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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 & Ors.    …Petitioner(s)

Versus

State of Kerala & Ors.     …Respondent(s)

J U D G M E N T  

Dipak Misra, CJI.

In this public interest litigation preferred under Article 32 of

the Constitution of India the petitioners have prayed for issue of

appropriate  writ  or  direction  commanding  the  Government  of

Kerala,  Dewaswom  Board  of  Travancore,  Chief  Thanthri  of

Sabarimala Temple and the District Magistrate of Pathanamthitta

and their officers to ensure entry of female devotees between the

age group of 10 to 50 at the Lord Ayappa 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 powers conferred

by  Section  4  of  the  Kerala  Hindu  Places  of  Public  Worship

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(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

safety  of  women pilgrims.  That  apart,  a  prayer  has  also  been

made for laying guidelines in matters of general inequality related

to religious practices in places of worship.

2. The preamble to 1965 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 is the

dictionary clause. It reads as follows:-

“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  ands 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”;

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

3. Section 3 that provides for places of public worship to be

open to all sections and classes of Hindus reads thus:-

“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  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 case may be, to manage its own affairs in matters of religion.”

4. Section 4 deals with the power to make regulations.  The

said provision being significant is reproduced below:-

“Section 4. Power to make regulations for the maintenance of order and decorum and the due

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performance of rites and ceremonies in places of public worship:-  (1)  The trustee or any other person in charge of  any place or 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 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  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.”  

5. The State of  Kerala in exercise of  power under Section 4

framed the 1965 Rules. Rule 3 of the 1965 Rules is extracted

hereunder:-

“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

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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]  

6. It is contended in the Writ Petition that the Division Bench

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

Travancore Devaswom Board, Thiruvananthpuram and Ors1

has upheld the practice of banning the entry of 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

1 AIR 1993 Kerala 42

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temple and from offering worship at Sabarimala Shrine during

any period of the year.  It is worthy to note here that a public

interest litigation was entertained by the High Court on the basis

of a petition sent by one S. Mahendran which was converted into

a  Writ  Petition  and  treated  as  a  public  interest  litigation.   It

complained  that  the  young  women  are  not  allowed  to  offer

prayers  at  the  Sabarimala  Shrine  which  was  contrary  to  the

customs and usage followed in the temple.  The Chief Secretary

of  the State  of  Kerala filed a counter affidavit  before the High

Court. The High Court has summarized the said affidavit which

is to the following effect:-

“10. The  Chief  Secretary  of  Kerala  filed  a counter-affidavit  on  behalf  of  3rd respondent.  In that  affidavit  it  is  stated  that  the  Tavancore Devaswom Board has to manage and arrange for the conduct of daily worship and ceremonies and festivals in every temple according to its usage as per the provision contained in Section 31 of  the Travancore-Cochin  Hindu  Religious  Institutions Act. The Board is entrusted with administration as well  as  making  of  rules.  Regarding  the  entry  in temples, necessary provision has been made in the Travancore-Cochin  Temple  (Removal  of Disabilities) Act and by Act 7 of 1965. Every Hindu shall  be  entitled  to  enter  a  temple  and  offer worship there by virtus of  Section 3 of  that Act. The Travancore Devaswom Board had framed rules before the enactment of Act 7/1965 under Section 9  of  the  Temple  Entry  Act.  Rule  6(c)  framed thereunder  relates  to  entry  of  women.  The

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restriction  is  for  entry  of  women  at  such  times during which they are not by custom and usage allowed  to  enter  temples.  The  Board  issues notifications every year informing the public about the  prohibition  regarding  entry  of  women of  the age group of  10 to 50 in the Sabarimala temple and  Pathinattampadi  during  Mandalam, Makaravilakku  festival  and  Vishu.  Third respondent  further  contends  that  the  complaint voiced by  the  petitioner  is  not  one  maintainable under Article 226 of the Constitution of India and seeks dismissal of the petition.”

7. The High Court posed the following questions:-

“(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?”

8. We need not refer to the reasoning and the analysis made

by the High Court, for what we are going to say at a later stage.

After devoting some space, the High Court held 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

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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 a Naisthik Bramchari. 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:-

“43.  … 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  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 prayers there at any time of the year.”

9. The  conclusions  summed up by  the  High  Court  read  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

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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.”

10. It issued the following directions:-

“45. 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.”

11. When  this  matter  was  listed,  we  requested  Mr.  Raju

Ramachandran and Mr. K. Ramamoorthy, learned senior counsel

to assist the Court as amici curiae.

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12. We  have  heard  Mr.  Raju  Ramachandran  and  Mr.  K.

Ramamoorthy,  learned  amici  curiae,  Mr.  R.P.  Gupta,  learned

counsel  for  the  petitioners,  Mr.  Jaideep Gupta,  learned senior

counsel  for  the  State  of  Kerala,  Mr.  K.K.  Venugopal,  Mr.  K.

Radhakrishnan and Ms. Indira Jaising, learned senior counsel

and  Mr.  V.K.  Biju,  learned  counsel  for  the  respondents

/intervenors. Be it clarified, the matter was heard solely for the

purpose of considering whether the matter should be referred to

a larger Bench or not.  After the matter was reserved, learned

counsel  for  the  parties  have  filed  their  written  notes  of

submissions.

13. Before we refer to the legal issues, it is interesting to note

that  an  affidavit  was  filed  by  the  first  respondent  –  State  of

Kerala  through  Joint  Secretary,  Government  Secretariat,

Thiruvananthapuram on  13.11.2007  asserting,  inter  alia,  that

the Government is not against any sort of discrimination towards

women.  An additional affidavit was filed on 05.02.2016 stating

that an erroneous stand was taken in the earlier affidavit dated

13.11.2007.   The  subsequent  affidavit  states  that  the  said

affidavit  could  not  have  gone  contrary  to  the  High  Court

judgment and a stand in variance to the stand taken before the

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High Court could not have been taken.  In the earlier affidavit,

the  State  had  supported the  petitioners  but  in  the  additional

affidavit, it has been asserted :-

“12. It is submitted that lakhs of women devotees visit  Sabarimala  every  year.   However  the restriction of women between the age of 10  and 50 has  been  prevailing  in  Sabrarimala  from  time immemorial.   This is in keeping with the unique “pratishta sangalp” or idol concept of the temple. The same is an essential and integral part of the right of practice or religion of a devotee and comes under  protective  guarantee  of  the  Constitution under article 25 and 26 which has been held to contain  a  guarantee  for  rituals,  observances, ceremonies  and modes of  worship  which are  an essential  or  integral  part  of  religion.   It  is  then immune  from  challenge  under  Article  14.   This Hon’ble Court in  Ritu Prasad Sharma v. State of Assam,  (2015) 9 SCC 461 held that religious customs which are protected under Articles 25 and 26  are  immune  from  challenge  under  other provisions of Part III of the Constitution.”

14. It is further asserted in the latter affidavit that:

“14. It  is  submitted  that  the  Petitioners  have challenged the constitutionality of Rule 3(b) of the Kerala  Hindu  Places  of  Public  Worship (Authorisaton  of  Entry)  Rules,  1965  which provides that  women at such time during which they are not by custom and usage allowed to enter a place of public worship shall be included in the class of persons who shall not be entitled to offer worship in any place of worship.  It is submitted that said Rule  only reflects the guarantee under Articles  25  and  26(b)  where  rituals,  ceremonies and  modes  of  worship  which  are  exclusively matters  of  religion  are  excluded  from  the legislation under Article 25(2)(b).”

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15. After referring to Rule 3, the asseveration of the State is:

“It is clear that it is only customs and usages of temples  and  rules  required  to  maintain  order, decorum  and  safety  of  the  temple  which  are protected by these rules and such exclusions are not on the basis of caste, birth, pedigree or sex but based on the beliefs,  customs and usages of  the temple.   As  far  as  Sabarimala  is  concerned, restriction of entry to persons who are not Hindus is  not  applicable  and  devotees  of  all  religions worship at Sabarimala.”

16. Mr. R.P. Gupta, learned counsel for the petitioners submits

that there is no religious custom or usage in the Hindu religion

specially  in  Pampa  river  region  to  disallow  women  during

menstrual period.  According to him, banning entry of  women

would be against the basic tenets of  Hindu religion.  It  is his

assertion in the written note that Sabarimala Temple is not a

separate  religious  denomination  because  (i)  the  religious

practices performed in Sabarimala Temple at the time of 'Puja'

and other religious ceremonies are not distinct and are akin to

any other practice performed in any Hindu Temple;  (ii) that it

does  not  have  its  separate  administration but  is  regulated by

statutory  Board  constituted  under  Travancore-Cochin  Hindu

Religious  Institutions  Act,  1950;  (iii)  that  it  is  getting  State

funding  out  of  Consolidated  Fund  under  Article  290-A  of  the

Constitution;  (iv)  that  there  is  no  particular  follower  of  this

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temple except general Hindu followers visiting any temple; and (v)

that mere attraction of some people for  some temple does not

make it a separate and distinct religious denomination.  Learned

counsel referring to the decision in  The Commissioner, Hindu

Religious  Endowments,  Madras  v.  Shri  Lakhshmindra

Thirtha Swamiar  of  Sri  Shirur  Mutt2  would  contend  that

what is protected under Article 26(b) is only the ‘essential part’ of

religion.  Relying  on  Durgah  Committee,  Ajmer  v.  Syed

Hussain Ali3, it is urged by him that clauses (c) and (d) of Article

26  do  not  create  any  new  right  in  favour  of  religious

denomination but only safeguards their rights. Learned counsel

contends that  in the  matters  of  managing religious affairs,  all

practices are not always sacrosanct, for there may be many ill

practices like superstitions which in due course of time may be

merely  accretions  to  the  basic  theme  of  that  religious

denomination.  It is put forth by him that entry to the temple is

not  essential  to  religion  and  there  is  difference  between

“regulation of entry” and “complete prohibition of entry”. Placing

reliance  on  Sri  Venkatramana  Devaru  &  Ors.  v.  State  of

2 1954 SCR 1005

3 (1962) 1 SCR 383

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Mysore  &  Ors.4,  learned  counsel  submits  that  the  religious

denomination  cannot  completely  exclude  the  members  of  any

community and may only restrict their entry in certain rituals.

He further contends that the relevant Rule cannot be interpreted

to mean that it bars entry of women as such an interpretation

would invite  violation of  principles underlying gender equality.

Mr.  Gupta contends that the expression ‘at any stage of  time’

occurring in  Rule  3(b)  has  to  be  read narrowly  which can be

found in customs or usage like during late night if by any custom

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

or  usage  shall  continue  but  it  does  not  permit  complete

prohibition of entry of women.

17. Ms.  Indira  Jaising,  learned  senior  counsel  submits  that

entry into temple is a matter of religion as has been spelt out in

Sri Venkatramana Devaru (supra) case and the right of entry is

claimed for worship for the purposes of “darshan” and hence, is a

part  of  the  fundamental  right  under  Article  25.  She  has

commended  us  to  the  authority  in  Sastri  Yagnapurushadji

and Ors. v.  Muldas Bhudardas Vaishya and Anr5.  Learned

4 (1958) SCR 895

5 1966 3 SCR 242 : AIR 1966 SC 1119

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senior  counsel  would  urge  that  Section  4  of  the  1965  Act

provides that no regulation has to be made to discriminate in any

manner whatsoever  against  any Hindu on the ground that  he

belongs to a particular section or class and, therefore, Rule 3(b)

cannot withstand scrutiny. Learned senior counsel has pointed

out that Notifications which stipulate a ban of women from the

age of 10 to 50 from entering the temple is contrary to the 1965

Act as well as the Constitution.  According to her, the same is

contrary to the letter and spirit of the Constitution as enshrined

under Articles 25 and 26. It is her contention that Sabarimala is

not a denominational temple but a temple for all  Hindus and,

therefore, Article 26(b) is not attracted. The said temple permits

all  categories  of  Hindus  to  enter  the  temple  regardless  of  the

denomination.  It is her stand that Rule 3 is also  utra vires the

1965  Act  inasmuch  Section  4  of  the  1965  Act  restricts  the

authorities from making any rule that discriminates against any

Hindu on the ground that he belongs to a section or class and

the  rule  coupled  with  notifications  singles  out  women  as  a

separate  class of  Hindu whose entry  into the  places of  public

worship can be restricted based on custom.  According to the

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learned senior  counsel,  the  right  to  manage the  affairs  in the

matter  of  religion does  not  encompass  the  right  to  ban  entry

inside  a  temple.  She  has  placed  reliance  on  Sastri

Yagnapurushadji (supra),  Sri  Adi  Visheshwara  of  Kashi

Vishwanath Temple,  Varanasi  v.  State  of  U.P.6  and A.S.

Naryana Deekshitulu v. State of A.P.7.  She would emphasise

on harmonious interpretation of  constitutional  provisions,  that

is, Articles 14, 15, 25 and 26 of the Constitution. Learned senior

counsel placing reliance upon Adi Saiva Sivachariyargal Nala

Sangam and Ors.  v.  The Government of  Tamil  Nadu and

Ors.8 submits  that  constitutional   legitimacy  supersedes  all

religious beliefs  and,  therefore,  prohibition on entry  of  women

between the ages of 10 to 50 years plays foul of the constitutional

principle.  She would also submit that it is not a custom as is

conceived of by the authorities and even if it is accepted as such,

it  is  wholly  unconstitutional  as  it  creates  an  invidious

discrimination perpetrating sexual differences.

6 1997 (4) SCC 606

7 1996 (9) SCC 548

8 AIR 2016 SC 209

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18. Mr. K. Ramamoorthy, learned amicus curiae in his written

note of submission has put forth that the judgment of the High

Court  of  Kerala is  founded on the  religious practice  and after

detailed enquiry the view having taken by the High Court that

the restriction imposed by the Devaswom Board is not violative of

Articles 15, 25 and 26 of the Constitution, the same should not

set at  naught in this petition for public interest litigation.  His

further argument is that the devotees of Lord Ayyappa could also

be brought within the ambit of religious denomination who have

been following the  religious practice  which has been essential

part of religion.  His stand is that this Court had no occasion to

consider  the  important  question,  that  is,  what  is  religious

practice on the basis of religious belief which would apply not

only to Ayyappa temple but would also apply to all the prominent

temples  all  over  India  and,  therefore,  the  matter  has  to  be

decided by a Constitution Bench. According to the learned senior

counsel,  none of  the  cases cited at  the  Bar would govern the

issue raised here, that is, protection under Articles 25 and 26 of

the Constitution is not limited to the matters of doctrine or belief

but  also  extends  to  acts  done  in  pursuance  of  religion  and,

therefore,  contains  a  guarantee  for  rituals  and  observations,

18

ceremonies  and modes of  worship  which are  integral  parts  of

religion.   The concept “essential part of religious practice” has to

be decided by the Court with reference to the practices which are

regarded  by  the  large  sections  of  the  community  for  several

centuries. It is propounded by him that a religious practice based

on religious faith adhered to and followed by millions of Hindus

for over a millennium in consonance with natural rights of men

and  women  is  not  violative  of  Fundamental  Rights  without

appreciating the scope of these rights.  

19. Mr.  Raju  Ramachandran,  learned  amicus  curiae,  in  his

turn, contends that Sabarimala Sree Dharma Sastha Temple is a

public temple, members of the public are admitted and its use as

a  place  of  public  worship  and  entry  thereto  is  not  to  any

particular denomination or part thereof.  The temple is managed

and  administered  by  a  statutory  body,  i.e.,  the  Travancore

Devaswom Board. As entry to a public temple is a legal right but

not  a  permissible  right  and,  therefore,  the  temple  authorities

have no authority to curtail the said right.  In this context, he

has  drawn  inspiration  from  the  authorities  namely,  Deoki

Nandan v. Murlidhar9, Sri Radhakanta Deb v. Commissioner

9 (1956) SCR 756

19

of Hindu Religious Endowments,  Orissa10 and  Nar Hari  v.

Badri Nath Temple Committee11. It is his proponement that the

right of a woman to visit and enter the temple as a devotee of the

deity, as a believer in Hindu faith is an essential facet of her right

and restriction of the present nature creates a dent in that right

which is protected under Article 25 of the Constitution.  Article

25(1) establishes a non-discriminatory right and it is available to

men and women professing  the  same  faith,  for  it  engulfs  the

concept of intra-faith parity. The distinction between entry into

temples and right  to  conduct  the  worship  of  the  deity  as  per

ritualistic  process  of  worship  by  an  “Acharya”  has  been

recognized to keep the constitutional norm at its pedestal. In this

regard, he has commended few passages from Nar Hari (supra)

and Shastri Yagnapurudasji (supra).

20. Mr. Ramachandran would further contend that Article 25(2)

(b) expressly states that intent of the Founding Fathers clearly

prohibits  exclusionary  practices.  As  per  Sri  Venkatramana

Devaru (supra), Article 25(2)(b) is not a mere enabling provision

that creates substantive  right  being a constitutional  command

10 (1981) 2 SCC 226

11 (1952) SCR 849

20

but lays down if any exception gets space, it has to be extremely

narrow and within such exception the exclusion of women as a

class  from  the  age  of  10  to  50  is  neither  permissible  nor

acceptable. The exclusionary practice cannot be justified on the

grounds of health, public order or morality because morality, as

envisaged in Article 25 or Article 26, is not an individualized or

sectionalized perception subject to varying practices and ideals of

every religion. The concept of morality has to be based on the

constitutional text and especially should be in consonance with

Articles 14, 15, 17, 21, 38 and 51A of the Constitution. The word

“morality”  has to be interpreted as constitutional  morality but

not  the  speeches  from  the  pulpit  by  some.  It  must  have

constitutional legitimacy. In this regard, learned senior counsel

has drawn our attention to  Adi Saiva Sivachariyargal Nala

Sangam and others v. State of T.N.12, Manoj Narula v. Union

of  India13,  National  Legal  Services  Authority  v.  Union  of

India14,  State of Gujarat v. Mirzapur Moti Kureshi Kassab

Jamat and others15.

12 (2016) 2 SCC 725

13 (2014) 9 SCC 1  

14 (2014) 5 SCC 438

15 (2005) 8 SCC 534

21

21. Mr. Ramachandran further contends that the stand of the

State of Kerala and the Devaswom Board is that the practice is

based on religious custom and the same is essential to religious

practice.  It  is  fundamentally  fallacious  as  such  a  religious

practice cannot be essential to the religion and it has been only

imposed by subordinate legislation. The custom that has been

conceived of is not a part of the essential religious practice and

the  said  practice  has  to  be  appreciated  keeping  in  view  the

religious  rights  as  enshrined under  Articles  25 and 26 of  the

Constitution.  The submission of the State is that there is no

total  prohibition  is  fallacious  because  a  significant  section  of

adult women is excluded and the singular ground for exclusion is

sex  and  the  biological  feature  of  menstruation.  To  put  it

differently, the discrimination is not singularly on the ground of

sex  but  also  sex  and  the  biological  factor  which  is  a

characteristic of the particular sex. In such a situation, contends

Mr. Ramachandran, “impact test” has to be applied to declare the

rule  and  the  notification  to  be  unconstitutional.  For  the  said

purpose,  he  has  commended  us  to  the  authority  in  Bennet

Coleman & Co. and others v. Union of India and others16.

16 (1972) 2 SCC 788

22

Learned  senior  counsel  would  contend  that  Rule  3(b)  is  ultra

vires of  Sections 3  and 4  of  the  1965 Act  because  Section 3

makes it clear that Rules made under it cannot be discriminatory

against any section or class. Therefore, when it protects customs

and usage and takes shelter under the same, which may prohibit

entry, then it  is not in accord with Section 3 of the 1965 Act

which  expressly  overrides  custom  and  usage.   The  1965  Act

provides  that  rules  have  to  be  made  for  due  observance  of

religious rites and ceremonies. The inclusion of words “custom

and usage”  transgress the very purpose of the Act and also the

basic  intent  of  the  legislation  apart  from  the  constitutional

provisions. His further submission is that the State has a duty to

ensure the enjoyment of fundamental rights. By inserting Rule

3(b) which goes against the inclusionary mandate of Section 3 of

the  1965  Act,  the  State  has  failed  in  its  duty  to  protect  the

fundamental  rights.   He  has,  in  this  regard,  relied  upon  the

decisions in S. Rangarajan v. P. Jagjivan Ram and others17,

Ram Jethmalani and others v. Union of India and others18,

M. Nagaraj and others v. Union of India and others19.

17 (1989) 2 SCC 574

18 (2011) 8 SCC 1

19 (2006) 8 SCC 212

23

22. Learned senior counsel has seriously criticized the stand of

the Devaswom Board and the State that the decisions rendered

by the Kerala High Court operates as  res judicata, for the High

Court was not dealing with the validity of the Rules or invoking

rights of individuals under Article 25.  It is his further stand that

when there is violation of a fundamental right,  the Court in a

petition  under  Article  32  of  the  Constitution  can  proceed  to

re-examine  the  earlier  decision  as  has  been  held  in  Sanjay

Singh  and  another  v.  U.P.  Public  Service  Commission,

Allahabad   and  another20.  In  the  present  case,  it  is  the

judgment by the High Court and the said judgment cannot debar

the jurisdiction of this Court to adjudge the constitutionality of

the statutory provisions or the Rules or the notification because

the principle  of  res judicata will  not  remotely apply  to such a

case.   Additionally,  he  submits  that  a  statute  which  may  be

upheld  as  constitutional  at  one  point  of  time  can  become

unconstitutional  at  a  later  point  of  time  as  has  been held  in

Satyawati Sharma v. Union of India and another21 and in

Atam Prakash v. State of Haryana and others22.  

20 (2007) 3 SCC 720

21 (2008) 5 SCC 287

22 (1986) 2 SCC 249

24

23. It  is  submitted  by  Mr.  Jaideep  Gupta,  learned  senior

counsel  that  Article  25  and  26  of  the  Constitution  guarantee

every person and community, the right and freedom to profess

practice  and propagate religion and manage its  own affairs in

matters of religion.  It is settled that a religion not only lays down

a  code  of  ethical  rules  but  may  also  prescribe  rituals  and

observances,  ceremonies and modes of  worship.   These,  when

they  constitute  an  integral/essential  part  of  the  religion  is

protected under Article 25 and Article 26 of the Constitution. It is

further urged by him that the administration of the temple vests

with the Travancore Devaswom Board under the provisions of the

Act and there is a statutory duty cast on the Devaswom Board to

arrange  worship  in  temples  in  accordance  with  the  usage.

Therefore, in matters of religion, it is the opinion of the priests

that is final.  It is also the contention that under ceremonial law

pertaining to temples,  who are entitled to  enter  into them for

worship, where they are entitled to stand and worship and how

worship is to be conducted are all matters of religion protected

both under Article 25 and Article 26(b).

24. Mr. K. Parasaran and Mr. K.K. Venugopal, learned senior

counsel appearing for Devaswom Board submit that the petition

25

under Article 32 of the Constitution is not maintainable as no

right  affecting  public  at  large  is  involved  in  the  case.   The

religious questions posed in this Writ Petition can be determined

finally  only  by  the  “Thanthri”  concerned  and  not  by  other

Thanthries who have no authority over the Sabarimala Temple;

that worshippers visit the temple after observing penance for 41

days and usually ladies between the age of 10 and 50 will not be

physically  capable  of  observing  “vratham”  for  41  days  on

physiological grounds; that the rule that during these seasons no

women  aged  more  than  10  and  less  than  50  shall  enter  the

temple is scrupulously followed and the Board, being a statutory

authority,  cannot forget the mandate laid down under Articles

15,  25  and  26  of  the  Constitution  while  administering  the

Temples under their control; that the Board cannot conceive of

any religious practice under the Hindu Religion which deprives a

worshipper of his right to enter the Temple and worship therein

according to his belief; that notifications are issued by the Board

during Mandalam, Makaravilakku and Vishu preventing women

of  the  age  group between 10  to  50  from entering  the  Temple

taking  into  account  the  religious  sentiments  and  practices

followed in the temple.   Article 25 confers freedom of conscience

26

and freedom to profess, practice and propagate religion subject to

public order, morality and health and all other provisions of Part

III.  But every religious denomination or any section thereof shall

have the right to manage their religious affairs subject to public

order,  morality  and  health.   Every  religious  denomination  is

conferred such freedom under Article 26 of the Constitution and

they  shall  have  the  right  –  (a)  to  established  and  maintain

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

its own affairs in matters of religion, and (c) to administer such

property in accordance with law.  It is contended that Ayyappa

devotees form a denomination by themselves and have every right

to  regulate  and manage  its  own affairs  in  matters  of  religion.

Reliance has been placed on Raja Bira Kishore Deb v. State of

Orissa23.  Learned  senior  counsel  have  also  drawn  immense

inspiration from the judgment of the High Court to highlight the

stand that it is the right of a religious denomination to administer

property and it is fundamental under the Constitution. Passages

have  been  reproduced  from  Shri  Lakhshmindra  Thirtha

Swamiar  of  Sri  Shirur  Mutt (supra).  In  essence,  the

submission is that the practice which is in vogue in the temple is

23 AIR 1964 SC 150

27

an  essential  part  of  religion  which  the  Constitution  protects.

Learned senior counsel have commended us to a decision in S.P.

Mittal  v.  Union of  India  and others24.   According  to  them,

whether any practice is an integral part of the religion or not has

to be decided on the basis of evidence. Relying upon the authority

in  Tilkayat Shri Gvindlalji  Maharaj  v.  State of Rajasthan

and others25 it is contended that that the 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 finding on the question 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.   Reference has been made to  Ratilal Panachand

Gandhi v. State of Bombay and Others26  to state that the said

authority has in unmistakable terms held that in regard to affairs

in matters of religion the right of management given to a religious

body is a guaranteed fundamental right which no legislature can

take away. Various paragraphs from the judgment of the Kerala

24 (1983) 1 SCC 51

25 (1964) 1 SCR 561 : AIR 1963 SC 1638

26 AIR 1954 SC 388 : 1954  SCR 155

28

High Court  have  been referred to  bolster  the  stand that  such

restriction imposed by the Davaswom Board is not violative  of

Articles 15, 25 and 26 of the Constitution.  Such restriction is

also not violative of the provisions of the 1965 Act since there is

no  restriction  between  one  section  and  another  section  or

between one class among the Hindus in the matter of entry to the

temple whereas the prohibition is only in respect of women of a

particular  age  group  and  not  women  as  a  class.   They  have

referred to the additional affidavit filed by the Devaswom Board

that  Ayyappans  belong  to  a  different  denomination  and  it  is

elaborately  set  forth  how the  temple  has  come into  existence.

That apart,  it  is  seriously canvassed that  once a decision has

been rendered by the High Court, it would operate as res judicata

and that will  bind all persons including the petitioners herein.

The question as to whether a set of persons constitute a religious

denomination is a mixed question of fact and law and should be

decided  by  a  competent  civil  court  after  examination  of

documentary  and  other  evidence.  In  this  regard,  reliance  has

been placed on the authority in  Dr. Subramanian Swamy v.

State of Tamil Nadu and others27. Various other aspects have

27 (2014) 5 SCC 75

29

also been highlighted but it is not necessary to note the same at

present.  

25. Having noted the submissions of the learned counsel for the

parties and that of the State, we feel certain significant issues

arise  for  consideration.  Be  it  noted,  learned  counsel  for  the

parties have formulated certain issues as we had reserved the

order on a singular aspect, that is, whether the matter should be

referred to the Constitution Bench or not. We need not reproduce

the questions framed by them.   

26. According  to  us,  the  following  questions  arise  for

consideration:-

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

30

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?

31

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?

27. Let the papers be placed before the learned Chief Justice for

constitution of the appropriate larger Bench.

……………………….….CJI (Dipak Misra)

…………………………….J. (R. Banumathi)

…………………………….J. (Ashok Bhushan)

New Delhi; October 13, 2017.