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 Sabarimala temple, based upon abiological ground of menstruation – Validity of – Held: (Per Dipak Misra, CJI) s. 3 being a non-obstante clause stipulates that everyplace 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 prayer sat 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 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 keepingout 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 areeven 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 practises 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 denomination – Held: (Per Nariman, J.) There is no distinctive name given to the worshippers of Sabarimala 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, 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 soand 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 theage group of 10 to 50 years is an essential religious practices 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 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 propagate 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 bothof the freedom of conscience and the right freely to profess, practice and propagate 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 sectionor 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 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, maypass 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 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 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 inthe 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 thisTemple 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 Sabarimala 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 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 sexonly – Held: (Per Chandrachud, J.) Term ‘includes’ in s.2(c) has tobe 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 Sabarimala 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” – Inlaying 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.

r. 3(b) whereby women not allowed to enter a place of worship – Challenged to, as being violative of constitutional morality – Held: (Per Indu Malhotra J.: Dissenting) Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion – Equality and non-discrimination are facet of Constitutional Morality, which cannot be viewed in isolation – Balance is to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Arts 25 and 26 to persons belonging to all religions in a secular polity, on the other hand – Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined – Itis 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 thegrounds 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 Sabarimala 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 kenof the courts.