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Constitution of India:Arts. 25, 26 and 15 –Kerala Hindu Places of Public Worship(Authorisation of Entry) Act, 1965 – ss. 3, 4 – Kerala Hindu Placesof 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 betweenthe age of 10 to 50 years to Sabrimala temple, based upon abiological ground of menstruation – Validity of – Held: (Per DipakMisra, CJI) s. 3 being a non-obstante clause stipulates that everyplace of public worship shall be open to all classes and sections ofHindus, women being one of them, irrespective of any custom orusage to the contrary – Language of both the s. 3 and the provisoto s. 4(1) clearly indicate that custom and usage must make spaceto the rights of all sections and classes of Hindus to offer prayersat places of public worship – Any interpretation to the contrarywould annihilate the purpose of the 1965 Act and incrementallyimpair 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 alsoultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates anexception to the effect that the regulations/rules made u/s. 4(1) shallnot discriminate, in any manner whatsoever, against any Hindu onthe ground that he/she belongs to a particular section or class –Said practise is violative of the fundamental right of Hindu womento freely practise their religion under Art. 25(1) and exhibit theirdevotion towards Lord Ayyappa – This denial denudes them of theirright to worship – Held: (Per Nariman, J.) Custom or usage ofprohibiting women between the ages of 10 to 50 years from enteringthe Sabarimala temple is violative of Art. 25(1), and violative of the 1965 Act – r. 3(b) whereby women by custom and usage are notallowed to enter a place of public worship, is unconstitutional beingviolative 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 tothe Section is not attracted on the facts of the case, and since thesaid Act is clearly a measure enacted u/Art. 25(2)(b), any religiousright claimed on the basis of custom and usage as an essential matterof religious practice u/Art. 25(1), will be subject to the law made u/Art. 25(2)(b) – Held: (Per Chandrachud, J.) Notifications issuedby the Devaswom Board, prohibiting the entry of women betweenthe ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and areeven otherwise unconstitutional – Hindu women constitute a ‘sectionor class’ of Hindus u/s. 2 – Rule 3(b) of enforces a custom contraryto s. 3, which directly offends the right of temple entry establishedby s. 3, thus, is ultra vires the 1965 Act – Claim for the exclusion ofwomen from religious worship, even if it be founded in religioustext, is subordinate to the constitutional values of liberty, dignityand equality – Exclusionary practices are contrary to constitutionalmorality – Practice of excluding women from the temple atSabarimala is not an essential religious practice – Social exclusionof women, based on menstrual status, is a form of untouchabilitywhich is an anathema to constitutional values – Held: (Per InduMalhotra J.: Dissenting) Denial of entry of women in the age groupof 10 to 50 years in Sabarimala temple is not violative of Art. 14 –Sabarimala temple constitutes a religious denomination – Practiseof restricting entry of women between the age group of 10 to 50years is an essential religious practise of the devotees of LordAyyappa at Sabarimala Temple – r.3(b) is a statutory recognition ofa 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 nothave an identified group or sect – They do not have commonreligious tenets peculiar to themselves, which they regard asconducive to their spiritual well–being, other than those which arecommon to the Hindu religion – Thus, the devotees of Lord Ayyappaare exclusively Hindus and do not constitute a separate religious denomination – Held: (Per Nariman, J.) There is no distinctive namegiven to the worshippers of Sabrimala temple; there is no commonfaith in the sense of a belief common to a particular religion orsection thereof; or common organization of the worshippers of theSabarimala temple so as to constitute the said temple into a religiousdenomination – Also, there are over a thousand other Ayyappatemples in which the deity is worshipped by practicing Hindus ofall kinds – Thus, Article 26 not attracted – (Per Chandrachud, J.)Worship of the presiding deity is not confined to adherents of aparticular religion – Practices associated with the forms of worshipdo not constitute the devotees into a religious denomination –Considering the inability of the collective of individuals to satisfythe judicially-enunciated requirements, the set of individuals whorefer to themselves as “Ayyappans” or devotees of Lord Ayyappaas a ‘religious denomination’ cannot be recognized – Held: (PerIndu Malhotra J.: Dissenting) If there are clear attributes that thereexists a sect, which is identifiable as being distinct by its beliefs andpractices, and having a collection of followers who follow the samefaith, it would be identifiable as a religious denomination – Onfacts, respondents have made out a strong and plausible case thatthe worshippers of the Sabarimala Temple have the attributes of areligious denomination, or sect thereof.Arts. 25 and 26 – Essential Religious Practices under Art. 25– Determination of – Practice of exclusion of women of the agegroup of 10 to 50 years being followed at the Sabarimala Temple –Held: (Per Dipak Misra, CJI) There seems to be no continuity inthe exclusionary practice followed at the Sabarimala temple andthus, it cannot be treated as an essential practice – On the contrary,it is an essential part of the Hindu religion to allow Hindu women toenter into a temple as devotees and followers of Hindu religion andoffer their prayers to the deity – Moreso, in the absence of anyscriptural or textual evidence, the exclusionary practice followedat the Sabarimala temple, cannot be accorded the status of anessential practice of Hindu religion – By allowing women to enterinto the Sabarimala temple for offering prayers, it cannot beimagined that the nature of Hindu religion would be fundamentallyaltered or changed in any manner – Held: (Per Nariman, J.) Onlythe essential part of religion, as distinguished from secular activities, is the subject matter of the fundamental right – Matters essential toreligious faith and/or belief are to be judged on evidence before acourt of law by what the community professing the religion itselfhas to say as to the essentiality of such belief – One test would be toremove the particular belief stated to be an essential belief from thereligion, would the religion remain the same or would it be altered –In case religious activities are mixed up with secular activities, thedominant nature of activity test is to be applied – Court to take acommon sense view and be actuated by considerations of practicalnecessity – Held: (Per Chandrachud, J.) In determining theessentiality of a practice, it is to be considered whether the practiceis 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 afundamental change in the character of the religion, only then cansuch a practice be claimed to be an ‘essential’ part of that religion– Texts and tenets do not indicate that the practice of excludingwomen is an essential part of the religion – Practice of excludingwomen is not uniform and militates against a claim that such practiceis obligatory – Hence, no fundamental change in character ofreligion – Essential religious practices test enables the Court toadopt a reformist vision of religion even though it may conflict withthe 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 thetenets 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 practise of thedevotees of Lord Ayyappa at Sabarimala Temple.Art. 25(1) – Expression ‘all persons under’ – Meaning of –Held:(Per Dipak Misra, CJI) Expression ‘all persons’, demonstratesthat the freedom of conscience and the right to freely profess, practiseand propagate religion is available, though subject to the restrictionsdelineated 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 infavour of “all persons” which has reference to natural persons Every member of a religious community has a right to practice thereligion so long as he does not, in any way, interfere with thecorresponding right of his co-religionists to do the same.Art. 25(1) – Expression – Held: (Per Chandrachud, J.] ‘allpersons under’ – By all persons, the Constitution means that everyindividual in society without distinction of any kind is entitled to afreedom of conscience and to freely profess, protect and propogatereligion – Three defining features of clause (1) of Article 25 are,first, the entitlement of all persons without exception; second, therecognition of an equal entitlement; and third, the recognition bothof the freedom of conscience and the right freely to profess, practiceand propogate religion.Art. 17 – Untouchability– Denial of entry to women in theage group of 10 to 50 in the Ayyappa temple at Sabarimala, if amanifestation 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 stigmatizeindividuals, can have no place in a constitutional regime - Prejudiceagainst women based on notions of impurity and pollutionassociated with menstruation is a symbol of social exclusion – It isa form of untouchability which is an anathema to constitutionalvalues – Held: (Per Indu Malhotra J.: Dissenting) Limitedrestriction on the entry of women during the notified age-groupdoes not fall within the purview of Art. 17 – Art. 17 refers to practiceof untouchability as committed in the Hindu community againstHarijans or people from depressed classes, and not women –Restriction on women within a certain age-band, is based upon thehistorical origin and beliefs and practices of the sabrimala temple,on the unique characteristic of the deity, and not founded on anysocial exclusion – Women of the notified age group are allowedentry into all other temples of Lord Ayyappa.Art. 25(1) – Term ‘morality’ in Art. 25(1) – Held: (Per DipakMisra, CJI) Cannot be viewed with a narrow lens so as to confinethe sphere of definition of morality to what an individual, a sectionor religious sect may perceive the term to mean – Since theConstitution has been adopted and given by the people of thiscountry to themselves, the term public morality in Art. 25 has to beappositely understood as being synonymous with constitutional morality – Notions of public order, morality and health cannot beused as colourable device to restrict the freedom to freely practisereligion and discriminate against women of the age group of 10 to50 years by denying them their legal right to enter and offer theirprayers 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 deeplyoffensive to individual dignity and human rights – Individual dignitycannot be allowed to be subordinate to the morality of the mob andshould not vary in accordance with the popular fashions of the day– Overarching sense of constitutional morality with the quest forhuman dignity, liberty and equality must prevail.Arts. 25(2)(b) and 26(b) – Right to manage its own affairs inmatters of religion under Art. 26 – Held: (Per Nariman, J.) Rightgranted u/Art. 26 to be harmoniously construed with Art. 25(2)(b)– Right to manage its own affairs in matters of religion granted byArt. 26(b), to be subject to laws made u/Art. 25(2)(b) which throwopen religious institutions of a public character to all classes andsections of Hindus – Thus, even though the entry of persons into aHindu temple of a public character would pertain to managementof its own affairs in matters of religion, yet such temple entry wouldbe subject to a law throwing open a Hindu religious institution of apublic character owned and managed by a religious denominationor 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 templeentry 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 inmatters of religion u/Art. 26 – Held: (Per Chandrachud, J.) Absenceof a clause of subjection in Article 26 does not lead to the conclusionthat the freedom of a religious denomination exists as a discreteelement, divorced from the others freedoms – Article 26 is one amonga large cluster of freedoms which the Constitution has envisaged asintrinsic to human liberty and dignity – Freedom of religiousdenominations under Article 26 must be read in a manner whichpreserves equally, other individual freedoms – Dignity of womenwhich an emanation of Article 15 and a reflection of Article 21 cannot be disassociated from the exercise of religious freedom underArticle 26.Art. 32 – Writ petition under – Issue that women who happento be between the ages of 10 and 50, not allowed entry into thetemple at Sabarimala – Plea raised that that the Court should notdecide this case without any evidence being led on both sides –Held: (Per Nariman, J.) Evidence is very much there, in the form ofthe writ petition and the affidavits filed in the writ petition by thepetitioners as well as by the Board, and by the Thanthri – Writ petitionfiled is itself not merely a pleading, but also evidence in the form ofaffidavits that are sworn.Arts. 25 and 26 – Engagement of essential religious practiceswith constitutional values – Exclusion of women between the agegroup ten and fifty from the Sabarimala temple – Held: (PerChandrachud, J.) Exclusion is destructive of dignity – To exclude awoman from the might of worship is fundamentally at odds withconstitutional values – Physiological features of a woman have nosignificance to her equal entitlements under the Constitution –Menstrual status of a woman cannot be a valid constitutional basisto deny her the dignity of being and the autonomy of personhood –Menstrual status of a woman is deeply personal and an intrinsicpart of her privacy – Constitution must treat it as a feature on thebasis of which no exclusion can be practised and no denial can beperpetrated.Art. 13 – Term ‘laws in force’ – Custom or usage if falls withinthe ambit of ‘laws in force’ u/Art.13(1) – Plea that the exclusion ofwomen from the Sabarimala temple constitutes a custom, independentof the Act and the 1965 Rules – Held: (Per Chandrachud, J.) Carvingout ‘custom or usage’ from constitutional scrutiny, denies theconstitutional vision of ensuring the primacy of individual dignity– Decision in Narasu case that custom or usage not included in theambit of laws in force, is based on flawed premises – Custom orusage cannot be excluded from ‘laws in force’– Decision in Narasucase, in immunizing uncodified personal law and construing thesame as distinct from custom, overlooked the wide ambit that was tobe 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 beengranted limited rights as juristic persons under statutory law doesnot mean that the deity necessarily has constitutional rights – Deitymay be a juristic person for the purposes of religious law andcapable 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 ofrestricting 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 SupremeCourt u/Art. 32 for violation of fundamental rights, must be basedon a pleading that the petitioners’ personal rights to worship in thisTemple have been violated – This is an essential requirement tomaintain the challenge – Courts normally do not delve into issuesof religious practises, especially in the absence of an aggrievedperson from that particular religious faith, or sect – In matters ofreligion and religious practises, Art. 14 can be invoked only bypersons who are similarly situated, that is, persons belonging to thesame faith, creed, or sect – Petitioners–association/Intervenors donot claim to be devotees of Lord Ayyappa in the Sabarimala Temple,who are aggrieved by the practises followed in the SabarimalaTemple.Art. 14 – Matters of religion and religious practice –Applicability of Art. 14 – Denial of entry to women in age group of10 to 50 years in Sabrimala temple – Held: (Per Indu Malhotra J.:Dissenting) Is not violative of Art. 14 – Religious customs andpractises cannot be solely tested on the touchstone of Article 14and the principles of rationality embedded therein – Religiouscommunity is to decide as to what constitutes essential religiouspractice – Equality in matters of religion to be viewed in the contextof the worshippers of the same faith – It is not for the courts todetermine which of these practises of a faith are to be struck down,except if they are pernicious, oppressive, or a social evil – Right togender equality to offer worship to Lord Ayyappa is protected bypermitting women of all ages, to visit temples where he has notmanifested himself in the form of a ‘Naishtik Brahamachari’, andthere 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 thatSabrimala temple would be included in phrase ‘places of publicresort – Held: (Per Indu Malhotra J.: Dissenting) Cannot beaccepted – Conscious decision by the Constituent Assembly not toinclude ‘places of worship’ or ‘temples’ within the ambit of draftArticle 9, to be given due consideration.Kerala Hindu Places of Public Worship (Authorisation ofEntry) Rules, 1965:r.3(b) – Kerala Hindu Places of Public Worship (Authorisationof Entry) Act 1965 – s. 3 – r. 3(b) whereby women by custom andusage not allowed to enter a place of public worship – r. 3(b) ifultra vires s. 3 of the 1965 Act, whereby places of worship to beopen 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 viress. 4 of the 1965 Act – Held: (Per Nariman, J.) Rule 3(b) is ultravires 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 Ayyappado not constitute a religious denomination and the Sabrimala templeis not a denominational temple – Hence, notifications issued by theBoard prohibiting the entry of woman between ages ten andfifty-five, are ultra vires s.3 – Rule 3(b) gives precedence to customsand usages which allow the exclusion of women “at such time duringwhich they are not allowed to enter a place of public worship” – Inlaying down such a prescription, Rule 3(b) directly offends the rightof temple entry established by Section 3, thus, r. 3(b) is ultra viresthe Act – Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is notultra vires s. 3 of the 1965 Act, since the proviso carves out anexception in the case of public worship in a temple for the benefitof any religious denomination or sect thereof, to manage theiraffairs in matters of religion – Declaration that places of publicworship shall be open to Hindus of all sections and classes is notabsolute, but subject to the right of a religious denomination to“manage its own affairs in matters of religion” – r.3(b) is a statutoryrecognition of a pre-existing custom and usage being followed bythis 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 apluralistic society and secular polity would reflect that the followersof various sects have the freedom to practise their faith inaccordance with the tenets of their religion – Equality and nondiscriminationare facet of Constitutional Morality, which cannotbe viewed in isolation – Balance is to be struck between theprinciples of equality and non-discrimination on the one hand, andthe protection of the cherished liberties of faith, belief, and worshipguaranteed by Arts 25 and 26 to persons belonging to all religionsin a secular polity, on the other hand – Constitutional moralityrequires the harmonisation or balancing of all such rights, to ensurethat 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 religiouspractice 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 injusticesby 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 yearsbeing followed at the Sabrimala temple are considered to be essentialor integral to that Temple – Any interference with the same wouldconflict with their right guaranteed by Art. 25(1) to worship LordAyyappa in the form of a ‘Naishtik Brahmachari’ – Judicial reviewof religious practises ought not to be undertaken, as the Courtcannot impose its morality or rationality with respect to the form ofworship of a deity – Doing so would negate the freedom to practiseone’s religion according to one’s faith and beliefs – It would amountto rationalising religion, faith and beliefs, which is outside the kenof the courts. |
