fundamental right granted under Article 26 is subject
to the exception of public order, morality, and health. However,
since the right granted under Article 26 is to be harmoniously
construed with Article 25(2)(b), the right to manage its own affairs
in matters of religion granted by Article 26(b), in particular, will
A
B
C
D
E
F
G
H
583
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
be subject to laws made under Article 25(2)(b) which throw open
religious institutions of a public character to all classes and
sections of Hindus. Thus, it is clear that even though the entry of
persons into a Hindu temple of a public character would pertain
to management of its own affairs in matters of religion, yet such
temple entry would be subject to a law throwing open a Hindu
religious institution of a public character owned and managed by
a religious denomination or section thereof to all classes or
sections of Hindus. However, religious practices by the religious
denomination or section thereof, which do not have the effect of
either a complete ban on temple entry of certain persons, or are
otherwise not discriminatory, may pass muster u/Article 26(b).
Examples are that only certain qualified persons are allowed to
enter the sanctum sanctorum of a temple, or time management of
a temple in which all persons are shut out for certain periods.
[Paras 21.13, 21.14][712-A-E]
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993
Kerala 42 – referred to.
2.8 All the older religions speak of the phenomenon of
menstruation in women as being impure, which therefore, forbids
their participation in religious activity.The reasons given for
barring the entry of menstruating women to the Sabarimala temple
are considered by worshippers and Thanthris alike, to be an
essential
facet of their belief. [Paras 24-25][715-G-H; 719-B-C]
Old Testament, in Chapter 15, Verse 19 Leviticus 15:19
(King James Version); Dharmasutras – The Law Codes
Of Apastamba, Gautama, Baudhayana, And Vasistha
264 (Translation by Patrick Olivelle, Oxford
University Press, 1999); Srimad Bhagavatam – Sixth
Canto (Translation by A.C. Bhaktivedanta Swami
Prabhupada, The Bhaktivedanta Book Trust, 1976);
The Qur’an – with Annotated Interpretation in Modern
English, 2:222 (Translation  by Ali Ünal, Tughra Books
USA, 2015); Gospel of Mark 5.25-34 (King James
Version); The Bundahishn – “Creation” or Knowledge
from the Zand (Translation by E. W. West, from Sacred
Books of the East, vol. 5, 37, and 46, Oxford University
A
B
C
D
E
F
G
H
584
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Press, 1880, 1892, and 1897); The Selections of
Zadspram (Vizidagiha I Zadspram) (Joseph H.
Peterson Ed., 1995) (Translation by E. W. West, from
Sacred Books of the East, vol. 5, 37, and 46, Oxford
University Press, 1880, 1892, and 1897); Sri Guru
Granth Sahib: English Translation of the Original Text
466-467, 975 (Translation by Dr. Gopal Singh, Allied
Publishers Pvt. Ltd., 2005) [which translates Raga
Asa, Shaloka Mehla 1 at p. 472, 1022 of the original
text of Sri Guru Granth Sahib]; Kitáb-i-Aqdas by
Bahá’u’lláh, note 106 at p. 122 (Translation by Shoghi
Effendi, Bahá’í World Centre, 1992) – referred to.
2.9 As regards, the question that arises is whether the
Sabarimala temple can be said to be a religious denomination for
the purpose of Article 26, three things are necessary in order to
establish that a particular temple belongs to a religious
denomination. The temple must consist of persons who have a
common faith, a common organization, and are designated by a
distinct name. In answer to the question whether Thanthris and
worshippers alike are designated by a distinct name, any answer
cannot be found. When asked whether all persons who visit the
Sabarimala temple have a common faith, the answer given was
that all persons, regardless of caste or religion, are worshippers
at the said temple. From this, it is also clear that Hindus of all
kinds, Muslims, Christians etc., all visit the temple as
worshippers,
without, in any manner, ceasing to be Hindus,
Christians or Muslims. They can therefore be regarded, as has
been held in Sri Adi Visheshwara case, as Hindus who worship
the idol of Lord Ayyappa as part of the Hindu religious form of
worship but not as denominational worshippers. The same goes
for members of other religious communities. [Para 26][719-C-F]
Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi and Ors. v. State of U.P. and Ors. (1997) 4
SCC 606 : [1997] 2 SCR 1086 – relied on.
Durgah Committee, Ajmer and others v. Syed Hussain
Ali and others AIR 1961 SC 1402 : 1962 SCR 383;
S.P. Mittal v. Union of India and others (1983) 1 SCC
51 : [1983] 1 SCR 729 – referred to.
A
B
C
D
E
F
G
H
585
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
2.10 There is no distinctive name given to the worshippers
of this particular temple; there is no common faith in the sense of
a belief common to a particular religion or section thereof; or
common organization of the worshippers of the Sabarimala temple
so as to constitute the said temple into a religious denomination.
Also, there are over a thousand other Ayyappa temples in which
the deity is worshipped by practicing Hindus of all kinds.
Therefore, Article 26 does not get attracted.[Para 27][720-D-E]
2.11 Even if it is assumed that there is a custom or usage
for keeping out women of the ages of 10 to 50 from entering the
Sabarimala temple, and that this practice is an essential part of
the Thanthris’ as well as the worshippers’ faith, this practice or
usage is clearly hit by Section 3 of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965. Since the
proviso to the Section is not attracted on the facts of this case,
and since the said Act is clearly a measure enacted under Article
25(2)(b), any religious right claimed on the basis of custom and
usage as an essential matter of religious practice under Article
25(1), will be subject to the law made under Article 25(2)(b). The
said custom or usage must therefore, be held to be violative of
Section 3 and hence, struck down. [Para 28][720-F-G; 721-C-D]
2.12 Even otherwise, the fundamental right of women
between the ages of 10 and 50 to
enter the Sabarimala temple is
undoubtedly recognized by Article 25(1). The fundamental right
claimed by the Thanthris and worshippers of the institution, based
on custom and usage under the selfsame Article 25(1), must
necessarily yield to the fundamental right of such women, as they
are equally entitled to the right to practice religion, which would
be meaningless unless they were allowed to enter the temple at
Sabarimala to worship the idol of Lord Ayyappa. The submission
that all women are not prohibited from entering the temple can
be of no avail, as women between the age group of 10 to 50 are
excluded completely. Also, the submission that such women can
worship at the other Ayyappa temples is no answer to the denial
of their fundamental right to practice religion as they see it, which
includes their right to worship at any temple of their choice. On
this ground also, the right to practice religion, as claimed by the
Thanthris and worshippers, must be balanced with and must yield
A
B
C
D
E
F
G
H
586
SUPREME COURT REPORTS
[2018] 9 S.C.R.
to the fundamental right of women between the ages of 10 and
50, who are completely barred from entering the temple at
Sabarimala, based on the biological ground of menstruation. Rule
3(b) of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 is ultra vires of Section 3 of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act, 1965,
and is hit by Article 25(1) and by Article 15(1) of the Constitution
of India as this Rule discriminates against women on the basis of
their sex only. [Para 29][721-D-H; 722-A, D]
2.13 The instant case raises grave issues relating to women
generally, who happen to be between the ages of 10 to 50, and
are not allowed entry into the temple at Sabarimala on the ground
of a physiological or biological function which is common to all
women between those ages. Since this matter raises far-reaching
consequences relating to Articles 25 and 26 of the Constitution
of India, it is necessary to decide this matter on merits.
Consequently, the technical plea that the instant writ petition,
which is in the nature of a PIL, is not maintainable inasmuch as
no woman worshipper has come forward with a plea that she has
been discriminated against by not allowing her entry into the
temple as she is between the age of 10 to 50 cannot stand in the
way of a constitutional court applying constitutional principles to
the case at hand. [Para 30][722-E, H; 723-A-B]
Adi
Saiva Sivachariyargal Nala Sangam & Ors. v.
Government of Tamil Nadu & Anr. (2016) 2 SCC 725 :
[2015] 11  SCR 1110 – referred to.
2.14 A fervent plea was made by some of the counsels for
the Respondents that the Court should not decide this case
without any evidence being led on both sides. Evidence is very
much there, in the form of the writ petition and the affidavits that
have been filed in the writ petition, both by the Petitioners as
well as by the Board, and by the Thanthri’s affidavit. A writ petition
filed under either Art. 32 or 226 is itself not merely a pleading,
but also evidence in the form of affidavits that are sworn. [Para
31][723-B-D]
Bharat Singh and Ors. v. State of Haryana and Ors.
[1988] Supp 2 SCR 1050  – relied on.
A
B
C
D
E
F
G
H
587
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
The Commissioner Hindu Religious Endowments,
Madras v. Shri Lakshmindra Thritha Swaminar of Sri
Shirur Mutt  [1954] SCR 1005; Ratilal Panachand
Gandhi v. The State of Bombay & Ors.  [1954] SCR
1055; Sri Venkatramana Devaru v. State of Mysore and
others [1958] SCR 895; Sardar Syedna Taher Saifuddin
Saheb v. State of Bombay [1962]  Suppl. 2 SCR 496;
Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. [1964] 1 SCR 561; Seshammal and
others v. State of Tamil Nadu (1972) 2 SCC 11 : [1972]
3 SCR 815; Rev. Stainislaus v. State of Madhya Pradesh
and others
(1977) 1 SCC 677 : [1977] 2 SCR 611;
Acharya Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR  447; Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and Ors. v. State of U.P.
and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N.
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76; Dr.
Subramanian Swamy v. State of T.N. & Ors. (2014) 5
SCC 75 : [2014] 1 SCR 308; Riju Prasad Sharma &
Ors. v. State of Assam & Ors. (2015) 9 SCC 461; Adi
Saiva Sivachariyargal Nala Sangam & Ors. v.
Government of Tamil Nadu & Anr. (2016) 2 SCC 725 :
[2015] 11 SCR 1110 – referred to.
Per Dr. D Y Chandrachud, J.  (Concurring):
1. The devotees of Lord Ayyappa do not satisfy the judicially
enunciated requirements to constitute a religious denomination
under Article 26 of the
Constitution. A claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
and equality. Exclusionary practices are contrary to constitutional
morality. In any event, the practice of excluding women from the
temple at Sabarimala is not an essential religious practice. The
Court must decline to grant constitutional legitimacy to practices
which derogate from the dignity of women and their entitlement
to an equal citizenship. The social exclusion of women, based on
menstrual status, is a form of untouchability which is an anathema
A
B
C
D
E
F
G
H
588
SUPREME COURT REPORTS
[2018] 9 S.C.R.
to constitutional values. Notions of “purity and pollution”, which
stigmatize individuals, have no place in a constitutional order.
The notifications issued by the Devaswom Board, prohibiting the
entry of women between the ages of ten and fifty, are ultra vires
Section 3 of the 1965 Act and are even otherwise unconstitutional.
Hindu women constitute a ‘section or class’ of Hindus under
clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the
1965 Rules enforces a custom contrary to Section 3. This directly
offends the right of temple entry established by Section 3. Rule
3(b) is ultra vires the 1965 Act. [Para 119][839-E-H; 840-A-C]
2.1 The framers had before them the task of ensuring a
balance between individual rights and claims of a communitarian
nature. The Constituent Assembly recognised that the recognition
of a truly just social order situated the individual as the ‘backbone
of the state, the pivot, the cardinal center of all social activity,
whose happiness and satisfaction should be the goal of every
social mechanism.’ In forming the base and the summit of the
social pyramid, the dignity of every individual illuminates the
constitutional order and its aspirations for a just social order.
Existing structures of social discrimination must be evaluated
through the prism of constitutional morality. The effect and
endeavour is to produce a society marked by compassion for every
individual. [Para
113][837-B-D]
2.2 Inhering in the right to religious freedom, is the equal
entitlement of all persons, without exception, to profess, practice
and propagate religion. Equal participation of women in exercising
their right to religious freedom is a recognition of this right. In
protecting religious freedom, the framers subjected the right to
religious freedom to the overriding constitutional postulates of
equality, liberty and personal freedom in Part III. The dignity of
women cannot be disassociated from the exercise of religious
freedom. In the constitutional order of priorities, the right to
religious freedom is to be exercised in a manner consonant with
the vision underlying the provisions of Part III. The equal
participation of women in worship inheres in the constitutional
vision of a just social order. [Para 114][837-D-F]
2.3 The discourse of freedom in the Constitution cannot
be denuded of its context by construing an Article in Part III
A
B
C
D
E
F
G
H
589
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
detached from the part within which it is situated. Even the right
of a religious denomination to manage its own affairs in matters
of religion cannot be exercised in isolation from Part III of the
Constitution. The primacy of the individual, is the thread that
runs through the guarantee of rights. In being located in Part III,
the exercise of denominational rights cannot override and render
meaningless constitutional protections which are informed by the
overarching values of a liberal Constitution. [Para 115][837-G-
H; 838-A]
2.4 The Constitution seeks to achieve a transformed society
based on equality and justice to those who are victims of
traditional belief systems founded in graded inequality. It reflects
a guarantee to protect the dignity of all individuals who have faced
systematic discrimination, prejudice and social exclusion.
Construed in this context, the prohibition against untouchability
marks a powerful guarantee to remedy the stigmatization and
exclusion of individuals and groups based on hierarchies of the
social structure. Notions of purity and pollution have been
employed to perpetuate discrimination and prejudice against
women. They have no place in a constitutional order. In
acknowledging the inalienable dignity and worth of every
individual, these notions are prohibited by the guarantee against
untouchability and by the freedoms that underlie the Constitution.
In civic as in social life,
women have been subjected to prejudice,
stereotypes and social exclusion. In religious life, exclusionary
traditional customs assert a claim to legitimacy which owes its
origin to patriarchal structures. These forms of discrimination
are not mutually exclusive. The intersection of identities in social
and religious life produces a unique form of discrimination that
denies women an equal citizenship under the Constitution.
Recognizing these forms of intersectional discrimination is the
first step towards extending constitutional protection against
discrimination attached to intersecting identities. [Para 116][838-
B-E]
2.5 In the dialogue between constitutional freedoms, rights
are not isolated silos. In infusing each other with substantive
content, they provide a cohesion and unity which militates against
practices that depart from the values that underlie the
A
B
C
D
E
F
G
H
590
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Constitution-justice, liberty, equality and fraternity. Substantive
notions of equality require the recognition of and remedies for
historical discrimination which has pervaded certain identities.
Such a notion focuses on not only distributive questions, but on
the structures of oppression and domination which exclude these
identities from participation in an equal life. An indispensable
facet of an equal life, is the equal participation of women in all
spheres of social activity. The quest for equality is denuded of its
content if practices that exclude women are treated to be
acceptable. The Constitution cannot allow practices, irrespective
of their source, which are derogatory to women. Religion cannot
become a cover to exclude and to deny the right of every woman
to find fulfillment in worship. Sixty eight years after the advent of
the Constitution, it has been held that in providing equality in
matters of faith and worship, the Constitution does not allow the
exclusion of women. [Para 117][838-F-H; 839-A-C]
2.6 Liberty in matters of belief, faith and worship, must
produce a compassionate and humane society marked by the
equality of status of all its citizens. The Constitution sought to
break the shackles of social hierarchies. In doing so, it sought to
usher an era characterized by a commitment to freedom, equality
and justice. The liberal values of the Constitution secure to each
individual an equal citizenship.
This recognizes that the
Constitution exists not only to disenable entrenched structures
of discrimination and prejudice, but to empower those who
traditionally have been deprived of an equal citizenship. The equal
participation of women in every sphere of the life of the nation
subserves that premise. [Para 118][839-C-E]
Essential Religious Practices
3.1 In its jurisprudence on religious freedom, this Court
has evolved a body of principles which define the freedom of
religion under Article 25 and Article 26 to practices ‘essential’
to the religion. The Constitution has been held to protect not
only freedom of religious belief, but acts done in pursuance of
those beliefs. While the views of a religious denomination are to
be taken into consideration in determining whether a practice is
essential, those views are not determinative of its essentiality.
The Court has assumed a central role in determining what is or
A
B
C
D
E
F
G
H
591
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
is not essential to religious belief. Intrinsic to the role which the
Court has carved out, it has sought to distinguish between what
is religious and what is a secular practice, even if it is associated
with a religious activity. Going further, the Court has enquired
into whether a practice is essential to religion. Essentiality of the
practice would, as the Court has held depends on whether the
fundamental character of a religion would be altered, if it were
not observed. Above all, there is an emphasis on constitutional
legitimacy, which underscores the need to preserve the basic
constitutional values associated with the dignity of the individual.
The ephemeral distinction between religion and superstition
becomes more coherent in terms of the need to preserve
fundamental constitutional values associated with human liberty.
[Para 47][768-G-H; 769-A-C]
3.2 In determining the essentiality of a practice, it is crucial
to consider whether the practice is prescribed to be of an
obligatory nature within that religion. If a practice is optional, it
has been held that it cannot be said to be ‘essential’ to a religion.
A practice claimed to be essential must be such that the nature
of the religion would be altered in the absence of that practice. If
there is a fundamental change in the character of the religion,
only then can such a practice be claimed to be an ‘essential’ part
of that religion. [Para 48][769-C-E]
3.3 Where the protection of denominational rights would
substantially reduce the right conferred by Article 25(2)(b), the
latter would prevail against the former. This ensures that the
constitutional guarantee under Article 25(2)(b) is not destroyed
by exclusionary claims which detract from individual dignity. That
a practice claimed to be essential has been carried on since time
immemorial or is grounded in religious texts, does not lend to it
constitutional protection unless it passes the test of essentiality.
[Para 48][769-H; 770-A-B]
Durgah Committee, Ajmer and others v. Syed Hussain
Ali and others AIR 1961 SC 1402 : [1962] SCR 383;
Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay [1962] Suppl. 2 SCR 496; Tilkayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan & Ors.
[1964] 1 SCR 561 – relied on.
A
B
C
D
E
F
G
H
592
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v.
The State of Bombay & Ors. [1954] SCR 1055; Sri
Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895; Mohd. Hanif Quareshi v. State of
Bihar AIR 1958 SC 731 : [1959] SCR 629; Shastri
Yagnapurushadiji v. Muldas Bhundardas Vaishya and
another
(1966) 
3 
SCR 
242; 
Acharya
Jagadishwarananda 
Avadhuta 
and 
others 
v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447; Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and Ors. v. State of U.P.
and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N.
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76;
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019; Adi Saiva
Sivachariyargal Nala Sangam and others v. Government
of Tamil Nadu and others (2016) 2 SCC 725 : [2015]
11 SCR 1110 ; Shayara Bano v. Union of India and
others (2017) 9 SCC 1 : [2017] 7 SCR 797; Javed v
State of Haryana (2003) 8 SCC 369 : [2003] 1 Suppl.
SCR 947 – referred to.
Adelaide Company of Jehovah’s Witnesses Incorporated
v The Commonwealth of Australia [1943] HCA 12 –
referred to.
The engagement of essential religious practices with
constitutional values
4.1 The Court must lean against granting constitutional
protection to
a claim which derogates from the dignity of women
as equal holders of rights and protections. In the ethos of the
Constitution, it is inconceivable that age could be a rational basis
to condition the right to worship. The ages of ten to fifty have
been marked out for exclusion on the ground that women in that
age group are likely to be in the procreative age. The physiological
features of a woman have no significance to her equal entitlements
under the Constitution. All women in the age group of ten and
A
B
C
D
E
F
G
H
593
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
fifty may not in any case fall in the ‘procreative age group’. But
that is again not a matter of substance. The heart of the matter
lies in the ability of the Constitution to assert that the exclusion
of women from worship is incompatible with dignity, destructive
of liberty and a denial of the equality of all human beings. These
constitutional values stand above everything else as a principle
which brooks no exceptions, even when confronted with a claim
of religious belief. To exclude women is derogatory to an equal
citizenship. [Para 54][774-B-F]
4.2 There is an assumption which cannot stand
constitutional scrutiny. The assumption in such a claim is that a
deviation from the celibacy and austerity observed by the
followers would be caused by the presence of women. Such a
claim cannot be sustained as a constitutionally sustainable
argument. Its effect is to impose the burden of a man’s celibacy
on a woman and construct her as a cause for deviation from
celibacy. This is then employed to deny access to spaces to which
women are equally entitled. To suggest that women cannot keep
the Vratham is to stigmatize them and stereotype them as being
weak and lesser human beings. A constitutional court such as
this one, must refuse to recognize such claims. [Para 55][774-G-
H; 775-A-B]
4.3 Human dignity postulates an equality between persons.
The equality of all human beings entails being free from the
restrictive and
dehumanizing effect of stereotypes and being
equally entitled to the protection of law. Our Constitution has
willed that dignity, liberty and equality serve as a guiding light for
individuals, the state and this Court. Though the Constitution
protects religious freedom and consequent rights and practices
essential to religion, this Court will be guided by the pursuit to
uphold the values of the Constitution, based in dignity, liberty
and equality. In a constitutional order of priorities, these are values
on which the edifice of the Constitution stands. They infuse
constitutional order with a vision for the future – of a just, equal
and dignified society. Intrinsic to these values is the anti-exclusion
principle. Exclusion is destructive of dignity. To exclude a woman
from the might of worship is fundamentally at odds with
constitutional values. [Para 56][775-B-D]
A
B
C
D
E
F
G
H
594
SUPREME COURT REPORTS
[2018] 9 S.C.R.
4.4 The stigma around menstruation has been built up
around traditional beliefs regarding the impurity of menstruating
women. They have no place in a constitutional order. These beliefs
have been used to shackle women, to deny them equal
entitlements and subject them to the dictates of a patriarchal
order. The menstrual status of a woman cannot be a valid
constitutional basis to deny her the dignity of being and the
autonomy of personhood. The menstrual status of a woman is
deeply personal and an intrinsic part of her privacy. The
Constitution must treat it as a feature on the basis of which no
exclusion can be practised and no denial can be perpetrated. No
body or group can use it as  barrier in a woman’s quest for
fulfilment, including in her finding solace in the connect with the
creator.[Para 57][775-E-G]
Government of NCT of Delhi v. Union of India and
others (2018) 8 SCALE 72; S. Mahendran v. The
Secretary, 
Travancore 
Devaswom 
Board,
Thiruvananthpuram and others AIR 1993 Kerala 42;
Adi Saiva Sivachariyargal v. Government of Tamil Nadu
and others (2016) 2 SCC 725 : [2015] 11 SCR 1110;
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019; Navtej Singh v. Union
of India and others
(2018) 10 SCALE 386;
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005  - referred to.
Religious
Denominations
5. The ingredients for a set of individuals to be regarded as
a religious denomination are a common faith, a common
organisation and a distinctive name brought together under the
rubric of religion. A common thread which runs through them is
the requirement of a religious identity, which is fundamental to
the character of a religious denomination.[Para 64][781-E-F]
Sri Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
A
B
C
D
E
F
G
H
595
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Swaminar of Sri Shirur Mutt [1954] SCR 1005; S.P.
Mittal v. Union of India and others (1983) 1 SCC 51 :
[1983] 1 SCR 729; Acharya Jagadishwarananda
Avadhuta and others v. Commissioner of Police, Calcutta
(1983) 4 SCC 522 : [1984] 1 SCR 447; Bramchari
Sidheswar Shai v State of West Bengal (1995) 4 SCC
646 : [1995] 1 Suppl. SCR 745; Nallor Marthandam
Vellalar and others v. Commissioner, Hindu Religious
and Charitable Endowment and others (2003) 10 SCC
712 : [2003] 1 Suppl. SCR 920 – referred to.
Do the devotees of Lord Ayyappa constitute a religious
denomination?
6. Adherence to a ‘common faith’ would entail that a
common set of beliefs have been followed since the conception
of the particular sect or denomination. A distinctive feature of
the pilgrimage is that pilgrims of all religions participate in the
pilgrimage on an equal footing. Muslims and Christians undertake
the pilgrimage. A member of any religion can be a part of the
collective of individuals who worship Lord Ayyappa. Religion is
not the basis of the collective of individuals who worship the deity.
Bereft of a religious identity, the collective cannot claim to be
regarded as a ‘religious denomination’. To be within the fold of
Article 26, a denomination must be a religious sect or body.
Worship of the presiding deity is not confined to adherents of a
particular religion. Coupled with this is the absence of a common
spiritual organisation, which is
a necessary element to constitute
a religious denomination. The temple at which worship is carried
out is dedicated to the public and represents truly, the plural
character of society. Everyone, irrespective of religious belief,
can worship the deity. The practices associated with the forms of
worship do not constitute the devotees into a religious
denomination. Considering the inability of the collective of
individuals to satisfy the judicially-enunciated requirements, the
set of individuals who refer to themselves as “Ayyappans” or
devotees of Lord Ayyappa as a ‘religious denomination’ cannot
be recognised. [Para 69][785-E-H; 786-A]
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993
A
B
C
D
E
F
G
H
596
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Kerala 42; Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay [1962] Suppl. 2 SCR 496 – referred
to.
Free Church of Scotland v. Overtoun (1904) AC 515 –
referred to.
Article 17, “Untouchability” and the notions of purity
7.1 The society is governed by the Constitution. The values
of constitutional morality are a non-derogable entitlement.
Notions of “purity and pollution”, which stigmatize individuals,
can have no place in a constitutional regime. Regarding
menstruation as polluting or impure, and worse still, imposing
exclusionary disabilities on the basis of menstrual status, is
against the dignity of women which is guaranteed by the
Constitution. Practices which legitimise menstrual taboos, due
to notions of “purity and pollution”, limit the ability of
menstruating women to attain the freedom of movement, the right
to education and the right of entry to places of worship and,
eventually, their access to the public sphere. Women have a right
to control their own bodies. The menstrual status of a woman is
an attribute of her privacy and person. Women have a
constitutional entitlement that their biological processes must
be free from social and religious practices, which enforce
segregation and exclusion. These practices result in humiliation
and a violation of dignity. Article 17 prohibits the practice of
“untouchability”, which is based on notions of purity and impurity,
“in any form”.  Article 17 certainly
applies to untouchability
practices in relation to lower castes, but it will also apply to the
systemic humiliation, exclusion and subjugation faced by
menstruating women. Prejudice against women based on notions
of impurity and pollution associated with menstruation is a symbol
of exclusion. The social exclusion of women, based on menstrual
status, is but a form of untouchability which is an anathema to
constitutional values. As an expression of the anti-exclusion
principle, Article 17 cannot be read to exclude women against
whom social exclusion of the worst kind has been practiced and
legitimized on notions of purity and pollution. Article 17 cannot
be read in a restricted manner. But even if Article 17 were to be
read to reflect a particular form of untouchability, that article will
A
B
C
D
E
F
G
H
597
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
not exhaust the guarantee against other forms of social exclusion.
The guarantee against social exclusion would emanate from other
provisions of Part III, including Articles 15(2) and 21. Exclusion
of women between the age groups of ten and fifty, based on their
menstrual status, from entering the temple in Sabarimala can have
no place in a constitutional order founded on liberty and dignity.
[Para 81][804-E-F; 805-A-E]
7.2 The issue for entry in a temple is not so much about the
right of menstruating women to practice their right to freedom of
religion, as about freedom from societal oppression, which comes
from a stigmatized understanding of menstruation, resulting in
“untouchability”. Article 25, which is subject to Part III provisions,
is necessarily therefore subject to Article 17. To use the ideology
of “purity and pollution” is a violation of the constitutional right
against “untouchability”. [Para 82][805-F-G]
National Campaign for Dalit Human Rights v. Union of
India (2017) 2 SCC 432 : [2016] 9 SCR 122;
Devarajiah v B Padmanna AIR 1958 Mys 84; Jai Singh
v Union of India AIR 1993 Raj 177; State of Karnataka
v Appa Balu Ingale (1995) Supp 4 SCC 469 : [1992] 3
Suppl. SCR 284; Adi Saiva Sivachariyargal Nala
Sangam and others v. Government of Tamil Nadu and
others (2016) 2 SCC 725 :[2015] 11 SCR 1110; K.S.
Puttaswamy and another v. Union of India and others
(2017) 10 SCC 1 – referred to.
Granville Austin,
The Indian Constitution: Cornerstone
of a Nation, Oxford University Press (1999), at pages
xii-xiii; Politics and Ethics of the Indian Constitution
Rajeev Bhagava (ed.), Oxford University Press
(2008), at page 15; B Shiva Rao, The Framing of India’s
Constitution: A Study, Indian Institution of Public
Administration (1968), at page 202-205; Dr. Babasaheb
Ambedkar: Writings and Speeches, (Vasant Moon ed.)
Government of Maharashtra, Vol. 1 (2014), at pages
39, Vol. 12 (2014), at pages 661-691, Vol. 5 (2014), at
pages 9-18, Vol. 1 (2014), at pages 5-6, Vol. 1 (2014),
at pages 23-96, (2014), Vol. 1, at pp 3-22; India
Dissents: 3,000 Years of Difference, Doubt and
A
B
C
D
E
F
G
H
598
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Argument, (Ashok Vajpeyi ed.), Speaking Tiger
Publishing Private Limited (2017), at pages 86-88;
Sujatha Gidla, Ants among Elephants: An Untouchable
Family and the Making of Modern India, Harper
Collins (2017), at p 114; Diane Coffey and Dean
Spears, Where India Goes: Abandoned Toilets, Stunted
Development and the Costs of Caste, Harper Collins
(2017), at pp 74-79; Rajesh Ramachandran, Death for
Moustache, Outlook (16 October 2017) – referred to.
The ultra vires doctrine
8.1 The devotees of Lord Ayyappa do not constitute a
religious denomination and the Sabarimala temple is not a
denominational temple. The proviso to section 3 has no
application. The notifications which restrict the entry of women
between the ages of ten and fifty in the Sabarimala temple cannot
stand scrutiny and plainly infringe Section 3. They prevent any
woman between the age of ten and fifty from entering the
Sabarimala temple and from offering prayers. Such a restriction
would infringe the rights of all Hindu women, recognized by
Section 3. The notifications issued by the Board prohibiting the
entry of women between ages ten and fifty-five, are ultra vires
Section 3. [Para 87][810-E-G]
8.2 Hindu women constitute a ‘section or class’ of Hindus
under clauses (b) and (c) of Section 2 of the 1965 Act. The proviso
to Section 4(1) forbids any regulation which discriminates against
any Hindu on the ground of belonging to a particular section or
class.
The mandate of Section 3 is that if a place of public worship
is open to Hindus generally or to any section or class of Hindus,
it shall be open to all sections or classes of Hindus. The Sabarimala
temple is open to Hindus generally and in any case to a section
or class of Hindus. Hence, it has to be open to all sections or
classes of Hindus, including Hindu women. Rule 3(b) gives
precedence to customs and usages which allow the exclusion of
women “at such time during which they are not… allowed to enter
a place of public worship”. In laying down such a prescription,
Rule 3(b) directly offends the right of temple entry established
by Section 3. Section 3 overrides any custom or usage to the
contrary. But Rule 3 acknowledges, recognises and enforces a
A
B
C
D
E
F
G
H
599
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
custom or usage to exclude women. This is plainly ultra vires.The
object of the Act is to enable the entry of all sections and classes
of Hindus into temples dedicated to, or for the benefit of or used
by any section or class of Hindus. The Act recognizes the rights
of all sections and classes of Hindus to enter places of public
worship and their right to offer prayers. The law was enacted to
remedy centuries of discrimination and is an emanation of Article
25(2)(b) of the Constitution. The broad and liberal object of the
Act cannot be shackled by the exclusion of women. [Para 90][812-
F-G; 813-A-D]
Ardeshir H Bhiwandiwala v State of Bombay [1961] 3
SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971)
3 SCC 550; Geeta Enterprises v State of U P (1983) 4
SCC 202 : [1983] 3 SCR 812; Gopal Krishna Agrawal
v State of U P (1982) All. L.J. 607; Regional Director,
ESIC v High Land Coffee Works of P.F.X. Saldanha &
Sons (1991) 3 SCC 617 : [1991] 3 SCR 307; Union of
India v Elphinstone Spinning and Weaving Co Ltd.
(2001) 4 SCC 139 : [2001] 1 SCR 221; Additional
District Magistrate v Siri Ram (2000) 5 SCC 451 :
[2000] 3 SCR 1019; Maharashtra State Board of
Secondary and Higher Education v Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27 – referred to.
The ghost of Narasu
9.1 The decision in Narasu, in restricting the definition of
the term ‘laws in force’ detracts from the transformative vision
of the Constitution. Carving
out ‘custom or usage’ from
constitutional scrutiny, denies the constitutional vision of ensuring
the primacy of individual dignity. The decision in Narasu, is based
on flawed premises. Custom or usage cannot be excluded from
‘laws in force’. The decision also opined that personal law is
immune from constitutional scrutiny. This detracts from the notion
that no body of practices can claim supremacy over the
Constitution and its vision of ensuring the sanctity of dignity,
liberty and equality. This also overlooks the wide ambit that was
to be attributed to the term ‘laws in force’ having regard to its
inclusive definition and constitutional history. The decision in
Narasu, in immunizing uncodified personal law and construing
A
B
C
D
E
F
G
H
600
SUPREME COURT REPORTS
[2018] 9 S.C.R.
the same as distinct from custom, deserves detailed
reconsideration in an appropriate case.[Para 101][826-B-C, E]
The State of Bombay v Narasu Appa Mali AIR 1952
Bom 84 – disapproved.
9.2 In the quest towards ensuring the rights guaranteed to
every individual, a Constitutional court such as ours is faced with
an additional task. Transformative adjudication must provide
remedies in individual instances that arise before the Court. In
addition, it must seek to recognize and transform the underlying
social and legal structures that perpetuate practices against the
constitutional vision. Subjecting personal laws to constitutional
scrutiny is an important step in this direction. In the denial of
equal access, the practice denies an equal citizenship and
substantive equality under the Constitution. The primacy of
individual dignity is the wind in the sails of the boat chartered on
the constitutional course of a just and egalitarian social order.
[Para 102][826-F-G; 827-B-C]
A K Gopalan v State of Madras [1950] SCR 88; Rustom
Cavasjee Cooper v Union of India (1970) 1 SCC 248 :
[1970] 3 SCR 530; Rustom Cavasjee Cooper v. Union
of India (1970) 1 SCC 248 : [1970] 3 SCR 530;
Maneka Gandhi v Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Special Courts Bill Reference (1979)
1 SCC 380 : [1979] 2 SCR 476; K.S. Puttaswamy and
another v. Union of India and others (2017) 10 SCC
1; The United Provinces v Mst. Atiqa Begum AIR 1941
FC 16; Ardeshir H Bhiwandiwala v State of Bombay
[1961] 3 SCR 592; CIT v Taj Mahal Hotel,
Secunderabad (1971) 3 SCC 550; Geeta Enterprises v
State of U P (1983) 4 SCC 202 : [1983] 3 SCR 812;
Regional Director, ESIC v High Land Coffee Works of
P.F.X. Saldanha & Sons (1991) 3 SCC 617 : [1991] 3
SCR 307; Sant Ram v Labh Singh [1964] 7 SCR 756;
Shayara Bano v. Union of India and others (2017) 9
SCC 1 : [2017] 7 SCR 797 – referred to.
Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is
stalking the Supreme Court of India’, Lawyers
Collective, 28 May, 2018; Matrimonial Laws and the
A
B
C
D
E
F
G
H
601
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Constitution by A M Bhattacharjee, Eastern Law House
(1996) at p 32; Principles of Statutory Interpretation
by Justice G P Singh, Lexis Nexis (2016) at p 198;
The Framing of India’s Constitution by Shiva Rao,
Vol III, at pp 520, 521, Vol IV, at pages 26, 27 - referred
to.
Deity as a bearer of constitutional rights
10.1 The word ‘persons’ in certain statutes have been
interpreted to include idols. However, to claim that a deity is the
bearer of constitutional rights is a distinct issue, and does not
flow as a necessary consequence from the position of the deity as
a juristic person for certain purposes. Merely because a deity
has been granted limited rights as juristic persons under statutory
law does not mean that the deity necessarily has constitutional
rights. [Para 105][828-D-E]
10.2 A religious denomination or any section thereof has a
right under Article 26 to manage religious affairs. This right vests
in a collection of individuals which demonstrate (i) the existence
of a religious sect or body; (ii) a common faith shared by those
who belong to the religious sect and a common spiritual
organisation; (iii) the existence of a distinctive name and (iv) a
common thread of religion. Article 25 grants the right to the
freedom of conscience and free profession, practice and
propagation of religion. Conscience, as a cognitive process that
elicits emotion and associations based on an individual’s beliefs
rests
only in individuals. The Constitution postulates every
individual as its basic unit. The rights guaranteed under Part III
of the Constitution are geared towards the recognition of the
individual as its basic unit. The individual is the bearer of rights
under Part III of the Constitution. The deity may be a juristic
person for the purposes of religious law and capable of asserting
property rights. However, the deity is not a ‘person’ for the
purpose of Part III. The legal fiction which has led to the
recognition of a deity as a juristic person cannot be extended to
the gamut of rights under Part III of the Constitution. [Para
106][829-F-H; 830-A-B]
10.3 In any case, the exclusion of women from the
Sabarimala temple affects both, the religious and civic rights of
A
B
C
D
E
F
G
H
602
SUPREME COURT REPORTS
[2018] 9 S.C.R.
the individual. The anti-exclusion principle would disallow a claim
based on Article 25 and 26 which excludes women from the
Sabarimala Temple and hampers their exercise of religious
freedom. This is in keeping with the over-arching liberal values
of the Constitution and its vision of ensuring an equal citizenship.
[Para 106][830-B-C]
Pramatha Nath Mullick v Pradyumna Kumar Mullick
(1925) 27 Bom LR 1064; Yogendra Nath Naskar v
Commissioner of the Income-Tax, Calcutta (1969) 1
SCC 555 : [1969] 3 SCR 742; A S Narayana
Deekshitulu v State Of Andhra Pradesh 1996 9 SCC
548 : [1996] 3 SCR 543; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt [1954] SCR 1005 –
referred to.
A road map for the future
11.1 By reserving to itself the authority to determine
practices which are essential or inessential to religion, the Court
assumed a reformatory role which would allow it to cleanse
religion of practices which were derogatory to individual dignity.
Exclusions from temple entry could be regarded as matters which
were not integral to religion. While doing so, the Court would
set up a progressive view of religion. This approach is problematic.
The rationale for allowing a religious community to define what
constitutes an essential aspect of its religion is to protect the
autonomy of religions and religious denominations. Protecting
that autonomy enhances the liberal values of the
Constitution.
By entering upon doctrinal issues of what does or does not
constitute an essential part of religion, the Court has, as a
necessary consequence, been required to adopt a religious
mantle. The Court would determine as to whether a practice is
or is not an essential part of religion. This has enabled the Court
to adopt a reformist vision of religion even though it may conflict
with the views held by the religion and by those who practice and
profess the faith. The competence of the Court to do so and the
legitimacy of the assumption of that role may be questionable.
The Court discharges a constitutional (as distinct from an
ecclesiastical) role in adjudication. Adjudicating on what does or
A
B
C
D
E
F
G
H
603
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
does not form an essential part of religion blurs the distinction
between the religious-secular divide and the essential/inessential
approach. The former has a textual origin in Article 25(2)(a). The
latter is a judicial creation. [Para 108][831-D-H; 832-A-C]
11.2 The right to freedom of religion which is comprehended
in Articles 25-28 is not a stand alone right. These Articles are an
integral element of the entire chapter on fundamental rights.
Constitutional articles which recognise fundamental rights have
to be understood as a seamless web. Together, they build the
edifice of constitutional liberty. Fundamental human freedoms in
Part III are not disjunctive or isolated. They exist together. It is
only in cohesion that they bring a realistic sense to the life of the
individual as the focus of human freedoms. The right of a
denomination must then be balanced with the individual rights to
which each of its members has a protected entitlement in Part
III. [Para 109][832-E-G]
11.3 The co-existence of a group right in a chapter on
fundamental rights which places the individual at the forefront of
its focus cannot be a matter without significance. It would be
impossible to conceive of the preservation of liberal constitutional
values while at the same time allowing group rights to defy those
values by practicing exclusion and through customs which are
derogatory to dignity. This apparent contradiction can be
resolved
by postulating that notwithstanding the recognition of group rights
in Article 26, the Constitution has never intended that the
assertion of these rights destroy individual dignity and liberty.
Group rights have been recognized by the Constitution in order
to provide a platform to individuals within those denominations
to realize fulfilment and self-determination.[Para 110][833-C, D-F]
11.4 A deferential approach to what constitutes a part of
religious tenets would free the court from the unenviable task of
adjudicating upon religious texts and doctrines. The deference,
however, that is attributed to religion is subject to the fundamental
principles which emerge from the quest for liberty, equality and
dignity in Part III. Both Article 25(1) and Article 26 are subject
to public order, morality and health. Acting under the rubric of
these limitations even the religious freedom of a denomination
is subject to the anti-exclusion principle. The anti-exclusion
principle allows for due-deference to the ability of a religion to
A
B
C
D
E
F
G
H
604
SUPREME COURT REPORTS
[2018] 9 S.C.R.
determine its own religious tenets and doctrines. At the same
time, the principle postulates that where a religious practice
causes the exclusion of individuals in a manner which impairs
their dignity or hampers their access to basic goods, the freedom
of religion must give way to the over-arching values of a liberal
constitution. The essential religious practices test should merit
a close look, in an appropriate case in the future. [Paras 111-
112][835-G; 836-A-B, D-F]
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v.
The State of Bombay & Ors. [1954] SCR 1055; Durgah
Committee, Ajmer and others v. Syed Hussain Ali and
others AIR 1961 SC 1402 : [1962] SCR 383; Tilkayat
Shri Govindlalji Maharaj etc. v. State of Rajasthan &
Ors. [1964] 1 SCR 561; Sastri Yagnapurushadji v.
MuldasBhudardas Vaishya [1966] 3 SCR 242;
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019 – referred to.
Freedom from community: Individual rights, group life,
state authority and religious freedom under the Indian
Constitution 
by 
Gautam 
Bhatia, 
Global
Constitutionalism, Cambridge University Press (2016)
pp 374, 382; The Politics of Recognition in
Multiculturalism: Examining the Politics of Recognition
C Taylor, (A Gutmann ed.) Princeton University Press
(1994); 
Introduction
Multiculturalism 
in
Multiculturalism, Liberalism and Democracy R
Bhargava (R Bhargava et al. eds), Oxford University
Press (2007); Freedom of Religion in India: Current
Issues and Supreme Court Acting as Clergy by Faizan
Mustafa and Jagteshwar Singh Sohi Brigham Young
University Review (2017); Definitional imbroglios: A
critique of the definition of religion and essential
practice tests in religious freedom adjudication Jaclyn
L Neo, International Journal of Constitutional Law,
Vol. 16 (2018) at pages 574-595 - referred to.
A
B
C
D
E
F
G
H
605
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Per Indu Malhotra, J. (Dissenting):
Maintainability and Justiciability
1.1 Writ Petition does not deserve to be entertained for
want of standing. The grievances raised are non-justiciable at
the behest of the petitioners and Intervenors involved. [Para
16(i)][897-D]
1.2 The right to move the Supreme Court under Article 32
for violation of Fundamental Rights, must be based on a pleading
that the Petitioners’ personal rights to worship in this Temple
have been violated. The Petitioners do not claim to be devotees
of the Sabarimala Temple where Lord Ayyappa is believed to have
manifested himself as a ‘Naishtik Brahmachari’. To determine
the validity of long-standing religious customs and usages of a
sect, at the instance of an association/Intervenors who are
“involved in social developmental activities especially activities
related to upliftment of women and helping them become aware of
their rights”, would require this Court to decide religious
questions at the behest of persons who do not subscribe to this
faith. The right to worship, claimed by the Petitioners has to be
predicated on the basis of affirmation of a belief in the particular
manifestation of the deity in this Temple. [Para 7.2][856-C-E]
1.3 The absence of this bare minimum requirement must
not be viewed as a mere technicality, but an essential requirement
to maintain a challenge for impugning practises of any religious
sect, or denomination.
Permitting PILs in religious matters would
open the floodgates to interlopers to question religious beliefs
and practises, even if the petitioner is not a believer of a particular
religion, or a worshipper of a particular shrine. The perils are
even graver for religious minorities if such petitions are
entertained. [Para 7.3][856-E-F]
1.4 In matters of religion and religious practises, Article
14 can be invoked only by persons who are similarly situated,
that is, persons belonging to the same faith, creed, or sect. The
Petitioners do not state that they are devotees of Lord Ayyappa,
who are aggrieved by the practises followed in the Sabarimala
Temple. The right to equality under Article 14 in matters of
religion and religious beliefs has to be viewed differently. It has
A
B
C
D
E
F
G
H
606
SUPREME COURT REPORTS
[2018] 9 S.C.R.
to be adjudged amongst the worshippers of a particular religion
or shrine, who are aggrieved by certain practises which are found
to be oppressive or pernicious. [Para 7.4][857-A-B]
1.5 The right of an individual to worship a specific
manifestation of the deity, in accordance with the tenets of that
faith or shrine, is protected by Article 25(1) of the Constitution.
If a person claims to have faith in a certain deity, the same has to
be articulated in accordance with the tenets of that faith. In the
instant case, the worshippers of this Temple believe in the
manifestation of the deity as a ‘Naishtik Brahmachari’. The
devotees of this Temple have not challenged the practises
followed by this Temple, based on the essential characteristics
of the deity. [Para 7.5][857-C-D]
1.6 The right to practise one’s religion is a Fundamental
Right guaranteed by Part III of the Constitution, without reference
to whether religion or the religious practises are rational or not.
Religious practises are Constitutionally protected under Articles
25 and 26(b). Courts normally do not delve into issues of religious
practises, especially in the absence of an aggrieved person from
that particular religious faith, or sect. [Para 7.6][857-E-F]
1.7 Precedents under Art. 25 have arisen against State action
and not been rendered in PIL. [Para 7.7][858-A]
Hans Muller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta & Ors. [1955] 1 SCR 1284;
Commissioner
Hindu Religious Endowments, Madras v. Shri
Lakshmindra Thritha Swaminar of Sri Shirur Mutt
[1954] SCR 1005; Sri Venkatramana Devaru v. State
of Mysore and others [1958] SCR 895; Mahant Moti
Das v. S.P. Sahi, The Special Officer In Charge of Hindu
Religious trust & Ors. [1959] Supp 2 SCR 563; Durgah
Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR
383; Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay [1962] Suppl. 2 SCR 496; Bijoe Emmanuel &
Ors. v. State of Kerala & Ors. (1986) 3 SCC 615 : [1986]
3 SCR 518 – referred to.
Constitutional Law of India : A Critical Commentaryby
H.M. Seervai Vol. II (4th Ed., Reprint 1999) - referred
to.
A
B
C
D
E
F
G
H
607
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Applicability of Article 14 in matters of religion and religious
practice
2.1 The equality doctrine enshrined under Article 14 does
not override the Fundamental Right guaranteed by Article 25 to
every individual to freely profess, practise and propagate their
faith, in accordance with the tenets of their religion. [Para
16(ii)][897-E]
2.2 Religious customs and practises cannot be solely tested
on the touchstone of Article 14 and the principles of rationality
embedded therein. Article 25 specifically provides the equal
entitlement of every individual to freely practise their religion.
Equal treatment under Article 25 is conditioned by the essential
beliefs and practises of any religion. Equality in matters of religion
must be viewed in the context of the worshippers of the same
faith. [Para 8.1][859-D-E]
2.3 The difficulty lies in applying the tests under Article 14
to religious practises which are also protected as Fundamental
Rights under our Constitution. The right to equality claimed by
the Petitioners under Article 14 conflicts with the rights of the
worshippers of this shrine which is also a Fundamental Right
guaranteed by Articles 25, and 26 of the Constitution. It would
compel the Court to undertake judicial review under Article 14
to delineate the rationality of the religious beliefs or practises,
which would be outside the ken of the Courts. It is not for the
courts to determine which of these
practises of a faith are to be
struck down, except if they are pernicious, oppressive, or a social
evil, like Sati. [Para 8.2][859-G-H; 860-A]
2.4 The submission of the petitioners and intervenors that
the age group of 10 to 50 years is arbitrary, and cannot stand the
rigours of Article 14, cannot be accepted, since the prescription
of this age-band is the only practical way of ensuring that the
limited restriction on the entry of women is adhered to. [Para
8.4][860-C]
2.5 The right to gender equality to offer worship to Lord
Ayyappa is protected by permitting women of all ages, to visit
temples where he has not manifested himself in the form of a
‘Naishtik Brahamachari’, and there is no similar restriction in
A
B
C
D
E
F
G
H
608
SUPREME COURT REPORTS
[2018] 9 S.C.R.
those temples. It is pertinent to mention that the Respondents,
in this context, have submitted that there are over 1000 temples
of Lord Ayyappa, where he has manifested in other forms, and
this restriction does not apply. The prayers of the Petitioners if
acceded to, in its true effect, amounts to exercising powers of
judicial review in determining the validity of religious beliefs and
practises, which would be outside the ken of the courts. The issue
of what constitutes an essential religious practise is for the
religious community to decide. [Paras 8.5-8.6][860-D-F]
Applicability of Article 15
3. The submission that the Sabarimala Temple would be
included in the phrase “places of public resort”, as it occurs in
Article 15(2)(b), cannot be accepted. The Constituent Assembly
considered it fit not to include ‘places of worship’ or ‘temples’
within the ambit of Draft Article 9 of the Constitution. The
conscious deletion of “temples” and “places of worship” from
the Draft Article 9(1) has to be given due consideration. [Para
9.1-9.2][860-H; 862-C-D]
Draft Constitution of India, Drafting Committee of the
Constituent Assembly of India (Manager Government
of India Press, New Delhi, 1948); Statement of K.T.
Shah, Constituent Assembly Debates (November 29,
1948); Statement of Vice-President, Constituent
Assembly Debates (November 29, 1948); Statement
of Mr. Mohd. Tahir, Constituent Assembly Debates
(November 29, 1948) –
referred to.
Role of Courts in matters concerning religion
4.1 The role of Courts in matters concerning religion and
religious practises under our secular Constitutional set up is to
afford protection under Article 25(1) to those practises which
are regarded as “essential” or “integral” by the devotees, or
the religious community itself. [Para 10.1][862-E]
4.2 The Constitution lays emphasis on social justice and
equality. It has specifically provided for social welfare and reform,
and throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus through the
process of legislation in Article 25(2)(b) of the Constitution.
Article 25(2)(b) is an enabling provision which permits the State
to redress social inequalities and injustices by framing legislation.
A
B
C
D
E
F
G
H
609
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
It is therefore difficult to accept the contention that Article 25(2)(b)
is capable of application without reference to an actual legislation.
What is permitted by Article 25(2) is State made law on the
grounds specified therein, and not judicial intervention. [Para
10.8][872-A-B]
4.3 The 1965 Act is a legislation framed in pursuance of
Article 25(2)(b) which provides for the throwing open of Hindu
places of public worship. The proviso to Section 3 of the 1965 Act
carves out an exception to the applicability of the general rule
contained in Section 3, with respect to religious denominations,
or sect(s) thereof, so as to protect their right to manage their
religious affairs without outside interference. Rule 3(b) gives
effect to the proviso of Section 3 insofar as it makes a provision
for restricting the entry of women at such times when they are
not by custom or usage allowed to enter of place of public worship.
The Respondents claim the right to worship in the Sabarimala
Temple under Article 25(1) in accordance with their beliefs and
practises as per the tenets of their religion. These practises are
considered to be essential or integral to that Temple. Any
interference with the same would conflict with their right
guaranteed by Article 25(1) to worship Lord Ayyappa in the form
of a ‘Naishtik Brahmachari’. In other jurisdictions also, where
State made laws were challenged on grounds of public morality,
the
Courts have refrained from striking down the same on the
ground that it is beyond the ken of the Courts.Judicial review of
religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form
of worship of a deity. Doing so would negate the freedom to
practise one’s religion according to one’s faith and beliefs. It would
amount to rationalising religion, faith and beliefs, which is outside
the ken of Courts.[Paras 10.9, 10.10, 10.11, 10.13][872-C-G; 873-
C-D]
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)
3 SCC 615: [1986] 3 SCR 518; Tilkayat Shri Govindlalji
Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR
561; Durgah Committee, Ajmer v. Syed Hussain Ali
[1962] 1 SCR 383; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal
A
B
C
D
E
F
G
H
610
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Panachand Gandhi v. The State of Bombay & Ors. 1954
SCR 1055; Shayara Bano v. Union of India and others
(2017) 9 SCC 1 : [2017] 7 SCR 797; S.P. Mittal v. Union
of India and others (1983) 1 SCC 51 : [1983] 1 SCR
729- referred to.
Adelaide Company of Jehovah’s Witnesses Incorporated
v. The Commonwealth 67 CLR 116; Regina v. Secretary
of State for Education and Employment & Ors. [2005]
UKHL 15; Eddie C. Thomas v. Review Board of the
Indiana Employment Security Division 450 U.S. 707
(1981); United Statesv. Edwin D. Lee 455 U.S. 252
(1982); Robert L. Hernandez v. Commissioner of
Internal Revenue 490 U.S. 680 (1989); Employment
Division, Department of Human Resources of Oregon
v. Alfred L. Smith 494 U.S. 872 (1990); Church of
Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520
(1993) – referred to.
Constitutional law of India: A Critical Commentary by
H.M. Seervai; Religion, Law and the State in India by
J. Duncan M. Derett (1968) p. 447; Constitutional Law
of India: A Critical Commentaryby H.M. Seervai Vol.
II (4th Ed., Reprint 1999) paragraph 12.18 at p. 1267-
1268– referred to.
Constitutional morality in matters of religion in a secular
polity
5. The concept of Constitutional Morality refers to the
moral values underpinning the text of the Constitution, which
are instructive in ascertaining the true meaning of the
Constitution, and achieve the objects contemplated therein.
Constitutional Morality in a pluralistic society
and secular polity
would reflect that the followers of various sects have the freedom
to practise their faith in accordance with the tenets of their
religion. It is irrelevant whether the practise is rational or logical.
Notions of rationality cannot be invoked in matters of religion by
courts. Equality and non-discrimination are certainly one facet of
Constitutional Morality. However, the concept of equality and
non-discrimination in matters of religion cannot be viewed in
isolation. Under our Constitutional scheme, a balance is required
A
B
C
D
E
F
G
H
611
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
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 in a secular
polity would imply the harmonisation of the Fundamental Rights,
which include the right of every individual, religious denomination,
or sect, to practise their faith and belief in accordance with the
tenets of their religion, irrespective of whether the practise is
rational or logical, to ensure that the religious beliefs of none are
obliterated or undermined. It is the Constitutional duty of the
Court to harmonise the rights of all persons, religious
denominations or sects thereof, to practise their religion according
to their beliefs and practises. [Paras 11.5-11.8][874-C-H; 875-F-
G]
Sahara India Real Estate Corporation Limited & Ors.
v. Securities and Exchange Board of India & Anr (2012)
10 SCC 603 : [2012] 12 SCR 256; Subramaniam
Swamy v. Union of India, Ministry of Law & Ors. (2016)
7 SCC 221: [2016] 3 SCR 865; Acharya Maharajshri
Narendra Prasadji Anandprasadji Maharaj & Ors. v.
The State of Gujarat & Ors. (1975) 1 SCC 11 : [1975]
0 Suppl. SCR 145 – referred to.
Religious denomination
6.1 The Respondents and the Intervenors have made out a
plausible case that the Ayyappans or worshippers of the
Sabarimala
Temple satisfy the requirements of being a religious
denomination, or sect thereof, which is entitled to the protection
provided by Article 26. The issue whether the Sabarimala Temple
constitutes a ‘religious denomination’, or a sect thereof, is a mixed
question of fact and law. It is trite in law that a question of fact
should not be decided in writ proceedings. The proper forum to
ascertain whether a certain sect constitutes a religious
denomination or not, would be more appropriately determined
by a civil court, where both parties are given the opportunity of
leading evidence to establish their case. [Para 12.10, 16(iv)][897-
G; 881-A-B]
A
B
C
D
E
F
G
H
612
SUPREME COURT REPORTS
[2018] 9 S.C.R.
6.2 Article 26 guarantees that every religious denomination,
or sect thereof, shall have the right inter alia to manage its own
affairs in matters of religion. This right is made subject to public
order, morality, and health. Article 26 refers not only to religious
denominations, but also to sects thereof. A religious denomination
or organisation enjoys complete autonomy in matters of deciding
what rites and ceremonies are essential according to the tenets
of that religion. The only restriction imposed is on the exercise
of the right being subject to public order, morality and health
under Article 26. [Paras 12.2-12.3][876-B-D]
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; S.P. Mittal v. Union of India
and others (1983) 1 SCC 51 : [1983] 1 SCR 729; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay
[1962] Suppl. 2 SCR 496 – referred to.
6.3 The meaning ascribed to religious denomination by this
Court in Shirur Mutt case and subsequent cases is not a strait-
jacket formula, but a working formula. It provides guidance to
ascertain whether a group would fall within a religious
denomination or not. If there are clear attributes that there exists
a sect, which is identifiable as being distinct by its beliefs and
practices, and having a collection of followers who follow the same
faith, it would be identifiable as a religious denomination. [Para
12.7-12.8][878-C-D]
6.4 Respondents have made out a strong and plausible case
that the worshippers of the Sabarimala Temple have the attributes
of a religious denomination, or sect thereof.The submission that
since the visitors to the temple are not only from the Hindu
religion, but also from other religions, the worshippers of this
Temple would not constitute a separate religious sect, cannot be
accepted since it is not uncommon for persons from different
religious faiths to visit shrines of other religions. This by itself
would not take away the right of the worshippers of this Temple
who may constitute a religious denomination, or sect thereof.
The Constitution ensures a place for diverse religions, creeds,
denominations and sects thereof to co-exist in a secular society.
It is necessary that the term ‘religious denomination’ should
A
B
C
D
E
F
G
H
613
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
receive an interpretation which is in furtherance of the
Constitutional object of a pluralistic society. [Paras 12.9, 12.12-
12.13]879-D; 881-F-H; 882-A]
Arya Vyasa Sabha & Ors. v. Commissioner of Hindu
Charitable and Religious Institutions & Endowments,
Hyderabad & Ors. (1976) 1 SCC 292; Dr. Subramanian
Swamy v. State of T.N. & Ors. (2014) 5 SCC 75 : [2014]
1 SCR 308 – referred to.
Essential Practises Doctrine
7.1 The ‘essential practises test’ in its application would
have to be determined by the tenets of the religion itself. The
practises and beliefs which are considered to be integral by the
religious community are to be regarded as “essential”, and
afforded protection under Article 25. The only way to determine
the essential practises test would be with reference to the
practises followed since time immemorial, which may have been
scripted in the religious texts of this temple. If any practise in a
particular temple can be traced to antiquity, and is integral to the
temple, it must be taken to be an essential religious practise of
that temple. The Temple Thanthri, the Travancore Devaswom
Board, and believers of Lord Ayyappa have submitted that the
limited restriction on access of women during the notified age of
10 to 50 years, is a religious practise which is centralandintegral
to the tenets of this shrine, since the deity has manifested himself
in the form of a ‘Naishtik Brahmachari’. [Paras
13.6-13.7][886-
E-H]
7.2 The practise of celibacy and austerity is the unique
characteristic of the deity in the Sabarimala Temple. Hindu deities
have both physical/temporal and philosophical form. The same
deity is capable of having different physical and spiritual forms or
manifestations. Worship of each of these forms is unique, and not
all forms are worshipped by all persons. The form of deity in any
temple is of paramount importance. Worship has two elements –
the worshipper, and the worshipped. The right to worship under
Article 25 cannot be claimed in the absence of the deity in the
particular form in which he has manifested himself. Religion is a
matter of faith, and religious beliefs are held to be sacred by those
who share the same faith. Thought, faith and belief are internal,
A
B
C
D
E
F
G
H
614
SUPREME COURT REPORTS
[2018] 9 S.C.R.
while expression and worship are external manifestations thereof.
In the case of the Sabarimala Temple, the manifestation is in the
form of a ‘Naishtik Brahmachari’. The belief in a deity, and the
form in which he has manifested himself is a fundamental right
protected by Article 25(1) of the Constitution. The phrase “equally
entitled to”, as it occurs in Article 25(1), must mean that each
devotee is equally entitled to profess, practise and propagate his
religion, as per the tenets of that religion. The celibate nature of
the deity at the Sabarimala Temple has been traced by the
Respondents to the SthalPurana of this Temple chronicled in the
‘Bhuthanatha Geetha’. Evidence of these practises are also
documented in the Memoir of the Survey of the Travancore and
Cochin States written by Lieutenants Ward and Conner published
in two parts in 1893 and 1901. The religious practise of restricting
the entry of women between the ages of 10 to 50 years, is in
pursuance of an ‘essential religious practise’ followed by the
respondents. The said restriction has been consistently, followed
at the Sabarimala Temple, as is borne out from the Memoir of
the Survey of the Travancore and Cochin States published in two
parts in 1893 and 1901. [Paras 13.9-13.13][889-D-E; 890-A-E]
7.3 In the present case, the character of the temple at
Sabarimala is unique on the basis of centuries old religious
practises followed to preserve the
manifestation of the deity, and
the worship associated with it. Any interference with the mode
and manner of worship of this religious denomination, or sect,
would impact the character of the Temple, and affect the beliefs
and practises of the worshippers of this Temple. Based on the
material adduced before this Court, the Respondents have
certainly made out a plausible case that the practise of restricting
entry of women between the age group of 10 to 50 years is an
essential religious practise of the devotees of Lord Ayyappa at
the Sabarimala Temple being followed since time immemorial.
[Paras 13.14-13.15][891-B-D]
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Durgah Committee, Ajmer v.
Syed Hussain Ali [1962] 1 SCR 383; Ratilal Panachand
Gandhi v. The State of Bombay & Ors. [1954] SCR
1055; Tilkayat Shri Govindlalji Maharaj etc. v. State
A
B
C
D
E
F
G
H
615
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
of Rajasthan & Ors. [1964] 1 SCR 561; Bijoe
Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3
SCC 615 : [1986] 3 SCR 518; S. Mahendran v. The
Secretary, 
Travancore 
Devaswom 
Board,
Thiruvananthpuram and others AIR 1993 Kerala 42;
Dr. Subramanian Swamy v. State of T.N. & Ors. (2014)
5 SCC 75 : [2014] 1 SCR 308; Daryao & Ors. v. State
of U.P. & Ors. [1962] 1 SCR 574 – referred to.
Adelaide Company of Jehovah’s Witnesses Incorporated
v. The Commonwealth 67 CLR 116; Carlos Frank v.
State of Alaska 604 P.2d 1068 (1979) – referred to.
Article 17
8.1 Article 17 refers to the practise of Untouchability as
committed in the Hindu community against Harijans or people
from depressed classes, and not women. The limited restriction
on the entry of women during the notified age-group does not fall
within the purview of Art. 17 of the Constitution. [Paras 14.5,
16(v)][[893-E-F; 898-A]
8.2 All forms of exclusion would not amount to
untouchability. Article 17 pertains to untouchability based on caste
prejudice. Literally or historically, untouchability was never
understood to apply to women as a class. The restriction on women
within a certain age-band, is based upon the historical origin and
beliefs and practices of the sabrimala temple. In the present case,
women of the notified age group are allowed entry into all other
temples of Lord Ayyappa. The restriction on the entry of women
during the notified age group in this
Temple is based on the unique
characteristic of the deity, and not founded on any social exclusion.
The analogy sought to be drawn by comparing the rights of Dalits
with reference to entry to temples and women is wholly
misconceived and unsustainable. The right asserted by Dalits was
in pursuance of right against systematic social exclusion and for
social acceptance per se. In the case of temple entry, social reform
preceded the statutory reform, and not the other way about. The
social reform was spearheaded by great religious as well as
national leaders like Swami Vivekananda and Mahatma Gandhi.
The reforms were based upon societal morality, much before
Constitutional Morality came into place. [Paras 14.2-14.3][891-
E-F; 893-A-B]
A
B
C
D
E
F
G
H
616
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Sri Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895 – referred to.
Constitutional Law of India: A Critical Commentary by
H.M. SeervaiVol. II (4th Ed., Reprint 1999) para 9.418
at p 691; Indian Constitutional Lawby M.P. Jain (6th
Ed., Revised by Justice Ruma Pal and Samaraditya
Pal; 2010) at p. 1067 – referred to.
Rule 3(b) of the 1965 Rules is not ultra vires the Act
9.1 Rule 3(b) of the 1965 Rules is not ultra vires Section 3
of the 1965 Act, since the proviso carves out an exception in the
case of public worship in a temple for the benefit of any religious
denomination or sect thereof, to manage their affairs in matters
of religion. [Para 16(vi)][893-A-B]
9.2 The provisions of the main section would be subject to
the right of a religious denomination or section to manage its
own affairs in the matters of religion. The proviso to Section 3 of
the 1965 Act provides that no such regulation shall discriminate
in any manner whatsoever, against any Hindu on the ground that
he belongs to a particular section or class. [Para 15.1][895-G-H;
896-B]
9.3 Theproviso carves out an exception to the Section 3
itself. The declaration that places of public worship shall be open
to Hindus of all sections and classes is not absolute, but subject
to the right of a religious denomination to “manage its own affairs
in matters of religion”. Section 3 must be viewed in the
Constitutional context where the legislature has
framed an
enabling legislation under Article 25(2)(b) which has been made
expressly subject to religious practises peculiar to a denomination
under Article 26(b). [Para 15.2][896-C-D]
9.4 Rule 3(b) is within the ambit of the proviso to Section 3
of the 1965 Act, as it recognises pre-existing customs and usages
including past traditions which have been practised since time
immemorial qua the Temple. The Travancore Devaswom Board
submits that these practises are integral and essential to the
Temple. [Para 15.3][896-D-E]
9.5 The Notification dated November 27, 1956 issued by
the Travancore Devaswom Board restricts the entry of women
between the ages of 10 to 55 years as a custom and practise
A
B
C
D
E
F
G
H
617
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
integral to the sanctity of the Temple, and having the force of law
under Article 13(3)(a) of the Constitution. These practises are
protected by the proviso to Section 3 of the 1965 Act which is
given effect to by Rule 3(b) of the 1965 Rules. [Para 15.5][896-F;
897-A-B]
Raja Bira Kishore Deb Hereditary Superintendent,
Jagannath Temple, P.O. and District Puriv. State of
Orissa (1964) 7 SCR 32; Bennett Coleman & Co. &
Ors. v. Union of India & Ors. (1972) 2 SCC 788: [1973]
2 SCR 757; Riju Prasad Sharma & Ors. v. State of
Assam & Ors. (2015) 9 SCC 461; Ewanlangki-E-
Rymbai v. Jaintia Hills District Council & Ors. (2006)
4 SCC 748 : [2006] 3 SCR 497; Bhimashya & Ors. v.
Janabi (Smt) Alia Janawwa (2006) 13 SCC 627 :
[ 2006] 10 Suppl. SCR 628 ; Salekh Chand (Dead) by
LRs v. Satya Gupta & Ors. (2008) 13 SCC 119 : [2008]
3 SCR 833; Adi Saiva Sivachariyargal Nala Sangam
& Ors. v. Government of Tamil Nadu & Anr. (2016) 2
SCC 725 : [2015] 11 SCR 1110 – referred to.
The Process of Pilgrimage: The Ayyappa Cultus and
Sabarimalai Yatra by Radhika Sekar (Faculty of
Graduate Studies, Department of Sociology and
Anthropology at Carleton University, Ottawa,
Ontario; October 1987); Memoir of the Survey of the
Travancore and Cochin States by Lieutenants Ward
and Conner,(First Reprint 1994, Government of
Kerala) at p. 137 – referred to.
Case Law Reference
In the judgment of Dipak Misra, J:
(2017) 10 SCC 689
referred to
Para 6
AIR
1993 Kerala 42
approved
Para 125
[1962] Suppl. 2 SCR 496
referred to
Para 17
[1964] 7 SCR 32
referred to
Para 17
[1966] 3 SCR 242
referred to
Para 17
[1983] 1 SCR 729
relied on         Paras 92,
                                                                              144(i)
A
B
C
D
E
F
G
H
618
SUPREME COURT REPORTS
[2018] 9 S.C.R.
[1954] SCR 1005
relied on
Paras 92,
     144(i)
[1962] 1 SCR 383
referred to
Para 21
[1958] SCR 895
referred to
Para 25
[1989] 1 SCR 689
referred to
Para 29
[2017] 7 SCR 797
referred to
Para 30
[2007] 12 SCR 991
referred to
Para 31
[2014] 12 SCR 259
referred to
Para 31
(2014) 5 SCC 438
referred to
Para   33
(2017) 10 SCC 1
referred to
Para 33
[2004] 2 SCR 1019
relied on
Para 125
[1997] 3 Suppl.  SCR 404
referred to
Para 38
[1972] 3 SCR 815
referred to
Para 51
[2015] 11 SCR 1110
referred to
Para 62
[1995] 2 Suppl.  SCR 608
referred to
Para 65
[1956] SCR 756
referred to
Para 67
[1981] 2 SCR 826
referred to
Para 67
[2014] 9 SCR 965
referred to
Para 74
[2003] 1 Suppl.  SCR 920
referred to
Para 93
[1977] 2 SCR 611
referred to
Para 99
[1952] SCR 849
referred to
Para 102
(2018) 8 SCALE 72
referred to
Para 108
(2018) 10 SCALE 386
referred to
Para 109
[2003] 1 Suppl.  SCR 638
referred to
Para 112
[1959] SCR 629
referred to
Para 115
[1994] 5 Suppl.  SCR 515 
referred to
Para 116
[1962] SCR 383
referred to
Para 117
[1984] 1 SCR 447
referred to
Para 119
[2002] 3 Suppl.  SCR 76
referred to
Para 120
[2012] 6 SCR 34
referred to
Para 137
[1988] 3 SCR 62
referred to
Para 138
[2000] 1 SCR 1054
referred to
Para 138
[2009] 9 SCR 22
referred to
Para 138
A
B
C
D
E
F
G
H
619
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
[2006] 3 SCR 396
referred to
Para 140
In the judgment of Nariman, J.:
[1954] SCR 1005
referred to
Para 4
[1954] SCR 1055
referred to
Para 5
[1958] SCR 895
referred to
Para 6
[1962] SCR 383
referred to
Para 7
[1962] Suppl. 2 SCR 496
referred to
Para 9
[1964] 1 SCR 561
referred to
Para 11
[1972] 3 SCR  815
referred to
Para 12
[1977] 2 SCR  611
referred to
Para 13
[1983] 1 SCR 729
referred to
Para 14
[1984] 1  SCR  447
referred to
Para  15
[1997] 2  SCR 1086
relied on
Para26
[2002] 3  Suppl.  SCR 76
referred to
Para 17
[2014] 1 SCR 308
referred to
Para 18
(2015) 9 SCC 461
referred to
Para 19
[2015] 11  SCR 1110
referred to
Para 20
AIR 1993 Kerala 42
referred to
Para 21
[1988] Supp 2 SCR 1050
 relied on
Para 31
In the judgment of Chandrachud, J.
[1970] 3 SCR 530
referred to
Para 14
[1950] SCR 88
referred to
Para 14
[1978] 2 SCR 621
referred to
Para 14
AIR 1993 Kerala 42
referred to
Para 27
[1954] SCR 1005
referred to
Para 29
[1954] SCR 1055
referred to
Para 30
[1958] SCR 895
referred to
Para 31
[1959] SCR 629
referred to
Para 33
[1962] SCR 383
relied on
Para 34
[1962] Suppl. 2 SCR 496
relied on
Para 36
[1964] 1 SCR 561
relied on
Para 39
A
B
C
D
E
F
G
H
620
SUPREME COURT REPORTS
[2018] 9 S.C.R.
[1966] 3 SCR 242
referred to
Para 40
[1984] 1 SCR 447
referred to
Para 41
[1997] 2  SCR 1086
referred to
Para 42
[2002] 3 Suppl. SCR 76
referred to
Para 43
[2004] 2 SCR 1019
referred to
Para 44
[2015] 11 SCR 1110 
referred to
Para 45
[2017] 7 SCR 797
referred to
Para 46
[2003] 1 Suppl. SCR 947
referred to
Para 46
(2018) 8 SCALE 72
referred to
Para 49
[2015] 11 SCR 1110
referred to
Para 51
(2018) 10 SCALE 386
referred to
Para 53
[1983] 1 SCR 729
referred to
Para 62
[1995] 1 Suppl. SCR 745
referred to
Para 63
[2003] 1 Suppl. SCR 920
referred to
Para 63
AIR 1958 Mys 84
referred to
Para 80
AIR 1993 Raj 177
referred to
Para 80
[1992] 3 Suppl. SCR 284
referred to
Para 80
[2015] 11 SCR 1110
referred to
Para 80
(2017) 10 SCC 1
referred to
Paras 80, 94
[1961] 3 SCR 592
referred to
Para 84
(1971) 3 SCC 550
referred to
Para 84
[1983] 3 SCR 812
referred to
Para 84
(1982) All. L.J. 607
referred to
Para 84
[1991] 3 SCR 307
referred to
Para 84
[2000] 3 SCR 1019
referred to
Para 89
(1984) 4 SCC 27
referred to
Para 89
[1950] SCR 88
referred to
Para 94
[1970] 3 SCR 530
referred to
Para 94
[1979] 2 SCR 476
referred to
Para 94
[1961] 3 SCR 592
referred to
Para 96
(1971) 3 SCC 550
referred to
Para 96
[1983] 3 SCR 812
referred to
Para 96
[1991] 3 SCR 307
referred to
Para 96
A
B
C
D
E
F
G
H
621
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
[1964] 7 SCR 756
referred to
Para 97
AIR 1952 Bom 84
disapproved
Para 101
(1925) 27 Bom LR 1064
referred to
Para 104
[1969] 3 SCR 742
referred to
Para 104
[1996] 3 SCR 543
referred to
Para 105
In the judgment of Indu Malhotra, J:
[1958] SCR 895
referred to
Para 2
[1962] Suppl. 2 SCR 496
referred to
Para 2
[1964] 7 SCR 32
referred to
Para 2
[1983] 1 SCR729
referred to
Para 2
[1973] 2 SCR 757
referred to
Para 2
AIR 1993 Kerala 42
referred to
Para 4
(2015) 9 SCC 461
referred to
Para 4
[2006] 3 SCR 497
referred to
Para 5
[2006] 10 Suppl. SCR 628
referred to
Para 5
[2008] 3 SCR 833
referred to
Para 5
[1964] 1 SCR 561
referred to
Para 5
[1954] SCR 1005
referred to
Para 5
[1962] 1 SCR 383
referred to
Para 5
[2014] 1 SCR 308
referred to
Para 5
[2015] 11 SCR 1110
referred to
Para 6
[1955] 1 SCR 1284
referred to
Para 7
[1954] SCR 1005
referred to
Para 7
[1958] SCR 895
referred to
Para 7
[1959] Supp 2 SCR 563
referred to
Para 7
[1962] 1 SCR 383
referred to
Para 7
[1962] Suppl. 2 SCR 496
referred to
Para 7
[1986] 3 SCR 518
referred to
Para 7
[1954] SCR 1055
referred to
Para 12
[2017] 7 SCR 797
referred to
Para 10.6
[2012] 12 SCR 256
referred to
Para 11.8
A
B
C
D
E
F
G
H
622
SUPREME COURT REPORTS
[2018] 9 S.C.R.
[2016] 3 SCR 865
referred to
Para 11.8
[1975] 0 Suppl. SCR 145
referred to
Para 11.8
[1962] Suppl. 2 SCR 496
referred to
Para 12.3
(1976) 1 SCC 292
referred to
Para 12.10
[1954] SCR 1055
referred to
Para 13.2
[1962] 1 SCR 574
referred to
Para 13.7
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 373
of 2006.
Under Article 32 of the Constitution of India.
Raju Ramachandran (AC), Ms. Indira Jaising, Dr. K. P.
Kylasanatha Pillay, K. Ramamoorthy, P. V. Surendranath,
K. Radhakrishnan, Jaideep Gupta, V. Giri, K. Parasaran, Dr. Abhishek
Manu Singhvi, Sr. Advs., K. Parameshwar (AC), Ishwar Mohanty (AC),
Ms. Hansini Shankar (AC), R. P. Gupta, Dr. Laxmi Shastri, Ms. Prerna
Kumari, Ms. Bhawna Singh Dev, Bhakti Pasricha Sethi, Sunil Fernandes,
Ms. Nehmat Kaur, Ms. Ajita Sharma, Paras Nath Singh, Ms. Nupur
Kumar, Ms. Anju Thomas, Ms. Astha Sharma, Ms. Priyansha Sharma,
A. Venayagam Balan, V. S. Lakshmi, Ms. Shoba Ramamoorthy,
Sri Ram J. Thalapathy, V. Adhimoolam, Shilp Vinod, Pushkin Rajkumar,
Ms. Reemitha R. Chandran, Ms. Lekha Sudhakaran, V. K. Sidharthan,
P. V. Yogeswaran, Ashish Kr. Upadhyay, Bhuwan Jayant, Y. Lokesh,
Ms. V. Susheatha, Ms. Vanitha Chandrakant Giri, K. V. Jagdishvaran,
Ms. G. Indira, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash,
Mrs. Beena Prakash, Kunal Chatterjee, Sanand Ramakrishnan, Rajeev
Mishra, Madan Mohan Bora, K. V. Mohan, K. V. Balakrishnan,
Ms. Aditi Dani, Ms. Bina Madhavan, S. Udaya Kumar
Sagar,
Ms. Akanksha Mehra, PDT Achary, Nidhiram Sharma, Azeem Samuel,
Narinder Neel (For M/s. Lawyer S Knit & Co.), Sreegesh M. K., Bhavani
Shankar V. Gadnis, Vishwanath B. Gadnis, Ms. Radni V. Gadnis, Krishna
Kumar Singh, M/s. Ap & J Chambers, Shaijan C. George, Vaibhav Joshi,
Ramesh P., Suhaas Ratjna Joshi, V. K. Biju, Hiren Dasan, Chand Qureshi,
Ankur Raghav, Abhay Pratap Singh, Vijay K. Verma, Tarun Verma,
V. K. Verma,  P. V. Saravanaraja, Naresh Kumar, Gautam Talukdar,
Nishe Rajen Shonker, Anjani Kumar Mishra, Abhilash M. R., Simanta
Kumar, Sayooj Mohandas, Ranjan Kumar, Piyush Dwivedi, Manav Vohra,
Amith Krishnan, Krishna Dev Jagarlamudi, Svadha Shankar, Mohammed
Sadique T. A., Kuriakose Varghese, Ranjith Shankar, V. Shyamohan,
Deepak Grover, Willa Mathews, Ginesh P., Devendra Kumar Tiwari,
A
B
C
D
E
F
G
H
623
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Paul John Edison, Shaji Sebastian, Shree Pal Singh, J. Sai Deepak, Eshaan
Ghosh, Suvidutt M. S., Avinash K. Sharma, Ashutosh Nagar, Ms. Anzu,
Yogmaya, K. V. Muthu Kumar, Amith J., Akshay R., Gopal
Sankaranarayanan, Ms. Usha Nandini V., Biju P. Raman, M. S. Vishnu
Sankar, Ravi Prakash Mehrotra, Ankit Agarwal, Advs. for the appearing
parties.
Swami Omji (Applicant-in-person).
Mukesh Jain (Applicant-in-person).
The Judgments of the Court were delivered by
DIPAK 
MISRA, 
CJI 
(FOR 
HIMSELF 
AND
A.M. KHANWILKAR, J.)
Introduction
The irony that is nurtured by the society is to impose a rule,
however unjustified, and proffer explanation or justification to substantiate
the substratum of the said rule.  Mankind, since time immemorial, has
been searching for explanation or justification to substantiate a point of
view that hurts humanity.  The theoretical human values remain on paper.
Historically, women have been treated with inequality and that is why,
many have fought for their rights.  Susan B. Anthony, known for her
feminist activity, succinctly puts, “Men, their rights, and nothing more;
women, their rights, and nothing less.”  It is a clear message.
2. Neither the said message nor any kind of philosophy has opened
up the large populace of this country to accept women as partners in
their search for divinity and spirituality.  In the theatre of life, it seems,
man has put the autograph and there is no space for a
woman even to
put her signature. There is inequality on the path of approach to understand
the divinity.  The attribute of devotion to divinity cannot be subjected to
the rigidity and stereotypes of gender. The dualism that persists in religion
by glorifying and venerating  women as goddesses on one hand and by
imposing rigorous sanctions on the other hand in matters of devotion has
to be abandoned. Such a dualistic approach and an entrenched mindset
results in indignity to women and degradation of their status. The society
has to undergo a perceptual shift from being the propagator of hegemonic
patriarchal notions of demanding more exacting standards of purity and
chastity solely from women to be the cultivator of equality where the
woman is in no way considered frailer, lesser or inferior to man.  The
law and the society are bestowed with the Herculean task to act as
levellers in this regard and for the same, one has to remember the wise
A
B
C
D
E
F
G
H
624
SUPREME COURT REPORTS
[2018] 9 S.C.R.
saying of Henry Ward Beecher that deals with the changing perceptions
of the world in time. He says:
“Our days are a kaleidoscope. Every instant a change takes place
in the contents. New harmonies, new contrasts, new combinations
of every sort. Nothing ever happens twice alike. The most familiar
people stand each moment in some new relation to each other, to
their work, to surrounding objects. The most tranquil house, with
the most serene inhabitants, living upon the utmost regularity of
system, is yet exemplifying infinite diversities.”1
3. Any relationship with the Creator is a transcendental one
crossing all socially created artificial barriers and not a negotiated
relationship bound by terms and conditions. Such a relationship and
expression of devotion cannot be circumscribed by dogmatic notions of
biological or physiological factors arising out of rigid socio-cultural
attitudes which do not meet the constitutionally  prescribed tests.
Patriarchy in religion cannot be permitted to trump over the element of
pure devotion borne out of faith and the freedom to practise and profess
one’s religion.  The subversion and repression of women under the garb
of biological or physiological factors cannot be given the seal of legitimacy.
Any rule based on discrimination or segregation of women pertaining to
biological characteristics is not only unfounded, indefensible and
implausible but can also never pass the muster of
constitutionality.
4. It is a universal truth that faith and religion do not countenance
discrimination but religious practices are sometimes seen as perpetuating
patriarchy thereby negating the basic tenets of faith and of gender equality
and rights. The societal attitudes too centre and revolve around the
patriarchal mindset thereby derogating the status of women in the social
and religious milieu. All religions are simply different paths to reach the
Universal One. Religion is basically a way of life to realize one’s identity
with the Divinity. However, certain dogmas and exclusionary practices
and rituals have resulted in incongruities between the true essence of
religion or faith and its practice that has come to be permeated with
patriarchal prejudices. Sometimes, in the name of essential and integral
facet of the faith, such practices are zealously propagated.
The Reference
5. Having stated so, we will focus on the factual score. The instant
writ petition preferred under Article 32 of the Constitution seeks issuance
of directions against the Government of Kerala, Devaswom Board of
 1 Henry Ward Beecher, 1813-1887 - Eyes and Ears
A
B
C
D
E
F
G
H
625
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Travancore, Chief Thanthri of Sabarimala Temple and the District
Magistrate of Pathanamthitta to ensure entry of female devotees between
the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala
(Kerala) which has been denied to them on the basis of certain custom
and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Rules, 1965 (for short, “the 1965
Rules”) framed in exercise of the  powers conferred by Section 4 of the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act,
1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of
Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to
pass directions for the safety of women pilgrims.
6. The three-Judge Bench in Indian Young Lawyers Association
and others v. State of Kerala and others2, keeping in view the gravity
of the issues involved, sought the assistance of Mr. Raju Ramachandran
and Mr. K. Ramamoorthy, learned senior counsel as Amicus Curiae.
Thereafter, the three-Judge Bench analyzed the decision and the reasons
ascribed by the Kerala High Court in S. Mahendran v. The Secretary,
Travancore Devaswom Board, Thiruvananthpuram and others3
wherein similar contentions were raised. The Bench took note of the
two affidavits dated 13.11.2007 and 05.02.2016 and the contrary stands
taken therein by the Government of Kerala.
7. After recording the
submissions advanced by the learned counsel
for the petitioners, the respondents as well as by the learned Amicus
Curiae, the three-Judge Bench considered the questions formulated by
the counsel for the parties and, thereafter, framed the following questions
for the purpose of reference to the Constitution Bench:
“1. Whether the exclusionary practice which is based   upon a
biological factor exclusive to the female gender amounts to
“discrimination” and thereby violates the very core of Articles 14,
15 and 17 and not protected by ‘morality’ as used in Articles 25
and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an
“essential religious practice” under Article 25 and whether a
religious institution can  assert a claim in that regard under the
umbrella of right to manage its own affairs in the matters of
religion?
3. Whether Ayyappa Temple has a denominational character and,
if so, is it permissible on the part of a ‘religious denomination’
 2  (2017) 10 SCC 689
 3   AIR 1993 Kerala 42
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
626
SUPREME COURT REPORTS
[2018] 9 S.C.R.
managed by a statutory board and financed under Article 290-A
of the Constitution of India out of the Consolidated Fund of Kerala
and Tamil Nadu to indulge in such practices violating constitutional
principles/ morality embedded in Articles 14, 15(3), 39(a) and
51-A(e)?
4. Whether Rule 3 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules permits ‘religious denomination’ to
ban entry of women between the age of 10 to 50 years? And if
so, would it not play foul of Articles 14 and 15(3) of the Constitution
by restricting entry of women on the ground of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorization of Entry) Rules, 1965 is ultra vires the
Kerala Hindu Places of Public Worship (Authorisation of Entry)
Act, 1965 and , if treated to be intra vires, whether it will be
violative of the provisions of Part III of the Constitution?”
8. Because of the aforesaid reference, the matter has been placed
before us.
9. It is also worthy to note here that the Division Bench of the
High Court of Kerala, in S. Mahendran (supra), upheld the practice of
banning entry of women belonging to the age group of 10 to 50 years in
the Sabarimala temple during any time of the year. The High Court
posed the following questions:
“(1) Whether woman of the age group 10 to 50 can be permitted
to enter the Sabarimala temple at any period of the year or during
any of the festivals or poojas
conducted in the temple.
(2) Whether the denial of entry of that class of woman amounts
to discrimination and violative of Articles 15, 25 and 26 of the
Constitution of India, and
(3) Whether directions can be issued by this Court to the
Devaswom Board and the Government of Kerala to restrict the
entry of such woman to the temple?”
10. The High Court, after posing the aforesaid questions, observed
thus:
“40. The deity in Sabarimala temple is in the form of a Yogi or a
Bramchari according to the Thanthri of the temple. He stated
A
B
C
D
E
F
G
H
627
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
that there are Sasta temples at Achankovil, Aryankavu and
Kulathupuzha, but the deities there are in different forms.
Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised
by the Travancore Devaswom Board, while examined as C.W. 1
stated that God in Sabarimala is in the form of aNaisthikBramchari.
That, according to him, is the reason why young women are not
permitted to offer prayers in the temple.
41. Since the deity is in the form of a Naisthik Brahmachari, it is
therefore believed that young women should not offer worship in
the temple so that even the slightest deviation from celibacy and
austerity observed by the deity is not caused by the presence of
such women.”
And again:
“… We are therefore of the opinion that the usage of woman of
the age group 10 to 50 not being permitted to enter the temple and
its precincts had been made applicable throughout the year and
there is no reason why they should be permitted to offer worship
during specified days when they are not in a position to observe
penance for 41 days due to physiological reasons. In short, woman
after menarche up to menopause are not entitled to enter the
temple and offer prayars there at any time of the year.”
11. Analysing so, the High Court recorded its conclusions which
read thus:
“(1) The restriction imposed on women aged above 10 and below
50 from trekking the holy hills of Sabarimala and offering worship
at Sabarimala Shrine is in
accordance with the usage prevalent
from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not
violative of Articles 15, 25 and 26 of the Constitution of India.
(3) Such restriction is also not violative of the provisions of Hindu
Place of Public Worship (Authorisation of Entry) Act, 1965 since
there is no restriction between one section and another section or
between one class and another class among the Hindus in the
matter of entry to a temple whereas the prohibition is only in respect
of women of a particular age group and not women as a class.”
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
628
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Submissions on behalf of the Petitioners
12. Learned counsel appearing for the petitioners have alluded to
the geographical location, historical aspect along with the Buddhist
connection of the Sabarimala temple and the religious history of Lord
Ayyappa. They have, for the purpose of appreciating the functioning of
the Sabarimala temple, also taken us through the history of Devaswom
in Travancore. As regards the statutory backing of the Devaswom
Boards, the petitioners have drawn the attention of this Court to the
‘Travancore - Cochin Hindu Religious Institutions Act, 1950’, Section 4
of the said Act contemplates a Devaswom Board for bringing all
incorporated and unincorporated Devaswoms and other Hindu religious
institutions except Sree Padmanabhaswamy Temple.
13. It has been put forth by them that the aforesaid enactment
has been subject to various amendments over a period of time, the last
amendment being made in the year 2007 vide Amending Act of 2007
[published under Notification No. 2988/Leg.A1/2007 in K.G. ext. No.
694 dated 12.04.2007] which led to the inclusion of women into the
management Board. The petitioners have also referred to Section 29A
of the said Act which stipulates that all appointments of officers and
employees in the Devaswom Administrative Service of the Board shall
be made from a select list of candidates furnished by the Kerala Public
Service Commission. It has been submitted by the
petitioners that after
the 1950 Act, no individual Devaswom Board can act differently both in
matters of religion and administration as they have lost their distinct
character and Sabarimala no more remained a temple of any religious
denomination after the take over of its management.
14. As far as the funding aspect is considered, it is contended that
prior to the adoption of the Constitution, both the Travancore and Tamil
Nadu Devaswom Boards were funded by the State but after six years
of the adoption of the Constitution, the Parliament, in the exercise of its
constituent power, inserted Article 290-A vide the 7th Amendment
whereby a sum of rupees forty six lakhs and fifty thousand only is allowed
to be charged upon the Consolidated Fund of the State of Kerala which
is paid to the Travancore Devaswom Board. It has been asseverated by
the petitioners that after the insertion of Article 290-A in the Constitution
and the consequent State funding, no individual ill-practice could be carried
on in any temple associated with the statutory Devaswom Board even
in case of Hindu temple as this constitutional amendment has been made
A
B
C
D
E
F
G
H
629
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
on the premise that no ill-practice shall be carried on in any temple which
is against the constitutional principles.
15. It is urged that since all Devaswoms are Hindu Temples and
they are bound to follow the basic tenets of Hindu religion, individual ill-
practice of  any temple contrary to the basic tenets of Hindu religion is
impermissible, after it being taken over by statutory board and state
funding in 1971. It is propounded that for the purpose of constituting a
‘religious denomination; not only the practices followed by that
denomination should be different but its administration should also be
distinct and separate. Thus, even if some practices are distinct in temples
attached to statutory board, since its administration is centralized under
the Devaswom Board, it cannot attain a distinct identity of a separate
religious denomination.
16. It is contended that in legal and constitutional parlance, for the
purpose of constituting a religious denomination, there has to be strong
bondage among the members of its denomination. Such denomination
must be clearly distinct following a particular set of rituals/practices/
usages having their own religious institutions including managing their
properties in accordance with law. Further, the petitioners have averred
that religious denomination which closely binds its members with certain
rituals/practices must also be owning some property with perpetual
succession which, as per the petitioners, the Constitution framers kept in
mind while framing Article 26 of the Constitution and, accordingly,
religious denominations have been conferred four rights under clauses
(a) to (d) of Article 26. These rights, it is submitted, are not disjunctive
and exclusive in nature but are collectively conferred to establish their
identity. To buttress this view, the petitioners have placed reliance on the
views of H.M. Seervai4 wherein the learned author has stated that the
right to acquire property is implicit in clause (a) as no religious institution
could be created without property and similarly, how one could manage
its own affairs in matters of religion under clause (b) if there is no religious
institution. Thus, for a religious denomination claiming separate and
distinct identity, it must own some property requiring constitutional
protection.
17. The petitioners have pressed into service the decisions of this
Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay5,
 4  Third Edition, Vol. 1, 1983 pg. 931
 5  [1962]  Suppl. 2 SCR 496
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
630
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Raja Bira Kishore Deb v. State of Orissa6, Shastri Yagnapurushadiji
and others v. Muldas Bhundardas Vaishya and another7 and S.P.
Mittal v. Union of India and others8 wherein the concept of religious
denomination was discussed by this Court. It is the stand of the petitioners
that some mere difference in practices carried out at Hindu Temples
cannot accord to them the status of separate religious denominations.
18. The contention of the petitioners is that Sabarimala Temple is
not a separate religious denomination, for the religious parctices performed
in Sabarimala Temple at the time of ‘Puja’ and other religious ceremonies
are akin to any other practice performed in any Hindu Temple.  It does
not have its separate administration, but is administered by or through a
statutory body constituted under the ‘Travancore - Cochin Hindu Religious
Institutions Act, 1950’ and further, as per Section 29(3A) of the said Act,
the Devaswom Commissioner is required to submit reports to the
government, once in three months, with respect to the working of the
Board.
19. They have placed reliance on the decision of this Court in The
Commissioner Hindu Religious Endowments, Madras v. Shri
Lakshmindra Thritha Swaminar of Sri Shirur Mutt9 wherein it was
observed thus:
“The contention formulated in such broad terms cannot, we think,
be supported. In the first place, what constitutes the essential part
of a religion is primarily to be
ascertained with reference to the
doctrines of that religion itself. If the tenets of any religious sect
of the Hindus prescribe that offerings of food should be given to
the idol at particular hours of the day, that periodical ceremonies
should be performed in a certain way at certain periods of the
year or that there should be daily recital of sacred texts or ablations
to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable
commodities would not make them secular activities partaking of
a commercial or economic character; all of them are religious
practices and should be regarded as matters of religion within the
meaning of article 26(b).”
 6  (1964) 7 SCR 32
 7  (1966) 3 SCR 242 : AIR 1966 SC 1119
 8  (1983) 1 SCC 51
 9  [1954] SCR 1005
A
B
C
D
E
F
G
H
631
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
20.  As per the petitioners, this Court in Shirur Mutt (supra),
while giving freedom under clauses (a) and (b) of Article 26, made it
clear that what is protected is only the ‘essential part’ of religion or, in
other words, the essence of ‘practice’ practised by a religious
denomination and, therefore, the petitioners submit that before any
religious practice is examined on the touchstone of constitutional principles,
it has to be ascertained positively whether the said practice is, in pith and
substance, really the ‘essence’ of the said religion.
21. The petitioners have also cited the judgment in Durgah
Committee, Ajmer v. Syed Hussain Ali10 wherein Gajendragadkar, J.
clarified that clauses (c) and (d) do not create any new right in favour of
religious denominations but only safeguard their rights. Similarly, in matters
of religious affairs, it is observed that the same is also not sacrosanct as
there may be many ill-practices like superstitions which may, in due
course of time, become mere accretions to the basic theme of that
religious denomination. After so citing, the petitioners have submitted
that even if any accretion added for any historical reason has become
an essence of the said religious denomination, the same shall not be
protected under Article 26(b) if it is so abhorring and is against the basic
concept of our Constitution.
22. It is also the case of the petitioners that discrimination in
matters
of entry to temples is neither a ritual nor a ceremony associated with
Hindu religion as this religion does not discriminate against women but,
on the contrary, Hindu religion accords to women a higher pedestal in
comparison to men and such a discrimination is totally anti-Hindu, for
restriction on the entry of women is not the essence of Hindu religion.  It
has also been submitted by the petitioners that even if Sabarimala temple
is taken as a religious denomination, their basic tenets are not confined
to taking of oath of celibacy for certain period of pilgrimage as all pilgrims
are allowed freely in the temple and there is no such practice of not
seeing the sight of women during this period.
23. Further, mere sight of women cannot affect one’s celibacy if
one has taken oath of it, otherwise such oath has no meaning and
moreover, the devotees do not go to the Sabarimala temple for taking
the oath of celibacy but for seeking the blessings of Lord Ayyappa.
Maintaining celibacy is only a ritual for some who want to practise it and
for which even the temple administration has not given any justification.
 10 (1962) 1 SCR 383
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
632
SUPREME COURT REPORTS
[2018] 9 S.C.R.
On the contrary, according to the temple administration, since women
during menstrual period cannot trek very difficult mountainous terrain in
the dense forest and that too for several weeks, this practice of not
permitting them has started.
24. It is averred by the petitioners that though no right is absolute,
yet entry to temple may be regulated and there cannot be any absolute
prohibition or complete exclusionary rule from entry of women to a temple.
For substantiating this view, the petitioners have pressed into service the
judgment of this Court in Shirur Mutt (supra), the relevant portion of
which reads thus:
“We agree, however, with the High Court in the view taken by it
about section 21. This section empowers the Commissioner and
his subordinate officers and also persons authorised by them to
enter the premises of any religious institution or place of worship
for the purpose of exercising any power conferred, or any duty
imposed by or under the Act. It is well known that there could be
no such thing as an unregulated and unrestricted right of entry in
a public temple or other religious institution, for persons who are
not connected with the spiritual functions thereof. It is a traditional
custom universally observed not to allow access to any outsider
to the particularly sacred parts of a temple as for example, the
place where the deity is located. There are also fixed hours of
worship and rest for the idol
when no disturbance by any member
of the public is allowed. Section 21, it is to be noted, does not
confine the right of entry to the outer portion of the premises; it
does not even exclude the inner sanctuary the Holy of Holies” as
it is said, the sanctity of which is `zealously preserved. It does not
say that the entry may be made after due notice to the head of the
institution and at such hours which would not interfere with the
due observance of the rites and ceremonies in the institution. We
think that as the section stands, it interferes with the fundamental
rights of the Mathadhipati and the denomination of which he is
head guaranteed under articles 25 and 26 of the Constitution.”
25. The judgment of this Court in Sri Venkatramana Devaru v.
State of Mysore and others11 has been cited to submit that a religious
denomination cannot completely exclude or prohibit any class or section
for all times.  All that a religious denomination may do is to restrict the
 11 (1958) SCR 895 : 1958 AIR 55
A
B
C
D
E
F
G
H
633
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
entry of a particular class or section in certain rituals. The relevant portion
of Devaru (supra) reads as under:
“We have held that the right of a denomination to wholly exclude
members of the public from worshipping in the temple, though
comprised in Art. 26(b), must yield to the overriding right declared
by Art. 25(2)(b) in favour of the public to enter into a temple for
worship. But where the right claimed is not one of general and
total exclusion of the public from worship in the temple at all times
but of exclusion from certain religious services, they being limited
by the rules of the foundation to the members of the denomination,
,then the question is not whether Art. 25(2)(b) over-rides that
right so as to extinguish it, but whether it is possible-so to regulate
the rights of the persons protected by Art. 25(2)(b) as to give
effect to both the rights. If the denominational rights are such that
to give effect to them would substantially reduce the right
conferred by Art. 25(2)(b), then of course, on our conclusion that
Art. 25(2)(b) prevails as against Art. 26(b), the denominational
rights must vanish. But where that is not the position, and after
giving effect to the rights of the denomination what is left to the
public of the right of worship is something substantial and not
merely the husk of it, there is no reason why we should not so
construe Art. 25(2)(b) as to give effect to Art. 26(b) and
recognise
the rights of the denomination in respect of matters which are
strictly denominational, leaving the rights of the public in other
respects unaffected.”
     (Emphasis is ours)
26. After referring to Sections 3 and 4 of the Kerala Hindu Places
of Public Worship (Authorization of Entry) Act, 1965 and Rule 3 (b)
framed thereunder, the petitioners have submitted that the expression
‘at any such time’ occurring in Rule 3(b) does not lead to complete
exclusion/prohibition of any woman.  In other words, if at such time
during which, by any custom or usage, any woman was not allowed,
then the said custom or usage shall continue and to substantiate this
claim, the petitioners have cited the example that if during late night, by
custom or usage, women are not allowed to enter temple, the said custom
or usage shall continue, however, it does not permit complete prohibition
on entry of women. Further, the petitioners have submitted that any
other interpretation of Rule 3(b) would render the said rule open to
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
634
SUPREME COURT REPORTS
[2018] 9 S.C.R.
challenge as it would not only be violative of the Kerala Hindu Places of
Public Worship (Authorization of Entry) Rules, 1965 but also of Article
25(2)(b) of the Constitution read with Articles 14 and 15.
Submissions on behalf of Intervenor in I.A No. 10 of 2016
27. It has been submitted on behalf of the intervenor that the
exclusionary practice of preventing women between the age of 10 to 50
years based on physiological factors exclusively to be found in female
gender violates Article 14 of the Constitution of India, for such a
classification does not have a constitutional object. It is also the case of
the applicant/intervenor that even if it is said that there is classification
between men and women as separate classes,  there cannot be any
further sub-classification among women on the basis of physiological
factors such as menstruation by which women below 10 years and above
50 years are allowed.
28. It has been averred by the applicant/intervenor that as per
Article 14, any law being discriminatory in nature has to have the
existence of an intelligible differentia and the same must bear a rational
nexus with the object sought to be achieved. The object as has been
claimed is to prevent the deity from being polluted, which, in the view of
the applicant/intervenor, runs counter to the constitutional object of justice,
liberty, equality and fraternity as enshrined in the Preamble to our
Constitution. That apart, the
applicant/intervenor has submitted that though
the classification based on menstruation may be intelligible, yet the object
sought to be achieved being constitutionally invalid, the question of nexus
need not be delved into.
29. Referring to the decision of this Court in Deepak Sibal v.
Punjab University and another12, the applicant/intervenor has submitted
that the exclusionary practice per se violates the sacrosanct principle of
equality of women and equality before law and the burden of proving
that it does not so violate is on the respondent no. 2, the Devaswom
Board, which the said respondent has not been able to discharge.
30. It has also been asseverated by the applicant/intervenor that
the exclusionary practice is manifestly arbitrary in view of the judgment
of this Court in Shayara Bano v. Union of India and others13 as it is
solely based on physiological factors and, therefore, neither serves any
 12  (1989) 2 SCC 145
 13  (2017) 9 SCC 1
A
B
C
D
E
F
G
H
635
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
valid object nor satisfies the test of reasonable classification under Article
14 of the Constitution.
31. It has also been put forth by the applicant/intervenor that the
exclusionary practice per se violates Article 15(1) of the Constitution
which amounts to discrimination on the basis of sex as the physiological
feature of menstruation is exclusive to females alone. In support of the
said submission, the applicant/intervenor has placed reliance upon the
judgments of this Court in Anuj Garg and others v. Hotel Association
of India and others14 and Charu Khurana and others v. Union of
India and others15, to accentuate that gender bias in any form is opposed
to constitutional norms.
32. It is also the case of the applicant/intervenor that exclusionary
practice has the impact of casting a stigma on women of menstruating
age for it considers them polluted and thereby has a huge psychological
impact on them which resultantly leads to violation of Article 17 as the
expression ‘in any form’ in Article 17 includes untouchability based on
social factors and is wide enough to cover menstrual discrimination against
women. It has further been submitted by applicant/intervenor that Article
17 applies to both State and non-State actors and has been made operative
through a Central legislation in the form of Protection of Civil Rights
Act, 1955. The judgment of the High Court in S. Mahendran (supra), in
the view of the
applicant/intervenor, is not in consonance with the
provisions of the 1955 Act.
33. Drawing support from the decisions of this Court in National
Legal Services Authority v. Union of India and others16 and Justice
K.S. Puttaswamy and another v. Union of India and others17, the
applicant/intervenor has averred that the exclusionary practice pertaining
to women is violative of Article 21 of the Constitution as it impacts the
ovulating and menstruating women to have a normal social day to day
rendezvous with the society including their family members and, thus,
undermines their dignity by violating Article 21 of the Constitution.
34. It has also been submitted that the exclusionary practice violates
the rights of Hindu women under Article 25 of the Constitution as they
have the right to enter Hindu temples dedicated to the public. As per the
 14  (2008) 3 SCC 1
 15  (2015) 1 SCC 192
 16  (2014) 5 SCC 438
 17  (2017) 10 SCC 1
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
636
SUPREME COURT REPORTS
[2018] 9 S.C.R.
applicant/intervenor, there is a catena of judgments by this Court wherein
the rights of entry into temples of all castes have been upheld on the
premise that they are Hindus and similarly, women who assert the right
to enter the Sabarimala temple are also Hindus.
35. The applicant/intervenor has referred to Section 4 of the Kerala
Places of Public Worship (Authorization of Entry) Act, 1965 and Rule
3(b) made under the said section which disentitles certain categories of
people from entering any place of public worship and this includes women
who, by custom or usage, are not allowed to enter a place of public
worship. It has further been submitted by the applicant/intervenor that
Rule 3(b) is ultra vires the 1965 Act and is also unconstitutional for it
violates Articles 14, 15, 17, 21 and 25 of the Constitution in so far as it
prohibits women from entering a public temple. The said Rule 3(b), as
per the applicant/intervenor, is not an essential practice protected under
Article 26 of the Constitution for it is not a part of religion as the devotees
of Lord Ayyappa are just Hindus and they do not constitute a separate
religious denomination under Article 26 of the Constitution as they do
not have a common faith or a distinct name. To substantiate this view,
the applicant/intervenor has drawn the attention of this Court to the
judgment in S.P. Mittal (supra).
36. It has been submitted by the applicant/intervenor that
even if
we assume that Sabarimala is a religious denomination, the exclusion of
women is not an essential practice as it does not satisfy the test of
essential practice as has been laid down by this Court in Commissioner
of Police and others v Acharya Jagadishwarananda Avadhuta and
another18.
37. Referring to the judgment of this Court in Devaru (supra), the
applicant/intervenor has submitted that the right to manage its own affairs
conferred upon a religious denomination under Article 26(b) is subject to
be rights guaranteed to Hindu women under Article 25(2)(b). As per the
applicant/intervenor, a harmonious construction of Articles 25 and 26 of
the Constitution reveals that neither Article 26 enables the State to make
a law excluding any women from the right to worship in any public
temple nor does it protect any custom that discriminates against women
and, thus, such exclusion amounts to destruction of the rights of women
to practise religion guaranteed under Article 25.
 18 (2004) 12 SCC 770
A
B
C
D
E
F
G
H
637
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
38. The applicant/intervenor has also drawn the attention of this
Court to the Convention on Elimination of all forms of Discrimination
Against Women (CEDAW) and the fact that India is a party to this
Convention for emphasizing that it is the obligation of the State to eradicate
taboos relating to menstruation based on customs or traditions and further
the State should refrain from invoking the plea of custom or tradition to
avoid their obligation. The judgment of this Court in Vishaka  and others
v. State of Rajasthan and others19 has been cited to submit that
international conventions must be followed when there is a void in the
domestic law or when there is any inconsistency in the norms for
construing the domestic law.
Submissions on behalf of Intervenor in I.A No. 34/2017
39. The intervenor, All India Democratic Women’s Association,
has filed I.A No. 34/2017 wherein it has submitted that the meaning of
the Constitution cannot be frozen and it must continuously evolve with
the changing times. Further, the applicant submits that merely because
Article 26 does not specify that it is subject to Part III or Article 25 of
the Constitution, it cannot be said that it is insulated against Part III and
especially Articles 14, 15 19, 21 and 25 of the Constitution. To emphasize
the same, the applicant/intervenor has relied upon the observations made
in Devaru case where the Court has stated that the rule of
construction
is well settled that when there are two provisions in an enactment which
cannot be reconciled with each other, they should be so interpreted that,
if possible, effect could be given to both. The Court observed that applying
this rule of harmonious construction, if the contention of the appellants is
to be accepted, then Art. 25(2)(b) will become wholly nugatory in its
application to denominational temples, though, as stated above, the
language of that Article includes them. The Court further observed that
if the contention of the respondents is accepted, then full effect can be
given to Article 26(b) in all matters of religion, subject only to this that
as regards one aspect of them, entry into a temple for worship, the rights
declared under Article 25(2)(b) will prevail and therefore while, in the
former case, Article 25(2)(b) will be put wholly out of operation, in the
latter, effect can be given to both that provision and Article 26(b) and,
hence, it must be accordingly held that Article 26(b) must be read subject
to Article 25(2)(b).
 19  (1997) 6 SCC 241
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
638
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Submissions on behalf of Respondent No. 1
40. The State of Kerala, the first respondent herein, as indicated
earlier, had taken contrary stands at different times. An affidavit was
filed on 13.11.2007 which indicated that the Government was not in
favour of discrimination towards any woman or any section of the society.
The said stand was changed in the affidavit dated 5.2.2016 taking the
stand that the earlier affidavit was contrary to the judgment of the Kerala
High Court. On 7.11.2016 on a query being made by the Court, the
learned counsel for the State submitted that it wanted to place reliance
on the original affidavit dated 13.11.2007. It is contended by Mr. Jaideep
Gupta, learned senior counsel appearing for the State of Kerala, that the
1965 Act and the Rules framed thereunder are in consonance with Article
25(2)(b) of the Constitution.  Reference has been made to Section 3 of
the Act, for the said provision deals with places of public worship to be
open to Hindus generally or any section or class thereof.  The concept
of prohibition is not conceived of.  It is urged by Mr. Gupta that there is
no restriction in view of the legislation in the field.  In essence, the stand
of the State is that it does not conceive of any discrimination as regards
the entry of women into the temple where male devotees can enter.
Submissions on behalf of Respondent No. 2
41. The respondent no. 2 has submitted that Sabarimala is a
temple
of great antiquity dedicated to Lord Ayyappa who the petitioner avers to
be a deity depicting “a hyper masculine God born out of the union of two
male Gods Shiva and Mohini, where Mohini is Vishnu in a female form.”
42. Thereafter, the respondent no. 2 reiterated the submissions of
the respondent no. 4 pertaining to the observance of 41 days ‘Vruthum’
and the fact that the Sabarimala Temple is supposed to depict ‘Naishtika
Brahmacharya’. In addition to this, the respondent no. 2 has also referred
to a Ph.D thesis by Radhika  Sekar in the Department of Sociology and
Anthropology at Carleton University, Ottawa, Ontario in October 1987
titled “The Process of Pilgrimage : The Ayyappa Cultus and Sabarimala
Yatra” which has established the very raison d’etre for the existence
of the denominational Temple of Sabarimala based upon deep penance,
celibacy and abstinence by all visitors, male and female. The respondent
no. 2 has also drawn the attention of the Court to the fact that the
Sabarimala temple is open only during specific defined periods, that is,
on the Malayalam month viz. 17th November to 26th December, for the
A
B
C
D
E
F
G
H
639
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
first five days of each Malayalam month which starts approximately in
the middle of each English calendar month and also during the period of
Makar Sankranti, viz. approximately from January 1 to mid-January of
each year.
Submissions on behalf of Respondent No. 4
43. At the outset, the respondent no. 4 has drawn the attention of
the Court to the history of Kerala in general and Sabarimala in particular
and has highlighted the existence of stone inscriptions which state that
the priest Kantaru Prabhakaru had made an idol consecration at
Sabarimala years back and after the rampage of fire at Sabarimala, it
was Kantaru Shankaru who consecrated the existing idol in Sabarimala.
The respondent no. 4 has submitted that the Thantri is the vedic head
priest of Hindu temples in Kerala and the popularity of any temple depends
to a great extent on the Thantri and Santhikkaran (Archaka) who must
be able to induce a spiritual reverence among worshippers and explain
the significance of the Mantras they recite and poojas they perform.
44. The respondent no. 4 has averred that the custom and usage
of young women (aged between 10 to 50 years) not being allowed to
enter the Sabarimala temple has its traces in the basic tenets of the
establishment of the temple, the deification of Lord Ayyappa and His
worship. As per the respondent no. 4, Ayyappa had explained the manner
in which the Sabarimala pilgrimage was to be undertaken
emphasizing
the importance of ‘Vrutham’ which are special observances that need
to be followed in order to achieve spiritual refinement, and that as a part
of the ‘Vruthum’, the person going on pilgrimage separates himself from
all family ties for 41 days and during the said period either the woman
leaves the house or the man resides elsewhere in order to separate
himself from all family ties.  Thereafter, the respondent no. 4 has pointed
out that the problem with women is that they cannot complete the 41
days Vruthum as their periods would eventually fall within the said period
and it is a custom among all Hindus that women do not go to temples or
participate in religious activities during periods and the same is
substantiated by the statement of the basic Thantric text of temple
worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II.
45. The respondent no. 4 has emphasized that the observance of
41 days Vruthum is a condition precedent for the pilgrimage which has
been an age old custom and anyone who cannot fulfill the said Vruthum
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
640
SUPREME COURT REPORTS
[2018] 9 S.C.R.
cannot enter the temple and, hence, women who have not attained puberty
and those who are in menopause alone can undertake the pilgrimage at
Sabarimala. The respondent no. 4 has also averred that the said condition
of observance of 41days Vruthum is not applicable to women alone and
even men who cannot observe the 41 days Vruthum due to births and
deaths in the family, which results in breaking of Vruthum, are also not
allowed to take the pilgrimage that year.
46. The respondent no. 4 has also drawn the attention of the Court
to the fact that religious customs as well as the traditional science of
Ayurveda consider menstrual period as an occasion for rest for women
and a period of uncleanliness of the body and during this period, women
are affected by several discomforts and, hence, observance of intense
spiritual discipline for 41 days is not possible. The respondent no. 4 has
also contented that it is for the sake of pilgrims who practise celibacy
that young women are not allowed in the Sabarimala pilgrimage.
47. The respondent no. 4, thereafter, contends that the prohibition
is not a social discrimination but is only a part of the essential spiritual
discipline related to this particular pilgrimage and is clearly intended to
keep the mind of the pilgrims away from the distraction related to sex as
the dominant objective of the pilgrimage is the creation of circumstances
in all respects for the successful practice
of spiritual self-discipline.
48. The respondent no. 4 has also averred that for climbing the 18
holy steps, one has to carry the irumudikettu (the sacred package of
offerings) and for making the pilgrimage really meaningful, austerities
for a period of 41 days have to be observed and, hence, for a meaningful
pilgrimage, it is always prudent if women of the forbidden age group
hold themselves back.
49.  The respondent no. 4 further submits that ‘devaprasanam’ is
a ritual performed for answering questions pertaining to religious practices
when the Thantris are also unable to take decisions and that
‘devaprasanams’ conducted in the past also reveal that the deity does
not want young women to enter the precincts of the temple. As per the
respondent no. 4, the philosophy involved in evolving a particular aspect
of power in a temple is well reflected in the following mantra chanting
during the infusion of divine power:
“O the Supreme Lord! It is well known that You pervade
everything and everywhere’ yet I am invoking You in this
A
B
C
D
E
F
G
H
641
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
bimbhamvery much like a fan that gathers and activates the all-
pervading air at a particular spot. At the fire latent in wood
expresses itself through friction, O Lord be specially active in this
bimbhamas a result of sacred act.”
50. The respondent no. 4 is of the view that it is the particular
characteristic of the field of power, its maintenance and impact which
the ‘Devaprasanam’ deals with and ‘Devaprasanam’ confirms that the
practice of women of particular age group not participating in the temple
should be maintained.
51. To bolster his stand, the respondent no. 4 has also placed
reliance upon the decision of the Kerala High Court in S. Mahendran
(supra) wherein the then Thantri Shri Neelakandaru had deposed as
C.W 6 and he stated that the present idol was installed by his paternal
uncle Kantaru Shankaru and he confirmed that women of age group 10
to 50 years were not allowed to enter the temple even before 1950s.
The said witness also deposed that his paternal uncle had instructed him
and the temple officials to follow the old customs and usages.
52. The respondent no. 4 has also drawn the attention of the Court
to the opinion of this Court in Seshammal and others v. State of Tamil
Nadu20, wherein it was observed that on the consecration of the image
in the temple, the Hindu worshippers believe that the divine spirit has
descended into the image and from then on, the image of the deity is fit
to be
worshipped and the rules with regard to daily and periodical worship
have been laid down for securing the continuance of the divine spirit and
as per the Agamas, an image becomes defiled if there is any departure
or violation of any of the rules relating to worship.
53. The respondent no. 4 has also submitted that the deity at
Sabarimala in the form of ‘Naishtik Brahmachari’ and that is also a
reason why young women are not allowed inside the temple so as to
prevent even the slightest deviation from celibacy and austerity observed
by the deity.
Submissions on behalf of Intervenor in I.A Nos. 12 and 13
54. Another applicant/intervenor has filed I.A Nos. 12 and 13 and
his main submission is that this Court may remove the restriction which
bars women between the age group of 10 to 50 years from entering the
 20 (1972) 2 SCC 11
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
642
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Sabarimala temple for all days barring the period between 16th November
to 14th January (60 days) as during the said period, Lord Ayyappa sits in
the Sabarimala temple and Lord Ayyappa visits other temples all across
the country during the remaining days. The applicant/intervenor further
highlights that during the said period, the pilgrims coming to the temple
must strictly follow the rituals which includes taking a 41 days Vruthum
and one of the rituals pertains to not touching the ladies including daughters
and wives as well. The applicant/intervenor has further submitted that if
the restriction under Section 3(b) of the Kerala Hindu Places of Worship
(Authorization of Entry) Rules, 1965 is allowed to operate only for the
said period of 60 days, it would not amount to any violation of Articles
14, 15 and 17 of the Constitution and it would also be well within the
ambit of Articles 25 and 26 of the Constitution.
Rejoinder Submissions on behalf of the Petitioners
55. In reply to the contention of the respondent no. 2-Devaswom
Board that the writ jurisdiction does not lie in the present matter, the
petitioners submit that the validity of Section 3(b) could not have been
challenged in suit proceedings as the present writ petition has been filed
against the State authorities and the Chief Thantri who has been
impleaded as the respondent no. 4 is appointed by a Statutory Board;
and since now ‘custom and usage’ fall under
the ambit of Article 13,
they have become subject to the constitutional provisions contained in
Part III whose violation can only be challenged in writ jurisdiction.
56. Thereafter, the petitioners have submitted that the respondent
no. 2 has merely pressed the theory of intelligible differentia to justify
encircling of women of prohibited age without elaborating the object
sought to be achieved and whether the differentia even has any nexus
with the object and the object of preventing deflecting of the idol from
the stage of celibacy cannot be achieved from the present classification.
57. Further, the petitioners have submitted that the respondent no.
2 has wrongly stated that the Sabarimala temple is a religious
denomination, for any temple under a statutory board like a Devaswom
Board and financed out of the Consolidated Fund of Kerala and whose
employees are employed by the Kerala Service Commission cannot claim
to be an independent ‘religious denomination’.
58. Besides, the petitioners have contended that several ill-practices
in existence and falling within the ambit of religion as cited by the
A
B
C
D
E
F
G
H
643
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
respondent no. 2 may not be acceptable today and the said practices
have not come up before this Court and should not be taken cognizance
of. Further, it is the view of the petitioners that the said practices cannot
be held to be the essence of religion as they had evolved out of
convenience and, in due course of time, have become crude accretions.
To prove its point, the petitioners have cited the examples of the practices
of dowry and restriction of women from entering mosques which,
although had come into existence due to certain factors existing at the
relevant time, no longer apply.
59. Thereafter, the petitioners have contended that if  Sabarimala
does not come in the category of religious denomination, then it cannot
claim the right under Article 26 and it would come within the purview of
Article 12 making it subject to Articles 14 and 15 and, hence, the State
would be restrained from denying equal protection of law and cannot
discriminate on the basis of sex. Even if it is concluded that Sabarimala
is a religious denomination, then as per the Devaru case, there has to be
a harmonious construction between Articles 25 and 26 of the Constitution
and, thus, to completely deny women of the age group of 10 to 50 years
from entering the temple would be impermissible as per the Devaru
case. Finally, the petitioners have submitted that in legal and constitutional
parlance, after coming into effect of the
Constitution of India, ‘dignity of
women’ under Article 51A(e) is an essential ingredient of constitutional
morality.
Rejoinder Submissions on behalf of Intervenor in I.A No.
10 of 2016
60. The applicant/intervenor has submitted that the law relating to
entry into temple for darshan is separate and distinct from the law relating
to management of religious affairs. The former is governed by Article
25 and the latter is governed by Article 26. Further, the applicant/
intervenor has pointed out that even those institutions which are held to
be denominations and claim protection under Article 26 cannot deny
entry to any person for the purpose of darshan and the ex facie denial
of women between the age group of  10 to 50 years violates Articles 14,
15, 21 and 25 of the Constitution.
61. Thereafter, the applicant/intervenor has averred that the
question whether Sabarimala is a denomination or not is irrelevant for
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
644
SUPREME COURT REPORTS
[2018] 9 S.C.R.
the reason that even if it is concluded that Sabarimala is a denomination,
it can claim protection of only essential practices under Article 26(b)
and denial of entry to women between the age of 10 to 50 years cannot
be said to be an essential aspect of the Hindu religion. Further, the
applicant/intervenor has also averred that Sabarimala does not satisfy
the test of religious denomination as laid down in S.P. Mittal (supra).
62. The applicant/intervenor has also submitted that the
respondents, by referring to the practice as a custom with aberrations,
have themselves suggested that there has been no continuity in the
applicability of the said custom and that it has also been established in
the evidence before the High Court that women irrespective of their age
were permitted to enter the Sabarimala for the first rice feeding ceremony
of their children and it is only since the last 60 years after the passing of
the Notification in 1955 that women between the age of 10 to 50 years
were prohibited from entering the temple. The applicant/intervenor has
also pointed out that even if the said practice is considered to be a custom,
it has to still pass the test of constitutional morality and constitutional
legitimacy and the applicant/intervenor has relied upon the decision of
this Court in Adi Saiva Sivachariyargal Nala Sangam and others v.
Government of Tamil Nadu and others 21 wherein it was observed:
“48. Seshammal vs
State of T.N., (1972) 2 SCC 11] is not an
authority for any proposition as to what an Agama or a set of
Agamas governing a particular or group of temples lay down with
regard to the question that confronts the court, namely, whether
any particular denomination of worshippers or believers have an
exclusive right to be appointed as Archakas to perform the poojas.
Much less, has the judgment taken note of the particular class or
caste to which the Archakas of a temple must belong asprescribed
by the Agamas. All that it does and says is that some of the Agamas
do incorporate a fundamental religious belief of the necessity of
performance of the poojas by Archakas belonging to a particular
and distinct sect/group/denomination, failing which, there will be
defilement of deity requiring purification ceremonies. Surely, if
the Agamas in question do not proscribe any group of citizens
from being appointed as Archakas on the basis of caste or class
the sanctity of Article 17 or any other provision of Part III of the
Constitution or even theProtection of Civil Rights Act, 1955 will
 21 (2016) 2 SCC 725
A
B
C
D
E
F
G
H
645
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
not be violated. What has been said in Seshammal [Seshammal v.
State of T.N., (1972) 2 SCC 11] (supra) is that if any prescription
with regard to appointment of Archakas is made by the Agamas,
Section 28 of the Tamil Nadu Act mandates the trustee to conduct
the temple affairs in accordance with such custom or usage. The
requirement of constitutional conformity is inbuilt and if a custom
or usage is outside the protective umbrella afforded and envisaged
by Articles 25 and 26, the law would certainly take its own course.
The constitutional legitimacy, naturally, must supersede all religious
beliefs or practices.”
63. In reply to the contention of the respondents that the basis for
exclusion of women is that women cannot observe the 41 days Vruthum
and also on the ground that Ayyappa is a celibate God, the applicant/
intervenor has submitted that the meaning of celibacy is the abstinence
from sex and the respondents by suggesting that women cannot practice
Vruthum which requires abstinence from sex are stigmatizing women
and stereotyping them as being weak and lesser human beings than
men. Hence, the classification, in view of the applicant/intervenor, is not
based on intelligible differentia.
64. The applicant/intervenor has also submitted that menstruating
women and untouchables are being treated as similar in terms of entry
to temple and, hence, the custom in dispute amounts to ‘untouchability’.
65. The
applicant/intervenor has, thereafter, drawn the attention
of the Court to the fact that although the respondents aver that they do
not intend to discriminate on the basis of gender, yet the Court has to test
the violation of the fundamental rights not on the basis of intention but
the impact of the impugned action. The applicant/intervenor has stated
that the respondents have wrongly placed reliance upon the decision in
T.M.A. Pai Foundation and others v. State of Karnataka and others22
as in the present case, the issue is not one pertaining to the rights of
minorities but concerning the unconstitutional acts of the majority.
66. The applicant/intervenor has also submitted that the age-old
practice of considering women as impure while they are menstruating
amounts to untouchability and stigmatizes them as lesser human beings
and is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution.
 22 (1995) 5 SCC 220
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Submissions of learned Amicus Curiae, Sr. Advocate Mr.
Raju Ramchandran, assisted by Mr. K. Parameshwar
67. It is submitted on the behalf of learned Senior Advocate Mr.
Raju Ramchandran, that the Sabarimala Sree Dharma Sastha Temple,
Kerala is a public temple being used as a place of worship where members
of the public are admitted as a matter of right and entry thereto is not
restricted to any particular denomination or part thereof. As per the
learned Amicus, the public character of the temple gives birth to the
right of the devotees to enter it for the purpose of darshan or worship
and this universal right to entry is not a permissive right dependent upon
the temple authorities but a legal right in the true sense of the expression.
To advance this view, the learned Amicus has relied upon the decisions
of this Court in Deoki Nandan v. Murlidhar and others23 and Sri
Radhakanta Deb and another v. Commissioner of Hindu Religious
Endowments, Orissa24.
68. As regards the nature of the right claimed by the petitioners
herein, learned Senior Advocate, Mr. Raju Ramchandran, the learned
Amicus, has submitted that it is the freedom of conscience and the right
to practise and profess their religion which is recognized under Article
25 of the Constitution of India. This right, as per the learned Amicus,
encompasses the liberty of belief, faith and worship, pithily declared as a
constitutional vision in the Preamble to the
Constitution of India.
69. Learned Senior Advocate Mr. Raju Ramchandran, the learned
Amicus, submits that the right of a woman to visit and enter a temple as
a devotee of the deity and as a believer in Hindu faith is an essential
aspect of her right to worship without which her right to worship is
significantly denuded. Article 25 pertinently declares that all persons are
‘equally’ entitled to freely practise religion. This, in view of the learned
Amicus, implies not just inter-faith but intra-faith parity. Therefore, the
primary right under Article 25(1) is a non-discriminatory right and is,
thus, available to men and women professing the same faith.
70. Further, it has been put forth that the constitutional intent in
keeping the understanding of untouchability in Article 17 open-textured
was to abolish all practices based on the notion of purity and pollution.
This Article proscribes untouchability ‘in any form’ as prohibited and the
 23  AIR 1957 SC 133
 24  (1981) 2 SCC 226
A
B
C
D
E
F
G
H
647
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
exclusion of menstruating women from religious spaces and practices is
no less a form of discrimination than the exclusion of oppressed castes.
After referring to Section 7(c) of the Civil Rights Act, 1955, which
criminalizes the encouragement and incitement to practise untouchability
in ‘any form whatsoever’ and the Explanation II appended to the said
Section, the learned Amicus has submitted that untouchability cannot be
understood in a pedantic sense but must be understood in the context of
the Civil Rights Act to include any exclusion based on the notions of
purity and pollution.
71. It is also the view of the learned Amicus that the phrase ‘equally
entitled to’ in Article 25(1) finds resonance in Section 3(a) of the Civil
Rights Act, 1955 which criminalizes exclusion of people to those places
which are “open to other persons professing the same religion or any
section thereof, as such person” and prevention of worship “in the same
manner and to the same extent as is permissible to other persons
professing the same religion or any section thereof, as such persons”.
That apart, the learned Amicus has drawn our attention to Section 2(d)
of the 1955 Act which defines ‘place of public worship’ to mean, inter
alia, ‘by whatever name belonging to any religious denomination or any
section thereof, for the performance of any religious service’ and,
therefore, the Amicus submits that a temple is a public temple and