INDIAN YOUNG LAWYERS ASSN. versus STATE OF KERALA 561 INDIAN YOUNG LAWYERS ASSOCIATION & ORS.V. THE STATE OF KERALA & ORS.
[2018] 9 S.C.R. 561, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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activity” which follows upon the expression “economic, financial, political”
indicates that matters of a secular nature may be regulated or restricted
by law.  The fact that these secular activities are associated with or, in
other words, carried out in conjunction with religious practice, would not
put them beyond the pale of legislative regulation.  The second category
consists of laws providing for (i) social welfare and reform; or (ii) throwing
open of Hindu religious institutions of a public character to all classes
and sections of Hindus.  The expression “social welfare and reform” is
not confined to matters only of the Hindu religion. However, in matters
of temple entry, the Constitution recognised the disabilities which Hindu
religion had imposed over the centuries which restricted the rights of
access to dalits and to various groups within Hindu society.  The effect
of clause (2) of Article 25 is to protect the ability of the state to enact
laws, and to save existing laws on matters governed by sub-clauses (a)
and (b).  Clause (2) of Article 25 is clarificatory of the regulatory power
of the state over matters of public order, morality and health which already
stand recognised in clause (1). Clause 1 makes the right conferred subject
to public order, morality and health. Clause 2 does not circumscribe the
ambit of the ‘subject to public order, morality or health’ stipulation in
clause 1.  What clause
2 indicates is that the authority of the state to
enact laws on the categories is not trammelled by Article 25.
9. Article 26, as its marginal note indicates, deals with the “freedom
to manage religious affairs”:
“26. Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
Article 26 confers rights on religious denominations and their
sections. The Article covers four distinct facets: (i) establishment and
maintenance of institutions for purposes of a religious and charitable
nature; (ii) managing the affairs of the denomination in matters of religion;
(iii) ownership and acquisition of immovable property; and (iv)
administration of the property in accordance with law.  Article 26, as in
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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the case of Article 25(1), is prefaced by a “subject to public order, morality
and health” stipulation. Article 26(1) does not embody the additional
stipulation found in Article 25(1) viz; “and to the other provisions of this
Part.” The significance of this will be explored shortly.
10. Public order, morality and health are grounds which the
Constitution contemplates as the basis of restricting both the individual
right to freedom of religion in Article 25(1) and the right of religious
denominations under Article 26.  The vexed issue is about the content of
morality in Articles 25 and 26. What meaning should be ascribed to the
content of the expression ‘morality’ is a matter of constitutional moment.
In the case of the individual right as well as the right of religious
denominations, morality has an overarching position similar to public order
and health because the rights recognised by both the Articles are subject
to those stipulations. Article 25(2) contemplates that the Article will neither
affect the operation of existing law or prevent the state from enacting a
law for the purposes stipulated in sub-clauses (a) and (b).
11. In defining the content of morality, did the draftspersons engage
with prevailing morality in society? Or does the reference to morality
refer to something more fundamental? Morality for the purposes of
Articles 25 and 26 cannot have an ephemeral existence. Popular notions
about what is moral
and what is not are transient and fleeting. Popular
notions about what is or is not moral may in fact be deeply offensive to
individual dignity and human rights. Individual dignity cannot be allowed
to be subordinate to the morality of the mob. Nor can the intolerance of
society operate as a marauding morality to control individual self-
expression in its manifest form.  The Constitution would not render the
existence of rights so precarious by subjecting them to passing fancies
or to the aberrations of a morality of popular opinion. The draftspersons
of the Constitution would not have meant that the content of morality
should vary in accordance with the popular fashions of the day.  The
expression has been adopted in a constitutional text and it would be
inappropriate to give it a content which is momentary or impermanent.
Then again, the expression ‘morality’ cannot be equated with prevailing
social conceptions or those which may be subsumed within mainstream
thinking in society at a given time.  The Constitution has been adopted
for a society of plural cultures and if its provisions are any indication, it is
evident that the text does not pursue either a religious theocracy or a
dominant ideology. In adopting a democratic Constitution, the framers
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would have been conscious of the fact that governance by a majority is
all about the accumulation of political power. Constitutional democracies
do not necessarily result in constitutional liberalism. While our Constitution
has adopted a democratic form of governance it has at the same time
adopted values based on constitutional liberalism. Central to those values
is the position of the individual.  The fundamental freedoms which Part
III confers are central to the constitutional purpose of overseeing a
transformation of a society based on dignity, liberty and equality.  Hence,
morality for the purposes of Articles 25 and 26 must mean that which is
governed by fundamental constitutional principles.
12. The content of morality is founded on the four precepts which
emerge from the Preamble.  The first among them is the need to ensure
justice in its social, economic and political dimensions.  The second is
the postulate of individual liberty in matters of thought, expression, belief,
faith and worship.  The third is equality of status and opportunity amongst
all citizens.  The fourth is the sense of fraternity amongst all citizens
which assures the dignity of human life.  Added to these four precepts is
the fundamental postulate of secularism which treats all religions on an
even platform and allows to each individual the fullest liberty to believe
or not to believe.  Conscience, it must be remembered, is
emphasised by
the same provision. The Constitution is meant as much for the agnostic
as it is for the worshipper. It values and protects the conscience of the
atheist.  The founding faith upon which the Constitution is based is the
belief that it is in the dignity of each individual that the pursuit of happiness
is founded.  Individual dignity can be achieved only in a regime which
recognises liberty as inhering in each individual as a natural right. Human
dignity postulates an equality between persons. Equality necessarily is
an equality between sexes and genders.  Equality postulates a right to be
free from discrimination and to have the protection of the law in the
same manner as is available to every citizen. Equality above all is a
protective shield against the arbitrariness of any form of authority. These
founding principles must govern our constitutional notions of morality.
Constitutional morality must have a value of permanence which is not
subject to the fleeting fancies of every time and age.  If the vision which
the founders of the Constitution adopted has to survive, constitutional
morality must have a content which is firmly rooted in the fundamental
postulates of human liberty, equality, fraternity and dignity.  These are
the means to secure justice in all its dimensions to the individual citizen.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Once these postulates are accepted, the necessary consequence is that
the freedom of religion and, likewise, the freedom to manage the affairs
of a religious denomination is subject to and must yield to these
fundamental notions of constitutional morality.  In the public law
conversations between religion and morality, it is the overarching sense
of constitutional morality which has to prevail. While the Constitution
recognises religious beliefs and faiths, its purpose is to ensure a wider
acceptance of human dignity and liberty as the ultimate founding faith of
the fundamental text of our governance.  Where a conflict arises, the
quest for human dignity, liberty and equality must prevail.  These, above
everything else, are matters on which the Constitution has willed that its
values must reign supreme.
13. The expression “subject to” is in the nature of a condition or
proviso.  Making a provision subject to another may indicate that the
former is controlled by or is subordinate to the other.  In making clause
1 of Article 25 subject to the other provisions of Part III without
introducing a similar limitation in Article 26, the Constitution should not
readily be assumed to have intended the same result. Evidently the
individual right under Article 25(1) is not only subject to public order,
morality and health, but it is also subordinate to the other freedoms that
are guaranteed by Part III.  In omitting the additional
stipulation in Article
26, the Constitution has consciously not used words that would indicate
an intent specifically to make Article 26 subordinate to the other freedoms.
This textual interpretation of Article 26, in juxtaposition with Article 25 is
good as far as it goes.  But does that by itself lend credence to the
theory that the right of a religious denomination to manage its affairs is a
standalone right uncontrolled or unaffected by the other fundamental
freedoms? The answer to this must lie in the negative. It is one thing to
say that Article 26 is not subordinate to (not ‘subject to’) other freedoms
in Part III. But it is quite another thing to assume that Article 26 has no
connect with other freedoms or that the right of religious denominations
is unconcerned with them. To say as a matter of interpretation that a
provision in law is not subordinate to another is one thing. But the absence
of words of subjection does not necessarily attribute to the provision a
status independent of a cluster of other entitlements, particularly those
based on individual freedoms. Even where one provision is not subject
to another there would still be a ground to read both together so that they
exist in harmony.  Constitutional interpretation is all about bringing a
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sense of equilibrium, a balance, so that read individually and together the
provisions of the Constitution exist in contemporaneous accord. Unless
such an effort were to be made, the synchrony between different parts
of the Constitution would not be preserved.  In interpreting a segment of
the Constitution devoted exclusively to fundamental rights one must
eschew an approach which would result in asynchrony.  Co-existence
of freedoms is crucial, in the ultimate analysis, to a constitutional order
which guarantees them and seeks to elevate them to a platform on which
every individual without distinction can reap their fruit without a bar to
access. Thus, the absence of words in Article 26 which would make its
provisions subordinate to the other fundamental freedoms neither gives
the right conferred upon religious denominations a priority which overrides
other freedoms nor does it allow the freedom of a religious denomination
to exist in an isolated silo.  In real life it is difficult to replicate the conditions
of a controlled experiment in a laboratory.  Real life is all about
complexities and uncertainties arising out of the assertions of entitlements
and conflicts of interests among groups of different hues in society. The
freedoms which find an elaboration in Part III are exercised within a
society which is networked. The freedoms themselves have linkages
which cannot be ignored. There is, therefore, a
convincing reason not to
allow the provisions of Article 26 to tread in isolation.  Article 26 is one
among a large cluster of freedoms which the Constitution has envisaged
as intrinsic to human liberty and dignity.  In locating the freedom under
Article 26 within a group – the religious denomination – the text in fact
allows us to regard the fundamental right recognised in it as one facet of
the overall components of liberty in a free society.
14. This approach to constitutional interpretation which I propose
and follow is acceptable for another reason, as a matter of constitutional
doctrine. Since the decision of eleven judges in Rustom Cavasjee
Cooper v Union of India2, it is now settled doctrine that the fundamental
rights contained in Part III are not, as it has been said, water-tight
compartments. Evolving away from the earlier jurisprudence in A K
Gopalan v State of Madras3 our interpretation of the freedoms is now
governed by a sense of realism which notices their open-textured content
and indeed, their fluid nature.  One freedom shades into and merges
with another. Fairness as a guarantee against arbitrary state action
influences the content of the procedure for the deprivation of life under
 2 (1970) 1 SCC 248
 3 1950 SCR 88
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Article 21. Though Article 21 speaks only of the deprivation of life or
personal liberty by a procedure established by law, decisions from
Maneka Gandhi v Union of India4, (“Maneka”) have expounded
that the law must have a content which is reasonable. The procedure
for deprivation must be free of the taint of that which is arbitrary. This
reading of the fundamental rights as constellations emanating from a
cosmos of freedom and as having paths which intersect and merge
enhances the value of freedom itself. Though the principal provision
relating to equality before the law is embodied in Article 14, the four
articles which follow it are a manifestation of its basic doctrines. Article
15 in outlawing discrimination on grounds of religion, race, caste, sex
and place of birth is but a manifestation of equality. Equality in matters
of public employment under Article 16 is a facet of the basic postulate of
equality. Article 17 gives expression to equality in abolishing
untouchability: a practice fundamentally at odds to the notion of an equal
society. Titles which place some citizens above others are abolished by
Article 18 in manifesting yet another aspect of equality. As we have
seen, a fundamental notion of equality is embodied in Article 25(1) itself
when it speaks of an equal entitlement to freely practice, profess and
propagate religion. This sense of equality permeates the other guarantees
of fundamental freedoms as
well. Article 19 recognises six freedoms as
an entitlement “of all citizens”. Recognizing that a right inheres in all
citizens is a constitutional affirmation that every citizen, without exception
or discrimination of any kind is entitled to those freedoms. Then again,
the restrictions on the freedoms contemplated by Articles 19(2) to (6)
have to be reasonable. Reasonableness is a facet of equality. The equal
application of law to persons similarly circumstanced is a fundamental
postulate of the protections which are conferred by Articles 20, 21 and
22. Thus the principle which has become an entrenched part of our
constitutional doctrine after the decision in Bank Nationalization is
based on a sure foundation. The freedoms which we possess and those
which we exercise are not disjunctive parts, separate from each other.
Individuals in society exercise not one but many of the freedoms. An
individual exercises a multitude of freedoms as a composite part of the
human personality. A single act embodies within it the exercise of many
choices reflecting the assertion of manifold freedoms. From this
perspective, it is but a short step to hold that all freedoms exist in harmony.
Our freedoms are enveloped in the womb created by the Constitution
 4 (1978) 1 SCC 248
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for the survival of liberty. Hence, the absence of a clause of subjection
in Article 26 does not lead to the conclusion that the freedom of a religious
denomination exists as a discrete element, divorced from the others.
This approach is quite independent of the consideration that even Article
26 like Article 25(1) is subject to public order, morality and health. Once
we hold, following the line which is now part of conventional doctrine,
that all freedoms have linkages and exist in a state of mutual co-existence,
the freedom of religious denominations under Article 26 must be read in
a manner which preserves equally, other individual freedoms which may
be impacted by an unrestrained exercise. Hence, the dignity of women
which is an emanation of Article 15 and a reflection of Article 21 cannot
be disassociated from the exercise of religious freedom under Article 26.
15. Once Articles 25 and 26 are read in the manner in which they
have been interpreted, the distinction between the articles in terms of
the presence or absence of a clause of subjection should make little
practical significance to the relationship between the freedom of religion
with the other freedoms recognized in the fundamental rights. If the
Constitution has to have a meaning, is it permissible for religion – either
as a matter of individual belief or as an organized structure of religious
precepts – to assert an entitlement to do what is
derogatory to women?
Dignity of the individual is the unwavering premise of the fundamental
rights. Autonomy nourishes dignity by allowing each individual to make
critical choices for the exercise of liberty. A liberal Constitution such as
ours recognizes a wide range of rights to inhere in each individual. Without
freedom, the individual would be bereft of her individuality. Anything
that is destructive of individual dignity is anachronistic to our constitutional
ethos. The equality between sexes and equal protection of gender is an
emanation of Article 15. Whether or not Article 15 is attracted to a
particular source of the invasion of rights is not of overarching importance
for the simple reason that the fundamental principles which emerge from
the Preamble, as we have noticed earlier, infuse constitutional morality
into its content. In our public discourse of individual rights, neither religious
freedom nor organized religion can be heard to assert an immunity to
adhere to fundamental constitutional precepts grounded in dignity and
human liberty. The postulate of equality is that human beings are created
equal. The postulate is not that all men are created equal but that all
individuals are created equal. To exclude women from worship by allowing
the right to worship to men is to place women in a position of subordination.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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The Constitution, should not become an instrument for the perpetuation
of patriarchy. The freedom to believe, the freedom to be a person of
faith and the freedom of worship, are attributes of human liberty. Facets
of that liberty find protection in Article 25. Religion then cannot become
a cover to exclude and to deny the basic right to find fulfilment in worship
to women. Nor can a physiological feature associated with a woman
provide a constitutional rationale to deny to her the right to worship which
is available to others. Birth marks and physiology are irrelevant to
constitutional entitlements which are provided to every individual. To
exclude from worship, is to deny one of the most basic postulates of
human dignity to women. Neither can the Constitution countenance such
an exclusion nor can a free society accept it under the veneer of religious
beliefs.
16. Much of our jurisprudence on religion has evolved, as we
shall see, around what constitutes an essential religious practice.  At a
certain level an adjudication of what is a religious practice seems to
have emerged from the distinction made in clause 2(a) of Article 25
between a religious practice and economic, financial, political or other
secular activities which are associated with religious practices. Where
the state has enacted a law by which it claims to have regulated a secular
activity associated with a religious practice, but not the religious
practice,
it becomes necessary to decide the issue, where the validity of the law is
challenged. Similarly, Article 26(b) speaks of “matters of religion” when
it recognises the right of a religious denomination to manage them.  In
the context of Article 26(b), this Court has embarked upon a course to
decide in individual cases whether, what was said to be regulated by the
state was a matter of religion which falls within the freedom guaranteed
to the denomination.  These compulsions nonetheless have led the court
to don a theological mantle. The enquiry has moved from deciding what
is essentially religious to what is an essential religious practice. Donning
such a role is not an easy task when the Court is called upon to decide
whether a practice does nor does not form an essential part of a religious
belief.  Scriptures and customs merge with bewildering complexity into
superstition and dogma.  Separating the grain from the chaff involves a
complex adjudicatory function. Decisions of the Court have attempted
to bring in a measure of objectivity by holding that the Court has been
called upon to decide on the basis of the tenets of the religion itself. But
even that is not a consistent norm.
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17. Our conversations with the Constitution must be restructured
to evolve both with the broadening of the content of liberty and dignity
and the role of the Court as an enforcer of constitutional doctrine.  The
basic principle which must guide any analysis in this area is the dominance
of the values of liberty, equality and fraternity as instruments in achieving
individual dignity.  Once individual dignity assumes the character of a
shining star in the constellation of fundamental rights, the place of religion
in public places must be conditioned by India’s unwavering commitment
to a constitutional order based on human dignity.  Practices which are
destructive of liberty and those which make some citizens less equal
than others can simply not be countenanced.  To treat women as children
of a lesser god is to blink at the Constitution itself. Among the fundamental
duties of every citizen recognized by the Constitution is “to renounce
practices derogatory to the dignity of women”.5 In speaking to the equality
between individuals in matters of livelihood, health and remuneration for
work, the Directive Principles speak to the conscience of the Constitution.
To allow practices derogatory to the dignity of a woman in matters of
faith and worship would permit a conscious breach of the fundamental
duties of every citizen. We cannot adopt an interpretation of the
Constitution which has such an effect. Our inability
to state this as a
matter of constitutional doctrine is liable to lead us to positions of pretence
or, worse still, hypocrisy. Both are willing allies to push critical issues
under the carpet.  If we are truly to emerge out of the grim shadows of
a society which has subjugated groups of our citizens under the weight
of discrimination for centuries, it is time that the Constitution is allowed
to speak as it can only do: in a forthright manner as a compact of
governance, for today and the future.
18. Now it is in this background that it would be necessary to
explore the principles which emerge from the precedents of this Court
which explain the content of Article 25(1) and Article 26.
B History: Lord Ayyappa and the Sabarimala Temple
Origins
19. The Sabarimala Temple, devoted to Lord Ayyappa is a temple
of great antiquity. The temple is situated over one of the eighteen
mountains spread over the Western Ghats known as Sannidhanam.
Situated in the district of Pathananthitta in Kerala, the temple nestles at
a height of 1260 metres (4135 feet) above sea level. The faithful believe
 5 Article 51A(e), The Constitution of India
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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that Lord Ayyappa’s powers derive from his ascetism, in particular from
his being celibate. Celibacy is a practice adopted by pilgrims before and
during the pilgrimage. Those who believe in Lord Ayyappa and offer
prayer are expected to follow a strict ‘Vratham’ or vow over a period of
forty one days which lays down a set of practices.
20. The legend of Lord Ayyappa and the birth of the Sabarimala
temple have been explained6 in the erudite submissions in this case.
Although there are numerous Ayyappa Temples in India, the Sabarimala
Temple depicts Lord Ayyappa as a “Naishtika Brahmacharya”: his
powers derive specifically from abstention from sexual activities.
The birth of Lord Ayyappa is described as arising from the union
of Lord Shiva and Lord Vishnu (the form of Mohini). The divine beings
left the boy in a forest near River Pampa.  The Pandalam King,
Rajasekara, while on a hunting trip in the forest along the banks of the
River Pampa, heard the cries of a child. The King reached the banks of
the river and found the child Ayyappa. The King took the child in and
took him to the Palace, where the King briefed the Queen about the
incident. The couple as well as the people of the Kingdom were happy
by the arrival of the new child. Ayyappa, also called ‘Manikanta’ grew
up in the palace and was trained in the martial arts and Vedas. The Guru
responsible for Manikanta’s education concluded that the this was not
an ordinary
child, but a divine power.
Meanwhile, the Queen gave birth to a male child named Raja
Rajan. Impressed with the talents of Manikanta, King Rajasekara decided
to crown him, treating him as the elder child. He ordered the Minister to
make arrangements for the coronation. However, the Minister, desiring
the throne for himself, attempted to execute plans to prevent the
coronation, all of which failed. Having failed, the Minister approached
the Queen to persuade her to ensure that her own biological child was
crowned King. The Minister suggested that the Queen pretend that she
was suffering from a severe headache, whereupon he would make the
physician prescribe that the milk of a tigress be brought to cure her.  To
achieve this, he suggested that Manikanta should be sent to the forest.
21. Manikanta soon left for the forest after promising the King
that he would return with the milk of a tigress. Manikanta set out on his
 6 Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned Senior
Counsel Dr. Abhishek Manu Singhvi for the Respondents; Non-Case Law Convenience
Compilation filed by Advocate for Respondent No. 2; Learned Senior Counsel Indira
Jaisingh and Learned Counsel R.P. Gupta for the Petitioners
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journey after having refused an escort of men that the King had desired
to accompanying him. The King had sent with Manikanta food and
coconuts with three eyes, in the remembrance of Lord Shiva. In the
forest, Lord Shiva appeared before Manikanta and told him that though
he had done his duty towards the devas, he was left with the task to
ensure the King’s comfort. Lord Shiva told Manikanta that he could go
back to the Palace with Lord Indra in the form of a tiger.
When Manikanta was seated on the tiger, and all the female devatas
in the disguise of tigresses started their journey to the palace, the schemers
were frightened into confessing their plot. They were convinced of his
divine origins and prayed for their own salvation and for the safety of
the Kingdom. Manikanta disappeared. The King refused to eat anything
till his return. Manikanta  appeared in the form of a vision before the
King. Filled with emotions of happiness, grief, fear, wonder and ‘Bhakti,
the King stood praying for mercy and the blessings of Manikanta. He
repented in front of Manikanta for not having realized his divine power
and for treating him merely as his child. The Lord lovingly embraced the
King who prayed to bless him by freeing him from ego and the worldy
cycle of rebirth. Manikanta granted him Moksha (salvation). He told the
King that he was destined to return. The King implored Manikanta to
allow him to build a temple and
dedicate it to him. The Lord assented.
Manikanta then enlightened the King on the path of Moksha.
22. The Lord shot an arrow that fell at the pinnacle of Sabarimala
and told the King that he could construct a temple at Sabarimala, north
of the Holy river Pampa and install his deity there. Lord Ayyappa also
explained how the Sabarimala pilgrimage shall be undertaken, emphasizing
the importance of the penance or ‘Vratham’ and what the devotees can
attain by his ‘darshan’. But before the departure of the Lord, the King
secured a promise from the Lord that on thai pongal on January 14,
every year, his personal jewelry will be adorned on his deity at Sabarimala.
The Pilgrimage
23. Sabarimala follows the system of being open for:
1. The month of Mandalam viz. 17 November to 26 December of
the normal calendar years of each year;
2. For the first five days of each Malayalam month which
communes approximately in the middle of each calendar month;
and
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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3. For the period of Makar Sankranti, viz. approximately from
January to mid January each year.
The followers of Lord Ayyappa undertake a holy Pilgrimage which
culminates in a prayer at the holy shrine. The pilgrimage takes place in
four stages. First, there is a formal initiation ceremony that begins a
forty-one day Vratham. This is followed by another formal ceremony at
the end of the Vratham period, called the Irumuti Kattal (tying of bundle),
after which the pilgrims set off for their yatra to the Ayyappa Temple at
Sabarimala. This stage includes the physical travel to the pilgrimage site,
bathing in the holy river Pampa at the foot of Mount Sabari and the
climb up Mount Sabari. This involves a trek from the Pampa river, climbing
3000 feet to the Sannidhanam, which is a trek of around 13 Kms, or
through forests which is a trek of 41 Kms. It ends with the pilgrim’s
ascending the sacred” eighteen steps to the shrine for the first darshan
or glimpse of the deity. The fourth stage is the return journey and the
final incorporation back into life.
Modern communications have made the task less arduous.  In
1960, an access road was constructed for vehicles, so that a pilgrim can
drive right up to the foot of Sabarimala. From here, the holy summit is
just 8 kms away. The Kerala State Transport Corporation runs special
buses during the season of pilgrimage. The buses connect Pampa directly
with almost all the main cities in
Kerala, Tamil Nadu and Karnataka.
24. The pilgrimage has three distinctive features: (i) It is almost
exclusively a male-centric pilgrimage that bars women between the ages
of ten and fifty from participating in the rituals; (ii) Though the worshippers
of Lord Ayyappa fall broadly within the Hindu tradition, yet males of all
ages may participate on an equal footing, regardless of caste, creed or
religion. Muslims and Christians are also known to undertake this
pilgrimage, enjoying the same equality; and (iii) The actual journey to the
pilgrimage site is preceded by a preparatory period of forty-one days.
During this period, pilgrims are obliged to wear black clothes and the
‘mala’ with which they are initiated, and they must observe celibacy,
abstinence from meat and intoxicants.
25. Traditionally though the Vratham period extended over forty-
one days, nowadays shorter periods are permitted. While it is expected
that for first time initiaties observe the forty-one day Vratham, others
shorten the term to two weeks or even six days. A key essential of the
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Vratham is a sathvic lifestyle and brahmacharya. This is believed to
be a step towards a pure body and mind an effort to be aloof from the
materialistic world, by taking a step towards the path of devotion.
The Vratham or penance entails:
(i) Abstaining from physical relations with a spouse;
(ii) Abstention from intoxicating drinks, smoking and tamasic food;
(iii) Living in isolation from the rest of the family;
(iv) Refraining from interacting with women in daily life including
those in the family;
(v) Cooking one’s own food;
(vi) Maintaining hygiene including bathing twice a day before
prayers;
(vii) Wearing a black mundu and upper garments;
(viii) Partaking of one meal a day; and
(ix) Walking barefoot.
The penance is to be carried out in the manner prescribed.
Maintaining oneself as ‘pure and unpolluted’, it is believed, would lead to
the path towards attaining    Godhead or to be one with Lord Ayyappa.
C Temple entry and the exclusion of women
Before proceeding to analyse the questions in this reference, it
would be necessary to outline the history of the case bearing upon the
controversy.
26. Two notifications were issued by the Travancore Devaswom
Board which read as follows:
Notification dated 21 October 1955
“In accordance with the fundamental principle underlying
the prathishta (installation) of the venerable, holy and ancient
temple of Sabarimala, Ayyappans who had not observed
the usual vows as well
as women who had attained maturity
were not in the habit of entering the above mentioned temple
for Darshan (worship) by stepping the Pathinettampadi. But
of late, there seems to have been a deviation from this custom
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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and practice. In order to maintain the sanctity and dignity
of this great temple and keep up the past traditions, it is
hereby notified that Ayyappans who do not observe the usual
Vrithams are prohibited from entering the temple by stepping
the Pathinettampadi and women between the ages of ten
and fifty-five are forbidden from entering the temple.”7
Notification dated 27 November 1956
“In accordance with the fundamental principle underlying
the prathishta (installation) of the venerable, holy and ancient
temple of Sabarimala, Ayyappans who had not observed
the usual vows as well as women who had attained maturity
were not in the habit of entering the above-mentioned temple
for Darshan (worship) by stepping the Pathinettampadi. But
of late, there seems to have been a deviation from this custom
and practice. In order to maintain the sanctity and dignity
of this great temple and keep up the past traditions, it is
hereby notified that Ayyappans who do not observe the usual
Vritham (vows) are prohibited from entering the temple by
stepping the pathinettampadi and women between the ages
of ten and fifty five are forbidden from entering the temple.”
In 1965, the Kerala Hindu Places of Public Worship (Authorization
of Entry) Act 19658 was enacted. The preamble to the Act lays down
that the Act has been enacted to make better provisions for entry of all
classes and sections of Hindu into places of public worship. Section 2
contains definitions:
“Section 2. Definitions:- In this Act, unless the context otherwise
requires, -
(a) “Hindu” includes a person professing the Buddhist, Sikh or
Jaina religion;
(b) “place of public worship” means a place, by whatever name
known or to whomsoever belonging, which is dedicated to, or for
the benefit of, or is used generally by, Hindus or any section or
 7 The Kerala High Court in S Mahendran v The Secretary, Travancore Devaswom
Board, Thiruvananthapuram, recorded that women between ten and fifty were excluded
from the Sabarimala temple. The Petitioners and Respondents in the present case
accept that women between the age of ten and fifty are excluded.
 8 The “1965 Act”
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class thereof, for the performance of any religious service or for
offering prayers therein, and includes all lands and subsidiary
shrines, mutts, devasthanams, namaskara mandapams and
nalambalams appurtenant or attached to any such place, and also
any sacred tanks, wells, springs and water courses the waters of
which are worshipped, or are used for bathing or for worship, but
does not include a “sreekoil”;
(c) “section or class” includes any division, sub-division, caste,
sub-caste, sect or denomination whatsoever.”
Section 3 provides for places of public worship to be open to all
sections and classes of Hindus:
“Section 3. Places of public worship to be open to all section and
classes of Hindus:-
Notwithstanding anything to the contrary contained in any other
law for the time being in force or any custom or usage or any
instrument having effect by virtue of any such law or any decree
or order of court, every place of public worship which is open to
Hindus generally or to any section or class thereof, shall be open
to all sections and classes of Hindus; and no Hindu of whatsoever
section or class shall, in any manner, be prevented, obstructed or
discouraged from entering such place of public worship, or from
worshipping or offering prayers thereat, or performing any religious
service therein, in the like manner and to the like extent as any
other Hindu of whatsoever section or class may enter, worship,
pray
or perform:
Provided that in the case of a place of public worship which is a
temple founded for the benefit of any religious denomination or
section thereof, the provisions of this section, shall be subject to
the right of that religious denomination or section as the case may
be, to manage its own affairs in matters of religion.”
Section 4 deals with the power to make regulations:
“Section 4. Power to make regulations for the maintenance of
order and decorum and the due performance of rites and
ceremonies in places of public worship:-
(1) The trustee or any other person in charge of any place public
worship shall have power, subject to the control of the competent
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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authority and any rules which may be made by that authority, to
make regulations for the maintenance of order and the decorum
in the place of public worship and the due observance of the
religious rites and ceremonies performed therein:
Provided that no regulation made under this sub-section shall
discriminate in any manner whatsoever, against any Hindu on the
ground that he belongs to a particular section or class.
(2) The competent authority referred to in sub-section (1) shall
be,-
(i) in relation to a place of public worship situated in any area to
which Part I of the Travancore-Cochin Hindu Religious Institutions
Act, 1950 (Travancore-Cochin Act XV of 1930), extends, the
Travancore Devaswom Board;
(ii) in relation to a place of public worship situated in any area to
which Part II of the said Act extends, the Cochin Devaswom
Board; and
(iii) in relation to a place of public worship situated in any other
area in the State of Kerala, the Government.”
The State of Kerala in exercise of the power under Section 4
framed the Kerala Hindu Places of Public Worship (Authorization of
Entry) Rules 1965.9 Rule 3 of the 1965 Rules is extracted below:
“Rule 3. The classes of persons mentioned here under shall not
be entitled to offer worship in any place of public worship or bathe
in or use the water of any sacred tank, well, spring or water course
appurtenant to a place of public worship whether situate within or
outside
precincts thereof, or any sacred place including a hill or
hill lock, or a road, street or pathways which is requisite for obtaining
access to the place of public worship-
(a) Persons who are not Hindus.
(b) Women at such time during which they are not by custom
and usage allowed to enter a place of public worship.
(c) Persons under pollution arising out of birth or death in their
families.
 9 The “1965 Rules”
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(d) Drunken or disorderly persons.
(e) Persons suffering from any loathsome or contagious disease.
(f) Persons of unsound mind except when taken for worship under
proper control and with the permission of the executive authority
of the place of public worship concerned.
(g) Professional beggars when their entry is solely for the purpose
of begging.”
              (Emphasis Supplied)
27. The legality of banning the entry of women above the age of
ten and below the age of fifty to offer worship at Sabarimala shrine was
sought to be answered in 1992 by a Division Bench of the High Court of
Kerala in S Mahendran v The Secretary, Travancore Devaswom
Board, Thiruvananthapuram (“Mahendran”).10 A public interest
litigation was entertained by the High Court on the basis of a petition
addressed by one S. Mahendran. Upholding the exclusion of women
from the ceremonies and prayer at the shrine, the High Court concluded:
 “44. Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 and below
50 from trekking the holy hills of Sabarimala and offering worship
at Sabarimala Shrine is in accordance with the usage prevalent
from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not
violative of Articles 15, 25 and 26 of the Constitution of India.
(3) Such restriction is also not violative of the provisions of Hindu
Place of Public Worship (Authorisation of Entry) Act, 1965 since
there is no restriction between one section and another section or
between one class and another class among the Hindus in the
matter of entry to a temple whereas the prohibition is only in respect
of women of a particular age group and not women as a class.”11
The High Court issued the following directions:-
“In the light of the aforesaid conclusions we direct the first
respondent, the Travancore Devaswom Board, not to permit
women above the age of 10 and below the age of 50 to trek the
 10 AIR 1993 Ker 42
 11 Ibid, at page 57
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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holy hills of Sabarimala in connection with the pilgrimage to the
Sabarimala temple and from offering worship at Sabarimala Shrine
during any period of the year. We also direct the 3rd respondent,
Government of Kerala, to render all necessary assistance inclusive
of police and to see that the direction which we have issued to the
Devaswom Board is implemented and complied with.”
D The reference
28. When the present case came up before a three judge Bench
of this Court, by an order dated 13 October 2017, the following questions
were referred to a larger bench:
“1 Whether the exclusionary practice which is based upon a
biological factor exclusive to the female gender amounts to
“discrimination” and thereby violates the very core of Articles 14,
15 and 17 and not protected by ‘morality’ as used in Articles 25
and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an
“essential religious practice” under Article 25 and whether a
religious institution can assert a claim in that regard under the
umbrella of right to manage its own affairs in the matters of
religion?
3. Whether Ayyappa Temple has a denominational character and,
if so, is it permissible on the part of a ‘religious denomination’
managed by a statutory board and financed under Article 290-A
of the Constitution of India out of Consolidated Fund of Kerala
and Tamil Nadu can indulge in such practices violating constitutional
principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-
A(e)?
4. Whether Rule 3 of Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules permits ‘religious denomination’ to
ban entry of women between the age of 10 to 50 years? And if
so, would it not play foul of Articles 14 and 15(3) of the Constitution
by restricting entry of women on the ground of sex?
5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act, 1965 and,
if treated to be intra vires, whether it will be violative of the
provisions of Part III of the Constitution?”
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It is these questions that we have been called upon to answer.
E Submissions
The Petitioners challenge the exclusion of women between the
age group ten and fifty from the Sabarimala Temple as unconstitutional.
Mr Ravi Prakash Gupta,12 learned Counsel submitted that the
exclusion of women between the age group of ten and fifty from the
Sabarimala Temple is unconstitutional on the following grounds:
i. The devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 of the Constitution;
ii.The restriction of entry of women into Sabarimala temple does
not constitute an Essential Religious Practice;
iii. The right under Article 26 and Article 25 must be read
harmoniously as laid down in Devaru; and
iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act
and Article 14 and 15 of the Constitution.
Ms Indira Jaising,13 learned Senior Counsel, submits that the
exclusion from the Sabarimala temple is unconstitutional:
i. The exclusionary practice is based on physiological factors
exclusive to the female gender and this violates Articles 14, 15
and 21 of the Constitution;
ii.The practice of exclusion based on menstruation constitutes a
form of untouchability and is prohibited by Article 17 of the
Constitution;
iii. The devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 of the Constitution;
iv. The practice of excluding women from the Sabarimala temple
does not constitute an Essential Religious Practice;
v.That the impugned custom of excluding women falls within the
ambit of ‘laws in force’ in Article 13 and is constitutionally
invalid; and
vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.
 12 Appearing for the Petitioners – Indian Young Lawyer’s Association
 13 Appearing for the Intervenors – Nikita Azad Arora and Sukhjeet Singh
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Mr Raju Ramachandran, learned Senior Counsel who has
assisted the Court as Amicus Curiae made the following submissions:
i. That the right of a woman to worship is an essential aspect of
her right to worship under Article 25;
ii. That the exclusion of women from Sabarimala temple amounts
to discrimination prohibited under Article 15(1) of the
Constitution;
iii. That compulsory disclosure of menstrual status by women is a
violation of their right to privacy under Article 21 of the
Constitution;
iv. The term ‘morality’ in Article 25 and 26 embodies constitutional
morality;
v. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;
vi. The devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 of the Constitution;
vii. The practice of excluding women from the Sabarimala temple
does not constitute an Essential Religious Practice;
viii. The prohibition against untouchability in Article 17 extends to
the denial of entry to women between the age group ten and
fifty;
ix. A deity is not a juristic person for the purpose of rights enshrined
in Part III of the Constitution; and
x. That there is no requirement of trial as the recordings by the
High Court in Mahendran are sufficient.
Mr P V Surendranath,14 learned Senior Counsel submitted thus:
i. There is no proven custom of excluding women from the
Sabarimala temple;
ii. The practice of exclusion violates Article 14, 15, 25 and 51 of
the
Constitution; and
iii. In the case of a conflict between fundamental rights and
customs, the former would prevail in accordance with Article
13 of the Constitution.
 14 Appearing for the Intervenors – All India Democratic Women’s Association
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Mr Jaideep Gupta,15 learned Senior Counsel submitted:
i.  The State Government of Kerala stands by the affidavit filed
on  13 November 2007 wherein the State Government was
not in favour of any discrimination against women;
ii. That women fall within the ambit of ‘section or class’ in Section
3 of the 1965 Act;
iii. Article 17 must be given a broad interpretation which prohibits
the exclusion of women;
iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;
v. The devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 of the Constitution;
vi. The practice of excluding women from the Sabarimala temple
does not constitute an Essential Religious Practice; and
vii. That the impugned custom of excluding women falls within
the ambit of Article 13 and is constitutionally invalid.
The Respondents submitted that the practice of excluding women
between the age group of ten and fifty from the Sabarimala temple is
constitutionally permissible.
Dr.Abhishek Manu Singhvi,16 learned Senior Counsel submitted
that the practice of excluding women between the age group of ten and
fifty from the Sabarimala temple is constitutional and valid:
i. The exclusion of women is not based on gender and satisfies
the test of intelligible differentia and nexus to the object sought
to be achieved;
ii.That Article 17 is inapplicable to the case at hand as the Article
is restricted to prohibiting caste
and religion-based untouchability;
iii. The Sabarimala temple is a denominational temple and the
exclusion of women is in exercise of denomination rights under
Article 26 of the Constitution;
iv. Articles 25 and 26 of the Constitution protect religious matters
including ceremonial issues and the exclusion of women is an
exercise of this right;
 15 Appearing for the State of Kerala
 16 Appearing on behalf of the Respondent – Travancore Devaswom Board
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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v. That Article 13 of the Constitution does not apply to the present
case; and
vi. That a separate trial would be required for the determination
of facts.
Shri K Parasaran,17 learned Senior Counsel submitted that the
exclusion from the Sabarimala temple is constitutionally permissible:
i. There exists an independent custom that permits the exclusion
of women from the Sabarimala temple;
ii.The right to exclude women of a particular age group from the
temple flows from the religious rights of the devotees under
Article 25 of the Constitution and the character of the deity as
a Naishtika Brahmacharya;
iii. The custom is protected under Rule 3(b) the 1965 Rules; and
iv. That the notion of equality is enshrined in Article 25, and
consequently, Article 14 and 15 are inapplicable to the present
case.
Mr K Ramamoorthy, learned Senior Counsel who assisted the
Court as Amicus Curiae made the following submissions:
i.  That the exclusion of women between the age group ten and
fifty does not violate the rights of the Petitioners under Article
25; and
ii.The practice of exclusion is protected under Article 25.
Mr K Radhakrishnan,18 learned Senior Counsel submitted that
the exclusion of women between the ages ten and fifty is permissible:
i.  The impugned practice constitutes an Essential Religious
Practice; and
ii. The prohibition of untouchability enshrined in Article 17 is
inapplicable.
Mr V Giri,19 learned Senior Counsel
submitted thus:
 17 Appearing on behalf of the Respondent – Nair Service Society
 18 Appearing on behalf of the Intervenor – Raja of Pandalam
 19 Appearing on behalf of the Respondent  – the Thantri
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i.  The exclusion of women constitutes an Essential Religious
Practice and is in accordance with character of the deity as a
Naishtika Brahmacharya.
Mr J Sai Deepak,20 learned Counsel submitted that the deity has
constitutional rights and that the practice of excluding women between
the age group of ten and fifty from worship at the Sabarimala temple is
constitutional and permissible:
i.  The impugned practice is based on the character of the deity
as a Naishtika Brahmacharya;
ii. Given the form of the deity, the practice constitutes an Essential
Religious Practice;
iii.The devotees of Lord Ayyappa constitute a religious
denomination under Article 26 of the Constitution;
iv.That the presiding deity of Sabarimala Temple is a bearer of
constitutional rights under Articles 21 and 25 of the Constitution;
v.Article 17 of the Constitution has no applicability as it applies
only to untouchability based on caste and religion; and
vi.The impugned Rules and Act flow from the right of the
denomination under Article 26 and are constitutionally valid.
Mr V K Biju,21 learned Counsel submitted that the exclusion is
constitutionally permissible:
i. That the right of the deity as a juristic person sitting as a Naishtika
Brahmacharya cannot be questioned;
ii.That the exclusion is protected under Article 25 and 26 of the
Constitution; and
iii. The issue at hand cannot be decided without a determination
of facts that would take
place at trial.
Mr Gopal Sankaranarayanan,22 learned Counsel made the
following submissions:
i.  That Article 25 is not applicable to the present case;
ii. That the devotees of Lord Ayyappa constitute a religious
denomination under Article 26 of the Constitution; and
 20 Appearing on behalf of K K Sabu and People for Dharma
 21 Appearing on behalf of the Lord Ayyappa Devotees
 22 Appearing for Intervenor – Usha Nandini
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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iii.  The 1965 Act does not apply to the Sabarimala temple; In any
case, the proviso to Rule 3 of the 1965 Rules protects the
rights of religious denominations.
F Essential Religious Practices
29. The doctrine of essential religious practices was first articulated
in 1954, in Commissioner, Hindu Religious Endowments, Madras
v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt23 (“Shirur
Mutt”). A seven judge Bench of this Court considered a challenge to
the Madras Hindu Religious and Charitable Endowments Act 1951, which
empowered a statutory commissioner to frame and settle a scheme if
they had reason to believe that the religious institution was mismanaging
funds. The Petitioner, the mathadhipati (superior) of the Shirur Mutt
monastery, claimed that the law interfered with his right to manage the
religious affairs of the monastery, and therefore violated Article 26(b) of
the Constitution.
Justice B K Mukherjea, writing for the Court, noted that Article
26(b) allowed a religious denomination to ‘manage its own affairs in
matters of religion’ and framed a question on the ambit of ‘matters of
religion’:
“16.The language undoubtedly suggests that there could be other
affairs of a religious denomination or a section thereof which are
not matters of religion and to which the guarantee given by this
clause would not apply. The question is, where is the line to
be drawn between what are matters of religion and what
are not?”
(Emphasis supplied)
The Court cited with approval the judgment of the High Court of
Australia in Adelaide Company of Jehovah’s Witnesses
Incorporated v The Commonwealth of Australia24, which held that
the Constitution protected not only “liberty of opinion” but also “acts
done in pursuance of religious belief as part of religion.” The court noted
the importance of both religious belief and the practice that stems from
it, and provided an expansive definition of ‘religion’:
“A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion
 23 1954 SCR 1005
 24 [1943] HCA 12
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as conducive to their spiritual well-being, but it would not be correct
to say that religion is nothing else but a doctrine or belief...The
guarantee under our Constitution not only protects the
freedom of religious opinion but it protects also acts done
in pursuance of a religion and this is made clear by the use
of the expression “practice of religion” in article 25.”
                                                                (Emphasis supplied)
Drawing a distinction between religious and secular practices,
the court held that:
“...What constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines
of that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to the idol
at particular hours of the day…all these would be regarded as
parts of religion and the mere fact that they involve expenditure
of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities
partaking of a commercial or economic character; all of them are
religious practices and should be regarded as matters of religion
within the meaning of Article 26(b).”
   (Emphasis supplied)
The Court ruled that the freedom of religion guaranteed by the
Constitution applied to freedom of both religious belief and practice. To
distinguish between the religious and the secular, the
Court looked to the
religion itself, and noted that the views of adherents were crucial to the
analysis of what constituted ‘essential’ aspects of religion.
30. This approach was followed in Ratilal Panachand Gandhi v
State of Bombay25  (“Ratilal”), where a Constitution Bench of this Court
considered the constitutionality of the Bombay Public Trusts Act, 1950.
The Act sought to regulate and make provisions for the administration of
public and religious trusts in the State of Bombay. The Petitioners
challenged the validity of the Act on the grounds that it interfered with
their freedom of conscience, their right to freely profess, practise and
propagate their religion, and their right to manage their religious affairs
under Articles 25 and 26 of the Constitution. Justice B K  Mukherjea,
speaking for a Constitution Bench of this Court, expounded upon the
meaning and scope of Article 25:
 25 1954 SCR 1055
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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“10...Subject to the restrictions which this article imposes, every
person has a fundamental right under our Constitution not merely
to entertain such religious belief as may be approved of by his
judgment or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further
to propagate his religious views for the edification of others.”
Speaking with reference to Article 26, Justice Mukherjea reiterated
the broad view taken by the Court in Shirur Mutt – that religious
denominations had ‘complete autonomy’ to decide which religious
practices were essential for them:
“Religious practices or performances of acts in pursuance of
religious beliefs are as much a part of religion as faith or belief in
particular doctrines …
23…No outside authority has any right to say that these are not
essential parts of religion and it is not open to the secular authority
of the State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate.”
The Court, however, recognized the limited role of the Court in
the determination of such a question:
“The distinction between matters of religion and those of secular
administration of religious properties may, at times, appear to be a
thin one. But in cases of doubt …the court should take a
common sense view and be actuated by considerations of
practical necessity.”
(Emphasis supplied)
31. The late 1950s witnessed two cases that were central to the
evolution of the essential practices doctrine. In Sri Venkataramana
Devaru v State of Mysore26(“Devaru”), a Constitution Bench of this
Court considered the constitutionality of the Madras Temple Entry
Authorisation Act, 1947, which sought to reform the practice of religious
exclusion of Dalits from a denominational temple founded by the Gowda
Saraswat Brahmins. The Court accepted the claim that the temple was
a denominational temple founded for the benefit of the Gowda Saraswats,
and proceeded to examine whether exercising the right of a religious
denomination under Article 26(b), they were ‘entitled to exclude other
communities from entering into it for worship on the ground that it was a
matter of religion.’
 26 (1958) SCR 895
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Rather than allowing the religious denomination ‘complete
autonomy in the matter of deciding as to what rites and ceremonies are
essential’, the Court examined scripture and precedent to determine
whether the exclusion of a person from entering into a temple for worship
was a matter of religion under Hindu Ceremonial Law. Justice
Venkatarama Aiyar reviewed ancient literature, the practice of Hindus,
and the role of temples in that practice, and concluded on behalf of the
Court that:
“18…Thus, under the ceremonial law pertaining to temples,
who are entitled to enter them for worship and where they are
entitled to stand and worship and how the worship is to be
conducted are all matters of religion.”         (Emphasis supplied)
This firmly established the Court’s role in determining what
constituted ‘essential’ religious practices. However, the matter did not
end here. The Gowda Saraswats claimed their right to manage their
own religious affairs under Article 26(b), whereas the State claimed that
it had a constitutional mandate to throw open Hindu temples ‘to all classes
and sections of Hindus’ under Article 25(2)(b). Noting that the two are
“apparently in conflict”, the Court considered whether the right of a
religious denomination to manage its own affairs in matters of religion
guaranteed under Article 26(b) was subject to, and could be controlled
by, a law protected by Article 25(2)(b), throwing open a Hindu
public
temple to all classes and sections of Hindus:
“Article 26, it was contended, should therefore be construed as
falling wholly outside Art. 25(2)(b), which should be limited to
institutions other than denominational ones…The answer to this
contention is that it is impossible to read any such limitation into
the language of Art. 25(2)(b). It applies in terms to all religious
institutions of a public character without qualification or reserve.
As already stated, public institutions would mean not merely temples
dedicated to the public as a whole but also those founded for the
benefit of sections thereof, and denominational temples would be
comprised therein. The language of the Article being plain and
unambiguous, it is not open to us to read into it limitations which
are not there, based on a priori reasoning as to the probable
intention of the Legislature. Such intention can be gathered only
from the words actually used in the statute; and in a Court of law,
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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what is unexpressed has the same value as what is unintended.
We must therefore hold that denominational institutions are within
Art. 25(2)(b).”
Applying the doctrine of harmonious construction, the Court held
that the protection under Article 25(2)(b) vanishes in its entirety if it is
held that Article 26(b) allows no exceptions or is not subject to Article
25(2)(b):
“If the denominational rights are such that to give effect to them
would substantially reduce the right conferred by Art. 25(2)(b),
then of course, on our conclusion that Art. 25(2)(b) prevails as
against Art. 26(b), the denominational rights must vanish. But
where that is not the position, and after giving effect to the rights
of the denomination what is left to the public of the right of worship
is something substantial and not merely the husk of it, there is no
reason why we should not so construe Art. 25(2)(b) as to give
effect to Art. 26(b) and recognise the rights of the denomination
in respect of matters which are strictly denominational, leaving
the rights of the public in other respects unaffected.”
32. This case marked a nuance of the essential practices doctrine
laid down in Shirur Mutt, where a denomination was granted ‘complete
autonomy’ to determine which practices it considered to be essential. In
Shirur Mutt, the autonomy to decide what is essential to religion was
coupled with the definition of religion itself, which was to comprehend
belief and practice. In Devaru, the Court laid down a crucial precedent
in carving out its role in examining the essentiality of such practices.
While the Court would take into consideration the views of a religious
community in determining whether a practice qualified as essential, this
would not be determinative.
Prior to Devaru, this Court used the word ‘essential’ to distinguish
between religious and secular practices in order to circumscribe the
extent of state intervention in religious matters. The shift in judicial
approach took place when ‘essentially religious’ (as distinct from the
secular) became conflated with ‘essential to religion.’ The Court’s enquiry
into the essentiality of the practice in question represented a shift in the
test, which now enjoined upon the Court the duty to decide which religious
practices would be afforded constitutional protection, based on the
determination of what constitutes an essential religious practice.
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33. In Mohd. Hanif Quareshi v State of Bihar27 (“Qureshi”),
a Constitution Bench of this Court considered whether laws prohibiting
cattle slaughter infringed upon the fundamental right to religion of the
Petitioners, who were members of the Muslim Qureshi Community. The
Petitioners claimed that these laws were violative of Article 25 of the
Constitution as Muslims were compelled by their religion to sacrifice
cows at Bakr-Id. The Court placed reliance upon Islamic religious texts
to determine that the sacrificing of cows at Bakr-Id was not an essential
practice for Muslims:
“13...No reference is made in the petition to any particular Surah
of the Holy Quran which, in terms, requires the sacrifice of a
cow...What the Holy book enjoins is that people should pray unto
the Lord and make sacrifice...It is therefore, optional for a Muslim
to sacrifice a goat for one person or a cow or a camel for seven
persons. It does not appear to be obligatory that a person
must sacrifice a cow. The very fact of an option seems to
run counter to the notion of an obligatory duty…”
   (Emphasis supplied)
In response to the claim that Muslims had been sacrificing cows
since time immemorial and that this practice was sanctioned by their
religion and was therefore protected by Article 25, the Court observed
that:
“13…It is part of the known history of India that the Moghul
Emperor Babar saw the wisdom of prohibiting the slaughter of
cows as and by way of religious sacrifice and directed his son
Humayun to follow this example...We have, however, no
material on the record before us which will enable us to
say, in the face of the foregoing facts, that the sacrifice of a
cow on that day is an obligatory overt act for a Mussalman
to exhibit his religious belief and idea. In the premises, it is
not possible for us to uphold this claim of the petitioners.”
   (Emphasis supplied)
The Court looked to the texts and scriptures of the religious
community to conclude that the practice claimed to be essential was not
supported by religious tenets.
34. In Durgah Committee, Ajmer v Syed Hussain Ali28
(“Durgah Committee”), a Constitution Bench of this Court considered
 27 (1959) SCR 629
 28 (1962) 1 SCR 383
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a challenge to the Durgah Khawaja Saheb Act, 1955, which provided
for the constitution of a Committee to manage a Muslim Durgah. The
Respondents, who were khadims29 of the Durgah, contended that the
Act barred them from managing the Durgah and receiving offerings
from pilgrims, and hence infringed upon their rights under Article 26 as
Muslims belonging to the Soofi Chishtia Order. Rather than making a
reference to scriptures, Justice Gajendragadkar, writing for the Court,
considered the history of the Ajmer shrine to determine that the right to
administer the property never vested in the Respondents:
“22. Thus it would be clear that from the middle of the 16th Century
to the middle of the 20th Century the administration and
management of the Durgah Endowment has been true to the same
pattern. The said administration has been treated as a matter with
which the State is concerned and it has been left in charge of the
Mutawallis who were appointed from time to time by the State
and even removed when they were found to be guilty of misconduct
or when it was felt that their work was unsatisfactory.”
Before parting with the judgment, Justice Gajendragadkar issued
an important “note of caution”:
“33…in order that the practices in question should be
treated as a part of religion they must be regarded by the
said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or
an integral part of religion are apt to be clothed with a
religious form and may make a claim for being treated as
religious practices within the meaning of Article 26.Similarly,
even practices though religious may have sprung from
merely superstitious beliefs and may in that sense be
extraneous and unessential accretions to religion itself.
Unless such practices are found to constitute an essential and
integral part of a religion their claim for the protection under Article
26 may have to be carefully scrutinised; in other words, the
protection must be confined to such religious practices as are an
essential and an integral part of it and no other.”
                                                                (Emphasis supplied)
 29 According to the khadims, they were descendants of two followers of the twelfth
century Sufi saint Khwaja Moinuddin Chisti, whose tomb at Ajmer is known as the
Durgah Khwaja Saheb. The khadims also claimed they belonged to a religious
denomination known as the Chishtia Sufis.
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35. This statement pushed the essential religious practices doctrine
in a new direction. The Court distinguished, for the first time, between
‘superstitious beliefs’ and religious practice. Apart from engaging in a
judicial enquiry to determine whether a practice claimed to be essential
was in fact grounded in religious scriptures, beliefs, and tenets, the Court
would ‘carefully scrutinize’ that the practice claiming constitutional
protection does not claim superstition as its base. This was considered a
necessary safeguard to ensure that superstitious beliefs would not be
afforded constitutional protection in the garb of an essential religious
practice. The Court also emphasized that purely secular matters clothed
with a religious form do not enjoy protection as an essential part of
religion.
36. The test was narrowed down further in Sardar Syedna Taher
Saifuddin Saheb v State of Bombay (“Saifuddin”),30 where this Court,
by a 4-1 majority, struck down the Bombay Prevention of
Excommunication Act, 1949, which prohibited the practice of
excommunication within religious communities. The Court held that the
practice of excommunication within the Dawoodi Bohra faith on religious
grounds fell within ‘matters of religion’ under Article 26(b) and was thus
constitutionally protected. Justice Das Gupta, writing for the majority,
emphasized that the practice claimed to be essential must be based strictly
on religious
grounds in order to claim constitutional protection:
“43…The barring of excommunication on grounds other than
religious grounds say, on the breach of some obnoxious
social rule or practice might be a measure of social reform
and a law which bars such excommunication merely might
conceivably come within the saving provisions of clause
2(b) of Art. 25. But barring of excommunication on religious
grounds pure and simple, cannot however be considered to
promote social welfare and reform and consequently the law in
so far as it invalidates excommunication on religious grounds and
takes away the Dai’s power to impose such excommunication
cannot reasonably be considered to be a measure of social welfare
and reform.”
   (Emphasis supplied)
The Court, therefore, enquired into the basis of excommunication:
if its basis was strictly religious, the practice would warrant constitutional
 30  1962 Supp (2) SCR 496
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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protection. If, however, the practice was based on any other ground, it
would be open to the Legislature to prohibit such a practice.
37. In a strong dissent, Chief Justice Sinha concluded that the
matter of excommunication was not purely of a religious nature. Clarifying
that his analysis was confined to the civil rights of the members of the
community, Justice Sinha opined:
“11…The impugned Act, thus, has given full effect to modern
notions of individual freedom to choose one’s way of life and to
do away with all those undue and outmoded interferences with
liberty of conscience, faith and belief. It is also aimed at ensuring
human dignity and removing all those restrictions which prevent a
person from living his own life so long as he did not interfere with
similar rights of others.”
Justice Sinha drew a distinction between ‘matters of religion’ as
protected under Article 26(b) and activities associated with religion, though
not intimately connected with it:
“18…Now, Art. 26(b) itself would seem to indicate that a religious
denomination has to deal not only with matters of religion, but
other matters connected with religion, like laying down rules and
regulations for the conduct of its members and the penalties
attached to infringement of those rules, managing property owned
and possessed by the religious community, etc., etc. We have
therefore, to draw a line of demarcation between practises
consisting of rites and
ceremonies connected with the particular
kind of worship, which is the tenet of the religious community, and
practises in other matters which may touch the religious institutions
at several points, but which are not intimately concerned with
rites and ceremonies the performance of which is an essential
part of the religion.”
Justice Sinha noticed the extreme consequences that follow
excommunication:
“24. On the social aspect of excommunication, one is inclined to
think that the position of an excommunicated person becomes
that of an untouchable in his community, and if that is so, the Act
in declaring such practises to be void has only carried out the
strict injunction of Art. 17 of the Constitution, by which
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untouchability has been abolished and its practice in any form
forbidden. The Article further provides that the enforcement of
any disability arising out of untouchability shall be an offence
punishable in accordance with law. The Act, in this sense, is its
logical corollary and must, therefore, be upheld.”
The decision in Saifuddin is presently pending consideration before
a larger bench.
38. Durgah Committee and Saifuddin established the role of
this Court in scrutinizing claims of practices essential to religion in order
to deny constitutional protection to those practices that were not strictly
based in religion. Ascertaining what was “essential” to a religious
denomination “according to its own tenets” required a scrutiny of its
religious texts. Durgah Committee laid down that the court would
‘carefully scrutinize’ claims to deny constitutional protection to those
claims which are religious but spring from superstitious beliefs and are
not essential to religion. Saifuddin laid down that a practice grounded
on an obnoxious social rule or practice may be within the ambit of social
reform that the State may carry out. This view infuses the doctrine with
a safeguard against claims by religious denominations that any practice
with a religious undertone would fall within the protection afforded by
Article 26(b) to them to ‘manage its own affairs in matters of religion.’
39. In Tilkayat Shri Govindlalji Maharaj
v State of Rajasthan
(“Tilkayat”)31, a Constitution Bench of this Court dealt with a challenge
to Nathdwara Temple Act 1959, which provides for the appointment of
a board to manage the affairs of the temple and its property. The
Petitioner, the spiritual head of the temple, claimed that the temple and
its properties were private and that the State legislature was not competent
to pass the law. He contended that even if the temple was held to be a
public temple, the Act infringed Articles 25, 26(b) and 26(c) because the
temple was managed by the Tilkayat as head of the Vallabh denomination.
The Court relied on firmans (edicts or administrative orders) issued by
emperors of the erstwhile Mughal Empire to hold that the temple was
public and that the Tilkayat was “merely a custodian, manager and trustee
of the temple.” Justice Gajendragadkar, writing for the Bench, underlined
why the claims of a community regarding their religious practices could
not be accepted without scrutiny:
 31 (1964) 1 SCR 561
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“57.In deciding the question as to whether a given religious practice
is an integral part of the religion or not, the test always would be
whether it is regarded as such by the community following the
religion or not. This formula may in some cases present difficulties
in its operation...In cases where conflicting evidence is produced
in respect of rival contentions as to competing religious practices
the Court may not be able to resolve the dispute by a blind
application of the formula that the community decides which
practice is an integral part of its religion, because the community
may speak with more than one voice and the formula would
therefore break down. The question will always have to be decided
by the Court…”
In this regard, the Court noted that:
“58...What is protected under Articles 25(1) and 26(b) respectively
are the religious practices and the right to manage affairs in matters
of religion. If the practice in question is purely secular or the affair
which is controlled by the statute is essentially and absolutely
secular in character, it cannot be urged that Article 25(1) or Article
26(b) has been contravened.”
Tilkayat set forth an important qualification to the proposition
laid down in Shirur Mutt, which held that adherents themselves must
be allowed to determine what was essential to their religion. The Court
observed that where ‘conflicting evidence is produced in respect of rival
contentions as
to competing religious practices,’ a ‘blind application’ of
the Shirur Mutt formula may not resolve a dispute, because persons
within a community may have diverse and contrasting conceptions of
what is essential to their religion. It was therefore held to be incumbent
upon the Court to determine not only whether a practice was religious in
character, but also whether it could be considered an essential part of
religion. Beginning with the Shirur Mutt formulation that what is essential
to religion would be determined by the adherents to the faith, the Court
moved towards a doctrine that what is essential “will always have to be
decided by the Court.” In fact, the Court would determine whether a
statute sought to regulate what is “essentially and absolutely secular.”
What is religious and what is secular and the boundaries of both were
then to be adjudicated by the Court.
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40. In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya32
(“Sastri Yagnapurushadji”), a Constitution Bench of this Court was
seized with the issue of whether the Swaminarayan sect could be
exempted from the application of the Bombay Hindu Places of Public
Worship (Entry Authorization) Act, 1956, which allowed Dalits to worship
in all temples to which the Act applied. The Petitioners, who were
members of the Swaminarayan sect, contended that by virtue of being a
non-Hindu creed, temples belonging to the sect did not fall within the
ambit of the Act. Justice Gajendragadkar, writing for the Court, rejected
this claim:
“55.It may be conceded that the genesis of the suit is the genuine
apprehension entertained by the appellants, but as often happens
in these matters the said apprehension is founded on
superstition, ignorance and complete misunderstanding of
the true teachings of Hindu religion and of the real
significance of the tenets and philosophy taught by
Swaminarayan himself.”                           (Emphasis supplied)
Quoting Tilak, Justice Gajendragadkar then expounded the
distinctive features of Hinduism:
“40.Tilak faced this complex and difficult problem of defining or
at least describing adequately Hindu religion and he evolved a
working formula which may be regarded as fairly adequate and
satisfactory. Said Tilak: “Acceptance of the Vedas with
reverence; recognition of the fact that the means or
ways
to salvation are diverse and realisation of the truth that the
number of gods to be worshipped is large, that indeed is
the distinguishing feature of Hindu religion.”
                           (Emphasis supplied)
41. In Acharya Jagdishwaranand Avadhuta v. Commissioner
of Police, Calcutta33(“Avadhuta I”), a three judge Bench of this Court
considered whether the police could prevent the Ananda Margis from
performing the ‘tandava dance’ in public, in which adherents dance in a
public procession carrying knives, live snakes, tridents, and skulls. The
Court enquired ‘whether performance of Tandava dance is a religious
 32 (1966) 3 SCR 242
33 (1983) 4 SCC 522
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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rite or practice essential to the tenets of the religious faith of the Ananda
Margis.’ Justice Ranganath Misra, writing for the Court, held that since
the Ananda Margis were a recent religious order, and the tandava dance
an even more recent innovation, it could not be considered an essential
religious practice:
“14.Ananda Marga as a religious order is of recent origin and
tandava dance as a part of religious rites of that order is still more
recent. It is doubtful as to whether in such circumstances tandava
dance can be taken as an essential religious rite of the Ananda
Margis.
“Even conceding that Tandava dance has been prescribed as a
religious rite for every follower of Ananda Margis it does not
follow as a necessary corollary that Tandava dance to be
performed in the public is a matter of religious rite. In fact, there
is no justification in any of the writings of Shri Ananda Murti that
tandava dance must be performed in public.”34
42. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi v State of Uttar Pradesh35 (“Adi Visheshwara”), a three
judge Bench of this Court dealt with a challenge to the Uttar Pradesh Sri
Kashi Vishwanath Temple Act, 1983, which entrusted the State with the
management of the temple as opposed to the Pandas (priests). The priests
contended that this violated their right under Article 25(1) and Article
26(b) and (d) of the Constitution. Rejecting that the claim and holding
that the
management of a temple is a secular activity, this Court held
that the Sri Vishwanath Temple is not a denominational temple and that
the Appellants are not denominational worshippers. In a view similar to
that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned
against extending constitutional protection to purely secular practices
clothed with a religious form:
“28…Sometimes, practices, religious or secular, are
inextricably mixed up. This is more particularly so in regard to
Hindu religion because under the provisions of the ancient Smriti,
human actions from birth to death and most of the individual actions
from day-today are regarded as religious in character in one facet
or the other. They sometimes claim the religious system or sanctuary
and seek the cloak of constitutional protection guaranteed by
Articles 25 and 26. One hinges upon constitutional religious model
 34 Ibid, at pages 532-533
 35 (1997) 4 SCC 606
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and another diametrically more on traditional point of view. The
legitimacy of the true categories is required to be adjudged
strictly within the parameters of the right of the individual
and the legitimacy of the State for social progress, well-
being and reforms, social intensification and national
unity.”36(Emphasis supplied)
43. In N Adithayan v Travancore Devaswom Board37
(“Travancore Devaswom Board”), a two judge Bench of this Court
was seized with the issue of whether the Travancore Devaswom Board
could appoint a non-Malayala Brahmin as priest of the Kongorpilly
Neerikode Siva Temple. Justice Doraiswamy Raju, writing for the Court,
held that there was no evidence on record to demonstrate that only
Brahmins were entitled to serve as priests. Rejecting the claim that Shirur
Mutt laid down the proposition that all practices arising out of religion
are afforded constitutional protection, the Court held:
“18…The attempted exercise by the learned Senior Counsel for
the appellant to read into the decisions of this Court in Shirur
Mutt’s case (supra) and others something more than what it actually
purports to lay down as if they lend support to assert or protect
any and everything claimed as being part of the religious rituals,
rites, observances and method of worship and make such claims
immutable from any restriction or regulation based on the other
provisions of the Constitution or the law enacted to
implement
such constitutional mandate, deserves only to be rejected as merely
a superficial approach by purporting to deride what otherwise has
to have really an overriding effect, in the scheme of rights declared
and guaranteed under Part III of the Constitution of India. Any
custom or usage irrespective of even any proof of their
existence in pre constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and the specific
mandate of the Constitution and law made by Parliament.
No usage which is found to be pernicious and considered
to be in derogation of the law of the land or opposed to
public policy or social decency can be accepted or upheld
by courts in the country.”38                     (Emphasis supplied)
 36 Ibid, at page 630
 37 (2002) 8 SCC 106
 38 Ibid, at pages 124-125
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44. The question of the essential religious nature of the Tandava
dance was considered again in 2004, in Commissioner of Police v.
Acharya Jagdishwarananda Avadhuta39(“Avadhuta II”). After
Avadhuta I, the religious book of the Anand Margis, the Carya-
Carya,was revised to prescribe the Anand Tandava as an essential
religious practice. Laying emphasis on the ‘essential’ nature of the practice
claimed, the majority, in a 2-1 split verdict, held that the practice must be
of such a nature that its absence would result in a fundamental change
in the character of that religion:
“9.Essential part of a religion means the core beliefs upon which
a religion is founded. Essential practice means those practices
that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the superstructure
of a religion is built, without which a religion will be no religion.
Test to determine whether a part or practice is essential to
a religion is to find out whether the nature of the religion
will be changed without that part or practice. If the taking
away of that part or practice could result in a fundamental
change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part.
There cannot be additions or subtractions to such part
because it is the very essence of that religion and alterations
will change its fundamental character. It
is such permanent
essential 
parts 
which 
are 
protected 
by 
the
Constitution…Such alterable parts or practices are
definitely not the ‘core’ of religion where the belief is based
and religion is founded upon. It could only be treated as
mere embellishments to the non-essential part or
practices.”40
                                                                 (Emphasis supplied)
The essentiality test came to be linked to the “fundamental
character” of the religion. If the abrogation of a practice does not change
the fundamental nature of the religion, the practice itself is not essential.
Rejecting the claim of the Anand Margis, the majority held that
the Ananda Margi order was in existence (1955-66) even without the
practice of the Tandava dance. Hence, such a practice would not
 39 (2004) 12 SCC 770
 40 Ibid, at pages 782-783
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constitute the ‘core’ of the religion. Further, religious groups could not
be permitted to alter their religious doctrine to recognize certain religious
practices, in order to afford them constitutional protection.
45. In Adi Saiva Sivachariyargal Nala Sangam v. Government
of Tamil Nadu41 (“Adi Saiva”), a two judge Bench of this Court
considered a challenge to a Government Order issued by the State of
Tamil Nadu which permitted ‘any qualified Hindu’ to be appointed as
the Archaka of a temple. The Petitioners challenged the Government
Order on the grounds that it violated their right to appoint Archakas from
their own denomination in accordance with the Agamas. In determining
the constitutional validity of the Government Order, this Court held that
any religious belief or practice must pass constitutional muster in order
to be afforded constitutional protection:
“48.The requirement of constitutional conformity is inbuilt and if a
custom or usage is outside the protective umbrella afforded and
envisaged by Articles 25 and 26, the law would certainly take its
own course. The constitutional legitimacy, naturally, must
supersede all religious beliefs or practices.”42
                                                                 (Emphasis supplied)
46. In Shayara Bano v Union of India43 (“Shayara Bano”), a
Constitution Bench of this Court considered whether the practice of
triple talaq was an essential practice
to the Hanafi school of Sunni
Muslims. Based on an examination of Islamic jurisprudence which
established that triple talaq constitutes an irregular practice of divorce,
the majority opinion, in a 3-2 split, held that triple talaq was not an essential
practice. Justice Nariman, speaking for himself and Justice Lalit, noted
that “a practice does not acquire the sanction of religion simply because
it is permitted” and applied the essential religious practices test set out in
Javed v State of Haryana44 and Avadhuta II to the practice of triple
talaq:
“54...It is clear that Triple Talaq is only a form of Talaq which is
permissible in law, but at the same time, stated to be sinful by the
very Hanafi school which tolerates it. According to Javed (supra),
therefore, this would not form part of any essential religious
 41 (2016) 2 SCC 725
 42 Ibid, at page 755
 43 (2017) 9 SCC 1
 44 (2003) 8 SCC 369
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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practice. Applying the test stated in Acharya Jagdishwarananda
(supra), it is equally clear that the fundamental nature of the Islamic
religion, as seen through an Indian Sunni Muslim’s eyes, will not
change without this practice.”45
Justice Kurian Joseph, concurring with Justices Nariman and Lalit,
held that on an examination of the Quran and Islamic legal scholarship,
the practice of triple talaq could not be considered an essential religious
practice. He opined that “merely because a practice has continued for
long, that by itself cannot make it valid if it has been expressly declared
to be impermissible.”
Chief Justice Khehar, who delivered the minority judgment, held
that the practice of triple talaq is integral to the religion of Hanafi Muslims.
He reasoned that:
“[T]here can be no dispute on two issues. Firstly, that the practice
of ‘talaq-e-biddat’ has been in vogue since the period of Umar,
which is roughly more than 1400 years ago. Secondly, that ‘talaq-
e-biddat’ though bad in theology, was considered as “good” in
law.”
On the basis of the history and prevalence of triple talaq in practice,
Justice Khehar held that even though triple talaq “is considered
as irreligious within the religious denomination in which the practice
is prevalent, yet the denomination considers it valid in law.”
While the majority based its conclusion on an examination of the
substantive doctrines of Islam and the theological
sanctity of triple talaq,
the minority relied on the widespread practice of triple talaq to determine
its essentiality. The majority and minority concurred, however, that the
belief of a religious denomination claiming a particular practice to be
essential must be taken into consideration in the determination of the
essentiality of that practice.
47. In its jurisprudence on religious freedom, this Court has evolved
a body of principles which define the freedom of religion under Article
25 and Article 26 to practices ‘essential’ to the religion. The Constitution
has been held to protect not only freedom of religious belief, but acts
done in pursuance of those beliefs. While the views of a religious
denomination are to be taken into consideration in determining whether
a practice is essential, those views are not determinative of its essentiality.
 45 Ibid, at page 69
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The Court has assumed a central role in determining what is or is not
essential to religious belief. Intrinsic to the role which the Court has
carved out, it has sought to distinguish between what is religious and
what is a secular practice, even if it is associated with a religious activity.
Going further, the Court has enquired into whether a practice is essential
to religion. Essentiality of the practice would, as the Court as held 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.
48. In determining the essentiality of a practice, it is crucial to
consider whether the practice is prescribed to be of an obligatory nature
within that religion. If a practice is optional, it has been held that it cannot
be said to be ‘essential’ to a religion. A practice claimed to be essential
must be such that the nature of the religion would be altered in the
absence of that practice. If there is a fundamental change in the character
of the religion, only then can such a practice be claimed to be an ‘essential’
part of
that religion.
In Tilkayat, this Court noted that ‘whether an affair in question is
an affair in matters of religion or not, may present difficulties because
sometimes practices, religious and secular, are inextricably mixed up.’
The process of disentangling them in order to adjudicate upon claims
grounded in Article 25 and Article 26(b) becomes ultimately an exercise
of judicial balancing. Durgah Committee established that in examining
a claim that a practice is essential to religion, the Court must ‘carefully
scrutinize’ the claims put before it in order to ensure that practices which
have sprung from ‘superstitious beliefs’, through grounded in religion,
will not be afforded constitutional protection. Saifuddin recognized that
where a purportedly essential practice is based on an ‘obnoxious social
rule or practice’, it would be amenable to a measure of social reform.
Of crucial importance are the observations in Devaru, where the
Court harmonized the inherent tension between the individual right under
Article 25(2)(b) and the denominational right under Article 26(b). Where
the protection of denominational rights would substantially reduce the
right conferred by Article 25(2)(b), the latter would prevail against the
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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.
G The engagement of essential religious practices with
constitutional values
49. For decades, this Court has witnessed claims resting on the
essentiality of a practice that militate against the constitutional protection
of dignity and individual freedom under the Constitution. It is the duty of
the courts to ensure that what is protected is in conformity with
fundamental constitutional values and guarantees and accords with
constitutional morality. While the Constitution is solicitous in its protection
of religious freedom as well as denominational rights, it must be
understood that dignity, liberty and equality constitute the trinity which
defines the faith of the Constitution. Together, these three values combine
to define a constitutional order of priorities. Practices or beliefs which
detract from these foundational values cannot claim legitimacy. In
Government of NCT of Delhi v Union of India46, one of us
(Chandrachud J), observed the importance of constitutional morality as
a governing ideal:
“Constitutional morality highlights the need to preserve the
trust
of the people in institutions of democracy. It encompasses not just
the forms and procedures of the Constitution, but provides an
“enabling framework that allows a society the possibilities of self-
renewal”. It is the governing ideal of institutions of democracy
which allows people to cooperate and coordinate to pursue
constitutional aspirations that cannot be achieved single-handedly.”
Our Constitution places the individual at the heart of the discourse
on rights. In a constitutional order characterized by the Rule of Law, the
constitutional commitment to egalitarianism and the dignity of every
individual enjoins upon the Court a duty to resolve the inherent tensions
between the constitutional guarantee of religious freedom afforded to
religious denominations and constitutional guarantees of dignity and
equality afforded to individuals. There are a multiplicity of intersecting
constitutional values and interests involved in determining the essentiality
 46 (2018) 8 SCALE 72
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of religious practices. In order to achieve a balance between competing
rights and interests, the test of essentiality is infused with these necessary
limitations.
50. Is the practice of excluding women between the ages of ten
and fifty from undertaking the pilgrimage and praying at the Sabarimala
temple an essential part of religion? The texts and tenets on which the
Respondents placed reliance do not indicate that the practice of excluding
women is an essential part of religion required or sanctioned by these
religious documents. At best, these documents indicate the celibate nature
of Lord Ayyappa at the Sabarimala temple. The connection between
this and the exclusion of women is not established on the material itself.
51. It was briefly contended that the case at hand required a
determination of fact and law and should be sent to trial. It was contended
that no new material has been placed before this Court to contradict the
holding of the Kerala High Court in Mahendran. The High Court
recorded findings on the pilgrimage, the inconsistent practice of prohibiting
women between the age group of ten and fifty, and the collection of
individuals that offer prayer at the Sabarimala temple. Relying on the
findings of fact recorded in Mahendran and taking note of the
submissions of the Respondents herein, the question of remanding the
case to a trial in this case does not arise.
In regard to the maintainability of
the present public interest
litigation, this issue stands answered by the judgment of this Court in Adi
Saiva Sivachariyargal v Government of Tamil Nadu,47 :
“12…The argument that the present writ petition is founded on a
cause relating to appointment in a public office and hence not
entertainable as a public interest litigation would be too simplistic
a solution to adopt to answer the issues that have been
highlighted which concerns the religious faith and practice
of a large number of citizens of the country and raises claims
of century-old traditions and usage having the force of law.
The above is the second ground, namely, the gravity of the issues
that arise, that impel us to make an attempt to answer the
issues raised and arising in the writ petitions for
determination on the merits thereof.” (Emphasis supplied)
 47 (2016) 2 SCC 725
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Of importance are some of the observations of the Kerala High
Court in  Mahendran The High Court noted that even when old customs
prevailed, women were allowed to visit the Temple.48 It noted an incident
where the Maharaja of Travancore, accompanied by the Maharani and
the Divan, had visited the Temple in 1115 M.E. The High Court noted
that the Temple has seen the presence of women worshippers between
the ages of ten and fifty for the first rice-feeding ceremony of their
children.49 The Secretary of the Ayyappa Seva Sangham had deposed
that young women were seen in Sabarimala during the previous ten to
fifteen years.50 A former Devaswom Commissioner admitted that the
first rice-feeding ceremony of her grandchild was conducted at the
Sabarimala Temple. The High Court found that during the twenty years
preceding the decision, women irrespective of age were allowed to visit
the temple when it opened for monthly poojas,51 but were prohibited
from entering the temple only during Mandalam, Makaravilakku and
Vishu seasons.52
The High Court thus noted multiple instances wherein women
were allowed to pray at the Sabarimala temple. These observations
demonstrate that the practice of excluding women from the Sabarimala
temple was not uniform. This militates against a claim that such a practice
is of an obligatory nature.  That such practice has not been followed on
numerous occasions, also shows that the denial of constitutional
protection
to an exclusionary practice will not result in a fundamental change in the
character of the religion as required by Avadhuta II.
52. The High Court proceeded on the basis of the ‘complete
autonomy’ of the followers in determining the essentiality of the practice53.
This followed the dictum in Shirur Mutt, without taking note of evolution
of precedent thereafter, which strengthened the role of the Court in the
determination and put in place essential safeguards to ensure to every
individual, the constitutional protection afforded by the trinity of dignity,
liberty and equality. The approach of the High Court is incorrect. The
High Court relied completely on the testimonies of the Thanthris without
an enquiry into its basis in religious text or whether the practice claiming
 48 Ibid, at para 7
 49 Ibid
 50 Ibid, at para 32
 51 Ibid, at paras 8, 10
 52 Ibid, at para 43
 53 Ibid, at para 22
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constitutional protection fulfilled the other guidelines laid down by this
Court. Such an approach militates against the fundamental role of the
constitutional Court as a guardian of fundamental rights. Merely
establishing a usage54 will not afford it constitutional protection as an
essential religious practice.It must be proved that the practice is ‘essential’
to religion and inextricably connected with its fundamental character.
This has not been proved.
This is sufficient reason to hold that the practice of excluding
women from Sabarimala does not constitute an essential religious practice.
However, since the claim in this case has a significant bearing on the
dignity and fundamental rights of women, an issue of principle must be
analysed.
53. It was brought to the notice of this Court that in earlier days,
the prohibition on women was because of non-religious factors.55 The
‘main reason’ as observed by the High Court in Mahendran, is the
arduous nature of the journey56 which according to the Court could not
be completed by women for physiological reasons. This claim falls foul
of the requirement that the practice claiming constitutional protection
must be on strictly religious grounds. Of significant importance, is that
such a claim is deeply rooted in a stereotypical (and constitutionally
flawed) notion that women are the ‘weaker’ sex and may not undertake
tasks that are ‘too arduous’ for them. This
paternalistic approach is
contrary to the constitutional guarantee of equality and dignity to women.
Interpreting the Constitution in accordance with the values that infuse it
requires that the dignity of women, which is an emanation of Article 15
and founded in Article 21, cannot be disassociated from the exercise of
religious freedom. Holding that stereotypical understandings of sex hold
no legitimate claim under our Constitution, one of us (Chandrachud J) in
Navtej Singh v Union of India,57 held:
“A discriminatory act will be tested against constitutional
values. A discrimination will not survive constitutional scrutiny
when it is grounded in and perpetuates stereotypes about a
class constituted by the grounds prohibited in Article 15(1).
If any ground of discrimination, whether direct or indirect is
 54 Ibid, at para 37
 55 Ibid, at para 7
 56 Ibid, at paras 38, 43
 57 Writ Petition (Criminal) No. 76 of 2016
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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founded on a stereotypical understanding of the role of the sex, it
would not be distinguishable from the discrimination which is
prohibited by Article 15 on the grounds only of sex. If certain
characteristics grounded in stereotypes, are to be associated with
entire classes of people constituted as groups by any of the grounds
prohibited in Article 15(1), that cannot establish a permissible reason
to discriminate.”
54. The Court must lean against granting constitutional protection
to a claim which derogates from the dignity of women as equal holders
of rights and protections.  In the ethos of the Constitution, it is
inconceivable that age could found a rational basis to condition the right
to worship.  The ages of ten to fifty have been marked out for exclusion
on the ground that women in that age group are likely to be in the
procreative age.  Does the Constitution permit this as basis to exclude
women from worship? Does the fact that a woman has a physiological
feature – of being in a menstruating age – entitle anybody or a group to
subject her to exclusion from religious worship? The physiological features
of a woman have no significance to her equal entitlements under the
Constitution.  All women in the age group of ten and fifty may not in any
case fall in the ‘procreative age group’.  But that to my mind is again not
a matter of substance.  The heart of the matter lies in the ability of the
Constitution to
assert that the exclusion of women from worship is
incompatible with dignity, destructive of liberty and a denial of the equality
of all human beings.  These constitutional values stand above everything
else as a principle which brooks no exceptions, even when confronted
with a claim of religious belief.  To exclude women is derogatory to an
equal citizenship.
55. The Respondents submitted that the deity at Sabarimala is in
the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It
was submitted that since celibacy is the foremost requirement for all the
followers, women between the ages of ten and fifty must not be allowed
in Sabarimala. There is an assumption here, which cannot stand
constitutional scrutiny. The assumption in such a claim is that a deviation
from the celibacy and austerity observed by the followers would be
caused by the presence of women. Such a claim cannot be sustained as
a constitutionally sustainable argument. Its effect is to impose the burden
of a man’s celibacy on a woman and construct her as a cause for deviation
from celibacy. This is then employed to deny access to spaces to which
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women are equally entitled. To suggest that women cannot keep the
Vratham is to stigmatize them and stereotype them as being weak and
lesser human beings. A constitutional court such as this one, must refuse
to recognize such claims.
56. Human dignity postulates an equality between persons. The
equality of all human beings entails being free from the restrictive and
dehumanizing effect of stereotypes and being equally entitled to the
protection of law. Our Constitution has willed that dignity, liberty and
equality serve as a guiding light for individuals, the state and this Court.
Though our Constitution protects religious freedom and consequent rights
and practices essential to religion, this Court will be guided by the pursuit
to uphold the values of the Constitution, based in dignity, liberty and
equality. In a constitutional order of priorities, these are values on which
the edifice of the Constitution stands. They infuse our constitutional order
with a vision for the future – of a just, equal and dignified society. Intrinsic
to these values is the anti-exclusion principle. Exclusion is destructive of
dignity. To exclude a woman from the might of worship is fundamentally
at odds with constitutional values.
57. It was briefly argued that women between the ages of ten
and fifty are not allowed to undertake the pilgrimage or enter Sabarimala
on the ground of the ‘impurity’ associated with menstruation. The
stigma
around menstruation has been built up around traditional beliefs in the
impurity of menstruating women. They have no place in a constitutional
order. These beliefs have been used to shackle women, to deny them
equal entitlements and subject them to the dictates of a patriarchal order.
The menstrual status of a woman cannot be a valid constitutional basis
to deny her the dignity of being and the autonomy of personhood.  The
menstrual status of a woman is deeply personal and an intrinsic part of
her privacy.  The Constitution must treat it as a feature on the basis of
which no exclusion can be practised and no denial can be perpetrated.
No body or group can use it as a barrier in a woman’s quest for fulfilment,
including in her finding solace in the connect with the creator.
H Religious Denominations
58. One of the major planks of the response to the petition is that
Sabarimala is a denominational temple and is entitled to the rights granted
to ‘religious denominations’ by Article 26 of the Constitution.
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59. The rights conferred by Article 26 are not unqualified. Besides
this, they are distinct from the rights guaranteed by Article 25. In Devaru,
this Court  elucidated on the application of such a right and held that
where the denominational rights would substantially diminish Article
25(2)(b), the former must yield to the latter. However, when the ambit
of Article 25(2)(b) is not substantially affected, the rights of a
“denomination” as distinct “from the rights of the public” may be given
effect to. However, such rights must be “strictly” denominational in nature.
Over the years, criteria have emerged from judicial
pronouncements of this Court on whether a collective of individuals
qualifies as a ‘religious denomination’. In making the determination,
benches of this Court have referred to the history and organisation of
the collective seeking denominational status.
60. Shirur Mutt dealt with the status of one of the eight Maths
founded by Shri Madhavacharya, an exponent of dualist theism in Hindu
religion. Justice B K Mukherjea undertook an enquiry into the precise
meaning of the expression “religious denomination” and whether a
“Math” is covered by the expression:
“15… The word “denomination” has been defined in the Oxford
Dictionary to mean “a collection of individuals classed together
under the same name: a religious sect or body having a common
faith and organisation and designated by a distinctive name”.
A
three fold test emerges from the above observations: (i) the
existence of a religious sect or body; (ii) a common faith shared by
those who belong to the religious sect and a common spiritual organisation;
and (iii) the existence of a distinctive name.
The Court held that the “spiritual fraternity” represented by
followers of Shri Madhavacharya, constitute a religious denomination:
“15.It is well known that the practice of setting up Maths as centres
of theological teaching was started by Shri Sankaracharya and
was followed by various teachers since then. After Sankara, came
a galaxy of religious teachers and philosophers who founded the
different sects and sub-sects of the Hindu religion that we find in
India at the present day. Each one of such sects or sub-sects
can certainly be called a religious denomination, as it is
designated by a distinctive name, — in many cases it is the
name of the founder, — and has a common faith and common
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spiritual organisation. The followers of Ramanuja, who are
known by the name of Shri Vaishnabas, undoubtedly constitute a
religious denomination; and so do the followers of Madhwacharya
and other religious teachers. It is a fact well established by tradition
that the eight Udipi Maths were founded by Madhwacharya
himself and the trustees and the beneficiaries of these Maths
profess to be followers of that teacher...” (Emphasis supplied)
61. In Devaru, Justice Venkatarama Aiyyar considered whether
the Gowda Saraswath Brahmins, associated with the Sri Venkataramana
Temple, can be regarded as a religious denomination. In doing so, the
Court undertook a factual enquiry:
“14…Now, the facts found are that the members of this community
migrated from Gowda Desa first to the Goa region and then to
the south, that they carried with them their idols, and that when
they were first settled in Moolky, a temple was founded and these
idols were installed therein. We are therefore concerned with
the Gowda Saraswath Brahmins not as a section of a
community but as a sect associated with the foundation and
maintenance of the Sri Venkataramana Temple, in other
words, not as a mere denomination, but as a religious
denomination. From the evidence of PW 1, it appears that the
Gowda Saraswath Brahmins have three Gurus, that those in
Moolky Petah are followers of the head of the Kashi Mutt, and
that it is he that performs some of the
important ceremonies in the
temple. Exhibit A is a document of the year 1826-27. That shows
that the head of the Kashi Mutt settled the disputes among the
Archakas, and that they agreed to do the puja under his orders.
The uncontradicted evidence of PW 1 also shows that during
certain religious ceremonies, persons other than Gowda
Saraswath Brahmins have been wholly excluded. This
evidence leads irresistibly to the conclusion that the temple
is a denominational one, as contended for by the
appellants.”
   (Emphasis supplied)
This was, in other words, not just a sect associated with the
community but one associated with the foundation and maintenance of
the temple. This was coupled with a spiritual head who was responsible
for the performance of religious worship.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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The Court noted that a deed of endowment proved that the temple
was founded for the benefit of the Gowda Saraswath community, and
concluded that the Sri Venkateshwara Temple qualified as a
denominational temple.
“15... When there is a question as to the nature and extent of a
dedication of a temple, that has to be determined on the terms of
the deed of endowment if that is available, and where it is not, on
other materials legally admissible; and proof of long and
uninterrupted user would be cogent evidence of the terms thereof.
Where, therefore, the original deed of endowment is not available
and it is found that all persons are freely worshipping in the temple
without let or hindrance, it would be a proper inference to make
that they do so as a matter of right, and that the original foundation
was for their benefit as well. But where it is proved by production
of the deed, of endowment or otherwise that the original dedication
was for the benefit of a particular community, the fact that
members of other communities were allowed freely to worship
cannot lead to the inference that the dedication was for their benefit
as well.…On the findings of the Court below that the foundation
was originally for the benefit of the Gowda Saraswath Brahmin
community, the fact that other classes of Hindus were admitted
freely into the temple would not have the effect of enlarging the
scope of the dedication into one for the public
generally. On a
consideration of the evidence, we see no grounds for differing
from the finding given by the learned Judges in the court below
that the suit temple is a denominational temple founded for the
benefit of the Gowda Saraswath Brahmins…”
The dedication of the temple was for the Gowda Saraswath
Brahmins specifically. The temple was not dedicated for followers of all
communities.
62. In S P Mittal v Union of India (“Mittal”)58, Justice
Ranganath Misra who delivered the opinion of the Court, held that the
followers of Sri Aurobindo do not constitute a religious denomination.
The Court formulated the conditions necessary to be fulfilled to qualify
as ‘religious denomination’:
“80. The words “religious denomination” in Article 26 of the
Constitution must take their colour from the word “religion” and if
 58 1983 1 SCC 51
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this be so, the expression “religious denomination” must also satisfy
three conditions:
“(1) It must be a collection of individuals who have a system of
beliefs or doctrines which they regard as conducive to their spiritual
well-being, that is, a common faith;
(2) common organisation; and
(3) designation by a distinctive name.”59
These tests, as we have seen, are a re-statement of the Shirur
Mutt formulation.
The Court dwelt on the organisation and activities of the Aurobindo
Society and emphasised that a collective seeking the status of a religious
denomination must be a religious institution:
“120. It was further contended that a religious denomination must
be professed by that body but from the very beginning the Society
has eschewed the word “religion” in its constitution. The Society
professed to be a scientific research organisation to the donors
and got income tax exemption on the footing that it was not a
religious institution. The Society has claimed exemption from
income tax under Section 80 for the donors and under Section 35
for itself on that ground. Ashram Trust was different from Auroville
Ashram. The Ashram Trust also applied for income tax exemption
and got it on that very ground. So also Aurobindo Society claimed
exemption on the footing that it was not a religious institution and
got it. They professed to the Government also that they were not
a religious institution in their application for
financial assistance
under the Central Scheme of Assistance to voluntary Hindu
organisations.60
121. On the basis of the materials placed before us viz. the
Memorandum of Association of the Society, the several applications
made by the Society claiming exemption under Section 35 and
Section 80 of the Income Tax Act, the repeated utterings of Sri
Aurobindo and the Mother that the Society and Auroville were
not religious institutions and host of other documents there is no
room for doubt that neither the Society nor Auroville constitute a
 59 Ibid, at page 85
 60 Ibid, at page 98
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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religious denomination and the teachings of Sri Aurobindo only
represented his philosophy and not a religion.”61
The sect was based on a shared philosophy and not on a common
set of religious beliefs or faith. Hence, the sect was held not to qualify to
be a religious denomination.
63. The above tests have been followed in other decisions. In
Avadhuta I, a three judge bench of this Court held that the Ananda
Margis of West Bengal constitute a religious denomination under Article
26, as they satisfy all the three conditions:
“11. Ananda Marga appears to satisfy all the three conditions viz.
it is a collection of individuals who have a system of beliefs which
they regard as conducive to their spiritual well-being; they have a
common organisation and the collection of these individuals has a
distinctive name. Ananda Marga, therefore, can be appropriately
treated as a religious denomination, within the Hindu religion…”62
In Bramchari Sidheswar Shai v State of West Bengal63, a
three judge Bench of this Court adopted the tests re-stated in Mittal to
hold that the followers of Ramakrishna constitute a religious denomination:
“57… These Maths and Missions of Ramakrishna composed of
the followers of principles of Hinduism as expounded, preached
or practised by Ramakrishna as his disciples or otherwise form a
cult or sect of Hindu religion. They believe in the birth of sage
Ramakrishna in Dakshineswar as an Avatar of Rama and
Krishna
and follow the principles of Hinduism discovered, expounded,
preached and practised by him as those conducive to their spiritual
well-being as the principles of highest Vedanta which surpassed
the principles of Vedanta conceived and propagated by
Sankaracharya, Madhavacharya and Ramanujacharya, who were
earlier exponents of Hinduism. Hence, as rightly held by the
Division Bench of the High Court, followers of Ramakrishna,
who are a collection of individuals, who adhere to a system
of beliefs as conducive to their spiritual well-being, who
have organised themselves collectively and who have an
 61 Ibid, at pages 98-99
 62 Ibid, at page 530
 63 (1995) 4 SCC 646
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organisation of definite name as Ramakrishna Math or
Ramakrishna Mission could,in our view, be regarded as a
religious denomination within Hindu religion...”64
(Emphasis supplied)
In Nallor Marthandam Vellalar v Commissioner, Hindu
Religious and Charitable Endowments65 a two judge Bench held
that the Vellala community in Tamil Nadu does not constitute a religious
denomination. Justice Shivraj Patil emphasised that the common faith of
the community must find its basis in “religion”:
“7. It is settled position in law, having regard to the various decisions
of this Court that the words “religious denomination” take their
colour from the word “religion”. The expression “religious
denomination” must satisfy three requirements: (1) it must be a
collection of individuals who have a system of belief or doctrine
which they regard as conducive to their spiritual well-being i.e. a
common faith; (2) a common organisation; and (3) designation of
a distinctive name. It necessarily follows that the common
faith of the community should be based on religion and in
that they should have common religious tenets and the basic
cord which connects them, should be religion and not
merely considerations of caste or community or societal
status…”66
   (Emphasis supplied)
Though formulated as a three-pronged test, a fourth element
emerges from the narrative. That is the position of a common set of
religious tenets. Religion is what
binds a religious denomination. Caste,
community and social status do not bring into being a religious
denomination.
64. These precedents indicate the ingredients which must be
present for a set of individuals to be regarded as a religious denomination.
These are a common faith, a common organisation and a distinctive
name brought together under the rubric of religion. A common thread
which runs through them is the requirement of a religious identity, which
is fundamental to the character of a religious denomination.
 64 Ibid, at pages 648-649
 65 (2003) 10 SCC 712
 66 Ibid, at page 716
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H. 1 Do the devotees of Lord Ayyappa constitute a religious
denomination?
65. Dr Abhishek Manu Singhvi, learned Senior Counsel submitted
that devotees who undertake a forty one day penance form a
denomination or section called “Ayyappaswamis” and the common
organisation is the organisation of ‘Ayyappas’. He submits that the
‘Ayyappas’ believe in a common faith and hold the belief that if they
undertake the penance of forty-one days in the manner prescribed, by
maintaining themselves pure and unpolluted, they would be one with
Lord Ayyappa. It has been submitted by Mr K Parasaran, learned Senior
Counsel that the devotees of Lord Ayyappa hold a sacred religious belief
that the deity at Sabarimala is celibate - a Naishtika Brahmachari - who
practises strict penance and the strictest form of celibacy, in which he
cannot find himself in the presence of young women.
It has been submitted that Lord Ayyappa has female devotees.
Hence, girls below the age of ten and women above the age of fifty
would be included as members of the denomination. However, it is unclear
as to how they may be considered as members of a denomination that
seeks their exclusion. The judgements of this Court lay down that the
collective of individuals must have a common faith and set of beliefs that
aid their spiritual well-being. It is implausible that women should leave
the membership of a common faith, which is meant to be conducive to
their
spiritual growth for a period of forty years and resume membership
at the age of fifty. Such a requirement takes away from the spiritual
character of the denomination.
66. The decision of the Kerala High Court in Mahendran brought
on the record several facets which would in fact establish that Ayyappans
do not constitute a religious denomination. While it is stated in the
impugned notification that women between the age of ten and fifty five
are forbidden from entering the temple as a matter of custom followed
since time immemorial, the stand taken by the Respondent before the
Kerala High Court differs to a great extent. The Board had submitted
before the High Court:
“7. In olden days worshippers visit the temple only after observing
penance for 41 days. Since pilgrims to Sabarimala temple ought
to undergo ‘Vrathams’ or penance for 41 days, usually ladies
between the age of 10 and 50 will not be physically capable of
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observing vratham for 41 days on physiological grounds. The
religious practices and customs followed earlier had changed during
the last 40 years particularly from 1950, the year in which the
renovation of the temple took place after the “fire disaster”. Even
while the old customs prevailed, women used to visit the
temple though very rarely. The Maharaja of Travancore
accompanied by the Maharani and the Divan had visited
the temple in 1115 M.E. There was thus no prohibition for
women to enter the Sabarimala temple in olden days, but
women in large number were not visiting the temple. That
was not because of any prohibition imposed by Hindu
religion but because of other non-religious factors. In recent
years, many worshippers had gone to the temple with lady
worshippers within the age group 10 to 50 for the first rice-
feeding ceremony of their children (Chottoonu). The Board
used to issue receipts on such occasions on payment of the
prescribed charges. A change in the old custom and practice
was brought about by installing a flag staff (Dhwajam) in
1969. Another change was brought about by the introduction
of Padipooja. These were done on the advice of the Thanthri.
Changes were also effected in other practices. The practice
of breaking coconuts on the 18 steps was discontinued and
worshippers were allowed to crack the coconuts only on a
stone placed below the eighteen sacred steps (Pathinettaam
Padi). These
changes had been brought about in order to preserve
the temple and the precinct in all its gaiety and sanctity.”67
   (Emphasis supplied)
According to the above extract, in the “olden days” there was no
‘religious prohibition’ on the entry of women in the Sabarimala temple.
But women visited the temple in fewer numbers for ‘non-religious’
reasons. The submission of the Board before the High Court reveals
that the prohibition has not been consistently followed even after the
notification was issued.
“8. For the last 20 years women irrespective of their age
were allowed to visit the temple when it opens for monthly
poojas. They were not permitted to enter the temple during
Mandalam, Makaravilakku and Vishu seasons. The rule that
 67 Ibid, at page 45
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during these seasons no woman who is aged more than 10 and
less than 50 shall enter the temple is scrupulously followed.68
9. The second respondent, former Devaswom Commissioner Smt.
S. Chandrika in her counter-affidavit admitted that the first rice-
feeding ceremony of her grandchild was conducted on the 1st of
Chingam 1166 at Sabarimala temple while she was holding the
post of Devaswom Commissioner…The restriction regarding the
entry of women in the age group 10 to 50 is there only during
Mandalam, Makaravilakku and Vishu. As per the stipulations made
by the Devaswom Board there is no restriction during the
remaining period. When monthly poojas are conducted, women
of all age groups used to visit Sabarimala. On the 1st of Chingam
1166 the first rice-feeding ceremony of other children were also
conducted at the temple. No V.I.P. treatment was given to her
grandchild on that day. The same facility was afforded to others
also. Her daughter got married on 13-7-1984 and was not begetting
a child for a considerably long time. She took a vow that the first
rice-feeding ceremony would be performed at Sabarimala in case
she begets a child. Hence the reason why the first rice-feeding
ceremony of the child delivered by her was performed at that
temple. The entry of young ladies in the temple during monthly
poojas is not against the customs and practices followed in the
temple…”69          (Emphasis supplied)
67. The stand of
the Board demonstrates that the practice of
excluding women of a particular age group has not been consistently
followed. The basis of the claim that there exists a religious denomination
of Ayyapans is that the presiding deity is celibate and a strict regime of
forty one days is prescribed for worship. Women between the age groups
of ten and fifty would not for physiological reasons (it is asserted) be
able to perform the penance associated with worship and hence their
exclusion is intrinsic to a common faith. As indicated earlier, the exclusion
of women between the ages of ten and fifty has not been shown to be a
uniform practice or tenet. The material before the Kerala High Court in
Mahendran in fact indicates that there was no such uniform tenet, down
the ages. Therefore, the claim that the exclusion of women is part of a
common set of religious beliefs held by those who worship the deity is
 68 Ibid, at page 45
 69 Ibid, at pages 45-46
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not established. Above all, what is crucial to a religious denomination is
a religious sect or body. A common faith and spiritual organisation must
be the chord which unites the adherents together.
68. Justice Rajagopala Ayyangar in his concurring judgement
inSaifuddin, emphasised the necessity of an identity of doctrines, creeds
and tenets in a ‘religious denomination’:
“52…The identity of a religious denomination consists in the identity
of its doctrines, creeds and tenets and these are intended to ensure
the unity of the faith which its adherents profess and the identity
of the religious views are the bonds of the union which binds them
together as one community.”
The judgement cited the ruling of Lord Halsbury in Free Church
of Scotlandv Overtoun70 :
“In the absence of conformity to essentials, the denomination would
not be an entity cemented into solidity by harmonious uniformity
of opinion, it would be a mere incongruous heap of, as it were,
grains of sand, thrown together without being united, each of these
intellectual and isolated grains differing from every other, and the
whole forming a but nominally united while really unconnected
mass; fraught with nothing but internal dissimilitude, and mutual
and reciprocal contradiction and dissension.”
69. 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
 70 (1904) AC 515, at page 616
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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, we cannot recognise the set of
individuals who refer to themselves as “Ayyappans” or devotees of Lord
Ayyappa as a ‘religious denomination’.
I Article 17, “Untouchability” and the notions of purity
70. The petitioners and the learned Amicus Curiae Mr. Raju
Ramachandran urge that the denial of entry to women in the Ayyappa
temple at Sabarimala, on the basis of customs, is a manifestation of
“untouchability” and is hence violative of Article 17 of the Constitution.
The contention has been countered by the argument that Article 17 is
specifically limited to caste-based untouchability and cannot be expanded
to include gender-based exclusion. Understanding these rival positions
requires the Court to contemplate on the historical background behind
the insertion of Article 17 into the Constitution and the intent of the
framers.
71. Article 17 occupies a unique position in our constitutional
scheme. The Article, which prohibits a social practice, is located in the
chapter on fundamental rights. The framers introduced Article 17, which
prohibits a discriminatory and inhuman social practice, in addition to
Articles 14 and 15, which provide for equality and non-discrimination.
While there has been little discussion about Article 17 in textbooks on
constitutional law, it is a provision which has a paramount social
significance both in terms of acknowledging the past and in defining the
vision of the Constitution for the present and for the future. Article 17
provides:
“”Untouchability” is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of
“Untouchability” shall be an offence punishable in accordance
with law.”
Article 17 abolished the age old practice of “untouchability”, by
forbidding its practice “in any form”. By abolishing “untouchability”, the
Constitution attempts to transform and replace the traditional and
hierarchical social order. Article 17, among other provisions of the
Constitution, envisaged bringing into “the mainstream of society,
individuals and groups that would otherwise have remained at society’s
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bottom or at its edges”71. Article 17 is the constitutional promise of
equality and justice to those who have remained at the lowest rung of a
traditional belief system founded in graded inequality. Article 17 is
enforceable against everyone – the State, groups, individuals, legal
persons, entities and organised religion – and embodies an enforceable
constitutional mandate. It has been placed on a constitutional pedestal of
enforceable fundamental rights, beyond being only a directive principle,
for two reasons. First, “untouchability” is violative of the basic rights of
socially backward individuals and their dignity. Second, the framers
believed that the abolition of “untouchability” is a constitutional imperative
to establish an equal social order. Its presence together and on an equal
footing with other fundamental rights, was designed to “give vulnerable
people the power to achieve collective good”72. Article 17 is a reflection
of the transformative ideal of the Constitution, which gives expression to
the aspirations of socially disempowered individuals and communities,
and provides a moral framework for radical social transformation. Article
17, along with other constitutional provisions73, must be seen as the
recognition and endorsement of a hope for a better future for marginalized
communities and individuals, who have had their destinies crushed by a
feudal and caste-based social order.
72. The
framers of the Constitution left the term “untouchability”
undefined. The proceedings of the Constituent Assembly suggest that
this was deliberate. B Shiva Rao has recounted74 the proceedings of the
Sub-Committee on Fundamental Rights, which was undertaking the task
of preparing the draft provisions on fundamental rights. A clause providing
for the abolition of “untouchability” was contained in K M Munshi’s
draft of Fundamental Rights. Clause 4(a) of Article III of his draft provided:
“Untouchability is abolished and the practice thereof is punishable
by the law of the Union.”
Clause 1 of Article II of Dr Ambedkar’s draft provided that:
“any privilege or disability arising out of rank, birth, person, family,
religion or religious usage and custom is abolished.”
 71 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University
Press (1999), at pages xii-xiii
 72 Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford University
Press (2008), at page 15
 73 Articles 15(2) and 23, The Constitution of India
 74 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202
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While discussing the clause on “untouchability” on 29 March 1947,
the Sub-Committee on Fundamental Rights accepted Munshi’s draft with
a verbal modification that the words “is punishable by the law of the
Union” be substituted by the expression “shall be an offence”.75
Reflecting on the draft, the constitutional advisor, B N Rau, remarked
that the meaning of “untouchability” would have to be defined in the law
which would be enacted in future to implement the provision. Bearing in
mind the comments received, the Sub-Committee when it met on 14
April 1947 to consider its draft report, decided to add the words “in any
form” after the word “Untouchability”. This was done specifically in
order “to make the prohibition of practice [of “untouchability”]
comprehensive”76.
Subsequently, on 21 April 1947, the clause proposed by the Sub-
Committee on Fundamental Rights was dealt with by the Advisory
Committee, where Jagjivan Ram had an incisive query. While noting
that ordinarily, the term “untouchability” referred to a practice prevalent
in Hindu society, he queried whether the intention of the committee was
to abolish untouchability among Hindus, Christians or other communities
or whether it applied also to ‘inter-communal’ untouchability. Shiva Rao
has recounted that the Committee came to the general conclusion that
“the purpose of the clause was to abolish untouchability in all its
forms— whether it was untouchability
within a community or between
various communities”77. In the proceedings, K M Panikkar elaborated
the point by observing that the clause intended to abolish various
disabilities arising out of untouchability, irrespective of religion.78 He
remarked:
“If somebody says that he is not going to touch me, that is not a
civil right which I can enforce in a court of law. There are certain
complex of disabilities that arise from the practice of untouchability
in India. Those disabilities are in the nature of civil obligations or
civil disabilities and what we have attempted to provide for is that
 75 Ibid
 76 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202
 77 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202
 78 B Shiva Rao has remarked that Panikkar’s reference was to the depressed classes
who had been converted to Christianity in Travancore-Cochin and Malabar. See B
Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public
Administration (1968), at page 202
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these disabilities that exist in regard to the individual, whether he
be a Christian, Muslim or anybody else, if he suffers from these
disabilities, they should be eradicated through the process of law.”79
Rajagopalachari suggested a minor amendment of the clause, which
sought to make “the imposition of any disability of any kind or any such
custom of ‘untouchability’” an offence. Taking note of the suggestions
and views expressed, the clause was redrafted as clause 6 in the Interim
Report of the Advisory Committee as follows:
“”Untouchability” in any form is abolished and the imposition of
any disability on that account shall be an offence.”
The Interim Report was moved before the Constituent Assembly
by Vallabhbhai Patel on 29 April 1947. Commenting on Clause 6, one
member, Promatha Ranjan Thakur, observed that “untouchability” cannot
be abolished without abolishing the caste system, since “untouchability”
is its symptom. Srijut Rohini Kumar Chaudhury, SC Banerjee and
Dhirendra Nath Datta sought a clarification on the definition of the term
“untouchability”. Chaudhary even suggested the following amendment
to define the term “untouchability”:
“‘Untouchability’ means any act committed in exercise of
discrimination on, grounds of religion, caste or lawful vocation of
life mentioned in clause 4.”
Opposing the amendment, K M Munshi stated that the word
“untouchability” has been “put purposely within inverted
commas in order
to indicate that the Union legislature when it defines ‘untouchability’ will
be able to deal with it in the sense in which it is normally understood”80.
Subsequently, only three amendments were moved. H V Kamath sought
to insert the word “unapproachability” after the term “untouchability”
and the words “and every” after the word “any”. S. Nagappa wanted to
substitute the words “imposition of any disability” with the words
“observance of any disability”. P Kunhiraman wanted to add the words
“punishable by law” after the word “offence”. Vallabhbhai Patel, who
had moved the clause, considered the amendments to be unnecessary
and observed:
 79 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 203
 80 Constituent Assembly Debates (29 April 1947)
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“The first amendment is by Mr. Kamath. He wants the addition
of the word ‘unapproachability’. If untouchability is provided for
in the fundamental rights as an offence, all necessary adjustments
will be made in the law that may be passed by the Legislature. I
do not think it is right or wise to provide for such necessary
corollaries and, therefore, I do not accept this amendment.
The other amendment is by Mr. Nagappa who has suggested that
for the words “imposition of any disability’’ the words “observance
of any disability’’ may be substituted. I cannot understand his
point. I can observe one man imposing a disability on another, and
I will be guilty I have observed it. I do not think such extreme
things should be provided for. The removal of untouchability is
the main idea, and if untouchability is made illegal or an offence,
it is quite enough.
The next amendment was moved by Mr. Kunhiraman. He has
suggested the insertion of ‘punishable by law’. We have provided
that imposition of untouchability shall be an offence. Perhaps his
idea is that an offence could be excusable, or sometimes an offence
may be rewarded. Offence is an offence; it is not necessary to
provide that offence should be punishable by law. Sir, I do not
accept this amendment either.
Then, it was proposed that for the words ‘any form’, the words
‘all forms’ be substituted. Untouchability in any form is a legal
phraseology, and no more addition is
necessary.”81
After Patel’s explanation, HV Kamath and P Kunhiraman
withdrew their amendments, while the amendment moved by Nagappan
was rejected. Clause 6 was adopted by the Constituent Assembly.
However, in the Draft Constitution (dated October 1947) prepared by
the constitutional advisor, B N Rau, the third amendment moved by
Kunhiraman was adopted in effect and after the word “offence” the
words “which shall be punishable in accordance with law” were
inserted.82 On 30-31 October 1947, the Drafting Committee considered
the “untouchability” provision and redrafted it as article 11. It was
proposed83 by Dr Ambedkar before the Constituent Assembly as follows:
 81 Constituent Assembly Debates (29 April 1947)
 82 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 204
 83 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 205
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“”Untouchability” is abolished and its practice in any form is
forbidden. The enforcement of any disability arising out of
“untouchability” shall be an offence punishable in accordance with
law.”
In response to comments and representations received on the
Draft Constitution, B N Rau reiterated that Parliament would have to
enact legislation, which would provide a definition of “untouchability”.84
When the draft Article 11 came for discussion before the Constituent
Assembly on 29 November 1948, one member, Naziruddin Ahmad, sought
to substitute it by the following Article:
“No one shall on account of his religion or caste be treated or
regarded as an ‘untouchable’; and its observance in any form
may be made punishable by law.”85
The amendment proposed would obviously restrict untouchability
to its religious and caste-based manifestations. Naziruddin Ahmad
supported his contention by observing that draft Article 11 prepared by
the Drafting Committee was vague, as it provides no legal meaning of
the term “untouchability”. Stressing that the term was “rather loose”,
Ahmad wanted the draft Article to be given “a better shape”. Professor
KT Shah had a similar concern. He observed:
“… I would like to point out that the term ‘untouchability’ is
nowhere defined. This Constitution lacks very much in a definition
clause; and consequently we are at a great loss in understanding
what is meant by a given clause and how it
is going to be given
effect to. You follow up the general proposition about abolishing
untouchability, by saying that it will be in any form an offence and
will be punished at law. Now I want to give the House some
instances of recognised and permitted untouchability
whereby particular communities or individuals are for a time
placed under disability, which is actually untouchability.We
all know that at certain periods women are regarded as
untouchables. Is that supposed to be, will it be regarded as an
offence under this article? I think if I am not mistaken, I am
speaking from memory, but I believe I am right that in the Quran
in a certain ‘Sura’, this is mentioned specifically and categorically.
 84 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 204
 85 Ibid, at page 205
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Will you make the practice of their religion by the followers of the
Prophetan offence? Again there are many ceremonies in
connection with funerals and obsequies which make those who
have taken part in them untouchables for a while. I do not wish to
inflict a lecture upon this House on anthropological or connected
matters; but I would like it to be brought to the notice that the
lack of any definition of the term ‘untouchability’ makes it
open for busy bodies and lawyers to make capital out of a
clause like this, which I am sure was not the intention of
the Drafting Committee to make.”86
   (Emphasis supplied)
Dr Ambedkar neither accepted Naziruddin Ahmad’s amendment
nor replied to the points raised by KT Shah. The amendment proposed
by Ahmad was negatived by the Constituent Assembly and the draft
Article as proposed by Dr Ambedkar was adopted. Draft Article 11 has
been renumbered as the current Article 17 of the Constitution.
The refusal of the Constituent Assembly to provide any definite
meaning to “untouchability” (despite specific amendments and proposals
voicing the need for a definition) indicates that the framers did not wish
to make the term restrictive. The addition of the words “in any form” in
the initial draft prepared by the Sub-Committee on Fundamental Rights
is an unambiguous statement to the effect that the draftspersons wanted
to give the term “untouchability” a broad scope. A reconstruction of the
proceedings of the Constituent Assembly suggests that the members
agreed to the Constitutional Advisor’s insistence that the law which is to
be enacted for implementing the provision on “untouchability” would
provide a definition of the term. The rejection of Naziruddin Ahmad’s
amendment by the members of the Constituent Assembly reflects a
conscious effort not to limit the scope of the legislation to be enacted.
73. In order to fully understand the constitutional philosophy
underlying the insertion of Article 17, this Court must also deal with one
specific instance during the proceedings of the Constituent Assembly.
As mentioned above, while Professor KT Shah gave specific examples
of acts of “untouchability”, including that of women being considered
untouchables “in certain periods”, and argued for a specific definition,
Dr Ambedkar furnished no reply. This raises the question as to why Dr
Ambedkar did not accept Naziruddin Ahmad’s amendment and refused
 86 Constituent Assembly Debates (29 November 1948)
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to reply to KT Shah’s remarks. One member of the Constituent Assembly,
Monomohan Das, remarked during the debate on the draft Article on
“untouchability”:
“…It is an irony of fate that the man who was driven from one
school to another, who was forced to take his lessons outside the
class room, has been entrusted with this great job of framing the
Constitution of free and independent India, and it is he who has
finally dealt the death blow to this custom of untouchability, of
which he was himself a victim in his younger days.”87
The answers lie in the struggle for social emancipation and justice
which was the defining symbol of the age, together with the movement
for attaining political freedom but in a radical transformation of society
as well.  To focus on the former without comprehending the latter would
be to miss the inter-connected nature of the document as a compact for
political and social reform.
74. Reading Dr Ambedkar compels us to look at the other side of
the independence movement. Besides the struggle for independence from
the British rule, there was another struggle going on since centuries and
which still continues. That struggle has been for social emancipation. It
has been the struggle for the replacement of an unequal social order. It
has been a fight for undoing historical injustices and for righting
fundamental wrongs with fundamental rights. The Constitution of India
is the end product of
both these struggles. It is the foundational document,
which in text and spirit, aims at social transformation namely, the creation
and preservation of an equal social order. The Constitution represents
the aspirations of those, who were denied the basic ingredients of a
dignified existence. It contains a vision of social justice and lays down a
roadmap for successive governments to achieve that vision. The
document sets out a moral trajectory, which citizens must pursue for the
realization of the values of liberty, equality, fraternity and justice. It is an
assurance to the marginalized to be able to rise to the challenges of
human existence. The Constituent Assembly was enriched by the shared
wisdom and experiences gathered by its members from the ongoing
social struggle for equality and justice. In particular, as the Chairman of
the Drafting Committee, Dr Ambedkar brought with himself ideas, values
and scholarship, which were derived from the experiences and struggles
which singularly were his own. He drew as well from other social
 87 Constituent Assembly Debates (29 November 1948)
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reformers in their movements against social injustice. Some of these
experiences and literature ought to be discussed in order to understand
the vision behind the philosophy of the Constitution and, particularly,
Article 17.
Having himself faced discrimination and stigmatization, Dr
Ambedkar had launched an active movement against “untouchability”.
In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancing
the rights of those who were neglected by society. Over the following
years, Dr Ambedkar organised marches demanding rights for
untouchables to drinking water from public resources, and their right to
enter temples. These movements were part of the larger demand of
equality for the untouchables.
In his profound work, “Annihilation of Caste”, while advocating
the destruction of the caste system, Dr Ambedkar recorded some of the
“untouchability” practices by which the Untouchables were subjected
to inhuman treatment:
“Under the rule of the Peshwas in the Maratha country, the
Untouchable was not allowed to use the public streets if a Hindu
was coming along, lest he should pollute the Hindu by his shadow.
The Untouchable was required to have a black thread either on
his wrist or around his neck, as a sign or a mark to prevent the
Hindus from getting themselves polluted by his touch by mistake.
In Poona, the capital of the Peshwa, the Untouchable was required
to carry, strung from his waist, a broom to sweep
away from
behind himself the dust he trod on, lest a Hindu walking on the
same dust should be polluted. In Poona, the Untouchable was
required to carry an earthen pot hung around his neck wherever
he went—for holding his spit, lest his spit falling on the earth should
pollute a Hindu who might unknowingly happen to tread on it.”88
His autobiographical notes published after his death with the title
“Waiting for a Visa”89, contain reminiscences drawn by Dr Ambedkar
on his own experiences with “untouchability”. Dr Ambedkar mentions
several experiences from his childhood.  No barber would consent to
 88 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of
Maharashtra, Vol. 1 (2014), at pages 39
 89 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of
Maharashtra, Vol. 12 (2014), at pages 661-691
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shave an untouchable. During his days as an Officer in Baroda State, he
was denied a place to stay in quarters.In another note, which was
handwritten by Dr Ambedkar and was later published with the title
“Frustration”, he wrote:
“The Untouchables are the weariest, most loathed and the most
miserable people that history can witness. They are a spent and
sacrificed people… To put it in simple language the Untouchables
have been completely overtaken by a sense of utter frustration.
As Mathew Arnold says “life consists in the effort to affirm one’s
own essence; meaning by this, to develop one’s own existence
fully and freely... Failure to affirm ones own essence is simply
another name for frustration… “ Many people suffer such
frustrations in their history. But they soon recover from the blight
and rise to glory again with new vibrations. The case of the
Untouchables stands on a different footing. Their frustration is
frustration for ever. It is unrelieved by space or time. In this respect
the story of the Untouchables stands in strange contrast with that
of the Jews.”90
In his writing titled “Slaves and Untouchables”91, he described
“untouchability” to be worse than slavery. In his words:
“.. untouchability is obligatory. A person is permitted to hold another
as his slave. There is no compulsion on him if he does not want to.
But an Untouchable has no option. Once he is born an Untouchable,
he is subject to all
the disabilities of an Untouchable…
[U]ntouchability is an indirect and therefore the worst form of
slavery… It is enslavement without making the Untouchables
conscious of their enslavement.”92
Dr Ambedkar’s thoughts and ideas bear an impact of other social
reformers who preceded him, in particular Jyotirao Phule and Savitribai
Phule. In 1873, in the preface to his book titled “Gulamgiri” (Slavery),
Jyotirao Phule made a stinging critique on the cause of “untouchability”: 
“[The] Sudras and Atisudras were regarded with supreme hatred
and contempt, and the commonest rights of humanity were denied
 90 Ibid, at pages 733-735
 91 Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of
Maharashtra, Vol. 5 (2014), at pages 9-18
 92 Ibid, at page 15
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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[to] them. Their touch, nay, even their shadow, is deemed a
pollution. They are considered as mere chattels, and their life of
no more value than that of meanest reptile… How far the Brahmins
have succeeded in their endeavours to enslave the minds of the
Sudras and Atisudras... For generations past [the Sudras and
Atisudras] have borne these chains of slavery and bondage…
This system of slavery, to which the Brahmins reduced the lower
classes is in no respect inferior to that which obtained a few years
ago in America. In the days of rigid Brahmin dominancy, so lately
as that of the time of the Peshwa, my Sudra brethren had even
greater hardships and oppression practiced upon them than what
even the slaves in America had to suffer. To this system of selfish
superstition and bigotry, we are to attribute the stagnation and all
the evils under which India has been groaning for many centuries
past.”93
Savitribai Phule expresses the feeling of resentment among the
marginalized in form of a poem:
“Arise brothers, lowest of low shudras
wake up, arise.
Rise and throw off the shackles
put by custom upon us.
Brothers, arise and learn…
We will educate our children
and teach ourselves as well.
We will acquire knowledge
of religion and righteousness.
Let the thirst for books and learning
dance in our every vein.
Let each one struggle and forever erase
our low-caste stain.”94
 93 India Dissents: 3,000 Years of Difference, Doubt and
Argument, (Ashok Vajpeyi
ed.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88
 94 Ibid, at page 88
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75. The consistent discourse flowing through these writings reflects
a longstanding fight against subjugation and of atrocities undergone by
the victims of an unequal society. Article 17 is a constitutional recognition
of these resentments. The incorporation of Article 17 into the Constitution
is symbolic of valuing the centuries’ old struggle of social reformers and
revolutionaries. It is a move by the Constitution makers to find catharsis
in the face of historic horrors. It is an attempt to make reparations to
those, whose identity was subjugated by society. Article 17 is a revolt
against social norms, which subjugated individuals into stigmatised
hierarchies. By abolishing “untouchability”, Article 17 protects them from
a repetition of history in a free nation. The background of Article 17 thus
lies in protecting the dignity of those who have been victims of
discrimination, prejudice and social exclusion.
Article 17 must be construed from the perspective of its position
as a powerful guarantee to preserve human dignity and against the
stigmatization and exclusion of individuals and groups on the basis of
social hierarchism. Article 17 and Articles 15(2) and 23, provide the
supporting foundation for the arc of social justice. Locating the basis of
Article 17 in the protection of dignity and preventing stigmatization and
social exclusion, would perhaps be the apt answer to Professor KT Shah’s
unanswered
queries. The Constitution has designedly left untouchability
undefined. Any form of stigmatization which leads to social exclusion is
violative of human dignity and would constitute a form of “untouchability”.
The Drafting Committee did not restrict the scope of Article 17. The
prohibition of “untouchability”, as part of the process of protecting dignity
and preventing stigmatization and exclusion, is the broader notion, which
this Court seeks to adopt, as underlying the framework of these articles.
76. The practice of “untouchability”, as pointed out by the members
of the Constituent Assembly, is a symptom of the caste system. The root
cause of “untouchability” is the caste system.95 The caste system
represents a hierarchical order of purity and pollution enforced by social
 95 In his paper on “Castes in India: Their Mechanism, Genesis and Development”
(1916) presented at the Columbia University, Dr Ambedkar wrote: “The caste problem
is a vast one, both theoretically and practically. Practically, it is an institution that
portends tremendous consequences. It is a local problem, but one capable of much
wider mischief, for as long as caste in India does exist, Hindus will hardly intermarry or
have any social intercourse with outsiders; and if Hindus migrate to other regions on
earth, Indian caste would become a world problem”. See Dr. Babasaheb Ambedkar:
Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014),
at pages 5-6
[DR. DHANANJAYA Y
CHANDRACHUD, J.]
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compulsion. Purity and pollution constitute the core of caste. While the
top of the caste pyramid is considered pure and enjoys entitlements, the
bottom is considered polluted and has no entitlements. Ideas of “purity
and pollution” are used to justify this distinction which is self-perpetuality.
The upper castes perform rituals that, they believe, assert and maintain
their purity over lower castes. Rules of purity and pollution are used to
reinforce caste hierarchies.96 The notion of “purity and pollution”
influences who people associate with, and how they treat and are treated
by other people. Dr Ambedkar’s rejection of privileges associated with
caste, in “Annihilation of Caste”97, is hence a battle for human dignity.
Dr Ambedkar perceived the caste system to be violative of individual
dignity.98In his last address to the Constituent Assembly, he stated that
the caste system is contrary to the country’s unity and integrity, and
described it as bringing “separation in social life”.99 Individual dignity
cannot be based on the notions of purity and pollution. “Untouchability”
against lower castes was based on these notions, and violated their dignity.
It is for this reason that Article 17 abolishes “untouchability”, which
arises out of caste hierarchies. Article 17 strikes at the foundation of the
notions about “purity and pollution”.
77. Notions of “purity and pollution”, entrenched in the caste
system, still
continue to dominate society. Though the Constitution
abolished untouchability and other forms of social oppression for the
marginalised and for the Dalits, the quest for dignity is yet a daily struggle.
The conditions that reproduce “untouchability” are still in existence.
Though the Constitution guarantees to every human being dignity as
inalienable to existence, the indignity and social prejudices which Dalits
face continue to haunt their lives. Seventy years after independence, a
section of Dalits has been forced to continue with the indignity of manual
scavenging. In a recent work, “Ants Among Elephants: An Untouchable
Family and the Making of Modern India”, Sujatha Gidla describes the
indignified life of a manual scavenger:
“As their brooms wear down, they have to bend their backs lower
and lower to sweep. When their baskets start to leak, the [human]
 96 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted
Development and the Costs of Caste, Harper Collins (2017), at pages 74-79
 97 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government
of Maharashtra, Vol. 1 (2014), at pages 23-96
 98 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government
of Maharashtra, Vol. 12 (2014), at pages 661-691.
 99 Constituent Assembly Debates (25 November 1949)
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shit drips down their faces. In the rainy season, the filth runs all
over these people, onto their hair, their noses, their moths.
Tuberculosis and infectious diseases are endemic among them.”100
The demeaning life of manual scavengers is narrated by Diane
Coffey and Dean Spears in “Where India Goes: Abandoned Toilets,
Stunted Development and the Costs of Caste”101. The social reality of
India is that manual scavenging castes face a two-fold discrimination-
one, by society, and other, within the Dalits:
“[M]anual scavengers are considered the lowest-ranking among
the Dalit castes. The discrimination they face is generally even
worse than that which Dalits from non-scavenging castes face.”102
Manual scavengers have been the worst victims of the system of
“purity and pollution”. Article 17 was a promise to lower castes that
they will be free from social oppression. Yet for the marginalized
communities, little has changed. The list of the daily atrocities committed
against Dalits is endless. Dalits are being killed for growing a moustache,
daring to watch upper-caste folk dances, allegedly for owning and riding
a horse and for all kinds of defiance of a social order that deprives them
of essential humanity.103The Dalits and other oppressed sections of
society have been waiting long years to see the quest for dignity fulfilled.
Security from oppression and an opportunity to lead a dignified life is an
issue of
existence for Dalits and the other marginalized. Post-
independence, Parliament enacted legislations104 to undo the injustice
done to oppressed social groups. Yet the poor implementation105 of law
results in a continued denial which the law attempted to remedy.
78. Article 17 is a social revolutionary provision. It has certain
features. The first is that the Article abolishes “untouchability”. In
abolishing it, the Constitution strikes at the root of the institution of
 100 Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making of
Modern India, Harper Collins (2017), at page 114
 101 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted
Development and the Costs of Caste, Harper Collins (2017), at pages 74-79
 102 Ibid, at page 78
 103 Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017), available
at https://www.outlookindia.com/magazine/story/death-for-moustache/299405
 104 Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989;
Prohibition of Manual Scavenging Act, 2013
 105 As observed in National Campaign for Dalit Human Rights v. Union of India, (2017)
2 SCC 432
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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untouchability. The abolition of untouchability can only be fulfilled by
dealing with notions which it encompasses. Notions of “purity and
pollution” have been its sustaining force. In abolishing “untouchability”,
the Constitution attempts a dynamic shift in the social orderings upon
which prejudice and discrimination were institutionalized. The first feature
is a moral re-affirmation of human dignity and of a society governed by
equal entitlements.  The second important feature of Article 17 is that
the practice of “untouchability” is forbidden.  The practice is an emanation
of the institution which sustains it. The abolition of the practice as a
manifestation is a consequence of the abolition of the institution of
“untouchability”.  The third significant feature is that the practice of
untouchability” is forbidden “in any form”. The “in any form” prescription
has a profound significance in indicating the nature and width of the
prohibition. Every manifestation of untouchability without exception lies
within the fold of the prohibition.  The fourth feature of Article 17 is that
the enforcement of disabilities founded upon “untouchability” shall
constitute an offence punishable in accordance with law. The long arms
of the criminal law will lend teeth to the enforcement of the prohibition.
79. The Constitution has carefully eschewed a definition of
“untouchability”. The draftspersons realized that even a broadly
couched
definition may be restrictive. A definition would become restrictive if the
words used or the instances depicted are not adequate to cover the
manifold complexities of our social life through which prejudice and
discrimination is manifest. Hence, even though the attention of the
framers was drawn to the fact that “untouchability” is not a practice
referable only to the lowest in the caste ordering  but also was practiced
against women (and in the absence of a definition, the prohibition would
cover all its forms), the expression was designedly left undefined.  The
Constitution uses the expression “untouchability” in inverted comas. The
use of a punctuation mark cannot be construed as intent to circumscribe
the constitutional width of the expression. The historical backdrop to the
inclusion of the provision was provided by centuries of subjugation,
discrimination and social exclusion. Article 17 is an intrinsic part of the
social transformation which the Constitution seeks to achieve.  Hence in
construing it, the language of the Constitution should not be ascribed a
curtailed meaning which will obliterate its true purpose. “Untouchability”
in any form is forbidden.  The operation of the words used by the
Constitution cannot be confined to a particular form or manifestation of
“untouchability”. The Constitution as a constantly evolving instrument
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has to be flexible to reach out to injustice based on untouchability, in any
of its forms or manifestations. Article 17 is a powerful guarantee against
exclusion. As an expression of the anti-exclusion principle, it 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.
80. The provisions of Article 17 have been adverted to in judicial
decisions. In Devarajiah v B Padmanna106, a learned single judge of
the Mysore High Court observed that the absence of a definition of the
expression “untouchability in the Constitution and the use of inverted
commas indicated that “the subject-matter of that Article is not
untouchability in its literal or grammatical sense but the practice as it had
developed historically in this country”. The learned single judge held :
“18.Comprehensive as the word ‘untouchables’ in the Act is
intended to be, it can only refer to those regarded as untouchables
in the course of historical development. A literal construction of
the term would include persons who are treated as untouchables
either temporarily or otherwise for various reasons, such as their
suffering from an epidemic or contagious disease or on account
of social observances such as are associated with birth or death
or on account of social boycott resulting from caste or other
disputes.”107
In Jai Singh v Union of India108,a Full Bench
of the Rajasthan
High Court followed the decision of the Mysore High Court in Devarajiah
while upholding the constitutional validity of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
In State of Karnataka v Appa Balu Ingale109, a two judge Bench
of this Court traced the origins of untouchability. The court held that
“untouchability is an indirect form of slavery and only an extension of
caste system”. The court held:
“36. The thrust of Article 17 and the Act is to liberate the society
from blind and ritualistic adherence and traditional beliefs which
lost all legal or moral base. It seeks to establish a new ideal for
society – equality to the Dalits, on a par with general public, absence
 106 AIR 1958 Mys 84
 107 Ibid, at page 85
 108 AIR 1993 Raj 177
 109 1995 Supp (4) SCC 469
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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of disabilities, restrictions or prohibitions on grounds of caste or
religion, availability of opportunities and a sense of being a
participant in the mainstream of national life.”110
In a more recent decision in Adi Saiva Sivachariyargal Nala
Sangam v  Government of Tamil Nadu111,a two judge Bench construed
Article 17 in the context of exclusionary caste based practices:
“47.The issue of untouchability raised on the anvil of Article 17 of
the Constitution stands at the extreme opposite end of the pendulum.
Article 17 of the Constitution strikes at caste-based practices built
on superstitions and beliefs that have no rationale or logic…”
While these judgments focus on “untouchability” arising out of
caste based practices, it is important to note that the provisions of Article
17 were enforced by means of the Protection of Civil Rights Act 1955
[earlier known as the Untouchability (Offences) Act]. Clauses (a) and
(b) of Section 3 penalise the act of preventing any person from entering
a place of public worship and from worshiping or offering prayers in
such a place. Section 3 reads thus:
“Section 3 - Punishment for enforcing religious disabilities:
Whoever on the ground of “untouchability” prevents any
person—
(a) from entering any place of public worship which is open
to other persons professing the same religion of any section
thereof, as such person; or
(b) from worshipping or offering prayers or performing any
religious service in any place of public worship, or bathing in,
or using the waters of, any sacred tank, well, spring or water-
course [river or lake or bathing at any ghat of such tank, water-
course, river or lake] in the same manner and to the same
extent as is permissible to the other persons professing
the same religion or any section thereof, as such person,
[shall be punishable with imprisonment for a term of not less than
one month and not more than six months and also with fine which
shall be not less than one hundred rupees and not more than five
hundred rupees].
 110 Ibid, at page 486
 111 (2016) 2 SCC 725
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Explanation: For the purposes of this section and section 4 persons
professing the Buddhist, Sikh or Jaina religion or persons professing
the Hindu religion in any of its forms or developments including
Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana,
Arya Samaj and the Swaminarayan Sampraday shall be deemed
to be Hindus.”
(Emphasis supplied)
Section 4 contains a punishment for enforcing social disability:
“Section 4 - Punishment for enforcing social disabilities:
Whoever on the ground of “untouchability” enforces against any
person any disability with regard to—
(v) the use of, or access to, any place used for a charitable or a
public purpose maintained wholly or partly out of State funds or
dedicated to the use of the general public or [any section
thereof]; or
(x) the observance of any social or religious custom, usage or
ceremony or [taking part in, or taking out, any religious,
social or cultural procession]; or
[Explanation.—For the purposes of this section, “enforcement of
any disability” includes any discrimination on the ground of
“untouchability”.].”
   (Emphasis supplied)
Section 7 provides for punishment for other offences arising out
of untouchability. Section 7(1)(c) criminalises the encouragement and
incitement to the practice of untouchability in “any form whatsoever”.
Explanation II stipulates that:
“[Explanation II.—For the purpose of clause (c) a person shall be
deemed to
incite or encourage the practice of “untouchability”—
(i) if he, directly or indirectly, preaches “untouchability” or its
practice in any form; or
(ii) if he justifies, whether on historical, philosophical or
religious grounds or on the ground of any tradition of
the caste system or on any other ground, the practice of
“untouchability” in any form.]”
 (Emphasis supplied)
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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“Untouchability” as such is not defined. Hence, a reference to
“untouchability” must be construed in the context of the provisions of
the Civil Rights Act to include social exclusions based on notions of
“purity and pollution”. In the context of political freedom, Articles 14, 19
and 21 represent as it were, a golden triangle of liberty. On a different
plane, in facing up to the struggle against exclusion or discrimination in
public places of worship, Articles 15(2)(b), 17 and 25(2)(b) constitute
the foundation. The guarantee against social exclusion based on notions
of “purity and pollution” is an acknowledgment of the inalienable dignity
of every individual. Dignity as a facet of Article 21 is firmly entrenched
after the decision of nine Judges in K S Puttaswamy v Union of India
(“Puttaswamy”)112.
81. The caste system has been powered by specific forms of
subjugation of women.113 The notion of “purity and pollution” stigmatizes
the menstruation of women in Indian society. In the ancient religious
texts114 and customs, menstruating women have been considered as
polluting the surroundings. Irrespective of the status of a woman,
menstruation has been equated with impurity, and the idea of impurity is
then used to justify their exclusion from key social activities.
Our 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
 112 (2017) 10 SCC 1
 113 In his 1916 paper, “Castes in India: Their Mechanism, Genesis and Development”,
Dr Ambedkar speaks about the practice of subjugating and humiliating women for the
purpose of reinforcement of the caste system. He advances that women have been used
as a medium to perpetuate caste system by citing the specific examples of Sati (the
practice of burning of the widow on the funeral pyre of her deceased husband), enforced
widowhood by which a widow is not allowed to remarry, and pre-pubertal marriage of
girls. He believed that the caste-gender nexus was the main culprit behind the oppression
of the lower castes and women and that it had to be uprooted. SeeDr. Babasaheb
Ambedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra
(2014), Vol. 1, at pages 3-22
 114 Manusmriti
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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
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 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.
82. 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”.
J The ultra vires doctrine
83. Section 2 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act 1965 provides thus:
“2. Definitions – In this Act, unless the context otherwise requires,-
(a) “Hindu” includes a person professing the Buddhist, Sikh or
Jaina religion;
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(b) “place of public worship” means a place, by whatever name
known or to whomsoever belonging, which is dedicated to, or for
the benefit of, or is used generally by, Hindus or any section or
class thereof, for the performance of any religious service or for
offering prayers therein, and includes all lands and subsidiary
shrines, mutts, devasthanams, namaskara mandapams and
nalambalams, appurtenant or attached to any such place, and also
any sacred tanks, wells, springs and water courses the waters of
which are worshipped or are used for bathing or for worship, but
does not include a “sreekoil”;
(c) “section or class”includes any division, sub-division, caste, sub-
caste, sect or denomination whatsoever.”
Section 2(c) provides an inclusive definition of the expression
“section or class”. As a principle of statutory interpretation, the term
“includes” is used to expand the scope of the words or phrases which
accompany. When “includes” is employed in a definition clause, the
expression must be given a broad interpretation to give effect to the
legislative intent. “Includes” indicates that the definition must not be
restricted.
84. In Ardeshir H Bhiwandiwala v State of Bombay,115 a
Constitution Bench of this Court considered whether the Petitioner’s
salt works could be included within the definition of ‘factory’ in Section
2(m) of the Factories Act, 1948. Section 2(m) defines ‘factory’ as “any
premises including the
precincts thereof”. This Court rejected the
appellant’s claim that the salt works could not have precincts, being
open lands and not premises:
“6.The expression “premises including precincts” does not
necessarily mean that the premises must always have precincts.
Even buildings need not have any precincts. The word
“including” is not a term restricting the meaning of the
word “premises” but is a term which enlarges the scope of
the word “premises”. We are therefore of opinion that even
this contention is not sound and does not lead to the only conclusion
that the word “premises” must be restricted to mean buildings
and be not taken to cover open land as well.”
(Emphasis supplied)
 115 (1961) 3 SCR 592
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In CIT v Taj Mahal Hotel, Secunderabad116 a two judge Bench
of this Court considered whether sanitary and pipeline fittings would fall
within the definition of ‘plant’ under Section 10(5) of the Income Tax
Act, 1922. Section 10(5) of the Act provided inter alia that in Section
10(2) the word “plant” includes “vehicles, books, scientific apparatus
and surgical equipment purchased for the purpose of the business,
profession or vocation”. While answering the above question in the
affirmative, this Court held that:
“6.The word “includes” is often used in interpretation
clauses in order to enlarge the meaning of the words or
phrases occurring in the body of the statute. When it is so
used, those words and phrases must be construed as
comprehending not only such things as they signify according to
their nature and import but also those things which the interpretation
clause declares that they shall include.”117 (Emphasis supplied)
In Geeta Enterprises v State of U P,118 a three judge Bench of
this Court considered whether Section 2(3) of the United Provinces
Entertainment and Betting Tax Act, 1937 which provided that
“entertainment includes any exhibitional performance, amusement, game
or sport to which persons are admitted for payment”, would include
video shows which were being played on video machines at the premises
of the Petitioner. Affirming the above position, this Court cited with
approval, the following
interpretation of the word “includes” by the
Allahabad High Court in Gopal Krishna Agrawal v State of U P119:
“The context in which the word ‘includes’ has been used in the
definition clauses of the Act does not indicate that the legislature
intended to put a restriction or a limitation on words like
‘entertainment’ or ‘admission to an entertainment’ or ‘payment
for admission’.”
The same view was expressed by a three judge Bench in Regional
Director, ESIC v High Land Coffee Works of P.F.X. Saldanha &
Sons120.
 116 (1971) 3 SCC 550
117 Ibid, at pages 552-553
 118 (1983) 4 SCC 202
 119 (1982) All. L.J. 607
 120 (1991) 3 SCC 617
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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85. The use of the term ‘includes’ in Section 2(c) indicates that
the scope of the words ‘section or class’ cannot be confined only to
‘division’, ‘sub-division’, ‘caste’, ‘sub-caste’, ‘sect’ or ‘denomination’.
‘Section or class’, would be susceptible to a broad interpretation that
includes ‘women’ within its ambit. Section 2(b) uses the expression
“Hindus or any section or class thereof”. Plainly, individuals who profess
and practise the faith are Hindus. Moreover, every section or class of
Hindus is comprehended within the expression. That must necessarily
include women who profess and practise the Hindu religion. The wide
ambit of the expression “section or class” emerges from Section 2(c).
Apart from the inclusive definition, the expression includes any division,
sub-division, caste, sub-caste, sect or denomination whatsoever. Women
constitute a section or class. The expression ‘section or class’ must
receive the meaning which is ascribed to it in common parlance. Hence,
looked at from any perspective, women would be comprehended within
that expression.
The long title of the Act indicates that its object is “to make better
provisions for the entry of all classes and sections of Hindus into places
of public worship”. The long title is a part of the Act and is a permissible
aid to construction.121 The Act was enacted to remedy the restriction on
the right of entry of all Hindus in temples and their right to worship
in
them. The legislation is aimed at bringing about social reform. The
legislature endeavoured to strike at the heart of the social evil of exclusion
and sought to give another layer of recognition and protection to the
fundamental right of every person to freely profess, practice and
propagate religion under Article 25. Inclusion of women in the definition
of ‘section and class’ in Section 2(c) furthers the object of the law, and
recognizes the right of every Hindu to enter and worship in a temple. It
is an attempt to pierce through imaginary social constructs formed around
the practice of worship, whose ultimate effect is exclusion. A just and
proper construction of Section 2(c) requires that women be included
within the definition of ‘section or class’.
86. The notifications dated 21 October 1955 and 27 November
1956 were issued by the Travancore Devaswom Board before the 1965
Act was enacted. The notifications were issued by the Board under
Section 31 of the Travancore-Cochin Hindu Religious Institutions Act
1950 (“1950 Act”). Section 31 of the 1950 Act reads:
 121 Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139
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“Management of Devaswoms.- Subject to the provisions of this
Part and the rules made thereunder the Board shall manage the
properties and affairs of the Devaswoms, both incorporated and
unincorporated, as heretofore, and arrange for the conduct of the
daily worship and ceremonies and of the festivals in every temple
according to its usage.”
Both the notifications dated 21 October 1955 and 27 November
1956 have the same effect, which is the total prohibition on the entry of
women between the ages of ten and fifty into the Sabarimala temple.
According to the notifications, the entry of women between the ages of
ten and fifty is in contravention of the customs and practice of the temple.
Section 3 throws open places of public worship to all sections and
classes of Hindus:
“3. Places of public worship to be open to all sections and classes
of Hindus –
Notwithstanding anything to the contrary contained in any
other law for the time being in force or any custom or usage
or any instrument having effect by virtue of any such law or
any decree or order of court, every place of public worship which
is open to Hindus generally or to any section or class thereof,
shall be open to all sections and classes of Hindus; and no Hindu
of whatsoever section or class shall, in any manner, be prevented,
obstructed or discouraged from entering such place of public
worship, or from worshipping or offering prayers thereat, or
performing any religious service therein, in the like manner and to
the like extent as any other Hindu of whatsoever section or class
may so enter, worship, pray or perform:
Provided that in the case of a place of public worship which is a
temple founded for the benefit of any religious denomination or
section thereof, the provisions of this section shall be subject to
the right of that religious denomination or section, as the case
may be, to manage its own affairs in matters of religion.”
   (Emphasis supplied)
Section 3 begins with a non-obstante clause, which overrides any
custom or usage or any instrument having effect by virtue of any such
law. Every place of public worship, which is open to Hindus or to any
section or class of Hindus generally, shall be open to all sections and
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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classes of Hindus. No Hindu of any section or class whatsoever, shall
be prevented, obstructed or discouraged from entering a place of public
worship or from worshipping or offering prayers or performing any
religious service in that place of public worship. Hence, all places of
public worship which are open to Hindus or to any section or class of
Hindus generally have to be open to all sections and classes of Hindus
(including women). Hindu women constitute a ‘section or class’ under
Section 2(c).
The proviso to Section 3 creates an exception by providing that if
the place of public worship is a temple which is founded for the benefit
of any religious denomination or section thereof, Section 3 would be
subject to the right of that religious denomination or section to manage
its own affairs in matters of religion. The proviso recognises the
entitlement of a religious denomination to manage its own affairs in
matters of religion. However, the proviso is attracted only if the following
conditions are satisfied:
(i) The place of public worship is a temple; and
(ii) The temple has been founded for the benefit of any religious
denomination or section thereof.
87. We have held that the devotees of Lord Ayyappa do not
constitute a religious denomination and the Sabarimala temple is not a
denominational temple. The proviso 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 which are
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.
88. The next question is whether Rule 3(b) of the 1965 Rules is
ultra vires the 1965 Act. Rule 3 provides:
“The classes of persons mentioned here under shall not be entitled
to offer worship in any place of public worship or bathe in or use
the water of any sacred tank, well, spring or water course
appurtenant to a place of public worship whether situate within or
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outside precincts thereof, or any sacred place including a hill or
hill lock, or a road, street or pathways which is requisite for obtaining
access to the place of public worship-
(a) Persons who are not Hindus.
(b) Women at such time during which they are not by custom
and usage allowed to enter a place of public worship.
(c) Persons under pollution arising out of birth or death in their
families.
(d) Drunken or disorderly persons.
(e) Persons suffering from any loathsome or contagious disease.
(f) Persons of unsound mind except when taken for worship under
proper control and with the permission of the executive authority
of the place of public worship concerned.
(g) Professional beggars when their entry is solely for the purpose
of begging.”
(Emphasis supplied)
By Rule 3(b), women are not allowed to offer worship in any
place of public worship including a hill, hillock or a road leading to a
place of public worship or entry into places of public worship at such
time, if they are, by custom or usage not allowed to enter such place of
public worship.
Section 4 provides thus:
“4. Power to make regulations for the maintenance of order and
decorum and the due performance of rites and ceremonies in
places of public worship –
(1) The trustee or any other person in charge of any place of
public worship shall have power, subject to the control of the
competent authority and any rules which may be made by that
authority, to make regulations for the maintenance of order and
decorum in the place of public worship and the due observance of
the religious rites and ceremonies performed therein:
Provided that no regulation made under this sub-section shall
discriminate in any manner whatsoever, against any Hindu on the
ground that he belongs to a particular section or class.
[DR. DHANANJAYA Y CHANDRACHUD, J.]