Judgement Summary

Indian Young Lawyers’ Association (in Re Sabrimala) v State of Kerala

 

Bench- Deepak Mishra CJ, Khanwilkar J., D.Y, Chandrachud J., Nariman J. (Concurring), Indu Malhotra J. (Dissenting)

Issue:

  1. Whether exclusion of women in the menstrual age (biological factor) violates Art. 14, 15 or 17 or protected by “morality” under Art. 25 and 26.
  2. Whether exclusion of woman is an essential religious practice
  3. Whether Ayyapa Temple is a denomination? if it is a denomination can it violates Art. 14, Art. 15, Art .17 despite getting fund from consolidated fund of the state?
  4. Can religious denomination violate Art. 14, Art. 15 and Art. 17 on the ground of sex?
  5. Whether the temple entry Act and rule violative of Part III of the constitution?

Arguments-

  1. Petitioners-
    1. Sabrimala Temple is managed by a Devaswom board. Devaswom board is manned by officials of Devswom Administrative service cadre selected by state public service commission. Hence, there is no distinct religious character.  
    1. The Board is funded from consolidated fund of state of Kerala per Art. 290 A. Hence no discriminatory practice could be allowed.
    1. It is not a separate denomination because neither the religious practices were different and distinct nor was the management different from other Hindu temples. Also, three things must be satisfied for a religious domination
      1. Close bond between the members
      1. Some property owned in succession
      1. Existence of some religious institution

Lord Ayyapa followers do not satisfy the above preconditions. Hence, they are not religious denomination. Some mere difference of rituals from Hindu temples did not grant status of religious institution.

  • As per Shirur Mutt case only the essential religious practices were protected. As per Durgha committee case there are many practices and superstitions which were not essential to religion. Restriction of woman in the temple was not the essence of the religion.
    • The argument that the Lord being a celibate is not convincing reason because, it cannot be construed that mere sight of a woman will not be detrimental to the God’s disposition.
    • As per Venkateswar Devuru v State of Mysore (1958) no religious denomination can prohibit any class or section for all times. All that a religious denomination can do is to restrict a particular class for certain rituals.
    • Section 3 and 4 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 and rules 3(b) made under it used the phrase “at any such time”. This phrase does not mean to exclude all woman at all the time.
    • The female aged between 10 and 50 were excluded to enter the temple. This means a separate classification within a classification. The intelligible differentia exists (i.e menstruating woman are different from other), but this does not have any nexus with the objective to be achieved.
    • As per Shayara Bano (2014) exclusion of woman purely on the basis of physiological characteristics is manifestly arbitrary and fails the test of reasonableness.
    • The exclusion of woman shows negative gender bias (violation of Art. 15) and imposes social stigma on menstruating woman (violation of Art. 17).
    • As per NALSA (2014) and K.S. Puttaswamy (2017) exclusion of woman of a particular age group is below dignity and hence violative of Art. 21.
    • As per S.P. Mittal (1983) a religious denomination has a common faith, common belief system different from others. But Lord Ayyapa followers are Hindus themselves and hence not a separate denomination to have claim of essential religious practice doctrine.
    • Art. 25(2)(b) and Art. 26(b) are not in exclusion from each other. Right to manage own affairs (Art. 26(b)) cannot be in violation of right of woman guaranteed under Art. 25(2)(b). There needs to be a harmonious construction between the two
    • Vishaka judgement says international conventions need to be followed when there is a domestic legislative vacuum. India is a signatory to CEDAW and CEDAW urges states to remove menstrual health related taboos from the society.
  • Respondent –
    • Sabarimala is a religious denomination because of certain characteristics
      • Open only during specific time of the year
      • The Yatra is held with certain rituals

As it is a religious denomination it can manage its own affairs to preserve its own unique characteristics.

  • An essential characteristic of Sabrimala yatra is the “Vrutham”. Vrutham requires a 41 days’ penance. But a woman cannot do the Vhrutham without suffering menstrual cycle. As per Hindu customs, Hindu woman should not participate in religious functions during menstrual cycle period. “Vrutham” is an essentially religious function. Hence, woman cannot be allowed to enter Sabrimala. Vrutham restriction is applicable to male persons also. A man who has birth or death in his family during the time of Vrutham, cannot participate in it. And woman in menopause can take vrutham. Hence prohibition is not a discrimination but an essentially religious ritual.
  • Amicus Curiae-
    • The temple is a public place and temple entry cannot be restricted.
    • Exclusion of woman from entering the temple is violative of her right to worship and hence hit by Art. 25
    • Art. 17 says untouchability of any form. It means, the definition of untouchability is kept as open-ended to prevent any kind of discrimination based on the notion of purity and pollution. Exclusion on the basis of purity and pollution is hit by Art. 17.
    • Exclusion of woman from temple entry means their involuntary disclosure of their menstrual status and thereby hit by Art. 21 (right to privacy violated)
    • Morality is viewed from the perspective of constitution i.e. morality in Art. 25 means constitutional morality. Exclusion of woman from temple entry is a practice and not question of morality. Hence, protection under Art. 25 cannot be extended
    • Exclusion of woman is not essential to the religion of Ayyapa because no scriptural evidence exists. Hence protection under Art. 26 cannot be extended.
    • Lord Ayyapa followers are not a denomination because they failed to discharge the burden of proof of (i) common faith (ii) common organization and (iii)designation by a distinct name. Even if it is a denomination the protection of Art. 26 is extended till constitutional morality allows.
    • Protection under Art. 25 or 26 is not limited to doctrine or belief rather extends to all those rituals used to pursue religion. An essential practice is the one the followers of religion carry out for centuries in the course of their worship
    • Religious practice cannot be construed as being contrary to natural law is not an argument at all because, the natural law principles are violated, if at all, for the purpose of religious pursuit only and not generally.

Judgment (Deepak Mishra CJ. And Khanwilkar J.)

  1. Followers of Lord Ayyapa don’t constitute a religious denomination
    1. Shirur Mutt defines what constitute a religious denomination. According to the court:
      1. Each sects and sub-sects of Hindu religion can be called as a denomination as it is designated by a common name
      1. Referring Oxford dictionary, denomination means a collection of individuals classed together under a common name; a religious sect or body having common faith and organization; designated by a disntict name.
    1. In S.P. Mittal denomination was define as:
      1. It must be a collection of individuals who have a system of belief or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith
      1. Common organization and
      1. Designation by a distinct name
    1. The same principle was followed in Nellore Marthandam Vallalal case and the present case also and then the characteristics of Lord Ayyapa followers are examined based on the above principles.
Characteristics of a denomination Lord Ayyapa followers Remark
Same belief and common faith They don’t have any common religious practice peculiar to themselves and not to others. No peculiar religious belief distinct from others is available which is conducive to their spiritual well-being. There is no new methodology of religion Not Satisfied
Common organization COURT did not discuss  
Distinctive name Ayyapan Not Satisfied because any Hindu can go to Ayyapa temple and offer his prayer. There is no group of people identified as Ayyapan

Hence Lord Ayyapa followers is a not a religious denomination

  • Enforceability of Rights under Art. 25(1)
    • Lord Ayyapa sect is not a religious denomination and Sabrimala temple being a public temple and the Devaswam board being an authority as per Art. 12, fundamental rights under Art. 25(1) are enforceable.
    • The phrase “all persons” is present in the Art. 25(1). So, everybody has the right to profess a religion of his own choice. Hence, woman cannot be excluded.
    • The right under Art. 25(1) cannot have gender discrimination. Art. 25 is separate from Art. 26 in the sense that Art. 26 talks about religious institutions but Art. 25 talks about religion as a transcendental phenomenon for the spiritual well-being of the person.
    • Right to religion under Art. 25(1) is both inter faith parity as well as intra- faith parity and there can be no discrimination
    • In Narahari Shastri v Shri Badrinath Temple Committee the court held that right to enter the temple could not be restricted because of any arbitrary order of the temple committee. Entry into the temple was a legal right and enforceable right. The above judgment was not given on the topic of entry of woman to temple
    • In Acharaya Jagadishwanaranand Avadhutacase the court held that religious freedom meant there was no restriction on the free existence of religion.
    • Hence woman being followers of Hindu religion their debarment (10 -50 age group) is violative of art. 25(1).
    • The entry of woman was not hit by public order, morality or health
      • Morality means constitutional morality and any view of morality taken by any court must adhere to principles of constitutional morality
      • In Manoj Narula (2014) the court held that principles of constitutional morality meant bowing down to the principles of constitution, act according to rule of law and maintain institution integrity and constitutional restraint.
      • In State (NCT of Delhi) v Union of India the court held constitutional morality meant strict and complete adherence to principles of constitution and everybody must abide by these principles.
      • In Navtej Johar v Union of India the court defined constitutional morality in a wider term and not limited to the literal text of the constitution. It was a principle to be upheld in any action to achieve the preambular goals of justice, liberty, equality and fraternity.
      • In the Art. 25 the word public was placed before order, morality and health. By allowing woman, public order, public health would not be affected.
      • The question before the court was public morality. Morality meant constitutional morality. Constitution was not imposed upon the public rather public had given the constitution to themselves. Hence, Public morality was same as constitutional morality.
  • Exclusionary principle is an essential religious practice of Hindu religion
    • First question what constituted the essential practice of a religion
      • Shirur Mutt held that
        • What constitutes the essential part of religion was primarily to be ascertained with reference to the doctrines of that religion
      • Durgha Committee held that many practices were superstitious in nature and might have sprung upon during the religious discourses. Many such practices were non-essential in character. Protection to be granted to only the essential practices and not all the practices. Courts must decide what practices were essential and what were not.
      • In first Anandmarg (1983) the court held that tandav dance with weapons was not an essential religious practice and could be restricted on the basis of public order and morality. In Second Anand marg(1983) case the court provided principles to identify the essential practices-
        • Core beliefs upon which the religion exists
        • Fundamental practices to follow a religion
        • Practices without which the religion would not exist
        • If the practice is dropped the nature of the religion would be changed
        • There can be no addition or subtraction to such practices as the nature would change
        • Alterable practices are not core practices
      • There is no scriptural evidence to suggest entry of woman into temple would change the religious character of Hinduism or Ayyapan religion. In the absence of scripture exclusionary practices could not be accepted.
      • The argument that the practice of exclusion of woman was introduced before the 1950 was not acceptable as a core value   to a religion could not be added or deleted.
  • Analysis of the 1965 Act and Rule 3 (b) of A1965 rules and other sections of the same act.
    • S. 3 of the act was framed with a non-obstante clause. Hence Hindu temple entry is not prohibited to any Hindu, notwithstanding any other provisions of the act or any custom or usage. Secondly, the proviso to S. 3 says in case a public worship temple was dedicated to religious denomination the rights under S. 3 became subject to the customs and practices of the religious denomination. This was applicable to religious denomination strictly. But Lord Ayyapa was not a religious denomination, hence the S. 3 with its non obstante clause has overriding effect. It can also be mentioned that, violation of S. 3 of the act attracts penal provisions under S. 5 of the act.
    • Section 4 of the act confers power to make regulations for the maintenance of order, decorum and performance of rites related to places of public worship in Kerala. Proviso to s. 4 says “no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to particular section or class.” The proviso is more important than the section itself. It says in clear language that the regulations made under S. 4(1) shall not discriminate any person on the ground of his belonging into any section or class of Hinduism. Hence, woman of 10-50 years being a section, or a class of Hinduism cannot be discriminated.
    • By virtue of S. 4(1) the rules are framed. The Rule 3(b) is formed on the basis of the said section. It prohibits woman from entry into temple. Rule has to be made within the precinct of the statue and cannot be beyond that. As per Union of India v S. Srinivasan (2012)if the rule goes beyond the mandate of statue it is liable to be declared ultra vires.  In G-O-C in C v Subahs Yadav (1981) rule must follow two conditions
      • It must confirm with the statutes under which it is framed
      • Must come within the rule making power of the maker

The rule will be invalid if it does not satisfy the object of the statute (Kunja Bihari Lal Butail v State of H.P. (2000)). As per Global Energy Limited v CERC (2009)the rule making should be adhered to the statute and it could not provide any substantive right and if a rule is inconsistent with the provision of the statute then liable to be struck – State of T.N v. P.K. Krishnamurthy (2006).

  • The Rule 3 (b) is ultra vires of both S. 3 and S.4. It is hit by section 3 because S.3 starts with a non obstante clause and has overriding effect. It is hit by S.4 because the proviso to S.4 proscribes any kind of discrimination and hence a rule made under S.4 (1) cannot bring in discrimination.

Conclusion-

  1. The devotee of Lord Ayyapa don’t constitute a separate religious denomination (Shirur MuttandS.P. Mittal)The phrase “all person” in Art. 25(1) includes woman also and hence woman has a right to worship and no discrimination can be made on the basis of gender or physiological factorsExclusionary practice is violative of Art. 25(1) available to woman“Morality” also means constitutional morality. Public morality Notions of public order, morality and health cannot be a colorable device to practice discrimination Exclusion of woman is not an essential religious practiceExclusionary practice is not a core tenet of the religious practice of Ayyapa followers. (second Anandmarg case)S. 3 of the Act starts with a non obstante clause and any rule framed under S. 4(1) cannot violate S. 3Rule 3 (b) framed under S. 4(1) is violative of proviso of the section and hence ultra vires

Judgement – (Nariman J.)

  1. He discussed the same logic (framed under Nara Hari Shastri, Shirur Mutt), to arrive at the conclusion that, essential religious practice of a religion needs to be decided as per the doctrine of religion itself. Guarantee under Art. 25(1) is not limited to religious opinion, but all such acts done in pursuit of the religion i.e. religious practice. He also discussed the characteristics of a religious denomination.
  2. Then he discussed Ratilal Panchanan Gandhi v State of Bombay (1954)and held that free exercise of religion by which it is meant the performance of outward acts in pursuance of religious belief is subject to state regulation imposed to secure order, public health and morals of people.
  3. Then he discusses Devuru (1958) case and referred to the harmonious construction between art. 25 and art. 26. In the case the court held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in article 26(b) , must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into temple for worship. But where a right claimed is not one of general and total exclusion of the public from worship in temple all times but for certain services alone. Denominational rights cannot overshadow the rights guaranteed under Art. 25(2)(b).
  4. He discussed Durgah committeeand discussed a new thing that was not discussed by the earlier judges that, all those who came to the Durgha could not be termed to belong to a particular sect. Then he followed the same logic of the above judges and held that certain religious practices might have been sprung upon in time but were not essential to the religion. They could not enjoy the protection. [then he discussed the dissenting judgement of Syedna Taher Saifuddin  Saheb v State of Bombay of 1962 but dissenting judgements have no binding value] Then he went on to discuss the majority judgment in the same case and held that the religious excommunication in the Dawoodi Bohra community is a violation of their right to practice religion  and hence the phrase of social welfare and reform could not form a part of essential religious of any religion.
  5. Then he discussed Tilkayatji Shri Govindji Maharaj v State of Rajastahan Nathadwara case (1964) wherein the court discussed whether a given religious practice was an integral part of the religion or not. The court gave some guidelines. The court must appreciate evidence and decide:
    1. Whether a practice is religious in character
    1. Whether it is essential part of the religion

The findings of the court must be based on the hard evidences and is tested as per the conscience of the community and tenets of its religions.

  • Then he laid emphasis on the Adelaide Company of Jehovah’s witness inc.  v. Commonwealthcase as referred in Nathadwaracase and held that civil government not only should protect the religious opinion but also protect the religious practices in pursuit of the religion. What is religion to one is superstition to another. But if an obvious secular matter is being claimed as an essential part of religion it is not protected.
  • He discussed Shesamal v T.N. (1972) and discussed various rituals associated with the consecration of idols in the temple.
  • He then discussed rev. Stanislaus v state of M.P. (1977). The case is about religious conversion and validity of Madhya Pradesh Dharma Swatantraya adhiniyam and Orissa Freedom of Religion Act, 1967. The court had upheld the act on the basis of public order religious conversion was not allowed. In the said judgment, the word propagate was interpreted as conversion.
  • Then he discussed, S.P. Mittaland Anandmarg case with no new argument than finding out the characteristics of the religious denomination.  Then he discussed, Ai Vishswswaraya Of Kashi Vishwanath Temple v.  State of U.P. and held that Shiva bhaktas of Vishwanath Temple are part of Hindu religion and not a separate denomination. Similarly [for no reason whatsoever] he discussed N. Adithayan v Travancore Devaswam board(2002) and held that appointment of priest was not an essential religious practice and non-Malayali can be appointed as a priest.
  • He discussed Subramaniyan Swamy v State of T.N. and held that fundamental rights under art. 26 could not be waived. The power to supersede the administration of religious denomination, if only, for a certain purpose and for a limited duration would be regulatory in nature.
  • He discussed Riju Prasad Sarma v State of Assam (2005) the court held that Art. 25(2)(b) and Art. 26(b) needed to be construed harmoniously. Social reforms cannot override the essential practices of the religion and what are essential practices need to be understood from the doctrine of the religion only. Nariman J. understood the above case as “Social reform in religion as seen above may go to the extent of trumping religious practice, if found on the facets of given case.”
  • He arrived at conclusions –
    • “All person” in art. 25 means natural person
    • Every member of a religious community has a right to practice his own religion and not interfere with the religious practice of co-religionists.
    • Fundamental Right is fleshing out of the preamble “liberty of thought, belief, faith and worship.”
    • Right to profess religion means all acts done in pursuit of religion
    • Religion means matters of faith of individual and community. It can include theists also.
    • Essential religious practices are protected and not the secular practices
    • Public order is different from law and order. Public disorder or lack of public order will affect public tranquility. Morality means what is not abhorrent by society. Health includes noise pollution and the control of disease.
    • Believers of a particular religion like (Vaishnavs or Shivaites) are not religious denomination
    • Right under Art. 26(b) is subjected to Art. 25(2)(b).
    • Then he discussed the Kerala High court judgment of mahendran v State of Kerala (1991) about the Vritham.
  • Then he starts give some logics as follows-
    • As all kind of Hindus and even non-Hindus visit Sabrimala temple, the followers can be regarded as Hindus who worship Ayyapa and not a denomination (Adi Vishweswara case was referred)
    • There is no distinctive name given to the worshippers, there is no common faith or common organization and hence Ayyapa followers are not religious denomination. Hence Art. 26 is not attracted
    • Any practice of exclusion of woman of the age (10-50) is hit by the non obstante clause of S. 3 of the Kerala Act, because the Ayappan are not a denomination.
    • Fundamental rights of woman are provided under Art. 25(1) of the constitution and hence woman of menstruating age cannot be debarred
    • Rule 3(b) is ultra vires of the S. 3 and also hit by Art. 25(1)

Judgement – D.Y Chandrachud

  1. First, he made a detail analysis on development of religion and practices, and held thatthe jurisprudence on religion has shifted from what is essentially religious to practices essential to religion i.e. Shirur Mutt to Durgah committee.
  2. Next, he discusses the history and Philosphy of Lord Ayappa including the practice of pilgrimage and the Vrathm.
  3. Next, he discusses temple entry and exclusion of woman:
    1. The legality of banning woman in temple entry was first discussed in Mahendran v State of Travancore(Kerala HC judgement) and the court held that
      1. Exclusion of woman is valid as per the prevalent practices from time immemorial
      1. Restriction is not hit by Art. 25 or Art. 26 or Art. 15
      1. Not violative of Kerala 1965 Act because woman is not excluded as a class altogether, rather only woman of one age group were restricted
  4. Then he discusses submissions in detail.
  5. Then his judgement starts-
    1. He refers Shirur Muttand the reference of Adelaidecase therein that constitution not only protects religious opinion but all such acts also which are done in pursuit of the religion. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. Freedom of religion is freedom of religious practice and belief both. The views of the adherent are crucial to the analysis of what constitutes a religious practice. Same view was reiterated in Ratilal Case also. The primacy was bestowed upon the adherent of the religion and their views and the doctrine of their religion. Court has a very limited role to find out the difference between religious practice and secular practices and should take the commonsense approach.
    1. Next he cites Devarucase and discusses how the rights of a denomination under Art. 26(2) is subjected to Right under Art. 25(2)(b). Both articles need to be construed harmoniously. Point to be noted that, prior to Devaruthe Court used the phrase “essentially religious” to distinguish between religious and secular practices. From Devaruonwards the phrase used is “essential to the religion”.
    1. In Mohd Hanif Quereshi(1935) the court held that slaughtering cows on Bakr—id is not essential practice to Islam. Next, in Durgahcommittee case, the court for the first time distinguished between religious practices and superstitious practices that have been crept in the religion. That means the court has duty cast upon it that, not only the practice is essential to the religion as per the scriptures, beliefs and tenets but also not based on superstition. The test of essentiality ( as started with Shiruru Mutt , developed in Devaru and further developed in Durgah) was further refined in Saiffudin case (1962) and held while discussing the excommunication in Dawoodi Bohra community, that if a practice of the religion based on any other ground than the ground of religion is subjected to legislative control. The court further limited the scope of Shirur Muthin Nathadwaracase (1964) and held that though the adherent of the religion have the right to decide what are essential practices, if there are conflicting views among the adherents then the court will decide what is religious practice and what is secular practice.
    1. He discussed Anandmargcase and Tandav dance, Adi Vishwesracase and Adhthayancase and arrived at the same conclusion as that of Nariman that secular practices must be separated from the religion and could be subjected to control. One important point – In Anandmargcase a point wasraised that the Tandav was included in the religious scripture carya-Carya to give to a fervor of essential religious practice. But the court held that practice essential to religion is such a core part that it cannot be amended, included without changing the character of religion. Hence doctrine of essentiality came to be linked with fundamental of religion. Shayara Bano(2017) was referred wherein it was held triple talaq was not essential part of the religion.  It has to be noted also that, a practice needs to be essential to the religion for protection. Any practice which is option cannot get the protection of Art. 25 and/or Art 26.
    1. The doctrine of essential religious practices as devised above from Shirur Muttto Anandmargcase needs to be understood with the principles of constitutional morality.
    1. The exclusionary principle is not fundamental to the religion. The women are allowed in different times of the year and are excluded only on three occasion i.e Mandalam, Mahakaravillaku and Vishu months. Hence, exclusionary principle is not related to the fundamental of the religion. Hence, it cannot be said to be an essential religious practice.
    1. One argument was made before the court that, woman cannot take arduous journey during the Vritham. This logic is not acceptable because only essentially religious practices can be granted protection under Art. 25 and Art. 26. In this argument Navtej Joharcase is referred wherein it was held that stereotyping a community would not survive constitutional scrutiny. Excluding woman of a particular age group is derogative of the dignity of woman. Similarly, the Lord would lose celibacy due to the presence of woman devotees is like stigmatizing woman for no plausible reason. This also stigmatizes woman under the garb of purity and pollution associated with menstruation.
    1. Next question for Chandrachud was whether the Ayyapans are a separate religious denomination. He followed the principles framed under Shirur Mutt and S.P. Mittal to define a religious denomination. He referred a new case Brahmachari Siddheswar Shai v State of W.B. (1995) wherein the principle of Shirur Mutt adopted and held that Ramkrishna Mission was a religious denomination.  In Nallore Marthandam Vellalar (2003) case apart from theabove three criteria, a fourth element was added which was COMMON RELIGIOUS TENETS.
    1. With these principles Chandrachud went on to discuss if the Ayyapans are a religious denomination.
      1. The practice of exclusion is not consistently followed.
      1. The pilgrimage also included non-Hindu persons
      1. Religion is not the basis for the collective of individuals worshipping the deity
      1. As there is no religious identity associated with the collective of individuals, they cannot be a religious denomination

[In doing so, he followed Saiffudin case primarily, which held that the identity of a religious denomination consisted in the identity of its doctrines, creeds and tenets and these were intended to ensure unity of faith which its adherents profess and the identity of the religious views which bonded the community together]

  • He stresses on the concept of ‘untouchability of all forms. And discussed a lot about the constitutional assembly debates on untouchability. He discussed how various amendments proposed to be made to define untouchability was rejected because the framers of the constitution did not want to have a restrictive interpretation of the untouchability.
    • The seminal judgment on untouchability is the Madras High Court Judgement of Devrajaiah v B. Padmana (1957) where in the court held that the untouchability coming under art. 17 was not limited to literal sense rather it involved all such practices that has come up in the society. Untouchability remains undefined. However, it has to be construed widely. Exclusion if human beings on the notion of purity and pollution is below the dignity of individual and hence violative of art. 21 as per K.S. Puttaswamy. Article 25 is subject to the art. 17 of the constitution.
    • Next, he went on to discuss the Kerala Act. The S. 2(c) includes cannot exclude woman from its definition. The S. 3 starts with a non obstante clause and has overriding effect on any other provision of the act. Hence all places of pubic worship of Hindus are open to all class and section of Hindu including woman, the proviso to the S. 3 is an exception to the S.3 granted towards religious denominations. The proviso is attracted when (i) the place of public worship is a temple and (ii) temple is founded for the benefit of a religious denomination. As Ayyapan are not a religious denomination, the proviso to S. 3 is not attracted.
    • By Rule 3(b) woman are not allowed to offer worship if they are not allowed customarily to the place of worship. S.4 of the act enables the competent government to frame rules. Same power of making rule is given in S. 4(1) which says person in charge of the public worship can make rules for maintenance of order and decorum. The proviso to S. 4(1) prohibits discrimination of any manner. The proviso is more important than the rule itself. Plain reading of S. 3, S. 4(1) and Rule 3(b) shows, the Rule 3(b) for exclusion of woman is ultra vires.
    • The ambit of law making under art. 13 came to be discussed. Chandrachud discussed it under the name of Ghost of Narasu
      • In State of Bomaby v Narasu Appa Mali(1945) the Bombay High Court held that customs and usages would be included under the law in force under Art. 13(1) of the constitution. Hence, any custom or usage prevalent before the enactment of constitution would be a law under Art. 13(1) of the constitution. Then he went on to discuss the development of jurisprudence related to fundamental rights.
        • In A.K. Gopalanmajority held that the fundamental rights are disjointed but the dissent judgment of Fazl ali held that the fundamental rights are overlapping with each other. In Bank Nationalizationcase, A.K. Gopalan was overruled and the view of Fazl Ali was accepted. In Maneka Gandhicase same viewpoint was further adopted. In Special Courts Bill, (1979) case it was held that all the constitutional provision must be harmonized with each other instead of treating any provision as superfluous.
        • In Puttaswamy privacy is held to be constitutionally protected. Hence, all fundamental rights are intrinsically connected with each other. They overlap with each other to some extent and coexist with each other so that vision of dignity, liberty and equality are realized.
        • In Sant Ram v Labh Singh (1964) the court held that “law” and “law in force” in Art. 13 should be interpreted widely.
        • H.M. Seervai says customs, usage and statutory laws are so mixed up with each other that there is no difference between existing law, law in force and personal law. The decision in Narasu says personal law is immune to constitutional law. This was wrong premise. Narasu was bad in law.
      • The deity of Ayypa cannot be said to have a bearer of constitutional rights. Deity may be a juridical person in a limited sense but not a person as per Part III of the constitution.

Conclusion –

He arrived at the same conclusion

Judgement (Dissenting) of Indu Malhotra

  1. Maintainability and justiciability
    1. The petitioners don’t have a locus-standi yet they moved the court under Art. 32 of the constitution. Hence, court should not start discussing on the matters of faith at the behest of persons who don’t subscribe to the faith.  In matters of religious practices and religion Art. 14 can be invoked by only those persons who belong to the same faith, creed or sect.
    1. Art. 25 (1) provides a freedom to religious practices to the devotees. The devotees of the religion neither man nor woman has challenged the practice.
    1. Hans Muller of Nuremberg v Presidency Jail (1955) can be referred wherein it was held, court would entertain writ under Art. 32 only when there existed a grieving party.
    1. Precedent on religious freedom have arisen against state action in all the authorities and not by way of PIL.
  • Applicability of Art. 14 in matters of religion and religious practice
    • Religious practices cannot be tested on the corner stone of Art. 14 and hence Art. 25 is provided in the constitution.
    • Court should not delve into a confrontation between Art. 14 and Art. 25 and decide which practices needed to be struck down unless it were a social evil like Sati
    • The age group of 10-50 is not arbitrary in nature, because it is selected to ensure limited entry of woman. Woman are not totally excluded.
  • Applicability of Art. 15
    • The word places of “public worship” is not included in Art. 15. In fact, in the constitutional assembly debates, the amendment to include places of public worship was denied.
    • It only means that the makers of the constitution did not want to include matters of faith under the ambit of Art. 15.
  • Roles of courts in matters of religion –
    • Bijoe Emanuel v State of Kerala (1986) is referred wherein the personal views of judges are irrelevant whether a particular belief would receive protection under art. 25(1). Following Adelaide, it was held that question is not whether a particular religious belief or practice appeal to reason of the judges or the society rather whether the particular religious belief is genuinely and conscientiously held as a part of religion.
    • Durgha committee judgment which held that superstitious beliefs creeping into the religion, was an obiter reference and against the majority judgement of Shirur Mutt and Ratilal case.  
    • In R v Secy of state for education and employment (2005) the court ought not to embark upon an enquiry into the validity or legitimacy of the asserted beliefs on the basis of objective standards of rationality.
    • She discussed many foreign judgments for no consequence whatsoever.
    • She then discussed the minority judgement in Shayara Bano
    • Then S.P. Mittal was discussed wherein the court held that what is religion to some is pure dogma to other and what is religion to others is pure superstitions to some others. Any freedom of rights involving the conscience, faith, religion and the concept of religious denomination has to interpreted in an expansive way.
    • Judicial review on matters of religion and worship cannot be undertaken, because court cannot prescribe how a deity can be worshipped. If court does so, then that would amount to violation of right to profess religion and worship.
  • Constitutional Morality in matters of religion in a secular polity
    • Sahara India Real Estate Corp Ltd v SEBI (2012) was referred wherein the court held that it has role to enforce the constitutional necessity of balancing various fundamental rights. The same has been enunciated in Subramaniam Swamycase also.
    • It is the duty of the court to harmonize various constitutional rights. Court must ensure one should enjoy his fundamental rights not at the cost of fundamental rights of another.
  • Religious denomination-
    • Shirur Mutt was referred wherein the court held that denomination is a collection of individuals classed together under the same name: a religious sect or body having a common faith and organization and designated by a distinctive name. Each sects and sub sects of the Hindu religion can be called a religious denomination.
    • The definition given by the court about religious denomination are mere explanatory in nature and not straightjacketed formula. Religion and Religious denomination must be interpreted in a liberal and expansive way. As Ayyapa followers profess the Ayyapan Dharma, it is a separate religious denomination. If Devaru and Subramnaian Swamy identified followers of a single temple a religious denomination, what prevented them to do so for Ayyapa
  • Essential practice doctrine-
    • Essential practice test needs to be determined by the tenets of religion itself. The only way to determine the essential practice is to find out which practices are followed since time immemorial
    • Hindu Gods have different personality. Forms of deity in a temple is of paramount importance. Hence, the fact that Ayyapa is a naisthik Brhamachari is of importance and essential to the religion of Ayyapa dharma.
  • Article 17
    • All forms of exclusion are not tantamount to untouchability.
    • The exclusion of the notified age group of women is due to special characteristics of the deity and not based on any social exclusion principle. In case of temple entry social reform preceded statutory reform. If the court wants to have entry of woman into the temple, the matter should be left to the society itself.
    • Untouchability is a practice in Hindu community against the Harijans and cannot be given a wider meaning to include woman. It is prejudice among the Hindu community against others based on birth. The exclusion of woman is to a specified age group alone and not all woman as per birth.
  • Rule 3 (b) is not ultra vires
    • Rule 3 (b) is an exception provided for a religious denomination. If Ayyapan is a religious denomination as proved already Rule 3(b) is not ultra vires.

Summary of dissenting judgment –

  1. The writ petition does not deserve to be admitted
  2. Equality doctrine under Art. 14 cannot override Art. 25
  3. Constitutional morality in a secular morality will require harmonization of all fundamental rights.
  4. Ayyapans are a religious denomination
  5. Limited restriction of entry of woman is not hit by Art. 17
  6. Rule 3(b) is not ultra vires.
Standard

2 thoughts on “Indian Young Lawyers’ Association (in Re Sabrimala) v State of Kerala

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