# INDIAN YOUNG LAWYERS ASSOCIATION & ORS v. THE STATE OF KERALA & ORS

- **Citation:** [2018] 9 S.C.R. 561
- **Court:** Supreme Court of India
- **Decided:** 2018-09-28
- **Bench:** Dipak Misra, R. F. Nariman, A. M. Khanwilkar, Dr. D. Y. Chandrachud, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-young-lawyers-association-ors-v-the-state-of-kerala-ors-33081
- **Pages:** 338

## Headnote

Constitution of India:
Arts. 25, 26 and 15 -Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 - ss. 3, 4 - Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules, 1965 - r. 3(b) -
Sabarimala temple wherein idol of Lord Ayyappa installed - r 3(b)
protecting custom and usage which prohibit entry of women between
the age of 10 to 50 years to Sabrimala temple, based upon a
biological ground of menstruation - Validity of - Held: (Per Dipak
Misra, CJI) s. 3 being a non-obstante clause stipulates that every
place of public worship shall be open to all classes and sections of
Hindus, women being one of them, irrespective of any custom or
usage to the contrary - Language of both the s. 3 and the proviso
to s. 4(1) clearly indicate that custom and usage must make space
to the rights of all sections and classes of Hindus to offer prayers
at places of public worship - Any interpretation to the contrary
would annihilate the purpose of the 1965 Act and incrementally
impair the fundamental right to practise religion guaranteed u/Art.
25(1) - Thus, r. 3(b) is ultra vires the 1965 Act - Rule 3(b) is also
ultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates an
exception to the effect that the regulations/rules made u/s. 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu on
the ground that he/she belongs to a particular section or class -
Said practise is violative of the fundamental right of Hindu women
to freely practise their religion under Art. 25(1) and exhibit their
devotion towards Lord Ayyappa - This denial denudes them of their
right to worship - Held: (Per Nariman, J.) Custom or usage of
prohibiting women between the ages of 10 to 50 years from entering
the Sabarimala temple is violative of Art. 25(1), and violative of the
A
B
C
D
E
F
G
H
562
SUPREME COURT REPORTS
[2018] 9 S.C.R.
1965 Act - r. 3(b) whereby women by custom and usage are not
allowed to enter a place of public worship, is unconstitutional being
violative of Art. 25(1) and Art. 15(1) - Practice or usage of keeping
out women is violative of s. 3 and is struck down - Since proviso to
the Section is not attracted on the facts of the case, and since the
said Act is clearly a measure enacted u/Art. 25(2)(b), any religious
right claimed on the basis of custom and usage as an essential matter
of religious practice u/Art. 25(1), will be subject to the law made u/
Art. 25(2)(b) - Held: (Per Chandrachud, J.) Notifications issued
by the Devaswom Board, prohibiting the entry of women between
the ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and are
even otherwise unconstitutional - Hindu women constitute a 'section
or class' of Hindus u/s. 2 - Rule 3(b) of enforces a custom contrary
to s. 3, which directly offends the right of temple entry established
by s. 3, thus, is ultra vires the 1965 Act - Claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
and equality - Exclusionary practices are contrary to constitutional
morality - Practice of excluding women from the temple at
Sabarimala is not an essential religious practice - Social exclusion
of women, based on menstrual status, is a form of untouchability
which is an anathema to constitutional values - Held: (Per Indu
Malhotra J.: Dissenting) Denial of entry of women in the age group
of 10 to 50 years in Sabarimala temple is not violative of Art. 14 -
Sabarimala temple constitutes a religious denomination - Practise
of restricting entry of women between the age group of 10 to 50
years is an essential religious practise of the devotees of Lord
Ayyappa at Sabarimala Temple - r.3(b) is a statutory recognition of
a pre-existing custom and usage being followed by this Temple - r.
3(b) is within the ambit of the proviso to s. 3.
Art. 26 - Religious denomination - Determination of -
Devotees of Lord Ayyappa, if constitute a religious denomination -

## Text

_Characters 0–39,771 of 798,518. This is a partial read: ask again with offset=39771 for what follows._

A
B
C
D
E
F
G
H
561
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
561
[2018] 9 S.C.R. 561
INDIAN YOUNG LAWYERS ASSOCIATION & ORS.
v.
THE STATE OF KERALA & ORS.
(Writ Petition (Civil) No. 373 of 2006)
SEPTEMBER 28, 2018
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Constitution of India:
Arts. 25, 26 and 15 -Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 - ss. 3, 4 - Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules, 1965 - r. 3(b) -
Sabarimala temple wherein idol of Lord Ayyappa installed - r 3(b)
protecting custom and usage which prohibit entry of women between
the age of 10 to 50 years to Sabrimala temple, based upon a
biological ground of menstruation - Validity of - Held: (Per Dipak
Misra, CJI) s. 3 being a non-obstante clause stipulates that every
place of public worship shall be open to all classes and sections of
Hindus, women being one of them, irrespective of any custom or
usage to the contrary - Language of both the s. 3 and the proviso
to s. 4(1) clearly indicate that custom and usage must make space
to the rights of all sections and classes of Hindus to offer prayers
at places of public worship - Any interpretation to the contrary
would annihilate the purpose of the 1965 Act and incrementally
impair the fundamental right to practise religion guaranteed u/Art.
25(1) - Thus, r. 3(b) is ultra vires the 1965 Act - Rule 3(b) is also
ultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates an
exception to the effect that the regulations/rules made u/s. 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu on
the ground that he/she belongs to a particular section or class -
Said practise is violative of the fundamental right of Hindu women
to freely practise their religion under Art. 25(1) and exhibit their
devotion towards Lord Ayyappa - This denial denudes them of their
right to worship - Held: (Per Nariman, J.) Custom or usage of
prohibiting women between the ages of 10 to 50 years from entering
the Sabarimala temple is violative of Art. 25(1), and violative of the
A
B
C
D
E
F
G
H
562
SUPREME COURT REPORTS
[2018] 9 S.C.R.
1965 Act - r. 3(b) whereby women by custom and usage are not
allowed to enter a place of public worship, is unconstitutional being
violative of Art. 25(1) and Art. 15(1) - Practice or usage of keeping
out women is violative of s. 3 and is struck down - Since proviso to
the Section is not attracted on the facts of the case, and since the
said Act is clearly a measure enacted u/Art. 25(2)(b), any religious
right claimed on the basis of custom and usage as an essential matter
of religious practice u/Art. 25(1), will be subject to the law made u/
Art. 25(2)(b) - Held: (Per Chandrachud, J.) Notifications issued
by the Devaswom Board, prohibiting the entry of women between
the ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and are
even otherwise unconstitutional - Hindu women constitute a 'section
or class' of Hindus u/s. 2 - Rule 3(b) of enforces a custom contrary
to s. 3, which directly offends the right of temple entry established
by s. 3, thus, is ultra vires the 1965 Act - Claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
and equality - Exclusionary practices are contrary to constitutional
morality - Practice of excluding women from the temple at
Sabarimala is not an essential religious practice - Social exclusion
of women, based on menstrual status, is a form of untouchability
which is an anathema to constitutional values - Held: (Per Indu
Malhotra J.: Dissenting) Denial of entry of women in the age group
of 10 to 50 years in Sabarimala temple is not violative of Art. 14 -
Sabarimala temple constitutes a religious denomination - Practise
of restricting entry of women between the age group of 10 to 50
years is an essential religious practise of the devotees of Lord
Ayyappa at Sabarimala Temple - r.3(b) is a statutory recognition of
a pre-existing custom and usage being followed by this Temple - r.
3(b) is within the ambit of the proviso to s. 3.
Art. 26 - Religious denomination - Determination of -
Devotees of Lord Ayyappa, if constitute a religious denomination -
Held: (Per Dipak Misra, CJI) Devotees of Lord Ayyappa do not
have an identified group or sect - They do not have common
religious tenets peculiar to themselves, which they regard as
conducive to their spiritual well-being, other than those which are
common to the Hindu religion - Thus, the devotees of Lord Ayyappa
are exclusively Hindus and do not constitute a separate religious
A
B
C
D
E
F
G
H
563
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
denomination - Held: (Per Nariman, J.) There is no distinctive name
given to the worshippers of Sabrimala temple; there is no common
faith in the sense of a belief common to a particular religion or
section thereof; or common organization of the worshippers of the
Sabarimala temple so as to constitute the said temple into a religious
denomination - Also, there are over a thousand other Ayyappa
temples in which the deity is worshipped by practicing Hindus of
all kinds - Thus, Article 26 not attracted - (Per Chandrachud, J.)
Worship of the presiding deity is not confined to adherents of a
particular religion - Practices associated with the forms of worship
do not constitute the devotees into a religious denomination -
Considering the inability of the collective of individuals to satisfy
the judicially-enunciated requirements, the set of individuals who
refer to themselves as "Ayyappans" or devotees of Lord Ayyappa
as a 'religious denomination' cannot be recognized - Held: (Per
Indu Malhotra J.: Dissenting) If there are clear attributes that there
exists a sect, which is identifiable as being distinct by its beliefs and
practices, and having a collection of followers who follow the same
faith, it would be identifiable as a religious denomination - On
facts, respondents have made out a strong and plausible case that
the worshippers of the Sabarimala Temple have the attributes of a
religious denomination, or sect thereof.
Arts. 25 and 26 - Essential Religious Practices under Art. 25
- Determination of - Practice of exclusion of women of the age
group of 10 to 50 years being followed at the Sabarimala Temple -
Held: (Per Dipak Misra, CJI) There seems to be no continuity in
the exclusionary practice followed at the Sabarimala temple and
thus, it cannot be treated as an essential practice - On the contrary,
it is an essential part of the Hindu religion to allow Hindu women to
enter into a temple as devotees and followers of Hindu religion and
offer their prayers to the deity - Moreso, in the absence of any
scriptural or textual evidence, the exclusionary practice followed
at the Sabarimala temple, cannot be accorded the status of an
essential practice of Hindu religion - By allowing women to enter
into the Sabarimala temple for offering prayers, it cannot be
imagined that the nature of Hindu religion would be fundamentally
altered or changed in any manner - Held: (Per Nariman, J.) Only
the essential part of religion, as distinguished from secular activities,
A
B
C
D
E
F
G
H
564
SUPREME COURT REPORTS
[2018] 9 S.C.R.
is the subject matter of the fundamental right - Matters essential to
religious faith and/or belief are to be judged on evidence before a
court of law by what the community professing the religion itself
has to say as to the essentiality of such belief - One test would be to
remove the particular belief stated to be an essential belief from the
religion, would the religion remain the same or would it be altered -
In case religious activities are mixed up with secular activities, the
dominant nature of activity test is to be applied - Court to take a
common sense view and be actuated by considerations of practical
necessity - Held: (Per Chandrachud, J.) In determining the
essentiality of a practice, it is to be considered whether the practice
is prescribed to be of an obligatory nature - If a practice is optional,
it cannot be said to be 'essential' to a religion - If there is a
fundamental change in the character of the religion, only then can
such a practice be claimed to be an 'essential' part of that religion
- Texts and tenets do not indicate that the practice of excluding
women is an essential part of the religion - Practice of excluding
women is not uniform and militates against a claim that such practice
is obligatory - Hence, no fundamental change in character of
religion - Essential religious practices test enables the Court to
adopt a reformist vision of religion even though it may conflict with
the views held by the religion - Competence of the Court to do so
and the legitimacy of the assumption of that role may be questionable
- Test merits a closer look in future - Held: (Per Indu Malhotra J.:
Dissenting) 'Essential practises test' have to be determined by the
tenets of the religion itself - Practises followed since time immemorial,
which may have been scripted in the religious texts of this temple,
are to be regarded as "essential", and afforded protection u/Art.
25 - Thus, the practise of restricting entry of women between the
age group of 10 to 50 years is an essential religious practise of the
devotees of Lord Ayyappa at Sabarimala Temple.
Art. 25(1) - Expression 'all persons under' - Meaning of -
Held:(Per Dipak Misra, CJI) Expression 'all persons', demonstrates
that the freedom of conscience and the right to freely profess, practise
and propagate religion is available, though subject to the restrictions
delineated in Art. 25(1) itself, to every person including women -
Rights guaranteed u/Art. 25(1) has nothing to do with gender -
Held: (Per Nariman, J.) Art. 25 recognises a fundamental right in
favour of "all persons" which has reference to natural persons -
A
B
C
D
E
F
G
H
565
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
Every member of a religious community has a right to practice the
religion so long as he does not, in any way, interfere with the
corresponding right of his co-religionists to do the same.
Art. 25(1) - Expression - Held: (Per Chandrachud, J.] 'all
persons under' - By all persons, the Constitution means that every
individual in society without distinction of any kind is entitled to a
freedom of conscience and to freely profess, protect and propogate
religion - Three defining features of clause (1) of Article 25 are,
first, the entitlement of all persons without exception; second, the
recognition of an equal entitlement; and third, the recognition both
of the freedom of conscience and the right freely to profess, practice
and propogate religion.
Art. 17 - Untouchability- Denial of entry to women in the
age group of 10 to 50 in the Ayyappa temple at Sabarimala, if a
manifestation of "untouchability" and thus, violative of Art. 17 -
Held: (Per Chandrachud, J.) Art. 17 prohibits the practice of
"untouchability", which is based on notions of purity and impurity,
"in any form" - Notions of "purity and pollution", which stigmatize
individuals, can have no place in a constitutional regime - Prejudice
against women based on notions of impurity and pollution
associated with menstruation is a symbol of social exclusion - It is
a form of untouchability which is an anathema to constitutional
values - Held: (Per Indu Malhotra J.: Dissenting) Limited
restriction on the entry of women during the notified age-group
does not fall within the purview of Art. 17 - Art. 17 refers to practice
of untouchability as committed in the Hindu community against
Harijans or people from depressed classes, and not women -
Restriction on women within a certain age-band, is based upon the
historical origin and beliefs and practices of the sabrimala temple,
on the unique characteristic of the deity, and not founded on any
social exclusion - Women of the notified age group are allowed
entry into all other temples of Lord Ayyappa.
Art. 25(1) - Term 'morality' in Art. 25(1) - Held: (Per Dipak
Misra, CJI) Cannot be viewed with a narrow lens so as to confine
the sphere of definition of morality to what an individual, a section
or religious sect may perceive the term to mean - Since the
Constitution has been adopted and given by the people of this
country to themselves, the term public morality in Art. 25 has to be
appositely understood as being synonymous with constitutional
A
B
C
D
E
F
G
H
566
SUPREME COURT REPORTS
[2018] 9 S.C.R.
morality - Notions of public order, morality and health cannot be
used as colourable device to restrict the freedom to freely practise
religion and discriminate against women of the age group of 10 to
50 years by denying them their legal right to enter and offer their
prayers at the Sabarimala Temple.
Art. 25(1) - Term 'morality' - Held: (Per Chandrachud, J.)
Popular notions about what is or is not moral may in fact be deeply
offensive to individual dignity and human rights - Individual dignity
cannot be allowed to be subordinate to the morality of the mob and
should not vary in accordance with the popular fashions of the day
- Overarching sense of constitutional morality with the quest for
human dignity, liberty and equality must prevail.
Arts. 25(2)(b) and 26(b) - Right to manage its own affairs in
matters of religion under Art. 26 - Held: (Per Nariman, J.) Right
granted u/Art. 26 to be harmoniously construed with Art. 25(2)(b)
- Right to manage its own affairs in matters of religion granted by
Art. 26(b), to be subject to laws made u/Art. 25(2)(b) which throw
open religious institutions of a public character to all classes and
sections of Hindus - Thus, even though the entry of persons into a
Hindu temple of a public character would pertain to management
of its own affairs in matters of religion, yet such temple entry would
be subject to a law throwing open a Hindu religious institution of a
public character owned and managed by a religious denomination
or section thereof to all classes or sections of Hindus - However,
religious practices by the religious denomination or section thereof,
which do not have the effect of either a complete ban on temple
entry of certain persons, or are otherwise not discriminatory, may
pass muster u/Art. 26(b).
Art. 25(2)(b) and 26(b) - Right to manage its own affairs in
matters of religion u/Art. 26 - Held: (Per Chandrachud, J.) Absence
of a clause of subjection in Article 26 does not lead to the conclusion
that the freedom of a religious denomination exists as a discrete
element, divorced from the others freedoms - Article 26 is one among
a large cluster of freedoms which the Constitution has envisaged as
intrinsic to human liberty and dignity - Freedom of religious
denominations under Article 26 must be read in a manner which
preserves equally, other individual freedoms - Dignity of women
which an emanation of Article 15 and a reflection of Article 21
A
B
C
D
E
F
G
H
567
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
cannot be disassociated from the exercise of religious freedom under
Article 26.
Art. 32 - Writ petition under - Issue that women who happen
to be between the ages of 10 and 50, not allowed entry into the
temple at Sabarimala - Plea raised that that the Court should not
decide this case without any evidence being led on both sides -
Held: (Per Nariman, J.) Evidence is very much there, in the form of
the writ petition and the affidavits filed in the writ petition by the
petitioners as well as by the Board, and by the Thanthri - Writ petition
filed is itself not merely a pleading, but also evidence in the form of
affidavits that are sworn.
Arts. 25 and 26 - Engagement of essential religious practices
with constitutional values - Exclusion of women between the age
group ten and fifty from the Sabarimala temple - Held: (Per
Chandrachud, J.) Exclusion is destructive of dignity - To exclude a
woman from the might of worship is fundamentally at odds with
constitutional values - Physiological features of a woman have no
significance to her equal entitlements under the Constitution -
Menstrual status of a woman cannot be a valid constitutional basis
to deny her the dignity of being and the autonomy of personhood -
Menstrual status of a woman is deeply personal and an intrinsic
part of her privacy - Constitution must treat it as a feature on the
basis of which no exclusion can be practised and no denial can be
perpetrated.
Art. 13 - Term 'laws in force' - Custom or usage if falls within
the ambit of 'laws in force' u/Art.13(1) - Plea that the exclusion of
women from the Sabarimala temple constitutes a custom, independent
of the Act and the 1965 Rules - Held: (Per Chandrachud, J.) Carving
out 'custom or usage' from constitutional scrutiny, denies the
constitutional vision of ensuring the primacy of individual dignity
- Decision in Narasu case that custom or usage not included in the
ambit of laws in force, is based on flawed premises - Custom or
usage cannot be excluded from 'laws in force'- Decision in Narasu
case, in immunizing uncodified personal law and construing the
same as distinct from custom, overlooked the wide ambit that was to
be attributed to the term 'laws in force'.
Arts. 25 and 26 - Deity as a bearer of constitutional rights -
Held: (Per Chandrachud, J.) Word 'persons' in certain statutes have
A
B
C
D
E
F
G
H
568
SUPREME COURT REPORTS
[2018] 9 S.C.R.
been interpreted to include idols - Merely because a deity has been
granted limited rights as juristic persons under statutory law does
not mean that the deity necessarily has constitutional rights - Deity
may be a juristic person for the purposes of religious law and
capable of asserting property rights - However, deity is not a
'person' for the purpose of Part III.
Arts. 32, 25 and 14 - PIL filed challenging the practise of
restricting the entry of women in the age group of 10 to 50 years in
the Sabarimala Temple - Maintainability and justiciability of - Held:
(Per Indu Malhotra J.: Dissenting) Right to move the Supreme
Court u/Art. 32 for violation of fundamental rights, must be based
on a pleading that the petitioners' personal rights to worship in this
Temple have been violated - This is an essential requirement to
maintain the challenge - Courts normally do not delve into issues
of religious practises, especially in the absence of an aggrieved
person from that particular religious faith, or sect - In matters of
religion and religious practises, Art. 14 can be invoked only by
persons who are similarly situated, that is, persons belonging to the
same faith, creed, or sect - Petitioners-association/Intervenors do
not claim to be devotees of Lord Ayyappa in the Sabarimala Temple,
who are aggrieved by the practises followed in the Sabarimala
Temple.
Art. 14 - Matters of religion and religious practice -
Applicability of Art. 14 - Denial of entry to women in age group of
10 to 50 years in Sabrimala temple - Held: (Per Indu Malhotra J.:
Dissenting) Is not violative of Art. 14 - Religious customs and
practises cannot be solely tested on the touchstone of Article 14
and the principles of rationality embedded therein - Religious
community is to decide as to what constitutes essential religious
practice - Equality in matters of religion to be viewed in the context
of the worshippers of the same faith - It is not for the courts to
determine which of these practises of a faith are to be struck down,
except if they are pernicious, oppressive, or a social evil - Right to
gender equality to offer worship to Lord Ayyappa is protected by
permitting women of all ages, to visit temples where he has not
manifested himself in the form of a 'Naishtik Brahamachari', and
there is no similar restriction in those temples.
Art. 15 - Prohibition of discrimination on grounds of religion,
A
B
C
D
E
F
G
H
569
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
race, caste or sex - Applicability of Art. 15 - Submission that
Sabrimala temple would be included in phrase 'places of public
resort - Held: (Per Indu Malhotra J.: Dissenting) Cannot be
accepted - Conscious decision by the Constituent Assembly not to
include 'places of worship' or 'temples' within the ambit of draft
Article 9, to be given due consideration.
Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965:
r.3(b) - Kerala Hindu Places of Public Worship (Authorisation
of Entry) Act 1965 - s. 3 - r. 3(b) whereby women by custom and
usage not allowed to enter a place of public worship - r. 3(b) if
ultra vires s. 3 of the 1965 Act, whereby places of worship to be
open to all section and classes of Hindus - Held: (Per Dipak Misra,
CJI) r. 3(b) is ultra vires the 1965 Act - Rule 3(b) is also ultra vires
s. 4 of the 1965 Act - Held: (Per Nariman, J.) Rule 3(b) is ultra
vires of s. 3 of the 1965 Act, and is hit by Art. 25(1) and by Art.15(1)
as this Rule discriminates against women on the basis of their sex
only - Held: (Per Chandrachud, J.) Term 'includes' in s.2(c) has to
be given a broad interpretation - The expression 'section or class'
includes women - Proviso to s.3 creates an exception - Lord Ayyappa
do not constitute a religious denomination and the Sabrimala temple
is not a denominational temple - Hence, notifications issued by the
Board prohibiting the entry of woman between ages ten and
fifty-five, are ultra vires s.3 - Rule 3(b) gives precedence to customs
and usages which allow the exclusion of women "at such time during
which they are not allowed to enter a place of public worship" - In
laying down such a prescription, Rule 3(b) directly offends the right
of temple entry established by Section 3, thus, r. 3(b) is ultra vires
the Act - Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is not
ultra vires s. 3 of the 1965 Act, since the proviso carves out an
exception in the case of public worship in a temple for the benefit
of any religious denomination or sect thereof, to manage their
affairs in matters of religion - Declaration that places of public
worship shall be open to Hindus of all sections and classes is not
absolute, but subject to the right of a religious denomination to
"manage its own affairs in matters of religion" - r.3(b) is a statutory
recognition of a pre-existing custom and usage being followed by
this Temple - r. 3(b) is within the ambit of the proviso to s. 3.
A
B
C
D
E
F
G
H
570
SUPREME COURT REPORTS
[2018] 9 S.C.R.
r. 3(b) whereby women not allowed to enter a place of worship
- Challenged to, as being violative of constitutional morality - Held:
(Per Indu Malhotra J.: Dissenting) Constitutional Morality in a
pluralistic society and secular polity would reflect that the followers
of various sects have the freedom to practise their faith in
accordance with the tenets of their religion - Equality and nondiscrimination are facet of Constitutional Morality, which cannot
be viewed in isolation - Balance is to be struck between the
principles of equality and non-discrimination on the one hand, and
the protection of the cherished liberties of faith, belief, and worship
guaranteed by Arts 25 and 26 to persons belonging to all religions
in a secular polity, on the other hand - Constitutional morality
requires the harmonisation or balancing of all such rights, to ensure
that the religious beliefs of none are obliterated or undermined - It
is the Constitutional duty of the Court to harmonise these rights.
Judicial Review: Matters concerning religion and religious
practice under the secular constitutional set up - Role of courts -
Held: (Per Indu Malhotra J.: Dissenting) Is to afford protection u/
Art. 25(1) to those practises which are regarded as "essential" or
"integral" by the devotees, or the religious community itself - Art.
25(2)(b) permits the State to redress social inequalities and injustices
by framing legislation -Art. 25(2) permits State made law on the
grounds specified therein, and not judicial intervention - On facts,
practice of exclusion of women of the age group of 10 to 50 years
being followed at the Sabrimala temple are considered to be essential
or integral to that Temple - Any interference with the same would
conflict with their right guaranteed by Art. 25(1) to worship Lord
Ayyappa in the form of a 'Naishtik Brahmachari' - Judicial review
of religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form of
worship of a deity - Doing so would negate the freedom to practise
one's religion according to one's faith and beliefs - It would amount
to rationalising religion, faith and beliefs, which is outside the ken
of the courts.
Allowing the Writ Petition, the Court
HELD: Per Dipak Misra CJI (for himself and Khanwilkar
J.):
Followers of Lord Ayyappa do not constitute a religious
A
B
C
D
E
F
G
H
571
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
denomination:
1.1 In view of the law laid down by this Court in Shirur
Mutt's case and S.P. Mittal's case, the devotees of Lord Ayyappa
do not constitute a separate religious denomination. They do not
have common religious tenets peculiar to themselves, which they
regard as conducive to their spiritual well-being, other than those
which are common to the Hindu religion. Therefore, the devotees
of Lord Ayyappa are exclusively Hindus and do not constitute a
separate religious denomination. [Para 144 (i)][673-D-E]
1.2 For any religious mutt, sect, body, sub-sect or any
section thereof to be designated as a religious denomination, it
must be a collection of individuals having a collective common
faith, a common organization which adheres to the said common
faith, and last but not the least, the said collection of individuals
must be labeled, branded and identified by a distinct name. The
most important condition for a religious denomination, i.e., the
collection of individuals ought to have a system of beliefs or
doctrines which they regard as conducive to their spiritual wellbeing. For a religious denomination, there must be new
methodology provided for a religion. Mere observance of certain
practices, even though from a long time, does not make it a
distinct religion on that account. [Paras 94, 96][655-E-F; 656-A-C]
1.3 The submission that the pilgrims coming to visit the
Sabarimala temple being devotees of Lord Ayyappa are addressed
as Ayyappans and, therefore, the third condition for a religious
denomination stands satisfied, is unacceptable. There is no
identified group called Ayyappans. Every Hindu devotee can go
to the temple. There are other temples for Lord Ayyappa and
there is no such prohibition. Therefore, there is no identified
sect. Thus, the Sabarimala temple is a public religious endowment
and there are no exclusive identified followers of the cult. [Para
95][655-F-H]
S.P. Mittal v. Union of India and others (1983) 1 SCC
51 : [1983] 1 SCR 729; The Commissioner Hindu
Religious Endowments, Madras v. Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005
- relied on.
A
B
C
D
E
F
G
H
572
SUPREME COURT REPORTS
[2018] 9 S.C.R.
Nallor Marthandam
Vellalar
and others
v.
Commissioner, Hindu Religious and Charitable
Endowment and others (2003) 10 SCC 712 : [2003]
1 Suppl. SCR 920 - referred to.
Enforceability of Fundamental Rights u/Art. 25(1) against
the Devaswom Board
2.1 Having stated that the devotees of Lord Ayyappa do
not constitute a religious denomination within the meaning of
Article 26 and that Sabarimala Temple is a public temple by virtue
of the fact that Section 15 of the Travancore Cochin Hindu
Religious Institutions Act, 1950 vests all powers of direction,
control and supervision over it in the Travancore Devaswom
Board which, has been unveiled as 'other authority' within the
meaning of Article 12, resultantly fundamental rights including
those guaranteed under Article 25(1) are enforceable against the
Travancore Devaswom Board and other incorporated Devaswoms
including the Sabarimala Temple. [Para 97][656-D-E]
2.2 Article 25(1), by employing the expression 'all persons',
demonstrates that the freedom of conscience and the right to
freely profess, practise and propagate religion is available, though
subject to the restrictions delineated in Article 25(1) itself, to
every person including women. It needs to be understood that
the kernel of Article 26 is 'establishment of a religious institution'
so as to acclaim the status of religious denomination. Whereas,
Article 25(1) guarantees the right to practise religion to every
individual and the act of practice is concerned, primarily, with
religious worship, rituals. The right guaranteed under Article
25(1) has nothing to do with gender or, for that matter, certain
physiological factors, specifically attributable to women. Women
of any age group have as much a right as men to visit and enter a
temple in order to freely practise a religion as guaranteed under
Article 25(1). [Paras 98, 99, 100][656-F-H; 657-B]
Rev. Stainislaus v. State of Madhya Pradesh and others
(1977) 1 SCC 677 : [1977] 2 SCR 611; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005 - referred to.
A
B
C
D
E
F
G
H
573
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
2.3 The practice of exclusion of women from entry into
religious places violates the right of women to visit and enter a
temple to freely practise Hindu religion and to exhibit her
devotion towards Lord Ayyappa. The denial of this right to women
significantly denudes them of their right to worship. The right
guaranteed under Article 25(1) is not only about inter-faith parity
but it is also about intra-faith parity. Therefore, the right to practise
religion under Article 25(1), in its broad contour, encompasses a
non-discriminatory right which is equally available to both men
and women of all age groups professing the same religion. [Paras
101][657-C-E]
Nar Hari Shastri and others v. Shri Badrinath Temple
Committee AIR 1952 SC 245 : 1952 SCR 849; Acharya
Jagadishwarananda
Avadhuta
and
others
v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447 - referred to.
2.4 The impugned Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, framed in
pursuance of the 1965 Act, stipulates exclusion of entry of women
of the age group of 10 to 50 years, is a clear violation of the right
of such women to practise their religious belief which, in
consequence, makes their fundamental right under Article 25(1)
a dead letter. It is clear as crystal that as long as the devotees,
irrespective of their gender and/or age group, seeking entry to a
temple of any caste are Hindus, it is their legal right to enter into
a temple and offer prayers. The women, in the case at hand, are
also Hindus and so, there is neither any viable nor any legal
limitation on their right to enter into the Sabarimala Temple as
devotees of Lord Ayyappa and offer their prayers to the deity.
The said rule of exclusion cannot be justified on the ground that
allowing entry to women of the said age group would, in any way,
be harmful or would play a jeopardizing role to public order,
morality, health or, for that matter, any other provision/s of Part
III of the Constitution, for it is to these precepts that the right
guaranteed under Article 25(1) has been made subject to. [Paras
104, 105][658-F-H; 659-A-B]
2.5 The term 'morality' occurring in Article 25(1) cannot
be viewed with a narrow lens so as to confine the sphere of
A
B
C
D
E
F
G
H
574
SUPREME COURT REPORTS
[2018] 9 S.C.R.
definition of morality to what an individual, a section or religious
sect may perceive the term to mean. When there is a violation of
the fundamental rights, the term 'morality' naturally implies
constitutional morality and any view that is ultimately taken by
the Constitutional Courts must be in conformity with the principles
and basic tenets of the concept of this constitutional morality that
gets support from the Constitution. [Paras 106][659-C-D]
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965; Government of NCT of Delhi v.
Union of India and others (2018) 8 SCALE 72; Navtej
Singh Johar and others v. Union of India and others
(2018) 10 SCALE 386 - referred to.
2.6 The right guaranteed under Article 25(1) has been made
subject to, by the opening words of the Article itself, public order,
morality, health and other provisions of Part III of the
Constitution. All the three words, that is, order, morality and health
are qualified by the word 'public'. Neither public order nor public
health will be at peril by allowing entry of women devotees of the
age group of 10 to 50 years into the Sabarimala temple for offering
their prayers. As regards public morality, it is made absolutely
clear that since the Constitution was not shoved, by any external
force, upon the people of this country but was rather adopted and
given by the people of this country to themselves, the term public
morality has to be appositely understood as being synonymous
with constitutional morality. The notions of public order, morality
and health cannot be used as colourable device to restrict the
freedom to freely practise religion and discriminate against
women of the age group of 10 to 50 years by denying them their
legal right to enter and offer their prayers at the Sabarimala temple
for the simple reason that public morality must yield to
constitutional morality. [Paras 110, 111][661-A-D]
Whether exclusionary practice is an essential practice as
per Hindu religion
3.1 In no scenario, it can be said that exclusion of women
of any age group could be regarded as an essential practice of
Hindu religion and on the contrary, it is an essential part of the
Hindu religion to allow Hindu women to enter into a temple as
A
B
C
D
E
F
G
H
575
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
devotees and followers of Hindu religion and offer their prayers
to the deity. In the absence of any scriptural or textual evidence,
the exclusionary practice followed at the Sabarimala temple,
cannot be accorded the status of an essential practice of Hindu
religion. By allowing women to enter into the Sabarimala temple
for offering prayers, it cannot be imagined that the nature of Hindu
religion would be fundamentally altered or changed in any manner.
Therefore, the exclusionary practice, which has been given the
backing of a subordinate legislation in the form of Rule 3(b),
framed by the virtue of the 1965 Act, is neither an essential nor
an integral part of the Hindu religion without which Hindu religion,
of which the devotees of Lord Ayyappa are followers, will not
survive. [Paras 122-123][665-D-G]
3.2 Nobody can say that essential part or practice of one's
religion has changed from a particular date or by an event. Such
alterable parts or practices are definitely not the 'core' of religion
where the belief is based and religion is founded upon. It could
only be treated as mere embellishments to the non-essential part
or practices. [Para 124][665-G-H]
3.3 Where a practice changes with the efflux of time, such
a practice cannotbe regarded as a core upon which a religion is
formed. There has to be unhindered continuity in a practice for it
to attain the status of essential practice. It is further discernible
from the judgment of the High Court in S. Mahendran's case that
the Devaswom Board had accepted before the High Court that
female worshippers of the age group of 10 to 50 years used to
visit the temple and conducted poojas in every month for five
days for the first rice feeding ceremony of their children. The
Devaswom Board also took a stand before the High Court that
restriction of entry for women was only during Mandalam,
Makaeavilakku and Vishnu days. The impugned exclusionary
practice in question is a 'custom with some aberrations' as prior
to the passing of the Notification in 1950, women of all age groups
used to visit the Sabarimala temple for the first rice feeding
ceremony of their children. Therefore, there seems to be no
continuity in the exclusionary practice followed at the Sabarimala
temple and in view thereof, it cannot be treated as an essential
practice. [Paras 125, 126][666-A-D]
A
B
C
D
E
F
G
H
576
SUPREME COURT REPORTS
[2018] 9 S.C.R.
3.4 In view of the law laid down by this Court in the second
Ananda Marga case, the exclusionary practice being followed at
the Sabarimala Temple cannot be designated as one, the nonobservance of which will change or alter the nature of Hindu
religion. Besides, the exclusionary practice has not been
observed with unhindered continuity as the Devaswom Board
had accepted before the High Court that female worshippers of
the age group of 10 to 50 years used to visit the temple and
conducted poojas in every month for five days for the first rice
feeding ceremony of their children. [Para 144(viii)][674-F-H]
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019 - relied on.
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993
Kerala 42 - approved.
John Vallamattom and another v. Union of India (2003)
6 SCC 611 : [2003] 1 Suppl. SCR 638; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Mohd. Hanif Quareshi v. State
of Bihar AIR 1958 SC 731 : [1959] SCR 629; State
of West Bengal and others v. Ashutosh Lahiri and others
AIR 1995 SC 464 : [1994] 5 Suppl. SCR 515 ; Durgah
Committee, Ajmer and others v. Syed Hussain Ali and
others AIR 1961 SC 1402 : 1962 SCR 383; N.
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [ 2002] 3 Suppl. SCR 76; Acharya
Jagadishwarananda
Avadhuta
and
others
v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447 - referred to.
Free Church of Scotland v. Overtoun (1904) AC 515 -
referred to.
Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules
4.1 As per Section 2(a) of the 1965 Act, the term 'Hindu'
includes a person professing Buddhist, Sikh or Jaina religion.
A
B
C
D
E
F
G
H
577
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA
The word 'person' occurring therein for the pure and simple
reason of logic, must include all genders.Clause (c) defines
'section or class' as any division, sub-division, caste, sub-caste,
sect or denomination whatsoever. Nowhere the definition of
section or class suggests being limited to male division, subdivision, caste and so forth. [Para 128][666-E; 667-B-C]
4.2 Section 3 of the Act being a non-obstante clause declares
that every place of public worship which is open to Hindus
generally or to any section or class thereof shall be open to all
sections and classes of Hindus and no Hindu, of whatsoever
section or class, shall be prevented, obstructed or discouraged
from entering such place of public worship, or from worshipping,
offering prayers or performing any religious service at such place
of public worship in the like manner and to the like extent as any
other Hindu of whatsoever section or class may so be eligible to
enter, worship, pray or perform. A careful dissection of Section 3
reveals that places of public worship in the State of Kerala,
irrespective of any contrary law, custom, usage or instrument
having effect by virtue of any such law or any decree or order of
Court, shall be open to all sections and classes of Hindus. The
definition of 'section or class' and 'Hindu' has to be imported, for
the purposes of Section 3, from the definition clauses 2(a) and
2(c) which, includes all the genders, provided they are Hindus.
The right provided under Section 3 due to its non-obstante nature
has to be given effect to regardless of any law, custom or usage
to the contrary.