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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 373 OF 2006  

Indian Young Lawyers Association         …Petitioner(s)   & Ors.                   VERSUS     The State of Kerala & Ors.           …Respondent(s)    

J U D G M E N T      Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.)  

Introduction  

The irony that is nurtured by the society is to impose a rule,  

however unjustified, and proffer explanation or justification to  

substantiate the substratum of the said rule.  Mankind, since  

time immemorial, has been searching for explanation or  

justification to substantiate a point of view that hurts humanity.   

The theoretical human values remain on paper.  Historically,  

women have been treated with inequality and that is why, many  

have fought for their rights.  Susan B. Anthony, known for her

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feminist activity, succinctly puts, “Men, their rights, and nothing  

more; women, their rights, and nothing less.”  It is a clear  

message.  

2. Neither the said message nor any kind of philosophy has  

opened up the large populace of this country to accept women as  

partners in their search for divinity and spirituality.  In the  

theatre of life, it seems, man has put the autograph and there is  

no space for a woman even to put her signature.  There is  

inequality on the path of approach to understand the divinity.   

The attribute of devotion to divinity cannot be subjected to the  

rigidity and stereotypes of gender. The dualism that persists in  

religion by glorifying and venerating  women as goddesses on one  

hand and by imposing rigorous sanctions on the other hand in  

matters of devotion has to be abandoned. Such a dualistic  

approach and an entrenched mindset results in indignity to  

women and degradation of their status. The society has to  

undergo a perceptual shift from being the propagator of  

hegemonic patriarchal notions of demanding more exacting  

standards of purity and chastity solely from women to be the  

cultivator of equality where the woman is in no way considered  

frailer, lesser or inferior to man.  The law and the society are

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bestowed with the Herculean task to act as levellers in this  

regard and for the same, one has to remember the wise saying of  

Henry Ward Beecher that deals with the changing perceptions of  

the world in time. He says:  

“Our days are a kaleidoscope. Every instant a  change takes place in the contents. New  harmonies, new contrasts, new combinations of  every sort. Nothing ever happens twice alike. The  most familiar people stand each moment in some  new relation to each other, to their work, to  surrounding objects. The most tranquil house,  with the most serene inhabitants, living upon the  utmost regularity of system, is yet exemplifying  infinite diversities.”1  

 3.   Any relationship with the Creator is a transcendental one  

crossing all socially created artificial barriers and not a  

negotiated relationship bound by terms and conditions. Such a  

relationship and expression of devotion cannot be circumscribed  

by dogmatic notions of biological or physiological factors arising  

out of rigid socio-cultural attitudes which do not meet the  

constitutionally  prescribed tests. Patriarchy in religion cannot be  

permitted to trump over the element of pure devotion borne out  

of faith and the freedom to practise and profess one‟s religion.   

The subversion and repression of women under the garb of  

biological or physiological factors cannot be given the seal of  

                                                 1  Henry Ward Beecher, 1813-1887 - Eyes and Ears

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legitimacy. Any rule based on discrimination or segregation of  

women pertaining to biological characteristics is not only  

unfounded, indefensible and implausible but can also never pass  

the muster of constitutionality.  

4. It is a universal truth that faith and religion do not  

countenance discrimination but religious practices are  

sometimes seen as perpetuating patriarchy thereby negating the  

basic tenets of faith and of gender equality and rights. The  

societal attitudes too centre and revolve around the patriarchal  

mindset thereby derogating the status of women in the social and  

religious milieu. All religions are simply different paths to reach  

the Universal One. Religion is basically a way of life to realize  

one‟s identity with the Divinity. However, certain dogmas and  

exclusionary practices and rituals have resulted in incongruities  

between the true essence of religion or faith and its practice that  

has come to be permeated with patriarchal prejudices.  

Sometimes, in the name of essential and integral facet of the  

faith, such practices are zealously propagated.  

The Reference

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5. Having stated so, we will focus on the factual score. The  

instant writ petition preferred under Article 32 of the  

Constitution seeks issuance of directions against the Government  

of Kerala, Devaswom Board of Travancore, Chief Thanthri of  

Sabarimala Temple and the District Magistrate of Pathanamthitta  

to ensure entry of female devotees between the age group of 10 to  

50 years to the Lord Ayyappa Temple at Sabarimala (Kerala)  

which has been denied to them on the basis of certain custom  

and usage; to declare Rule 3(b) of the Kerala Hindu Places of  

Public Worship (Authorisation of Entry) Rules, 1965 (for short,  

“the 1965 Rules”) framed in exercise of the  powers conferred by  

Section 4 of the Kerala Hindu Places of Public Worship  

(Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as  

unconstitutional being violative of Articles 14, 15, 25 and 51A(e)  

of the Constitution of India and further to pass directions for the  

safety of women pilgrims.   

6. The three-Judge Bench in Indian Young Lawyers  

Association and others v. State of Kerala and others2,  

keeping in view the gravity of the issues involved, sought the  

assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy,  

                                                 2  (2017) 10 SCC 689

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learned senior counsel as Amici Curiae. Thereafter, the three-

Judge Bench analyzed the decision and the reasons ascribed by  

the Kerala High Court in S. Mahendran v. The Secretary,  

Travancore Devaswom Board, Thiruvananthpuram and  

others3 wherein similar contentions were raised. The Bench took  

note of the two affidavits dated 13.11.2007 and 05.02.2016 and  

the contrary stands taken therein by the Government of Kerala.   

7. After recording the submissions advanced by the learned  

counsel for the petitioners, the respondents as well as by the  

learned Amici Curiae, the three-Judge Bench considered the  

questions formulated by the counsel for the parties and,  

thereafter, framed the following questions for the purpose of  

reference to the Constitution Bench:  

“1. Whether the exclusionary practice which is based    upon a biological factor exclusive to the female  gender amounts to "discrimination" and thereby  violates the very core of Articles 14, 15 and 17 and  not protected by „morality‟ as used in Articles 25 and  26 of the Constitution?  

2. Whether the practice of excluding such women  constitutes an "essential religious practice" under  Article 25 and whether a religious institution can   assert a claim in that regard under the umbrella of  right to manage its own affairs in the matters of  religion?  

                                                 3     AIR 1993 Kerala 42

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3. Whether Ayyappa Temple has a denominational  character and, if so, is it permissible on the part of a  'religious denomination' managed by a statutory  board and financed under Article 290-A of the  Constitution of India out of the Consolidated Fund of  Kerala and Tamil Nadu to indulge in such practices  violating constitutional principles/ morality  embedded in Articles 14, 15(3), 39(a) and 51-A(e)?  

4. Whether Rule 3 of the Kerala Hindu Places of  Public Worship (Authorisation of Entry) Rules  permits 'religious denomination' to ban entry of  women between the age of 10 to 50 years? And if so,  would it not play foul of Articles 14 and 15(3) of the  Constitution by restricting entry of women on the  ground of sex?  

5. Whether Rule 3(b) of the Kerala Hindu Places of  Public Worship (Authorization of Entry) Rules, 1965  

is ultra vires the Kerala Hindu Places of Public  Worship (Authorisation of Entry) Act, 1965 and , if  

treated to be intra vires, whether it will be violative of  the provisions of Part III of the Constitution?”  

8. Because of the aforesaid reference, the matter has been  

placed before us.  

9. It is also worthy to note here that the Division Bench of the  

High Court of Kerala, in S. Mahendran (supra), upheld the  

practice of banning entry of women belonging to the age group of  

10 to 50 years in the Sabarimala temple during any time of the  

year. The High Court posed the following questions:

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“(1) Whether woman of the age group 10 to 50 can be  permitted to enter the Sabarimala temple at any  period of the year or during any of the festivals or  poojas conducted in the temple.  

(2) Whether the denial of entry of that class of  woman amounts to discrimination and violative of  Articles 15, 25 and 26 of the Constitution of India,  and   

(3) Whether directions can be issued by this Court to  the Devaswom Board and the Government of Kerala  to restrict the entry of such woman to the temple?”  

10. The High Court, after posing the aforesaid questions,  

observed thus:   

“40. The deity in Sabarimala temple is in the form of  a Yogi or a Bramchari according to the Thanthri of  the temple. He stated that there are Sasta temples at  Achankovil, Aryankavu and Kulathupuzha, but the  deities there are in different forms. Puthumana  Narayanan Namboodiri, a Thanthrimukhya  recognised by the Travancore Devaswom Board,  while examined as C.W. 1 stated that God in  Sabarimala is in the form of aNaisthikBramchari.  That, according to him, is the reason why young  women are not permitted to offer prayers in the  temple.  

41. Since the deity is in the form of a Naisthik  Brahmachari, it is therefore believed that young  women should not offer worship in the temple so  that even the slightest deviation from celibacy and  austerity observed by the deity is not caused by the  presence of such women.”  

And again:  

“… We are therefore of the opinion that the usage of  woman of the age group 10 to 50 not being permitted  to enter the temple and its precincts had been made

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applicable throughout the year and there is no  reason why they should be permitted to offer worship  during specified days when they are not in a position  to observe penance for 41 days due to physiological  reasons. In short, woman after menarche up to  menopause are not entitled to enter the temple and  offer prayars there at any time of the year.”  

11. Analysing so, the High Court recorded its conclusions which  

read thus:  

“(1) The restriction imposed on women aged above 10  and below 50 from trekking the holy hills of  Sabarimala and offering worship at Sabarimala  Shrine is in accordance with the usage prevalent  from time immemorial.  

(2) Such restriction imposed by the Devaswom Board  is not violative of Articles 15, 25 and 26 of the  Constitution of India.  

(3) Such restriction is also not violative of the  provisions of Hindu Place of Public Worship  (Authorisation of Entry) Act, 1965 since there is no  restriction between one section and another section  or between one class and another class among the  Hindus in the matter of entry to a temple whereas  the prohibition is only in respect of women of a  particular age group and not women as a class.”  

Submissions on behalf of the Petitioners  

 12. Learned counsel appearing for the petitioners have alluded  

to the geographical location, historical aspect along with the  

Buddhist connection of the Sabarimala temple and the religious  

history of Lord Ayyappa. They have, for the purpose of

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appreciating the functioning of the Sabarimala temple, also taken  

us through the history of Devaswom in Travancore. As regards  

the statutory backing of the Devaswom Boards, the petitioners  

have drawn the attention of this Court to the „Travancore -  

Cochin Hindu Religious Institutions Act, 1950‟, Section 4 of the  

said Act contemplates a Devaswom Board for bringing all  

incorporated and unincorporated Devaswoms and other Hindu  

religious institutions except Sree Padmanabhaswamy Temple.    

13. It has been put forth by them that the aforesaid enactment  

has been subject to various amendments over a period of time,  

the last amendment being made in the year 2007 vide Amending  

Act of 2007 [published under Notification No. 2988/Leg.A1/2007  

in K.G. ext. No. 694 dated 12.04.2007] which led to the inclusion  

of women into the management Board. The petitioners have also  

referred to Section 29A of the said Act which stipulates that all  

appointments of officers and employees in the Devaswom  

Administrative Service of the Board shall be made from a select  

list of candidates furnished by the Kerala Public Service  

Commission. It has been submitted by the petitioners that after  

the 1950 Act, no individual Devaswom Board can act differently  

both in matters of religion and administration as they have lost

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their distinct character and Sabarimala no more remained a  

temple of any religious denomination after the tak over of its  

management.   

14. As far as the funding aspect is considered, it is contended  

that prior to the adoption of the Constitution, both the  

Travancore and Tamil Nadu Devaswom Boards were funded by  

the State but after six years of the adoption of the Constitution,  

the Parliament, in the exercise of its constituent power, inserted  

Article 290-A vide the 7th Amendment whereby a sum of rupees  

forty six lakhs and fifty thousand only is allowed to be charged  

upon the Consolidated Fund of the State of Kerala which is paid  

to the Travancore Devaswom Board. It has been asseverated by  

the petitioners that after the insertion of Article 290-A in the  

Constitution and the consequent State funding, no individual                    

ill-practice could be carried on in any temple associated with the  

statutory Devaswom Board even in case of Hindu temple as this  

constitutional amendment has been made on the premise that no                     

ill-practice shall be carried on in any temple which is against the  

constitutional principles.   

15. It is urged that since all Devaswoms are Hindu Temples and  

they are bound to follow the basic tenets of Hindu religion,

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individual ill-practice of  any temple contrary to the basic tenets  

of Hindu religion is impermissible, after it being taken over by  

statutory board and state funding in 1971. It is propounded that  

for the purpose of constituting a „religious denomination; not only  

the practices followed by that denomination should be different  

but its administration should also be distinct and separate.  

Thus, even if some practices are distinct in temples attached to  

statutory board, since its administration is centralized under the  

Devaswom Board, it cannot attain a distinct identity of a separate  

religious denomination.   

16. It is contended that in legal and constitutional parlance, for  

the purpose of constituting a religious denomination, there has to  

be strong bondage among the members of its denomination. Such  

denomination must be clearly distinct following a particular set of  

rituals/practices/usages having their own religious institutions  

including managing their properties in accordance with law.  

Further, the petitioners have averred that religious denomination  

which closely binds its members with certain rituals/practices  

must also be owning some property with perpetual succession  

which, as per the petitioners, the Constitution framers kept in  

mind while framing Article 26 of the Constitution and,

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accordingly, religious denominations have been conferred four  

rights under clauses (a) to (d) of Article 26. These rights, it is  

submitted, are not disjunctive and exclusive in nature but are  

collectively conferred to establish their identity. To buttress this  

view, the petitioners have placed reliance on the views of the  

views of H.M. Seervai4 wherein the learned author has stated that  

the right to acquire property is implicit in clause (a) as no  

religious institution could be created without property and  

similarly, how one could manage its own affairs in matters of  

religion under clause (b) if there is no religious institution. Thus,  

for a religious denomination claiming separate and distinct  

identity, it must own some property requiring constitutional  

protection.    

17. The petitioners have pressed into service the decisions of  

this Court in Sardar Syedna Taher Saifuddin Saheb v. State  

of Bombay5, Raja Bira Kishore Deb v. State of Orissa6,  

Shastri Yagnapurushadiji and others v. Muldas Bhundardas  

Vaishya and another7 and S.P. Mittal v. Union of India and  

others8 wherein the concept of religious denomination was  

                                                 4  Third Edition, Vol. 1, 1983 pg. 931  

5  [1962]  Suppl. 2 SCR 496  

6  (1964) 7 SCR 32  

7  (1966) 3 SCR 242 : AIR 1966 SC 1119  

8  (1983) 1 SCC 51

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discussed by this Court. It is the stand of the petitioners that  

some mere difference in practices carried out at Hindu Temples  

cannot accord to them the status of separate religious  

denominations.  

18. The contention of the petitioners is that Sabarimala Temple  

is not a separate religious denomination, for the religious  

parctices performed in Sabarimala Temple at the time of „Puja‟  

and other religious ceremonies are akin to any other practice  

performed in any Hindu Temple.  It does not have its separate  

administration, but is administered by or through a statutory  

body constituted under the „Travancore - Cochin Hindu Religious  

Institutions Act, 1950‟ and further, as per Section 29(3A) of the  

said Act, the Devaswom Commissioner is required to submit  

reports to the government, once in three months, with respect to  

the working of the Board.   

19. They have placed reliance on the decision of this Court in  

The Commissioner Hindu Religious Endowments, Madras v.  

Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt9  

wherein it was observed thus:  

                                                 9  [1954] SCR 1005  

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“The contention formulated in such broad terms  cannot, we think, be supported. In the first place,  what constitutes the essential part of a religion is  primarily to be ascertained with reference to the  doctrines of that religion itself. If the tenets of any  religious sect of the Hindus prescribe that offerings  of food should be given to the idol at particular  hours of the day, that periodical ceremonies should  be performed in a certain way at certain periods of  the year or that there should be daily recital of  sacred texts or ablations to the sacred fire, all these  would be regarded as parts of religion and the mere  fact that they involve expenditure of money or  employment of priests and servants or the use of  marketable commodities would not make them  secular activities partaking of a commercial or  economic character; all of them are religious  practices and should be regarded as matters of  religion within the meaning of article 26(b).”  

20. As per the petitioners, this Court in Shirur Mutt (supra),  

while giving freedom under clauses (a) and (b) of Article 26, made  

it clear that what is protected is only the „essential part‟ of  

religion or, in other words, the essence of „practice‟ practised by a  

religious denomination and, therefore, the petitioners submit that  

before any religious practice is examined on the touchstone of  

constitutional principles, it has to be ascertained positively  

whether the said practice is, in pith and substance, really the  

„essence‟ of the said religion.  

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21. The petitioners have also cited the judgment in Durgah  

Committee, Ajmer v. Syed Hussain Ali10 wherein  

Gajendragadkar, J. clarified that clauses (c) and (d) do not create  

any new right in favour of religious denominations but only  

safeguard their rights. Similarly, in matters of religious affairs, it  

is observed that the same is also not sacrosanct as there may be  

many ill-practices like superstitions which may, in due course of  

time, become mere accretions to the basic theme of that religious  

denomination. After so citing, the petitioners have submitted that  

even if any accretion added for any historical reason has become  

an essence of the said religious denomination, the same shall not  

be protected under Article 26(b) if it is so abhorring and is  

against the basic concept of our Constitution.   

22. It is also the case of the petitioners that discrimination in  

matters of entry to temples is neither a ritual nor a ceremony  

associated with Hindu religion as this religion does not  

discriminate against women but, on the contrary, Hindu religion  

accords to women a higher pedestal in comparison to men and  

such a discrimination is totally anti-Hindu, for restriction on the  

entry of women is not the essence of Hindu religion.  It has also  

                                                 10

(1962) 1 SCR 383

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been submitted by the petitioners that even if Sabarimala temple  

is taken as a religious denomination, their basic tenets are not  

confined to taking of oath of celibacy for certain period of  

pilgrimage as all pilgrims are allowed freely in the temple and  

there is no such practice of not seeing the sight of women during  

this period.  

23. Further, mere sight of women cannot affect one‟s celibacy if  

one has taken oath of it, otherwise such oath has no meaning  

and moreover, the devotees do not go to the Sabarimala temple  

for taking the oath of celibacy but for seeking the blessings of  

Lord Ayyappa. Maintaining celibacy is only a ritual for some who  

want to practise it and for which even the temple administration  

has not given any justification.  On the contrary, according to the  

temple administration, since women during menstrual period  

cannot trek very difficult mountainous terrain in the dense forest  

and that too for several weeks, this practice of not permitting  

them has started.   

24. It is averred by the petitioners that though no right is  

absolute, yet entry to temple may be regulated and there cannot  

be any absolute prohibition or complete exclusionary rule from  

entry of women to a temple. For substantiating this view, the

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petitioners have pressed into service the judgment of this Court  

in Shirur Mutt (supra), the relevant portion of which reads thus:  

“We agree, however, with the High Court in the view  taken by it about section 21. This section empowers  the Commissioner and his subordinate officers and  also persons authorised by them to enter the  premises of any religious institution or place of  worship for the purpose of exercising any power  conferred, or any duty imposed by or under the Act.  It is well known that there could be no such thing as  an unregulated and unrestricted right of entry in a  public temple or other religious institution, for  persons who are not connected with the spiritual  functions thereof. It is a traditional custom  universally observed not to allow access to any  outsider to the particularly sacred parts of a temple  as for example, the place where the deity is located.  There are also fixed hours of worship and rest for the  idol when no disturbance by any member of the  public is allowed. Section 21, it is to be noted, does  not confine the right of entry to the outer portion of  the premises; it does not even exclude the inner  sanctuary the Holy of Holies" as it is said, the  sanctity of which is `zealously preserved. It does not  say that the entry may be made after due notice to  the head of the institution and at such hours which  would not interfere with the due observance of the  rites and ceremonies in the institution. We think  that as the section stands, it interferes with the  fundamental rights of the Mathadhipati and the  denomination of which he is head guaranteed under  articles 25 and 26 of the Constitution.”  

25. The judgment of this Court in Sri Venkatramana Devaru  

v. State of Mysore and others11 has been cited to submit that a  

religious denomination cannot completely exclude or prohibit any                                                    11

(1958) SCR 895 : 1958 AIR 55

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class or section for all times.  All that a religious denomination  

may do is to restrict the entry of a particular class or section in  

certain rituals. The relevant portion of Devaru (supra) reads as  

under:  

“We have held that the right of a denomination to  wholly exclude members of the public from  worshipping in the temple, though comprised in Art.  26(b), must yield to the overriding right declared by  Art. 25(2)(b) in favour of the public to enter into a  temple for worship. But where the right claimed is  not one of general and total exclusion of the public  from worship in the temple at all times but of  exclusion from certain religious services, they being  limited by the rules of the foundation to the  members of the denomination, ,then the question is  not whether Art. 25(2)(b) over-rides that right so as  to extinguish it, but whether it is possible-so to  regulate the rights of the persons protected by Art.  25(2)(b) as to give effect to both the rights. If the  denominational rights are such that to give effect to  them would substantially reduce the right conferred  by Art. 25(2)(b), then of course, on our conclusion  that Art. 25(2)(b) prevails as against Art. 26(b), the  denominational rights must vanish. But where that  is not the position, and after giving effect to the  rights of the denomination what is left to the public  of the right of worship is something substantial and  not merely the husk of it, there is no reason why we  should not so construe Art. 25(2)(b) as to give effect  to Art. 26(b) and recognise the rights of the  denomination in respect of matters which are strictly  denominational, leaving the rights of the public in  other respects unaffected.”   

(Emphasis is ours)  

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26. After referring to Sections 3 and 4 of the Kerala Hindu  

Places of Public Worship (Authorization of Entry) Act, 1965 and  

Rule 3 (b) framed thereunder, the petitioners have submitted that  

the expression „at any such time‟ occurring in Rule 3(b) does not  

lead to complete exclusion/prohibition of any woman.  In other  

words, if at such time during which, by any custom or usage, any  

woman was not allowed, then the said custom or usage shall  

continue and to substantiate this claim, the petitioners have  

cited the example that if during late night, by custom or usage,  

women are not allowed to enter temple, the said custom or usage  

shall continue, however, it does not permit complete prohibition  

on entry of women. Further, the petitioners have submitted that  

any other interpretation of Rule 3(b) would render the said rule  

open to challenge as it would not only be violative of the Kerala  

Hindu Places of Public Worship (Authorization of Entry) Rules,  

1965 but also of Article 25(2)(b) of the Constitution read with  

Articles 14 and 15.   

Submissions on behalf of Intervenor in I.A No. 10 of 2016  

27. It has been submitted on behalf of the intervenor that the  

exclusionary practice of preventing women between the age of 10

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to 50 years based on physiological factors exclusively to be found  

in female gender violates Article 14 of the Constitution of India,  

for such a classification does not have a constitutional object. It  

is also the case of the applicant/intervenor that even if it is said  

that there is classification between men and women as separate  

classes,  there cannot be any further sub-classification among  

women on the basis of physiological factors such as  

menstruation by which women below 10 years and above 50  

years are allowed.   

28. It has been averred by the applicant/intervenor that as per  

Article 14, any law being discriminatory in nature has to have the  

existence of an intelligible differentia and the same must bear a  

rational nexus with the object sought to be achieved. The object  

as has been claimed is to prevent the deity from being polluted,  

which, in the view of the applicant/intervenor, runs counter to  

the constitutional object of justice, liberty, equality and fraternity  

as enshrined in the Preamble to our Constitution. That apart, the  

applicant/intervenor has submitted that though the classification  

based on menstruation may be intelligible, yet the object sought  

to be achieved being constitutionally invalid, the question of  

nexus need not be delved into.  

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29. Referring to the decision of this Court in Deepak Sibal v.  

Punjab University and another12, the applicant/intervenor has  

submitted that the exclusionary practice per se violates the  

sacrosanct principle of equality of women and equality before law  

and the burden of proving that it does not so violate is on the  

respondent no. 2, the Devaswom Board, which the said  

respondent has not been able to discharge.   

30. It has also been asseverated by the applicant/intervenor  

that the exclusionary practice is manifestly arbitrary in view of  

the judgment of this Court in Shayara Bano v. Union of India  

and others13 as it is solely based on physiological factors and,  

therefore, neither serves any valid object nor satisfies the test of  

reasonable classification under Article 14 of the Constitution.   

31. It has also been put forth by the applicant/intervenor that  

the exclusionary practice per se violates Article 15(1) of the  

Constitution which amounts to discrimination on the basis of sex  

as the physiological feature of menstruation is exclusive to  

females alone. In support of the said submission, the  

applicant/intervenor has placed reliance upon the judgments of  

this Court in Anuj Garg and others v. Hotel Association of  

                                                 12

 (1989) 2 SCC 145  13

 (2017) 9 SCC 1

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India and others14 and Charu Khurana and others v. Union  

of India and others15, to accentuate that gender bias in any  

form is opposed to constitutional norms.   

32. It is also the case of the applicant/intervenor that  

exclusionary practice has the impact of casting a stigma on  

women of menstruating age for it considers them polluted and  

thereby has a huge psychological impact on them which  

resultantly leads to violation of Article 17 as the expression „in  

any form‟ in Article 17 includes untouchability based on social  

factors and is wide enough to cover menstrual discrimination  

against women. It has further been submitted by  

applicant/intervenor that Article 17 applies to both State and  

non-State actors and has been made operative through a Central  

legislation in the form of Protection of Civil Rights Act, 1955. The  

judgment of the High Court in S. Mahendran (supra), in the view  

of the applicant/intervenor, is not in consonance with the  

provisions of the 1955 Act.   

33. Drawing support from the decisions of this Court in  

National Legal Services Authority v. Union of India and  

                                                 14

 (2008) 3 SCC 1  15

 (2015) 1 SCC 192

24  

others16 and Justice K.S. Puttaswamy and another v. Union  

of India and others17, the applicant/intervenor has averred that  

the exclusionary practice pertaining to women is violative of  

Article 21 of the Constitution as it impacts the ovulating and  

menstruating women to have a normal social day to day  

rendezvous with the society including their family members and,  

thus, undermines their dignity by violating Article 21 of the  

Constitution.   

34. It has also been submitted that the exclusionary practice  

violates the rights of Hindu women under Article 25 of the  

Constitution as they have the right to enter Hindu temples  

dedicated to the public. As per the applicant/intervenor, there is  

a catena of judgments by this Court wherein the rights of entry  

into temples of all castes have been upheld on the premise that  

they are Hindus and similarly, women who assert the right to  

enter the Sabarimala temple are also Hindus.   

35. The applicant/intervenor has referred to Section 4 of the  

Kerala Places of Public Worship (Authorization of Entry) Act,  

1965 and Rule 3(b) made under the said section which disentitles  

certain categories of people from entering any place of public  

                                                 16

 (2014) 5 SCC 438  17

 (2017) 10 SCC 1

25  

worship and this includes women who, by custom or usage, are  

not allowed to enter a place of public worship. It has further been  

submitted by the applicant/intervenor that Rule 3(b) is ultra vires  

the 1965 Act and is also unconstitutional for it violates Articles  

14, 15, 17, 21 and 25 of the Constitution in so far as it prohibits  

women from entering a public temple. The said Rule 3(b), as per  

the applicant/intervenor, is not an essential practice protected  

under Article 26 of the Constitution for it is not a part of religion  

as the devotees of Lord Ayyappa are just Hindus and they do not  

constitute a separate religious denomination under Article 26 of  

the Constitution as they do not have a common faith or a distinct  

name. To substantiate this view, the applicant/intervenor has  

drawn the attention of this Court to the judgment in S.P. Mittal  

(supra).   

36. It has been submitted by the applicant/intervenor that even  

if we assume that Sabarimala is a religious denomination, the  

exclusion of women is not an essential practice as it does not  

satisfy the test of essential practice as has been laid down by this  

Court in Commissioner of Police and others v Acharya  

Jagadishwarananda Avadhuta and another18.  

                                                 18

 (2004) 12 SCC 770  

26  

37. Referring to the judgment of this Court in Devaru (supra),  

the applicant/intervenor has submitted that the right to manage  

its own affairs conferred upon a religious denomination under  

Article 26(b) is subject to be rights guaranteed to Hindu women  

under Article 25(2)(b). As per the applicant/intervenor, a  

harmonious construction of Articles 25 and 26 of the  

Constitution reveals that neither Article 26 enables the State to  

make a law excluding any women from the right to worship in  

any public temple nor does it protect any custom that  

discriminates against women and, thus, such exclusion amounts  

to destruction of the rights of women to practise religion  

guaranteed under Article 25.   

38. The applicant/intervenor has also drawn the attention of  

this Court to the Convention on Elimination of all forms of  

Discrimination Against Women (CEDAW) and the fact that India  

is a party to this Convention for emphasizing that it is the  

obligation of the State to eradicate taboos relating to  

menstruation based on customs or traditions and further the  

State should refrain from invoking the plea of custom or tradition  

to avoid their obligation. The judgment of this Court in Vishaka   

27  

and others v. State of Rajasthan and others19 has been cited  

to submit that international conventions must be followed when  

there is a void in the domestic law or when there is any  

inconsistency in the norms for construing the domestic law.  

Submissions on behalf of Intervenor in I.A No. 34/2017  

39. The intervenor, All India Democratic Women‟s Association,  

has filed I.A No. 34/2017 wherein it has submitted that the  

meaning of the Constitution cannot be frozen and it must  

continuously evolve with the changing times. Further, the  

applicant submits that merely because Article 26 does not specify  

that it is subject to Part III or Article 25 of the Constitution, it  

cannot be said that it is insulated against Part III and especially  

Articles 14, 15 19, 21 and 25 of the Constitution. To emphasize  

the same, the applicant/intervenor has relied upon the  

observations made in Devaru case where the Court has stated  

that the rule of construction is well settled that when there are  

two provisions in an enactment which cannot be reconciled with  

each other, they should be so interpreted that, if possible, effect  

could be given to both. The Court observed that applying this  

rule of harmonious construction, if the contention of the  

                                                 19  

(1997) 6 SCC 241   

28  

appellants is to be accepted, then Art. 25(2)(b) will become wholly  

nugatory in its application to denominational temples, though, as  

stated above, the language of that Article includes them. The  

Court further observed that if the contention of the respondents  

is accepted, then full effect can be given to Article 26(b) in all  

matters of religion, subject only to this that as regards one aspect  

of them, entry into a temple for worship, the rights declared  

under Article 25(2)(b) will prevail and therefore while, in the  

former case, Article 25(2)(b) will be put wholly out of operation, in  

the latter, effect can be given to both that provision and Article  

26(b) and, hence, it must be accordingly held that Article  

26(b) must be read subject to Article 25(2)(b).  

Submissions on behalf of Respondent No. 1  

40. The State of Kerala, the first respondent herein, as indicated  

earlier, had taken contrary stands at different times. An affidavit  

was filed on 13.11.2007 which indicated that the Government  

was not in favour of discrimination towards any woman or any  

section of the society.  The said stand was changed in the  

affidavit dated 5.2.2016 taking the stand that the earlier affidavit  

was contrary to the judgment of the Kerala High Court. On  

7.11.2016 on a query being made by the Court, the learned

29  

counsel for the State submitted that it wanted to place reliance  

on the original affidavit dated 13.11.2007. It is contended by Mr.  

Jaideep Gupta, learned senior counsel appearing for the State of  

Kerala, that the 1965 Act and the Rules framed thereunder are in  

consonance with Article 25(2)(b) of the Constitution.  Reference  

has been made to Section 3 of the Act, for the said provision  

deals with places of public worship to be open to Hindus  

generally or any section or class thereof.  The concept of  

prohibition is not conceived of.  It is urged by Mr. Gupta that  

there is no restriction in view of the legislation in the field.  In  

essence, the stand of the State is that it does not conceive of any  

discrimination as regards the entry of women into the temple  

where male devotees can enter.  

Submissions on behalf of Respondent No. 2  

41. The respondent no. 2 has submitted that Sabarimala is a  

temple of great antiquity dedicated to Lord Ayyappa who the  

petitioner avers to be a deity depicting “a hyper masculine God  

born out of the union of two male Gods Shiva and Mohini, where  

Mohini is Vishnu in a female form.”  

42. Thereafter, the respondent no. 2 reiterated the submissions  

of the respondent no. 4 pertaining to the observance of 41 days

30  

„Vruthum‟ and the fact that the Sabarimala Temple is supposed  

to depict „Naishtika Brahmacharya‟. In addition to this, the  

respondent no. 2 has also referred to a Ph.D thesis by Radhika   

Sekar in the Department of Sociology and Anthropology at  

Carleton University, Ottawa, Ontario in October 1987 titled “The  

Process of Pilgrimage : The Ayyappa Cultus and Sabarimala  

Yatra” which has established the very raison d’etre for the  

existence of the denominational Temple of Sabarimala based  

upon deep penance, celibacy and abstinence by all visitors, male  

and female. The respondent no. 2 has also drawn the attention of  

the Court to the fact that the Sabarimala temple is open only  

during specific defined periods, that is, on the Malayalam month  

viz. 17th November to 26th December, for the first five days of  

each Malayalam month which starts approximately in the middle  

of each English calendar month and also during the period of  

Makar Sankranti, viz. approximately from January 1 to mid-

January of each year.   

Submissions on behalf of Respondent No. 4    

43. At the outset, the respondent no. 4 has drawn the attention  

of the Court to the history of Kerala in general and Sabarimala in  

particular and has highlighted the existence of stone inscriptions

31  

which state that the priest Kantaru Prabhakaru had made an  

idol consecration at Sabarimala years back and after the  

rampage of fire at Sabarimala, it was Kantaru Shankaru who  

consecrated the existing idol in Sabarimala. The respondent no. 4  

has submitted that the Thantri is the vedic head priest of Hindu  

temples in Kerala and the popularity of any temple depends to a  

great extent on the Thantri and Santhikkaran (Archaka) who  

must be able to induce a spiritual reverence among worshippers  

and explain the significance of the Mantras they recite and poojas  

they perform.   

44. The respondent no. 4 has averred that the custom and  

usage of young women (aged between 10 to 50 years) not being  

allowed to enter the Sabarimala temple has its traces in the basic  

tenets of the establishment of the temple, the deification of Lord  

Ayyappa and His worship. As per the respondent no. 4, Ayyappa  

had explained the manner in which the Sabarimala pilgrimage  

was to be undertaken emphasizing the importance of „Vrutham‟  

which are special observances that need to be followed in order to  

achieve spiritual refinement, and that as a part of the „Vruthum‟,  

the person going on pilgrimage separates himself from all family  

ties for 41 days and during the said period either the woman

32  

leaves the house or the man resides elsewhere in order to  

separate himself from all family ties.  Thereafter, the respondent  

no. 4 has pointed out that the problem with women is that they  

cannot complete the 41 days Vruthum as their periods would  

eventually fall within the said period and it is a custom among all  

Hindus that women do not go to temples or participate in  

religious activities during periods and the same is substantiated  

by the statement of the basic Thantric text of temple worshipping  

in Kerala Thantra Samuchayam, Chapter 10, Verse II.   

45. The respondent no. 4 has emphasized that the observance  

of 41 days Vruthum is a condition precedent for the pilgrimage  

which has been an age old custom and anyone who cannot fulfill  

the said Vruthum cannot enter the temple and, hence, women  

who have not attained puberty and those who are in menopause  

alone can undertake the pilgrimage at Sabarimala. The  

respondent no. 4 has also averred that the said condition of  

observance of 41days Vruthum is not applicable to women alone  

and even men who cannot observe the 41 days Vruthum due to  

births and deaths in the family, which results in breaking of  

Vruthum, are also not allowed to take the pilgrimage that year.  

33  

46. The respondent no. 4 has also drawn the attention of the  

Court to the fact that religious customs as well as the traditional  

science of Ayurveda consider menstrual period as an occasion for  

rest for women and a period of uncleanliness of the body and  

during this period, women are affected by several discomforts  

and, hence, observance of intense spiritual discipline for 41 days  

is not possible. The respondent no. 4 has also contented that it is  

for the sake of pilgrims who practise celibacy that young women  

are not allowed in the Sabarimala pilgrimage.    

47. The respondent no. 4, thereafter, contends that the  

prohibition is not a social discrimination but is only a part of the  

essential spiritual discipline related to this particular pilgrimage  

and is clearly intended to keep the mind of the pilgrims away  

from the distraction related to sex as the dominant objective of  

the pilgrimage is the creation of circumstances in all respects for  

the successful practice of spiritual self-discipline.   

48. The respondent no. 4 has also averred that for climbing the  

18 holy steps, one has to carry the irumudikettu (the sacred  

package of offerings) and for making the pilgrimage really  

meaningful, austerities for a period of 41 days have to be  

observed and, hence, for a meaningful pilgrimage, it is always

34  

prudent if women of the forbidden age group hold themselves  

back.   

49.  The respondent no. 4 further submits that „devaprasanam‟  

is a ritual performed for answering questions pertaining to  

religious practices when the Thantris are also unable to take  

decisions and that „devaprasanams‟ conducted in the past also  

reveal that the deity does not want young women to enter the  

precincts of the temple. As per the respondent no. 4, the  

philosophy involved in evolving a particular aspect of power in a  

temple is well reflected in the following mantra chanting during  

the infusion of divine power:  

“O the Supreme Lord! It is well known that You  pervade everything and everywhere‟ yet I am invoking  

You in this bimbhamvery much like a fan that gathers  and activates the all-pervading air at a particular spot.  At the fire latent in wood expresses itself through  

friction, O Lord be specially active in this bimbhamas a  result of sacred act.”    

50. The respondent no. 4 is of the view that it is the particular  

characteristic of the field of power, its maintenance and impact  

which the „Devaprasanam‟ deals with and „Devaprasanam‟  

confirms that the practice of women of particular age group not  

participating in the temple should be maintained.  

35  

51. To bolster his stand, the respondent no. 4 has also placed  

reliance upon the decision of the Kerala High Court in S.  

Mahendran (supra) wherein the then Thantri Shri Neelakandaru  

had deposed as C.W 6 and he stated that the present idol was  

installed by his paternal uncle Kantaru Shankaru and he  

confirmed that women of age group 10 to 50 years were not  

allowed to enter the temple even before 1950s. The said witness  

also deposed that his paternal uncle had instructed him and the  

temple officials to follow the old customs and usages.  

52. The respondent no. 4 has also drawn the attention of the  

Court to the opinion of this Court in Seshammal and others v.  

State of Tamil Nadu20, wherein it was observed that on the  

consecration of the image in the temple, the Hindu worshippers  

believe that the divine spirit has descended into the image and  

from then on, the image of the deity is fit to be worshipped and  

the rules with regard to daily and periodical worship have been  

laid down for securing the continuance of the divine spirit and as  

per the Agamas, an image becomes defiled if there is any  

departure or violation of any of the rules relating to worship.   

53. The respondent no. 4 has also submitted that the deity at  

Sabarimala in the form of „Naishtik Brahmachari‟ and that is also  

                                                 20

(1972) 2 SCC 11

36  

a reason why young women are not allowed inside the temple so  

as to prevent even the slightest deviation from celibacy and  

austerity observed by the deity.  

Submissions on behalf of Intervenor in I.A Nos. 12 and 13   

54. Another applicant/intervenor has filed I.A Nos. 12 and 13  

and his main submission is that this Court may remove the  

restriction which bars women between the age group of 10 to 50  

years from entering the Sabarimala temple for all days barring  

the period between 16th November to 14th January (60 days) as  

during the said period, Lord Ayyappa sits in the Sabarimala  

temple and Lord Ayyappa visits other temples all across the  

country during the remaining days. The applicant/intervenor  

further highlights that during the said period, the pilgrims  

coming to the temple must strictly follow the rituals which  

includes taking a 41 days Vruthum and one of the rituals  

pertains to not touching the ladies including daughters and wives  

as well. The applicant/intervenor has further submitted that if  

the restriction under Section 3(b) of the Kerala Hindu Places of  

Worship (Authorization of Entry) Rules, 1965 is allowed to  

operate only for the said period of 60 days, it would not amount  

to any violation of Articles 14, 15 and 17 of the Constitution and

37  

it would also be well within the ambit of Articles 25 and 26 of the  

Constitution.   

Rejoinder Submissions on behalf of the Petitioners  

55. In reply to the contention of the respondent no. 2-

Devaswom Board that the writ jurisdiction does not lie in the  

present matter, the petitioners submit that the validity of Section  

3(b) could not have been challenged in suit proceedings as the  

present writ petition has been filed against the State authorities  

and the Chief Thantri who has been impleaded as the respondent  

no. 4 is appointed by a Statutory Board; and since now „custom  

and usage‟ fall under the ambit of Article 13, they have become  

subject to the constitutional provisions contained in Part III  

whose violation can only be challenged in writ jurisdiction.   

56. Thereafter, the petitioners have submitted that the  

respondent no. 2 has merely pressed the theory of intelligible  

differentia to justify encircling of women of prohibited age without  

elaborating the object sought to be achieved and whether the  

differentia even has any nexus with the object and the object of  

preventing deflecting of the idol from the stage of celibacy cannot  

be achieved from the present classification.

38  

57. Further, the petitioners have submitted that the respondent  

no. 2 has wrongly stated that the Sabarimala temple is a  

religious denomination, for any temple under a statutory board  

like a Devaswom Board and financed out of the Consolidated  

Fund of Kerala and whose employees are employed by the Kerala  

Service Commission cannot claim to be an independent „religious  

denomination‟.  

58. Besides, the petitioners have contended that several ill-

practices in existence and falling within the ambit of religion as  

cited by the respondent no. 2 may not be acceptable today and  

the said practices have not come up before this Court and should  

not be taken cognizance of. Further, it is the view of the  

petitioners that the said practices cannot be held to be the  

essence of religion as they had evolved out of convenience and, in  

due course of time, have become crude accretions. To prove its  

point, the petitioners have cited the examples of the practices of  

dowry and restriction of women from entering mosques which,  

although had come into existence due to certain factors existing  

at the relevant time, no longer apply.   

59. Thereafter, the petitioners have contended that if   

Sabarimala does not come in the category of religious

39  

denomination, then it cannot claim the right under Article 26 and  

it would come within the purview of Article 12 making it subject  

to Articles 14 and 15 and, hence, the State would be restrained  

from denying equal protection of law and cannot discriminate on  

the basis of sex. Even if it is concluded that Sabarimala is a  

religious denomination, then as per the Devaru case, there has  

to be a harmonious construction between Articles 25 and 26 of  

the Constitution and, thus, to completely deny women of the age  

group of 10 to 50 years from entering the temple would be  

impermissible as per the Devaru case. Finally, the petitioners  

have submitted that in legal and constitutional parlance, after  

coming into effect of the Constitution of India, „dignity of women‟  

under Article 51A(e) is an essential ingredient of constitutional  

morality.  

Rejoinder Submissions on behalf of Intervenor in I.A No. 10  of 2016    60. The applicant/intervenor has submitted that the law  

relating to  entry into temple for darshan is separate and distinct  

from the law relating to management of religious affairs. The  

former is governed by Article 25 and the latter is governed by  

Article 26. Further, the applicant/intervenor has pointed out that  

even those institutions which are held to be denominations and

40  

claim protection under Article 26 cannot deny entry to any  

person for the purpose of darshan and the ex facie denial of  

women between the age group of  10 to 50 years violates Articles  

14, 15, 21 and 25 of the Constitution.  

61. Thereafter, the applicant/intervenor has averred that the  

question whether Sabarimala is a denomination or not is  

irrelevant for the reason that even if it is concluded that  

Sabarimala is a denomination, it can claim protection of only  

essential practices under Article 26(b) and denial of entry to  

women between the age of 10 to 50 years cannot be said to be an  

essential aspect of the Hindu religion. Further, the  

applicant/intervenor has also averred that Sabarimala does not  

satisfy the test of religious denomination as laid down in S.P.  

Mittal (supra).  

62. The applicant/intervenor has also submitted that the  

respondents, by referring to the practice as a custom with  

aberrations, have themselves suggested that there has been no  

continuity in the applicability of the said custom and that it has  

also been established in the evidence before the High Court that  

women irrespective of their age were permitted to enter the  

Sabarimala for the first rice feeding ceremony of their children

41  

and it is only since the last 60 years after the passing of the  

Notification in 1955 that women between the age of 10 to 50  

years were prohibited from entering the temple. The  

applicant/intervenor has also pointed out that even if the said  

practice is considered to be a custom, it has to still pass the test  

of constitutional morality and constitutional legitimacy and the  

applicant/intervenor has relied upon the decision of this Court in  

Adi Saiva Sivachariyargal Nala Sangam and others v.  

Government of Tamil Nadu and others 21 wherein it was  

observed:  

“48. Seshammal vs State of T.N., (1972) 2 SCC 11] is  not an authority for any proposition as to what an  Agama or a set of Agamas governing a particular or  group of temples lay down with regard to the question  that confronts the court, namely, whether any  particular denomination of worshippers or believers  have an exclusive right to be appointed as Archakas to  perform the poojas. Much less, has the judgment  taken note of the particular class or caste to which the  Archakas of a temple must belong asprescribed by the  Agamas. All that it does and says is that some of the  Agamas do incorporate a fundamental religious belief  of the necessity of performance of the poojas by  Archakas belonging to a particular and distinct  sect/group/denomination, failing which, there will be  defilement of deity requiring purification ceremonies.  Surely, if the Agamas in question do not proscribe any  group of citizens from being appointed as Archakas on  the basis of caste or class the sanctity of Article 17 or  any other provision of Part III of the Constitution or  even theProtection of Civil Rights Act, 1955 will not be  

                                                 21

(2016) 2 SCC 725

42  

violated. What has been said in Seshammal  [Seshammal v. State of T.N., (1972) 2 SCC 11] (supra)  is that if any prescription with regard to appointment  of Archakas is made by the Agamas, Section 28 of the  Tamil Nadu Act mandates the trustee to conduct the  temple affairs in accordance with such custom or  usage. The requirement of constitutional conformity is  inbuilt and if a custom or usage is outside the  protective umbrella afforded and envisaged by Articles  25 and 26, the law would certainly take its own  course. The constitutional legitimacy, naturally, must  supersede all religious beliefs or practices.”     

63. In reply to the contention of the respondents that the basis  

for exclusion of women is that women cannot observe the 41 days  

Vruthum and also on the ground that Ayyappa is a celibate God,  

the applicant/intervenor has submitted that the meaning of  

celibacy is the abstinence from sex and the respondents by  

suggesting that women cannot practice Vruthum which requires  

abstinence from sex are stigmatizing women and stereotyping  

them as being weak and lesser human beings than men. Hence,  

the classification, in view of the applicant/intervenor, is not  

based on intelligible differentia.   

64. The applicant/intervenor has also submitted that  

menstruating women and untouchables are being treated as  

similar in terms of entry to temple and, hence, the custom in  

dispute amounts to „untouchability‟.  

43  

65. The applicant/intervenor has, thereafter, drawn the  

attention of the Court to the fact that although the respondents  

aver that they do not intend to discriminate on the basis of  

gender, yet the Court has to test the violation of the fundamental  

rights not on the basis of intention but the impact of the  

impugned action. The applicant/intervenor has stated that the  

respondents have wrongly placed reliance upon the decision in  

T.M.A. Pai Foundation and others v. State of Karnataka and  

others22 as in the present case, the issue is not one pertaining to  

the rights of minorities but concerning the unconstitutional acts  

of the majority.   

66. The applicant/intervenor has also submitted that the age-

old practice of considering women as impure while they are  

menstruating amounts to untouchability and stigmatizes them as  

lesser human beings and is, therefore, violative of Articles14, 15,  

17 and 21 of the Constitution.   

Submissions of learned Amicus Curiae, Sr. Advocate Mr. Raju  Ramchandran, assisted by Mr. K. Parameshwar  

67. It is submitted on the behalf of learned Senior Advocate Mr.  

Raju Ramchandran, that the Sabarimala Sree Dharma Sastha  

Temple, Kerala is a public temple being used as a place of  

                                                 22

(1995) 5 SCC 220

44  

worship where members of the public are admitted as a matter of  

right and entry thereto is not restricted to any particular  

denomination or part thereof. As per the learned Amicus, the  

public character of the temple gives birth to the right of the  

devotees to enter it for the purpose of darshan or worship and  

this universal right to entry is not a permissive right dependent  

upon the temple authorities but a legal right in the true sense of  

the expression. To advance this view, the learned Amicus has  

relied upon the decisions of this Court in Deoki Nandan v.  

Murlidhar and others23 and Sri Radhakanta Deb and  

another v. Commissioner of Hindu Religious Endowments,  

Orissa24.  

68. As regards the nature of the right claimed by the petitioners  

herein, learned Senior Advocate, Mr. Raju Ramchandran, the  

learned Amicus, has submitted that it is the freedom of  

conscience and the right to practise and profess their religion  

which is recognized under Article 25 of the Constitution of India.  

This right, as per the learned Amicus, encompasses the liberty of  

belief, faith and worship, pithily declared as a constitutional  

vision in the Preamble to the Constitution of India.   

                                                 23  AIR 1957 SC 133  24  (1981) 2 SCC 226   

45  

69. Learned Senior Advocate Mr. Raju Ramchandran, the  

learned Amicus, submits that the right of a woman to visit and  

enter a temple as a devotee of the deity and as a believer in  

Hindu faith is an essential aspect of her right to worship without  

which her right to worship is significantly denuded. Article 25  

pertinently declares that all persons are „equally‟ entitled to freely  

practise religion. This, in view of the learned Amicus, implies not  

just inter-faith but intra-faith parity. Therefore, the primary right  

under Article 25(1) is a non-discriminatory right and is, thus,  

available to men and women professing the same faith.   

70. Further, it has been put forth that the constitutional intent  

in keeping the understanding of untouchability in Article 17  

open-textured was to abolish all practices based on the notion of  

purity and pollution. This Article proscribes untouchability „in  

any form‟ as prohibited and the exclusion of menstruating  

women from religious spaces and practices is no less a form of  

discrimination than the exclusion of oppressed castes. After  

referring to Section 7(c) of the Civil Rights Act, 1955, which  

criminalizes the encouragement and incitement to practise  

untouchability in „any form whatsoever‟ and the Explanation II  

appended to the said Section, the learned Amicus has submitted

46  

that untouchability cannot be understood in a pedantic sense  

but must be understood in the context of the Civil Rights Act to  

include any exclusion based on the notions of purity and  

pollution.   

71. It is also the view of the learned Amicus that the phrase  

„equally entitled to‟ in Article 25(1) finds resonance in Section 3(a)  

of the Civil Rights Act, 1955 which criminalizes exclusion of  

people to those places which are “open to other persons  

professing the same religion or any section thereof, as such  

person” and prevention of worship “in the same manner and to  

the same extent as is permissible to other persons professing the  

same religion or any section thereof, as such persons”. That  

apart, the learned Amicus has drawn our attention to Section  

2(d) of the 1955 Act which defines „place of public worship‟ to  

mean, inter alia, „by whatever name belonging to any religious  

denomination or any section thereof, for the performance of any  

religious service‟ and, therefore, the Amicus submits that a  

temple is a public temple and irrespective of its denominational  

character, it cannot prevent the entry of any devotee aspiring to  

enter and worship.  

47  

72. After placing reliance on the decision of this Court in K.S.  

Puttaswamy (supra), the Amicus has submitted that the  

exclusionary practice in its implementation results in involuntary  

disclosure by women of both their menstrual status and age  

which amounts to forced disclosure that consequently violates  

the right to dignity and privacy embedded in Article 21 of the  

Constitution of India.   

73. It has also been submitted by the Amicus Curiae that  

Article 25(2)(b) is not a mere enabling provision but is a  

substantive right as it creates an exception for laws providing for  

social reform or throwing open of Hindu religious institutions of a  

public character to all classes and sections of Hindus and  

thereby embodies the constitutional intent of abhorring  

exclusionary practices. Further, referring to the judgment of this  

Court in Devaru (supra), the learned Amicus has submitted that  

Article 25(2)(b) does not merely seek to prevent exclusionary  

practices on the basis of caste only, for the rights under Part III of  

the Constitution must be given a broad meaning and any  

exception must be given a narrow construction.   

74. Further, it has been submitted by the learned Amicus that  

the exclusionary practice in the present case cannot be justified

48  

either on the grounds of health, public order or morality for the  

term „morality‟ used in Article 25 or 26 is not an individualized or  

sectionalized sense of morality subject to varying practices and  

ideals of every religion but it is the morality informed by the  

constitutional vision. The judgments of this Court in Adi Saiva  

Sivachariyargal Nala Sangam (supra), Manoj Narula v.  

Union of India25 and National Legal Services Authority   

(supra) have been pressed into service by the Amicus to  

accentuate that any subjective reading of the term „morality‟ in  

the context of Article 25 would make the liberty of faith and  

worship otiose and the exclusion of women as in the present case  

is a matter of institutional practice and not morality.    

75. The Amicus has also cited the judgments of this Court in  

Acharya Jagadishwarananda Avadhuta (supra) to submit  

that in order to claim protection of the doctrine of essential  

religious practices, the practice to exclude women from entry to  

the Sabarimala temple must be shown by the respondents to be  

so fundamental to the religious belief without which the religion  

will not survive.  On the contrary, no scriptural evidence has  

                                                 25  (2014) 9 SCC 1

49  

been led by the respondents herein to demonstrate that the  

exclusion of women is an essential part of their religion.  

76. After referring to Section 3 of the Kerala Hindu Places of  

Public Worship (Authorization of Entry) Act, 1965 which makes a  

place of worship open to all sections and classes, Mr. Raju  

Ramchandran, learned senior counsel, is of the view that the said  

Section is nothing but a statutory enunciation of rights embodied  

under Article 25(2)(b) and similarly, the emphasis on the word  

„like‟ in Section 3 is the statutory reflection of the phrase „equally‟  

found in Article 25(1). That apart, it is the case of the learned  

Amicus curiae that the expression „section‟ or „class‟ in Section  

2(c) of the 1965 Act must necessarily include all sexes if Section  

3 is to be in consonance with a woman‟s right to worship under  

Article 25 and in consonance with Article 15.  As per the learned  

Amicus, women between the age of 10 to 50 years are a section  

or class of Hindus who are within the inclusive provision of  

Section 3 and the proviso to Section 3 brings in the right  

conferred in Article 26, for the inter-play between Section 3 and  

the proviso must be governed by how Articles 25(2)(b) and 26 are  

reconciled by the judgment of this Court in Devaru (supra).  

50  

77. It have been asseverated by Mr. Raju Ramchandran, learned  

senior counsel, that Rule 3(b) of the Kerala Hindu Places of  

Public Worship (Authorization of Entry) Rules, 1965 is ultra vires  

Sections 3 and 4 of the 1965 Act, for the reason that it protects  

„custom and usage‟ which may prohibit entry when Section 3  

expressly overrides custom and usage.  The said rule, in view of  

the learned Amicus, discriminates against women when Section 4  

makes it clear that rules made under it cannot be discriminatory  

against any section or class. It is submitted that the power  

entrusted under the 1965 Act to make rules, inter alia, for due  

observance of religious rights and ceremonies is for the  

furtherance of a devotee‟s right to worship under Article 25,  

whereas to the contrary, Rule 3(b), by saving „custom and usage‟,  

militates against the very purpose of the 1965 Act which is to  

protect the right to worship guaranteed under Article 25.   

78. It has also been pointed out that there is another Rule,  

similar to Rule 3(b), in the form of Rule 6(c) framed under the  

1950 Act, which was relied upon by the High Court and this Rule  

6(c) has not been assailed by the petitioners in the present writ  

petition, but in view of the learned Amicus, this Rule 6(c) would

51  

also be unconstitutional for the same reason that Rule 3(b) is  

unconstitutional.   

79. The burden to prove that the devotees of Lord Ayyappa form  

a denomination within the meaning of Article 26, as per the  

learned Amicus, is on the respondents, which they have failed to  

discharge as none of the three tests for determination of  

denominational status, i.e., (i) common faith, (ii) common  

organization and (iii) designation by a distinctive name, have  

been established by the respondents. Further, the Amicus has  

submitted that the decision of the Kerala High Court in S.  

Mahendran (supra) does not indicate finding of a denominational  

status.  

80. It is also submitted by the learned Amicus that Devaswom  

Board in its counter affidavit before the Kerala High Court in S.  

Mahendran (supra), had asserted, as is reflected vide para 7 of  

the judgment, that there was no such prohibition against women  

entering the temple and that there was no evidence to suggest  

any binding religious practice and, likewise, the High Court, in its  

judgment vide para 34, found the exclusionary practice as just a  

usage and not a religious custom or essential religious practice.  

52  

81. The learned Amicus also averred that even if we are to  

assume that the devotees of Lord Ayyappa constitute a separate  

denomination, the rights conferred under Article 26 being subject  

to the constitutional standard of morality, exclusion of women  

from entry would violate this standard of morality for a  

denomination‟s right to manage its affairs in matters of religion  

under Article 26(b) is subject to Article 25(2)(b) as has been  

succinctly explained by this Court in Devaru (supra) by  

observing thus:  

“And lastly, it is argued that whereas Article 25 deals  with the rights of individuals, Article 26 protects the  rights of denominations, and that as what the  appellants claim is the right of the Gowda Saraswath  Brahmins to exclude those who do not belong to that  denomination, that would remain unaffected by Article  25(2)(b). This contention ignores the true nature of the  right conferred by Article 25(2)(b). That is a right  conferred on "all classes and sections of Hindus" to  enter into a public temple, and on the unqualified  terms of that Article, that right must be available,  whether it is sought to be exercised against an  individual under Article 25(1) or against a  denomination under Article 26(b).  The fact is that  though Article 25(1) deals with rights of individuals,  Art. 25(2) is much wider in its contents and has  reference to the rights of communities, and controls  both Article 25(1) and Article 26(b).”    

53  

Submissions of learned Amicus Curiae, Senior Advocate Mr.  

K. Ramamoorthy   

 82. It has been asseverated by learned Senior Advocate Mr. K.  

Ramamoorthy, learned Amicus curiae, that in all prominent  

Hindu temples in India, there had been some religious practices  

based on religious beliefs, which are essential part of the Hindu  

religion as considered by people for a long time. It has been  

submitted that the devotees of Lord Ayyappa could also be  

brought within the ambit of religious denomination who have  

been following the impugned religious practice which has been  

essential part of religion.   

83. Mr. K. Ramamoorthy, learned senior counsel, has submitted  

that the petitioners herein have not disputed that the impugned  

religious practice in Sabarimala temple is not a religious practice  

based on religious belief for several centuries, rather the  

petitioners have only argued that such a practice is violative of  

Article 25 of the Constitution. It is also submitted by Mr. K.  

Ramamoorthy that in any of the judgments cited by the  

petitioners, the question never arose as to what the religious  

practice on the basis of religious belief is and, accordingly, the  

question as to whether religious practices based on religious

54  

beliefs in all prominent temples in India are violative of  

Articles14, 15, 17, 21 and 25 of the Constitution is to be  

considered herein.   

84. It has been put forth by Mr. K. Ramamoorthy that the  

protection of Articles 25 and 26 are not limited to the matters of  

doctrine or belief, rather they extend to acts done in pursuance of  

religion and, therefore, contain a guarantee for rituals,  

observations, ceremonies and modes of worship which are  

integral parts of religion. It has been submitted that what  

constitutes an essential part of a religious practice is to be  

decided with reference to the practices which are regarded by a  

large section of the community for several centuries and,  

therefore, would have to be treated as a part of the religion.     

85. It has also been averred that Ayyappa temple by itself is a  

denomination as contemplated under Article 26 having regard to  

the nature of worship and the practices followed by the temple  

and similarly, the devotees of Ayyappa temple would also  

constitute a denomination who have accepted the impugned  

religious practice based on religious belief which has been in  

vogue for several centuries unbroken and accepted by all sections  

of Hindus.

55  

86. It has been submitted that it is too late in the day to  

contend that religious practice based on religious faith, adhered  

to and followed by millions of Hindus for so long in consonance  

with the natural rights of men and women is violative of  

fundamental rights. It is also the case of the Amicus Mr. K.  

Ramamoorthy that to project such a religious practice as being  

contrary to natural law is a shock to the judgment of the  

community, as calling such a religious practice contrary to  

fundamental rights amounts to offending the common sense and  

wisdom of our ancestors in faithfully following the command of  

the divine. Further, no group or individual can force other  

Hindus to follow their view in the domain of religious faith.   

87. As regards the challenge raised by the petitioners against  

Rule 3(b) of the Kerala Hindu Places of Public Worship  

(Authorization of Entry) Rules, 1965, it is asseverated by Mr. K.  

Ramamoorthy  that the question which arises is whether the  

State Government, with reference to such a religious practice,  

could make a rule so that the general public would know the  

denominational character of the temple and the religious practice  

followed by the temple.   

56  

Followers of Lord Ayyappa do not constitute a religious  

denomination  

 88. Article 26 of the Constitution of India guarantees to every  

religious denomination the right (a) to establish and maintain  

institutions for religious and charitable purposes; (b) to manage  

its own affairs in matters of religion; (c) to own and acquire  

movable and immovable property; and (d) to administer such  

property in accordance with law. However, these rights are  

subject to public order, morality and health.  

89. The important question that emerges is as to what  

constitutes a religious denomination. The said question has been  

the subject matter of several decisions of this Court beginning  

from Shirur Mutt (supra) wherein the Court observed thus:  

“As regards Article 26, the first question is, what is  the precise meaning or connotation of the expression  "religious denomination" and whether a Math could  come within this expression. The word  "denomination" has been defined in the Oxford  Dictionary to mean 'a collection of individuals  classed together under the same name: a religious  sect or body having a common faith and  Organisation and designated by a distinctive name.  It is well known that the practice of setting up Maths  as centres of the logical teaching was started by Shri  Sankaracharya and was followed by various teachers  since then. After Sankara, came a galaxy of religious  teachers and philosophers who founded the different  sects and sub-sects of the Hindu religion that we  find in India at the present day. Each one of such

57  

sects or sub-sects can certainly be balled a religious  denomination, as it is designated by a distinctive  name, -in many cases it is the name of the founder, - and has a common faith and common spiritual  organization. The followers of Ramanuja, who are  known by the name of Shri Vaishnabas, undoubtedly  constitute a religious denomination; and so do the  followers of Madhwacharya and other religious  teachers. It is a fact well established by tradition that  the eight UdipiMaths were founded by  Madhwacharya himself and the trustees and the  beneficiaries of these Maths profess to be followers of  that teacher. The High Court has found that the  Math in question is in charge of the Sivalli Brahmins  who constitute a section of the followers of  Madhwacharya. As article 26 contemplates not  merely a religious denomination but also a section  thereof, the Math or the spiritual fraternity  represented by it can legitimately come within the  purview of this article.”  

90. In S.P. Mittal (supra), the challenge was with regard to the  

validity of the Auroville (Emergency) Provisions Act, 1980 as  

being violative of Articles 25 and 26 of the Constitution. Sri  

Aurobindo postulated the philosophy of cosmic salvation and  

along with the disciples found the Aurobindo Society for  

preaching and propagating the teachings of Sri Aurobindo and  

The Mother through its centres in India as well as abroad. After  

the death of Sri Aurobindo, the Mother proposed an international  

cultural township, Auroville, in the then Pondicherry. The society  

received funds as grants from the Central Government, State

58  

Government and other organizations in India as well as from  

outside India for development of the township at Auroville. Upon  

the death of the Mother, the Government started receiving  

complaints about the mismanagement of the society and,  

accordingly, enacted the Auroville (Emergency) Provisions Act,  

1980. The Supreme Court, by a majority of 4:1, ruled that neither  

the society nor the township of Auroville constituted a religious  

denomination, for the teachings and utterances of Sri Aurobindo  

did not constitute a religion and, therefore, taking over of the  

Auroville by the Government did not infringe the society‟s right  

under Articles 25 and 26 of the Constitution.  

91. The Court referred, inter alia, to the MoA of the society along   

with Rule 9 of the Rules and Regulations of Sri Aurobindo Society  

which dealt with membership and read thus:  

“9. Any person or institution for organisation either  

in India or abroad who subscribes to the aims and  

objects of the Society, and whose application for  

membership is approved by the Executive  

Committee, will be member of the Society. The  

membership is open to people everywhere without  

any distinction of nationality, religion, caste, creed or  

sex.”  

After so referring, the Court opined thus:

59  

“The only condition for membership is that the  person seeking the membership of the Society must  subscribe to the aims and objects of the Society. It  was further urged that what is universal cannot be a  religious denomination. In order to constitute a  separate denomination, there must be something  distinct from another. A denomination, argues the  counsel, is one which is different from the other and  if the Society was a religious denomination, then the  person seeking admission to the institution would  lose his previous religion. He cannot be a member of  two religions at one and the same time. But this is  not the position in becoming a member of the Society  and Auroville. A religious denomination must  necessarily be a new one and new methodology must  be provided for a religion. Substantially, the view  taken by Sri Aurobindo remains a part of the Hindu  philosophy. There may be certain innovations in his  philosophy but that would not make it a religion on  that account.”  

92. The Court in S.P Mittal (supra) reiterated  and concurred  

with the definition of „religious denomination‟ which was also  

accepted in Shirur Mutt (supra) and observed as under:  

"The words 'religious denomination' in Article 26 of  

the Constitution must take their colour from the  

word 'religion' and if this be so, the expression  

'religious denomination' must also satisfy three  

conditions:  

(1) It must be a collection of individuals who  

have a system of beliefs or doctrines which  

they regard as conducive to their spiritual  

well-being, that is, a common faith;  

(2) common organisation, and  

(3) designation by a distinctive name."

60  

93. In the case of Nallor Marthandam Vellalar and others v.  

Commissioner, Hindu Religious and Charitable Endowment   

and others26, the question that arose before the Court was  

whether the temple at Nellor owned by the Vellala Community of  

Marthandam constituted a „religious denomination‟ within the  

meaning of Article 26 of the Constitution. It was argued in this  

case that the Vellala Community observed special religious  

practices and beliefs which are integral part of their religion and  

that the front mandappam of the sanctorium is open to access  

only to the members of their community and no one else and  

outsiders can offer worship from the outer compound. The Court  

held that the temple at Nellor owned by the Vellala Community of  

Marthandam did not constitute a religious denomination as there  

was no evidence to prove that the members of the Vellala  

Community had common religious tenets peculiar to themselves  

other than those which are common to the entire Hindu  

community and further, the Court, following the principle laid  

down in S.P. Mittal (supra), observed:  

“It is settled position in law, having regard to the  various decisions of this Court that the words   

                                                 26

(2003) 10 SCC 712

61  

"religious denomination" take their colour from the  word `religion'. The expression "religious  denomination" must satisfy three requirements – (1) it  must be collection of individuals who have a system of  belief or doctrine which they regard as conducive to  their spiritual well-being, i.e., a common faith; (2) a  common organisation; and (3) designation of a  distinctive name. It necessarily follows that the  common faith of the community should be based on  religion and in that they should have common  religious tenets and the basic cord which connects  them, should be religion and not merely  considerations of caste or community or societal  status.”  

94. As is decipherable form the above decisions of this Court,  

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.  

95. Though, the respondents have urged 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. We have also been  

apprised that there are other temples for Lord Ayyappa and there

62  

is no such prohibition.  Therefore, there is no identified sect.   

Accordingly, we hold, without any hesitation, that Sabarimala  

temple is a public religious endowment and there are no  

exclusive identified followers of the cult.  

96. Coming to the first and 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 well-being, there is nothing on record  

to show that the devotees of Lord Ayyappa have any 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 just Hindus and do not constitute a separate  

religious denomination. 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.  

Enforceability of Fundamental Rights under Article 25(1) against  

the Travancore Devaswom Board    97. 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

63  

fact that Section 15 of the 1950 Act vests all powers of direction,  

control and supervision over it in the Travancore Devaswom  

Board which, in our  foregoing analysis, 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. We have also discussed the secular character of the  

Indian Constitution as well as the broad meaning assigned to the  

term religion occurring in various Articles of the Constitution  

including Article 25(1).   

98. Now adverting to the rights guaranteed under Article 25(1)  

of the Constitution, be it clarified that 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.   

99. 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

64  

the act of practice is concerned, primarily, with religious worship,  

rituals and observations as held in Rev. Stainislaus v. State of  

Madhya Pradesh and others27. Further, it has been held in  

Shirur Mutt (supra) that the logic underlying the constitutional  

guarantee regarding „practice‟ of religion is that religious  

practices are as such a part of religion as religious faith or  

doctrines.   

100. 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). When  

we say so, we are absolutely alive to the fact that whether any  

such proposed exclusion of women from entry into religious  

places forms an essential part of a religion would be examined at  

a subsequent stage.   

101. We have no hesitation to say that such an exclusionary  

practice 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. We concur with the view  

                                                 27

(1977) 1 SCC 677

65  

of the Amicus Curiae, learned senior counsel, Mr. Raju  

Ramachandran, that 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.   

102. Though not in reference to men or women, yet in the context  

of any Hindu worshipper seeking entry in a temple which is a  

public place of worship for Hindus, the observations of the  

Supreme Court in Nar Hari Shastri and others v. Shri  

Badrinath Temple Committee28 are quite instructive wherein  

the Court opined thus:  

“It seems to us that the approach of the court below  to this aspect of the case has not been quite proper,  and, to avoid any possible misconception, we would  desire to state succinctly what the correct legal  position is. Once it is admitted, as in fact has been  admitted in the present case, that the temple is a  public place of worship of the Hindus, the right of  entrance into the temple for purposes of 'darshan' or  worship is a right which flows from the nature of the  institution itself, and for the acquisition of such  rights, no custom or immemorial usage need be  

asserted or proved…..”  

And again:  

                                                 28

AIR 1952 SC 245  

66  

“The true position, therefore, is that the plaintiffs'  right of entering the temple along with their Yajmans  is not a precarious or a permissive right depending  for its existence upon the arbitrary discretion of the  temple authorities; it is a legal right in the true sense  of the expression but it can be exercised subject to  the restrictions which the temple committee may  impose in good faith for maintenance of order and  decorum within the temple and for ensuring proper  performance of customary worship. In our opinion,  the plaintiffs are entitled to a declaration in this  

form.”  

103. Another authoritative pronouncement in regard to the  

freedom to practise a religion freely without with any fictitious  

and vague constraint is the case of Acharya  

Jagadishwarananda Avadhuta (supra), wherein the Court  

observed thus:  

“The full concept and scope of religious freedom is  that there are no restraints upon the free exercise of  religion according to the dictates of one's conscience  or upon the right freely to profess, practice and  propagate religion save those imposed under the  police power of the State and the other provisions of  Part II of the Constitution. This means the right to  worship God according to the dictates of one's  conscience. Man's relation to his God is made no  concern for the State. Freedom of conscience and  religious belief cannot, however, be, set up to avoid  those duties which every citizen owes to the nation;  e.g. to receive military training, to take an oath  expressing willingness to perform military service  

and so on.”  

104. Therefore, it can be said without any hesitation or  

reservation that the impugned Rule 3(b) of the 1965 Rules,

67  

framed in pursuance of the 1965 Act, that 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.  

105. When we say so, we may also make it clear that 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.   

106. The term „morality‟ occurring in Article 25(1) of the  

Constitution cannot be viewed with a narrow lens so as to confine

68  

the sphere of definition of morality to what an individual, a  

section or religious sect may perceive the term to mean. We must  

remember that 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.  

107. In Manoj Narula (supra), this Court has reflected upon the  

predominant role that the concept of constitutional morality  

plays in a democratic set-up and opined thus:  

“The principle of constitutional morality basically  means to bow down to the norms of the Constitution  and not to act in a manner which would become  violative of the rule of law or reflectible of action in  an arbitrary manner. It actually works at the  fulcrum and guides as a laser beam in institution  building. The traditions and conventions have to  grow to sustain the value of such a morality. The  democratic values survive and become successful  where the people at large and the persons-in-charge  of the institution are strictly guided by the  constitutional parameters without paving the path of  deviancy and reflecting in action the primary  concern to maintain institutional integrity and the  requisite constitutional restraints. Commitment to  

the Constitution is a facet of constitutional morality.”  

69  

108. That apart, this Court, in Government of NCT of Delhi v.  

Union of India and others29, observed thus:  

“Constitutional morality in its strictest sense of the  term implies strict and complete adherence to the  constitutional principles as enshrined in various  segments of the document. When a country is  endowed with a Constitution, there is an  accompanying promise which stipulates that every  member of the country right from its citizens to the  high constitutional functionaries must idolize the  constitutional fundamentals. This duty imposed by  the Constitution stems from the fact that the  Constitution is the indispensable foundational base  that functions as the guiding force to protect and  ensure that the   democratic   setup   promised   to    

the   citizenry   remains unperturbed.”  

109. Elaborating further, in Navtej Singh Johar and others v.  

Union of India and others30, this Court observed:  

“The concept of constitutional morality is not limited  to the mere observance of the core principles of  constitutionalism as the magnitude and sweep of  constitutional morality is not confined to the  provisions and literal text which a Constitution  contains, rather it embraces within itself virtues of a  wide magnitude such as that of ushering a  pluralistic and inclusive society, while at the same  time adhering to the other principles of  constitutionalism. It is further the result of  embodying constitutional morality that the values of  constitutionalism trickle down and percolate through  the apparatus of the State for the betterment of each  

and every individual citizen of the State.”  

                                                 29

(2018) 8 SCALE 72  30

(2018) 10 SCALE 386

70  

And again:  

“115. The society as a whole or even a minuscule  part of the society may aspire and prefer different  things for themselves. They are perfectly competent  to have such a freedom to be different, like different  things, so on and so forth, provided that their  different tastes and liking remain within their legal  framework and neither violates any statute nor  results in the abridgement of fundamental rights of  any other citizen. The Preambular goals of our  Constitution which contain the noble objectives of  Justice, Liberty, Equality and Fraternity can only be  achieved through the commitment and loyalty of the  organs of the State to the principle of constitutional  

morality”  

110. 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, we must make  

it 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

71  

themselves, the term public morality has to be appositely  

understood as being synonymous with constitutional morality.   

111. Having said so, 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.  

Whether exclusionary practice is an essential practice as per  Hindu religion    

112. We have, in the earlier part of this judgment, determined  

that the devotees of Lord Ayyappa, who though claim to be a  

separate religious denomination, do not, as per the tests laid  

down by this Court in several decisions, most prominent of them  

being S.P. Mittal (supra), constitute a separate religious  

denomination within the meaning of Article 26 of the  

Constitution. This leads us to a mathematical certainty that the  

devotees of Lord Ayyappa are the followers of Hindu religion.  

Now, what remains to be seen is whether the exclusion of women  

of the age group of 10 to 50 years is an essential practice under

72  

the Hindu religion in the backdrop of the peculiar attending  

circumstances attributable to the Sabarimala temple. For  

ascertaining the said question, we first need to understand what  

constitutes an essential practice for a particular religion which  

has been the subject matter of several decisions of this Court.  

Article 25 merely protects the freedom to practise rituals,  

ceremonies, etc. which are an integral part of a religion as  

observed by this Court in John Vallamattom  and another v.  

Union of India31. While saying so, the Court ruled that a  

disposition towards making gift for charitable or religious  

purpose can be designated as a pious act of a person, but the  

same cannot be said to be an integral part of any religion.  

113. The role of essential practices to a particular religion has  

been well demonstrated by Lord Halsbury in Free Church of  

Scotland v. Overtoun32 wherein it was observed:  

"In the absence of conformity to essentials, the  denomination would not be an entity cemented  into solidity by harmonious uniformity of  opinion, it would be a mere incongruous heap  of, as it were, grains of sand, thrown together  without being united, each of these intellectual  and isolated grains differing from every other,  and the whole forming a but nominally united  while really unconnected mass; fraught with  

                                                 31 (2003) 6 SCC 611  32 (1904) AC 515

73  

nothing but internal dissimilitude, and mutual  and reciprocal contradiction and dissension."    

114. This Court, in Shirur Mutt (supra), for the first time, held  

that what constitutes an essential part of a religion will be  

ascertained with reference to the tenets and doctrines of that  

religion itself. The Court had opined thus:  

"In the first place, what constitutes the essential  part of a religion is primarily to be ascertained  with reference to the doctrines of that religion  itself."    

115. In Mohd. Hanif Quareshi v. State of Bihar33, this Court  

rejected the argument of the petitioner that sacrifice of cow on  

Bakr-id was an essential practice of Mohammedan religion and  

ruled that it could be prohibited by the State under Clause 2(a) of  

Article 25.  

116. Similarly, in State of West Bengal and others v.  

Ashutosh Lahiri and others34, this Court, while approving the  

judgment of the High Court, observed that the State of West  

Bengal had wrongly invoked Section 12 of the West Bengal  

Animal Slaughter Control Act, 1950 on the ground that  

exemption of slaughtering healthy cows was required to be given  

                                                 33 AIR 1958 SC 731  34 AIR 1995 SC 464

74  

for the Muslim community. While holding so, the Court opined  

thus:  

"...before the State can exercise the exemption  power under Section 12 in connection with  slaughter of any healthy animal covered by the  Act, it must be shown that such exemption is  necessary to be granted for sub-serving an  essential religious, medicinal or research  purpose. If granting of such exemption is not  essential or necessary for effectuating such a  purpose no such exemption can be granted so  as to by-pass the thrust of the main provisions  of the Act."    

117. In Durgah Committee, Ajmer and others v. Syed  

Hussain Ali and others35, the Court, although speaking in the  

context of Article 26, warned that some practices, though  

religious, may have sprung from merely superstitious beliefs and  

may, in that sense, be extraneous and unessential accretions to  

religion itself and unless such practices are found to constitute  

an essential and integral part of a religion, their claim for  

protection as essential practices may have to be carefully  

scrutinised; in other words, the protection must be confined to  

such religious practices as are an essential and an integral part  

of the religion and no other.  

118. The Court, in this case, has excluded such practices from  

protection which, though may have acquired the characteristic of                                                    35 AIR 1961 SC 1402

75  

religious practices, are found, on careful scrutiny, to be an  

outcome of some superstitious beliefs which may render them  

unessential and not an integral part of the religion.  

119. In Acharya Jagadishwarananda Avadhuta and others  

v. Commissioner of Police, Calcutta36, popularly known as the  

first Ananda Marga case, this Court held that Tandav dance in  

processions or at public places by the Ananda Margis carrying  

lethal weapons and human skulls was not an essential religious  

rite of the followers of Ananda Marga and, therefore, the order  

under Section 144 Cr.PC. prohibiting such processions in the  

interest of public order and morality was not violative of the  

rights of the Ananda Marga denomination under Articles 25 and  

26 of the Constitution more so when the order under Section 144  

Cr.PC. did not completely ban the processions or gatherings at  

public places but only prohibited carrying of daggers, trishuls  

and skulls which posed danger to public order and morality.  

120. In N. Adithayan v. Travancore Devaswom Board and  

others37, the Court very succinctly laid down as to what should  

be the approach of the court for deciding what constitutes an  

essential practice of a religion in the following words:  

                                                 36 (1983) 4 SCC 522  

37 (2002) 8 SCC 106

76  

"The legal position that the protection under  Article 25 and 26 extend a guarantee for rituals  and observances, ceremonies and modes of  worship which are integral parts of religion and  as to what really constitutes an essential part of  religion or religious practice has to be decided  by the Courts with reference to the doctrine of a  particular religion or practices regarded as parts  of religion..."  

(Emphasis is ours)  

121. In Commissioner of Police and others v. Acharya  

Jagadishwarananda Avadhuta and others (supra), being the  

second Ananda Marga case, the Court has elaborately discussed  

the true nature of an essential practice and has further laid down  

the test for determining whether a certain practice can be  

characterized as essential to a particular religion in order to  

guarantee protection under the Constitution. The Court has  

opined:  

"The protection guaranteed under Articles 25  and 26 of the Constitution is not confined to  matters of doctrine or belief but extends to acts  done in pursuance of religion and, therefore,  contains a guarantee for rituals, observances,  ceremonies and modes of worship which are  essential or integral part of religion. What  constitutes an integral or essential part of  religion has to be determined with reference to  its doctrines, practices, tenets, historical  background etc. of the given religion. (See  generally the Constitution bench decisions in  The Commissioner v. L T Swamiar of Srirur  Mutt 1954 SCR 1005, SSTS Saheb v. State of  Bombay 1962 (Supp) 2 SCR 496, and

77  

Seshammal v. State of Tamilnadu :  [1972]3SCR815 , regarding those aspects that  are to be looked into so as to determine whether  a part or practice is essential or not). What is  meant by 'an essential part or practices of a  religion' is now the matter for elucidation.  Essential part of a religion means the core  beliefs upon which a religion is founded.  Essential practice means those practices that  are fundamental to follow a religious belief. It is  upon the cornerstone of essential parts or  practices the superstructure of religion is built.  Without which, a religion will be no religion.  Test to determine whether a part or practice is  essential to the religion is - to find out whether  the nature of religion will be changed without  that part or practice. If the taking away of that  part or practice could result in a fundamental  change in the character of that religion or in its  belief, then such part could be treated as an  essential or integral part. There cannot be  additions or subtractions to such part. Because  it is the very essence of that religion and  alterations will change its fundamental  character. It is such permanent essential parts  is what is protected by the Constitution. 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 nonessential part or practices.”    

122. In the light of the above authorities, it has to be determined  

whether the practice of exclusion of women of the age group of 10  

to 50 years is equivalent to a doctrine of Hindu religion or a  

practice that could be regarded as an essential part of the Hindu

78  

religion and whether the nature of Hindu religion would be  

altered without the said exclusionary practice. The answer to  

these questions, in our considered opinion, is in the firm  

negative. 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  

devotees and followers of Hindu religion and offer their prayers to  

the deity. In the absence of any scriptural or textual evidence, we  

cannot accord to the exclusionary practice followed at the  

Sabarimala temple the status of an essential practice of Hindu  

religion.  

123. 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) of the 1965 Rules, 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.

79  

124. 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.  

125. This view of ours is further substantiated by the fact that  

where a practice changes with the efflux of time, such a practice  

cannot, in view of the law laid down in Commissioner of Police  

and others (supra), be 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 (supra) 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 conduced 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 same has also  

been pointed out by learned Senior Counsel, Ms. Indira Jaising,

80  

that 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.  

126. Therefore, there seems to be no continuity in the  

exclusionary practice followed at the Sabarimala temple and in  

view of this, it cannot be treated as an essential practice.  

Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules   

127. We may presently deal with the statutory provisions of the  

Kerala Hindu Places of Public Worship (Authorisation of Entry)  

Act, 1965. Section 2 of the said Act is the definition clause and  

reads as under:  

“2. Definitions.- In this Act, unless the  context otherwise requires,-   

(a) "Hindu" includes a person professing the  Buddhist, Sikh or Jaina religion;  

(b) "place of public worship" means a place,  by whatever name known or to whomsoever  belonging, which is dedicated to, or for the  benefit of, or is used generally by, Hindus or  any section or class thereof, for the  performance of any religious service or for  offering prayers therein, and includes all  lands and subsidiary shrines, mutts,  devasthanams, namaskara mandapams and  nalambalams, appurtenant or attached to  any such place, and also any sacred tanks,  wells, springs and water courses the waters  of which are worshipped or are used for

81  

bathing or for worship, but does not include  a "sreekoil";  

(c) "section or class" includes any division,  sub-division, caste, sub-caste, sect or  denomination whatsoever. ”  

128. As per clause (a) of Section 2, the term 'Hindu' includes a  

person professing Buddhist, Sikh or Jaina religion. The word  

'person' occurring in this clause, 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, sub-division, caste  

and so forth.   

129. Section 3 of the Act stipulates that places of public worship  

will be open to all sections and classes of Hindus and reads thus:  

“Section 3 : Places of public worship to   open to all sections and classes of  Hindus.-Notwithstanding anything to the  contrary contained in any other law for the  time being in force or any custom or usage  or any instrument having effect by virtue of  any such law or any decree or order of  court, every place of public worship which is  open to Hindus generally or to any section  or class thereof, shall be open to all sections  and classes of Hindus; and no Hindu of  whatsoever section or class shall, in any  manner, be prevented, obstructed or  discouraged from entering such place of  public worship, or from worshipping or

82  

offering prayers thereat, or performing any  religious service therein, in the like manner  and to the like extent as any other Hindu of  whatsoever section or class may so enter,  worship, pray or perform:  

Provided that in the case of a place of  public worship which is a temple founded  for the benefit of any religious denomination  or section thereof, the provisions of this  section shall be subject to the right of that  religious denomination or section, as the  case may be, to manage its own affairs in  matters of religion. ”  

130. 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.   

131. 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

83  

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, as per our foregoing  

analysis, includes all the genders, provided they are Hindus. It  

further needs to be accentuated that 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.   

132. The proviso to Section 3 stipulates that in case the place of  

public worship is a temple founded for the benefit of any religious  

denomination or section thereof, then the rights warranted under  

Section 3 becomes subject to the right of that religious  

denomination or section to manage its own affairs in matters of  

religion. Having said so, we have, in the earlier part of this  

judgment, categorically stated that devotees and followers of Lord  

Ayyappa do not constitute a religious denomination and,  

therefore, the proviso to Section 3 cannot be resorted to in the  

case at hand.  

133. The importance and the gravity of the right stipulated under  

Section 3 of this Act, for all sections and classes of Hindus which  

include women, is very well manifest and evident from the fact

84  

that its violation has been made penal under Section 5 of the  

1965 Act which reads as under:  

“Section 5 : Penalty  

Whoever, in contravention of Section 3,-  

(a) prevents or attempts to prevent any  person belonging to any section or class of  Hindus from entering, worshipping or  offering prayers, performing any religious  service, in any place of public worship; or  

(b) obstructs, or causes or attempts to cause  obstruction to, or by threat of obstruction or  otherwise discourages, any such person  from doing or performing any of the acts  aforesaid, shall be publishable with  imprisonment which may extent to six  months, or with fine which may extent to  five hundred rupees, or with both:  

Provided that in a case where a  sentence of fine only is awarded, such fine  shall not be less than fifty rupees. ”  

134. Proceeding ahead, Section 4 of the 1965 Act confers the  

power to make regulations for the maintenance of order and  

decorum and performance of rites and ceremonies with regard to  

places of public worship in Kerala:  

“Section 4 : Power to make regulations  for the maintenance of order and  decorum and the due performance of  rites and ceremonies in places of public  worship   

(1) The trustee or any other person in charge  of any place public worship shall have  power, subject to the control of the  competent authority and any rules which

85  

may be made by that authority, to make  regulations for the maintenance of order and  decorum in the place of public worship and  the due observance of the religious rites and  ceremonies performed therein:  

Provided that no regulation made  under this sub-section shall discriminate in  any manner whatsoever, against any Hindu  on the ground that he belongs to a  particular section or class.  

(2) The competent authority referred to in  sub-section (1) shall be,-  

(i) In relation to a place of public worship  situated in any area to which Part I of the  Travancore-Cochin Hindu Religious  Institutions Act, 1950 (Travancore-Cochin  Act XV of 1950), extends, the Travancore  Devaswom Board;  

(ii) in relation to a place of public worship  situated in any area to which Part II of the  said Act extends, the Cochin Devaswom  Board; and  

(iii) in relation to a place of public worship  situated in any other area in the State of  Kerala, the Government.”  

135. The proviso to Section 4 being an exception to Section 4(1)  

is a classic example of a situation where the exception is more  

important than the rule itself. It needs to be borne in mind that  

the language of the proviso to Section 4 of the 1965 Act, in very  

clear and simple terms, states that the regulations made under  

clause (1) of Section 4 shall not discriminate against any Hindu  

on the ground that he/she belongs to a particular section or

86  

class. As stated earlier, a particular section or class for the  

purposes of this Act includes women of all age groups, for Hindu  

women of any age group also constitute a class or section of  

Hindus.   

136. The State of Kerala, by virtue of clause (1) of Section 4, has  

framed the  Kerala Hindu Places of Public Worship (Authorisation  

of Entry) Rules, 1965. The relevant rule which is also the most  

prominent bone of contention in the present case is Rule 3(b).  

The relevant part of Rule 3 reads thus:  

“Rule 3. The classes of persons mentioned  here under shall not be entitled to offer  worship in any place of public worship or  bath in or use the water of any sacred tank,  well, spring or water course appurtenant to  a place of public worship whether situate  within or outside precincts thereof, or any  sacred place including a hill or hill lock, or a  road, street or pathways which is requisite  for obtaining access to the place of public  worship:  

x     x     x  (b)  Women at such time during which they  are not by custom and usage allowed to  enter a place of public worship.    

x     x     x”  

137. The law is well-settled on the point that when a rule-making  

power is conferred under any statute on an authority, the said  

power has to be exercised within the confines of the statute and

87  

no transgression of the same is permissible.  In this context, we  

may refer to the decision in Union of India and others v. S.  

Srinivasan38 wherein it has been ruled:  

"At this stage, it is apposite to state about the  rule making powers of a delegating authority. If a  rule goes beyond the rule making power  conferred by the statute, the same has to be  declared ultra vires. If a rule supplants any  provision for which power has not been  conferred, it becomes ultra vires. The basic test  is to determine and consider the source of power  which is relatable to the rule. Similarly, a rule  must be in accord with the parent statute as it  cannot travel beyond it."    

138. In General Officer Commanding-in-Chief v. Dr. Subhash  

Chandra Yadav39, the Court held that for a rule to have the  

effect of a statutory provision, it must fulfill two conditions, firstly  

it must conform to the provisions of the statute under which it is  

framed and secondly, it must also come within the scope and  

purview of the rule making power of the authority framing the  

rule and if either of these two conditions is not fulfilled, the rule  

so framed would be void. In Kunj Behari Lai Butail and others  

v. State of H.P. and others40, it has been laid down that for  

holding a rule to be valid, it must first be determined as to what  

is the object of the enactment and then it has to be seen if the  

                                                 38

(2012) 7 SCC 683  39

 AIR 1988 SC 876  40

AIR 2000 SC 1069

88  

rules framed satisfy the test of having been so framed as to fall  

within the scope of such general power conferred and if the rule  

making power is not expressed in such a usual general form,  

then it shall have to be seen if the rules made are protected by  

the limits prescribed by the parent act.  Another authority which  

defines the limits and confines within which the rule-making  

authority shall exercise its delegating powers is Global Energy  

Limited and another v. Central Electricity Regulatory  

Commission41, where the question before the Court was  

regarding the validity of clauses (b) and (f) of Regulation 6- A of  

the Central Electricity Regulatory Commission (Procedure, Terms  

and Conditions for Grant of Trading Licence and other Related  

Matters) Regulations, 2004. The Court gave the following opinion:  

"It is now a well-settled principle of law that the  rulemaking power "for carrying out the purpose  of the Act" is a general delegation. Such a general  delegation may not be held to be laying down any  guidelines. Thus, by reason of such a provision  alone, the Regulation-making power cannot be  exercised so as to bring into existence  substantive rights or obligations or disabilities  which are not contemplated in terms of the  provisions of the said Act.”    

139. It was clearly held in this case that the rule-making power,  

which is provided under a statute with the aim of facilitating the  

                                                 41

(2009) 15 SCC 570

89  

implementation of the statute, does not confer power on any  

authority to bring into existence substantive rights or obligations  

or disabilities which are not contemplated in terms of the  

provisions of the said Act. The Court, further, went on to hold  

that:  

"The image of law which flows from this  framework is its neutrality and objectivity: the  ability of law to put sphere of general decision- making outside the discretionary power of those  wielding governmental power. Law has to provide  a basic level of "legal security" by assuring that  law is knowable, dependable and shielded from  excessive manipulation. In the contest of rule- making, delegated legislation should establish  the structural conditions within which those  processes can function effectively. The question  which needs to be asked is whether delegated  legislation promotes rational and accountable  policy implementation. While we say so, we are  not oblivious of the contours of the judicial  review of the legislative Acts. But, we have made  all endeavours to keep ourselves confined within  the well-known parameters."    

140. At this stage, we may also benefit from the observations  

made in State of T.N. and another v. P. Krishnamurthy and  

others42 wherein it was stated that where a rule is directly  

inconsistent with a mandatory provision of the statute, then, of  

course, the task of the court is simple and easy. This implies that  

if a rule is directly hit for being violative of the provisions of the  

                                                 42

(2006) 4 SCC 517

90  

enabling statute, then the Courts need not have to look in any  

other direction but declare the said rule as invalid on the said  

ground alone.  

141. Rule 3(b) seeks to protect custom and usage by not allowing  

women, Hindu women to be specific, to enter a place of public  

worship at such times during which they are  not so allowed to  

enter by the said custom or usage. A cursory reading of Rule 3(b)   

divulges that it is ultra vires both Section 3 as well as Section 4 of  

the 1965 Act, the reason being that Section 3 being a non-

obstante provision clearly 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.   

142. That apart, Rule 3(b) is also ultra vires Section 4 of the 1965  

Act as the proviso to Section 4(1) creates an exception to the  

effect that the regulations/rules made under Section 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.  

143. The language of both the provisions, that is, Section 3 and  

the proviso to Section 4(1) of the 1965 Act, clearly indicates that

91  

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 the fundamental right to practise religion  

guaranteed under Article 25(1). It is clear as crystal that the  

provisions of the 1965 Act are liberal in nature so as to allow  

entry to all sections and classes of Hindus including Scheduled  

Castes and Scheduled Tribes. But framing of Rule 3(b) of the  

1965 Rules under the garb of Section 4(1) would violate the very  

purpose of the 1965 Act.  

Conclusions  

144. In view of our aforesaid analysis, we record our conclusions  

in seriatim:  

(i) In view of the law laid down by this Court in Shirur Mutt  

(supra) and S.P. Mittal (supra), 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

92  

Lord Ayyappa are exclusively Hindus and do not constitute  

a separate religious denomination.  

(ii) 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. The right  

guaranteed under Article 25(1) has nothing to do with  

gender or, for that matter, certain physiological factors  

specifically attributable to women.  

(iii) The exclusionary practice being followed at the Sabrimala  

temple by virtue of Rule 3(b) of the 1965 Rules violates the  

right of Hindu women to freely practise their religion and  

exhibit their devotion towards Lord Ayyappa. This denial  

denudes them of their right to worship. The right to practise  

religion under Article 25(1) is equally available to both men  

and women of all age groups professing the same religion.  

(iv) The impugned Rule 3(b) of the 1965 Rules, framed under  

the 1965 Act, that stipulates exclusion of entiy of women of  

the age group of 10 to 50 years, is a clear violation of the  

right of Hindu women to practise their religious beliefs

93  

which, in consequence, makes their fundamental right of  

religion under Article 25(1) a dead letter.  

(v) The term 'morality' occurring in Article 25(1) of the  

Constitution 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 Article 25 has to be appositely understood  

as being synonymous with constitutional morality.  

(vi) 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.   

(vii) The practice of exclusion of women of the age group of 10 to  

50 years being followed at the Sabarimala Temple cannot be  

regarded as an essential part as claimed by the respondent  

Board.   

(viii) In view of the law laid down by this Court in the second  

Ananda Marga case, the exclusionary practice being

94  

followed at the Sabarimala Temple cannot be designated as  

one, the non-observance 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.  

(ix) The exclusionary practice, which has been given the  

backing of a subordinate legislation in the form of Rule 3(b)  

of the 1965 Rules, framed by the virtue of the 1965 Act, is  

neither an essential nor an integral part of the religion.    

(x) A careful reading of Rule 3(b) of the 1965 Rules makes it  

luculent that it is ultra vires both Section 3 as well as  

Section 4 of the 1965 Act, for the simon pure reason that  

Section 3 being a non-obstante provision clearly 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.  

(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the  

proviso to Section 4(1) creates an exception to the effect that

95  

the regulations/rules made under Section 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.  

(xii) The language of both the provisions, that is, Section 3 and  

the proviso to Section 4(1) of the 1965 Act 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  

under Article 25(1). Therefore, we hold that Rule 3(b) of the  

1965 Rules is ultra vires the 1965 Act.  

145. In view of the aforesaid analysis and conclusions, the writ  

petition is allowed. There shall be no order as to costs.  

      .………………………….CJI.          (Dipak Misra)     

       .…………………………….J.    (A.M. Khanwilkar)    

New Delhi;   September 28, 2018

1  

REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CIVIL ORIGINAL JURISDICTION  

 WRIT PETITION (CIVIL) NO. 373 OF 2006  

INDIAN YOUNG LAWYERS   ASSOCIATION AND ORS.    … PETITIONERS  

 VERSUS  

 THE STATE OF KERALA AND ORS.   … RESPONDENTS  

J U D G M E N T  

R.F. Nariman, J. (Concurring)    

1. The present writ petition raises far-reaching questions on the  

ambit of the fundamental rights contained in Articles 25 and 26 of the  

Constitution of India. These questions arise in the backdrop of an  

extremely famous temple at Sabarimala in which the idol of Lord  

Ayyappa is installed. According to the Respondents, the said temple,  

though open to all members of the public regardless of caste, creed, or  

religion, is a denominational temple which claims the fundamental right  

to manage its own affairs in matters relating to religion. The question

2  

that arises is whether the complete exclusion of women between the  

ages of 10 and 50 from entry, and consequently, of worship in this  

temple, based upon a biological factor which is exclusive to women  

only, and which is based upon custom allegedly constituting an  

essential part of religion, can be said to be violative of their rights  

under Article 25. Consequently, whether such women are covered by  

Section 3 of the Kerala Hindu Places of Public Worship (Authorisation  

of Entry) Act, 1965 and whether Rule 3(b) of the Kerala Hindu Places  

of Public Worship (Authorisation of Entry) Rules, 1965 is violative of  

their fundamental right under Article 25(1) and Article 15(1), and ultra  

vires the parent Act.   

2. Before answering the question posed on the facts before us, it  

is necessary to cover the ground that has been covered by our  

previous decisions on the scope and effect of religious freedom  

contained in Articles 25 and 26.   

3. In one of the earliest judgments dealing with religious freedom,  

namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple  

Committee, 1952 SCR 849, this Court was concerned with the temple  

at Badrinath, which is an ancient temple, being a public place of

3  

worship for Hindus. A representative suit was filed under Order I Rule  

8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi  

Pandas who, as guides or escorts of pilgrims, sought a declaration that  

they cannot be obstructed from entering the precincts of the temple  

along with their ―clients‖ for darshan of the deities inside the temple.  

This Court held:  

―It seems to us that the approach of the court below to  this aspect of the case has not been quite proper, and,  to avoid any possible misconception, we would desire  to state succinctly what the correct legal position is.  Once it is admitted, as in fact has been admitted in the  present case, that the temple is a public place of  worship of the Hindus, the right of entrance into the  temple for purposes of ‗darshan‘ or worship is a right  which flows from the nature of the institution itself, and  for the acquisition of such rights, no custom or  immemorial usage need be asserted or proved. As the  Panda as well as his client are both Hindu  worshippers, there can be nothing wrong in the one‘s  accompanying the other inside the temple and subject  to what we will state presently, the fact that the pilgrim,  being a stranger to the spot, takes the assistance of  the Panda in the matter of ‗darshan‘ or worship of the  deities or that the Panda gets remuneration from his  client for the services he renders, does not in any way  affect the legal rights of either of them. In law, it makes  no difference whether one performs the act of worship  himself or is aided or guided by another in the  performance of them. If the Pandas claim any special  right which is not enjoyed ordinarily by members of the  Hindu public, they would undoubtedly have to  establish such rights on the basis of custom, usage or  otherwise.

4  

 This right of entry into a public temple is, however, not  an unregulated or unrestricted right. It is open to the  trustees of a public temple to regulate the time of  public visits and fix certain hours of the day during  which alone members of the public would be allowed  access to the shrine. The public may also be denied  access to certain particularly sacred parts of the  temple, e.g., the inner sanctuary or as it is said the  ‗Holy of Holies‘ where the deity is actually located.  Quite apart from these, it is always competent to the  temple authorities to make and enforce rules to ensure  good order and decency of worship and prevent  overcrowding in a temple. Good conduct or orderly  behaviour is always an obligatory condition of  admission into a temple [Vide Kalidas Jivram v. Gor  Parjaram, I.L.R. 15 Bom. p. 309; Thackeray v.  Harbhum, I.L.R. 8 Bom. p. 432], and this principle has  been accepted by and recognised in the Shri  Badrinath Temple Act, section 25 of which provides for  framing of bye-laws by the temple committee inter alia  for maintenance of order inside the temple and  regulating the entry of persons within it [Vide Section  25(1)(m)].    The true position, therefore, is that the plaintiffs‘ right  of entering the temple along with their Yajmans is not  a precarious or a permissive right depending for its  existence upon the arbitrary discretion of the temple  authorities; it is a legal right in the true sense of the  expression but it can be exercised subject to the  restrictions which the temple committee may impose in  good faith for maintenance of order and decorum  within the temple and for ensuring proper performance  of customary worship. In our opinion, the plaintiffs are  entitled to a declaration in this form.‖  

(at pp. 860-862)   

5  

4. In chronological sequence, next comes the celebrated Shirur  

Math case, viz., The Commissioner, Hindu Religious Endowments,  

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,  

1954 SCR 1005. This case concerned itself with the settlement of a  

scheme in connection with a Math known as the Shirur Math, which,  

legislation in the form of the Madras Hindu Religious and Charitable  

Endowments Act, 1951, sought to interfere with. In history, the Shirur  

Math is stated to be one of the eight Maths situated at Udipi in the  

district of South Kanara and reputed to have been founded by Shri  

Madhwacharya, the well-known exponent of dualistic theism in  

Hinduism. This judgment being a seminal authority for a large number  

of aspects covered under Articles 25 and 26 needs to be quoted in  

extenso. The Court first dealt with the individual right contained in  

Article 25 as follows:  

―We now come to Article 25 which, as its language  indicates, secures to every person, subject to public  order, health and morality, a freedom not only to  entertain such religious belief, as may be approved  of by his judgment and conscience, but also to  exhibit his belief in such outward acts as he thinks  proper and to propagate or disseminate his ideas for  the edification of others. A question is raised as to  whether the word ―persons‖ here means individuals  only or includes corporate bodies as well. The

6  

question, in our opinion, is not at all relevant for our  present purpose. A Mathadhipati is certainly not a  corporate body; he is the head of a spiritual  fraternity and by virtue of his office has to perform  the duties of a religious teacher. It is his duty to  practice and propagate the religious tenets, of which  he is an adherent and if any provision of law  prevents him from propagating his doctrines, that  would certainly affect the religious freedom which is  guaranteed to every person under Article 25.  Institutions as such cannot practice or propagate  religion; it can be done only by individual persons  and whether these persons propagate their personal  views or the tenets for which the institution stands is  really immaterial for purposes of Article 25. It is the  propagation of belief that is protected, no matter  whether the propagation takes place in a church or  monastery, or in a temple or parlour meeting.‖1  

(emphasis supplied)  (at p. 1021)  

With regard to whether a Math could come within the expression  

―religious denomination‖ under Article 26, this Court laid down the  

following tests:  

                                                           1  In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., (1964) 4 SCR 99,  a  

majority of 9 Judges held that the S.T.C., which is a company registered under the Indian Companies Act,  

1956, is not a citizen within the meaning of Article 19 of the Constitution of India. In a concurring judgment  

by Hidayatullah, J., the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1)  

clearly refer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to hold that in  

Articles 14, 20, 27 and 31, the word ―person‖ would apply to individuals as well as to corporations (See p.  

147). What is conspicuous by its absence is Article 25(1), which also uses the word ―person‖, which, as  

Shirur Math (supra) states above, can apply only to natural persons. Consequently, the argument that an  

idol can exercise fundamental rights contained in Article 25(1), as urged by some of the Respondents,  

must be rejected.

7  

―As regards Article 26, the first question is, what is  the precise meaning or connotation of the  expression ―religious denomination‖ and whether a  Math could come within this expression. The word  ―denomination‖ has been defined in the Oxford  Dictionary to mean ―a collection of individuals  classed together under the same name: a religious  sect or body having a common faith and  organisation and designated by a distinctive name‖.   

It is well known that the practice of setting up Maths  as centers of theological teaching was started by  Shri Sankaracharya and was followed by various  teachers since then. After Sankara, came a galaxy  of religious teachers and philosophers who founded  the different sects and sub-sects of the Hindu  religion that we find in India at the present day. Each  one of such sects or sub-sects can certainly be  called a religious denomination, as it is designated  by a distinctive name, — in many cases it is the  name of the founder, and has a common faith and  common spiritual organization. The followers of  Ramanuja, who are known by the name of Shri  Vaishnabas, undoubtedly constitute a religious  denomination; and so do the followers of  Madhwacharya and other religious teachers. It is a  fact well established by tradition that the eight Udipi  Maths were founded by Madhwacharya himself and  the trustees and the beneficiaries of these Maths  profess to be followers of that teacher. The High  Court has found that the Math in question is in  charge of the Sivalli Brahmins who constitute a  section of the followers of Madhwacharya. As Article  26 contemplates not merely a religious  denomination but also a section thereof, the Math or  the spiritual fraternity represented by it can  legitimately come within the purview of this article.‖  

(emphasis supplied)  (at pp. 1021-1022)

8  

With regard to what constitutes ―religion‖, ―religious practice‖, and  

―essential religious practices‖, as opposed to ―secular practices‖, this  

Court held:  

―It will be seen that besides the right to manage its  own affairs in matters of religion, which is given by  clause (b), the next two clauses of Article 26  guarantee to a religious denomination the right to  acquire and own property and to administer such  property in accordance with law. The administration  of its property by a religious denomination has thus  been placed on a different footing from the right to  manage its own affairs in matters of religion. The  latter is a fundamental right which no legislature can  take away, whereas the former can be regulated by  laws which the legislature can validly impose. It is  clear, therefore, that questions merely relating to  administration of properties belonging to a religious  group or institution are not matters of religion to  which clause (b) of the Article applies. What then  are matters of religion? The word ―religion‖ has not  been defined in the Constitution and it is a term  which is hardly susceptible of any rigid definition. In  an American case [Vide Davis v. Benson, 133 US  333 at 342], it has been said ―that the term ‗religion‘  has reference to one‘s views of his relation to his  Creator and to the obligations they impose of  reverence for His Being and character and of  obedience to His will. It is often confounded with  cultus of form or worship of a particular sect, but is  distinguishable from the latter.‖ We do not think that  the above definition can be regarded as either  precise or adequate. Articles 25 and 26 of our  Constitution are based for the most part upon Article  44(2) of the Constitution of Eire and we have great

9  

doubt whether a definition of ―religion‖ as given  above could have been in the minds of our  Constitution-makers when they framed the  Constitution. Religion is certainly a matter of faith  with individuals or communities and it is not  necessarily theistic. There are well known religions  in India like Buddhism and Jainism which do not  believe in God or in any Intelligent First Cause. A  religion undoubtedly has its basis in a system of  beliefs or doctrines which are regarded by those  who profess that religion as conducive to their  spiritual well being, but it would not be correct to say  that religion is nothing else but a doctrine or belief. A  religion may not only lay down a code of ethical  rules for its followers to accept, it might prescribe  rituals and observances, ceremonies and modes of  worship which are regarded as integral parts of  religion, and these forms and observances might  extend even to matters of food and dress.    The guarantee under our Constitution not only  protects the freedom of religious opinion but it  protects also acts done in pursuance of a religion  and this is made clear by the use of the expression  ―practice of religion‖ in Article 25. Latham, C.J. of  the High Court of Australia while dealing with the  provision of section 116 of the Australian  Constitution which inter alia forbids the  Commonwealth to prohibit the ―free exercise of any  religion‖ made the following weighty observations  [Vide Adelaide Company v. Commonwealth, 67  C.L.R. 116, 127]:  

―It is sometimes suggested in discussions  on the subject of freedom of religion that,  though the civil Government should not  interfere with religious opinions, it  nevertheless may deal as it pleases with  any acts which are done in pursuance of

10  

religious belief without infringing the  principle of freedom of religion. It appears  to me to be difficult to maintain this  distinction as relevant to the interpretation  of section 116. The section refers in  express terms to the exercise of religion,  and therefore it is intended to protect from  the operation of any Commonwealth laws  acts which are done in the exercise of  religion. Thus the section goes far beyond  protecting liberty of opinion. It protects also  acts done in pursuance of religious belief  as part of religion.‖  

These observations apply fully to the protection of  religion as guaranteed by the Indian Constitution.  Restrictions by the State upon free exercise of  religion are permitted both under Articles 25 and 26  on grounds of public order, morality and health.  Clause (2)(a) of Article 25 reserves the right of the  State to regulate or restrict any economic, financial,  political and other secular activities which may be  associated with religious practice and there is a  further right given to the State by sub-clause (b)  under which the State can legislate for social  welfare and reform even though by so doing it might  interfere with religious practices. The learned  Attorney-General lays stress upon clause (2)(a) of  the Article and his contention is that all secular  activities, which may be associated with religion but  do not really constitute an essential part of it, are  amenable to State regulation.  

The contention formulated in such broad terms  cannot, we think, be supported. In the first place,  what constitutes the essential part of a religion is  primarily to be ascertained with reference to the  doctrines of that religion itself. If the tenets of any

11  

religious sect of the Hindus prescribe that offerings  of food should be given to the idol at particular hours  of the day, that periodical ceremonies should be  performed in a certain way at certain periods of the  year or that there should be daily recital of sacred  texts or oblations to the sacred fire, all these would  be regarded as parts of religion and the mere fact  that they involve expenditure of money or  employment of priests and servants or the use of  marketable commodities would not make them  secular activities partaking of a commercial or  economic character; all of them are religious  practices and should be regarded as matters of  religion within the meaning of Article 26(b). What  Article 25(2)(a) contemplates is not regulation by the  State of religious practices as such, the freedom of  which is guaranteed by the Constitution except  when they run counter to public order, health and  morality, but regulation of activities which are  economic, commercial or political in their character  though they are associated with religious practices.  We may refer in this connection to a few American  and Australian cases, all of which arose out of the  activities of persons connected with the religious  association known as ―Jehovah‘s Witnesses.‖ This  association of persons loosely organised throughout  Australia, U.S.A. and other countries regard the  literal interpretation of the Bible as fundamental to  proper religious beliefs. This belief in the supreme  authority of the Bible colours many of their political  ideas. They refuse to take oath of allegiance to the  king or other constituted human authority and even  to show respect to the national flag, and they decry  all wars between nations and all kinds of war  activities. In 1941 a company of ―Jehovah‘s  Witnesses‖ incorporated in Australia commenced  proclaiming and teaching matters which were  prejudicial to war activities and the defence of the  Commonwealth and steps were taken against them

12  

under the National Security Regulations of the  State. The legality of the action of the Government  was questioned by means of a writ petition before  the High Court and the High Court held that the  action of the Government was justified and that  section 116, which guaranteed freedom of religion  under the Australian Constitution, was not in any  way infringed by the National Security Regulations  [Vide Adelaide Company v. Commonwealth, 67  C.L.R. 116, 127]. These were undoubtedly political  activities though arising out of religious belief  entertained by a particular community. In such  cases, as Chief Justice Latham pointed out, the  provision for protection of religion was not an  absolute protection to be interpreted and applied  independently of other provisions of the  Constitution. These privileges must be reconciled  with the right of the State to employ the sovereign  power to ensure peace, security and orderly living  without which constitutional guarantee of civil liberty  would be a mockery.‖  

(emphasis supplied)  

(at pp. 1023-1026)    

As to what matters a religious denomination enjoys complete  

autonomy over, this Court said:  

―…… As we have already indicated, freedom of  religion in our Constitution is not confined to  religious beliefs only; it extends to religious practices  as well subject to the restrictions which the  Constitution itself has laid down. Under Article 26(b),  therefore, a religious denomination or organization  enjoys complete autonomy in the matter of deciding  as to what rites and ceremonies are essential  according to the tenets of the religion they hold and

13  

no outside authority has any jurisdiction to interfere  with their decision in such matters. Of course, the  scale of expenses to be incurred in connection with  these religious observances would be a matter of  administration of property belonging to the religious  denomination and can be controlled by secular  authorities in accordance with any law laid down by  a competent legislature; for it could not be the  injunction of any religion to destroy the institution  and its endowments by incurring wasteful  expenditure on rites and ceremonies. It should be  noticed, however, that under Article 26(d), it is the  fundamental right of a religious denomination or its  representative to administer its properties in  accordance with law; and the law, therefore, must  leave the right of administration to the religious  denomination itself subject to such restrictions and  regulations as it might choose to impose. A law  which takes away the right of administration from  the hands of a religious denomination altogether  and vests it in any other authority would amount to a  violation of the right guaranteed under clause (d) of  Article 26.‖  

(at pp. 1028-1029)  

 5. Close on the heels of this judgment, followed the judgment in  

Ratilal Panachand Gandhi v. State of Bombay and Ors., 1954 SCR  

1055. In this case, two connected appeals – one by the manager of a  

Swetamber Jain public temple and one by the trustees of the Parsi  

Punchayet, assailed the constitutional validity of the Bombay Public  

Trusts Act, 1950. Dealing with the freedoms contained in Articles 25  

and 26, this Court held:

14  

―Article 25 of the Constitution guarantees to every  person and not merely to the citizens of India the  freedom of conscience and the right freely to  profess, practise and propagate religion. This is  subject, in every case, to public order, health and  morality. Further exceptions are engrafted upon this  right by clause (2) of the Article. Sub-clause (a) of  clause (2) saves the power of the State to make  laws regulating or restricting any economic,  financial, political or other secular activity which may  be associated with religious practice; and sub- clause (b) reserves the State‘s power to make laws  providing for social reform and social welfare even  though they might interfere with religious practices.  Thus, subject to the restrictions which this Article  imposes, every person has a fundamental right  under our Constitution not merely to entertain such  religious belief as may be approved of by his  judgment or conscience but to exhibit his belief and  ideas in such overt acts as are enjoined or  sanctioned by his religion and further to propagate  his religious views for the edification of others. It is  immaterial also whether the propagation is made by  a person in his individual capacity or on behalf of  any church or institution. The free exercise of  religion by which is meant the performance of  outward acts in pursuance of religious belief, is, as  stated above, subject to State regulation imposed to  secure order, public health and morals of the  people. What sub-clause (a) of clause (2) of Article  25 contemplates is not State regulation of the  religious practices as such which are protected  unless they run counter to public health or morality  but of activities which are really of an economic,  commercial or political character though they are  associated with religious practices.    So far as Article 26 is concerned, it deals with a  particular aspect of the subject of religious freedom.

15  

Under this article, any religious denomination or a  section of it has the guaranteed right to establish  and maintain institutions for religious and charitable  purposes and to manage in its own way all affairs in  matters of religion. Rights are also given to such  denomination or a section of it to acquire and own  movable and immovable properties and to  administer such properties in accordance with law.  The language of the two clauses (b) and (d) of  Article 26 would at once bring out the difference  between the two. In regard to affairs in matters of  religion, the right of management given to a religious  body is a guaranteed fundamental right which no  legislation can take away. On the other hand, as  regards administration of property which a religious  denomination is entitled to own and acquire, it has  undoubtedly the right to administer such property  but only in accordance with law. This means that the  State can regulate the administration of trust  properties by means of laws validly enacted; but  here again it should be remembered that under  Article 26(d), it is the religious denomination itself  which has been given the right to administer its  property in accordance with any law which the State  may validly impose. A law, which takes away the  right of administration altogether from the religious  denomination and vests it in any other or secular  authority, would amount to violation of the right  which is guaranteed by Article 26(d) of the  Constitution.    The moot point for consideration, therefore, is where  is the line to be drawn between what are matters of  religion and what are not? Our Constitution-makers  have made no attempt to define what ‗religion‘ is  and it is certainly not possible to frame an  exhaustive definition of the word ‗religion‘ which  would be applicable to all classes of persons. As  has been indicated in the Madras case referred to

16  

above, the definition of ‗religion‘ given by Fields, J.  in the American case of Davis v. Beason [133 U.S.  333], does not seem to us adequate or precise. ―The  term ‗religion‘ ‖, thus observed the learned Judge in  the case mentioned above, ―has reference to one‘s  views of his relations to his Creator and to the  obligations they impose of reverence for His Being  and character and of obedience to His Will. It is  often confounded with cultus or form of worship of a  particular sect, but is distinguishable from the latter‖.  It may be noted that ‗religion‘ is not necessarily  theistic and in fact there are well known religions in  India like Buddhism and Jainism which do not  believe in the existence of God or of any Intelligent  First Cause. A religion undoubtedly has its basis in a  system of beliefs and doctrines which are regarded  by those who profess that religion to be conducive  to their spiritual well being, but it would not be  correct to say, as seems to have been suggested by  one of the learned Judges of the Bombay High  Court, that matters of religion are nothing but  matters of religious faith and religious belief. A  religion is not merely an opinion, doctrine or belief. It  has its outward expression in acts as well. We may  quote in this connection the observations of Latham,  C.J. of the High Court of Australia in the case of  Adelaide Company v. Commonwealth [67 C.L.R.  116, 124], where the extent of protection given to  religious freedom by section 116 of the Australian  Constitution came up for consideration.    

―It is sometimes suggested in discussions  on the subject of freedom of religion that,  though the civil Government should not  interfere with religious opinions, it  nevertheless may deal as it pleases with  any acts which are done in pursuance of  religious belief without infringing the  principle of freedom of religion. It appears

17  

to me to be difficult to maintain this  distinction as relevant to the interpretation  of section 116. The section refers in  express terms to the exercise of religion,  and therefore it is intended to protect from  the operation of any Commonwealth laws  acts which are done in the exercise of  religion. Thus the section goes far beyond  protecting liberty of opinion. It protects also  acts done in pursuance of religious belief  as part of religion.‖    

In our opinion, as we have already said in the  Madras case, these observations apply fully to the  provision regarding religious freedom that is  embodied in our Constitution.    

Religious practices or performances of acts in  pursuance of religious belief are as much a part of  religion as faith or belief in particular doctrines. Thus  if the tenets of the Jain or the Parsi religion lay down  that certain rites and ceremonies are to be  performed at certain times and in a particular  manner, it cannot be said that these are secular  activities partaking of commercial or economic  character simply because they involve expenditure  of money or employment of priests or the use of  marketable commodities. No outside authority has  any right to say that these are not essential parts of  religion and it is not open to the secular authority of  the State to restrict or prohibit them in any manner  they like under the guise of administering the trust  estate. Of course, the scale of expenses to be  incurred in connection with these religious  observances may be and is a matter of  administration of property belonging to religious  institutions; and if the expenses on these heads are  likely to deplete the endowed properties or affect the  stability of the institution, proper control can certainly

18  

be exercised by State agencies as the law provides.  We may refer in this connection to the observation  of Davar, J. in the case of Jamshed ji v. Soonabai  [33 Bom. 122], and although they were made in a  case where the question was whether the bequest  of property by a Parsi testator for the purpose of  perpetual celebration of ceremonies like Muktad baj,  Vyezashni, etc., which are sanctioned by the  Zoroastrian religion were valid charitable gifts, the  observations, we think, are quite appropriate for our  present purpose. ―If this is the belief of the  community‖ thus observed the learned Judge, ―and  it is proved undoubtedly to be the belief of the  Zoroastrian community,—a secular Judge is bound  to accept that belief—it is not for him to sit in  judgment on that belief, he has no right to interfere  with the conscience of a donor who makes a gift in  favour of what he believes to be the advancement of  his religion and the welfare of his community or  mankind‖. These observations do, in our opinion,  afford an indication of the measure of protection that  is given by Article 26(b) of our Constitution.    

The distinction between matters of religion and  those of secular administration of religious  properties may, at times, appear to be a thin one.  But in cases of doubt, as Chief Justice Latham  pointed out in the case [Vide Adelaide Company v.  The Commonwealth, 67 C.L.R. 116, 129] referred to  above, the court should take a common sense view  and be actuated by considerations of practical  necessity. It is in the light of these principles that we  will proceed to examine the different provisions of  the Bombay Public Trusts Act, the validity of which  has been challenged on behalf of the appellants.‖  

(at pp. 1062-1066)

19  

6. We now come to the famous Mulki Temple case. In this  

judgment, namely, Sri Venkataramana Devaru and Ors. v. State of  

Mysore and Ors., 1958 SCR 895, (―Sri Venkataramana Devaru‖), an  

ancient temple dedicated to Sri Venkataramana, renowned for its  

sanctity, was before the Court in a challenge to the Madras Temple  

Entry Authorisation Act (V of 1947). It was noticed that the trustees of  

this temple were all members of a sect known as the Gowda  

Saraswath Brahmins. Even though the temple had originally been  

founded for the benefit of certain immigrant families of the Gowda  

Saraswath Brahmins, in the course of time, however, worshippers  

consisted of all classes of Hindus. Finding that the said temple is a  

public temple, it was further held that during certain religious  

ceremonies, persons other than Gowda Saraswath Brahmins had  

been wholly excluded, as a result of which, the temple was held to be  

a religious denomination within the meaning of Article 26. The Court  

then found that if an image becomes defiled or if there is any departure  

or violation of any of the rules relating to worship, as a result of entry of  

certain persons into the temple, an essential religious practice can be  

said to have been affected. The Court held:

20  

―According to the Agamas, an image becomes  defiled if there is any departure or violation of any of  the rules relating to worship, and purificatory  ceremonies (known as Samprokshana) have to be  performed for restoring the sanctity of the shrine.  Vide judgment of Sadasiva Aiyar, J., in Gopala  Muppanar v. Subramania Aiyar [(1914) 27 MLJ  253]. In Sankaralinga Nadan v. Raja Rajeswara  Dorai [(1908) L.R. 35 I.A. 176], it was held by the  Privy Council affirming the judgment of the Madras  High Court that a trustee who agreed to admit into  the temple persons who were not entitled to worship  therein, according to the Agamas and the custom of  the temple was guilty of breach of trust. Thus, under  the ceremonial law pertaining to temples, who are  entitled to enter into them for worship and where  they are entitled to stand and worship and how the  worship is to be conducted are all matters of  religion. The conclusion is also implicit in Art. 25  which after declaring that all persons are entitled  freely to profess, practice and propagate religion,  enacts that this should not affect the operation of  any law throwing open Hindu religious institutions of  a public character to all classes and sections of  Hindus. We have dealt with this question at some  length in view of the argument of the learned  Solicitor-General that exclusion of persons from  temple has not been shown to be a matter of  religion with reference to the tenets of Hinduism. We  must, accordingly hold that if the rights of the  appellants have to be determined solely with  reference to Art 26(b), then section 3 of Act V of  1947, should be held to be bad as infringing it.‖  

(emphasis supplied)  (at pp. 910-911)  

21  

The important question that then had to be decided was whether  

denominational institutions were within the reach of Article 25(2)(b).  

This was answered in the affirmative. It was then stated:  

―…… The fact is that though Art. 25(1) deals with  rights of individuals, Art. 25(2) is much wider in its  contents and has reference to the rights of  communities, and controls both Art. 25(1) and Art.  26(b).  

The result then is that there are two provisions of  equal authority, neither of them being subject to the  other. The question is how the apparent conflict  between them is to be resolved. The rule of  construction is well settled that when there are in an  enactment two provisions which cannot be  reconciled with each other, they should be so  interpreted that, if possible, effect could be given to  both. This is what is known as the rule of  harmonious construction. Applying this rule, if the  contention of the appellants is to be accepted, then  Art. 25(2)(b) will become wholly nugatory in its  application to denominational temples, though, as  stated above, the language of that Article includes  them. On the other hand, if the contention of the  respondents is accepted, then full effect can be  given to Art. 26(b) in all matters of religion, subject  only to this that as regards one aspect of them,  entry into a temple for worship, the rights declared  under Art. 25(2)(b) will prevail. While, in the former  case, Art. 25(2)(b) will be put wholly out of  operation, in the latter, effect can be given to both  that provision and Art. 26(b). We must accordingly  hold that Art. 26(b) must be read subject to Art.  25(2)(b).‖  

(at pp. 917-918)

22  

When there is no general or total exclusion of members of the public  

from worship in the temple, but exclusion from only certain religious  

services, it was held:  

―We have held that the right of a denomination to  wholly exclude members of the public from  worshipping in the temple, though comprised in Art.  26(b), must yield to the overriding right declared by  Art. 25(2)(b) in favour of the public to enter into a  temple for worship. But where the right claimed is  not one of general and total exclusion of the public  from worship in the temple at all times but of  exclusion from certain religious services, they being  limited by the rules of the foundation to the  members of the denomination, then the question is  not whether Art. 25(2)(b) overrides that right so as  extinguish it, but whether it is possible — so to  regulate the rights of the persons protected by Art.  25(2)(b) as to give effect to both the rights. If the  denominational rights are such that to give effect to  them would substantially reduce the right conferred  by Art. 25(2)(b), then of course, on our conclusion  that Art. 25(2)(b) prevails as against Art. 26(b), the  denominational rights must vanish. But where that is  not the position, and after giving effect to the rights  of the denomination what is left to the public of the  right of worship is something substantial and not  merely the husk of it, there is no reason why we  should not so construe Art. 25(2)(b) as to give effect  to Art. 26(b) and recognise the rights of the  denomination in respect of matters which are strictly  denominational, leaving the rights of the public in  other respects unaffected.‖  

(at pp. 919-920)

23  

7. In Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali  

and Ors., (1962) 1 SCR 383, (―Durgah Committee‖), this Court was  

faced with a challenge to the vires of the Durgah Khwaja Saheb Act,  

1955. The famous tomb of Khwaja Moin-ud-din Chishti of Ajmer was  

managed by a group of persons who belonged to the Chishti Order of  

Soofies. The argument that as people from all religious faiths came to  

worship at this shrine, and that, therefore, it could not be said to be a  

shrine belonging to any particular religious denomination, was negated  

as follows:  

―…… Thus on theoretical considerations it may not  be easy to hold that the followers and devotees of  the saint who visit the Durgah and treat it as a place  of pilgrimage can be regarded as constituting a  religious denomination or any section thereof.  However, for the purpose of the present appeal we  propose to deal with the dispute between the parties  on the basis that the Chishtia sect whom the  respondents purport to represent and on whose  behalf — (as well as their own) — they seek to  challenge the vires of the Act is a section or a  religious denomination. This position appears to  have been assumed in the High Court and we do  not propose to make any departure in that behalf in  dealing with the present appeal.‖  

(emphasis supplied)  (at p. 401)  

24  

8. The judgment in Shirur Math (supra) was followed, as was Sri  

Venkataramana Devaru (supra), for the determining tests of what  

would constitute a ―religious denomination‖ and what could be said to  

be essential and integral parts of religion as opposed to purely secular  

practices. An important sentence was added to what has already been  

laid down in these two judgments:   

―…… Similarly, even practices, though religious,  may have sprung from merely superstitious beliefs  and may in that sense be extraneous and  unessential accretions to religion itself. ……‖  

(at p. 412)  

9. In Sardar Syedna Taher Saifuddin Saheb v. State of  

Bombay, 1962 Supp. (2) SCR 496, this Court struck down the  

Bombay Prevention of Excommunication Act, 1949, with Chief Justice  

Sinha dissenting. Though the learned Chief Justice‘s judgment is a  

dissenting judgment, some of the principles laid down by the learned  

Chief Justice, not dissented from by the majority judgment, are  

apposite and are, therefore, set out hereunder:-  

―…… It is noteworthy that the right guaranteed by  Art. 25 is an individual right as distinguished from  the right of an organised body like a religious  denomination or any section thereof, dealt with by

25  

Art. 26. Hence, every member of the community has  the right, so long as he does not in any way interfere  with the corresponding rights of others, to profess,  practice and propagate his religion, and everyone is  guaranteed his freedom of conscience. ……… The  Constitution has left every person free in the matter  of his relation to his Creator, if he believes in one. It  is, thus, clear that a person is left completely free to  worship God according to the dictates of his  conscience, and that his right to worship as he  pleased is unfettered so long as it does not come  into conflict with any restraints, as aforesaid,  imposed by the State in the interest of public order,  etc. A person is not liable to answer for the verity of  his religious views, and he cannot be questioned as  to his religious beliefs, by the State or by any other  person. Thus, though his religious beliefs are  entirely his own and his freedom to hold those  beliefs is absolute, he has not the absolute right to  act in any way he pleased in exercise of his religious  beliefs. He has been guaranteed the right to practice  and propagate his religion, subject to the limitations  aforesaid. His right to practice his religion must also  be subject to the criminal laws of the country, validly  passed with reference to actions which the  legislature has declared to be of a penal character.  Laws made by a competent legislature in the  interest of public order and the like, restricting  religious practices, would come within the regulating  power of the State. For example, there may be  religious practices of sacrifice of human beings, or  sacrifice of animals in a way deleterious to the well- being of the community at large. It is open to the  State to intervene, by legislation, to restrict or to  regulate to the extent of completely stopping such  deleterious practices. It must, therefore, be held that  though the freedom of conscience is guaranteed to  every individual so that he may hold any beliefs he  likes, his actions in pursuance of those beliefs may

26  

be liable to restrictions in the interest of the  community at large, as may be determined by  common consent, that is to say, by a competent  legislature. It was on such humanitarian grounds,  and for the purpose of social reform, that so called  religious practices like immolating a widow at the  pyre of her deceased husband, or of dedicating a  virgin girl of tender years to a God to function as  a devadasi, or of ostracizing a person from all social  contacts and religious communion on account of his  having eaten forbidden food or taboo, were stopped  by legislation.‖  

(emphasis supplied)  (at pp. 518-520)  

 The learned Chief Justice upheld the said Act, stating that the Act is  

aimed at fulfillment of the individual liberty of conscience guaranteed  

by Article 25(1) of the Constitution, and not in derogation of it. Also, the  

learned Chief Justice stated that the Act really carried out the strict  

injunction of Article 17 of the Constitution of India by which  

untouchability has been abolished, and held that, as excommunication  

is a form of untouchability, the Act is protected by Article 17 and must  

therefore be upheld.  

The majority judgment, however, by K.C. Das Gupta, J. held the Act to  

be constitutionally infirm as it was violative of Article 26(b) as follows:  

―Let us consider first whether the impugned Act  contravenes the provisions of Art. 26(b). It is

27  

unnecessary for the purpose of the present case to  enter into the difficult question whether every case  of excommunication by the Dai on whatever  grounds inflicted is a matter of religion. What  appears however to be clear is that where an  excommunication is itself based on religious  grounds such as lapse from the orthodox religious  creed or doctrine (similar to what is considered  heresy, apostasy or schism under the Canon Law)  or breach of some practice considered as an  essential part of the religion by the Dawoodi Bohras  in general, excommunication cannot but be held to  be for the purpose of maintaining the strength of the  religion. It necessarily follows that the exercise of  this power of excommunication on religious grounds  forms part of the management by the community,  through its religious head, ―of its own affairs in  matters of religion.‖ The impugned Act makes even  such excommunications invalid and takes away the  power of the Dai as the head of the community to  excommunicate even on religious grounds. It  therefore, clearly interferes with the right of the  Dawoodi Bohra community under clause (b) of Art.  26 of the Constitution.‖  

(at p. 535)  

Holding that the said law is not referable to Article 25(2)(b), the Court  

then held:  

―It remains to consider whether the impugned Act  comes within the saving provisions embodied in  clause 2 of Art. 25. The clause is in these words:—    

―Nothing in this Article shall affect the operation of  any existing law or prevent the State from making  any law—

28  

(a) regulating or restricting any economic, financial,  political or other secular activity which may be  associated with religious practice;  

(b) providing for social welfare and reform or the  throwing open of Hindu religious institution of a  public character to all classes and section of  Hindus.‖    

Quite clearly, the impugned Act cannot be regarded  as a law regulating or restricting any economic,  financial, political or other secular activity. Indeed,  that was not even suggested on behalf of the  respondent State. It was faintly suggested however  that the Act should be considered to be a law  ―providing for social welfare and reform.‖ The mere  fact that certain civil rights which might be lost by  members of the Dawoodi Bohra community as a  result of excommunication even though made on  religious grounds and that the Act prevents such  loss, does not offer sufficient basis for a conclusion  that it is a law ―providing for social welfare and  reform.‖ The barring of excommunication on  grounds other than religious grounds, say, on the  breach of some obnoxious social rule or practice  might be a measure of social reform and a law  which bars such excommunication merely might  conceivably come within the saving provisions of  clause 2(b) of Art. 25. But barring of  excommunication on religious grounds pure and  simple, cannot however be considered to promote  social welfare and reform and consequently the law  insofar as it invalidates excommunication on  religious grounds and takes away the Dai's power to  impose such excommunication cannot reasonably  be considered to be a measure of social welfare and  reform. As the Act invalidates excommunication on  any ground whatsoever, including religious grounds,  it must be held to be in clear violation of the right of

29  

the Dawoodi Bohra community under Art. 26(b) of  the Constitution.‖  

(at pp. 536-537)    

In an illuminating concurring judgment, N. Rajagopala Ayyangar, J.  

upheld the Act on the ground that excommunication is not so much a  

punishment but is really used as a measure of discipline for the  

maintenance of the integrity of the Dawoodi Bohra community. It  

therefore violates the right to practice religion guaranteed by Articles  

25(1) and 26 in that it interferes with the right of the religious head –  

the Dai – to administer, as trustee, the property of the denomination so  

as to exclude excommunicated persons. The learned Judge, however,  

drew a distinction between the two parts of Article 25(2)(b), stating that  

the expression ―social welfare and reform‖ could not affect essential  

parts of religious practice as follows:  

―But very different considerations arise when one  has to deal with legislation which is claimed to be  merely a measure ―providing for social welfare and  reform.‖ To start with, it has to be admitted that this  phrase is, as contrasted with the second portion of  Art. 25(2)(b), far from precise and is flexible in its  content. In this connection it has to be borne in mind  that limitations imposed on religious practices on the  ground of public order, morality or health have  already been saved by the opening words of Art.  25(1) and the saving would cover beliefs and

30  

practices even though considered essential or vital  by those professing the religion. I consider that in  the context in which the phrase occurs, it is intended  to save the validity only of those laws which do not  invade the basic and essential practices of religion  which are guaranteed by the operative portion of  Art. 25(1) for two reasons: (1) To read the saving as  covering even the basic essential practices of  religion, would in effect nullify and render  meaningless the entire guarantee of religious  freedom — a freedom not merely to profess, but to  practice religion, for very few pieces of legislation for  abrogating religious practices could fail to be  subsumed under the caption of ―a provision for  social welfare or reform.‖ (2) If the phrase just  quoted was intended to have such a wide operation  as cutting at even the essentials guaranteed by Art.  25(1), there would have been no need for the  special provision as to ―throwing open of Hindu  religious institutions‖ to all classes and sections of  Hindus since the legislation contemplated by this  provision would be par excellence one of social  reform.  

In my view by the phrase ―laws providing for social  welfare and reform‖ it was not intended to enable  the legislature to ―reform‖ a religion out of existence  or identity. Art. 25(2)(a) having provided for  legislation dealing with ―economic, financial, political  or secular activity which may be associated with  religious practices‖, the succeeding clause proceeds  to deal with other activities of religious groups and  these also must be those which are associated with  religion. Just as the activities referred to in Art.  25(2)(a) are obviously not of the essence of the  religion, similarly the saving in Art. 25(2)(b) is not  intended to cover the basic essentials of the creed  of a religion which is protected by Art. 25(1).‖

31  

(at pp. 552-553)    

10. As this view is the view of only one learned Judge, and as it  

does not arise for decision in the present case, suffice it to say that this  

view will need to be tested in some future case for its validity. It is  

instructive to remember that Shirur Math (supra) specifically  

contained a sentence which stated that there is a further right given to  

the State by Article 25(2)(b) under which, the State can legislate for  

social welfare and reform ―even though by so doing it might interfere  

with religious practices‖. We, therefore, leave this part of Article  

25(2)(b) to be focused and deliberated upon in some future case.  

 11. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan  

and Ors., (1964) 1 SCR 561, otherwise referred to as the Nathdwara  

Temple case, this Court was concerned with the validity of the  

Nathdwara Temple Act, 1959. Referring to and following some of the  

judgments that have already been referred, this Court held that the  

Nathdwara temple was a public temple and that as the Act  

extinguished the secular office of the Tilkayat by which he was  

managing the properties of the Temple, no right under Article 26 could  

be said to have been effected. In an instructive passage, this Court

32  

laid down certain tests as to what could be said to be an essential or  

integral part of religion as opposed to purely secular practice, and laid  

down what is to be done to separate what may not always be oil from  

water. The Court held as follows:  

―In deciding the question as to whether a given  religious practice is an integral part of the religion or  not, the test always would be whether it is regarded  as such by the community following the religion or  not. This formula may in some cases present  difficulties in its operation. Take the case of a  practice in relation to food or dress. If in a given  proceeding, one section of the community claims  that while performing certain rites white dress is an  integral part of the religion itself, whereas another  section contends that yellow dress and not the white  dress is the essential part of the religion, how is the  Court going to decide the question? Similar disputes  may arise in regard to food. In cases where  conflicting evidence is produced in respect of rival  contentions as to competing religious practices the  Court may not be able to resolve the dispute by a  blind application of the formula that the community  decides which practice is an integral part of its  religion, because the community may speak with  more than one voice and the formula would,  therefore, break down. This question will always  have to be decided by the Court and in doing so, the  Court may have to enquire whether the practice in  question is religious in character and if it is, whether  it can be regarded as an integral or essential part of  the religion, and the finding of the Court on such an  issue will always depend upon the evidence  adduced before it as to the conscience of the  community and the tenets of its religion. It is in the

33  

light of this possible complication which may arise in  some cases that this Court struck a note of caution  in the case of The Durgah Committee Ajmer v. Syed  Hussain Ali [(1962) 1 SCR 383, 411], and observed  that in order that the practices in question should be  treated as a part of religion they must be regarded  by the said religion as its essential and integral part;  otherwise even purely secular practices which are  not an essential or an integral part of religion are apt  to be clothed with a religious form and may make a  claim for being treated as religious practices within  the meaning of Art. 25(1).    In this connection, it cannot be ignored that what is  protected under Arts. 25(1) and 26(b) respectively  are the religious practices and the right to manage  affairs in matters of religion. If the practice in  question is purely secular or the affair which is  controlled by the statute is essentially and  absolutely secular in character, it cannot be urged  that Art. 25(1) or Art. 26(b) has been contravened.  The protection is given to the practice of religion and  to the denomination‘s right to manage its own affairs  in matters of religion. Therefore, whenever a claim is  made on behalf of an individual citizen that the  impugned statute contravenes his fundamental right  to practise religion or a claim is made on behalf of  the denomination that the fundamental right  guaranteed to it to manage its own affairs in matters  of religion is contravened, it is necessary to consider  whether the practice in question is religious or the  affairs in respect of which the right of management  is alleged to have been contravened are affairs in  matters of religion. If the practice is a religious  practice or the affairs are the affairs in matter of  religion, then, of course, the rights guaranteed by  Art. 25(1) and Art. 26(b) cannot be contravened.   

34  

It is true that the decision of the question as to  whether a certain practice is a religious practice or  not, as well as the question as to whether an affair  in question is an affair in matters of religion or not,  may present difficulties because sometimes  practices, religious and secular, are inextricably  mixed up. This is more particularly so in regard to  Hindu religion because as is well known, under the  provisions of ancient Smritis, all human actions from  birth to death and most of the individual actions from  day-to-day are regarded as religious in character.  As an illustration, we may refer to the fact that the  Smritis regard marriage as a sacrament and not a  contract. Though the task of disengaging the secular  from the religious may not be easy, it must  nevertheless be attempted in dealing with the claims  for protection under Arts 25(1) and 26(b). If the  practice which is protected under the former is a  religious practice, and if the right which is protected  under the latter is the right to manage affairs in  matters of religion, it is necessary that in judging  about the merits of the claim made in that behalf the  Court must be satisfied that the practice is religious  and the affair is in regard to a matter of religion. In  dealing with this problem under Arts. 25(1) and  26(b), Latham C.J.‘s observation in Adelaide  Company of Jehovah's Witnesses Incorporated v.  The Commonwealth [67 CLR 116, 123], that ―what  is religion to one is superstition to another‖, on  which Mr. Pathak relies, is of no relevance. If an  obviously secular matter is claimed to be matter of  religion, or if an obviously secular practice is alleged  to be a religious practice, the Court would be  justified in rejecting the claim because the protection  guaranteed by Art. 25(1) and Art. 26(b) cannot be  extended to secular practices and affairs in regard  to denominational matters which are not matters of  religion, and so, a claim made by a citizen that a  purely secular matter amounts to a religious

35  

practice, or a similar claim made on behalf of the  denomination that a purely secular matter is an  affair in matters of religion, may have to be rejected  on the ground that it is based on irrational  considerations and cannot attract the provisions of  Art. 25(1) or Art 26(b). This aspect of the matter  must be borne in mind in dealing with the true scope  and effect of Art. 25(1) and Art. 26(b).‖  

(at pp. 620-623)  

 12. In Seshammal and Ors. v. State of Tamil Nadu, (1972) 2  

SCC 11, the validity of the Tamil Nadu Hindu Religious and Charitable  

Endowments (Amendment) Act, 1970 was questioned by hereditary  

Archakas and Mathadhipatis of some ancient temples of Tamil Nadu,  

as the Amendment Act did away with the hereditary right of succession  

to the office of Archaka even if the Archaka was otherwise qualified.  

This Court repelled such challenge but in doing so, spoke of the  

importance of the consecration of an idol in a Hindu temple and the  

rituals connected therewith, as follows:  

―11. ……… On the consecration of the image in the  temple the Hindu worshippers believe that the  Divine Spirit has descended into the image and from  then on the image of the deity is fit to be  worshipped. Rules with regard to daily and  periodical worship have been laid down for securing  the continuance of the Divine Spirit. The rituals have  a two-fold object. One is to attract the lay  worshipper to participate in the worship carried on

36  

by the priest or Archaka. It is believed that when a  congregation of worshippers participates in the  worship a particular attitude of aspiration and  devotion is developed and confers great spiritual  benefit. The second object is to preserve the image  from pollution, defilement or desecration. It is part of  the religious belief of a Hindu worshipper that when  the image is polluted or defiled the Divine Spirit in  the image diminishes or even vanishes. That is a  situation which every devotee or worshipper looks  upon with horror. Pollution or defilement may take  place in a variety of ways. According to the Agamas,  an image becomes defiled if there is any departure  or violation of any of the rules relating to worship. In  fact, purificatory ceremonies have to be performed  for restoring the sanctity of the shrine [1958 SCR  895 (910)]. Worshippers lay great store by the  rituals and whatever other people, not of the faith,  may think about these rituals and ceremonies, they  are a part of the Hindu religious faith and cannot be  dismissed as either irrational or superstitious.‖  

 Ultimately, it was held that since the appointment of an Archaka is a  

secular act, the Amendment Act must be regarded as valid.  

 13. We now come to a very important judgment contained in Rev.  

Stainislaus v. State of Madhya Pradesh and Ors., (1977) 2 SCR  

611. This judgment dealt with the constitutional validity of the Madhya  

Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa  

Freedom of Religion Act, 1967, both of which statutes were upheld by  

the Court stating that they fall within the exception of ―public order‖ as

37  

both of them prohibit conversion from one religion to another by use of  

force, allurement, or other fraudulent means. In an instructive passage,  

this Court turned down the argument on behalf of the appellants that  

the word ―propagate‖ in Article 25(1) would include conversion. The  

Court held:  

―We have no doubt that it is in this sense that the  word ‗propagate‘ has been used in Article 25(1), for  what the Article grants is not the right to convert  another person to one's own religion, but to transmit  or spread one's religion by an exposition of its  tenets. It has to be remembered that Article 25(1)  guarantees ―freedom of conscience‖ to every citizen,  and not merely to the followers of one particular  religion, and that, in turn, postulates that there is no  fundamental right to convert another person to one‘s  own religion because if a person purposely  undertakes the conversion of another person to his  religion, as distinguished from his effort to transmit  or spread the tenets of his religion, that would  impinge on the ―freedom of conscience‖ guaranteed  to all the citizens of the country alike.    The meaning of guarantee under Article 25 of the  Constitution came up for consideration in this Court  in Ratilal Panachand Gandhi v. The State of  Bombay & Ors. [1954 SCR 1055, 1062-63] and it  was held as follows:  

―Thus, subject to the restrictions which this  Article imposes, every person has a  fundamental right under our Constitution  not merely to entertain such religious belief  as may be approved of by his judgment or

38  

conscience but to exhibit his belief and  ideas in such overt acts as are enjoined or  sanctioned by his religion and further to  propagate his religious views for the  edification of others.‖   

This Court has given the correct meaning of the  Article, and we find no justification for the view that it  grants a fundamental right to convert persons to  one's own religion. It has to be appreciated that the  freedom of religion enshrined in the Article is not  guaranteed in respect of one religion only, but  covers all religions alike, and it can be properly  enjoyed by a person if he exercises his right in a  manner commensurate with the like freedom of  persons following the other religions. What is  freedom for one, is freedom for the other, in equal  measure, and there can therefore be no such thing  as a fundamental right to convert any person to  one's own religion.‖  

(at pp. 616-617)  

14. In S.P. Mittal v. Union of India and Ors., (1983) 1 SCC 51,  

(―S.P. Mittal‖), this Court upheld the constitutional validity of the  

Auroville (Emergency Provisions) Act, 1980. After referring to Shirur  

Math (supra) and Durgah Committee (supra), the Court laid down  

three tests for determining whether a temple could be considered to be  

a religious denomination as follows:  

―80. The words ‗religious denomination‘ in Article 26  of the Constitution must take their colour from the  word ‗religion‘ and if this be so, the expression

39  

‗religious denomination‘ must also satisfy three  conditions:  

―(1) It must be a collection of individuals who  have a system of beliefs or doctrines which they  regard as conducive to their spiritual well-being,  that is, a common faith;  

(2) common organization; and  

(3) designation by a distinctive name.‖    

A reference was made to Rule 9 of the Rules and Regulations of the  

Sri Aurobindo Society, and to an important argument made, that to be  

a religious denomination, the person who is a member of the  

denomination should belong to the religion professed by the  

denomination and should give up his previous religion. The argument  

was referred to in paragraph 106 as follows:  

―106. Reference was made to Rule 9 of the Rules  and Regulations of Sri Aurobindo Society, which  deals with membership of the Society and provides:    

―9. Any person or institution or organisation  either in India or abroad who subscribes to the  aims and objects of the Society, and whose  application for membership is approved by the  Executive Committee, will be member of the  Society. The membership is open to people  everywhere without any distinction of  nationality, religion, caste, creed or sex.‖    

The only condition for membership is that the  person seeking the membership of the Society must  subscribe to the aims and objects of the Society. It

40  

was further urged that what is universal cannot be a  religious denomination. In order to constitute a  separate denomination, there must be something  distinct from another. A denomination argues the  counsel, is one which is different from the other and  if the Society was a religious denomination, then the  person seeking admission to the institution would  lose his previous religion. He cannot be a member  of two religions at one and the same time. But this is  not the position in becoming a member of the  Society and Auroville. A religious denomination  must necessarily be a new one and new  methodology must be provided for a religion.  Substantially, the view taken by Sri Aurobindo  remains a part of the Hindu philosophy. There may  be certain innovations in his philosophy but that  would not make it a religion on that account.‖  

After referring to the arguments of both sides, the Court did not answer  

the question as to whether the Sri Aurobindo Society was a religious  

denomination, but proceeded on the assumption that it was, and then  

held that the Act did not violate either Article 25 or Article 26.   

 In a separate opinion by Chinnappa Reddy, J., without adverting to the  

argument contained in paragraph 106 of Misra, J.‘s judgment, the  

learned Judge concluded that ―Aurobindoism‖ could be classified as a  

new sect of Hinduism and the followers of Sri Aurobindo could,  

therefore, be termed as a religious denomination. This was done  

despite the fact that Sri Aurobindo himself disclaimed that he was

41  

founding a new religion and that the Society had represented itself as  

a ―non-political, non-religious organization‖ and claimed exemption  

from income tax on the ground that it was engaged in educational,  

cultural, and scientific research.   

 15. We then come to Acharya Jagdishwaranand Avadhuta and  

Ors. v. Commissioner of Police, Calcutta and Anr., (1983) 4 SCC  

522. This judgment concerned itself with whether ―Ananda Marga‖ is a  

separate religious denomination. After referring to the tests laid down  

in Shirur Math (supra), Durgah Committee (supra), and S.P. Mittal  

(supra), this Court held that Ananda Margis belong to the Hindu  

religion, more specifically, being Shaivites, and therefore, could be  

held to be persons who satisfy all three tests – namely, that they are a  

collection of individuals who have a system of beliefs which they  

regard as conducive to their spiritual well-being; they have a common  

organization; and a distinctive name. In holding that the Tandava  

dance cannot be taken to be an essential religious right of the Anand  

Margis, this Court in paragraph 14 held:  

―14. The question for consideration now, therefore,  is whether performance of Tandava dance is a  religious rite or practice essential to the tenets of the

42  

religious faith of the Ananda Margis. We have  already indicated that Tandava dance was not  accepted as an essential religious rite of Ananda  Margis when in 1955 the Ananda Marga order was  first established. It is the specific case of the  petitioner that Shri Ananda Murti introduced  Tandava as a part of religious rites of Ananda  Margis later in 1966. Ananda Marga as a religious  order is of recent origin and Tandava dance as a  part of religious rites of that order is still more  recent. It is doubtful as to whether in such  circumstances Tandava dance can be taken as an  essential religious rite of the Ananda Margis. Even  conceding that it is so, it is difficult to accept Mr.  Tarkunde‘s argument that taking out religious  processions with Tandava dance is an essential  religious rite of Ananda Margis. In paragraph 17 of  the writ petition the petitioner pleaded that ―Tandava  dance lasts for a few minutes where two or three  persons dance by lifting one leg to the level of the  chest, bringing it down and lifting the other‖. In  paragraph 18 it has been pleaded that ―when the  Ananda Margis greet their spiritual preceptor at the  airport, etc., they arrange for a brief welcome dance  of Tandava wherein one or two persons use the  skull and symbolic knife and dance for two or three  minutes‖. In paragraph 26 it has been pleaded that  ―Tandava is a custom among the sect members and  it is a customary performance and its origin is over  four thousand years old, hence it is not a new  invention of Ananda Margis‖. On the basis of the  literature of the Ananda Marga denomination it has  been contended that there is prescription of the  performance of Tandava dance by every follower of  Ananda Marga. Even conceding that Tandava  dance has been prescribed as a religious rite for  every follower of the Ananda Marga it does not  follow as a necessary corollary that Tandava dance  to be performed in the public is a matter of religious

43  

rite. In fact, there is no justification in any of the  writings of Sri Ananda Murti that Tandava dance  must be performed in public. At least none could be  shown to us by Mr. Tarkunde despite an enquiry by  us in that behalf. We are, therefore, not in a position  to accept the contention of Mr. Tarkunde that  performance of Tandava dance in a procession or at  public places is an essential religious rite to be  performed by every Ananda Margi.‖  

 16. In Sri Adi Visheshwara of Kashi Vishwanath Temple,  

Varanasi and Ors. v. State of U.P. and Ors., (1997) 4 SCC 606, (―Sri  

Adi Visheshwara‖), this Court upheld the constitutional validity of the  

Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. In so doing,  

they referred to the tests of a religious denomination laid down in the  

previous judgments of this Court, and then held:  

―33. Thus, it could be seen that every Hindu whether  a believer of Shaiva form of worship or of  panchratna form of worship, has a right of entry into  the Hindu Temple and worship the deity. Therefore,  the Hindu believers of Shaiva form of worship are  not denominational worshippers. They are part of  the Hindu religious form of worship. The Act protects  the right to perform worship, rituals or ceremonies in  accordance with established customs and practices.  Every Hindu has right to enter the Temple, touch the  Linga of Lord Sri Vishwanath and himself perform  the pooja. The State is required under the Act to  protect the religious practices of the Hindu form of  worship of Lord Vishwanath, be it in any form, in  accordance with Hindu Shastras, the customs or  usages obtained in the Temple. It is not restricted to

44  

any particular denomination or sect. Believers of  Shaiva form of worship are not a denominational  sect or a section of Hindus but they are Hindus as  such. They are entitled to the protection under  Articles 25 and 26 of the Constitution. However,  they are not entitled to the protection, in particular,  of clauses (b) and (d) of Article 26 as a religious  denomination in the matter of management,  administration and governance of the temples under  the Act. The Act, therefore, is not ultra vires Articles  25 and 26 of the Constitution.‖    (emphasis supplied)  

17. In N. Adithayan v. Travancore Devaswom Board and Ors.,  

(2002) 8 SCC 106, this Court held the appointment of a person who is  

not a Malayala Brahmin as a Pujari or priest of a temple in Kerala as  

constitutionally valid. After referring to various authorities of this Court,  

this Court held:  

―16. It is now well settled that Article 25 secures to  every person, subject of course to public order,  health and morality and other provisions of Part III,  including Article 17 freedom to entertain and exhibit  by outward acts as well as propagate and  disseminate such religious belief according to his  judgment and conscience for the edification of  others. The right of the State to impose such  restrictions as are desired or found necessary on  grounds of public order, health and morality is inbuilt  in Articles 25 and 26 itself. Article 25(2)(b) ensures  the right of the State to make a law providing for  social welfare and reform besides throwing open of  Hindu religious institutions of a public character to  all classes and sections of Hindus and any such

45  

rights of the State or of the communities or classes  of society were also considered to need due  regulation in the process of harmonizing the various  rights. The vision of the founding fathers of the  Constitution to liberate the society from blind and  ritualistic adherence to mere traditional superstitious  beliefs sans reason or rational basis has found  expression in the form of Article 17. The legal  position that the protection under Articles 25 and 26  extends a guarantee for rituals and observances,  ceremonies and modes of worship which are  integral parts of religion and as to what really  constitutes an essential part of religion or religious  practice has to be decided by the courts with  reference to the doctrine of a particular religion or  practices regarded as parts of religion, came to be  equally firmly laid down.  

17. Where a temple has been constructed and  consecrated as per Agamas, it is considered  necessary to perform the daily rituals, poojas and  recitations as required to maintain the sanctity of the  idol and it is not that in respect of any and every  temple any such uniform rigour of rituals can be  sought to be enforced, dehors its origin, the manner  of construction or method of consecration. No doubt  only a qualified person well versed and properly  trained for the purpose alone can perform poojas in  the temple since he has not only to enter into the  sanctum sanctorum but also touch the idol installed  therein. It therefore goes without saying that what is  required and expected of one to perform the rituals  and conduct poojas is to know the rituals to be  performed and mantras, as necessary, to be recited  for the particular deity and the method of worship  ordained or fixed therefor. For example, in Saivite  temples or Vaishnavite temples, only a person who  learnt the necessary rites and mantras conducive to  be performed and recited in the respective temples

46  

and appropriate to the worship of the particular deity  could be engaged as an Archaka. If traditionally or  conventionally, in any temple, all along a Brahmin  alone was conducting poojas or performing the job  of Santhikaran, it may not be because a person  other than the Brahmin is prohibited from doing so  because he is not a Brahmin, but those others were  not in a position and, as a matter of fact, were  prohibited from learning, reciting or mastering Vedic  literature, rites or performance of rituals and wearing  sacred thread by getting initiated into the order and  thereby acquire the right to perform homa and  ritualistic forms of worship in public or private  temples. Consequently, there is no justification to  insist that a Brahmin or Malayala Brahmin in this  case, alone can perform the rites and rituals in the  temple, as part of the rights and freedom  guaranteed under Article 25 of the Constitution and  further claim that any deviation would tantamount to  violation of any such guarantee under the  Constitution. There can be no claim based upon  Article 26 so far as the Temple under our  consideration is concerned. Apart from this principle  enunciated above, as long as anyone well versed  and properly trained and qualified to perform the  pooja in a manner conducive and appropriate to the  worship of the particular deity, is appointed as  Santhikaran dehors his pedigree based on caste, no  valid or legally justifiable grievance can be made in  a court of law. There has been no proper plea or  sufficient proof also in this case of any specific  custom or usage specially created by the founder of  the Temple or those who have the exclusive right to  administer the affairs — religious or secular of the  Temple in question, leave alone the legality,  propriety and validity of the same in the changed  legal position brought about by the Constitution and  the law enacted by Parliament. The Temple also  does not belong to any denominational category

47  

with any specialized form of worship peculiar to  such denomination or to its credit. For the said  reason, it becomes, in a sense, even unnecessary  to pronounce upon the invalidity of any such  practice being violative of the constitutional mandate  contained in Articles 14 to 17 and 21 of the  Constitution of India.‖  

Finally, this Court held:  

―18. ……… Any custom or usage irrespective of  even any proof of their existence in pre- constitutional days cannot be countenanced as a  source of law to claim any rights when it is found to  violate human rights, dignity, social equality and the  specific mandate of the Constitution and law made  by Parliament. No usage which is found to be  pernicious and considered to be in derogation of the  law of the land or opposed to public policy or social  decency can be accepted or upheld by courts in the  country.‖  

 18. In Dr. Subramanian Swamy v. State of Tamil Nadu and Ors.,  

(2014) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars  

(Smarthi Brahmins) to administer the properties of a temple dedicated  

to Lord Natraja at the Sri Sabanayagar Temple at Chidambaram. This  

Court noticed, in paragraph 24, that the rights conferred under Article  

26 are not subject to other provisions of Part III of the Constitution. It  

then went on to extract a portion of the Division Bench judgment of the  

Madras High Court, which held that the Podhu Dikshitars constitute a

48  

religious denomination, or in any event, a section thereof, because  

they are a closed body, and because no other Smartha Brahmin who  

is not a Dikshitar is entitled to participate in either the administration or  

in the worship of God. This is their exclusive and sole privilege which  

has been recognized and established for several centuries. Another  

interesting observation of this Court was that fundamental rights  

protected under Article 26 cannot be waived. Thus, the power to  

supersede the administration of a religious denomination, if only for a  

certain purpose and for a limited duration, will have to be read as  

regulatory, otherwise, it will violate the fundamental right contained in  

Article 26.  

 19. In Riju Prasad Sarma and Ors. v. State of Assam and Ors.,  

(2015) 9 SCC 461, this Court dealt with customs based on religious  

faith which dealt with families of priests of a temple called the Maa  

Kamakhya Temple. After discussing some of the judgments of this  

Court, a Division Bench of this Court held:  

 ―61. There is no need to go into all the case laws in  respect of Articles 25 and 26 because by now it is  well settled that Article 25(2)(a) and Article 26(b)  guaranteeing the right to every religious  denomination to manage its own affairs in matters of

49  

religion are subject to and can be controlled by a  law contemplated under Article 25(2)(b) as both the  Articles are required to be read harmoniously. It is  also well established that social reforms or the need  for regulations contemplated by Article 25(2) cannot  obliterate essential religious practices or their  performances and what would constitute the  essential part of a religion can be ascertained with  reference to the doctrine of that religion itself. In  support of the aforesaid established propositions,  the respondents have referred to and relied upon  the judgment in Commr., Hindu Religious  Endowments v. Sri Lakshmindra Thirtha Swamiar of  Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005]  and also upon Sri Venkataramana Devaru v. State  of Mysore [AIR 1958 SC 255 : 1958 SCR 895].‖  

 The observation that regulations contemplated by Article 25 cannot  

obliterate essential religious practices is understandable as regulations  

are not restrictions. However, social reform legislation, as has been  

seen above, may go to the extent of trumping religious practice, if so  

found on the facts of a given case. Equally, the task of carrying out  

reform affecting religious belief is left by Article 25(2) in the hands of  

the State (See paragraph 66).  

 20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v.  

Government of Tamil Nadu and Anr., (2016) 2 SCC 725, (―Adi  

Saiva Sivachariyargal Nala Sangam‖), this Court was concerned

50  

with a Government Order issued by the Government of Tamil Nadu,  

which stated that any person who is a Hindu and possesses the  

requisite qualification and training, can be appointed as an Archaka in  

Hindu temples. The Court referred to Article 16(5) of the Constitution,  

stating that the exception carved out of the equality principle would  

cover an office of the temple, which also requires performance of  

religious functions. Therefore, an Archaka may, by law, be a person  

professing a particular religion or belonging to a particular  

denomination. The Court went on to hold that although what  

constitutes essential religious practice must be decided with reference  

to what the religious community itself says, yet, the ultimate  

constitutional arbiter of what constitutes essential religious practice  

must be the Court, which is a matter of constitutional necessity. The  

Court went on to state that constitutional legitimacy, as decided by the  

Courts, must supersede all religious beliefs and practices, and clarified  

that ―complete autonomy‖, as contemplated by Shirur Math (supra), of  

a denomination to decide what constitutes essential religious practice  

must be viewed in the context of the limited role of the State in matters  

relating to religious freedom as envisaged by Articles 25 and 26 of the

51  

Constitution, and not of Courts as the arbiter of constitutional rights  

and principles.  

 21. A conspectus of these judgments, therefore, leads to the  

following propositions:  

21.1. Article 25 recognises a fundamental right in favour of ―all  

persons‖ which has reference to natural persons.  

21.2. This fundamental right equally entitles all such persons to the  

said fundamental right. 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.  

21.3. The content of the fundamental right is the fleshing out of what  

is stated in the Preamble to the Constitution as ―liberty of thought,  

belief, faith and worship‖. Thus, all persons are entitled to freedom of  

conscience and the right to freely profess, practice, and propagate  

religion.   

21.4. The right to profess, practice, and propagate religion will include  

all acts done in furtherance of thought, belief, faith, and worship.  

52  

21.5. The content of the right concerns itself with the word ―religion‖.  

―Religion‖ in this Article would mean matters of faith with individuals or  

communities, based on a system of beliefs or doctrines which conduce  

to spiritual well-being. The aforesaid does not have to be theistic but  

can include persons who are agnostics and atheists.    

21.6. It is only the essential part of religion, as distinguished from  

secular activities, that is the subject matter of the fundamental right.  

Superstitious beliefs which are extraneous, unnecessary accretions to  

religion cannot be considered as essential parts of religion. Matters  

that are 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  

that has been evolved 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? Equally, if different groups of a  

religious community speak with different voices on the essentiality  

aspect presented before the Court, the Court is then to decide as to  

whether such matter is or is not essential. Religious activities may also  

be mixed up with secular activities, in which case the dominant nature

53  

of the activity test is to be applied. The Court should take a common-

sense view and be actuated by considerations of practical necessity.  

21.7. The exceptions to this individual right are public order, morality,  

and health. ―Public order‖ is to be distinguished from ―law and order‖.  

―Public disorder‖ must affect the public at large as opposed to certain  

individuals. A disturbance of public order must cause a general  

disturbance of public tranquility. The term ―morality‖ is difficult to  

define. For the present, suffice it to say that it refers to that which is  

considered abhorrent to civilized society, given the mores of the time,  

by reason of harm caused by way, inter alia, of exploitation or  

degradation.2 ―Health‖ would include noise pollution and the control of  

disease.  

21.8. Another exception to the fundamental right conferred by Article  

25(1) is the rights that are conferred on others by the other provisions  

of Part III. This would show that if one were to propagate one‘s religion  

                                                           2  We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to read the word ―morality‖ as  being ―constitutional morality‖ as has been explained in some of our recent judgments. If so read, it  cannot be forgotten that this would bring in, through the back door, the other provisions of Part III of the  Constitution, which Article 26 is not subject to, in contrast with Article 25(1). In any case, the  fundamental right under Article 26 will have to be balanced with the rights of others contained in Part III  as a matter of harmonious construction of these rights as was held in Sri Venkataramana Devaru  (supra). But this would only be on a case to case basis, without necessarily subjecting the fundamental  right under Article 26 to other fundamental rights contained in Part III.  

54  

in such a manner as to convert a person of another religious faith,  

such conversion would clash with the other person‘s right to freedom  

of conscience and would, therefore, be interdicted. Where the practice  

of religion is interfered with by the State, Articles 14, 15(1), 19, and 21  

would spring into action. Where the practice of religion is interfered  

with by non-State actors, Article 15(2) and Article 173 would spring into  

action.  

21.9. Article 25(2) is also an exception to Article 25(1), which speaks  

of the State making laws which may regulate or restrict secular activity,  

which includes economic, financial or political activity, which may be  

associated with religious practice – see Article 25(2)(a).   

21.10. Another exception is provided under Article 25(2)(b) which is in  

two parts. Any law providing for social welfare and reform in a religious  

community can also affect and/or take away the fundamental right  

granted under Article 25(1). A further exception is provided only insofar  

as persons professing the Hindu religion are concerned, which is to  

                                                           3  We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to construe Article 17 in wider  terms than merely including those who were historically untouchables at the time of framing of the  Constitution. We have refrained from doing so because, given our conclusion, based on Article 25(1),  this would not directly arise for decision on the facts of this case.   

56  

As in Article 25, it is only essential religious matters which are  

protected by this Article.  

21.13. The fundamental right granted under Article 26 is subject to the  

exception of public order, morality, and health. However, since the  

right granted under Article 26 is to be harmoniously construed with  

Article 25(2)(b), the right to manage its own affairs in matters of  

religion granted by Article 26(b), in particular, will be subject to laws  

made under Article 25(2)(b) which throw open religious institutions of a  

public character to all classes and sections of Hindus.   

21.14. Thus, it is clear that 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 under  

Article 26(b). Examples of such practices are that only certain qualified

57  

persons are allowed to enter the sanctum sanctorum of a temple, or  

time management of a temple in which all persons are shut out for  

certain periods.  

 22. At this stage, it is important to advert to a Division Bench  

judgment of the Kerala High Court reported as S. Mahendran v. The  

Secretary, Travancore Devaswom Board, Thiruvananthapuram  

and Ors., AIR 1993 Ker 42. A petition filed by Shri S. Mahendran was  

converted into a PIL by the High Court. The petition complained of  

young women offering prayers at the Sabarimala Temple. The Division  

Bench set out three questions that arose, as follows:  

―12. The questions which require answers in this  original petition are:  

(1) Whether woman [sic women] of the age  group 10 to 50 can be permitted to enter the  Sabarimala temple at any period of the year or  during any of the festivals or poojas conducted  in the temple.  

(2) Whether the denial of entry of that class of  woman [sic women] amounts to discrimination  and [sic is] violative of Articles 15, 25 and 26 of  the Constitution of India, and   

(3) Whether directions can be issued by this  Court to the Devaswom Board and the  Government of Kerala to restrict the entry of  such woman [sic women] to the temple?‖

58  

The Division Bench referred to the all-important ―Vratham‖ (41-day  

penance), which, according to the Division Bench, ladies between the  

ages of 10 and 50 would not be physically capable of observing. In  

paragraph 7, the Division Bench stated that while the old customs  

prevailed, women did visit the temple, though rarely, as a result of  

which, there was no prohibition. The affidavit filed on behalf of the  

Travancore Devaswom Board stated that, even in recent years, many  

female worshippers in the age group of 10 to 50 had gone to the  

temple for the first rice-feeding ceremony of their children. The Board,  

in fact, used to issue receipts on such occasions on payment of the  

prescribed charge. However, on the advice of the priest i.e. the  

Thanthri, changes were effected in order to preserve the temple‘s  

sanctity. The Division Bench found that women, irrespective of their  

age, were allowed to visit the temple when it opens for monthly poojas,  

but were not permitted to enter the temple during Mandalam,  

Makaravilakku, and Vishu seasons. After examining the evidence of  

one Thanthri, the Secretary of the Ayyappa Seva Sangham, and a 75-

year old man who had personal knowledge of worshipping at the  

temple, the Division Bench stated that the usage of not permitting

59  

women between the age group of 10 to 50 to worship in the temple  

had been established. This was further sanctified by Devaprasnams  

conducted at Sabarimala by astrologers, who reported that the deity  

does not like young ladies entering the precincts of the temple. It was  

then held in paragraph 38 that since women of the age group of 10 to  

50 years would not be able to observe Vratham for a period of 41 days  

due to physiological reasons, they were not permitted to go on a  

pilgrimage of Sabarimala. It was also held that the deity is in the form  

of a Naisthik Brahmachari, as a result of which, young women should  

not offer worship in the temple, so that even the slightest deviation  

from celibacy and austerity observed by the deity is not caused by the  

presence of such women. The conclusion of the Division Bench in  

paragraph 44 was, therefore, as follows:  

―44. Our conclusions are as follows:  

(1) The restriction imposed on women aged  above 10 and below 50 from trekking the holy  hills of Sabarimala and offering worship at  Sabarimala Shrine is in accordance with the  usage prevalent from time immemorial.  

(2) Such restriction imposed by the Devaswom  Board is not violative of Articles 15, 25 and 26  of the Constitution of India.

60  

(3) Such restriction is also not violative of the  provisions of Hindu Place of Public Worship  (Authorisation of Entry) Act, 1965 since there is  no restriction between one section and another  section or between one class and another class  among the Hindus in the matter of entry to a  temple whereas the prohibition is only in  respect of women of a particular age group and  not women as a class.‖  

 23. In the present writ petition filed before this Court, an affidavit  

filed by a Thanthri of the Sabarimala temple dated 23.04.2016 makes  

interesting reading. According to the affidavit, two Brahmin brothers  

from Andhra Pradesh were tested by Sage Parasuram and were  

named ―Tharanam‖ and ―Thazhamon‖. The present Thanthri is a  

descendant of the Thazhamon brother, who is authorized to perform  

rituals in Sastha temples. The affidavit then refers to the Sabarimala  

Temple, which is dedicated to Lord Ayyappa, as a prominent temple in  

Kerala which is visited by over twenty million pilgrims and devotees  

every year. The temple is only open during the first five days of every  

Malayalam month, and during the festivals of Mandalam,  

Makaravilakku, and Vishu.  Significantly, no daily poojas are performed  

in the said temple. It is stated in the affidavit that Lord Ayyappa had  

himself explained that the pilgrimage to Sabarimala can be undertaken

61  

only by the performance of Vratham, which are religious austerities  

that train man for evolution to spiritual consciousness.   

Paragraph 10 of the affidavit is important and states as follows:-  

―10. I submit that as part of observing ―vrutham‖, the  person going on pilgrimage to Sabarimala separates  himself from all family ties and becomes a student  celibate who is under Shastras banned any contact  with females of the fertile age group.  Everywhere  when somebody takes on the ―vrutham‖, either the  women leave the house and take up residence  elsewhere or the men separate themselves from the  family so that normal Asauchas in the house do not  affect his ―vrutham‖.  The problem with women is  that they cannot complete the 41 days vrutham  because the Asaucham of periods will surely fall  within the 41 days.  It is not a mere physiological  phenomenon.  It is the custom among all Hindus  that women during periods do not go to Temples or  participate in religious activity. This is as per the  statement of the basic Thantric text of Temple  worshipping in Kerala Thanthra Samuchayam,  Chapter 10, Verse II. A true copy of the relevant  page of Thanthra Samuchchaya is attached  herewith and marked as Annexure A-1 (Pages 30- 31).‖  

 The affidavit then goes on to state that the Shastras forbid religious  

austerity by menstruating women, which is why women above the age  

of 10 and below the age of 50 are not allowed entering into the temple.  

The affidavit then states, in paragraph 15:

62  

―15. ……… During this period, many women are  affected by physical discomforts like headache,  body pain, vomiting sensation etc. In such  circumstances, intense and chaste spiritual  disciplines for forty-one days are not possible. It is  for the sake of pilgrims who practiced celibacy that  youthful women are not allowed in the Sabarimala  pilgrimage. ………‖      

The other reason given in the affidavit for the usage of non-entry of  

women between these ages is as follows:  

―24. That the deity at Sabarimala is in the form of a  ‗Naishtik Brahmachari‘ and that is the reason why  young women are not permitted to offer prayers in  the temple as the slightest deviation from celibacy  and austerity observed by the deity is not caused by  the presence of such women. ………‖  

It will thus be seen that women are barred entry to the temple at  

Sabarimala because of the biological or physiological phenomenon of  

menstruation, which forbids their participation in religious activity. The  

second reason given is that young women should not, in any manner,  

deflect the deity, who is in the form of a Naisthika Brahmachari, from  

celibacy and austerity.   

 24. All the older religions speak of the phenomenon of menstruation  

in women as being impure, which therefore, forbids their participation

63  

in religious activity. Thus, in the Old Testament, in Chapter 15, Verse  

19 of the book of Leviticus, it is stated:  

―19. And if a woman have an issue, and her issue in  her flesh be blood, she shall be put apart seven  days: and whosoever toucheth her shall be unclean  until the even.‖4  

Similarly, in the Dharmasutra of Vasistha, an interesting legend of how  

women were made to menstruate is stated as follows:  

―A menstruating woman remains impure for three  days. She should not apply collyrium on her eyes or  oil on her body, or bathe in water; she should sleep  on the floor and not sleep during the day; she  should not touch the fire, make a rope, brush her  teeth, eat meat, or look at the planets; she should  not laugh, do any work, or run; and she should drink  out of a large pot or from her cupped hands or a  copper vessel. For it is stated: ‗Indra, after he had  killed the three-headed son of Tvastr, was seized by  sin, and he regarded himself in this manner: ―An  exceedingly great guilt attaches to me‖. And all  creatures railed against him: ―Brahmin-killer!  Brahmin-killer!‖ He ran to the women and said:  ―Take over one-third of this my guilt of killing a  Brahmin.‖ They asked: ―What will we get?‖ He  replied: ―Make a wish.‖ They said: ―Let us obtain  offspring during our season, and let us enjoy sexual  intercourse freely until we give birth.‖ He replied: ―So  be it!‖ And they took the guilt upon themselves. That  guilt of killing a Brahmin manifests itself every  

                                                           4  Leviticus 15:19 (King James Version).

64  

month. Therefore, one should not eat the food of a  menstruating woman, for such a woman has put on  the aspect of the guilt of killing a Brahmin‘.‖5  

To similar effect are Chapters 9 and 13 of Canto 6 of the Bhagavata  

Purana which read as follows:  

―6.9.9. In return for Lord Indra‘s benediction that  they would be able to enjoy lusty desires  continuously, even during pregnancy for as long as  sex is not injurious to the embryo, women accepted  one fourth of the sinful reactions. As a result of  those reactions, women manifest the signs of  menstruation every month.‖6  

―6.13.5. King Indra replied: When I killed Visvarupa,  I received extensive sinful reactions, but I was  favored by the women, land, trees and water, and  therefore I was able to divide the sin among them.  But now if I kill Vrtrasura, another brahmana, how  shall I free myself from the sinful reactions?‖7  

Also, in the Qur‘an, Chapter 2, Verse 222 states as follows:  

―222. They also ask you about (the injunctions  concerning) menstruation. Say: ―it is a state of hurt  (and ritual impurity), so keep away from women  during their menstruation and do not approach them  

                                                           5  DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 264  (Translation by Patrick Olivelle, Oxford University Press, 1999).  

6  SRIMAD BHAGAVATAM – SIXTH CANTO (Translation by A.C. Bhaktivedanta Swami Prabhupada, The  

Bhaktivedanta Book Trust, 1976).  

7  Id.

65  

until they are cleansed. When they are cleansed,  then (you can) go to them inasmuch as God has  commanded you (according to the urge He has  placed in your nature, and within the terms He has  enjoined upon you). Surely God loves those who  turn to Him in sincere repentance (of past sins and  errors), and He loves those who cleanse  themselves.‖8  

In the Gospel of Mark, Jesus is said to have cured a woman who was  

ritualistically unclean, having had an issue of blood for 12 years, as  

follows:  

―25. And a certain woman, which had an issue of  blood twelve years,  

26. And had suffered many things of many  physicians, and had spent all that she had, and was  nothing bettered, but rather grew worse,  

27. When she had heard of Jesus, came in the  press behind, and touched his garment.  

28. For she said, If I may touch but his clothes, I  shall be whole.  

29. And straightway the fountain of her blood was  dried up; and she felt in her body that she was  healed of that plague.  

30. And Jesus, immediately knowing in himself that  virtue had gone out of him, turned him about in the  press, and said, Who touched my clothes?  

                                                           8  THE QUR‘AN – WITH ANNOTATED INTERPRETATION IN MODERN ENGLISH, 2:222 (Translation  by Ali Ünal,  Tughra Books USA, 2015).

66  

31. And his disciples said unto him, Thou seest the  multitude thronging thee, and sayest thou, Who  touched me?  

32. And he looked round about to see her that had  done this thing.  

33. But the woman fearing and trembling, knowing  what was done in her, came and fell down before  him, and told him all the truth.  

34. And he said unto her, Daughter, thy faith hath  made thee whole; go in peace, and be whole of thy  plague.‖9  

One may immediately notice that the woman touching Jesus was  

without Jesus‘s knowledge, for upon coming to know of the woman‘s  

touch, Jesus ―knew in himself that virtue had gone out of him‖.  

 Equally, in the Bundahishn, a text relating to creation in  

Zoroastrianism, it is stated that a primeval prostitute call Jeh, because  

of her misdeeds, brought upon herself, menstruation. Chapter 3,  

Verses 6 to 8 of the Bundahishn are as follows:  

―6. And, again, the wicked Jeh shouted thus: ‗Rise  up, thou father of us! for in that conflict I will shed  thus much vexation on the righteous man and the  laboring ox that, through my deeds, life will not be  wanted, and I will destroy their living souls (nismo); I  will vex the water, I will vex the plants, I will vex the  

                                                           9  Mark 5:25-34 (King James Version).

67  

fire of Ohrmazd, I will make the whole creation of  Ohrmazd vexed.‘  

7. And she so recounted those evil deeds a second  time, that the evil spirit was delighted and started up  from that confusion; and he kissed Jeh upon the  head, and the pollution which they call menstruation  became apparent in Jeh.  

8. He shouted to Jeh thus: ‗What is thy wish? so that  I may give it thee.‘ And Jeh shouted to the evil spirit  thus: ‗A man is the wish, so give it to me.‘‖10  

 In the selections of Zadspram, Chapter 34, Verse 31, it is stated:  

―31. And [the demon Whore] of evil religion joined  herself [to the Blessed Man]; for the defilement of  females she joined herself to him, that she might  defile females; and the females, because they were  defiled, might defile the males, and (the males)  would turn aside from their proper work.‖11  

 However, in the more recent religions such as Sikhism and the Bahá‘í  

Faith, a more pragmatic view of menstruation is taken, making it clear  

that no ritualistic impurity is involved. The Sri Guru Granth Sahib  

deems menstruation as a natural process – free from impurity12 and  

                                                           10

THE BUNDAHISHN – ―CREATION‖ OR KNOWLEDGE FROM THE ZAND (Translation by E. W. West, from Sacred  Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892, and 1897).  

11  THE SELECTIONS OF ZADSPRAM (VIZIDAGIHA I ZADSPRAM) (Joseph H. Peterson Ed., 1995) (Translation by  E. W. West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892,  

and 1897).   

12  2 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 466-467 (Translation by Dr.  Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Asa, Shaloka Mehla 1 at p. 472  of the original text of Sri Guru Granth Sahib].

68  

essential to procreation.13 Similarly, in the Bahá‘í Faith, the concept of  

ritual uncleanness has been abolished by Bahá‘u‘lláh.14   

 25. For the purpose of this case, we have proceeded on the footing  

that the reasons given for barring the entry of menstruating women to  

the Sabarimala temple are considered by worshippers and Thanthris  

alike, to be an essential facet of their belief.  

 26. The first question that arises is whether the Sabarimala temple  

can be said to be a religious denomination for the purpose of Article 26  

of the Constitution. We have already seen with reference to the case  

law quoted above, that three things are necessary in order to establish  

that a particular temple belongs to a religious denomination. The  

temple must consist of persons who have a common faith, a common  

organization, and are designated by a distinct name. In answer to the  

question whether Thanthris and worshippers alike are designated by a  

distinct name, we were unable to find any answer. When asked  

whether all persons who visit the Sabarimala temple have a common  

                                                           13

4 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 975 (Translation by Dr. Gopal  Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Maru, Mehla 1 at p.1022 of the original  

text of Sri Guru Granth Sahib].  

14  KITÁB-I-AQDAS BY BAHÁ‘U‘LLÁH, note 106 at p. 122 (Translation by Shoghi Effendi, Bahá'í World Centre,  1992).

69  

faith, the answer given was that all persons, regardless of caste or  

religion, are worshippers at the said temple. From this, it is also clear  

that Hindus of all kinds, Muslims, Christians etc., all visit the temple as  

worshippers, without, in any manner, ceasing to be Hindus, Christians  

or Muslims. They can therefore be regarded, as has been held in Sri  

Adi Visheshwara (supra), as Hindus who worship the idol of Lord  

Ayyappa as part of the Hindu religious form of worship but not as  

denominational worshippers. The same goes for members of other  

religious communities. We may remember that in Durgah Committee  

(supra), this Court had held that since persons of all religious faiths  

visit the Durgah as a place of pilgrimage, it may not be easy to hold  

that they constitute a religious denomination or a section thereof.  

However, for the purpose of the appeal, they proposed to deal with the  

dispute between the parties on the basis that the Chishtia sect, whom  

the respondents represented, were a separate religious denomination,  

being a sub-sect of Soofies. We may hasten to add that we find no  

such thing here. We may also add that in S.P. Mittal (supra), the  

majority judgment did not hold, and therefore, assumed that  

―Aurobindoism‖ was a religious denomination, given the fact that the  

Auroville Foundation Society claimed exemption from income tax on

70  

the footing that it was a charitable, and not a religious organization,  

and held itself out to be a non-religious organization. Also, the  

powerful argument addressed, noticed at paragraph 106 of the  

majority judgment, that persons who joined the Auroville Society did  

not give up their religion, also added great substance to the fact that  

the Auroville Society could not be regarded as a religious  

denomination for the purpose of Article 26. Chinnappa Reddy, J.  

alone, in dissent, held the Auroville Society to be a religious  

denomination, without adverting to the fact that persons who are a part  

of the Society continued to adhere to their religion.   

 27. In these circumstances, we are clearly of the view that there is  

no distinctive name given to the worshippers of this particular 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. It is clear, therefore, that Article 26 does not get  

attracted to the facts of this case.  

71  

28. This being the case, even if we assume that there is a custom  

or usage for keeping out women of the ages of 10 to 50 from entering  

the Sabarimala temple, and that this practice is an essential part of the  

Thanthris‘ as well as the worshippers‘ faith, this practice or usage is  

clearly hit by Section 3 of the Kerala Hindu Places of Public Worship  

(Authorisation of Entry) Act, 1965, which states as follows:  

―3. Places of public worship to be open to all section  

and classes of Hindus:— Notwithstanding anything  

to the contrary contained in any other law for the  

time being in force or any custom or usage or any  

instrument having effect by virtue of any such law or  

any decree or order of court, every place of public  

worship which is open to Hindus generally or to any  

section or class thereof, shall be open to all sections  

and classes of Hindus; and no Hindu of whatsoever  

section or class shall, in any manner, be prevented,  

obstructed or discouraged from entering such place  

of public worship, or from worshipping or offering  

prayers thereat, or performing any religious service  

therein, in the like manner and to the like extent as  

any other Hindu of whatsoever section or class may  

enter, worship, pray or perform:  

 Provided that in the case of a public of public  

worship which is a temple founded for the benefit of  

any religious denomination or section thereof, the  

provisions of this section, shall be subject to the  

right of that religious denomination or section as the

72  

case may be, to manage its own affairs in matters of  

religion.‖   

 Since the proviso to the Section is not attracted on the facts of this  

case, and since the said Act is clearly a measure enacted under Article  

25(2)(b), any religious right claimed on the basis of custom and usage  

as an essential matter of religious practice under Article 25(1), will be  

subject to the aforesaid law made under Article 25(2)(b). The said  

custom or usage must therefore, be held to be violative of Section 3  

and hence, struck down.  

 29.   Even otherwise, the fundamental right of women between the  

ages of 10 and 50 to enter the Sabarimala temple is undoubtedly  

recognized by Article 25(1). The fundamental right claimed by the  

Thanthris and worshippers of the institution, based on custom and  

usage under the selfsame Article 25(1), must necessarily yield to the  

fundamental right of such women, as they are equally entitled to the  

right to practice religion, which would be meaningless unless they  

were allowed to enter the temple at Sabarimala to worship the idol of  

Lord Ayyappa. The argument that all women are not prohibited from  

entering the temple can be of no avail, as women between the age

73  

group of 10 to 50 are excluded completely. Also, the argument that  

such women can worship at the other Ayyappa temples is no answer  

to the denial of their fundamental right to practice religion as they see  

it, which includes their right to worship at any temple of their choice.  

On this ground also, the right to practice religion, as claimed by the  

Thanthris and worshippers, must be balanced with and must yield to  

the fundamental right of women between the ages of 10 and 50, who  

are completely barred from entering the temple at Sabarimala, based  

on the biological ground of menstruation.  

  Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation  

of Entry) Rules, 1965 states as follows:  

―3. The classes of persons mentioned here under  shall not be entitled to offer worship in any place of  public worship or bath in or use of water of any  sacred tank, well, spring or water course  appurtenant to a place of public worship whether  situate within or outside precincts thereof, or any  sacred place including a hill or hill lock, or a road,  street or pathways which is requisite for obtaining  access to place of public worship:  

xxx xxx xxx  

(b)Women at such time during which they are not by  custom and usage allowed to enter a place of public  worship.  

xxx xxx xxx‖

74  

The abovementioned Rule is ultra vires of Section 3 of the Kerala  

Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and  

is hit by Article 25(1) and by Article 15(1) of the Constitution of India as  

this Rule discriminates against women on the basis of their sex only.  

 30.  The learned counsel appearing on behalf of the Respondents  

stated that the present writ petition, which is in the nature of a PIL, is  

not maintainable inasmuch as no woman worshipper has come  

forward with a plea that she has been discriminated against by not  

allowing her entry into the temple as she is between the age of 10 to  

50. A similar argument was raised in Adi Saiva Sivachariyargal Nala  

Sangam (supra) which was repelled in the following terms:  

―12. ……… The argument that the present writ  petition is founded on a cause relating to  appointment in a public office and hence not  entertainable as a public interest litigation would be  too simplistic a solution to adopt to answer the  issues that have been highlighted which concerns  the religious faith and practice of a large number of  citizens of the country and raises claims of century- old traditions and usage having the force of law. The  above is the second ground, namely, the gravity of  the issues that arise, that impel us to make an  attempt to answer the issues raised and arising in  the writ petitions for determination on the merits  thereof.‖

75  

 The present case raises grave issues relating to women generally,  

who happen to be between the ages of 10 to 50, and are not allowed  

entry into the temple at Sabarimala on the ground of a physiological or  

biological function which is common to all women between those ages.  

Since this matter raises far-reaching consequences relating to Articles  

25 and 26 of the Constitution of India, we have found it necessary to  

decide this matter on merits. Consequently, this technical plea cannot  

stand in the way of a constitutional court applying constitutional  

principles to the case at hand.   

 31. A fervent plea was made by some of the counsels for the  

Respondents that the Court should not decide this case without any  

evidence being led on both sides. Evidence is very much there, in the  

form of the writ petition and the affidavits that have been filed in the  

writ petition, both by the Petitioners as well as by the Board, and by  

the Thanthri‘s affidavit referred to supra. It must not be forgotten that a  

writ petition filed under either Article 32 or Article 226 is itself not  

merely a pleading, but also evidence in the form of affidavits that are  

sworn. (See Bharat Singh and Ors. v. State of Haryana and Ors.,  

1988 Supp (2) SCR 1050 at 1059).

76  

32. The facts, as they emerge from the writ petition and the  

aforesaid affidavits, are sufficient for us to dispose of this writ petition  

on the points raised before us. I, therefore, concur in the judgment of  

the learned Chief Justice of India in allowing the writ petition, and  

declare that the custom or usage of prohibiting women between the  

ages of 10 to 50 years from entering the Sabarimala temple is violative  

of Article 25(1), and violative of the Kerala Hindu Places of Public  

Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b)  

of the Constitution. Further, it is also declared that Rule 3(b) of the  

Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules,  

1965 is unconstitutional being violative of Article 25(1) and Article  

15(1) of the Constitution of India.        

      ………………………..……J.         (R.F. Nariman)    

New Delhi;  September 28, 2018.   

1    

 IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

 WRIT PETITION (CIVIL) NO 373 OF 2006  

INDIAN YOUNG LAWYERS ASSOCIATION            ...PETITIONERS   AND ORS                     

VERSUS  

 THE STATE OF KERALA AND ORS                     ...RESPONDENTS             

J U D G M E N T  

INDEX  

A        Conversation within the Constitution: religion, dignity and morality   

B        History: Lord Ayyappa and the Sabarimala Temple  

C        Temple entry and the exclusion of women  

D        The reference  

E        Submissions  

F        Essential Religious Practices   

REPORTABLE

2    

G The engagement of essential religious practices with constitutional values  

H Religious Denominations  

H.1 Do the devotees of Lord Ayyappa constitute a religious denomination?  

I Article 17, “Untouchability” and the notions of purity  

J The ultra vires doctrine  

K The ghost of Narasu  

L Deity as a bearer of constitutional rights  

M A road map for the future  

N Conclusion

PART A     

3    

Dr Dhananjaya Y Chandrachud, J  

A Conversation within the Constitution: religion, dignity and   

morality  

1 The Preamble to the Constitution portrays the foundational principles:  

justice, liberty, equality and fraternity. While defining the content of these  

principles, the draftspersons laid out a broad canvass upon which the diversity  

of our society would be nurtured. Forty two years ago, the Constitution was  

amended to accommodate a specific reference to its secular fabric in the  

Preamble.1  Arguably, this was only a formal recognition of a concept which  

found expression in diverse facets, as they were crafted at the birth of the  

Constitution. Secularism was not a new idea but a formal reiteration of what the  

Constitution always respected and accepted: the equality of all faiths.  Besides  

incorporating a specific reference to a secular republic, the Preamble divulges  

the position held by the framers on the interface of religion and the fundamental  

values of a constitutional order. The Constitution is not – as it could not have  

been - oblivious to religion.  Religiosity has moved hearts and minds in the  

history of modern India.  Hence, in defining the content of liberty, the Preamble  

has spoken of the liberty of thought, expression, belief, faith and worship.  While  

recognising and protecting individual liberty, the Preamble underscores the  

importance of equality, both in terms of status and opportunity. Above all, it  

                                                           1 The Constitution (Forty-second) Amendment, 1976

PART A     

4    

seeks to promote among all citizens fraternity which would assure the dignity  

of the individual.  

2 The significance of the Preamble lies both in its setting forth the founding  

principles of the Constitution as well as in the broad sweep of their content. The  

Constitution was brought into existence to oversee a radical transformation.  

There would be a transformation of political power from a colonial regime. There  

was to be a transformation in the structure of governance. Above all the  

Constitution envisages a transformation in the position of the individual, as a  

focal point of a just society. The institutions through which the nation would be  

governed would be subsumed in a democratic polity where real power both in  

legal and political terms would be entrusted to the people. The purpose of  

adopting a democratic Constitution was to allow a peaceful transition from a  

colonial power to home rule.  In understanding the fundamental principles of the  

Constitution which find reflection in the Preamble, it is crucial to notice that the  

transfer of political power from a colonial regime was but one of the purposes  

which the framers sought to achieve. The transfer of political power furnished  

the imperative for drafting a fundamental text of governance. But the task which  

the framers assumed was infinitely more sensitive. They took upon themselves  

above all, the task to transform Indian society by remedying centuries of  

discrimination against Dalits, women and the marginalised. They sought to  

provide them a voice by creating a culture of rights and a political environment  

to assert freedom. Above all, placing those who were denuded of their human

PART A     

5    

rights before the advent of the Constitution – whether in the veneer of caste,  

patriarchy or otherwise – were to be placed in control of their own destinies by  

the assurance of the equal protection of law. Fundamental to their vision was  

the ability of the Constitution to pursue a social transformation. Intrinsic to the  

social transformation is the role of each individual citizen in securing justice,  

liberty, equality and fraternity in all its dimensions.  

3 The four founding principles are not disjunctive. Together, the values  

which they incorporate within each principle coalesce in achieving the fulfilment  

of human happiness. The universe encompassed by the four founding principles  

is larger the sum total of its parts. The Constitution cannot be understood without  

perceiving the complex relationship between the values which it elevates. So,  

liberty in matters of belief, faith and worship, must produce a compassionate  

and humane society marked by the equality of status among all its citizens.  The  

freedom to believe, to be a person of faith and to be a human being in prayer  

has to be fulfilled in the context of a society which does not discriminate between  

its citizens.  Their equality in all matters of status and opportunity gives true  

meaning to the liberty of belief, faith and worship.  Equality between citizens is  

after all, a powerful safeguard to preserve a common universe of liberties  

between citizens, including in matters of religion.  Combined together, individual  

liberty, equality and fraternity among citizens are indispensable to a social and  

political ordering in which the dignity of the individual is realised. Our  

understanding of the Constitution can be complete only if we acknowledge the

PART A     

6    

complex relationship between the pursuit of justice, the protection of liberty,  

realisation of equality and the assurance of fraternity.  Securing the worth of the  

individual is crucial to a humane society.  

4 The Constitution as a fundamental document of governance has sought  

to achieve a transformation of society.  In giving meaning to its provisions and  

in finding solutions to the intractable problems of the present, it is well to remind  

ourselves on each occasion that the purpose of this basic document which  

governs our society is to bring about a constitutional transformation. In a  

constitutional transformation, the means are as significant as are our ends. The  

means ensure that the process is guided by values. The ends, or the  

transformation, underlie the vision of the Constitution.  It is by being rooted in  

the Constitution’s quest for transforming Indian society that we can search for  

answers to the binaries which have polarised our society.  The conflict in this  

case between religious practices and the claim of dignity for women in matters  

of faith and worship, is essentially about resolving those polarities.  

5 Essentially, the significance of this case lies in the issues which it poses  

to the adjudicatory role of this Court in defining the boundaries of religion in a  

dialogue about our public spaces.  Does the Constitution, in the protection which  

it grants to religious faith, allow the exclusion of women of a particular age group  

from a temple dedicated to the public?  Will the quest for human dignity be  

incomplete or remain but a writ in sand if the Constitution accepts the exclusion

PART A     

7    

of women from worship in a public temple?   Will the quest for equality and  

fraternity be denuded of its content where women continue to be treated as  

children of a lesser god in exercising their liberties in matters of belief, faith and  

worship?  Will the pursuit of individual dignity be capable of being achieved if  

we deny to women equal rights in matters of faith and worship, on the basis of  

a physiological aspect of their existence? These questions are central to  

understanding the purpose of the Constitution, as they are to defining the role  

which is ascribed to the Constitution in controlling the closed boundaries of  

organised religion.  

6 The chapter on Fundamental Rights encompasses the rights to (i)  

Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of  

religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and  

30); and (v) Constitutional remedies (Article 32).  

Article 25 provides thus:  

“25. (1) Subject to public order, morality and health and to the  

other provisions of this Part, all persons are equally entitled to  

freedom of conscience and the right freely to profess, practise  

and propagate religion.   

(2) Nothing in this article shall affect the operation of any  

existing law or prevent the State from making any law—   

(a) regulating or restricting any economic, financial, political or  

other secular activity which may be associated with religious  

practice;  

(b) providing for social welfare and reform or the throwing  

open of Hindu religious institutions of a public character to all  

classes and sections of Hindus.  

PART A     

8    

Explanation I.—The wearing and carrying of kirpans shall be  

deemed to be included in the profession of the Sikh religion.   

Explanation II.—In sub-clause (b) of clause (2), the reference  

to Hindus shall be construed as including a reference to  

persons professing the Sikh, Jaina or Buddhist religion, and the  

reference to Hindu religious institutions shall be construed  

accordingly.”  

In clause (1), Article 25 protects the equal entitlement of all persons to a  

freedom of conscience and to freely profess, protect and propagate religion.  By  

conferring this right on all persons, the Constitution emphasises the universal  

nature of the right. By all persons, the Constitution means exactly what it says :  

every individual in society without distinction of any kind whatsoever is entitled  

to the right. By speaking of an equal entitlement, the Constitution places every  

individual on an even platform.  Having guaranteed equality before the law and  

the equal protection of laws in Article 14, the draftspersons specifically  

continued the theme of an equal entitlement as an intrinsic element of the  

freedom of conscience and of the right to profess, practice and propagate  

religion. There are three defining features of clause (1) of Article 25:  firstly, the  

entitlement of all persons without exception, secondly, the recognition of an  

equal entitlement; and thirdly, the recognition both of the freedom of conscience  

and the right freely to profess, practice and propagate religion.  The right under  

Article 25(1) is evidently an individual right for, it is in the individual that a  

conscience inheres.  Moreover, it is the individual who professes, practices and  

propagates religion.  Freedom of religion in Article 25(1) is a right which the  

Constitution recognises as dwelling in each individual or natural person.

PART A     

9    

7 Yet, the right to the freedom of religion is not absolute.  For the  

Constitution has expressly made it subject to public order, morality and health  

on one hand and to the other provisions of Part III, on the other.  The subjection  

of the individual right to the freedom of religion to the other provisions of the Part  

is a nuanced departure from the position occupied by the other rights to freedom  

recognised in  Articles 14, 15, 19 and 21.  While guaranteeing equality and the  

equal protection of laws in Article 14 and its emanation, in Article 15, which  

prohibits discrimination on grounds of religion, race, caste, sex or place of birth,  

the Constitution  does not condition these basic norms of equality to the other  

provisions of Part III.  Similar is the case with the freedoms guaranteed by Article  

19(1) or the right to life under Article 21.  The subjection of the individual right  

to the freedom of religion under Article 25(1) to the other provisions of Part III  

was not a matter without substantive content.  Evidently, in the constitutional  

order of priorities, the individual right to the freedom of religion was not intended  

to prevail over but was subject to the overriding constitutional postulates of  

equality, liberty and personal freedoms recognised in the other provisions of  

Part III.  

8 Clause (2) of Article 25 protects laws which existed at the adoption of the  

Constitution and the power of the state to enact laws in future, dealing with two  

categories.  The first of those categories consists of laws regulating or restricting  

economic, financial, political or other secular activities which may be associated  

with religious practices.  Thus, in sub-clause (a) of Article 25 (2), the Constitution

PART A     

10    

has segregated matters of religious practice from secular activities, including  

those of an economic, financial or political nature.  The expression “other  

secular activity” which follows upon the expression “economic, financial,  

political” indicates that matters of a secular nature may be regulated or restricted  

by law.  The fact that these secular activities are associated with or, in other  

words, carried out in conjunction with religious practice, would not put them  

beyond the pale of legislative regulation.  The second category consists of laws  

providing for (i) social welfare and reform; or (ii) throwing open of Hindu religious  

institutions of a public character to all classes and sections of Hindus.  The  

expression “social welfare and reform” is not confined to matters only of the  

Hindu religion. However, in matters of temple entry, the Constitution recognised  

the disabilities which Hindu religion had imposed over the centuries which  

restricted the rights of access to dalits and to various groups within Hindu  

society.  The effect of clause (2) of Article 25 is to protect the ability of the state  

to enact laws, and to save existing laws on matters governed by sub-clauses  

(a) and (b).  Clause (2) of Article 25 is clarificatory of the regulatory power of the  

state over matters of public order, morality and health which already stand  

recognised in clause (1). Clause 1 makes the right conferred subject to public  

order, morality and health. Clause 2 does not circumscribe the ambit of the  

‘subject to public order, morality or health’ stipulation in clause 1.  What clause  

2 indicates is that the authority of the state to enact laws on the categories is  

not trammelled by Article 25.      

PART A     

11    

9 Article 26, as its marginal note indicates, deals with the “freedom to  

manage religious affairs”:  

“26. Subject to public order, morality and health, every religious  

denomination or any section thereof shall have the right—  

(a) to establish and maintain institutions for religious and  

charitable purposes;   

(b) to manage its own affairs in matters of religion;  

(c) to own and acquire movable and immovable property; and  

(d) to administer such property in accordance with law.”  

Article 26 confers rights on religious denominations and their sections. The  

Article covers four distinct facets: (i) establishment and maintenance of  

institutions for purposes of a religious and charitable nature; (ii) managing the  

affairs of the denomination in matters of religion; (iii) ownership and acquisition  

of immovable property; and (iv) administration of the property in accordance  

with law.  Article 26, as in the case of Article 25(1), is prefaced by a “subject to  

public order, morality and health” stipulation. Article 26(1) does not embody the  

additional stipulation found in Article 25(1) viz; “and to the other provisions of  

this Part.” The significance of this will be explored shortly.    

10 Public order, morality and health are grounds which the Constitution  

contemplates as the basis of restricting both the individual right to freedom of  

religion in Article 25(1) and the right of religious denominations under Article 26.   

The vexed issue is about the content of morality in Articles 25 and 26. What  

meaning should be ascribed to the content of the expression ‘morality’ is a

PART A     

12    

matter of constitutional moment.  In the case of the individual right as well as  

the right of religious denominations, morality has an overarching position similar  

to public order and health because the rights recognised by both the Articles are  

subject to those stipulations. Article 25(2) contemplates that the Article will  

neither affect the operation of existing law or prevent the state from enacting a  

law for the purposes stipulated in sub-clauses (a) and (b).  

11 In defining the content of morality, did the draftspersons engage with  

prevailing morality in society? Or does the reference to morality refer to  

something more fundamental? Morality for the purposes of Articles 25 and 26  

cannot have an ephemeral existence. Popular notions about what is moral and  

what is not are transient and fleeting. Popular notions about what is or is not  

moral may in fact be deeply offensive to individual dignity and human rights.  

Individual dignity cannot be allowed to be subordinate to the morality of the mob.  

Nor can the intolerance of society operate as a marauding morality to control  

individual self-expression in its manifest form.  The Constitution would not  

render the existence of rights so precarious by subjecting them to passing  

fancies or to the aberrations of a morality of popular opinion. The draftspersons  

of the Constitution would not have meant that the content of morality should  

vary in accordance with the popular fashions of the day.  The expression has  

been adopted in a constitutional text and it would be inappropriate to give it a  

content which is momentary or impermanent.  Then again, the expression  

‘morality’ cannot be equated with prevailing social conceptions or those which

PART A     

13    

may be subsumed within mainstream thinking in society at a given time.  The  

Constitution has been adopted for a society of plural cultures and if its provisions  

are any indication, it is evident that the text does not pursue either a religious  

theocracy or a dominant ideology. In adopting a democratic Constitution, the  

framers would have been conscious of the fact that governance by a majority is  

all about the accumulation of political power. Constitutional democracies do not  

necessarily result in constitutional liberalism. While our Constitution has  

adopted a democratic form of governance it has at the same time adopted  

values based on constitutional liberalism. Central to those values is the position  

of the individual.  The fundamental freedoms which Part III confers are central  

to the constitutional purpose of overseeing a transformation of a society based  

on dignity, liberty and equality.  Hence, morality for the purposes of Articles 25  

and 26 must mean that which is governed by fundamental constitutional  

principles.  

12 The content of morality is founded on the four precepts which emerge  

from the Preamble.  The first among them is the need to ensure justice in its  

social, economic and political dimensions.  The second is the postulate of  

individual liberty in matters of thought, expression, belief, faith and worship.   

The third is equality of status and opportunity amongst all citizens.  The fourth  

is the sense of fraternity amongst all citizens which assures the dignity of  

human life.  Added to these four precepts is the fundamental postulate of  

secularism which treats all religions on an even platform and allows to each

PART A     

14    

individual the fullest liberty to believe or not to believe.  Conscience, it must be  

remembered, is emphasised by the same provision. The Constitution is meant  

as much for the agnostic as it is for the worshipper. It values and protects the  

conscience of the atheist.  The founding faith upon which the Constitution is  

based is the belief that it is in the dignity of each individual that the pursuit of  

happiness is founded.  Individual dignity can be achieved only in a regime which  

recognises liberty as inhering in each individual as a natural right. Human dignity  

postulates an equality between persons. Equality necessarily is an equality  

between sexes and genders.  Equality postulates a right to be free from  

discrimination and to have the protection of the law in the same manner as is  

available to every citizen. Equality above all is a protective shield against the  

arbitrariness of any form of authority. These founding principles must govern  

our constitutional notions of morality.  Constitutional morality must have a value  

of permanence which is not subject to the fleeting fancies of every time and age.   

If the vision which the founders of the Constitution adopted has to survive,  

constitutional morality must have a content which is firmly rooted in the  

fundamental postulates of human liberty, equality, fraternity and dignity.  These  

are the means to secure justice in all its dimensions to the individual citizen.   

Once these postulates are accepted, the necessary consequence is that the  

freedom of religion and, likewise, the freedom to manage the affairs of a  

religious denomination is subject to and must yield to these fundamental notions  

of constitutional morality.  In the public law conversations between religion and  

morality, it is the overarching sense of constitutional morality which has to

PART A     

15    

prevail. While the Constitution recognises religious beliefs and faiths, its  

purpose is to ensure a wider acceptance of human dignity and liberty as the  

ultimate founding faith of the fundamental text of our governance.  Where a  

conflict arises, the quest for human dignity, liberty and equality must prevail.   

These, above everything else, are matters on which the Constitution has willed  

that its values must reign supreme.  

13 The expression “subject to” is in the nature of a condition or proviso.   

Making a provision subject to another may indicate that the former is controlled  

by or is subordinate to the other.  In making clause 1 of Article 25 subject to the  

other provisions of Part III without introducing a similar limitation in Article 26,  

the Constitution should not readily be assumed to have intended the same  

result. Evidently the individual right under Article 25(1) is not only subject to  

public order, morality and health, but it is also subordinate to the other freedoms  

that are guaranteed by Part III.  In omitting the additional stipulation in Article  

26, the Constitution has consciously not used words that would indicate an  

intent specifically to make Article 26 subordinate to the other freedoms.  This  

textual interpretation of Article 26, in juxtaposition with Article 25 is good as far  

as it goes.  But does that by itself lend credence to the theory that the right of a  

religious denomination to manage its affairs is a standalone right uncontrolled  

or unaffected by the other fundamental freedoms? The answer to this must lie  

in the negative. It is one thing to say that Article 26 is not subordinate to (not  

‘subject to’) other freedoms in Part III. But it is quite another thing to assume

PART A     

16    

that Article 26 has no connect with other freedoms or that the right of religious  

denominations is unconcerned with them. To say as a matter of interpretation  

that a provision in law is not subordinate to another is one thing. But the absence  

of words of subjection does not necessarily attribute to the provision a status  

independent of a cluster of other entitlements, particularly those based on  

individual freedoms. Even where one provision is not subject to another there  

would still be a ground to read both together so that they exist in harmony.   

Constitutional interpretation is all about bringing a sense of equilibrium, a  

balance, so that read individually and together the provisions of the Constitution  

exist in contemporaneous accord. Unless such an effort were to be made, the  

synchrony between different parts of the Constitution would not be preserved.   

In interpreting a segment of the Constitution devoted exclusively to fundamental  

rights one must eschew an approach which would result in asynchrony.  Co-

existence of freedoms is crucial, in the ultimate analysis, to a constitutional order  

which guarantees them and seeks to elevate them to a platform on which every  

individual without distinction can reap their fruit without a bar to access. Thus,  

the absence of words in Article 26 which would make its provisions subordinate  

to the other fundamental freedoms neither gives the right conferred upon  

religious denominations a priority which overrides other freedoms nor does it  

allow the freedom of a religious denomination to exist in an isolated silo.  In real  

life it is difficult to replicate the conditions of a controlled experiment in a  

laboratory.  Real life is all about complexities and uncertainties arising out of the  

assertions of entitlements and conflicts of interests among groups of different

PART A     

17    

hues in society. The freedoms which find an elaboration in Part III are exercised  

within a society which is networked. The freedoms themselves have linkages  

which cannot be ignored. There is, therefore, a convincing reason not to allow  

the provisions of Article 26 to tread in isolation.  Article 26 is one among a large  

cluster of freedoms which the Constitution has envisaged as intrinsic to human  

liberty and dignity.  In locating the freedom under Article 26 within a group – the  

religious denomination – the text in fact allows us to regard the fundamental  

right recognised in it as one facet of the overall components of liberty in a free  

society.  

14 This approach to constitutional interpretation which I propose and follow  

is acceptable for another reason, as a matter of constitutional doctrine. Since  

the decision of eleven judges in Rustom Cavasjee Cooper v Union of India2,  

it is now settled doctrine that the fundamental rights contained in Part III are not,  

as it has been said, water-tight compartments. Evolving away from the earlier  

jurisprudence in A K Gopalan v State of Madras3 our interpretation of the  

freedoms is now governed by a sense of realism which notices their open-

textured content and indeed, their fluid nature.  One freedom shades into and  

merges with another. Fairness as a guarantee against arbitrary state action  

influences the content of the procedure for the deprivation of life under Article  

21. Though Article 21 speaks only of the deprivation of life or personal liberty by  

a procedure established by law, decisions from Maneka Gandhi v Union of  

                                                           2(1970) 1 SCC 248   3 1950 SCR 88

PART A     

18    

India4, (“Maneka”) have expounded that the law must have a content which is  

reasonable. The procedure for deprivation must be free of the taint of that which  

is arbitrary. This reading of the fundamental rights as constellations emanating  

from a cosmos of freedom and as having paths which intersect and merge  

enhances the value of freedom itself. Though the principal provision relating to  

equality before the law is embodied in Article 14, the four articles which follow it  

are a manifestation of its basic doctrines. Article 15 in outlawing discrimination  

on grounds of religion, race, caste, sex and place of birth is but a manifestation  

of equality. Equality in matters of public employment under Article 16 is a facet  

of the basic postulate of equality. Article 17 gives expression to equality in  

abolishing untouchability: a practice fundamentally at odds to the notion of an  

equal society. Titles which place some citizens above others are abolished by  

Article 18 in manifesting yet another aspect of equality. As we have seen, a  

fundamental notion of equality is embodied in Article 25(1) itself when it speaks  

of an equal entitlement to freely practice, profess and propagate religion. This  

sense of equality permeates the other guarantees of fundamental freedoms as  

well. Article 19 recognises six freedoms as an entitlement “of all citizens”.  

Recognizing that a right inheres in all citizens is a constitutional affirmation that  

every citizen, without exception or discrimination of any kind is entitled to those  

freedoms. Then again, the restrictions on the freedoms contemplated by Articles  

19(2) to (6) have to be reasonable. Reasonableness is a facet of equality. The  

equal application of law to persons similarly circumstanced is a fundamental  

                                                           4 (1978) 1 SCC 248

PART A     

19    

postulate of the protections which are conferred by Articles 20, 21 and 22. Thus  

the principle which has become an entrenched part of our constitutional doctrine  

after the decision in Bank Nationalization is based on a sure foundation. The  

freedoms which we possess and those which we exercise are not disjunctive  

parts, separate from each other. Individuals in society exercise not one but  

many of the freedoms. An individual exercises a multitude of freedoms as a  

composite part of the human personality. A single act embodies within it the  

exercise of many choices reflecting the assertion of manifold freedoms. From  

this perspective, it is but a short step to hold that all freedoms exist in harmony.  

Our freedoms are enveloped in the womb created by the Constitution for the  

survival of liberty. Hence, the absence of a clause of subjection in Article 26  

does not lead to the conclusion that the freedom of a religious denomination  

exists as a discrete element, divorced from the others. This approach is quite  

independent of the consideration that even Article 26 like Article 25(1) is subject  

to public order, morality and health. Once we hold, following the line which is  

now part of conventional doctrine, that all freedoms have linkages and exist in  

a state of mutual co-existence, the freedom of religious denominations under  

Article 26 must be read in a manner which preserves equally, other individual  

freedoms which may be impacted by an unrestrained exercise. Hence, the  

dignity of women which is an emanation of Article 15 and a reflection of Article  

21 cannot be disassociated from the exercise of religious freedom under Article  

26.  

PART A     

20    

15 Once Articles 25 and 26 are read in the manner in which they have been  

interpreted, the distinction between the articles in terms of the presence or  

absence of a clause of subjection should make little practical significance to the  

relationship between the freedom of religion with the other freedoms recognized  

in the fundamental rights. If the Constitution has to have a meaning, is it  

permissible for religion – either as a matter of individual belief or as an organized  

structure of religious precepts – to assert an entitlement to do what is derogatory  

to women? Dignity of the individual is the unwavering premise of the  

fundamental rights. Autonomy nourishes dignity by allowing each individual to  

make critical choices for the exercise of liberty. A liberal Constitution such as  

ours recognizes a wide range of rights to inhere in each individual. Without  

freedom, the individual would be bereft of her individuality. Anything that is  

destructive of individual dignity is anachronistic to our constitutional ethos. The  

equality between sexes and equal protection of gender is an emanation of  

Article 15. Whether or not Article 15 is attracted to a particular source of the  

invasion of rights is not of overarching importance for the simple reason that the  

fundamental principles which emerge from the Preamble, as we have noticed  

earlier, infuse constitutional morality into its content. In our public discourse of  

individual rights, neither religious freedom nor organized religion can be heard  

to assert an immunity to adhere to fundamental constitutional precepts  

grounded in dignity and human liberty. The postulate of equality is that human  

beings are created equal. The postulate is not that all men are created equal  

but that all individuals are created equal. To exclude women from worship by

PART A     

21    

allowing the right to worship to men is to place women in a position of  

subordination. The Constitution, should not become an instrument for the  

perpetuation of patriarchy. The freedom to believe, the freedom to be a person  

of faith and the freedom of worship, are attributes of human liberty. Facets of  

that liberty find protection in Article 25. Religion then cannot become a cover to  

exclude and to deny the basic right to find fulfilment in worship to women. Nor  

can a physiological feature associated with a woman provide a constitutional  

rationale to deny to her the right to worship which is available to others. Birth  

marks and physiology are irrelevant to constitutional entitlements which are  

provided to every individual. To exclude from worship, is to deny one of the most  

basic postulates of human dignity to women. Neither can the Constitution  

countenance such an exclusion nor can a free society accept it under the veneer  

of religious beliefs.  

16 Much of our jurisprudence on religion has evolved, as we shall see,  

around what constitutes an essential religious practice.  At a certain level an  

adjudication of what is a religious practice seems to have emerged from the  

distinction made in clause 2(a) of Article 25 between a religious practice and  

economic, financial, political or other secular activities which are associated with  

religious practices. Where the state has enacted a law by which it claims to have  

regulated a secular activity associated with a religious practice, but not the  

religious practice, it becomes necessary to decide the issue, where the validity  

of the law is challenged. Similarly, Article 26(b) speaks of “matters of religion”

PART A     

22    

when it recognises the right of a religious denomination to manage them.  In the  

context of Article 26(b), this Court has embarked upon a course to decide in  

individual cases whether, what was said to be regulated by the state was a  

matter of religion which falls within the freedom guaranteed to the denomination.   

These compulsions nonetheless have led the court to don a theological mantle.  

The enquiry has moved from deciding what is essentially religious to what is an  

essential religious practice. Donning such a role is not an easy task when the  

Court is called upon to decide whether a practice does nor does not form an  

essential part of a religious belief.  Scriptures and customs merge with  

bewildering complexity into superstition and dogma.  Separating the grain from  

the chaff involves a complex adjudicatory function. Decisions of the Court have  

attempted to bring in a measure of objectivity by holding that the Court has been  

called upon to decide on the basis of the tenets of the religion itself. But even  

that is not a consistent norm.  

17 Our conversations with the Constitution must be restructured to evolve  

both with the broadening of the content of liberty and dignity and the role of the  

Court as an enforcer of constitutional doctrine.  The basic principle which must  

guide any analysis in this area is the dominance of the values of liberty, equality  

and fraternity as instruments in achieving individual dignity.  Once individual  

dignity assumes the character of a shining star in the constellation of  

fundamental rights, the place of religion in public places must be conditioned by  

India’s unwavering commitment to a constitutional order based on human

PART A     

23    

dignity.  Practices which are destructive of liberty and those which make some  

citizens less equal than others can simply not be countenanced.  To treat  

women as children of a lesser god is to blink at the Constitution itself. Among  

the fundamental duties of every citizen recognized by the Constitution is “to  

renounce practices derogatory to the dignity of women”.5 In speaking to the  

equality between individuals in matters of livelihood, health and remuneration  

for work, the Directive Principles speak to the conscience of the Constitution.  

To allow practices derogatory to the dignity of a woman in matters of faith and  

worship would permit a conscious breach of the fundamental duties of every  

citizen. We cannot adopt an interpretation of the Constitution which has such  

an effect. Our inability to state this as a matter of constitutional doctrine is liable  

to lead us to positions of pretence or, worse still, hypocrisy. Both are willing  

allies to push critical issues under the carpet.  If we are truly to emerge out of  

the grim shadows of a society which has subjugated groups of our citizens under  

the weight of discrimination for centuries, it is time that the Constitution is  

allowed to speak as it can only do: in a forthright manner as a compact of  

governance, for today and the future.  

18 Now it is in this background that it would be necessary to explore the  

principles which emerge from the precedents of this Court which explain the  

content of Article 25(1) and Article 26.

                                                           5 Article 51A(e), The Constitution of India

PART B     

24    

B History: Lord Ayyappa and the Sabarimala Temple  

Origins   

 19 The Sabarimala Temple, devoted to Lord Ayyappa is a temple of great  

antiquity. The temple is situated over one of the eighteen mountains spread over  

the Western Ghats known as Sannidhanam. Situated in the district of  

Pathananthitta in Kerala, the temple nestles at a height of 1260 metres (4135  

feet) above sea level. The faithful believe that Lord Ayyappa’s powers derive  

from his ascetism, in particular from his being celibate. Celibacy is a practice  

adopted by pilgrims before and during the pilgrimage. Those who believe in Lord  

Ayyappa and offer prayer are expected to follow a strict ‘Vratham’ or vow over  

a period of forty one days which lays down a set of practices.  

20 The legend of Lord Ayyappa and the birth of the Sabarimala temple have  

been explained6 in the erudite submissions in this case. Although there are  

numerous Ayyappa Temples in India, the Sabarimala Temple depicts Lord  

Ayyappa as a “Naishtika Brahmacharya”: his powers derive specifically from  

abstention from sexual activities.  

   The birth of Lord Ayyappa is described as arising from the union of Lord Shiva  

and Lord Vishnu (the form of Mohini). The divine beings left the boy in a forest  

                                                           6 Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned Senior Counsel Dr. Abhishek Manu  

Singhvi for the Respondents; Non-Case Law Convenience Compilation filed by Advocate for Respondent No. 2;  Learned Senior Counsel Indira Jaisingh and Learned Counsel R.P. Gupta for the Petitioners   

PART B     

25    

near River Pampa.  The Pandalam King, Rajasekara, while on a hunting trip in  

the forest along the banks of the River Pampa, heard the cries of a child. The  

King reached the banks of the river and found the child Ayyappa. The King took  

the child in and took him to the Palace, where the King briefed the Queen about  

the incident. The couple as well as the people of the Kingdom were happy by  

the arrival of the new child. Ayyappa, also called ‘Manikanta’ grew up in the  

palace and was trained in the martial arts and Vedas. The Guru responsible for  

Manikanta’s education concluded that the this was not an ordinary child, but a  

divine power.   

Meanwhile, the Queen gave birth to a male child named Raja Rajan. Impressed  

with the talents of Manikanta, King Rajasekara decided to crown him, treating  

him as the elder child. He ordered the Minister to make arrangements for the  

coronation. However, the Minister, desiring the throne for himself, attempted to  

execute plans to prevent the coronation, all of which failed. Having failed, the  

Minister approached the Queen to persuade her to ensure that her own  

biological child was crowned King. The Minister suggested that the Queen  

pretend that she was suffering from a severe headache, whereupon he would  

make the physician prescribe that the milk of a tigress be brought to cure her.   

To achieve this, he suggested that Manikanta should be sent to the forest.   

21 Manikanta soon left for the forest after promising the King that he would  

return with the milk of a tigress. Manikanta set out on his journey after having  

refused an escort of men that the King had desired to accompanying him. The

PART B     

26    

King had sent with Manikanta food and coconuts with three eyes, in the  

remembrance of Lord Shiva. In the forest, Lord Shiva appeared before  

Manikanta and told him that though he had done his duty towards the devas, he  

was left with the task to ensure the King’s comfort. Lord Shiva told Manikanta  

that he could go back to the Palace with Lord Indra in the form of a tiger.   

When Manikanta was seated on the tiger, and all the female devatas in the  

disguise of tigresses started their journey to the palace, the schemers were  

frightened into confessing their plot. They were convinced of his divine origins  

and prayed for their own salvation and for the safety of the Kingdom. Manikanta  

disappeared. The King refused to eat anything till his return. Manikanta   

appeared in the form of a vision before the King. Filled with emotions of  

happiness, grief, fear, wonder and ‘Bhakti, the King stood praying for mercy and  

the blessings of Manikanta. He repented in front of Manikanta for not having  

realized his divine power and for treating him merely as his child. The Lord  

lovingly embraced the King who prayed to bless him by freeing him from ego  

and the worldy cycle of rebirth. Manikanta granted him Moksha (salvation). He  

told the King that he was destined to return. The King implored Manikanta to  

allow him to build a temple and dedicate it to him. The Lord assented. Manikanta  

then enlightened the King on the path of Moksha.   

22 The Lord shot an arrow that fell at the pinnacle of Sabarimala and told the  

King that he could construct a temple at Sabarimala, north of the Holy river  

Pampa and install his deity there. Lord Ayyappa also explained how the

PART B     

27    

Sabarimala pilgrimage shall be undertaken, emphasizing the importance of the  

penance or ‘Vratham’ and what the devotees can attain by his ‘darshan’. But  

before the departure of the Lord, the King secured a promise from the Lord that  

on thai pongal on January 14, every year, his personal jewelry will be adorned  

on his deity at Sabarimala.  

The Pilgrimage   

 23 Sabarimala follows the system of being open for:  

 1. The month of Mandalam viz. 17 November to 26 December of the normal  

calendar years of each year;  

2. For the first five days of each Malayalam month which communes  

approximately in the middle of each calendar month; and  

3. For the period of Makar Sankranti, viz. approximately from January to mid  

January each year.  

The followers of Lord Ayyappa undertake a holy Pilgrimage which culminates in  

a prayer at the holy shrine. The pilgrimage takes place in four stages. First, there  

is a formal initiation ceremony that begins a forty-one day Vratham. This is  

followed by another formal ceremony at the end of the Vratham period, called  

the Irumuti Kattal (tying of bundle), after which the pilgrims set off for their yatra  

to the Ayyappa Temple at Sabarimala. This stage includes the physical travel  

to the pilgrimage site, bathing in the holy river Pampa at the foot of Mount Sabari

PART B     

28    

and the climb up Mount Sabari. This involves a trek from the Pampa river,  

climbing 3000 feet to the Sannidhanam, which is a trek of around 13 Kms, or  

through forests which is a trek of 41 Kms. It ends with the pilgrim’s ascending  

the sacred” eighteen steps to the shrine for the first darshan or glimpse of the  

deity. The fourth stage is the return journey and the final incorporation back into  

life.  

Modern communications have made the task less arduous.  In 1960, an access  

road was constructed for vehicles, so that a pilgrim can drive right up to the foot  

of Sabarimala. From here, the holy summit is just 8 kms away. The Kerala State  

Transport Corporation runs special buses during the season of pilgrimage. The  

buses connect Pampa directly with almost all the main cities in Kerala, Tamil  

Nadu and Karnataka.   

24 The pilgrimage has three distinctive features: (i) It is almost exclusively a  

male-centric pilgrimage that bars women between the ages of ten and fifty from  

participating in the rituals; (ii) Though the worshippers of Lord Ayyappa fall  

broadly within the Hindu tradition, yet males of all ages may participate on an  

equal footing, regardless of caste, creed or religion. Muslims and Christians are  

also known to undertake this pilgrimage, enjoying the same equality; and (iii)  

The actual journey to the pilgrimage site is preceded by a preparatory period of  

forty-one days. During this period, pilgrims are obliged to wear black clothes

PART B     

29    

and the ‘mala’ with which they are initiated, and they must observe celibacy,  

abstinence from meat and intoxicants.    

   25 Traditionally though the Vratham period extended over forty-one days,  

nowadays shorter periods are permitted. While it is expected that for first time  

initiaties observe the forty-one day Vratham, others shorten the term to two  

weeks or even six days. A key essential of the Vratham is a sathvic lifestyle and  

brahmacharya. This is believed to be a step towards a pure body and mind an  

effort to be aloof from the materialistic world, by taking a step towards the path  

of devotion.    

 The Vratham or penance entails:  

 (i) Abstaining from physical relations with a spouse;  

(ii) Abstention from intoxicating drinks, smoking and tamasic food;  

(iii) Living in isolation from the rest of the family;   

(iv) Refraining from interacting with women in daily life including those   

in the family;   

(v) Cooking one’s own food;  

(vi) Maintaining hygiene including bathing twice a day before prayers;  

(vii) Wearing a black mundu and upper garments;  

(viii) Partaking of one meal a day; and  

(ix) Walking barefoot.    

PART C     

30    

The penance is to be carried out in the manner prescribed. Maintaining oneself  

as ‘pure and unpolluted’, it is believed, would lead to the path towards attaining     

Godhead or to be one with Lord Ayyappa.   

C Temple entry and the exclusion of women    

Before proceeding to analyse the questions in this reference, it would be  

necessary to outline the history of the case bearing upon the controversy.    

26 Two notifications were issued by the Travancore Devaswom Board which  

read as follows:  

Notification dated 21 October 1955  

“In accordance with the fundamental principle underlying the  

prathishta (installation) of the venerable, holy and ancient  

temple of Sabarimala, Ayyappans who had not observed the  

usual vows as well as women who had attained maturity were  

not in the habit of entering the above mentioned temple for  

Darshan (worship) by stepping the Pathinettampadi. But of  

late, there seems to have been a deviation from this custom  

and practice. In order to maintain the sanctity and dignity of this  

great temple and keep up the past traditions, it is hereby  

notified that Ayyappans who do not observe the usual Vrithams  

are prohibited from entering the temple by stepping the  

Pathinettampadi and women between the ages of ten and fifty-

five are forbidden from entering the temple.”7   

Notification dated 27 November 1956

                                                           7 The Kerala High Court in S Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram,  

recorded that women between ten and fifty were excluded from the Sabarimala temple. The Petitioners and  Respondents in the present case accept that women between the age of ten and fifty are excluded.

PART C     

31    

“In accordance with the fundamental principle underlying the  

prathishta (installation) of the venerable, holy and ancient  

temple of Sabarimala, Ayyappans who had not observed the  

usual vows as well as women who had attained maturity were  

not in the habit of entering the above-mentioned temple for  

Darshan (worship) by stepping the Pathinettampadi. But of  

late, there seems to have been a deviation from this custom  

and practice. In order to maintain the sanctity and dignity of this  

great temple and keep up the past traditions, it is hereby  

notified that Ayyappans who do not observe the usual Vritham  

(vows) are prohibited from entering the temple by stepping the  

pathinettampadi and women between the ages of ten and fifty  

five are forbidden from entering the temple.”  

In 1965, the Kerala Hindu Places of Public Worship (Authorization of Entry) Act  

19658 was enacted. The preamble to the Act lays down that the Act has been  

enacted to make better provisions for entry of all classes and sections of Hindu  

into places of public worship. Section 2 contains definitions:   

“Section 2. Definitions:- In this Act, unless the context  

otherwise requires, -   

(a) “Hindu” includes a person professing the Buddhist, Sikh or  

Jaina religion;   

(b) “place of public worship” means a place, by whatever name  

known or to whomsoever belonging, which is dedicated to, or  

for the benefit of, or is used generally by, Hindus or any section  

or class thereof, for the performance of any religious service or  

for offering prayers therein, and includes all lands and  

subsidiary shrines, mutts, devasthanams, namaskara  

mandapams and nalambalams appurtenant or attached to any  

such place, and also any sacred tanks, wells, springs and  

water courses the waters of which are worshipped, or are used  

for bathing or for worship, but does not include a “sreekoil”;    

(c) “section or class” includes any division, sub-division, caste,  

sub-caste, sect or denomination whatsoever.”   

                                                           8 The “1965 Act”

PART C     

32    

Section 3 provides for places of public worship to be open to all sections and  

classes of Hindus:   

“Section 3. Places of public worship to be open to all section  

and classes of Hindus:-   

Notwithstanding anything to the contrary contained in any other  

law for the time being in force or any custom or usage or any  

instrument having effect by virtue of any such law or any  

decree or order of court, every place of public worship which is  

open to Hindus generally or to any section or class thereof,  

shall be open to all sections and classes of Hindus; and no  

Hindu of whatsoever section or class shall, in any manner, be  

prevented, obstructed or discouraged from entering such place  

of public worship, or from worshipping or offering prayers  

thereat, or performing any religious service therein, in the like  

manner and to the like extent as any other Hindu of whatsoever  

section or class may enter, worship, pray or perform:   

Provided that in the case of a place of public worship which is  

a temple founded for the benefit of any religious denomination  

or section thereof, the provisions of this section, shall be  

subject to the right of that religious denomination or section as  

the case may be, to manage its own affairs in matters of  

religion.”   

Section 4 deals with the power to make regulations:  

“Section 4. Power to make regulations for the maintenance of  

order and decorum and the due performance of rites and  

ceremonies in places of public worship:-   

(1) The trustee or any other person in charge of any place  

public worship shall have power, subject to the control of the  

competent authority and any rules which may be made by that  

authority, to make regulations for the maintenance of order and  

the decorum in the place of public worship and the due  

observance of the religious rites and ceremonies performed  

therein:   

Provided that no regulation made under this sub-section shall  

discriminate in any manner whatsoever, against any Hindu on  

the ground that he belongs to a particular section or class.   

(2) The competent authority referred to in sub-section (1) shall  

be,-  

PART C     

33    

(i) in relation to a place of public worship situated in any area  

to which Part I of the Travancore-Cochin Hindu Religious  

Institutions Act, 1950 (Travancore-Cochin Act XV of 1930),  

extends, the Travancore Devaswom Board;   

(ii) in relation to a place of public worship situated in any area  

to which Part II of the said Act extends, the Cochin Devaswom  

Board; and   

(iii) in relation to a place of public worship situated in any other  

area in the State of Kerala, the Government.”   

The State of Kerala in exercise of the power under Section 4 framed the Kerala  

Hindu Places of Public Worship (Authorization of Entry) Rules 1965.9 Rule 3 of  

the 1965 Rules is extracted below:   

“Rule 3. The classes of persons mentioned here under shall not  

be entitled to offer worship in any place of public worship or bathe  

in or use the water of any sacred tank, well, spring or water  

course appurtenant to a place of public worship whether situate  

within or outside precincts thereof, or any sacred place including  

a hill or hill lock, or a road, street or pathways which is requisite  

for obtaining access to the place of public worship-   

(a) Persons who are not Hindus.   

(b) Women at such time during which they are not by custom  

and usage allowed to enter a place of public worship.   

(c) Persons under pollution arising out of birth or death in their  

families.   

(d) Drunken or disorderly persons.   

(e) Persons suffering from any loathsome or contagious disease.   

(f) Persons of unsound mind except when taken for worship  

under proper control and with the permission of the executive  

authority of the place of public worship concerned.   

(g) Professional beggars when their entry is solely for the  

purpose of begging.”  

(Emphasis Supplied)  

                                                           9 The “1965 Rules”

PART C     

34    

27 The legality of banning the entry of women above the age of ten and  

below the age of fifty to offer worship at Sabarimala shrine was sought to be  

answered in 1992 by a Division Bench of the High Court of Kerala in S  

Mahendran v The Secretary, Travancore Devaswom Board,  

Thiruvananthapuram (“Mahendran”).10 A public interest litigation was  

entertained by the High Court on the basis of a petition addressed by one S.  

Mahendran. Upholding the exclusion of women from the ceremonies and prayer  

at the shrine, the High Court concluded:  

“44. Our conclusions are as follows:   

(1) The restriction imposed on women aged above 10 and  

below 50 from trekking the holy hills of Sabarimala and offering  

worship at Sabarimala Shrine is in accordance with the usage  

prevalent from time immemorial.   

(2) Such restriction imposed by the Devaswom Board is not  

violative of Articles 15, 25 and 26 of the Constitution of India.   

(3) Such restriction is also not violative of the provisions of  

Hindu Place of Public Worship (Authorisation of Entry) Act,  

1965 since there is no restriction between one section and  

another section or between one class and another class  

among the Hindus in the matter of entry to a temple whereas  

the prohibition is only in respect of women of a particular age  

group and not women as a class.”11   

The High Court issued the following directions:-   

“In the light of the aforesaid conclusions we direct the first  

respondent, the Travancore Devaswom Board, not to permit  

women above the age of 10 and below the age of 50 to trek  

the holy hills of Sabarimala in connection with the pilgrimage  

to the Sabarimala temple and from offering worship at  

Sabarimala Shrine during any period of the year. We also  

direct the 3rd respondent, Government of Kerala, to render all  

necessary assistance inclusive of police and to see that the  

direction which we have issued to the Devaswom Board is  

implemented and complied with.”

                                                           10 AIR 1993 Ker 42  11 Ibid, at page 57

PART D     

35    

D The reference  

28 When the present case came up before a three judge Bench of this Court,  

by an order dated 13 October 2017, the following questions were referred to a  

larger bench:  

“1 Whether the exclusionary practice which is based upon a  

biological factor exclusive to the female gender amounts to  

"discrimination" and thereby violates the very core of Articles  

14, 15 and 17 and not protected by ‘morality’ as used in Articles  

25 and 26 of the Constitution?   

2. Whether the practice of excluding such women constitutes  

an "essential religious practice" under Article 25 and whether a  

religious institution can assert a claim in that regard under the  

umbrella of right to manage its own affairs in the matters of  

religion?   

3. Whether Ayyappa Temple has a denominational character  

and, if so, is it permissible on the part of a 'religious  

denomination' managed by a statutory board and financed  

under Article 290-A of the Constitution of India out of  

Consolidated Fund of Kerala and Tamil Nadu can indulge in  

such practices violating constitutional principles/ morality  

embedded in Articles 14, 15(3), 39(a) and 51-A(e)?   

4. Whether Rule 3 of Kerala Hindu Places of Public Worship  

(Authorisation of Entry) Rules permits 'religious denomination'  

to ban entry of women between the age of 10 to 50 years? And  

if so, would it not play foul of Articles 14 and 15(3) of the  

Constitution by restricting entry of women on the ground of  

sex?   

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship  

(Authorization of Entry) Rules, 1965 is ultra vires the Kerala  

Hindu Places of Public Worship (Authorisation of Entry) Act,  

1965 and, if treated to be intra vires, whether it will be violative  

of the provisions of Part III of the Constitution?”  

It is these questions that we have been called upon to answer.  

PART E     

36    

E Submissions   

The Petitioners challenge the exclusion of women between the age group ten  

and fifty from the Sabarimala Temple as unconstitutional.  

Mr Ravi Prakash Gupta,12 learned Counsel submitted that the exclusion of  

women between the age group of ten and fifty from the Sabarimala Temple is  

unconstitutional on the following grounds:  

i. The devotees of Lord Ayyappa do not constitute a religious denomination  

under Article 26 of the Constitution;  

ii. The restriction of entry of women into Sabarimala temple does not  

constitute an Essential Religious Practice;  

iii. The right under Article 26 and Article 25 must be read harmoniously as  

laid down in Devaru; and  

iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act and Article 14  

and 15 of the Constitution.   

                                                           12 Appearing for the Petitioners – Indian Young Lawyer’s Association

PART E     

37    

Ms Indira Jaising,13 learned Senior Counsel, submits that the exclusion from  

the Sabarimala temple is unconstitutional:  

i. The exclusionary practice is based on physiological factors exclusive to  

the female gender and this violates Articles 14, 15 and 21 of the  

Constitution;  

ii. The practice of exclusion based on menstruation constitutes a form of  

untouchability and is prohibited by Article 17 of the Constitution;  

iii. The devotees of Lord Ayyappa do not constitute a religious denomination  

under Article 26 of the Constitution;   

iv. The practice of excluding women from the Sabarimala temple does not  

constitute an Essential Religious Practice;  

v. That the impugned custom of excluding women falls within the ambit of  

‘laws in force’ in Article 13 and is constitutionally invalid; and  

vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.  

Mr Raju Ramachandran, learned Senior Counsel who has assisted the Court  

as Amicus Curiae made the following submissions:  

i. That the right of a woman to worship is an essential aspect of her right to  

worship under Article 25;  

ii. That the exclusion of women from Sabarimala temple amounts to  

discrimination prohibited under Article 15(1) of the Constitution;  

                                                           13 Appearing for the Intervenors – Nikita Azad Arora and Sukhjeet Singh  

PART E     

38    

iii. That compulsory disclosure of menstrual status by women is a violation  

of their right to privacy under Article 21 of the Constitution;  

iv. The term ‘morality’ in Article 25 and 26 embodies constitutional morality;  

v. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;   

vi. The devotees of Lord Ayyappa do not constitute a religious denomination  

under Article 26 of the Constitution;  

vii. The practice of excluding women from the Sabarimala temple does not  

constitute an Essential Religious Practice;  

viii. The prohibition against untouchability in Article 17 extends to the denial  

of entry to women between the age group ten and fifty;  

ix. A deity is not a juristic person for the purpose of rights enshrined in Part  

III of the Constitution; and  

x. That there is no requirement of trial as the recordings by the High Court  

in Mahendran are sufficient.  

Mr P V Surendranath,14 learned Senior Counsel submitted thus:  

i. There is no proven custom of excluding women from the Sabarimala  

temple;  

ii. The practice of exclusion violates Article 14, 15, 25 and 51 of the  

Constitution; and  

                                                           14 Appearing for the Intervenors – All India Democratic Women’s Association  

PART E     

39    

iii. In the case of a conflict between fundamental rights and customs, the  

former would prevail in accordance with Article 13 of the Constitution.  

Mr Jaideep Gupta,15 learned Senior Counsel submitted:  

i. The State Government of Kerala stands by the affidavit filed on  13  

November 2007 wherein the State Government was not in favour of any  

discrimination against women;  

ii. That women fall within the ambit of ‘section or class’ in Section 3 of the  

1965 Act;  

iii. Article 17 must be given a broad interpretation which prohibits the  

exclusion of women;  

iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;  

v. The devotees of Lord Ayyappa do not constitute a religious denomination  

under Article 26 of the Constitution;  

vi. The practice of excluding women from the Sabarimala temple does not  

constitute an Essential Religious Practice; and  

vii. That the impugned custom of excluding women falls within the ambit of  

Article 13 and is constitutionally invalid.  

                                                           15 Appearing for the State of Kerala

PART E     

40    

The Respondents submitted that the practice of excluding women between the  

age group of ten and fifty from the Sabarimala temple is constitutionally  

permissible.  

Dr. Abhishek Manu Singhvi,16 learned Senior Counsel submitted that the  

practice of excluding women between the age group of ten and fifty from the  

Sabarimala temple is constitutional and valid:  

i. The exclusion of women is not based on gender and satisfies the test of  

intelligible differentia and nexus to the object sought to be achieved;  

ii. That Article 17 is inapplicable to the case at hand as the Article is  

restricted to prohibiting caste and religion-based untouchability;  

iii. The Sabarimala temple is a denominational temple and the exclusion of  

women is in exercise of denomination rights under Article 26 of the  

Constitution;  

iv. Articles 25 and 26 of the Constitution protect religious matters including  

ceremonial issues and the exclusion of women is an exercise of this right;  

v. That Article 13 of the Constitution does not apply to the present case; and  

vi. That a separate trial would be required for the determination of facts.  

                                                           16 Appearing on behalf of the Respondent – Travancore Devaswom Board

PART E     

41    

Shri K Parasaran,17 learned Senior Counsel submitted that the exclusion from  

the Sabarimala temple is constitutionally permissible:  

i. There exists an independent custom that permits the exclusion of women  

from the Sabarimala temple;  

ii. The right to exclude women of a particular age group from the temple  

flows from the religious rights of the devotees under Article 25 of the  

Constitution and the character of the deity as a Naishtika Brahmacharya;  

iii. The custom is protected under Rule 3(b) the 1965 Rules; and  

iv. That the notion of equality is enshrined in Article 25, and consequently,  

Article 14 and 15 are inapplicable to the present case.   

Mr K Ramamoorthy, learned Senior Counsel who assisted the Court as Amicus  

Curiae made the following submissions:   

i. That the exclusion of women between the age group ten and fifty does  

not violate the rights of the Petitioners under Article 25; and  

ii. The practice of exclusion is protected under Article 25.  

Mr K Radhakrishnan,18 learned Senior Counsel submitted that the exclusion of  

women between the ages ten and fifty is permissible:  

i. The impugned practice constitutes an Essential Religious Practice; and  

                                                           17 Appearing on behalf of the Respondent – Nair Service Society  18 Appearing on behalf of the Intervenor – Raja of Pandalam

PART E     

42    

ii. The prohibition of untouchability enshrined in Article 17 is inapplicable.  

Mr V Giri,19 learned Senior Counsel submitted thus:  

i. The exclusion of women constitutes an Essential Religious Practice and  

is in accordance with character of the deity as a Naishtika  

Brahmacharya.  

Mr J Sai Deepak,20 learned Counsel submitted that the deity has constitutional  

rights and that the practice of excluding women between the age group of ten  

and fifty from worship at the Sabarimala temple is constitutional and  

permissible:  

i. The impugned practice is based on the character of the deity as a  

Naishtika Brahmacharya;  

ii. Given the form of the deity, the practice constitutes an Essential  

Religious Practice;  

iii. The devotees of Lord Ayyappa constitute a religious denomination under  

Article 26 of the Constitution;  

iv. That the presiding deity of Sabarimala Temple is a bearer of  

constitutional rights under Articles 21 and 25 of the Constitution;  

v. Article 17 of the Constitution has no applicability as it applies only to  

untouchability based on caste and religion; and   

                                                           19 Appearing on behalf of the Respondent  – the Thantri  20 Appearing on behalf of K K Sabu and People for Dharma

PART E     

43    

vi. The impugned Rules and Act flow from the right of the denomination  

under Article 26 and are constitutionally valid.  

Mr V K Biju,21 learned Counsel submitted that the exclusion is constitutionally  

permissible:  

i. That the right of the deity as a juristic person sitting as a Naishtika  

Brahmacharya cannot be questioned;  

ii. That the exclusion is protected under Article 25 and 26 of the  

Constitution; and  

iii. The issue at hand cannot be decided without a determination of facts  

that would take place at trial.  

Mr Gopal Sankaranarayanan,22 learned Counsel made the following  

submissions:  

i. That Article 25 is not applicable to the present case;  

ii. That the devotees of Lord Ayyappa constitute a religious denomination  

under Article 26 of the Constitution; and  

iii. The 1965 Act does not apply to the Sabarimala temple; In any case,  

the proviso to Rule 3 of the 1965 Rules protects the rights of religious  

denominations.

                                                           21 Appearing on behalf of the Lord Ayyappa Devotees  22 Appearing for Intervenor – Usha Nandini

PART F     

44    

F Essential Religious Practices  

29 The doctrine of essential religious practices was first articulated in 1954,  

in Commissioner, Hindu Religious Endowments, Madras v Sri  

Lakshmindra Thirtha Swamiar of Shirur Mutt23 (“Shirur Mutt”). A seven  

judge Bench of this Court considered a challenge to the Madras Hindu Religious  

and Charitable Endowments Act 1951, which empowered a statutory  

commissioner to frame and settle a scheme if they had reason to believe that  

the religious institution was mismanaging funds. The Petitioner, the  

mathadhipati (superior) of the Shirur Mutt monastery, claimed that the law  

interfered with his right to manage the religious affairs of the monastery, and  

therefore violated Article 26(b) of the Constitution.  

Justice B K Mukherjea, writing for the Court, noted that Article 26(b) allowed a  

religious denomination to ‘manage its own affairs in matters of religion’ and  

framed a question on the ambit of ‘matters of religion’:  

“16.The language undoubtedly suggests that there could be  

other affairs of a religious denomination or a section thereof  

which are not matters of religion and to which the guarantee  

given by this clause would not apply. The question is, where  

is the line to be drawn between what are matters of religion  

and what are not?”  

(Emphasis supplied)  

                                                           23 1954 SCR 1005

PART F     

45    

The Court cited with approval the judgment of the High Court of Australia in  

Adelaide Company of Jehovah’s Witnesses Incorporated v The  

Commonwealth of Australia24, which held that the Constitution protected not  

only “liberty of opinion” but also “acts done in pursuance of religious belief as  

part of religion.” The court noted the importance of both religious belief and the  

practice that stems from it, and provided an expansive definition of ‘religion’:  

“A religion undoubtedly has its basis in a system of beliefs or  

doctrines which are regarded by those who profess that  

religion as conducive to their spiritual well-being, but it would  

not be correct to say that religion is nothing else but a doctrine  

or belief...The guarantee under our Constitution not only  

protects the freedom of religious opinion but it protects  

also acts done in pursuance of a religion and this is made  

clear by the use of the expression "practice of religion" in  

article 25.”                                                                                                 

(Emphasis supplied)  

Drawing a distinction between religious and secular practices, the court held  

that:  

“...What constitutes the essential part of a religion is  

primarily to be ascertained with reference to the doctrines  

of that religion itself. If the tenets of any religious sect of the  

Hindus prescribe that offerings of food should be given to the  

idol at particular hours of the day…all these would be regarded  

as parts of religion and the mere fact that they involve  

expenditure of money or employment of priests and servants  

or the use of marketable commodities would not make them  

secular activities partaking of a commercial or economic  

character; all of them are religious practices and should be  

regarded as matters of religion within the meaning of Article  

26(b).”                                                                                                          

(Emphasis supplied)  

                                                           24 [1943] HCA 12

PART F     

46    

The Court ruled that the freedom of religion guaranteed by the Constitution  

applied to freedom of both religious belief and practice. To distinguish between  

the religious and the secular, the Court looked to the religion itself, and noted  

that the views of adherents were crucial to the analysis of what constituted  

‘essential’ aspects of religion.   

30 This approach was followed in Ratilal Panachand Gandhi v State of  

Bombay25 (“Ratilal”), where a Constitution Bench of this Court considered the  

constitutionality of the Bombay Public Trusts Act, 1950. The Act sought to  

regulate and make provisions for the administration of public and religious trusts  

in the State of Bombay. The Petitioners challenged the validity of the Act on the  

grounds that it interfered with their freedom of conscience, their right to freely  

profess, practise and propagate their religion, and their right to manage their  

religious affairs under Articles 25 and 26 of the Constitution. Justice B K   

Mukherjea, speaking for a Constitution Bench of this Court, expounded upon  

the meaning and scope of Article 25:  

“10...Subject to the restrictions which this article imposes,  

every person has a fundamental right under our Constitution  

not merely to entertain such religious belief as may be  

approved of by his judgment or conscience but to exhibit his  

belief and ideas in such overt acts as are enjoined or  

sanctioned by his religion and further to propagate his religious  

views for the edification of others.”  

                                                           25 1954 SCR 1055

PART F     

47    

Speaking with reference to Article 26, Justice Mukherjea reiterated the broad  

view taken by the Court in Shirur Mutt – that religious denominations had  

‘complete autonomy’ to decide which religious practices were essential for  

them:  

“Religious practices or performances of acts in pursuance of  

religious beliefs are as much a part of religion as faith or belief  

in particular doctrines …   

23…No outside authority has any right to say that these are not  

essential parts of religion and it is not open to the secular  

authority of the State to restrict or prohibit them in any manner  

they like under the guise of administering the trust estate.”  

The Court, however, recognized the limited role of the Court in the determination  

of such a question:  

“The distinction between matters of religion and those of  

secular administration of religious properties may, at times,  

appear to be a thin one. But in cases of doubt …the court  

should take a common sense view and be actuated by  

considerations of practical necessity.”                          

(Emphasis supplied)  

31 The late 1950s witnessed two cases that were central to the evolution of  

the essential practices doctrine. In Sri Venkataramana Devaru v State of  

Mysore26 (“Devaru”), a Constitution Bench of this Court considered the  

constitutionality of the Madras Temple Entry Authorisation Act, 1947, which  

sought to reform the practice of religious exclusion of Dalits from a  

denominational temple founded by the Gowda Saraswat Brahmins. The Court  

                                                           26 (1958) SCR 895

PART F     

48    

accepted the claim that the temple was a denominational temple founded for  

the benefit of the Gowda Saraswats, and proceeded to examine whether  

exercising the right of a religious denomination under Article 26(b), they were  

‘entitled to exclude other communities from entering into it for worship on the  

ground that it was a matter of religion.’  

Rather than allowing the religious denomination ‘complete autonomy in the  

matter of deciding as to what rites and ceremonies are essential’, the Court  

examined scripture and precedent to determine whether the exclusion of a  

person from entering into a temple for worship was a matter of religion under  

Hindu Ceremonial Law. Justice Venkatarama Aiyar reviewed ancient literature,  

the practice of Hindus, and the role of temples in that practice, and concluded  

on behalf of the Court that:  

“18…Thus, under the ceremonial law pertaining to temples,  

who are entitled to enter them for worship and where they are  

entitled to stand and worship and how the worship is to be  

conducted are all matters of religion.” (Emphasis supplied)  

This firmly established the Court’s role in determining what constituted  

‘essential’ religious practices. However, the matter did not end here. The Gowda  

Saraswats claimed their right to manage their own religious affairs under Article  

26(b), whereas the State claimed that it had a constitutional mandate to throw  

open Hindu temples ‘to all classes and sections of Hindus’ under Article  

25(2)(b). Noting that the two are “apparently in conflict”, the Court considered  

whether the right of a religious denomination to manage its own affairs in

PART F     

49    

matters of religion guaranteed under Article 26(b) was subject to, and could be  

controlled by, a law protected by Article 25(2)(b), throwing open a Hindu public  

temple to all classes and sections of Hindus:  

“Article 26, it was contended, should therefore be construed as  

falling wholly outside Art. 25(2)(b), which should be limited to  

institutions other than denominational ones… The answer to  

this contention is that it is impossible to read any such limitation  

into the language of Art. 25(2)(b). It applies in terms to all  

religious institutions of a public character without qualification  

or reserve. As already stated, public institutions would mean  

not merely temples dedicated to the public as a whole but also  

those founded for the benefit of sections thereof, and  

denominational temples would be comprised therein. The  

language of the Article being plain and unambiguous, it is not  

open to us to read into it limitations which are not there, based  

on a priori reasoning as to the probable intention of the  

Legislature. Such intention can be gathered only from the  

words actually used in the statute; and in a Court of law, what  

is unexpressed has the same value as what is unintended. We  

must therefore hold that denominational institutions are within  

Art. 25(2)(b).”  

Applying the doctrine of harmonious construction, the Court held that the  

protection under Article 25(2)(b) vanishes in its entirety if it is held that Article  

26(b) allows no exceptions or is not subject to Article 25(2)(b):  

“If the denominational rights are such that to give effect to them  

would substantially reduce the right conferred by Art. 25(2)(b),  

then of course, on our conclusion that Art. 25(2)(b) prevails as  

against Art. 26(b), the denominational rights must vanish. But  

where that is not the position, and after giving effect to the  

rights of the denomination what is left to the public of the right  

of worship is something substantial and not merely the husk of  

it, there is no reason why we should not so construe Art.  

25(2)(b) as to give effect to Art. 26(b) and recognise the rights  

of the denomination in respect of matters which are strictly  

denominational, leaving the rights of the public in other  

respects unaffected.”  

PART F     

50    

32 This case marked a nuance of the essential practices doctrine laid down  

in Shirur Mutt, where a denomination was granted ‘complete autonomy’ to  

determine which practices it considered to be essential. In Shirur Mutt, the  

autonomy to decide what is essential to religion was coupled with the definition  

of religion itself, which was to comprehend belief and practice. In Devaru, the  

Court laid down a crucial precedent in carving out its role in examining the  

essentiality of such practices. While the Court would take into consideration the  

views of a religious community in determining whether a practice qualified as  

essential, this would not be determinative.   

Prior to Devaru, this Court used the word ‘essential’ to distinguish between  

religious and secular practices in order to circumscribe the extent of state  

intervention in religious matters. The shift in judicial approach took place when  

‘essentially religious’ (as distinct from the secular) became conflated with  

‘essential to religion.’ The Court’s enquiry into the essentiality of the practice in  

question represented a shift in the test, which now enjoined upon the Court the  

duty to decide which religious practices would be afforded constitutional  

protection, based on the determination of what constitutes an essential religious  

practice.  

33 In Mohd. Hanif Quareshi v State of Bihar27 (“Qureshi”), a Constitution  

Bench of this Court considered whether laws prohibiting cattle slaughter  

                                                           27(1959) SCR 629

PART F     

51    

infringed upon the fundamental right to religion of the Petitioners, who were  

members of the Muslim Qureshi Community. The Petitioners claimed that these  

laws were violative of Article 25 of the Constitution as Muslims were compelled  

by their religion to sacrifice cows at Bakr-Id. The Court placed reliance upon  

Islamic religious texts to determine that the sacrificing of cows at Bakr-Id was  

not an essential practice for Muslims:  

“13...No reference is made in the petition to any particular Surah  

of the Holy Quran which, in terms, requires the sacrifice of a  

cow...What the Holy book enjoins is that people should pray unto  

the Lord and make sacrifice...It is therefore, optional for a Muslim  

to sacrifice a goat for one person or a cow or a camel for seven  

persons. It does not appear to be obligatory that a person  

must sacrifice a cow. The very fact of an option seems to run  

counter to the notion of an obligatory duty…”                         

(Emphasis supplied)  

In response to the claim that Muslims had been sacrificing cows since time  

immemorial and that this practice was sanctioned by their religion and was  

therefore protected by Article 25, the Court observed that:  

“13…It is part of the known history of India that the Moghul  

Emperor Babar saw the wisdom of prohibiting the slaughter of  

cows as and by way of religious sacrifice and directed his son  

Humayun to follow this example...We have, however, no  

material on the record before us which will enable us to  

say, in the face of the foregoing facts, that the sacrifice of  

a cow on that day is an obligatory overt act for a  

Mussalman to exhibit his religious belief and idea. In the  

premises, it is not possible for us to uphold this claim of the  

petitioners.”    

(Emphasis supplied)  

PART F     

52    

The Court looked to the texts and scriptures of the religious community to  

conclude that the practice claimed to be essential was not supported by religious  

tenets.  

34 In Durgah Committee, Ajmer v Syed Hussain Ali28 (“Durgah  

Committee”), a Constitution Bench of this Court considered a challenge to the  

Durgah Khawaja Saheb Act, 1955, which provided for the constitution of a  

Committee to manage a Muslim Durgah. The Respondents, who were  

khadims29 of the Durgah, contended that the Act barred them from managing  

the Durgah and receiving offerings from pilgrims, and hence infringed upon their  

rights under Article 26 as Muslims belonging to the Soofi Chishtia Order. Rather  

than making a reference to scriptures, Justice Gajendragadkar, writing for the  

Court, considered the history of the Ajmer shrine to determine that the right to  

administer the property never vested in the Respondents:  

“22. Thus it would be clear that from the middle of the 16th  

Century to the middle of the 20th Century the administration  

and management of the Durgah Endowment has been true to  

the same pattern. The said administration has been treated as  

a matter with which the State is concerned and it has been left  

in charge of the Mutawallis who were appointed from time to  

time by the State and even removed when they were found to  

be guilty of misconduct or when it was felt that their work was  

unsatisfactory.”  

                                                           28 (1962) 1 SCR 383  29 According to the khadims, they were descendants of two followers of the twelfth century Sufi saint Khwaja  

Moinuddin Chisti, whose tomb at Ajmer is known as the Durgah Khwaja Saheb. The khadims also claimed they  belonged to a religious denomination known as the Chishtia Sufis.

PART F     

53    

Before parting with the judgment, Justice Gajendragadkar issued an important  

“note of caution”:   

“33…in order that the practices in question should be  

treated as a part of religion they must be regarded by the  

said religion as its essential and integral part; otherwise  

even purely secular practices which are not an essential  

or an integral part of religion are apt to be clothed with a  

religious form and may make a claim for being treated as  

religious practices within the meaning of Article 26.  

Similarly, even practices though religious may have  

sprung from merely superstitious beliefs and may in that  

sense be extraneous and unessential accretions to  

religion itself. Unless such practices are found to constitute  

an essential and integral part of a religion their claim for the  

protection under Article 26 may have to be carefully  

scrutinised; in other words, the protection must be confined to  

such religious practices as are an essential and an integral part  

of it and no other.”                                                                                 

(Emphasis supplied)  

35 This statement pushed the essential religious practices doctrine in a new  

direction. The Court distinguished, for the first time, between ‘superstitious  

beliefs’ and religious practice. Apart from engaging in a judicial enquiry to  

determine whether a practice claimed to be essential was in fact grounded in  

religious scriptures, beliefs, and tenets, the Court would ‘carefully scrutinize’ that  

the practice claiming constitutional protection does not claim superstition as its  

base. This was considered a necessary safeguard to ensure that superstitious  

beliefs would not be afforded constitutional protection in the garb of an essential  

religious practice. The Court also emphasized that purely secular matters  

clothed with a religious form do not enjoy protection as an essential part of  

religion.  

PART F     

54    

36 The test was narrowed down further in Sardar Syedna Taher Saifuddin  

Saheb v State of Bombay (“Saifuddin”),30 where this Court, by a 4-1 majority,  

struck down the Bombay Prevention of Excommunication Act, 1949, which  

prohibited the practice of excommunication within religious communities. The  

Court held that the practice of excommunication within the Dawoodi Bohra faith  

on religious grounds fell within ‘matters of religion’ under Article 26(b) and was  

thus constitutionally protected. Justice Das Gupta, writing for the majority,  

emphasized that the practice claimed to be essential must be based strictly on  

religious grounds in order to claim constitutional protection:  

“43…The barring of excommunication on grounds other  

than religious grounds say, on the breach of some  

obnoxious social rule or practice might be a measure of  

social reform and a law which bars such excommunication  

merely might conceivably come within the saving  

provisions of clause 2(b) of Art. 25. But barring of  

excommunication on religious grounds pure and simple,  

cannot however be considered to promote social welfare and  

reform and consequently the law in so far as it invalidates  

excommunication on religious grounds and takes away the  

Dai's power to impose such excommunication cannot  

reasonably be considered to be a measure of social welfare  

and reform.”    (Emphasis supplied)  

The Court, therefore, enquired into the basis of excommunication: if its basis  

was strictly religious, the practice would warrant constitutional protection. If,  

however, the practice was based on any other ground, it would be open to the  

Legislature to prohibit such a practice.   

                                                           30 1962 Supp (2) SCR 496

PART F     

55    

37 In a strong dissent, Chief Justice Sinha concluded that the matter of  

excommunication was not purely of a religious nature. Clarifying that his  

analysis was confined to the civil rights of the members of the community,  

Justice Sinha opined:  

“11…The impugned Act, thus, has given full effect to modern  

notions of individual freedom to choose one’s way of life and to  

do away with all those undue and outmoded interferences with  

liberty of conscience, faith and belief. It is also aimed at  

ensuring human dignity and removing all those restrictions  

which prevent a person from living his own life so long as he  

did not interfere with similar rights of others.”  

Justice Sinha drew a distinction between ‘matters of religion’ as protected under  

Article 26(b) and activities associated with religion, though not intimately  

connected with it:  

“18…Now, Art. 26(b) itself would seem to indicate that a  

religious denomination has to deal not only with matters of  

religion, but other matters connected with religion, like laying  

down rules and regulations for the conduct of its members and  

the penalties attached to infringement of those rules, managing  

property owned and possessed by the religious community,  

etc., etc. We have therefore, to draw a line of demarcation  

between practises consisting of rites and ceremonies  

connected with the particular kind of worship, which is the tenet  

of the religious community, and practises in other matters  

which may touch the religious institutions at several points, but  

which are not intimately concerned with rites and ceremonies  

the performance of which is an essential part of the religion.”  

Justice Sinha noticed the extreme consequences that follow excommunication:  

“24. On the social aspect of excommunication, one is inclined  

to think that the position of an excommunicated person  

becomes that of an untouchable in his community, and if that  

is so, the Act in declaring such practises to be void has only  

carried out the strict injunction of Art. 17 of the Constitution, by

PART F     

56    

which untouchability has been abolished and its practice in any  

form forbidden. The Article further provides that the  

enforcement of any disability arising out of untouchability shall  

be an offence punishable in accordance with law. The Act, in  

this sense, is its logical corollary and must, therefore, be  

upheld.”  

The decision in Saifuddin is presently pending consideration before a larger  

bench.   

38 Durgah Committee and Saifuddin established the role of this Court in  

scrutinizing claims of practices essential to religion in order to deny  

constitutional protection to those practices that were not strictly based in  

religion. Ascertaining what was “essential” to a religious denomination  

“according to its own tenets” required a scrutiny of its religious texts. Durgah  

Committee laid down that the court would ‘carefully scrutinize’ claims to deny  

constitutional protection to those claims which are religious but spring from  

superstitious beliefs and are not essential to religion. Saifuddin laid down that  

a practice grounded on an obnoxious social rule or practice may be within the  

ambit of social reform that the State may carry out. This view infuses the  

doctrine with a safeguard against claims by religious denominations that any  

practice with a religious undertone would fall within the protection afforded by  

Article 26(b) to them to ‘manage its own affairs in matters of religion.’  

PART F     

57    

39 In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan (“Tilkayat”)31,  

a Constitution Bench of this Court dealt with a challenge to Nathdwara Temple  

Act 1959, which provides for the appointment of a board to manage the affairs  

of the temple and its property. The Petitioner, the spiritual head of the temple,  

claimed that the temple and its properties were private and that the State  

legislature was not competent to pass the law. He contended that even if the  

temple was held to be a public temple, the Act infringed Articles 25, 26(b) and  

26(c) because the temple was managed by the Tilkayat as head of the Vallabh  

denomination. The Court relied on firmans (edicts or administrative orders)  

issued by emperors of the erstwhile Mughal Empire to hold that the temple was  

public and that the Tilkayat was “merely a custodian, manager and trustee of  

the temple.” Justice Gajendragadkar, writing for the Bench, underlined why the  

claims of a community regarding their religious practices could not be accepted  

without scrutiny:  

“57.In deciding the question as to whether a given religious  

practice is an integral part of the religion or not, the test always  

would be whether it is regarded as such by the community  

following the religion or not. This formula may in some cases  

present difficulties in its operation...In cases where conflicting  

evidence is produced in respect of rival contentions as to  

competing religious practices the Court may not be able to  

resolve the dispute by a blind application of the formula that the  

community decides which practice is an integral part of its  

religion, because the community may speak with more than  

one voice and the formula would therefore break down. The  

question will always have to be decided by the Court…”  

                                                           31 (1964) 1 SCR 561

PART F     

58    

In this regard, the Court noted that:  

“58...What is protected under Articles 25(1) and 26(b)  

respectively are the religious practices and the right to manage  

affairs in matters of religion. If the practice in question is purely  

secular or the affair which is controlled by the statute is  

essentially and absolutely secular in character, it cannot be  

urged that Article 25(1) or Article 26(b) has been contravened.”  

Tilkayat set forth an important qualification to the proposition laid down in  

Shirur Mutt, which held that adherents themselves must be allowed to  

determine what was essential to their religion. The Court observed that where  

‘conflicting evidence is produced in respect of rival contentions as to competing  

religious practices,’ a ‘blind application’ of the Shirur Mutt formula may not  

resolve a dispute, because persons within a community may have diverse and  

contrasting conceptions of what is essential to their religion. It was therefore  

held to be incumbent upon the Court to determine not only whether a practice  

was religious in character, but also whether it could be considered an essential  

part of religion. Beginning with the Shirur Mutt formulation that what is essential  

to religion would be determined by the adherents to the faith, the Court moved  

towards a doctrine that what is essential “will always have to be decided by the  

Court.” In fact, the Court would determine whether a statute sought to regulate  

what is “essentially and absolutely secular.” What is religious and what is  

secular and the boundaries of both were then to be adjudicated by the Court.      

PART F     

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40 In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya32 (“Sastri  

Yagnapurushadji”), a Constitution Bench of this Court was seized with the  

issue of whether the Swaminarayan sect could be exempted from the  

application of the Bombay Hindu Places of Public Worship (Entry Authorization)  

Act, 1956, which allowed Dalits to worship in all temples to which the Act  

applied. The Petitioners, who were members of the Swaminarayan sect,  

contended that by virtue of being a non-Hindu creed, temples belonging to the  

sect did not fall within the ambit of the Act. Justice Gajendragadkar, writing for  

the Court, rejected this claim:  

“55.It may be conceded that the genesis of the suit is the  

genuine apprehension entertained by the appellants, but as  

often happens in these matters the said apprehension is  

founded on superstition, ignorance and complete  

misunderstanding of the true teachings of Hindu religion  

and of the real significance of the tenets and philosophy  

taught by Swaminarayan himself.”                                                    

(Emphasis supplied)  

Quoting Tilak, Justice Gajendragadkar then expounded the distinctive features  

of Hinduism:  

“40.Tilak faced this complex and difficult problem of defining or  

at least describing adequately Hindu religion and he evolved a  

working formula which may be regarded as fairly adequate and  

satisfactory. Said Tilak: "Acceptance of the Vedas with  

reverence; recognition of the fact that the means or ways  

to salvation are diverse and realisation of the truth that the  

number of gods to be worshipped is large, that indeed is  

the distinguishing feature of Hindu religion.”                       

(Emphasis supplied)  

                                                           32 (1966) 3 SCR 242

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60    

41 In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police,  

Calcutta33 (“Avadhuta I”), a three judge Bench of this Court considered  

whether the police could prevent the Ananda Margis from performing the  

‘tandava dance’ in public, in which adherents dance in a public procession  

carrying knives, live snakes, tridents, and skulls. The Court enquired ‘whether  

performance of Tandava dance is a religious rite or practice essential to the  

tenets of the religious faith of the Ananda Margis.’ Justice Ranganath Misra,  

writing for the Court, held that since the Ananda Margis were a recent religious  

order, and the tandava dance an even more recent innovation, it could not be  

considered an essential religious practice:  

“14.Ananda Marga as a religious order is of recent origin and  

tandava dance as a part of religious rites of that order is still  

more recent. It is doubtful as to whether in such circumstances  

tandava dance can be taken as an essential religious rite of the  

Ananda Margis.  

“Even conceding that Tandava dance has been prescribed as  

a religious rite for every follower of Ananda Margis it does not  

follow as a necessary corollary that Tandava dance to be  

performed in the public is a matter of religious rite. In fact, there  

is no justification in any of the writings of Shri Ananda Murti that  

tandava dance must be performed in public.”34  

42 In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v  

State of Uttar Pradesh35 (“Adi Visheshwara”), a three judge Bench of this  

Court dealt with a challenge to the Uttar Pradesh Sri Kashi Vishwanath Temple  

Act, 1983, which entrusted the State with the management of the temple as  

                                                           33 (1983) 4 SCC 522  34 Ibid, at pages 532-533  35 (1997) 4 SCC 606

PART F     

61    

opposed to the Pandas (priests). The priests contended that this violated their  

right under Article 25(1) and Article 26(b) and (d) of the Constitution. Rejecting  

that the claim and holding that the management of a temple is a secular activity,  

this Court held that the Sri Vishwanath Temple is not a denominational temple  

and that the Appellants are not denominational worshippers. In a view similar to  

that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned against  

extending constitutional protection to purely secular practices clothed with a  

religious form:  

“28…Sometimes, practices, religious or secular, are  

inextricably mixed up. This is more particularly so in regard  

to Hindu religion because under the provisions of the ancient  

Smriti, human actions from birth to death and most of the  

individual actions from day-today are regarded as religious in  

character in one facet or the other. They sometimes claim the  

religious system or sanctuary and seek the cloak of  

constitutional protection guaranteed by Articles 25 and 26. One  

hinges upon constitutional religious model and another  

diametrically more on traditional point of view. The legitimacy  

of the true categories is required to be adjudged strictly  

within the parameters of the right of the individual and the  

legitimacy of the State for social progress, well-being and  

reforms, social intensification and national unity.”36  

(Emphasis supplied)  

43 In N Adithayan v Travancore Devaswom Board37 (“Travancore  

Devaswom Board”), a two judge Bench of this Court was seized with the issue  

of whether the Travancore Devaswom Board could appoint a non-Malayala  

Brahmin as priest of the Kongorpilly Neerikode Siva Temple. Justice  

                                                           36 Ibid, at page 630  37 (2002) 8 SCC 106

PART F     

62    

Doraiswamy Raju, writing for the Court, held that there was no evidence on  

record to demonstrate that only Brahmins were entitled to serve as priests.  

Rejecting the claim that Shirur Mutt laid down the proposition that all practices  

arising out of religion are afforded constitutional protection, the Court held:  

“18…The attempted exercise by the learned Senior Counsel  

for the appellant to read into the decisions of this Court in Shirur  

Mutt's case (supra) and others something more than what it  

actually purports to lay down as if they lend support to assert  

or protect any and everything claimed as being part of the  

religious rituals, rites, observances and method of worship and  

make such claims immutable from any restriction or regulation  

based on the other provisions of the Constitution or the law  

enacted to implement such constitutional mandate, deserves  

only to be rejected as merely a superficial approach by  

purporting to deride what otherwise has to have really an  

overriding effect, in the scheme of rights declared and  

guaranteed under Part III of the Constitution of India. Any  

custom or usage irrespective of even any proof of their  

existence in pre constitutional days cannot be  

countenanced as a source of law to claim any rights when  

it is found to violate human rights, dignity, social equality  

and the specific mandate of the Constitution and law made  

by Parliament. No usage which is found to be pernicious  

and considered to be in derogation of the law of the land  

or opposed to public policy or social decency can be  

accepted or upheld by courts in the country.”38                   

(Emphasis supplied)  

44 The question of the essential religious nature of the Tandava dance was  

considered again in 2004, in Commissioner of Police v. Acharya  

Jagdishwarananda Avadhuta39 (“Avadhuta II”). After Avadhuta I, the  

religious book of the Anand Margis, the Carya-Carya, was revised to prescribe  

the Anand Tandava as an essential religious practice. Laying emphasis on the  

‘essential’ nature of the practice claimed, the majority, in a 2-1 split verdict, held  

                                                           38 Ibid, at pages 124-125  39 (2004) 12 SCC 770

PART F     

63    

that the practice must be of such a nature that its absence would result in a  

fundamental change in the character of that religion:  

“9.Essential part of a religion means the core beliefs upon  

which a religion is founded. Essential practice means those  

practices that are fundamental to follow a religious belief. It is  

upon the cornerstone of essential parts or practices that the  

superstructure of a religion is built, without which a religion will  

be no religion. Test to determine whether a part or practice  

is essential to a religion is to find out whether the nature  

of the religion will be changed without that part or practice.  

If the taking away of that part or practice could result in a  

fundamental change in the character of that religion or in  

its belief, then such part could be treated as an essential  

or integral part.   

There cannot be additions or subtractions to such part  

because it is the very essence of that religion and  

alterations will change its fundamental character. It is  

such permanent essential parts which are protected by the  

Constitution…Such alterable parts or practices are  

definitely not the 'core' of religion where the belief is based  

and religion is founded upon. It could only be treated as  

mere embellishments to the non-essential part or  

practices.”40                                                                                              

(Emphasis supplied)  

The essentiality test came to be linked to the “fundamental character” of the  

religion. If the abrogation of a practice does not change the fundamental nature  

of the religion, the practice itself is not essential.  

Rejecting the claim of the Anand Margis, the majority held that the Ananda Margi  

order was in existence (1955-66) even without the practice of the Tandava  

dance. Hence, such a practice would not constitute the ‘core’ of the religion.  

                                                           40 Ibid, at pages 782-783

PART F     

64    

Further, religious groups could not be permitted to alter their religious doctrine  

to recognize certain religious practices, in order to afford them constitutional  

protection.  

45 In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil  

Nadu41 (“Adi Saiva”), a two judge Bench of this Court considered a challenge  

to a Government Order issued by the State of Tamil Nadu which permitted ‘any  

qualified Hindu’ to be appointed as the Archaka of a temple. The Petitioners  

challenged the Government Order on the grounds that it violated their right to  

appoint Archakas from their own denomination in accordance with the Agamas.  

In determining the constitutional validity of the Government Order, this Court  

held that any religious belief or practice must pass constitutional muster in order  

to be afforded constitutional protection:  

“48.The requirement of constitutional conformity is inbuilt and  

if a custom or usage is outside the protective umbrella afforded  

and envisaged by Articles 25 and 26, the law would certainly  

take its own course. The constitutional legitimacy, naturally,  

must supersede all religious beliefs or practices.”42          

(Emphasis supplied)  

46 In Shayara Bano v Union of India43 (“Shayara Bano”), a Constitution  

Bench of this Court considered whether the practice of triple talaq was an  

essential practice to the Hanafi school of Sunni Muslims. Based on an  

examination of Islamic jurisprudence which established that triple talaq  

                                                           41 (2016) 2 SCC 725  42 Ibid, at page 755  43 (2017) 9 SCC 1

PART F     

65    

constitutes an irregular practice of divorce, the majority opinion, in a 3-2 split,  

held that triple talaq was not an essential practice. Justice Nariman, speaking  

for himself and Justice Lalit, noted that “a practice does not acquire the sanction  

of religion simply because it is permitted” and applied the essential religious  

practices test set out in Javed v State of Haryana44 and Avadhuta II to the  

practice of triple talaq:  

“54...It is clear that Triple Talaq is only a form of Talaq which is  

permissible in law, but at the same time, stated to be sinful by  

the very Hanafi school which tolerates it. According to Javed  

(supra), therefore, this would not form part of any essential  

religious practice. Applying the test stated in Acharya  

Jagdishwarananda (supra), it is equally clear that the  

fundamental nature of the Islamic religion, as seen through an  

Indian Sunni Muslim’s eyes, will not change without this  

practice.”45  

Justice Kurian Joseph, concurring with Justices Nariman and Lalit, held that on  

an examination of the Quran and Islamic legal scholarship, the practice of triple  

talaq could not be considered an essential religious practice. He opined that  

“merely because a practice has continued for long, that by itself cannot make it  

valid if it has been expressly declared to be impermissible.”  

Chief Justice Khehar, who delivered the minority judgment, held that the  

practice of triple talaq is integral to the religion of Hanafi Muslims. He reasoned  

that:   

“[T]here can be no dispute on two issues. Firstly, that the  

practice of ‘talaq-e-biddat’ has been in vogue since the period  

                                                           44 (2003) 8 SCC 369  45 Ibid, at page 69

PART F     

66    

of Umar, which is roughly more than 1400 years ago.  

Secondly, that ‘talaq-e-biddat’ though bad in theology, was  

considered as “good” in law.”  

On the basis of the history and prevalence of triple talaq in practice, Justice  

Khehar held that even though triple talaq “is considered as irreligious within the  

religious denomination in which the practice is prevalent, yet the denomination  

considers it valid in law.”  

While the majority based its conclusion on an examination of the substantive  

doctrines of Islam and the theological sanctity of triple talaq, the minority relied  

on the widespread practice of triple talaq to determine its essentiality. The  

majority and minority concurred, however, that the belief of a religious  

denomination claiming a particular practice to be essential must be taken into  

consideration in the determination of the essentiality of that practice.   

47 In its jurisprudence on religious freedom, this Court has evolved a body  

of principles which define the freedom of religion under Article 25 and Article 26  

to practices ‘essential’ to the religion. The Constitution has been held to protect  

not only freedom of religious belief, but acts done in pursuance of those beliefs.  

While the views of a religious denomination are to be taken into consideration  

in determining whether a practice is essential, those views are not determinative  

of its essentiality. The Court has assumed a central role in determining what is  

or is not essential to religious belief. Intrinsic to the role which the Court has

PART F     

67    

carved out, it has sought to distinguish between what is religious and what is a  

secular practice, even if it is associated with a religious activity. Going further,  

the Court has enquired into whether a practice is essential to religion.  

Essentiality of the practice would, as the Court as held depend on whether the  

fundamental character of a religion would be altered. if it were not observed.  

Above all, there is an emphasis on constitutional legitimacy, which underscores  

need to preserve the basic constitutional values associated with the dignity of  

the individual. The ephemeral distinction between religion and superstition  

becomes more coherent in terms of the need to preserve fundamental  

constitutional values associated with human liberty.   

48 In determining the essentiality of a practice, it is crucial to consider  

whether the practice is prescribed to be of an obligatory nature within that  

religion. If a practice is optional, it has been held that it cannot be said to be  

‘essential’ to a religion. A practice claimed to be essential must be such that the  

nature of the religion would be altered in the absence of that practice. If there is  

a fundamental change in the character of the religion, only then can such a  

practice be claimed to be an ‘essential’ part of that religion.  

In Tilkayat, this Court noted that ‘whether an affair in question is an affair in  

matters of religion or not, may present difficulties because sometimes practices,  

religious and secular, are inextricably mixed up.’  The process of disentangling  

them in order to adjudicate upon claims grounded in Article 25 and Article 26(b)

PART F     

68    

becomes ultimately an exercise of judicial balancing. Durgah Committee  

established that in examining a claim that a practice is essential to religion, the  

Court must ‘carefully scrutinize’ the claims put before it in order to ensure that  

practices which have sprung from ‘superstitious beliefs’, through grounded in  

religion, will not be afforded constitutional protection. Saifuddin recognized that  

where a purportedly essential practice is based on an ‘obnoxious social rule or  

practice’, it would be amenable to a measure of social reform.   

Of crucial importance are the observations in Devaru, where the Court  

harmonized the inherent tension between the individual right under Article  

25(2)(b) and the denominational right under Article 26(b). Where the protection  

of denominational rights would substantially reduce the right conferred by Article  

25(2)(b), the latter would prevail against the former. This ensures that the  

constitutional guarantee under Article 25(2)(b) is not destroyed by exclusionary  

claims which detract from individual dignity. That a practice claimed to be  

essential has been carried on since time immemorial or is grounded in religious  

texts, does not lend to it constitutional protection unless it passes the test of  

essentiality.  

PART G     

69    

G The engagement of essential religious practices with  

constitutional values   

49 For decades, this Court has witnessed claims resting on the essentiality  

of a practice that militate against the constitutional protection of dignity and  

individual freedom under the Constitution. It is the duty of the courts to ensure  

that what is protected is in conformity with fundamental constitutional values  

and guarantees and accords with constitutional morality. While the Constitution  

is solicitous in its protection of religious freedom as well as denominational  

rights, it must be understood that dignity, liberty and equality constitute the trinity  

which defines the faith of the Constitution. Together, these three values  

combine to define a constitutional order of priorities. Practices or beliefs which  

detract from these foundational values cannot claim legitimacy. In Government  

of NCT of Delhi v Union of India46, one of us (Chandrachud J), observed the  

importance of constitutional morality as a governing ideal:  

“Constitutional morality highlights the need to preserve the  

trust of the people in institutions of democracy. It encompasses  

not just the forms and procedures of the Constitution, but  

provides an “enabling framework that allows a society the  

possibilities of self-renewal”. It is the governing ideal of  

institutions of democracy which allows people to cooperate and  

coordinate to pursue constitutional aspirations that cannot be  

achieved single-handedly.”  

Our Constitution places the individual at the heart of the discourse on rights. In  

a constitutional order characterized by the Rule of Law, the constitutional  

                                                           46 (2018) 8 SCALE 72

PART G     

70    

commitment to egalitarianism and the dignity of every individual enjoins upon  

the Court a duty to resolve the inherent tensions between the constitutional  

guarantee of religious freedom afforded to religious denominations and  

constitutional guarantees of dignity and equality afforded to individuals. There  

are a multiplicity of intersecting constitutional values and interests involved in  

determining the essentiality of religious practices. In order to achieve a balance  

between competing rights and interests, the test of essentiality is infused with  

these necessary limitations.  

50 Is the practice of excluding women between the ages of ten and fifty from  

undertaking the pilgrimage and praying at the Sabarimala temple an essential  

part of religion? The texts and tenets on which the Respondents placed reliance  

do not indicate that the practice of excluding women is an essential part of  

religion required or sanctioned by these religious documents. At best, these  

documents indicate the celibate nature of Lord Ayyappa at the Sabarimala  

temple. The connection between this and the exclusion of women is not  

established on the material itself.   

51 It was briefly contended that the case at hand required a determination of  

fact and law and should be sent to trial. It was contended that no new material  

has been placed before this Court to contradict the holding of the Kerala High  

Court in Mahendran. The High Court recorded findings on the pilgrimage, the  

inconsistent practice of prohibiting women between the age group of ten and

PART G     

71    

fifty, and the collection of individuals that offer prayer at the Sabarimala  

temple. Relying on the findings of fact recorded in Mahendran and taking note  

of the submissions of the Respondents herein, the question of remanding the  

case to a trial in this case does not arise.  

In regard to the maintainability of the present public interest litigation, this issue  

stands answered by the judgment of this Court in Adi Saiva Sivachariyargal v  

Government of Tamil Nadu,47 :  

“12…The argument that the present writ petition is founded on  

a cause relating to appointment in a public office and hence not  

entertainable as a public interest litigation would be too  

simplistic a solution to adopt to answer the issues that have  

been highlighted which concerns the religious faith and  

practice of a large number of citizens of the country and  

raises claims of century-old traditions and usage having  

the force of law. The above is the second ground, namely, the  

gravity of the issues that arise, that impel us to make an  

attempt to answer the issues raised and arising in the writ  

petitions for determination on the merits thereof.”  

(Emphasis supplied)  

Of importance are some of the observations of the Kerala High Court in   

Mahendran The High Court noted that even when old customs prevailed,  

women were allowed to visit the Temple.48 It noted an incident where the  

Maharaja of Travancore, accompanied by the Maharani and the Divan, had  

visited the Temple in 1115 M.E. The High Court noted that the Temple has seen  

the presence of women worshippers between the ages of ten and fifty for the  

                                                           47 (2016) 2 SCC 725  48 Ibid, at para 7

PART G     

72    

first rice-feeding ceremony of their children.49 The Secretary of the Ayyappa  

Seva Sangham had deposed that young women were seen in Sabarimala  

during the previous ten to fifteen years.50 A former Devaswom Commissioner  

admitted that the first rice-feeding ceremony of her grandchild was conducted  

at the Sabarimala Temple. The High Court found that during the twenty years  

preceding the decision, women irrespective of age were allowed to visit the  

temple when it opened for monthly poojas,51 but were prohibited from entering  

the temple only during Mandalam, Makaravilakku and Vishu seasons.52   

The High Court thus noted multiple instances wherein women were allowed to  

pray at the Sabarimala temple. These observations demonstrate that the  

practice of excluding women from the Sabarimala temple was not uniform. This  

militates against a claim that such a practice is of an obligatory nature.  That  

such practice has not been followed on numerous occasions, also shows that  

the denial of constitutional protection to an exclusionary practice will not result  

in a fundamental change in the character of the religion as required by  

Avadhuta II.  

52 The High Court proceeded on the basis of the ‘complete autonomy’ of the  

followers in determining the essentiality of the practice53. This followed the  

dictum in Shirur Mutt, without taking note of evolution of precedent thereafter,  

                                                           49 Ibid  50 Ibid, at para 32  51 Ibid, at paras 8, 10  52 Ibid, at para 43  53 Ibid, at para 22

PART G     

73    

which strengthened the role of the Court in the determination and put in place  

essential safeguards to ensure to every individual, the constitutional protection  

afforded by the trinity of dignity, liberty and equality. The approach of the High  

Court is incorrect. The High Court relied completely on the testimonies of the  

Thanthris without an enquiry into its basis in religious text or whether the  

practice claiming constitutional protection fulfilled the other guidelines laid down  

by this Court. Such an approach militates against the fundamental role of the  

constitutional Court as a guardian of fundamental rights. Merely establishing a  

usage54 will not afford it constitutional protection as an essential religious  

practice. It must be proved that the practice is ‘essential’ to religion and  

inextricably connected with its fundamental character. This has not been  

proved.   

This is sufficient reason to hold that the practice of excluding women from  

Sabarimala does not constitute an essential religious practice. However, since  

the claim in this case has a significant bearing on the dignity and fundamental  

rights of women, an issue of principle must be analysed.   

53 It was brought to the notice of this Court that in earlier days, the prohibition  

on women was because of non-religious factors.55 The ‘main reason’ as  

observed by the High Court in Mahendran, is the arduous nature of the  

                                                           54 Ibid, at para 37  55 Ibid, at para 7

PART G     

74    

journey56 which according to the Court could not be completed by women for  

physiological reasons. This claim falls foul of the requirement that the practice  

claiming constitutional protection must be on strictly religious grounds. Of  

significant importance, is that such a claim is deeply rooted in a stereotypical  

(and constitutionally flawed) notion that women are the ‘weaker’ sex and may  

not undertake tasks that are ‘too arduous’ for them. This paternalistic approach  

is contrary to the constitutional guarantee of equality and dignity to women.  

Interpreting the Constitution in accordance with the values that infuse it requires  

that the dignity of women, which is an emanation of Article 15 and founded in  

Article 21, cannot be disassociated from the exercise of religious freedom.  

Holding that stereotypical understandings of sex hold no legitimate claim under  

our Constitution, one of us (Chandrachud J) in Navtej Singh v Union of India,57  

held:    

“A discriminatory act will be tested against constitutional  

values. A discrimination will not survive constitutional scrutiny  

when it is grounded in and perpetuates stereotypes about a  

class constituted by the grounds prohibited in Article 15(1). If  

any ground of discrimination, whether direct or indirect is  

founded on a stereotypical understanding of the role of the sex,  

it would not be distinguishable from the discrimination which is  

prohibited by Article 15 on the grounds only of sex. If certain  

characteristics grounded in stereotypes, are to be associated  

with entire classes of people constituted as groups by any of  

the grounds prohibited in Article 15(1), that cannot establish a  

permissible reason to discriminate.”  

                                                           56 Ibid, at paras 38, 43  57 Writ Petition (Criminal) No. 76 of 2016  

PART G     

75    

54 The Court must lean against granting constitutional protection to a claim  

which derogates from the dignity of women as equal holders of rights and  

protections.  In the ethos of the Constitution, it is inconceivable that age could  

found a rational basis to condition the right to worship.  The ages of ten to fifty  

have been marked out for exclusion on the ground that women in that age group  

are likely to be in the procreative age.  Does the Constitution permit this as basis  

to exclude women from worship? Does the fact that a woman has a  

physiological feature – of being in a menstruating age – entitle anybody or a  

group to subject her to exclusion from religious worship? The physiological  

features of a woman have no significance to her equal entitlements under the  

Constitution.  All women in the age group of ten and fifty may not in any case  

fall in the ‘procreative age group’.  But that to my mind is again not a matter of  

substance.  The heart of the matter lies in the ability of the Constitution to assert  

that the exclusion of women from worship is incompatible with dignity,  

destructive of liberty and a denial of the equality of all human beings.  These  

constitutional values stand above everything else as a principle which brooks  

no exceptions, even when confronted with a claim of religious belief.  To exclude  

women is derogatory to an equal citizenship.  

55 The Respondents submitted that the deity at Sabarimala is in the form of  

a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since  

celibacy is the foremost requirement for all the followers, women between the  

ages of ten and fifty must not be allowed in Sabarimala. There is an assumption

PART G     

76    

here, which cannot stand constitutional scrutiny. The assumption in such a claim  

is that a deviation from the celibacy and austerity observed by the followers  

would be caused by the presence of women. Such a claim cannot be sustained  

as a constitutionally sustainable argument. Its effect is to impose the burden of  

a man’s celibacy on a woman and construct her as a cause for deviation from  

celibacy. This is then employed to deny access to spaces to which women are  

equally entitled. To suggest that women cannot keep the Vratham is to  

stigmatize them and stereotype them as being weak and lesser human beings.  

A constitutional court such as this one, must refuse to recognize such claims.   

56 Human dignity postulates an equality between persons. The equality of  

all human beings entails being free from the restrictive and dehumanizing effect  

of stereotypes and being equally entitled to the protection of law. Our  

Constitution has willed that dignity, liberty and equality serve as a guiding light  

for individuals, the state and this Court. Though our Constitution protects  

religious freedom and consequent rights and practices essential to religion, this  

Court will be guided by the pursuit to uphold the values of the Constitution,  

based in dignity, liberty and equality. In a constitutional order of priorities, these  

are values on which the edifice of the Constitution stands. They infuse our  

constitutional order with a vision for the future – of a just, equal and dignified  

society. Intrinsic to these values is the anti-exclusion principle. Exclusion is  

destructive of dignity. To exclude a woman from the might of worship is  

fundamentally at odds with constitutional values.

PART H     

77    

57 It was briefly argued that women between the ages of ten and fifty are not  

allowed to undertake the pilgrimage or enter Sabarimala on the ground of the  

‘impurity’ associated with menstruation. The stigma around menstruation has  

been built up around traditional beliefs in the impurity of menstruating women.  

They have no place in a constitutional order. These beliefs have been used to  

shackle women, to deny them equal entitlements and subject them to the  

dictates of a patriarchal order. The menstrual status of a woman cannot be a  

valid constitutional basis to deny her the dignity of being and the autonomy of  

personhood.  The menstrual status of a woman is deeply personal and an  

intrinsic part of her privacy.  The Constitution must treat it as a feature on the  

basis of which no exclusion can be practised and no denial can be perpetrated.   

No body or group can use it as a barrier in a woman’s quest for fulfilment,  

including in her finding solace in the connect with the creator.   

H Religious Denominations  

58 One of the major planks of the response to the petition is that Sabarimala  

is a denominational temple and is entitled to the rights granted to ‘religious  

denominations’ by Article 26 of the Constitution.  

59 The rights conferred by Article 26 are not unqualified. Besides this, they  

are distinct from the rights guaranteed by Article 25. In Devaru, this Court   

elucidated on the application of such a right and held that where the  

denominational rights would substantially diminish Article 25(2)(b), the former

PART H     

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must yield to the latter. However, when the ambit of Article 25(2)(b) is not  

substantially affected, the rights of a “denomination” as distinct “from the rights  

of the public” may be given effect to. However, such rights must be “strictly”  

denominational in nature.   

Over the years, criteria have emerged from judicial pronouncements of this  

Court on whether a collective of individuals qualifies as a ‘religious  

denomination’. In making the determination, benches of this Court have referred  

to the history and organisation of the collective seeking denominational status.  

60 Shirur Mutt dealt with the status of one of the eight Maths founded by  

Shri Madhavacharya, an exponent of dualist theism in Hindu religion. Justice B  

K Mukherjea undertook an enquiry into the precise meaning of the expression  

“religious denomination” and whether a “Math” is covered by the expression:  

“15… The word “denomination” has been defined in the Oxford  

Dictionary to mean “a collection of individuals classed together  

under the same name: a religious sect or body having a  

common faith and organisation and designated by a distinctive  

name”.  

A three fold test emerges from the above observations: (i) the existence of a  

religious sect or body; (ii) a common faith shared by those who belong to the  

religious sect and a common spiritual organisation; and (iii) the existence of a  

distinctive name.  

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The Court held that the “spiritual fraternity” represented by followers of Shri  

Madhavacharya, constitute a religious denomination:  

“15.It is well known that the practice of setting up Maths as  

centres of theological teaching was started by Shri  

Sankaracharya and was followed by various teachers since  

then. After Sankara, came a galaxy of religious teachers and  

philosophers who founded the different sects and sub-sects of  

the Hindu religion that we find in India at the present day. Each  

one of such sects or sub-sects can certainly be called a  

religious denomination, as it is designated by a distinctive  

name, — in many cases it is the name of the founder, —  

and has a common faith and common spiritual  

organisation. The followers of Ramanuja, who are known by  

the name of Shri Vaishnabas, undoubtedly constitute a  

religious denomination; and so do the followers of  

Madhwacharya and other religious teachers. It is a fact well  

established by tradition that the eight Udipi Maths were  

founded by Madhwacharya himself and the trustees and the  

beneficiaries of these Maths profess to be followers of that  

teacher...”                                                                                                    

(Emphasis supplied)  

61 In Devaru, Justice Venkatarama Aiyyar considered whether the Gowda  

Saraswath Brahmins, associated with the Sri Venkataramana Temple, can be  

regarded as a religious denomination. In doing so, the Court undertook a factual  

enquiry:  

“14…Now, the facts found are that the members of this  

community migrated from Gowda Desa first to the Goa region  

and then to the south, that they carried with them their idols,  

and that when they were first settled in Moolky, a temple was  

founded and these idols were installed therein. We are  

therefore concerned with the Gowda Saraswath Brahmins  

not as a section of a community but as a sect associated  

with the foundation and maintenance of the Sri  

Venkataramana Temple, in other words, not as a mere  

denomination, but as a religious denomination. From the  

evidence of PW 1, it appears that the Gowda Saraswath  

Brahmins have three Gurus, that those in Moolky Petah are  

followers of the head of the Kashi Mutt, and that it is he that  

performs some of the important ceremonies in the temple.  

Exhibit A is a document of the year 1826-27. That shows that

PART H     

80    

the head of the Kashi Mutt settled the disputes among the  

Archakas, and that they agreed to do the puja under his orders.  

The uncontradicted evidence of PW 1 also shows that  

during certain religious ceremonies, persons other than  

Gowda Saraswath Brahmins have been wholly excluded.  

This evidence leads irresistibly to the conclusion that the  

temple is a denominational one, as contended for by the  

appellants.”                                                                                              

(Emphasis supplied)  

This was, in other words, not just a sect associated with the community but one  

associated with the foundation and maintenance of the temple. This was  

coupled with a spiritual head who was responsible for the performance of  

religious worship.   

The Court noted that a deed of endowment proved that the temple was founded  

for the benefit of the Gowda Saraswath community, and concluded that the Sri  

Venkateshwara Temple qualified as a denominational temple.  

“15... When there is a question as to the nature and extent of a  

dedication of a temple, that has to be determined on the terms  

of the deed of endowment if that is available, and where it is  

not, on other materials legally admissible; and proof of long and  

uninterrupted user would be cogent evidence of the terms  

thereof. Where, therefore, the original deed of endowment is  

not available and it is found that all persons are freely  

worshipping in the temple without let or hindrance, it would be  

a proper inference to make that they do so as a matter of right,  

and that the original foundation was for their benefit as well. But  

where it is proved by production of the deed, of endowment or  

otherwise that the original dedication was for the benefit of a  

particular community, the fact that members of other  

communities were allowed freely to worship cannot lead to the  

inference that the dedication was for their benefit as well.…On  

the findings of the Court below that the foundation was  

originally for the benefit of the Gowda Saraswath Brahmin  

community, the fact that other classes of Hindus were admitted  

freely into the temple would not have the effect of enlarging the  

scope of the dedication into one for the public generally. On a

PART H     

81    

consideration of the evidence, we see no grounds for differing  

from the finding given by the learned Judges in the court below  

that the suit temple is a denominational temple founded for the  

benefit of the Gowda Saraswath Brahmins…”  

The dedication of the temple was for the Gowda Saraswath Brahmins  

specifically. The temple was not dedicated for followers of all communities.  

   62 In S P Mittal v Union of India (“Mittal”)58, Justice Ranganath Misra who  

delivered the opinion of the Court, held that the followers of Sri Aurobindo do  

not constitute a religious denomination. The Court formulated the conditions  

necessary to be fulfilled to qualify as ‘religious denomination’:  

“80. The words “religious denomination” in Article 26 of the  

Constitution must take their colour from the word “religion” and  

if this be so, the expression “religious denomination” must also  

satisfy three conditions:  

“(1) It must be a collection of individuals who have a system of  

beliefs or doctrines which they regard as conducive to their  

spiritual well-being, that is, a common faith;  

(2) common organisation; and  

(3) designation by a distinctive name.”59  

These tests, as we have seen, are a re-statement of the Shirur Mutt  

formulation.  

The Court dwelt on the organisation and activities of the Aurobindo Society and  

emphasised that a collective seeking the status of a religious denomination  

must be a religious institution:  

                                                           58 1983 1 SCC 51  59 Ibid, at page 85

PART H     

82    

“120. It was further contended that a religious denomination  

must be professed by that body but from the very beginning the  

Society has eschewed the word “religion” in its constitution.  

The Society professed to be a scientific research organisation  

to the donors and got income tax exemption on the footing that  

it was not a religious institution. The Society has claimed  

exemption from income tax under Section 80 for the donors  

and under Section 35 for itself on that ground. Ashram Trust  

was different from Auroville Ashram. The Ashram Trust also  

applied for income tax exemption and got it on that very ground.  

So also Aurobindo Society claimed exemption on the footing  

that it was not a religious institution and got it. They professed  

to the Government also that they were not a religious institution  

in their application for financial assistance under the Central  

Scheme of Assistance to voluntary Hindu organisations.60  

121. On the basis of the materials placed before us viz. the  

Memorandum of Association of the Society, the several  

applications made by the Society claiming exemption under  

Section 35 and Section 80 of the Income Tax Act, the repeated  

utterings of Sri Aurobindo and the Mother that the Society and  

Auroville were not religious institutions and host of other  

documents there is no room for doubt that neither the Society  

nor Auroville constitute a religious denomination and the  

teachings of Sri Aurobindo only represented his philosophy and  

not a religion.”61  

The sect was based on a shared philosophy and not on a common set of  

religious beliefs or faith. Hence, the sect was held not to qualify to be a religious  

denomination.  

63 The above tests have been followed in other decisions. In Avadhuta I, a  

three judge bench of this Court held that the Ananda Margis of West Bengal  

constitute a religious denomination under Article 26, as they satisfy all the three  

conditions:  

                                                           60 Ibid, at page 98  61 Ibid, at pages 98-99

PART H     

83    

“11. Ananda Marga appears to satisfy all the three conditions  

viz. it is a collection of individuals who have a system of beliefs  

which they regard as conducive to their spiritual well-being;  

they have a common organisation and the collection of these  

individuals has a distinctive name. Ananda Marga, therefore,  

can be appropriately treated as a religious denomination, within  

the Hindu religion…”62  

In Bramchari Sidheswar Shai v State of West Bengal63, a three judge Bench  

of this Court adopted the tests re-stated in Mittal to hold that the followers of  

Ramakrishna constitute a religious denomination:  

“57… These Maths and Missions of Ramakrishna composed  

of the followers of principles of Hinduism as expounded,  

preached or practised by Ramakrishna as his disciples or  

otherwise form a cult or sect of Hindu religion. They believe in  

the birth of sage Ramakrishna in Dakshineswar as an Avatar  

of Rama and Krishna and follow the principles of Hinduism  

discovered, expounded, preached and practised by him as  

those conducive to their spiritual well-being as the principles of  

highest Vedanta which surpassed the principles of Vedanta  

conceived and propagated by Sankaracharya, Madhavacharya  

and Ramanujacharya, who were earlier exponents of  

Hinduism. Hence, as rightly held by the Division Bench of the  

High Court, followers of Ramakrishna, who are a collection  

of individuals, who adhere to a system of beliefs as  

conducive to their spiritual well-being, who have  

organised themselves collectively and who have an  

organisation of definite name as Ramakrishna Math or  

Ramakrishna Mission could, in our view, be regarded as a  

religious denomination within Hindu religion...”64  

(Emphasis supplied)  

In Nallor Marthandam Vellalar v Commissioner, Hindu Religious and  

Charitable Endowments65 a two judge Bench held that the Vellala community  

                                                           62 Ibid, at page 530  63 (1995) 4 SCC 646  64 Ibid, at pages 648-649  65 (2003) 10 SCC 712

PART H     

84    

in Tamil Nadu does not constitute a religious denomination. Justice Shivraj Patil  

emphasised that the common faith of the community must find its basis in  

“religion”:  

  “7. It is settled position in law, having regard to the various  

decisions of this Court that the words “religious denomination”  

take their colour from the word “religion”. The expression  

“religious denomination” must satisfy three requirements: (1) it  

must be a collection of individuals who have a system of belief  

or doctrine which they regard as conducive to their spiritual  

well-being i.e. a common faith; (2) a common organisation; and  

(3) designation of a distinctive name. It necessarily follows  

that the common faith of the community should be based  

on religion and in that they should have common religious  

tenets and the basic cord which connects them, should be  

religion and not merely considerations of caste or  

community or societal status…”66                                                  

(Emphasis supplied)  

Though formulated as a three-pronged test, a fourth element emerges from the  

narrative. That is the position of a common set of religious tenets. Religion is  

what binds a religious denomination. Caste, community and social status do not  

bring into being a religious denomination.  

64 These precedents indicate the ingredients which must be present for a  

set of individuals to be regarded as a religious denomination. These are a  

common faith, a common organisation and a distinctive name brought together  

under the rubric of religion. A common thread which runs through them is the  

requirement of a religious identity, which is fundamental to the character of a  

religious denomination.   

                                                           66 Ibid, at page 716

PART H     

85    

H. 1 Do the devotees of Lord Ayyappa constitute a religious  

denomination?  

65 Dr Abhishek Manu Singhvi, learned Senior Counsel submitted that  

devotees who undertake a forty one day penance form a denomination or  

section called “Ayyappaswamis” and the common organisation is the  

organisation of ‘Ayyappas’. He submits that the ‘Ayyappas’ believe in a common  

faith and hold the belief that if they undertake the penance of forty-one days in  

the manner prescribed, by maintaining themselves pure and unpolluted, they  

would be one with Lord Ayyappa. It has been submitted by Mr K Parasaran,  

learned Senior Counsel that the devotees of Lord Ayyappa hold a sacred  

religious belief that the deity at Sabarimala is celibate - a Naishtika Brahmachari  

- who practises strict penance and the strictest form of celibacy, in which he  

cannot find himself in the presence of young women.  

It has been submitted that Lord Ayyappa has female devotees. Hence, girls  

below the age of ten and women above the age of fifty would be included as  

members of the denomination. However, it is unclear as to how they may be  

considered as members of a denomination that seeks their exclusion. The  

judgements of this Court lay down that the collective of individuals must have a  

common faith and set of beliefs that aid their spiritual well-being. It is implausible  

that women should leave the membership of a common faith, which is meant to  

be conducive to their spiritual growth for a period of forty years and resume

PART H     

86    

membership at the age of fifty. Such a requirement takes away from the spiritual  

character of the denomination.  

66 The decision of the Kerala High Court in Mahendran brought on the  

record several facets which would in fact establish that Ayyappans do not  

constitute a religious denomination. While it is stated in the impugned  

notification that women between the age of ten and fifty five are forbidden from  

entering the temple as a matter of custom followed since time immemorial, the  

stand taken by the Respondent before the Kerala High Court differs to a great  

extent. The Board had submitted before the High Court:  

“7. In olden days worshippers visit the temple only after  

observing penance for 41 days. Since pilgrims to Sabarimala  

temple ought to undergo ‘Vrathams’ or penance for 41 days,  

usually ladies between the age of 10 and 50 will not be  

physically capable of observing vratham for 41 days on  

physiological grounds. The religious practices and customs  

followed earlier had changed during the last 40 years  

particularly from 1950, the year in which the renovation of the  

temple took place after the “fire disaster”. Even while the old  

customs prevailed, women used to visit the temple though  

very rarely. The Maharaja of Travancore accompanied by  

the Maharani and the Divan had visited the temple in 1115  

M.E. There was thus no prohibition for women to enter the  

Sabarimala temple in olden days, but women in large  

number were not visiting the temple. That was not because  

of any prohibition imposed by Hindu religion but because  

of other non-religious factors. In recent years, many  

worshippers had gone to the temple with lady worshippers  

within the age group 10 to 50 for the first rice-feeding  

ceremony of their children (Chottoonu). The Board used to  

issue receipts on such occasions on payment of the  

prescribed charges. A change in the old custom and  

practice was brought about by installing a flag staff  

(Dhwajam) in 1969. Another change was brought about by  

the introduction of Padipooja. These were done on the  

advice of the Thanthri. Changes were also effected in other  

practices. The practice of breaking coconuts on the 18  

steps was discontinued and worshippers were allowed to

PART H     

87    

crack the coconuts only on a stone placed below the  

eighteen sacred steps (Pathinettaam Padi). These changes  

had been brought about in order to preserve the temple and the  

precinct in all its gaiety and sanctity.”67                                           

(Emphasis supplied)  

According to the above extract, in the “olden days” there was no ‘religious  

prohibition’ on the entry of women in the Sabarimala temple. But women visited  

the temple in fewer numbers for ‘non-religious’ reasons. The submission of the  

Board before the High Court reveals that the prohibition has not been  

consistently followed even after the notification was issued.  

“8. For the last 20 years women irrespective of their age  

were allowed to visit the temple when it opens for monthly  

poojas. They were not permitted to enter the temple during  

Mandalam, Makaravilakku and Vishu seasons. The rule that  

during these seasons no woman who is aged more than 10 and  

less than 50 shall enter the temple is scrupulously followed.68  

9. The second respondent, former Devaswom Commissioner  

Smt. S. Chandrika in her counter-affidavit admitted that the first  

rice-feeding ceremony of her grandchild was conducted on the  

1st of Chingam 1166 at Sabarimala temple while she was  

holding the post of Devaswom Commissioner…The restriction  

regarding the entry of women in the age group 10 to 50 is there  

only during Mandalam, Makaravilakku and Vishu. As per the  

stipulations made by the Devaswom Board there is no  

restriction during the remaining period. When monthly poojas  

are conducted, women of all age groups used to visit  

Sabarimala. On the 1st of Chingam 1166 the first rice-feeding  

ceremony of other children were also conducted at the temple.  

No V.I.P. treatment was given to her grandchild on that day.  

The same facility was afforded to others also. Her daughter got  

married on 13-7-1984 and was not begetting a child for a  

considerably long time. She took a vow that the first rice-

feeding ceremony would be performed at Sabarimala in case  

she begets a child. Hence the reason why the first rice-feeding  

ceremony of the child delivered by her was performed at that  

temple. The entry of young ladies in the temple during monthly  

poojas is not against the customs and practices followed in the  

temple…”69          (Emphasis supplied)  

                                                           67 Ibid, at page 45  68 Ibid, at page 45  69 Ibid, at pages 45-46

PART H     

88    

67 The stand of the Board demonstrates that the practice of excluding  

women of a particular age group has not been consistently followed. The basis  

of the claim that there exists a religious denomination of Ayyapans is that the  

presiding deity is celibate and a strict regime of forty one days is prescribed for  

worship. Women between the age groups of ten and fifty would not for  

physiological reasons (it is asserted) be able to perform the penance associated  

with worship and hence their exclusion is intrinsic to a common faith. As  

indicated earlier, the exclusion of women between the ages of ten and fifty has  

not been shown to be a uniform practice or tenet. The material before the Kerala  

High Court in Mahendran in fact indicates that there was no such uniform tenet,  

down the ages. Therefore, the claim that the exclusion of women is part of a  

common set of religious beliefs held by those who worship the deity is not  

established. Above all, what is crucial to a religious denomination is a religious  

sect or body. A common faith and spiritual organisation must be the chord which  

unites the adherents together.  

68 Justice Rajagopala Ayyangar in his concurring judgement in Saifuddin,  

emphasised the necessity of an identity of doctrines, creeds and tenets in a  

‘religious denomination’:   

“52…The identity of a religious denomination consists in the  

identity of its doctrines, creeds and tenets and these are  

intended to ensure the unity of the faith which its adherents  

profess and the identity of the religious views are the bonds of  

the union which binds them together as one community.”   

PART H     

89    

The judgement cited the ruling of Lord Halsbury in Free Church of Scotland  

v Overtoun70 :   

“In the absence of conformity to essentials, the denomination  

would not be an entity cemented into solidity by harmonious  

uniformity of opinion, it would be a mere incongruous heap of,  

as it were, grains of sand, thrown together without being united,  

each of these intellectual and isolated grains differing from  

every other, and the whole forming a but nominally united while  

really unconnected mass; fraught with nothing but internal  

dissimilitude, and mutual and reciprocal contradiction and  

dissension.”  

69 Adherence to a ‘common faith’ would entail that a common set of beliefs  

have been followed since the conception of the particular sect or denomination.  

A distinctive feature of the pilgrimage is that pilgrims of all religions participate  

in the pilgrimage on an equal footing. Muslims and Christians undertake the  

pilgrimage. A member of any religion can be a part of the collective of individuals  

who worship Lord Ayyappa. Religion is not the basis of the collective of  

individuals who worship the deity. Bereft of a religious identity, the collective  

cannot claim to be regarded as a ‘religious denomination’.   To be within the fold  

of Article 26, a denomination must be a religious sect or body. Worship of the  

presiding deity is not confined to adherents of a particular religion. Coupled with  

this is the absence of a common spiritual organisation, which is a necessary  

element to constitute a religious denomination. The temple at which worship is  

carried out is dedicated to the public and represents truly, the plural character  

of society. Everyone, irrespective of religious belief, can worship the deity. The

                                                           70 (1904) AC 515, at page 616

PART I     

90    

practices associated with the forms of worship do not constitute the devotees  

into a religious denomination.  

Considering the inability of the collective of individuals to satisfy the judicially-

enunciated requirements, we cannot recognise the set of individuals who refer  

to themselves as “Ayyappans” or devotees of Lord Ayyappa as a ‘religious  

denomination’.   

I Article 17, “Untouchability” and the notions of purity  

70 The petitioners and the learned Amicus Curiae Mr. Raju Ramachandran  

urge that the denial of entry to women in the Ayyappa temple at Sabarimala, on  

the basis of customs, is a manifestation of “untouchability” and is hence violative  

of Article 17 of the Constitution. The contention has been countered by the  

argument that Article 17 is specifically limited to caste-based untouchability and  

cannot be expanded to include gender-based exclusion. Understanding these  

rival positions requires the Court to contemplate on the historical background  

behind the insertion of Article 17 into the Constitution and the intent of the  

framers.  

71 Article 17 occupies a unique position in our constitutional scheme. The  

Article, which prohibits a social practice, is located in the chapter on  

fundamental rights. The framers introduced Article 17, which prohibits a  

discriminatory and inhuman social practice, in addition to Articles 14 and 15,

PART I     

91    

which provide for equality and non-discrimination. While there has been little  

discussion about Article 17 in textbooks on constitutional law, it is a provision  

which has a paramount social significance both in terms of acknowledging the  

past and in defining the vision of the Constitution for the present and for the  

future. Article 17 provides:  

““Untouchability” is abolished and its practice in any form is  

forbidden. The enforcement of any disability arising out of  

“Untouchability” shall be an offence punishable in accordance  

with law.”  

Article 17 abolished the age old practice of “untouchability”, by forbidding its  

practice “in any form”. By abolishing “untouchability”, the Constitution attempts  

to transform and replace the traditional and hierarchical social order. Article 17,  

among other provisions of the Constitution, envisaged bringing into “the  

mainstream of society, individuals and groups that would otherwise have  

remained at society’s bottom or at its edges”71. Article 17 is the constitutional  

promise of equality and justice to those who have remained at the lowest rung  

of a traditional belief system founded in graded inequality. Article 17 is  

enforceable against everyone – the State, groups, individuals, legal persons,  

entities and organised religion – and embodies an enforceable constitutional  

mandate. It has been placed on a constitutional pedestal of enforceable  

fundamental rights, beyond being only a directive principle, for two reasons.  

First, “untouchability” is violative of the basic rights of socially backward  

                                                           71 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999), at pages xii-

xiii

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92    

individuals and their dignity. Second, the framers believed that the abolition of  

“untouchability” is a constitutional imperative to establish an equal social order.  

Its presence together and on an equal footing with other fundamental rights,  

was designed to “give vulnerable people the power to achieve collective  

good”72. Article 17 is a reflection of the transformative ideal of the Constitution,  

which gives expression to the aspirations of socially disempowered individuals  

and communities, and provides a moral framework for radical social  

transformation. Article 17, along with other constitutional provisions73, must be  

seen as the recognition and endorsement of a hope for a better future for  

marginalized communities and individuals, who have had their destinies  

crushed by a feudal and caste-based social order.   

72 The framers of the Constitution left the term “untouchability” undefined.  

The proceedings of the Constituent Assembly suggest that this was deliberate.  

B Shiva Rao has recounted74 the proceedings of the Sub-Committee on  

Fundamental Rights, which was undertaking the task of preparing the draft  

provisions on fundamental rights. A clause providing for the abolition of  

“untouchability” was contained in K M Munshi’s draft of Fundamental Rights.  

Clause 4(a) of Article III of his draft provided:  

“Untouchability is abolished and the practice thereof is  

punishable by the law of the Union.”  

                                                           72 Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford University Press (2008), at page 15  73 Articles 15(2) and 23, The Constitution of India  74 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 202

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93    

Clause 1 of Article II of Dr Ambedkar’s draft provided that:  

“any privilege or disability arising out of rank, birth, person,  

family, religion or religious usage and custom is abolished.”  

While discussing the clause on “untouchability” on 29 March 1947, the Sub-

Committee on Fundamental Rights accepted Munshi’s draft with a verbal  

modification that the words “is punishable by the law of the Union” be substituted  

by the expression “shall be an offence”.75 Reflecting on the draft, the  

constitutional advisor, B N Rau, remarked that the meaning of “untouchability”  

would have to be defined in the law which would be enacted in future to  

implement the provision. Bearing in mind the comments received, the Sub-

Committee when it met on 14 April 1947 to consider its draft report, decided to  

add the words “in any form” after the word “Untouchability”. This was done  

specifically in order “to make the prohibition of practice [of “untouchability”]  

comprehensive”76.  

Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on  

Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan  

Ram had an incisive query. While noting that ordinarily, the term “untouchability”  

referred to a practice prevalent in Hindu society, he queried whether the  

intention of the committee was to abolish untouchability among Hindus,  

Christians or other communities or whether it applied also to ‘inter-communal’  

                                                           75 Ibid  76 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 202

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94    

untouchability. Shiva Rao has recounted that the Committee came to the  

general conclusion that “the purpose of the clause was to abolish  

untouchability in all its forms— whether it was untouchability within a  

community or between various communities”77. In the proceedings, K M  

Panikkar elaborated the point by observing that the clause intended to abolish  

various disabilities arising out of untouchability, irrespective of religion.78 He  

remarked:  

“If somebody says that he is not going to touch me, that is not  

a civil right which I can enforce in a court of law. There are  

certain complex of disabilities that arise from the practice of  

untouchability in India. Those disabilities are in the nature of  

civil obligations or civil disabilities and what we have attempted  

to provide for is that these disabilities that exist in regard to the  

individual, whether he be a Christian, Muslim or anybody else,  

if he suffers from these disabilities, they should be eradicated  

through the process of law.”79  

Rajagopalachari suggested a minor amendment of the clause, which sought to  

make “the imposition of any disability of any kind or any such custom of  

‘untouchability’” an offence. Taking note of the suggestions and views  

expressed, the clause was redrafted as clause 6 in the Interim Report of the  

Advisory Committee as follows:  

““Untouchability” in any form is abolished and the imposition  

of any disability on that account shall be an offence.”  

                                                           77 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 202  78 B Shiva Rao has remarked that Panikkar’s reference was to the depressed classes who had been converted to  

Christianity in Travancore-Cochin and Malabar. See B Shiva Rao, The Framing of India’s Constitution: A Study,  Indian Institution of Public Administration (1968), at page 202  

79 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  page 203

PART I     

95    

The Interim Report was moved before the Constituent Assembly by Vallabhbhai  

Patel on 29 April 1947. Commenting on Clause 6, one member, Promatha  

Ranjan Thakur, observed that “untouchability” cannot be abolished without  

abolishing the caste system, since “untouchability” is its symptom. Srijut Rohini  

Kumar Chaudhury, SC Banerjee and Dhirendra Nath Datta sought a clarification  

on the definition of the term “untouchability”. Chaudhary even suggested the  

following amendment to define the term “untouchability”:  

“‘Untouchability’ means any act committed in exercise of  

discrimination on, grounds of religion, caste or lawful vocation  

of life mentioned in clause 4.”  

Opposing the amendment, K M Munshi stated that the word “untouchability” has  

been “put purposely within inverted commas in order to indicate that the Union  

legislature when it defines ‘untouchability’ will be able to deal with it in the sense  

in which it is normally understood”80. Subsequently, only three amendments  

were moved. H V Kamath sought to insert the word “unapproachability” after the  

term “untouchability” and the words “and every” after the word “any”. S.  

Nagappa wanted to substitute the words “imposition of any disability” with the  

words “observance of any disability”. P Kunhiraman wanted to add the words  

“punishable by law” after the word “offence”. Vallabhbhai Patel, who had moved  

the clause, considered the amendments to be unnecessary and observed:  

“The first amendment is by Mr. Kamath. He wants the addition  

of the word ‘unapproachability’. If untouchability is provided for  

in the fundamental rights as an offence, all necessary  

adjustments will be made in the law that may be passed by the  

Legislature. I do not think it is right or wise to provide for such  

                                                           80 Constituent Assembly Debates (29 April 1947)

PART I     

96    

necessary corollaries and, therefore, I do not accept this  

amendment.  

The other amendment is by Mr. Nagappa who has suggested  

that for the words “imposition of any disability’’ the words  

“observance of any disability’’ may be substituted. I cannot  

understand his point. I can observe one man imposing a  

disability on another, and I will be guilty I have observed it. I do  

not think such extreme things should be provided for. The  

removal of untouchability is the main idea, and  

if untouchability is made illegal or an offence, it is quite enough.  

The next amendment was moved by Mr. Kunhiraman. He has  

suggested the insertion of ‘punishable by law’. We have  

provided that imposition of untouchability shall be an offence.  

Perhaps his idea is that an offence could be excusable, or  

sometimes an offence may be rewarded. Offence is an  

offence; it is not necessary to provide that offence should be  

punishable by law. Sir, I do not accept this amendment either.  

Then, it was proposed that for the words ‘any form’, the words  

‘all forms’ be substituted. Untouchability in any form is a legal  

phraseology, and no more addition is necessary.”81  

After Patel’s explanation, HV Kamath and P Kunhiraman withdrew their  

amendments, while the amendment moved by Nagappan was rejected. Clause  

6 was adopted by the Constituent Assembly. However, in the Draft Constitution  

(dated October 1947) prepared by the constitutional advisor, B N Rau, the third  

amendment moved by Kunhiraman was adopted in effect and after the word  

“offence” the words “which shall be punishable in accordance with law” were  

inserted.82 On 30-31 October 1947, the Drafting Committee considered the  

“untouchability” provision and redrafted it as article 11. It was proposed83 by Dr  

Ambedkar before the Constituent Assembly as follows:  

                                                           81 Constituent Assembly Debates (29 April 1947)  82 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 204  83 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 205

PART I     

97    

““Untouchability” is abolished and its practice in any form is  

forbidden. The enforcement of any disability arising out of  

“untouchability” shall be an offence punishable in accordance  

with law.”  

In response to comments and representations received on the Draft  

Constitution, B N Rau reiterated that Parliament would have to enact legislation,  

which would provide a definition of “untouchability”.84 When the draft Article 11  

came for discussion before the Constituent Assembly on 29 November 1948,  

one member, Naziruddin Ahmad, sought to substitute it by the following Article:  

“No one shall on account of his religion or caste be treated or  

regarded as an ‘untouchable’; and its observance in any form  

may be made punishable by law.”85  

The amendment proposed would obviously restrict untouchability to its religious  

and caste-based manifestations. Naziruddin Ahmad supported his contention by  

observing that draft Article 11 prepared by the Drafting Committee was vague,  

as it provides no legal meaning of the term “untouchability”. Stressing that the  

term was “rather loose”, Ahmad wanted the draft Article to be given “a better  

shape”. Professor KT Shah had a similar concern. He observed:  

“… I would like to point out that the term ‘untouchability’ is  

nowhere defined. This Constitution lacks very much in a  

definition clause; and consequently we are at a great loss in  

understanding what is meant by a given clause and how it is  

going to be given effect to. You follow up the general  

proposition about abolishing untouchability, by saying that it  

will be in any form an offence and will be punished at law. Now  

I want to give the House some instances of recognised and  

permitted untouchability whereby particular communities  

                                                           84 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at  

page 204  85 Ibid, at page 205

PART I     

98    

or individuals are for a time placed under disability, which  

is actually untouchability. We all know that at certain  

periods women are regarded as untouchables. Is that  

supposed to be, will it be regarded as an offence under this  

article? I think if I am not mistaken, I am speaking from  

memory, but I believe I am right that in the Quran in a certain  

'Sura', this is mentioned specifically and categorically. Will you  

make the practice of their religion by the followers of the  

Prophetan offence? Again there are many ceremonies in  

connection with funerals and obsequies which make those who  

have taken part in them untouchables for a while. I do not wish  

to inflict a lecture upon this House on anthropological or  

connected matters; but I would like it to be brought to the notice  

that the lack of any definition of the term ‘untouchability’  

makes it open for busy bodies and lawyers to make capital  

out of a clause like this, which I am sure was not the  

intention of the Drafting Committee to make.”86                    

(Emphasis supplied)  

Dr Ambedkar neither accepted Naziruddin Ahmad’s amendment nor replied to  

the points raised by KT Shah. The amendment proposed by Ahmad was  

negatived by the Constituent Assembly and the draft Article as proposed by Dr  

Ambedkar was adopted. Draft Article 11 has been renumbered as the current  

Article 17 of the Constitution.   

The refusal of the Constituent Assembly to provide any definite meaning to  

“untouchability” (despite specific amendments and proposals voicing the need  

for a definition) indicates that the framers did not wish to make the term  

restrictive. The addition of the words “in any form” in the initial draft prepared  

by the Sub-Committee on Fundamental Rights is an unambiguous statement to  

the effect that the draftspersons wanted to give the term “untouchability” a broad  

                                                           86 Constituent Assembly Debates (29 November 1948)

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99    

scope. A reconstruction of the proceedings of the Constituent Assembly  

suggests that the members agreed to the Constitutional Advisor’s insistence  

that the law which is to be enacted for implementing the provision on  

“untouchability” would provide a definition of the term. The rejection of  

Naziruddin Ahmad’s amendment by the members of the Constituent Assembly  

reflects a conscious effort not to limit the scope of the legislation to be enacted.   

73 In order to fully understand the constitutional philosophy underlying the  

insertion of Article 17, this Court must also deal with one specific instance during  

the proceedings of the Constituent Assembly. As mentioned above, while  

Professor KT Shah gave specific examples of acts of “untouchability”, including  

that of women being considered untouchables “in certain periods”, and argued  

for a specific definition, Dr Ambedkar furnished no reply. This raises the  

question as to why Dr Ambedkar did not accept Naziruddin Ahmad’s  

amendment and refused to reply to KT Shah’s remarks. One member of the  

Constituent Assembly, Monomohan Das, remarked during the debate on the  

draft Article on “untouchability”:  

“…It is an irony of fate that the man who was driven from one  

school to another, who was forced to take his lessons outside  

the class room, has been entrusted with this great job of  

framing the Constitution of free and independent India, and it  

is he who has finally dealt the death blow to this custom of  

untouchability, of which he was himself a victim in his younger  

days.”87  

                                                           87 Constituent Assembly Debates (29 November 1948)

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100    

The answers lie in the struggle for social emancipation and justice which was  

the defining symbol of the age, together with the movement for attaining political  

freedom but in a radical transformation of society as well.  To focus on the former  

without comprehending the latter would be to miss the inter-connected nature  

of the document as a compact for political and social reform.   

74 Reading Dr Ambedkar compels us to look at the other side of the  

independence movement. Besides the struggle for independence from the  

British rule, there was another struggle going on since centuries and which still  

continues. That struggle has been for social emancipation. It has been the  

struggle for the replacement of an unequal social order. It has been a fight for  

undoing historical injustices and for righting fundamental wrongs with  

fundamental rights. The Constitution of India is the end product of both these  

struggles. It is the foundational document, which in text and spirit, aims at social  

transformation namely, the creation and preservation of an equal social order.  

The Constitution represents the aspirations of those, who were denied the basic  

ingredients of a dignified existence. It contains a vision of social justice and lays  

down a roadmap for successive governments to achieve that vision. The  

document sets out a moral trajectory, which citizens must pursue for the  

realization of the values of liberty, equality, fraternity and justice. It is an  

assurance to the marginalized to be able to rise to the challenges of human  

existence. The Constituent Assembly was enriched by the shared wisdom and  

experiences gathered by its members from the ongoing social struggle for

PART I     

101    

equality and justice. In particular, as the Chairman of the Drafting Committee,  

Dr Ambedkar brought with himself ideas, values and scholarship, which were  

derived from the experiences and struggles which singularly were his own. He  

drew as well from other social reformers in their movements against social  

injustice. Some of these experiences and literature ought to be discussed in  

order to understand the vision behind the philosophy of the Constitution and,  

particularly, Article 17.   

Having himself faced discrimination and stigmatization, Dr Ambedkar had  

launched an active movement against “untouchability”. In 1924, he founded the  

Bahishkrut Hitkarani Sabha, aimed at advancing the rights of those who were  

neglected by society. Over the following years, Dr Ambedkar organised  

marches demanding rights for untouchables to drinking water from public  

resources, and their right to enter temples. These movements were part of the  

larger demand of equality for the untouchables.   

In his profound work, “Annihilation of Caste”, while advocating the destruction  

of the caste system, Dr Ambedkar recorded some of the “untouchability”  

practices by which the Untouchables were subjected to inhuman treatment:  

“Under the rule of the Peshwas in the Maratha country, the  

Untouchable was not allowed to use the public streets if a  

Hindu was coming along, lest he should pollute the Hindu by  

his shadow. The Untouchable was required to have a black  

thread either on his wrist or around his neck, as a sign or a  

mark to prevent the Hindus from getting themselves polluted  

by his touch by mistake. In Poona, the capital of the Peshwa,  

the Untouchable was required to carry, strung from his waist,

PART I     

102    

a broom to sweep away from behind himself the dust he trod  

on, lest a Hindu walking on the same dust should be polluted.  

In Poona, the Untouchable was required to carry an earthen  

pot hung around his neck wherever he went—for holding his  

spit, lest his spit falling on the earth should pollute a Hindu who  

might unknowingly happen to tread on it.”88  

His autobiographical notes published after his death with the title “Waiting for a  

Visa”89, contain reminiscences drawn by Dr Ambedkar on his own experiences  

with “untouchability”. Dr Ambedkar mentions several experiences from his  

childhood.  No barber would consent to shave an untouchable. During his days  

as an Officer in Baroda State, he was denied a place to stay in quarters.  In  

another note, which was handwritten by Dr Ambedkar and was later published  

with the title “Frustration”, he wrote:  

“The Untouchables are the weariest, most loathed and the  

most miserable people that history can witness. They are a  

spent and sacrificed people… To put it in simple language the  

Untouchables have been completely overtaken by a sense of  

utter frustration. As Mathew Arnold says “life consists in the  

effort to affirm one’s own essence; meaning by this, to develop  

one’s own existence fully and freely... Failure to affirm ones  

own essence is simply another name for frustration… ” Many  

people suffer such frustrations in their history. But they soon  

recover from the blight and rise to glory again with new  

vibrations. The case of the Untouchables stands on a different  

footing. Their frustration is frustration for ever. It is unrelieved  

by space or time. In this respect the story of the Untouchables  

stands in strange contrast with that of the Jews.”90  

                                                           88 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1  

(2014), at pages 39  89 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 12  

(2014), at pages 661-691  90 Ibid, at pages 733-735

PART I     

103    

In his writing titled “Slaves and Untouchables”91, he described “untouchability”  

to be worse than slavery. In his words:   

“.. untouchability is obligatory. A person is permitted to hold  

another as his slave. There is no compulsion on him if he does  

not want to. But an Untouchable has no option. Once he is born  

an Untouchable, he is subject to all the disabilities of an  

Untouchable… [U]ntouchability is an indirect and therefore the  

worst form of slavery… It is enslavement without making the  

Untouchables conscious of their enslavement.”92  

Dr Ambedkar’s thoughts and ideas bear an impact of other social reformers who  

preceded him, in particular Jyotirao Phule and Savitribai Phule. In 1873, in the  

preface to his book titled “Gulamgiri” (Slavery), Jyotirao Phule made a stinging  

critique on the cause of “untouchability”:   

“[The] Sudras and Atisudras were regarded with supreme  

hatred and contempt, and the commonest rights of humanity  

were denied [to] them. Their touch, nay, even their shadow, is  

deemed a pollution. They are considered as mere chattels, and  

their life of no more value than that of meanest reptile… How  

far the Brahmins have succeeded in their endeavours to  

enslave the minds of the Sudras and Atisudras... For  

generations past [the Sudras and Atisudras] have borne these  

chains of slavery and bondage… This system of slavery, to  

which the Brahmins reduced the lower classes is in no respect  

inferior to that which obtained a few years ago in America. In  

the days of rigid Brahmin dominancy, so lately as that of the  

time of the Peshwa, my Sudra brethren had even greater  

hardships and oppression practiced upon them than what even  

the slaves in America had to suffer. To this system of selfish  

superstition and bigotry, we are to attribute the stagnation and  

all the evils under which India has been groaning for many  

centuries past.”93  

                                                           91 Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 5 (2014),  

at pages 9-18  92 Ibid, at page 15  93 India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyi ed.), Speaking Tiger Publishing  

Private Limited (2017), at pages 86-88

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104    

Savitribai Phule expresses the feeling of resentment among the marginalized in  

form of a poem:  

“Arise brothers, lowest of low shudras   

wake up, arise.  

Rise and throw off the shackles  

put by custom upon us.  

Brothers, arise and learn…  

We will educate our children  

and teach ourselves as well.  

We will acquire knowledge  

of religion and righteousness.  

Let the thirst for books and learning  

dance in our every vein.  

Let each one struggle and forever erase  

our low-caste stain.”94  

75 The consistent discourse flowing through these writings reflects a  

longstanding fight against subjugation and of atrocities undergone by the victims  

of an unequal society. Article 17 is a constitutional recognition of these  

resentments. The incorporation of Article 17 into the Constitution is symbolic of  

valuing the centuries’ old struggle of social reformers and revolutionaries. It is a  

move by the Constitution makers to find catharsis in the face of historic horrors.  

It is an attempt to make reparations to those, whose identity was subjugated by  

society. Article 17 is a revolt against social norms, which subjugated individuals  

into stigmatised hierarchies. By abolishing “untouchability”, Article 17 protects  

them from a repetition of history in a free nation. The background of Article 17  

                                                           94 Ibid, at page 88

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105    

thus lies in protecting the dignity of those who have been victims of  

discrimination, prejudice and social exclusion.   

Article 17 must be construed from the perspective of its position as a powerful  

guarantee to preserve human dignity and against the stigmatization and  

exclusion of individuals and groups on the basis of social hierarchism. Article 17  

and Articles 15(2) and 23, provide the supporting foundation for the arc of social  

justice. Locating the basis of Article 17 in the protection of dignity and preventing  

stigmatization and social exclusion, would perhaps be the apt answer to  

Professor KT Shah’s unanswered queries. The Constitution has designedly left  

untouchability undefined. Any form of stigmatization which leads to social  

exclusion is violative of human dignity and would constitute a form of  

“untouchability”. The Drafting Committee did not restrict the scope of Article 17.  

The prohibition of “untouchability”, as part of the process of protecting dignity  

and preventing stigmatization and exclusion, is the broader notion, which this  

Court seeks to adopt, as underlying the framework of these articles.  

76 The practice of “untouchability”, as pointed out by the members of the  

Constituent Assembly, is a symptom of the caste system. The root cause of  

“untouchability” is the caste system.95 The caste system represents a  

                                                           95 In his paper on “Castes in India: Their Mechanism, Genesis and Development” (1916) presented at the Columbia  

University, Dr Ambedkar wrote: “The caste problem is a vast one, both theoretically and practically. Practically,  it is an institution that portends tremendous consequences. It is a local problem, but one capable of much wider  mischief, for as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with  outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem”. See Dr.  Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014),  at pages 5-6

PART I     

106    

hierarchical order of purity and pollution enforced by social compulsion. Purity  

and pollution constitute the core of caste. While the top of the caste pyramid is  

considered pure and enjoys entitlements, the bottom is considered polluted and  

has no entitlements. Ideas of “purity and pollution” are used to justify this  

distinction which is self-perpetuality. The upper castes perform rituals that, they  

believe, assert and maintain their purity over lower castes. Rules of purity and  

pollution are used to reinforce caste hierarchies.96 The notion of “purity and  

pollution” influences who people associate with, and how they treat and are  

treated by other people. Dr Ambedkar’s rejection of privileges associated with  

caste, in “Annihilation of Caste”97, is hence a battle for human dignity. Dr  

Ambedkar perceived the caste system to be violative of individual dignity.98 In  

his last address to the Constituent Assembly, he stated that the caste system is  

contrary to the country’s unity and integrity, and described it as bringing  

“separation in social life”.99 Individual dignity cannot be based on the notions of  

purity and pollution. “Untouchability” against lower castes was based on these  

notions, and violated their dignity. It is for this reason that Article 17 abolishes  

“untouchability”, which arises out of caste hierarchies. Article 17 strikes at the  

foundation of the notions about “purity and pollution”.  

                                                           96 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted Development and the Costs of  

Caste, Harper Collins (2017), at pages 74-79  97 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1  

(2014), at pages 23-96  98 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 12  

(2014), at pages 661-691.  99 Constituent Assembly Debates (25 November 1949)

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107    

77 Notions of “purity and pollution”, entrenched in the caste system, still  

continue to dominate society. Though the Constitution abolished untouchability  

and other forms of social oppression for the marginalised and for the Dalits, the  

quest for dignity is yet a daily struggle. The conditions that reproduce  

“untouchability” are still in existence. Though the Constitution guarantees to  

every human being dignity as inalienable to existence, the indignity and social  

prejudices which Dalits face continue to haunt their lives. Seventy years after  

independence, a section of Dalits has been forced to continue with the indignity  

of manual scavenging. In a recent work, “Ants Among Elephants: An  

Untouchable Family and the Making of Modern India”, Sujatha Gidla describes  

the indignified life of a manual scavenger:  

“As their brooms wear down, they have to bend their backs  

lower and lower to sweep. When their baskets start to leak, the  

[human] shit drips down their faces. In the rainy season, the  

filth runs all over these people, onto their hair, their noses, their  

moths. Tuberculosis and infectious diseases are endemic  

among them.”100  

The demeaning life of manual scavengers is narrated by Diane Coffey and Dean  

Spears in “Where India Goes: Abandoned Toilets, Stunted Development and  

the Costs of Caste”101. The social reality of India is that manual scavenging  

castes face a two-fold discrimination- one, by society, and other, within the  

Dalits:   

                                                           100 Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making of Modern India, Harper Collins  

(2017), at page 114  101 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted Development and the Costs of  

Caste, Harper Collins (2017), at pages 74-79

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108    

“[M]anual scavengers are considered the lowest-ranking  

among the Dalit castes. The discrimination they face is  

generally even worse than that which Dalits from non-

scavenging castes face.”102   

Manual scavengers have been the worst victims of the system of “purity and  

pollution”. Article 17 was a promise to lower castes that they will be free from  

social oppression. Yet for the marginalized communities, little has changed. The  

list of the daily atrocities committed against Dalits is endless. Dalits are being  

killed for growing a moustache, daring to watch upper-caste folk dances,  

allegedly for owning and riding a horse and for all kinds of defiance of a social  

order that deprives them of essential humanity.103 The Dalits and other  

oppressed sections of society have been waiting long years to see the quest for  

dignity fulfilled. Security from oppression and an opportunity to lead a dignified  

life is an issue of existence for Dalits and the other marginalized. Post-

independence, Parliament enacted legislations104 to undo the injustice done to  

oppressed social groups. Yet the poor implementation105 of law results in a  

continued denial which the law attempted to remedy.  

78 Article 17 is a social revolutionary provision. It has certain features. The  

first is that the Article abolishes “untouchability”. In abolishing it, the Constitution  

strikes at the root of the institution of untouchability. The abolition of  

                                                           102 Ibid, at page 78  103 Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017), available at   

https://www.outlookindia.com/magazine/story/death-for-moustache/299405  104 Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989; Prohibition of Manual Scavenging  

Act, 2013  105 As observed in National Campaign for Dalit Human Rights v. Union of India, (2017) 2 SCC 432

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109    

untouchability can only be fulfilled by dealing with notions which it  

encompasses. Notions of “purity and pollution” have been its sustaining force.  

In abolishing “untouchability”, the Constitution attempts a dynamic shift in the  

social orderings upon which prejudice and discrimination were institutionalized.  

The first feature is a moral re-affirmation of human dignity and of a society  

governed by equal entitlements.  The second important feature of Article 17 is  

that the practice of “untouchability” is forbidden.  The practice is an emanation  

of the institution which sustains it. The abolition of the practice as a  

manifestation is a consequence of the abolition of the institution of  

“untouchability”.  The third significant feature is that the practice of  

untouchability” is forbidden “in any form”. The “in any form” prescription has a  

profound significance in indicating the nature and width of the prohibition. Every  

manifestation of untouchability without exception lies within the fold of the  

prohibition.  The fourth feature of Article 17 is that the enforcement of disabilities  

founded upon “untouchability” shall constitute an offence punishable in  

accordance with law. The long arms of the criminal law will lend teeth to the  

enforcement of the prohibition.   

79 The Constitution has carefully eschewed a definition of “untouchability”.  

The draftspersons realized that even a broadly couched definition may be  

restrictive. A definition would become restrictive if the words used or the  

instances depicted are not adequate to cover the manifold complexities of our  

social life through which prejudice and discrimination is manifest. Hence, even

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110    

though the attention of the framers was drawn to the fact that “untouchability” is  

not a practice referable only to the lowest in the caste ordering  but also was  

practiced against women (and in the absence of a definition, the prohibition  

would cover all its forms), the expression was designedly left undefined.  The  

Constitution uses the expression “untouchability” in inverted comas. The use of  

a punctuation mark cannot be construed as intent to circumscribe the  

constitutional width of the expression. The historical backdrop to the inclusion  

of the provision was provided by centuries of subjugation, discrimination and  

social exclusion. Article 17 is an intrinsic part of the social transformation which  

the Constitution seeks to achieve.  Hence in construing it, the language of the  

Constitution should not be ascribed a curtailed meaning which will obliterate its  

true purpose. “Untouchability” in any form is forbidden.  The operation of the  

words used by the Constitution cannot be confined to a particular form or  

manifestation of “untouchability”. The Constitution as a constantly evolving  

instrument has to be flexible to reach out to injustice based on untouchability, in  

any of its forms or manifestations. Article 17 is a powerful guarantee against  

exclusion. As an expression of the anti-exclusion principle, it cannot be read to  

exclude women against whom social exclusion of the worst kind has been  

practiced and legitimized on notions of purity and pollution.  

80 The provisions of Article 17 have been adverted to in judicial decisions.  

In Devarajiah v B Padmanna106, a learned single judge of the Mysore High  

                                                           106 AIR 1958 Mys 84

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111    

Court observed that the absence of a definition of the expression “untouchability  

in the Constitution and the use of inverted commas indicated that “the subject-

matter of that Article is not untouchability in its literal or grammatical sense but  

the practice as it had developed historically in this country”. The learned single  

judge held :   

“18.Comprehensive as the word ‘untouchables’ in the Act is  

intended to be, it can only refer to those regarded as  

untouchables in the course of historical development. A literal  

construction of the term would include persons who are treated  

as untouchables either temporarily or otherwise for various  

reasons, such as their suffering from an epidemic or contagious  

disease or on account of social observances such as are  

associated with birth or death or on account of social boycott  

resulting from caste or other disputes.”107  

In Jai Singh v Union of India108, a Full Bench of the Rajasthan High Court  

followed the decision of the Mysore High Court in Devarajiah while upholding  

the constitutional validity of the Scheduled Castes and Scheduled  

Tribes (Prevention of Atrocities) Act 1989.  

In State of Karnataka v Appa Balu Ingale109, a two judge Bench of this Court  

traced the origins of untouchability. The court held that “untouchability is an  

indirect form of slavery and only an extension of caste system”. The court held:  

“36. The thrust of Article 17 and the Act is to liberate the society  

from blind and ritualistic adherence and traditional beliefs which  

lost all legal or moral base. It seeks to establish a new ideal for  

society – equality to the Dalits, on a par with general public,  

absence of disabilities, restrictions or prohibitions on grounds  

                                                           107 Ibid, at page 85  108 AIR 1993 Raj 177  109 1995 Supp (4) SCC 469

PART I     

112    

of caste or religion, availability of opportunities and a sense of  

being a participant in the mainstream of national life.”110       

In a more recent decision in Adi Saiva Sivachariyargal Nala Sangam v   

Government of Tamil Nadu111, a two judge Bench construed Article 17 in the  

context of exclusionary caste based practices:   

“47. The issue of untouchability raised on the anvil of Article 17  

of the Constitution stands at the extreme opposite end of the  

pendulum. Article 17 of the Constitution strikes at caste-based  

practices built on superstitions and beliefs that have no  

rationale or logic…”      

While these judgments focus on “untouchability” arising out of caste based  

practices, it is important to note that the provisions of Article 17 were enforced  

by means of the Protection of Civil Rights Act 1955 [earlier known as the  

Untouchability (Offences) Act]. Clauses (a) and (b) of Section 3 penalise the act  

of preventing any person from entering a place of public worship and from  

worshiping or offering prayers in such a place. Section 3 reads thus:    

“Section 3 - Punishment for enforcing religious disabilities:  

Whoever on the ground of "untouchability" prevents any  

person—  

(a) from entering any place of public worship which is open  

to other persons professing the same religion of any  

section thereof, as such person; or   

(b) from worshipping or offering prayers or performing any  

religious service in any place of public worship, or bathing  

in, or using the waters of, any sacred tank, well, spring or water-

course [river or lake or bathing at any ghat of such tank, water-

course, river or lake] in the same manner and to the same  

                                                           110 Ibid, at page 486  111 (2016) 2 SCC 725

PART I     

113    

extent as is permissible to the other persons professing  

the same religion or any section thereof, as such person,   

[shall be punishable with imprisonment for a term of not less  

than one month and not more than six months and also with  

fine which shall be not less than one hundred rupees and not  

more than five hundred rupees].   

Explanation: For the purposes of this section and section 4  

persons professing the Buddhist, Sikh or Jaina religion or  

persons professing the Hindu religion in any of its forms or  

developments including Virashaivas, Lingayats, Adivasis,  

followers of Brahmo, Prarthana, Arya Samaj and the  

Swaminarayan Sampraday shall be deemed to be Hindus.”  

(Emphasis supplied)          

Section 4 contains a punishment for enforcing social disability:  

“Section 4 - Punishment for enforcing social disabilities:  

Whoever on the ground of "untouchability" enforces against  

any person any disability with regard to—  

(v) the use of, or access to, any place used for a charitable or  

a public purpose maintained wholly or partly out of State funds  

or dedicated to the use of the general public or [any  

section thereof]; or  

(x) the observance of any social or religious custom, usage or  

ceremony or [taking part in, or taking out, any religious,  

social or cultural procession]; or  

[Explanation.--For the purposes of this section, "enforcement  

of any disability" includes any discrimination on the ground of  

“untouchability”.].”  

(Emphasis supplied)          

Section 7 provides for punishment for other offences arising out of  

untouchability. Section 7(1)(c) criminalises the encouragement and incitement  

to the practice of untouchability in “any form whatsoever”. Explanation II  

stipulates that:

PART I     

114    

“[Explanation II.--For the purpose of clause (c) a person shall  

be deemed to incite or encourage the practice of  

“untouchability”—  

(i) if he, directly or indirectly, preaches "untouchability" or  

its practice in any form; or   

(ii) if he justifies, whether on historical, philosophical  

or religious grounds or on the ground of any  

tradition of the caste system or on any other  

ground, the practice of "untouchability" in any  

form.]”                             

(Emphasis supplied)   

“Untouchability” as such is not defined. Hence, a reference to “untouchability”  

must be construed in the context of the provisions of the Civil Rights Act to  

include social exclusions based on notions of “purity and pollution”. In the  

context of political freedom, Articles 14, 19 and 21 represent as it were, a golden  

triangle of liberty. On a different plane, in facing up to the struggle against  

exclusion or discrimination in public places of worship, Articles 15(2)(b), 17 and  

25(2)(b) constitute the foundation. The guarantee against social exclusion  

based on notions of “purity and pollution” is an acknowledgment of the  

inalienable dignity of every individual. Dignity as a facet of Article 21 is firmly  

entrenched after the decision of nine Judges in K S Puttaswamy v Union of  

India (“Puttaswamy”)112.   

81 The caste system has been powered by specific forms of subjugation of  

women.113 The notion of “purity and pollution” stigmatizes the menstruation of  

                                                           112 (2017) 10 SCC 1  113 In his 1916 paper, “Castes in India: Their Mechanism, Genesis and Development”, Dr Ambedkar speaks about  the practice of subjugating and humiliating women for the purpose of reinforcement of the caste system. He  advances that women have been used as a medium to perpetuate caste system by citing the specific examples of  Sati (the practice of burning of the widow on the funeral pyre of her deceased husband), enforced widowhood by

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115    

women in Indian society. In the ancient religious texts114 and customs,  

menstruating women have been considered as polluting the surroundings.  

Irrespective of the status of a woman, menstruation has been equated with  

impurity, and the idea of impurity is then used to justify their exclusion from key  

social activities.   

Our society is governed by the Constitution. The values of constitutional morality  

are a non-derogable entitlement. Notions of “purity and pollution”, which  

stigmatize individuals, can have no place in a constitutional regime. Regarding  

menstruation as polluting or impure, and worse still, imposing exclusionary  

disabilities on the basis of menstrual status, is against the dignity of women  

which is guaranteed by the Constitution. Practices which legitimise menstrual  

taboos, due to notions of “purity and pollution”, limit the ability of menstruating  

women to attain the freedom of movement, the right to education and the right  

of entry to places of worship and, eventually, their access to the public sphere.  

Women have a right to control their own bodies. The menstrual status of a  

woman is an attribute of her privacy and person. Women have a constitutional  

entitlement that their biological processes must be free from social and religious  

practices, which enforce segregation and exclusion. These practices result in  

humiliation and a violation of dignity. Article 17 prohibits the practice of  

                                                           which a widow is not allowed to remarry, and pre-pubertal marriage of girls. He believed that the caste-gender  nexus was the main culprit behind the oppression of the lower castes and women and that it had to be uprooted.  See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra (2014),  Vol. 1, at pages 3-22  114 Manusmriti

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116    

“untouchability”, which is based on notions of purity and impurity, “in any form”.  

Article 17 certainly applies to untouchability practices in relation to lower castes,  

but it will also apply to the systemic humiliation, exclusion and subjugation faced  

by women. Prejudice against women based on notions of impurity and pollution  

associated with menstruation is a symbol of exclusion. The social exclusion of  

women, based on menstrual status, is but a form of untouchability which is an  

anathema to constitutional values. As an expression of the anti-exclusion  

principle, Article 17 cannot be read to exclude women against whom social  

exclusion of the worst kind has been practiced and legitimized on notions of  

purity and pollution. Article 17 cannot be read in a restricted manner. But even  

if Article 17 were to be read to reflect a particular form of untouchability, that  

article will not exhaust the guarantee against other forms of social exclusion.  

The guarantee against social exclusion would emanate from other provisions of  

Part III, including Articles 15(2) and 21. Exclusion of women between the age  

groups of ten and fifty, based on their menstrual status, from entering the temple  

in Sabarimala can have no place in a constitutional order founded on liberty and  

dignity.  

82 The issue for entry in a temple is not so much about the right of  

menstruating women to practice their right to freedom of religion, as about  

freedom from societal oppression, which comes from a stigmatized  

understanding of menstruation, resulting in “untouchability”. Article 25, which is  

subject to Part III provisions, is necessarily therefore subject to  Article  17.  To

PART J     

117    

use the ideology of “purity and pollution” is a violation of the constitutional right  

against “untouchability”.  

J The ultra vires doctrine  

83 Section 2 of the Kerala Hindu Places of Public Worship (Authorisation of  

Entry) Act 1965 provides thus:  

“2. Definitions – In this Act, unless the context otherwise  

requires,-   

(a) “Hindu” includes a person professing the Buddhist, Sikh or  

Jaina religion;   

(b) “place of public worship” means a place, by whatever name  

known or to whomsoever belonging, which is dedicated to, or  

for the benefit of, or is used generally by, Hindus or any section  

or class thereof, for the performance of any religious service or  

for offering prayers therein, and includes all lands and  

subsidiary shrines, mutts, devasthanams, namaskara  

mandapams and nalambalams, appurtenant or attached to any  

such place, and also any sacred tanks, wells, springs and water  

courses the waters of which are worshipped or are used for  

bathing or for worship, but does not include a “sreekoil”;   

(c) “section or class” includes any division, sub-division, caste,  

sub-caste, sect or denomination whatsoever.”  

Section 2(c) provides an inclusive definition of the expression “section or class”.  

As a principle of statutory interpretation, the term “includes” is used to expand  

the scope of the words or phrases which accompany. When “includes” is  

employed in a definition clause, the expression must be given a broad  

interpretation to give effect to the legislative intent. “Includes” indicates that the  

definition must not be restricted.

PART J     

118    

84 In Ardeshir H Bhiwandiwala v State of Bombay,115 a Constitution  

Bench of this Court considered whether the Petitioner’s salt works could be  

included within the definition of ‘factory’ in Section 2(m) of the Factories Act,  

1948. Section 2(m) defines ‘factory’ as “any premises including the precincts  

thereof”. This Court rejected the appellant’s claim that the salt works could not  

have precincts, being open lands and not premises:  

“6.The expression “premises including precincts” does not  

necessarily mean that the premises must always have  

precincts. Even buildings need not have any precincts. The  

word “including” is not a term restricting the meaning of  

the word “premises” but is a term which enlarges the  

scope of the word “premises”. We are therefore of opinion  

that even this contention is not sound and does not lead to the  

only conclusion that the word “premises” must be restricted to  

mean buildings and be not taken to cover open land as well.”  

(Emphasis supplied)  

In CIT v Taj Mahal Hotel, Secunderabad116 a two judge Bench of this Court  

considered whether sanitary and pipeline fittings would fall within the definition  

of ‘plant’ under Section 10(5) of the Income Tax Act, 1922. Section 10(5) of the  

Act provided inter alia that in Section 10(2) the word “plant” includes “vehicles,  

books, scientific apparatus and surgical equipment purchased for the purpose  

of the business, profession or vocation”. While answering the above question in  

the affirmative, this Court held that:   

“6.The word “includes” is often used in interpretation  

clauses in order to enlarge the meaning of the words or  

phrases occurring in the body of the statute. When it is so  

used, those words and phrases must be construed as  

comprehending not only such things as they signify according  

                                                           115 (1961) 3 SCR 592  116 (1971) 3 SCC 550

PART J     

119    

to their nature and import but also those things which the  

interpretation clause declares that they shall include.”117  

(Emphasis supplied)  

In Geeta Enterprises v State of U P,118 a three judge Bench of this Court  

considered whether Section 2(3) of the United Provinces Entertainment and  

Betting Tax Act, 1937 which provided that “entertainment includes any  

exhibitional performance, amusement, game or sport to which persons are  

admitted for payment”, would include video shows which were being played on  

video machines at the premises of the Petitioner. Affirming the above position,  

this Court cited with approval, the following interpretation of the word “includes”  

by the Allahabad High Court in Gopal Krishna Agrawal v State of U P119:   

“The context in which the word ‘includes’ has been used in the  

definition clauses of the Act does not indicate that the  

legislature intended to put a restriction or a limitation on words  

like ‘entertainment’ or ‘admission to an entertainment’ or  

‘payment for admission’.”  

The same view was expressed by a three judge Bench in Regional Director,  

ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons120.   

85 The use of the term ‘includes’ in Section 2(c) indicates that the scope of  

the words ‘section or class’ cannot be confined only to ‘division’, ‘sub-division’,  

‘caste’, ‘sub-caste’, ‘sect’ or ‘denomination’. ‘Section or class’, would be  

                                                           117 Ibid, at pages 552-553  118 (1983) 4 SCC 202  119 (1982) All. L.J. 607  120 (1991) 3 SCC 617

PART J     

120    

susceptible to a broad interpretation that includes ‘women’ within its ambit.  

Section 2(b) uses the expression “Hindus or any section or class thereof”.  

Plainly, individuals who profess and practise the faith are Hindus. Moreover,  

every section or class of Hindus is comprehended within the expression. That  

must necessarily include women who profess and practise the Hindu religion.  

The wide ambit of the expression “section or class” emerges from Section 2(c).  

Apart from the inclusive definition, the expression includes any division, sub-

division, caste, sub-caste, sect or denomination whatsoever. Women constitute  

a section or class. The expression ‘section or class’ must receive the meaning  

which is ascribed to it in common parlance. Hence, looked at from any  

perspective, women would be comprehended within that expression.   

The long title of the Act indicates that its object is “to make better provisions for  

the entry of all classes and sections of Hindus into places of public worship”.  

The long title is a part of the Act and is a permissible aid to construction.121 The  

Act was enacted to remedy the restriction on the right of entry of all Hindus in  

temples and their right to worship in them. The legislation is aimed at bringing  

about social reform. The legislature endeavoured to strike at the heart of the  

social evil of exclusion and sought to give another layer of recognition and  

protection to the fundamental right of every person to freely profess, practice  

and propagate religion under Article 25. Inclusion of women in the definition of  

‘section and class’ in Section 2(c) furthers the object of the law, and recognizes  

                                                           121 Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139

PART J     

121    

the right of every Hindu to enter and worship in a temple. It is an attempt to  

pierce through imaginary social constructs formed around the practice of  

worship, whose ultimate effect is exclusion. A just and proper construction of  

Section 2(c) requires that women be included within the definition of ‘section or  

class’.  

86 The notifications dated 21 October 1955 and 27 November 1956 were  

issued by the Travancore Devaswom Board before the 1965 Act was enacted.  

The notifications were issued by the Board under Section 31 of the Travancore-

Cochin Hindu Religious Institutions Act 1950 (“1950 Act”). Section 31 of the  

1950 Act reads:   

“Management of Devaswoms.- Subject to the provisions of this  

Part and the rules made thereunder the Board shall manage  

the properties and affairs of the Devaswoms, both incorporated  

and unincorporated, as heretofore, and arrange for the conduct  

of the daily worship and ceremonies and of the festivals in  

every temple according to its usage.”  

Both the notifications dated 21 October 1955 and 27 November 1956 have the  

same effect, which is the total prohibition on the entry of women between the  

ages of ten and fifty into the Sabarimala temple. According to the notifications,  

the entry of women between the ages of ten and fifty is in contravention of the  

customs and practice of the temple.   

Section 3 throws open places of public worship to all sections and classes of  

Hindus:

PART J     

122    

“3. Places of public worship to be open to all sections and  

classes of Hindus –   

Notwithstanding anything to the contrary contained in any  

other law for the time being in force or any custom or  

usage or any instrument having effect by virtue of any  

such law or any decree or order of court, every place of public  

worship which is open to Hindus generally or to any section or  

class thereof, shall be open to all sections and classes of  

Hindus; and no Hindu of whatsoever section or class shall, in  

any manner, be prevented, obstructed or discouraged from  

entering such place of public worship, or from worshipping or  

offering prayers thereat, or performing any religious service  

therein, in the like manner and to the like extent as any other  

Hindu of whatsoever section or class may so enter, worship,  

pray or perform:   

Provided that in the case of a place of public worship which is  

a temple founded for the benefit of any religious denomination  

or section thereof, the provisions of this section shall be subject  

to the right of that religious denomination or section, as the  

case may be, to manage its own affairs in matters of religion.”  

(Emphasis supplied)  

Section 3 begins with a non-obstante clause, which overrides any custom or  

usage or any instrument having effect by virtue of any such law. Every place of  

public worship, which is open to Hindus or to any section or class of Hindus  

generally, shall be open to all sections and classes of Hindus. No Hindu of any  

section or class whatsoever, shall be prevented, obstructed or discouraged from  

entering a place of public worship or from worshipping or offering prayers or  

performing any religious service in that place of public worship. Hence, all  

places of public worship which are open to Hindus or to any section or class of  

Hindus generally have to be open to all sections and classes of Hindus  

(including women). Hindu women constitute a ‘section or class’ under Section  

2(c).

PART J     

123    

The proviso to Section 3 creates an exception by providing that if the place of  

public worship is a temple which is founded for the benefit of any religious  

denomination or section thereof, Section 3 would be subject to the right of that  

religious denomination or section to manage its own affairs in matters of religion.  

The proviso recognises the entitlement of a religious denomination to manage  

its own affairs in matters of religion. However, the proviso is attracted only if the  

following conditions are satisfied:  

(i) The place of public worship is a temple; and  

(ii) The temple has been founded for the benefit of any religious denomination  

or section thereof.  

87 We have held that the devotees of Lord Ayyappa do not constitute a  

religious denomination and the Sabarimala temple is not a denominational  

temple. The proviso has no application. The notifications which restrict the entry  

of women between the ages of ten and fifty in the Sabarimala temple cannot  

stand scrutiny and plainly infringe Section 3. They prevent any woman between  

the age of ten and fifty from entering the Sabarimala temple and from offering  

prayers. Such a restriction would infringe the rights of all Hindu women which  

are recognized by Section 3. The notifications issued by the Board prohibiting  

the entry of women between ages ten and fifty-five, are ultra vires Section 3.  

PART J     

124    

88 The next question is whether Rule 3(b) of the 1965 Rules is ultra vires the  

1965 Act. Rule 3 provides:   

“The classes of persons mentioned here under shall not be  

entitled to offer worship in any place of public worship or bathe  

in or use the water of any sacred tank, well, spring or water  

course appurtenant to a place of public worship whether situate  

within or outside precincts thereof, or any sacred place  

including a hill or hill lock, or a road, street or pathways which  

is requisite for obtaining access to the place of public worship-   

(a) Persons who are not Hindus.  

(b) Women at such time during which they are not by  

custom and usage allowed to enter a place of public  

worship.  

(c) Persons under pollution arising out of birth or death in their  

families.   

(d) Drunken or disorderly persons.   

(e) Persons suffering from any loathsome or contagious  

disease.   

(f) Persons of unsound mind except when taken for worship  

under proper control and with the permission of the executive  

authority of the place of public worship concerned.   

(g) Professional beggars when their entry is solely for the  

purpose of begging.”                                                                                        

(Emphasis supplied)  

By Rule 3(b), women are not allowed to offer worship in any place of public  

worship including a hill, hillock or a road leading to a place of public worship or  

entry into places of public worship at such time, if they are, by custom or usage  

not allowed to enter such place of public worship.   

Section 4 provides thus:  

“4. Power to make regulations for the maintenance of order and  

decorum and the due performance of rites and ceremonies in  

places of public worship –   

PART J     

125    

(1) The trustee or any other person in charge of any place of  

public worship shall have power, subject to the control of the  

competent authority and any rules which may be made by that  

authority, to make regulations for the maintenance of order and  

decorum in the place of public worship and the due observance  

of the religious rites and ceremonies performed therein:   

Provided that no regulation made under this sub-section shall  

discriminate in any manner whatsoever, against any Hindu on  

the ground that he belongs to a particular section or class.   

(2) The competent authority referred to in sub-section (1) shall  

be,-   

(i) In relation to a place of public worship situated in any area  

to which Part I of the Travancore-Cochin Hindu Religious  

Institutions Act, 1950 (Travancore-Cochin Act XV of 1950),  

extends, the Travancore Devaswom Board;   

(ii) in relation to a place of public worship situated in any area  

to which Part II of the said Act extends, the Cochin Devaswom  

Board; and   

(iii) in relation to a place of public worship situated in any other  

area in the State of Kerala, the Government.”