1  

REPORTABLE  

IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

REVIEW PETITION (CIVIL) NO. 3358/2018   

IN   

WRIT PETITION (CIVIL) NO. 373/2006   

KANTARU RAJEEVARU          ….PETITIONER(S)   

VERSUS  

INDIAN YOUNG LAWYERS ASSOCIATION   THR.ITS GENERAL SECRETARY   AND ORS.                             …RESPONDENT(S)   

WITH  

R.P.(C) NO. 3359/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 37946/2018 IN W.P.(C) NO. 373/2006;  

R.P.(C) NO. 3469/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 38135/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 38136/2018 IN W.P.(C) NO. 373/2006;  

R.P.(C) NO. 3449/2018 IN W.P.(C) NO. 373/2006  

W.P.(C) NO. 1285/2018  

R.P.(C) NO. 3470/2018 IN W.P.(C) NO. 373/2006  

R.P.(C) NO. 3380/2018 IN W.P.(C) NO. 373/2006  

R.P.(C) NO. 3379/2018 IN W.P.(C) NO. 373/2006  

R.P.(C) NO. 3444/2018 IN W.P.(C) NO. 373/2006 R.P.(C) NO.  

3462/2018 IN W.P.(C) NO. 373/2006  

DIARY NO(S). 38764/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 38769/2018 IN W.P.(C) NO.373/2006;

2  

DIARY NO(S). 38907/2018 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 3377/2018 IN W.P.(C) NO. 373/2006  

DIARY NO(S). 39023/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 39135/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 39248/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 39258/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 39317/2018 IN W.P.(C) NO.373/2006;  

W.P.(C) NO. 1323/2018  

W.P.(C) NO. 1305/2018  

DIARY NO(S). 39642/2018 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 3381/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 40056/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40191/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40405/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40570/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40681/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40713/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40840/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40885/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40887/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40888/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40898/2018 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 3457/2018 IN W.P.(C) NO. 373/2006;

3  

DIARY NO(S). 40910/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40924/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 40929/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 41005/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 41091/2018 IN W.P.(C) NO.373/2006;  

W.P.(C) NO. 1339/2018;  

DIARY NO(S). 41264/2018 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 3473/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 41395/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 41586/2018 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 3480/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 41896/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 42085/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 42264/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 42337/2018 IN W.P.(C) NO.373/2006;  

MA 3113/2018 IN W.P.(C) NO. 373/2006;  

DIARY NO(S). 44021/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 44991/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 46720/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 47720/2018 IN W.P.(C) NO.373/2006;  

DIARY NO(S). 2252/2019 IN W.P.(C) NO.373/2006;  

R.P.(C) NO. 345/2019 IN W.P.(C) NO. 373/2006  

DIARY NO(S). 2998/2019 IN W.P.(C) NO.373/2006;

4  

J U D G M E N T  

 RANJAN GOGOI, CJI.  

1. Ordinarily, review petitions ought to proceed on the principle  

predicated in Order XLVII in Part IV of the Supreme Court Rules,  

2013.  However, along with review petitions several fresh writ  

petitions have been filed as a fall out of the judgment under review.    

All these petitions were heard together in the open Court.   

 2. The endeavour of the petitioners is to resuscitate the debate  

about – what is essentially religious, essential to religion and integral  

part of the religion.  They would urge that ‘Religion’ is a means to  

express ones ‘Faith’.  In the Indian context, given the plurality of  

religions, languages, cultures and traditions, what is perceived as  

faith and essential practices of the religion for a particular deity by a  

section of the religious group, may not be so perceived (as an integral  

part of the religion) by another section of the same religious group for  

the same deity in a temple at another location.  Both sections of the  

same religious group have a right to freely profess, practise and  

propagate their religious beliefs as being integral part of their religion  

by virtue of Article 25 of the Constitution of India.  It matters not that  

they do not constitute a separate religious denomination.  Further, as  

long as the practice (ostensibly restriction) associated with the  

religious belief is not opposed to public order, morality and health or

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the other provisions of Part III of the Constitution of India, the section  

of the religious group is free to profess, practise and propagate the  

same as being integral part of their religion.  The individual right to  

worship in a temple cannot outweigh the rights of the section of the  

religious group to which one may belong, to manage its own affairs of  

religion.  This is broadly what has been contended.   

 3. Concededly, the debate about the constitutional validity of  

practices entailing into restriction of entry of women generally in the  

place of worship is not limited to this case, but also arises in respect  

of entry of Muslim women in a Durgah/Mosque as also in relation to  

Parsi women married to a non-Parsi into the holy fire place of an  

Agyari.   There is yet another seminal issue pending for consideration  

in this Court regarding the powers of the constitutional courts to tread  

on question as to whether a particular practice is essential to religion  

or is an integral of the religion, in respect of female genital mutilation  

in Dawoodi Bohra community.   

 4. It is time that this Court should evolve a judicial policy befitting  

to its plenary powers to do substantial and complete justice and for  

an authoritative enunciation of the constitutional principles by a larger  

bench of not less than seven judges.  The decision of a larger bench  

would put at rest recurring issues touching upon the rights flowing  

from Articles 25 and 26 of the Constitution of India.  It is essential to

6  

adhere to judicial discipline and propriety when more than one petition  

is pending on the same, similar or overlapping issues in the same  

court for which all cases must proceed together.  Indubitably, decision  

by a larger bench will also pave way to instil public confidence and  

effectuate the principle underlying Article 145(3) of the Constitution -  

which predicates that cases involving a substantial question of law as  

to the interpretation of the Constitution should be heard by a bench of  

minimum five judges of this Court.  Be it noted that this stipulation  

came when the strength of the Supreme Court Judges in 1950 was  

only seven Judges.  The purpose underlying was, obviously, to  

ensure that the Supreme Court must rule authoritatively, if not as a  

full court (unlike the US Supreme Court).  In the context of the present  

strength of Judges of the Supreme Court, it may not be inappropriate  

if matters involving seminal issues including the interpretation of the  

provisions of the Constitution touching upon the right to profess,  

practise and propagate its own religion, are heard by larger bench of  

commensurate number of Judges.  That would ensure an  

authoritative pronouncement and also reflect the plurality of views of  

the Judges converging into one opinion.  That may also ensure  

consistency in approach for the posterity.   

 5. It is our considered view that the issues arising in the pending  

cases regarding entry of Muslim Women in Durgah/Mosque (being

7  

Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a  

non-Parsi in the Agyari (being Special Leave Petition (Civil) No.  

18889/2012);  and including the practice of female genital mutilation  

in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of  

2017) may be overlapping and covered by the judgment under review.   

The prospect of the issues arising in those cases being referred to  

larger bench cannot be ruled out.  The said issues could be:  

(i) Regarding the interplay between the freedom of religion  

under Articles 25 and 26 of the Constitution and other  

provisions in Part III, particularly Article 14.  

(ii) What is the sweep of expression ‘public order, morality  

and health’ occurring in Article 25(1) of the Constitution.  

(iii) The expression ‘morality’ or ‘constitutional morality’ has  

not been defined in the Constitution.  Is it over arching morality  

in reference to preamble or limited to religious beliefs or faith.   

There is need to delineate the contours of that expression, lest  

it becomes subjective.   

(iv) The extent to which the court can enquire into the issue  

of a particular practice is an integral part of the religion or  

religious practice of a particular religious denomination or  

should that be left exclusively to be determined by the head of  

the section of the religious group.   

8  

(v) What is the meaning of the expression ‘sections of  

Hindus’ appearing in Article 25(2)(b) of the Constitution.  

(vi) Whether the “essential religious practices” of a religious  

denomination, or even a section thereof are afforded  

constitutional protection under Article 26.  

(vii)  What would be the permissible extent of judicial  

recognition to PILs in matters calling into question religious  

practices of a denomination or a section thereof at the instance  

of persons who do not belong to such religious denomination?  

6. In a legal framework where the courts do not have any  

epistolary jurisdiction and issues pertaining to religion including  

religious practices are decided in exercise of jurisdiction under  

Section 9 of the Civil Procedure Code or Article 226/32 of the  

Constitution the courts should tread cautiously.  This is time honoured  

principle and practice.   

7. In this context, the decision of the Seven Judges bench of this  

Court in Commissioner, Hindu Religious Endowments, Madras  

vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt)1  

holding that what are essential religious practices of a particular  

religious denomination should be left to be determined by the  

 1 (1954) SCR 1005

9  

denomination itself and the subsequent view of a Five Judges bench  

in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.2 carving  

out a role for the court in this regard to exclude what the courts  

determine to be secular practices or superstitious beliefs seem to be  

in apparent conflict requiring consideration by a larger Bench.  

8. While deciding the questions delineated above, the larger  

bench may also consider it appropriate to decide all issues, including  

the question as to whether the Kerala Hindu Places of Public Worship  

(Authorisation of Entry) Rules, 1965 govern the temple in question at  

all.  Whether the aforesaid consideration will require grant of a fresh  

opportunity to all interested parties may also have to be considered.   

9. The subject review petitions as well as the writ petitions may,  

accordingly, remain pending until determination of the questions  

indicated above by a Larger Bench as may be constituted by the  

Hon’ble the Chief Justice of India.    

       ….……......................CJI.  

                    [Ranjan Gogoi]      

.…..…….......................J.                        [A.M. Khanwilkar]  

 ...……….......................J.  

                      [Indu Malhotra]      New Delhi  November 14, 2019  

 2 (1962) 1 SCR 383

1  

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL INHERENT/ORIGINAL JURISDICTION  

REVIEW PETITION (CIVIL) NO. 3358 OF 2018     

IN     

WRIT PETITION (CIVIL) NO. 373 OF 2006    

KANTARU RAJEEVARU                     ....PETITIONER                   

VERSUS  

 INDIAN YOUNG LAWYERS ASSOCIATION  THROUGH ITS GENERAL SECRETARY   MS. BHAKTI PASRIJA & ORS.                       ….RESPONDENTS     

 WITH  

 R. P.  (C) NO. 3359 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 37946 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3469 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 38135 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 38136 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3449 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 W. P.(C) NO. 1285 OF 2018

2  

 R. P.  (C) NO. 3470 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3380 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3379 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3444 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3462 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 38764 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 38769 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 38907 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3377 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 39023 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 39135 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 39248 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 39258 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 39317 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 W. P.(C) NO. 1323 OF 2018  

 W. P.(C) NO. 1305 OF 2018  

 DIARY NO. 39642 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3381 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 40056 OF 2018 IN W. P.(C) NO. 373 OF 2006  

3  

DIARY NO. 40191 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40405 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40570 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40681 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40713 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40840 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40885 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40887 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40888 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40898 OF 2018 IN W. P.(C) NO. 373 OF 2006    

R. P.  (C) NO. 3457 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40910 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40924 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 40929 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 41005 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 41091 OF 2018 IN W. P.(C) NO. 373 OF 2006    

W.P.(C) NO. 1339 OF 2018    

DIARY NO. 41264 OF 2018 IN W. P.(C) NO. 373 OF 2006    

R. P.  (C) NO. 3473 OF 2018 IN W. P.(C) NO. 373 OF 2006    

DIARY NO. 41395 OF 2018 IN W. P.(C) NO. 373 OF 2006

4  

 DIARY NO. 41586 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 R. P.  (C) NO. 3480 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 41896 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 42085 OF 2018 IN W. P.(C) NO. 373 OF 2006  

  DIARY NO. 42264 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 42337 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 M.A. NO. 3113 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 44021 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 44991 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 46720 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 47720 OF 2018 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 2252 OF 2019 IN W. P.(C) NO. 373 OF 2006  

 R.P.(C) NO. 345 OF 2019 IN W. P.(C) NO. 373 OF 2006  

 DIARY NO. 2998 OF 2019 IN W. P.(C) NO. 373 OF 2006  

J U D G M E N T  

R.F. NARIMAN, J.  

 1. Having read the judgment of the learned Chief Justice of India, I  

regret my inability to agree with the same. The learned Chief Justice has

5  

spoken of various matters which are sub judice in this Court in relation  

to entry of Muslim women in a dargah/mosque; to Parsi women married  

to non-Parsis and their entry into a fire temple; and issues relating to  

female genital mutilation in the Dawoodi Bohra community. He has then  

outlined seven issues which may be referred to a larger 7-judge bench  

as also the apparent conflict between a 7-judge bench in the Shirur  

Mutt case 1954 SCR 1005 and the Durgah Committee case, (1962) 1  

SCR 383. He then goes on to state, “the prospect of the issues arising  

in those cases being referred to a larger bench cannot be ruled out.”  

The larger bench may then also consider it appropriate to decide all  

issues including the question as to whether the Kerala Hindu Places of  

Public Worship (Authorization of Entry) Rules, 1965 governs the temple  

in question at all. He then states, “whether the aforesaid consideration  

will require grant of a fresh opportunity to all interested parties may also  

have to be considered.” Hence the conclusion is that the review petitions  

and the fresh writ petitions may remain pending until determination of  

the questions indicated above by a larger bench as may be constituted  

by the Chief Justice of India in any of the aforesaid pending matters.  

6  

2. What this Court has before it is review petitions arising out of this  

Court’s judgment in Indian Young Lawyers Association and Ors. v.  

State of Kerala W.P. (C) No.373 of 2006, which was delivered on 28  

September, 2018, with regard to the Sabarimala temple dedicated to  

Lord Ayyappa. What a future constitution bench or larger bench, if  

constituted by the learned Chief Justice of India, may or may not do  

when considering the other issues pending before this Court is, strictly  

speaking, not before this Court at all. The only thing that is before this  

Court is the review petitions and the writ petitions that have now been  

filed in relation to the judgment in Indian Young Lawyers Association  

and Ors. v. State of Kerala, dated 28 September, 2018. As and when  

the other matters are heard, the bench hearing those matters may well  

refer to our judgment in Indian Young Lawyers Association and Ors.  

v. State of Kerala, dated 28 September, 2018, and may either apply  

such judgment, distinguish such judgment, or refer an issue/issues  

which arise from the said judgment for determination by a larger bench.  

All this is for future Constitution benches or larger benches to do.  

Consequently, if and when the issues that have been set out in the  

learned Chief Justice’s judgment arise in future, they can appropriately  

be dealt with by the bench/benches which hear the petitions concerning

7  

Muslims, Parsis and Dawoodi Bohras. What is before us is only the  

narrow question as to whether grounds for review and grounds for filing  

of the writ petitions have been made out qua the judgment in Indian  

Young Lawyers Association and Ors. v. State of Kerala.  

Consequently, this judgment will dispose of the said review petitions and  

writ petitions keeping the parameters of judicial intervention in such  

cases in mind.  

3. A number of points have been urged before us by a large number  

of counsel appearing on behalf of the review petitioners. A review  

petition that is filed under Article 137 of the Constitution of India, read  

with Order XLVII of the Supreme Court Rules, 2013, has to be within  

certain parameters of a limited jurisdiction which is to be exercised. In a  

pithy one-paragraph judgment by Krishna Iyer, J., reported as Sow  

Chandra Kante and Ors. v. Sheikh Habib, (1975) 1 SCC 674, this  

Court laid down:  

“…… A review of a judgment is a serious step and  reluctant resort to it is proper only where a glaring  omission or patent mistake or like grave error has crept in  earlier by judicial fallibility. A mere repetition, through  different Counsel, of old and overruled arguments, a  second trip over ineffectually covered ground or minor  mistakes of inconsequential import are obviously  insufficient. The very strict need for compliance with these

8  

factors is the rationale behind the insistence of Counsel’s  certificate which should not be a routine affair or a habitual  step. It is neither fairness to the Court which decided nor  awareness of the precious public time lost what with a  huge backlog of dockets waiting in the queue for disposal,  for Counsel to issue easy certificates for entertainment of  review and fight over again the same battle which has  been fought and lost. The Bench and the Bar, we are sure,  are jointly concerned in the conservation of judicial time  for maximum use. We regret to say that this case is typical  of the unfortunate but frequent phenomenon of repeat  performance with the review label as passport. Nothing  which we did not hear then has been heard now, except a  couple of rulings on points earlier put forward. May be, as  Counsel now urges and then pressed, our order refusing  special leave was capable of a different course. The  present stage is not a virgin ground but review of an earlier  order which has the normal feature of finality.”  

(at page 675)    

4. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320, this Court  

undertook an exhaustive review of the case law on review petitions and  

finally summarised the principles laid down by these judgments as  

follows:  

“Summary of the principles  

20. Thus, in view of the above, the following grounds of  review are maintainable as stipulated by the statute:  

20.1. When the review will be maintainable:  

(i) Discovery of new and important matter or  evidence which, after the exercise of due  diligence, was not within knowledge of the  petitioner or could not be produced by him;  

(ii) Mistake or error apparent on the face of the  record;

9  

(iii) Any other sufficient reason.  

The words “any other sufficient reason” have been  interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 :  (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this  Court in Moran Mar Basselios Catholicos v. Most Rev.  Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1  SCR 520] to mean “a reason sufficient on grounds at least  analogous to those specified in the rule”. The same  principles have been reiterated in Union of India v. Sandur  Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT  (2013) 8 SC 275]  

20.2. When the review will not be maintainable:  

(i) A repetition of old and overruled argument is  not enough to reopen concluded adjudications.  

(ii) Minor mistakes of inconsequential import.  

(iii) Review proceedings cannot be equated with  the original hearing of the case.  

(iv) Review is not maintainable unless the  material error, manifest on the face of the order,  undermines its soundness or results in  miscarriage of justice.  

(v) A review is by no means an appeal in  disguise whereby an erroneous decision is  reheard and corrected but lies only for patent  error.  

(vi) The mere possibility of two views on the  subject cannot be a ground for review.  

(vii) The error apparent on the face of the record  should not be an error which has to be fished out  and searched.  

(viii) The appreciation of evidence on record is  fully within the domain of the appellate court, it  cannot be permitted to be advanced in the  review petition.  (ix) Review is not maintainable when the same  relief sought at the time of arguing the main  matter had been negatived.”

10  

 5. It is strictly within these parameters that the arguments that have  

been made before us have to be judged. Before stating what these  

arguments are, it is important to first set down the summary of  

conclusions by all the Judges who formed the five-Judge Bench which  

delivered the judgment of 28.09.2018. Dipak Misra, C.J., speaking for  

himself and for Khanwilkar, J., formulated their conclusions in paragraph  

144 of the judgment as follows:  

“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 [The Commissioner Hindu Religious Endowments,  Madras v. Shri Lakshmindra Thritha Swaminar of Sri  Shirur Mutt, [1954] SCR 1005] and S.P. Mittal [S.P.  Mittal v. Union of India, (1983) 1 SCC 51], 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  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.

11  

(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 entry 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 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 followed at the Sabarimala Temple cannot be

12  

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 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.”   

13  

6. Nariman, J. concurred with these views, and concluded, in  

paragraph 172, that the Ayyappa temple at Sabarimala cannot claim to  

be a religious denomination which can then claim the protection of  

Article 26 of the Constitution of India as follows:  

“172. 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.”  

  The learned Judge thereafter concluded as follows:  

“177. 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.”  

14  

7. Chandrachud, J. concluded, in paragraph 291, that Article 25 of  

the Constitution of India implies equal entitlement of all persons to  

profess, practice, and propagate religion, as follows:  

“291. The Constitution protects the equal entitlement of all  persons to a freedom of conscience and to freely profess,  protect and propagate religion. Inhering in the right to  religious freedom, is the equal entitlement of all persons,  without exception, to profess, practice and propagate  religion. Equal participation of women in exercising their  right to religious freedom is a recognition of this right. In  protecting religious freedom, the framers subjected the  right to religious freedom to the overriding constitutional  postulates of equality, liberty and personal freedom in Part  III of the Constitution. The dignity of women cannot be  disassociated from the exercise of religious freedom. In  the constitutional order of priorities, the right to religious  freedom is to be exercised in a manner consonant with the  vision underlying the provisions of Part III. The equal  participation of women in worship inheres in the  constitutional vision of a just social order.”  

(emphasis in original)    

Thereafter, the learned Judge stated his conclusions as follows:  

“296. I hold and declare that:  

1) The devotees of Lord Ayyappa do not satisfy the  judicially enunciated requirements to constitute a religious  denomination under Article 26 of the Constitution;  

2) A claim for the exclusion of women from religious  worship, even if it be founded in religious text, is  subordinate to the constitutional values of liberty, dignity  and equality. Exclusionary practices are contrary to  constitutional morality;

15  

3) In any event, the practice of excluding women from the  temple at Sabarimala is not an essential religious practice.  The Court must decline to grant constitutional legitimacy  to practices which derogate from the dignity of women and  to their entitlement to an equal citizenship;  

4) The social exclusion of women, based on menstrual  status, is a form of untouchability which is an anathema to  constitutional values. Notions of “purity and pollution”,  which stigmatize individuals, have no place in a  constitutional order;  

5) The notifications dated 21 October 1955 and 27  November 1956 issued by the Devaswom Board,  prohibiting the entry of women between the ages of ten  and fifty, are ultra vires Section 3 of the Kerala Hindu  Places of Public Worship (Authorisation of Entry) Act,  1965 and are even otherwise unconstitutional; and  

6) Hindu women constitute a ‘section or class’ of Hindus  under clauses (b) and (c) of Section 2 of the 1965 Act.  Rule 3(b) of the 1965 Rules enforces a custom contrary to  Section 3 of the 1965 Act. This directly offends the right of  temple entry established by Section 3. Rule 3(b) is ultra  vires the 1965 Act.”  

 8. Indu Malhotra, J. dissented. The summary of her conclusions is  

reflected in paragraph 312 of the judgment as follows:  

“312. The summary of the aforesaid analysis is as follows:  

(i) The Writ Petition does not deserve to be entertained for  want of standing. The grievances raised are non- justiciable at the behest of the Petitioners and Intervenors  involved herein.  

(ii) The equality doctrine enshrined under Article 14 does  not override the Fundamental Right guaranteed by Article  25 to every individual to freely profess, practise and

16  

propagate their faith, in accordance with the tenets of their  religion.  

(iii) Constitutional Morality in a secular polity would imply  the harmonisation of the Fundamental Rights, which  include the right of every individual, religious  denomination, or sect, to practise their faith and belief in  accordance with the tenets of their religion, irrespective of  whether the practise is rational or logical.  

(iv) The Respondents and the Intervenors have made out  a plausible case that the Ayyappans or worshippers of the  Sabarimala Temple satisfy the requirements of being a  religious denomination, or sect thereof, which is entitled to  the protection provided by Article 26. This is a mixed  question of fact and law which ought to be decided before  a competent court of civil jurisdiction.  

(v) The limited restriction on the entry of women during the  notified age-group does not fall within the purview of  Article 17 of the Constitution.  

(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section  3 of the 1965 Act, since the proviso carves out an  exception in the case of public worship in a temple for the  benefit of any religious denomination or sect thereof, to  manage their affairs in matters of religion.”  

 9. What emerges on a reading of the aforesaid four majority  

judgments is that there is a clear consensus on the following issues:  

9.1. The devotees of Lord Ayyappa do not constitute a separate  

religious denomination and cannot, therefore, claim the benefit of  

Article 26 or the proviso to Section 3 of the Kerala Hindu Places  

of Public Worship (Authorisation of Entry) Act, 1965 [“1965 Act”].  

This is outlined in paragraph 144(i) of the judgment of the learned

17  

C.J.; paragraph 172 of the judgment of Nariman, J.; and  

paragraph 296(1) of the judgment of Chandrachud, J. The  

judgment of Malhotra, J. records an opposite tentative conclusion  

in paragraph 312(iv).  

9.2. The four majority judgments specifically grounded the right  

of women between the ages of 10 to 50, who are excluded from  

practicing their religion, under Article 25(1) of the Constitution,  

emphasizing the expression “all persons” and the expression  

“equally” occurring in that Article, so that this right is equally  

available to both men and women of all ages professing the same  

religion. This proposition becomes clear from paragraph 144(ii)  

and (iii) of the judgment of the learned C.J.; from paragraph 174  

read with paragraph 177 of the judgment of Nariman, J.; and  

paragraph 291 of the judgment of Chandrachud, J. As against  

this, the judgment of Malhotra, J. is contained in paragraph  

312(ii).  

9.3. Section 3 of the 1965 Act traces its origin to Article 25(2)(b)  

of the Constitution of India, and would apply notwithstanding any  

custom to the contrary, to enable Hindu women the right of entry

18  

in all public temples open to Hindus, so that they may exercise  

the right of worship therein. As a concomitant thereof, Rule 3(b)  

of the Kerala Hindu Places of Public Worship (Authorisation of  

Entry) Rules, 1965 [“1965 Rules”] is violative of Article 25(1) of  

the Constitution of India and ultra vires Section 3 of the 1965 Act.  

This proposition flows from paragraph 144(iii), (iv), (x), and (xii)  

of the judgment of the learned C.J.; paragraph 177 of the  

judgment of Nariman, J.; and paragraph 296(6) of the judgment  

of Chandrachud, J. As against this, Malhotra, J. states the  

opposite conclusion in paragraph 312(vi) of her judgment.1  

 1 In the judgment of the learned Chief Justice, whether the 1965 Rules govern the temple  

in question at all is raised, which the larger bench, if constituted, may consider it  

appropriate to decide. This is will result in a piecemeal adjudication as a fresh opportunity  

to interested parties may then have to be given in the pending review petitions. The  

necessity for going into this question in the review petitions filed is itself questionable. On  

the assumption that the aforesaid Rule does not apply, the striking down of an  

inapplicable rule does not in any manner detract from the ratio of the majority judgment.  

The ratio of the majority judgment, insofar as this aspect of the case is concerned, is that  

Section 3 of the 1965 Act will apply by reason of the non-obstante clause contained  

therein, as a result of which every place of public worship which is open to Hindus or any  

section or class thereof is open to all Hindus to worship therein in the like manner and to  

the like extent as any other Hindu; and no Hindu of whatsoever section or class shall in  

any manner be prevented, obstructed or discouraged from entering any such place of  

public worship or from worshipping or offering prayers thereat or performing religious  

service therein.  

19  

10. In Rajnarain Singh v. The Chairman, Patna Administration  

Committee, Patna and Ors., (1955) 1 SCR 290, this Court had to  

consider the judgment in Re Delhi Laws Act, [1951] SCR 747, in which  

seven separate judgments were delivered on the vexed question of the  

legislature’s power to delegate essential legislative functions. In  

attempting to cull out a common ratio, this Court enunciated a working  

test as follows:  

“Now what exactly does section 3(1)(f) authorise? After its  amendment it does two things : first, it empowers the  delegated authority to pick any section it chooses out of  the Bihar and Orissa Municipal Act of 1922 and extend it  to “Patna”; and second, it empowers the Local  Government (and later the Governor) to apply it with such  “restrictions and modifications” as it thinks fit.  

In the Delhi Laws Act case [[1951] S.C.R. 747], the  following provision was held to be good by a majority of  four to three :  

“The Provincial Government may …… extend  with such restrictions and modifications as it  thinks fit …… any enactment which is in force in  any part of British India at the date of such  notification.”  

Mukherjea and Bose JJ., who swung the balance, held  that not only could an entire enactment with modification  be extended but also a part of one; and indeed that was  the actual decision in Burah’s case [5 I.A. 178], on which  the majority founded : (see Mukherjea J. at page 1000 and  Bose J. at pages 1106 and 1121). But Mukherjea and  Bose JJ., both placed a very restricted meaning on the  words “restriction” and “modification” and, as they swung  the balance, their opinions must be accepted as the

20  

decision of the Court because their opinions embody the  greatest common measure of agreement among the  seven Judges.”  

(at pp. 302-303)  

11. The greatest common measure of agreement among the  

majority judgments, being the test enunciated by this decision, is the  

three propositions outlined above, to which all the four majority Judges  

agree. On whether the exclusion of women from Hindu temples is an  

essential part of the Hindu religion, three Judges clearly held that it is  

not, with Nariman, J. assuming that such exclusionary practice is an  

essential part of the Hindu religion. It is with these prefatory remarks that  

we now begin to examine the arguments of counsel for the review  

petitioners.  

12. Shri K. Parasaran, who led the attack on behalf of the review  

petitioners, placed at the forefront of his arguments the judgment of this  

Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose  

Athanasius, (1955) 1 SCR 520, and relied strongly on the following  

passage:  

“ …… It does not appear that either of the two majority  Judges of the High Court adverted to either of these  aspects of the matter, namely, service of notice to all  churches and competency of the persons who issued the  notice of the Karingasserai meeting and in any case did

21  

not come to a definite finding on that question. The  majority judgments, therefore, are defective on the face of  them in that they did not effectively deal with and  determine an important issue in the case on which  depends the title of the plaintiffs and the maintainability of  the suit. This, in our opinion, is certainly an error apparent  on the face of the record.”  

(at page 534)    

13. Based on this judgment, Shri Parasan argued that two learned  

Judges, viz., Dipak Misra, C.J., and Khanwilkar, J., did not at all opine  

on Article 15 of the Constitution of India. Also, they did not effectively  

deal with arguments based on Article 17 of the Constitution. The same  

goes for Nariman, J., when it comes to Article 17. Chandrachud, J. alone  

expounded on Article 17, and according to Shri Parasaran, this  

exposition amounts to an error apparent on the face of the record  

inasmuch as the expression “untouchability” would refer only to the  

discrimination meted out to Harijans, regardless of their sex, and would,  

therefore, not embrace members of the female sex alone who are  

regarded as “untouchables” during their period of menstruation.  

According to him, the judgment of Malhotra, J. correctly referred to the  

Constituent Assembly Debates on this issue and arrived at the correct  

conclusion. Since the view of Chandrachud, J. cannot be said to be a  

possible view, it would amount to an error apparent on the face of the

22  

record. Shri Parasaran argued that “untouchability” is nomen juris and  

relied upon State of Madras v. Gannon Dunkerley & Co. (Madras)  

Ltd., 1959 SCR 379, which held that the expression “sale of goods”,  

being nomen juris, would not include works contracts. He further argued  

that it took a constitutional amendment to add Article 366(29-A) to  

expand the definition of “sale of goods” so as to include a works  

contract.  

14. The majority judgments of Dipak Misra, C.J., Khanwilkar, J., and  

Nariman, J. did not find it necessary to opine on Article 15(2) and Article  

17 of the Constitution in view of their findings on various other points.  

Nariman, J. alone referred to Article 15(1) of the Constitution when it  

came to striking down Rule 3(b) of the 1965 Rules. The observations of  

Chandrachud, J. on Article 17 of the Constitution cannot be said to be a  

material error manifest on the face of the record which undermines the  

soundness of the three conclusions reached by all the majority  

judgments supra. Further, since the view of Chandrachud, J. on Article  

17 of the Constitution is a possible view, it cannot be a subject matter of  

review. As stated hereinabove, the interpretation of Article 15 and Article  

17 of the Constitution were not treated as central issues in the present

23  

case by at least three learned Judges, namely, Dipak Misra, C.J.,  

Khanwilkar, J., and Nariman, J. In this view of the matter, these  

arguments have necessarily to be rejected.  

15. Other learned counsel have essentially reargued the case on all  

other points. They argued that the Ayyappa temple at Sabarimala  

constituted a religious denomination and could, therefore, claim the  

protection of Article 26 of the Constitution of India as well as the proviso  

to Section 3 of the 1965 Act.  This argument is a re-argument of what  

was argued before us before the judgment of 28.09.2018 was delivered.  

16. Ms. Indira Jaising, learned Senior Advocate appearing on behalf  

of the intervenors in I.A. Nos. 21515 and 21521 of 2019, specifically  

referred to and relied upon the judgment of one of us, Nariman, J.,  

where it was made clear that the judgment of Chinnappa Reddy, J. in  

S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a dissenting  

judgment [see paragraph 171]. According to her, in two places, the  

dissenting judgment of Malhotra, J. has strongly relied upon the  

judgment of Chinnappa Reddy, J. (in paragraphs 306.7 and 308.8),  

stating that the judgment of Chinnappa Reddy, J. is a concurring  

judgment on the aspect of religious denomination. Therefore, on the

24  

contrary, the conclusion of Malhotra, J., based on the observations  

contained in the dissenting judgment of Chinnappa Reddy, J., could not  

be said to be a possible view on this aspect. Without entering further  

into this controversy, we may only reiterate that the majority Judges  

have correctly held that the views of Chinnappa Reddy, J. are  

dissentient, as was recognized by Chinnappa Reddy, J. himself. The  

learned Judge in his first paragraph states:  

“I have the good fortune of having before me the scholarly  judgment of my brother Misra, J. I agree with my brother  Misra, J. that the writ petitions must fail. With much that  he has said, also, I agree. But with a little, to my own  lasting regret, I do not agree. It is, therefore, proper for me  to explain the points of my disagreement.”  

(at page 59)  

17. The majority view of four Judges on this aspect is contained in  

paragraphs 110 to 122. In paragraphs 121 and 122, the majority  

concluded as follows:  

“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.

25  

122. Even assuming but not holding that the Society or the  Auroville were a religious denomination, the impugned  enactment is not hit by Articles 25 or 26 of the  Constitution. The impugned enactment does not curtail  the freedom of conscience and the right freely to profess,  practise and propagate religion. Therefore, there is no  question of the enactment being hit by Article 25.”  

This point also has to be rejected as there is no error, let alone material  

error, manifest on the face of the record of the majority view.  

18. A great deal of argument was devoted to whether the practice of  

excluding women between the ages of 10 to 50 from the shrine at  

Sabarimala would constitute an essential religious practice. Three of the  

majority Judges held that such a religious practice, having no basis in  

the Hindu religion, could not be held to be an essential religious practice  

– see paragraphs 122 and 123 of the judgment of the learned C.J., and  

paragraph 227 read with paragraph 296(3) of the judgment of  

Chandrachud, J. Here again, it cannot be said that there is any error  

apparent. What has to be seen in the judgments of this Court is whether  

such practice is an essential practice relatable to the Hindu religion, and  

not the practice of one particular temple. Nothing has been shown to us,  

as was correctly pointed out by the learned Chief Justice, from any  

textual or other authorities, to show that exclusion of women from ages

26  

10 to 50 from Hindu temples is an essential part of the Hindu religion.  

This again is a ground that must be rejected, both because there is no  

error apparent, and because the same ground that was argued in  

extenso before the original judgment was delivered, is being reargued  

in review.  

19. It was then stated that the judgments of Dipak Misra, C.J. and  

Chandrachud, J., in relying upon “constitutional morality”, suffered from  

an error apparent, in that constitutional morality is a vague concept  

which cannot be utilised to undermine belief and faith. Here again, apart  

from the fact that “constitutional morality” has now reached the level of  

stare decisis, and has been explained in several Constitution Bench  

judgments, reliance thereon cannot be said to suffer from any error  

apparent. Constitutional law and constitutional interpretation stand on a  

different footing from interpretation of statutes. Constitutional law keeps  

evolving keeping in view, among other things, the felt necessities of the  

time. As has been explained in some of our judgments, “constitutional  

morality” is nothing but the values inculcated by the Constitution, which  

are contained in the Preamble read with various other parts, in  

particular, Parts III and IV thereof. This again is a mere rehash of what

27  

was argued earlier, and can by no means be said to be an error apparent  

on the face of the record.  

20. Extreme arguments were made by some learned counsel stating  

that belief and faith are not judicially reviewable by courts, and that this  

Court cannot interfere by stating that a particular section of persons shall  

not hold a particular belief and act in accordance thereto. Such  

arguments need to be rejected out of hand. Not only do they not  

constitute “errors apparent”, but are arguments that fly in the face of  

Article 25. Article 25, as has been held by the majority judgments, is not  

an Article that gives a carte blanche to one particular section of persons  

to trample upon the right of belief and worship of another section of  

persons belonging to the same religion. The delicate balance between  

the exercise of religious rights by different groups within the same  

religious faith that is found in Article 25 has to be determined on a case  

by case basis. The slippery-slope argument, that this judgment will be  

used to undermine the religious rights of others, including religious  

minorities, is wholly without basis. The ratio of the majority judgments in  

this case is only that the exclusionary practice of keeping women from  

the ages of 10 to 50 from exercising their right of worship in a particular

28  

Hindu temple falls foul of Article 25 of the Constitution of India inasmuch  

as (i) all persons are equally entitled, when they belong to the same  

religious group, to exercise their fundamental right of practicing religion;  

and (ii) that this is a case covered by Article 25(2)(b), which deals with  

throwing open all Hindu religious institutions of a public character to all  

classes and sections of Hindus. The majority judgments have held that  

Section 3 of the 1965 Act is a legislation in pursuance of this part of  

Article 25(2)(b), which expressly comes in the way of any custom which  

interferes with the rights of women from the ages of 10 to 50 from  

worshipping in a Hindu religious institution of a public character. Article  

25(1) also contains two other exceptions, namely, that this right is (a)  

subject to public order, morality, and health; and (b) is also subject to  

the other provisions of Part III, as has been explained in the majority  

judgments. This argument must also, therefore, be rejected.  

21. References were made to the Hindi text of Article 26, and  

arguments were based on the Hindi expression “sampradaya” as  

opposed to the English expression “denomination”. This again is a new  

argument, made for the first time in review. This argument cannot be  

countenanced for the reason that we are bound by a large number of

29  

Constitution Bench decisions on what constitutes a religious  

denomination. Having followed the aforesaid judgments, which are  

binding upon us, we cannot be said to have committed any error.  

22. Emotive arguments were made on how women between the  

ages of 10 to 50 are not kept out on account of menstruation as a  

polluting agent, but on account of the deity being a Naisthik  

Brahmachari, who would be disturbed by the presence of women  

between the ages of 10 to 50, as the deity has undertaken a vow of  

celibacy. These are all arguments that have been made at the initial  

stage, and are fully dealt with by all the judgments. Re-arguing this  

aspect of the matter obviously does not fall within the parameters of a  

review petition.  

23. One more extreme argument that was made is that since  

worshippers from all faiths come to Sabarimala, Sabarimala cannot be  

held to be a Hindu temple. This argument, again, has no legs to stand  

on. A Christian church cannot be said to be any the less a church on  

account of allowing persons of all faiths to enter and worship therein.  

There is no doubt that the temple at Sabarimala, being dedicated to a  

Hindu idol – Lord Ayyappa – is a Hindu public religious institution, like

30  

the other temples dedicated to Lord Ayyappa, which are undoubtedly  

Hindu public religious institutions. This argument must also be rejected.  

24. An argument was made that there are gender restrictions in other  

places of worship, which, being essential religious practices, have not  

been interfered with. This is a general argument which needs to be  

rejected on the ground of vagueness, apart from the fact that this is not  

an argument which could be made in review. As and when such gender  

restrictions in other places of worship are tested, they will be decided on  

their own merits keeping in view the provisions of the Constitution.  

25. Another plea of some of the review petitioners is that the Division  

Bench judgment in S. Mahendran v. Secretary, Travancore  

Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 would be  

res judicata, as it was a Public Interest Litigation in which all necessary  

parties were joined and heard, and the same issues that were raised  

before this Court were decided by the Division Bench.  

26. It is true that the Division Bench judgment in Mahendran (supra),  

was a complaint which was converted into an original petition under  

Article 226 of the Constitution as a PIL. The Secretary, Travancore  

Devaswom Board, and the Chief Secretary to the Government of Kerala

31  

were made respondents to the petition.  Further, the Indian Federation  

of Women Lawyers, Kerala Branch and the President of the Kerala  

Kshetra Samrakshana Samithi were impleaded and permitted to  

participate in the proceedings. As a matter of law, there is no doubt  

whatsoever that res judicata as a principle does apply to public interest  

litigation. However, this Court in V. Purushotham Rao v. Union of  

India & Ors., (2001) 10 SCC 305, set out the law as stated in Rural  

Litigation and Entitlement Kendra v. State of U.P., 1989 Supp. (1)  

SCC 504, which it followed, and stated:  

“We may not be taken to have said that for public interest  litigations, procedural laws do not apply. At the same time  it has to be remembered that every technicality in the  procedural law is not available as a defence when a  matter of grave public importance is for consideration  before the Court. Even if it is said that there was a final  order, in a dispute of this type it would be difficult to  entertain the plea of res judicata.  

Thus even in the selfsame proceeding, the earlier order  though final, was treated not to create a bar inasmuch as  the controversy before the Court was of grave public  interest. The learned counsel appearing for the appellants  drew our attention to the decision of this Court in the case  of Forward Construction Co. v. Prabhat Mandal, AIR  1986 SC 391, whereunder the Court did record a  conclusion that Section 11 of the Civil Procedure Code  applied to public interest litigation. In our considered  opinion, therefore, the principle of constructive res  judicata cannot be made applicable in each and every

32  

public interest litigation, irrespective of the nature of  litigation itself and its impact on the society and the larger  public interest which is being served.”   

(at page 331)    

This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B.  

Jeejeebhoy, (1970) 3 S.C.R. 830, [“Mathura Prasad”], had held:  

“Where, however, the question is one purely of law and it  relates to the jurisdiction of the Court or a decision of the  Court sanctioning something which is illegal, by resort to  the rule of res judicata a party affected by the decision will  not be precluded from challenging the validity of that order  under the rule of res judicata, for a rule of procedure  cannot supersede the law of the land.”  

                                                         (at page 836)  

In a recent judgment, namely, Canara Bank v. N.G. Subbaraya Setty  

& Anr., AIR 2018 SC 3395, this Court after referring to Mathura Prasad  

(supra), held:  

“(ii) An issue of law which arises between the same  parties in a subsequent suit or proceeding is not res  judicata if, by an erroneous decision given on a statutory  prohibition in the former suit or proceeding, the statutory  prohibition is not given effect to.  This is despite the fact  that the matter in issue between the parties may be the  same as that directly and substantially in issue in the  previous suit or proceeding.  This is for the reason that in  such cases, the rights of the parties are not the only matter  for consideration (as is the case of an erroneous  interpretation of a statute inter parties), as the public policy  contained in the statutory prohibition cannot be set at  naught. This is for the same reason as that contained in

33  

matters which pertain to issues of law that raise  jurisdictional questions. We have seen how, in Natraj  Studios (AIR 1981 SC 537), it is the public policy of the  statutory prohibition contained in Section 28 of the  Bombay Rent Act that has to be given effect to.  Likewise,  the public policy contained in other statutory prohibitions,  which need not necessarily go to jurisdiction of a Court,  must equally be given effect to, as otherwise special  principles of law are fastened upon parties when special  considerations relating to public policy mandate that this  cannot be done.”  

(at page 3414)    

27. When it comes to important issues as to the interpretation of the  

Constitution, which is entrusted by the Constitution under Article 145(3)  

to a Bench consisting of a minimum of five Supreme Court Judges, it is  

obvious that an erroneous interpretation of the Constitution by a High  

Court (which affects the general public much more than an erroneous  

interpretation of a statutory prohibition enacted in public interest) cannot  

possibly be res judicata as against a judgment of a Constitution Bench  

of the Supreme Court, as a rule of procedure cannot be exalted over  

Article 145(3) of the Constitution of India. By the judgment dated  

28.09.2018 of a Constitution Bench of this Court, this Court has  

interpreted Article 25(1) to mean that all persons are equally entitled to  

practice the Hindu religion, which would include women between the  

ages of 10 and 50. A previous decision by a High Court, erroneously

34  

interpreting Article 25 in an earlier PIL, can obviously not stand in the  

way, by resort to a rule of procedure, of a judgment of five Judges of the  

Supreme Court declaring the law of the land on this aspect. This  

objection also does not disclose any error apparent on the face of the  

record.  

28. The issue of locus-standi to file a public-interest litigation was re-

argued by some of the review petitioners. Indu Malhotra, J. in her  

dissenting judgment, has held that to entertain a public-interest litigation  

at the behest of persons who are not worshippers at Sabrimala temple  

would open the floodgates of petitions to be filed questioning the validity  

of religious beliefs and practices followed by other religious sects. We  

have pointed out in this judgment that the majority judgment cannot be  

used to undermine the religious rights of others, including, in particular,  

religious minorities. Besides, busybodies, religious fanatics, cranks and  

persons with vested interests will be turned down by the Court at the  

threshold itself, by applying the parameters laid down in State of  

Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 SCC 402 (at  

paragraph 181). The fear expressed by the learned dissenting judge is  

therefore quite unfounded. As has been pointed by Nariman, J. in the

35  

majority judgment (at paragraph 175), the present case raises grave  

issues which relate to gender bias on account of a physiological or  

biological function which is common to all women. It is for this reason  

that a bonafide public-interest litigation was entertained by the majority  

judgment, having regard to women’s rights, in the context of women  

worshippers as a class, being excluded on account of such  

physiological/biological functions for the entirety of the period during  

which a woman enters puberty until menopause sets in.  

29. Given the consensus on the three issues delineated above by  

the four majority judgments, we find that no ground for review of the  

majority judgments has been made out. The review petitions are hence  

dismissed. Equally, all writ petitions filed under Article 32 of the  

Constitution, that have been filed directly attacking the majority  

judgments dated 28.09.2018, are dismissed as not being maintainable  

in view of Naresh Shridhar Mirajkar v. State of Maharashtra, (1966)  

3 SCR 744, as followed in Rupa Ashok Hurra v. Ashok Hurra, (2002)  

4 SCC 388 [see paragraphs 7 to 14].   

30. An argument was made by some of the review petitioners that,  

given the fact that there have been mass protests against

36  

implementation of this judgment, we ought to have a re-look at the entire  

problem. On the other hand, Ms. Indira Jaising, learned Senior Advocate  

appearing on behalf of certain ladies, including Scheduled Caste ladies  

who have been obstructed from entering the Sabarimala temple, or  

having entered the temple, have been subjected to physical and other  

abuses, has made a fervent plea before us to ensure that our judgment  

is implemented in both letter and in spirit.   

31. The arguments and counter-arguments so made, need us to  

restate a few constitutional fundamentals. Under our constitutional  

scheme, the Supreme Court is given a certain pride of place. Under  

Article 129, the Supreme Court shall be a court of record and shall have  

all the powers of such a Court, including the power to punish for  

contempt of itself. Under Article 136, the Supreme Court has been  

granted a vast jurisdiction by which it may interfere with any judgment,  

decree, determination, sentence, or order made by any court or tribunal  

in the territory of India. Indeed, by Article 140, Parliamentary law may  

confer upon the Supreme Court such supplemental powers as may be  

necessary or desirable for the purpose of enabling the Court to exercise  

the jurisdiction conferred upon it by the Constitution more effectively. By

37  

Article 141 of the Constitution, the law declared by the Supreme Court  

shall be binding on all courts, which includes tribunals, within the  

territory of India, which ensures that the Supreme Court, being the final  

arbiter of disputes, will lay down law which will then be followed as a  

precedent by all courts and tribunals within the territory of India. Article  

142 of the Constitution confers upon the Supreme Court the power to  

make such decree or order as is necessary for doing complete justice  

in any cause or matter pending before it. By Article 145(3), a minimum  

number of five Judges are the last word on the interpretation of the  

Constitution, as any case involving a substantial question of law as to  

interpretation of the Constitution must be decided by this minimum  

number of Judges.  

32. What is of particular importance in this case is Article 144 of the  

Constitution of India, which is set out hereinbelow:  

“144. Civil and judicial authorities to act in aid of the  Supreme Court.—All authorities, civil and judicial, in the  territory of India shall act in aid of the Supreme Court.”  

 At this juncture, it is important to understand the true reach of Article 144  

of the Constitution of India. What is of great importance is that it is not  

judicial authorities alone that are to act in aid of the Supreme Court – it

38  

is all authorities i.e. authorities that are judicial as well as authorities that  

are non-judicial. The expression “civil” is an expression of extremely  

wide import, and deals with anything that affects the rights of a citizen.  

Therefore, even textually, all “authorities” which exercise powers over  

the citizens in the territory of India are mandated to act in aid of the  

Supreme Court.  

33. The expression “authority” is not defined by the Constitution of  

India.  However, it is used in several Articles of the Constitution of India.  

Depending upon the context in which it is used, the expression is used  

either in a wide or narrow sense. Examples of the expression being used  

in a narrow sense are as follows:  

Article 73(2) of the Constitution states:  

“73. Extent of executive power of the Union.—  

xxx xxx xxx  

(2) Until otherwise provided by Parliament, a State and  any officer or authority of a State may, notwithstanding  anything in this article, continue to exercise in matters with  respect to which Parliament has power to make laws for  that State such executive power or functions as the State  or officer or authority thereof could exercise immediately  before the commencement of this Constitution.”   

39  

As can be seen from this Article, here, an authority is only of a State,  

when contrasted with authorities of the Union Government. Similarly,  

the converse case is referred to in the proviso to Article 162 as follows:  

“162. Extent of executive power of State.—Subject to  the provisions of this Constitution, the executive power of  a State shall extend to the matters with respect to which  the Legislature of the State has power to make laws:  

Provided that in any matter with respect to which the  Legislature of a State and Parliament have power to make  laws, the executive power of the State shall be subject to,  and limited by, the executive power expressly conferred  by this Constitution or by any law made by Parliament  upon the Union or authorities thereof.”  

34. The proviso speaks of authorities of the Union of India. Likewise,  

Article 258(2) refers to authorities of the State when contrasted with the  

authorities of the Union Government. Article 277 refers to local  

authorities which would have reference to municipalities, panchayats,  

etc. Article 307 refers to an authority set up by Parliament to carry out  

the purposes of Articles 301 to 304, which speak of trade, commerce  

and intercourse within the territory of India, and consequently, deal with  

the economic unity of the nation. Article 329(b) speaks of a quasi-judicial  

authority before which an election petition may be presented. Article  

353(b) and Article 357(1)(b) speak of authorities of the Union, as

40  

contradistinguished with authorities of the State. Article 356(1)(a)  

speaks of State authorities, when contradistinguished with Union  

authorities. Article 372(1) has reference to a “competent authority”,  

being an authority which is competent to amend laws that are in force in  

the territory of India immediately before the commencement of the  

Constitution.  

35. As against these Articles, other Articles speak of “authority” in a  

wide sense. Thus, under Article 12, when it comes to enforcing  

fundamental rights against a State, “local or other authorities” has been  

held to include all State instrumentalities, including government  

companies and cooperative societies, in which the State has a voice.  

As far back as in 1967, in Rajasthan State Electricity Board v. Mohan  

Lal, (1967) 3 SCR 377, the expression “other authorities” was held not  

to be construed as ejusdem generis with the preceding word, “local”.  

Likewise, in Article 154(2)(a), the expression “any other authority” is  

used; and in Article 226 of the Constitution of India, when the High Court  

exercises its writ jurisdiction, it may do so against any person or  

authority.

41  

36. A conspectus of the aforesaid Articles of the Constitution of India  

leads to the conclusion that the expression “authorities” in Article 144 is  

to be given the widest possible meaning.  

37. In Supreme Court Bar Assn. v. Union of India, 1998 (4) SCC  

409, this Court held that the Bar Council of India or the Bar Council of a  

State would be covered, being an “authority” for the purposes of Article  

144, as it is a body created by statute, which performs a public duty [see  

paragraph 79].  

38. Likewise, any authority that exhibits a defiant attitude to any  

order of the Supreme Court has been castigated as being wholly  

objectionable and not acceptable. In M.C. Mehta v. Union of India,  

(2001) 3 SCC 763, this Court stated as follows:  

“11. We are distressed at certain reports which have  appeared in the print and electronic media, exhibiting  defiant attitude on the part of Delhi Administration to  comply with our orders. The attitude, as reflected in the  newspapers/electronic media, if correct, is wholly  objectionable and not acceptable. We have no doubt that  all those concerned with Delhi Administration are aware  of the provisions of Article 144 of the Constitution which  reads,  

“144. Civil and judicial authorities to act in aid of  the Supreme Court.—All authorities, civil and  judicial, in the territory of India shall act in aid of  the Supreme Court.”

42  

as also of the consequence of deliberately flouting the  orders of this Court and non-compliance with the above  constitutional provision…”  

 39. This Court, in State of Tamil Nadu v. State of Karnataka,  

(2016) 10 SCC 617, has castigated the State of Karnataka as follows:  

“74. At this juncture, we may refer to Article 144 of the  Constitution of India. It reads as follows:  

“144. Civil and judicial authorities to act in aid  of the Supreme Court.—All authorities, civil and  judicial, in the territory of India, shall act in aid of  the Supreme Court.”  

75. On a plain reading of the said Article 144, it is clear as  crystal that all authorities in the territory of India are bound  to act in aid of the Supreme Court. Needless to say, they  are bound to obey the orders of the Supreme Court and  also, if required, render assistance and aid for  implementation of the order(s) of this Court, but,  unfortunately, the State of Karnataka is flouting the order  and, in fact, creating a situation where the majesty of law  is dented. We would have proceeded to have taken steps  for strict compliance with our order, but as we are directing  the Cauvery Management Board to study the ground  reality and give us a report forthwith, we reiterate our  earlier direction that the State of Karnataka shall release  6000 cusecs of water from 1-10-2016 till 6-10-2016. We  are granting this opportunity as the last chance and we  repeat at the cost of repetition that we are passing this  order despite the resolution passed by the Joint Houses  of State Legislature of the State of Karnataka. We had  clearly mentioned so in our earlier order, while we stated  Annexure IV to IA No. 16 of 2016. We are sure that the  State of Karnataka being a part of the federal structure of  this country will rise to the occasion and not show any kind  of deviancy and follow the direction till the report on the  ground reality is made available to this Court.”

43  

 40. The position under our constitutional scheme is that the Supreme  

Court of India is the ultimate repository of interpretation of the  

Constitution. Once a Constitution Bench of five learned Judges  

interprets the Constitution and lays down the law, the said interpretation  

is binding not only as a precedent on all courts and tribunals, but also  

on the coordinate branches of Government, namely, the legislature and  

the executive.  What follows from this is that once a judgment is  

pronounced by the Constitution Bench and a decree on facts follows,  

the said decree must be obeyed by all persons bound by it. In addition,  

Article 144 of the Constitution mandates that all persons who exercise  

powers over the citizenry of India are obliged to aid in enforcing orders  

and decrees of the Supreme Court.  This then is the constitutional  

scheme by which we are governed – the rule of law, as laid down by the  

Indian Constitution.  

41. Looked at from another angle, every member of the executive  

Government i.e. every Central Minister, including the Prime Minister, as  

well as every State Minister, including the Chief Ministers in the various  

States are bound vide Article 75(4) and Article 164(3), read with the

44  

Third Schedule, to uphold and defend the Constitution. Thus, insofar as  

Ministers belonging to the Centre are concerned, Article 75(4) states:  

“75. Other provisions as to Ministers.—  

xxx xxx xxx  

(4) Before a Minister enters upon his office, the President  shall administer to him the oaths of office and of secrecy  according to the forms set out for the purpose in the Third  Schedule.  

xxx xxx xxx”  

   The Third Schedule of the Constitution insofar it applies to such  

Ministers reads as follows:  

“THIRD SCHEDULE   

Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219  

FORMS OF OATHS OR AFFIRMATIONS  

I  

Form of oath of office for a Minister for the Union:—  

swear in the name of God  

“I, A.B., do ----------------------------------------------- that I will  

solemnly affirm    

bear true faith and allegiance to the Constitution of India  as by law established, that I will uphold the sovereignty  and integrity of India, that I will faithfully and  conscientiously discharge my duties as a Minister for the  Union and that I will do right to all manner of people in  accordance with the Constitution and the law, without fear  or favour, affection or ill-will.”  

45  

42. Insofar as their oath to uphold and defend the Constitution of  

India is concerned, the Chief Ministers of the several States, together  

with Ministers of their cabinets, are bound by Article 164(3), read with  

the Third Schedule, to uphold and defend the Constitution in the  

following terms:  

“164. Other provisions as to Ministers.—  

xxx xxx xxx  

(3) Before a Minister enters upon his office, the Governor  shall administer to him the oaths of office and of secrecy  according to the forms set out for the purpose in the Third  Schedule.  

xxx xxx xxx”  

“THIRD SCHEDULE   

xxx xxx xxx  

V  

Form of oath of office for a Minister for a State:—  

swear in the name of God  

“I, A.B., do ----------------------------------------------- that I will  

solemnly affirm    

bear true faith and allegiance to the Constitution of India  as by law established, that I will uphold the sovereignty  and integrity of India, that I will faithfully and  conscientiously discharge my duties as a Minister for the  State of………….and that I will do right to all manner of  people in accordance with the Constitution and the law  without fear or favour, affection or ill-will.”  

46  

 43. Insofar as the Members of Parliament are concerned, i.e., the  

Members of both the Lok Sabha and the Rajya Sabha, Article 99, read  

with the Third Schedule, is as follows:  

“99. Oath or affirmation by members.—Every member  of either House of Parliament shall, before taking his seat,  make and subscribe before the President, or some person  appointed in that behalf by him, an oath or affirmation  according to the form set out for the purpose in the Third  Schedule.”  

“THIRD SCHEDULE   

xxx xxx xxx  

III  

B  

Form of oath or affirmation to be made by a member of  Parliament:—  

‘I, A.B., having been elected (or nominated) a member of  the Council of States (or the House of the People)   

swear in the name of God  

do --------------------------------------------- that I will bear true   

solemnly affirm     faith and allegiance to the Constitution of India as by law  established, that I will uphold the sovereignty and integrity  of India and that I will faithfully discharge the duty upon  which I am about to enter.”  

47  

44. Insofar as the Members of State Legislative Assemblies and  

Councils are concerned, Article 188, read with the Third Schedule, is as  

follows:  

“188. Oath or affirmation by members.—Every member  of the Legislative Assembly or the Legislative Council of a  State shall, before taking his seat, make and subscribe  before the Governor, or some person appointed in that  behalf by him, an oath or affirmation according to the form  set out for the purpose in the Third Schedule.”  

“THIRD SCHEDULE   

xxx xxx xxx  

VII  

B  

Form of oath or affirmation to be made by a member of  the Legislature of a State:—  

“I, A.B., having been elected (or nominated) a member  of the Legislative Assembly (or Legislative   

swear in the name of God  

Council), do -------------------------------------------- that I will  

solemnly affirm  

bear true faith and allegiance to the Constitution of India  as by law established, that I will uphold the sovereignty  and integrity of India and that I will faithfully discharge the  duty upon which I am about to enter.”  

 45. It is important to notice, at this juncture, that so far as the Prime  

Minister and members of his Cabinet are concerned, not only does the

48  

form of oath contained in the Third Schedule require that all such  

persons will bear true faith and allegiance to the Constitution of India as  

by law established, but also that they will do right to all manner of people,  

in accordance with the Constitution and the law, without fear or favour,  

affection or ill will. The same goes for the oath taken by the Chief  

Ministers and Ministers within the States. Read with Article 144, this  

would mean that it is the bounden duty of every Minister, whether  

Central or State, to follow Article 144 in letter as well as spirit, and to do  

what is right to all manner of people, in accordance with the Constitution  

and the law, which means in accordance with the interpretation of the  

Constitution declared by the law laid down by the Supreme Court. It is,  

therefore, incumbent upon the executive branch of Government and all  

MPs and MLAs to faithfully aid in carrying out decrees and orders  

passed by the Supreme Court of India when such decrees and orders  

command a particular form of obedience, even where they are not  

parties to the litigation before the Supreme Court. Any deviation from  

this high constitutional principle is in derogation of the oath taken by  

every Minister and Legislator during his term of office. Once this is  

clearly understood and followed, the rule of law is established, and the  

shameful spectacle of political parties running after votes, or instigating

49  

or tolerating mob violence, in defiance of decrees or orders passed by  

the Supreme Court of India does not reign instead.  

46. The history of democratic nations shows that what our founding  

fathers handed to us in the form of the Constitution of India was the  

result of centuries of struggle in both England and the United States of  

America. The bloody revolutions that took place in France and Russia  

against absolute monarchs are a sober reminder to the people of the  

world that social transformation, which took place cataclysmically in  

rivers of human blood, is to be eschewed. An absolute monarch like  

Peter the Great of Russia, could order, by decree, that no adult male  

shall, in the future, have a beard. This was done as part of a move to  

bring Russia out of the middle ages and in line with other advanced  

European nations. For most Orthodox Russians, the beard was a  

fundamental symbol of religious belief and self-respect. It was an  

ornament given by God, worn by the prophets, the apostles and by  

Jesus himself. Ivan the Terrible expressed the traditional Muscovite  

feeling when he declared, “to shave the beard is a sin that the blood of  

all the martyrs cannot cleanse. It is to deface the image of man created  

by God.” This decree was carried out overnight, with Russian officialdom

50  

being armed with razors with which they were to shave, on the spot,  

those unfortunate wretches who had not obeyed the decree. Eventually  

those who insisted on keeping their beards were permitted to do so on  

paying an annual tax. Payment entitled the owner to a small bronze  

medallion with a picture of a beard on it and the words “TAX PAID”, which  

was worn on a chain around the neck to prove to any challengers that  

his beard was legal. The tax was graduated; peasants paid only two  

kopeks a year, wealthy merchants paid as much as a hundred roubles.2  

It is in the wake of such tumultuous events in history, that the great  

democratic constitutions of the world have been promulgated, so that  

social transformation takes place peaceably, as the result of the  

application of the rule of law.  

47. The expression “rule of law” can be traced back to the great  

Greek philosopher Aristotle, who lived 2,400 years ago. In his book on  

the ‘Rule of Law’ by Brian Z. Tamanaha, Aristotle is reported to have  

said:  

“It is better for the law to rule than one of the citizens…so  that even the guardians of the law are obeying the laws.”  

 2 ROBERT K. MASSIE, PETER THE GREAT: HIS LIFE AND WORLD, 234-235 (Ballantine Books  

1980).

51  

48. John Locke had stated, in 1690, in his Second Treatise of  

Government, Chapter XVII, page 400, that, “wherever law ends, tyranny  

begins”.   

49. In the year of the American Declaration of Independence, i.e.  

1776, Thomas Paine, in his book, “Common Sense”, at page 34, stated:  

“…In America the law is king. For as in absolute  governments the King is law, so in free countries the law  ought to be king; and there ought to be no other.”    

50. Prof. A.V. Dicey, the Vinerian Professor of English Law at the  

University of Oxford, in his book, “An Introduction to the Study of the  

Law of the Constitution”, published in 1885, gave three meanings to the  

rule of law. We are directly concerned with the second meaning that was  

thus given. He stated,  

“We mean in the second place, when we speak of the “rule  of law” as a characteristic of our country, not only that with  us no man is above the law, but (what is a different thing)  that here every man, whatever be his rank or condition, is  subject to the ordinary law of the realm and amenable to  the jurisdiction of the ordinary tribunals.”  

(at page 193)

52  

51. The rule of law was first established against absolutist monarchs.   

Thus, in the Magna Carta, which was signed by King John of England  

on 15 June, 1215, it was stated:  

“39. No free man shall be seized or imprisoned or  stripped of his rights or possessions, or outlawed or  exiled, or deprived of his standing in any other way, nor  will we proceed with force against him, or send others to  do so, except by the lawful judgment of his equals or by  the law of the land.  

40. To no one will we sell, to no one deny or delay right  or justice.”     

52. Despite the fact that Pope Innocent III, by a papal bull, in August  

of that year, annulled the Magna Carta, the Magna Carta was repeatedly  

affirmed by English monarchs. Copies of it were printed and distributed  

both in the time of Henry III, i.e., the son of King John, and Edward I,  

King John’s grandson.  

53. The next important landmark in English Law, so far as the rule of  

law is concerned, is the famous Petition of Right3 of 1628, in clause VIII  

of which, it was stated:  

 3 This Petition of Right was signed by King Charles I, who was one of the Stuart Kings of  England, who believed that he governed the realm by divine right. His father, King James  I’s Chief Justice, Lord Edward Coke, stated a fundamental of the British Constitution when  he said to his King that, “Bracton saith, quod Rex non debet esse sub-homine set sub  Deo et lege”, i.e., the King ought not to be under any man, but under God and the law.

53  

“They do therefore humbly pray your most excellent  majesty that no man hereafter be compelled to make or  yield any gift, loan, benevolence, tax or such like charge  without common consent by act of parliament, and that  none be called to make answer or take such oath or to  give attendance or be confined or otherwise molested or  disquieted concerning the same or for refusal thereof. And  that no freeman in any such manner as is before  mentioned be imprisoned or detained. And that your  Majesty would be pleased to remove the said soldiers and  mariners, and that your people may not be so burdened in  time to come. And that the aforesaid commissions for  proceeding by martial law may be revoked and annulled.  And that hereafter no commissions of like nature may  issue forth to any person or persons whatsoever to be  executed as aforesaid, lest by colour of them any of your  Majesty’s subjects be destroyed or put to death contrary  to the laws and franchises of the land.”    

54. The next great landmark establishing the rule of law in England  

was the Bill of Rights, 1689, under which no monarch could rely on  

divine authority to override the law. The authority and independence of  

Parliament was proclaimed, and the power to suspend laws without the  

consent of Parliament was condemned as illegal.  Personal liberty and  

security were protected by prohibiting the requirement of excessive  

fines, the imposition of excessive bail, and the infliction of cruel and  

unusual punishments.

54  

55. In the United States, the rule of law was established by the  

Constitution of the United States, 1789. In particular, Article VI of the  

U.S. Constitution states:  

“This Constitution, and the laws of the United States which  shall be made in pursuance thereof; and all treaties made,  or which shall be made, under the authority of the United  States, shall be the supreme law of the land; and the  judges in every state shall be bound thereby, anything in  the Constitution or laws of any State to the contrary  notwithstanding.”    

56. When it came to the judicial branch of Government, Alexander  

Hamilton, in Federalist Paper No.78, had this to say:  

 “Whoever attentively considers the different departments  of power must perceive, that, in a government in which  they are separated from each other, the judiciary, from the  nature of its functions, will always be the least dangerous  to the political rights of the Constitution; because it will be  least in a capacity to annoy or injure them. The Executive  not only dispenses the honors, but holds the sword of the  community. The legislature not only commands the purse,  but prescribes the rules by which the duties and rights of  every citizen are to be regulated. The judiciary, on the  contrary, has no influence over either the sword or the  purse; no direction either of the strength or of the wealth  of the society; and can take no active resolution whatever.  It may truly be said to have neither FORCE nor WILL, but  merely judgment; and must ultimately depend upon the  aid of the executive arm even for the efficacy of its  judgments.”  

      (emphasis supplied)

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 57. Given the fact that the U.S. Constitution did not contain any  

Article resembling Article 144 of our Constitution, the case of the  

Cherokee Indians vis-à-vis the State of Georgia is instructive. In the first  

judgment dealing with the Cherokee Indians, Chief Justice Marshall  

stated that the Supreme Court had no original jurisdiction to try the case  

as the Cherokee nation was not a foreign nation [see Cherokee  

Nations v. State of Georgia, 30 U.S. 1, 43 (1831)]. However, after this  

first case was decided, the Georgia legislature passed a law requiring  

all white persons living within the Cherokee territory of the State of  

Georgia to obtain a license, and to take an oath of allegiance to the State  

of Georgia.  Two white missionaries refused to do so, and were arrested  

and convicted by a Georgian Court to four years’ imprisonment.  This  

time, Chief Justice Marshall, in 1832, held the Georgia statute  

unconstitutional on the ground that the jurisdiction of the Federal Courts  

over Cherokee Indians was exclusive, and consequently, the State of  

Georgia had no power to pass laws affecting them or their territory.  

Consequently, the judgment of the Georgia superior court, convicting  

the two white missionaries and sentencing them to prison was  

overturned, and the Supreme Court ordered their release [see

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Worcester v. State of Georgia, 31 U.S. 515 (1832)]. The writ that was  

issued in favour of the two white missionaries was, however, never  

executed. President Andrew Jackson is supposed famously to have  

said, “Well, John Marshall has made his decision; now let him enforce  

it.” President Jackson was of the opposite view to that of the Court,  

stating that the state legislatures had powers to extend their laws over  

all persons living within their boundaries. So, a judgment of the highest  

court of the land was blatantly disobeyed by the State of Georgia, with  

the backing of the President of the United States.  

58. One hundred and twenty years later, the U.S. Supreme Court, in  

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),  

overruled a long-standing precedent of 1896, namely, Plessy v.  

Ferguson, 163 U.S. 537 (1896), to now declare that there shall be  

desegregation of black and white students in state schools. A  

constitutional crisis was reached, when the Governor of Arkansas  

openly flouted the desegregation order mandated by the U.S. Supreme  

Court in Brown (supra). In 1957, as stated hereinabove, the Governor  

of Arkansas and officers of the Arkansas National Guard obstructed  

black children from entering the high school at Little Rock, Arkansas. An

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uneasy tension prevailed as the students were prevented entry.  

However, President Eisenhower then despatched federal troops to the  

high school, as a result of which, admission of black students to the  

school was thereby effected. In 1958, the School Board and the  

Superintendent of Schools filed a petition in the District Court seeking  

postponement of their programme for desegregation.  This was because  

of conditions at the ground level of “chaos, bedlam, and turmoil”. The  

District Court granted the relief requested by the Board. The Court of  

Appeals for the Eighth Circuit stayed the aforesaid judgment.  

59. In Cooper v. Aaron, 358 U.S. 1 (1958), [“Cooper”] the US  

Supreme Court, by a unanimous judgment, held:  

“The controlling legal principles are plain. The command  of the Fourteenth Amendment is that no “State” shall deny  to any person within its jurisdiction the equal protection of  the laws. “A State acts by its legislative, its executive, or  its judicial authorities. It can act in no other way. The  constitutional provision, therefore, must mean that no  agency of the State, or of the officers or agents by whom  its powers are exerted, shall deny to any person within its  jurisdiction the equal protection of the laws. Whoever, by  virtue of public position under a State government . . .  denies or takes away the equal protection of the laws  violates the constitutional inhibition; and, as he acts in the  name and for the State, and is clothed with the State’s  power, his act is that of the State. This must be so, or the  constitutional prohibition has no meaning.” Ex parte

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Virginia, 100 U. S. 339, 347; 25 L ed 676, 679. Thus, the  prohibitions of the Fourteenth Amendment extend to all  action of the State denying equal protection of the laws;  whatever the agency of the State taking the action, see  Virginia v. Rives, 100 U. S. 313; Pennsylvania v. Board of  Directors of City Trusts of Philadelphia, 353 U. S.  230; Shelley v. Kraemer, 334 U. S. 1; or whatever the  guise in which it is taken, see Derrington v. Plummer, 240  F.2d 922; Department of Conservation and Development  v. Tate, 231 F.2d 615.   

In short, the constitutional rights of children not to be  discriminated against in school admission on grounds of  race or colour declared by this Court in the Brown case  can neither be nullified openly and directly by state  legislators or state executive or judicial officers nor  nullified indirectly by them through evasive schemes for  segregation whether attempted “ingeniously or  ingenuously.” Smith v. Texas, 311 U. S. 128, 132.”  

(emphasis supplied)  (at pp. 16-17)  

60. Justice Frankfurter, in a separate concurring opinion, stated:  

“When defiance of law, judicially pronounced, was last  sought to be justified before this Court, views were  expressed which are now especially relevant:  

“The historic phrase ‘a government of laws, and  not of men’ epitomizes the distinguishing  character of our political society. When John  Adams put that phrase into the Massachusetts  Declaration of Rights, he was not indulging in a  rhetorical flourish. He was expressing the aim of  those who, with him, framed the Declaration of  Independence and founded the Republic. ‘A  government of laws, and not of men,’ was the  rejection in positive terms of rule by fiat, whether

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by the fiat of governmental or private power.  Every act of government may be challenged by  an appeal to law, as finally pronounced by this  Court. Even this Court has the last say only for a  time. Being composed of fallible men, it may err.  But revision of its errors must be by orderly  process of law. The Court may be asked to  reconsider its decisions, and this has been done  successfully again and again throughout our  history. Or what this Court has deemed its duty  to decide may be changed by legislation, as it  often has been, and, on occasion, by  constitutional amendment.”  

“But, from their own experience and their deep  reading in history, the Founders knew that Law  alone saves a society from being rent by  internecine strife or ruled by mere brute power  however disguised. ‘Civilization involves  subjection of force to reason, and the agency of  this subjection is law.’ (Pound, The Future of Law  (1937) 47 Yale L.J. 1, 13.) The conception of a  government by laws dominated the thoughts of  those who founded this Nation and designed its  Constitution, although they knew as well as the  belittlers of the conception that laws have to be  made, interpreted and enforced by men. To that  end, they set apart a body of men who were to  be the depositories of law, who, by their  disciplined training and character and by  withdrawal from the usual temptations of private  interest, may reasonably be expected to be ‘as  free, impartial, and independent as the lot of  humanity will admit.’ So strongly were the  framers of the Constitution bent on securing a  reign of law that they endowed the judicial office  with extraordinary safeguards and prestige. No  one, no matter how exalted his public office or  how righteous his private motive, can be judge in

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his own case. That is what courts are for.” United  States v. United Mine Workers, 330 U. S.  258, 307-309 (concurring opinion).  

The duty to abstain from resistance to “the supreme Law  of the Land,” U.S. Const., Art. VI, ¶ 2, as declared by the  organ of our Government for ascertaining it, does not  require immediate approval of it, nor does it deny the right  of dissent. Criticism need not be stilled. Active obstruction  or defiance is barred. Our kind of society cannot endure if  the controlling authority of the Law as derived from the  Constitution is not to be the tribunal specially charged with  the duty of ascertaining and declaring what is “the  supreme Law of the Land.” See President Andrew  Jackson’s Message to Congress of January 16, 1833, II  Richardson, Messages and Papers of the Presidents  (1896 ed.) 610, 623.)”  

(at pp. 23-24)  

“That the responsibility of those who exercise power in a  democratic government is not to reflect inflamed public  feeling, but to help form its understanding, is especially  true when they are confronted with a problem like a  racially discriminating public school system. This is the  lesson to be drawn from the heartening experience in  ending enforced racial segregation in the public schools in  cities with Negro populations of large proportions.  Compliance with decisions of this Court, as the  constitutional organ of the supreme Law of the Land, has  often, throughout our history, depended on active support  by state and local authorities. It presupposes such  support. To withhold it, and indeed to use political power  to try to paralyze the supreme Law, precludes the  maintenance of our federal system as we have known and  cherished it for one hundred and seventy years.”  

(emphasis supplied)  (at page 26)  

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61. The aftermath of this decision was the enactment of the Civil  

Rights Act by the U.S. Congress in 1964. It was thanks to the decision  

in Cooper (supra) that the U.S. Congress finally outlawed racial  

discrimination in every form, including segregation of races at schools.  

Social transformation, therefore, took place as a result of the decisions  

in Brown (supra) and Cooper (supra). Constitutional morality did  

ultimately triumph over racial discrimination.   

62. In our country, an interesting incident took place in 1828, as a  

result of which, there was a direct confrontation between the Supreme  

Court at Bombay and Governor Malcolm. This incident is narrated in  

P.B. Vachha’s book, “Famous Judges, Lawyers and Cases of Bombay”  

as follows:  

“In 1828, a few days after the death of West, the two  remaining judges of the Supreme Court issued a writ of  Habeas  Corpus to the Poona court, for the production  before them of one Moro, a boy of 14, who was in the  guardianship of his uncle Pandurang, at the instance of  the boy’s father-in-law, who complained of the evil  influences of the uncle on the minor. It seems that the  jurisdiction of the Supreme Court was vaguely defined in  its Charter; and Malcolm thought that the judges in issuing  the writ had exceeded their powers. He regarded the  occasion as a most favourable opportunity for striking a  blow at the Supreme Court. “The opportunity of striking a  blow at these courts,” he wrote, “was given me, and to the  utmost of my strength, I will inflict it.” He issued orders

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instructing the Poona court to ignore the writ, with the  result that the writ remained unserved. This was a direct  and calculated challenge to the authority of the Supreme  Court. The Governor added insult to injury by addressing  a letter to the judges, informing them that he had given  orders to the Company’s servants to take no notice of any  writs issued by the Supreme Court to the mofussil courts,  or to native subjects resident outside the limits of the town  and island of Bombay. When the Clerk of the Court read  out this communication in open court at its next sitting, the  judges strongly and rightly resented the discourteous and  dictatorial tone of the communication; and they nobly and  valiantly declared that “the court would not allow any  individual, be his rank ever so distinguished, or his powers  ever so predominant, to address it in any other way  respecting its judicial and public functions, than as the  humblest suitor, who applies for its protection”; adding,  “within these walls, we know no equal and no superior but  God and the King”. They warned the government against  instigating any persons to disobey the writs of the King  issued by his judges.  

Chambers died within a fortnight. At the next sitting  of the court, Grant, sitting alone, said that the government  had killed his brother judge, “but they shall not kill me”;  and that he was prepared to fight singlehanded for the  rights and privileges of his officer. Finding that no return  to the writ of Habeas Corpus was forthcoming, owing to  the obstruction of the government, Grant issued a fresh  writ returnable immediately, with a penalty of Rs.10,000 in  case of disobedience. A special constable was sent to  Poona with authority to seek military aid, if the civil  authorities obstructed him in the discharge of his duty. The  Commander of the Bombay forces, Sir Thomas Bradford,  who was at first disposed to support the government, now  veered round to the side of the judiciary, declaring that to  oppose the writ was to oppose the King, and he would call  out the military to enforce His Majesty’s writ.

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Malcolm retorted by declaring that, if the  Commander interfered, he would “deport him bag and  baggage” out of India, regardless of all consequences.  Grant then took the extreme measure of going on strike  with his entire staff, and locked up the High Court,  suspending its functions for a period of about five months.  Malcolm, of course, was banking upon the support of the  home authorities. His friend, the Duke of Wellington, being  now Prime Minister, Malcolm hastened to forward to  London his own version of the case.  Grant also had sent  his protest to the Board of Control. After some interval, the  long awaited despatch of the Board arrived. The Board  condemned the attitude of the Supreme Court, fortified it  seems by the Privy Council’s ruling, that the writ was  improperly issued by the Supreme Court over a person  outside their jurisdiction. As stated before, the territorial  limits of the jurisdiction of the Supreme Court had been ill- defined in its Charter; and it is also possible that, since  only the King’s Court had power to issue a writ of Habeas  Corpus, the judges might have thought that, in the matter  of this writ at least, their jurisdiction extended beyond the  town and island of Bombay.  

The despatch of the India Board further contained  orders appointing Dewar, who was then Advocate- General, as Chief Justice, and William Seymour, a  barrister, as puisne judge, Chambers being dead. Lord  Ellenborough, President of the Board of Control,  expressed the hope that “these appointments  will prevent  all mischief in future; as Grant will now be like a wild  elephant between two tame elephants.” But Grant was  “wild elephant” with a very tough hide, and made of  sterner stuff for twenty years’ and closed his stormy and  valiant judicial career in 1848, as judge of the Supreme  Court of Calcutta. Grant forfeited the favour of the  authorities, but gained immensely in popularity with the  Bombay public. It is said that on his departure from  Bombay, “the natives drew his carriage”. Grant died at sea

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on his voyage home, after his retirement from the Calcutta  High Court.”  

(emphasis supplied)   (at pp. 196-198)  

63. Given the chequered history of the open flouting of judgments of  

superior courts in the 19th century, the 20th century has witnessed a  

complete about-turn, as can be seen by the U.S. Supreme Court  

judgment in Cooper v. Aaron (supra). Today, it is no longer open to any  

person or authority to openly flout a Supreme Court judgment or order,  

given the constitutional scheme as stated by us hereinabove. It is  

necessary for us to restate these constitutional fundamentals in the light  

of the sad spectacle of unarmed women between the ages of 10 and 50  

being thwarted in the exercise of their fundamental right of worship at  

the Sabarimala temple.4  Let it be said that whoever does not act in aid  

of our judgment, does so at his peril – so far as Ministers, both Central  

and State, and MPs and MLAs are concerned, they would violate their  

constitutional oath to uphold, preserve, and defend the Constitution of  

 4 The Travancore Devaswom Board, in the initial round of hearing, opposed the public  interest writ petitions that were filed in this Court.  However, after the judgment dated  28.09.2018 was delivered by the Constitution Bench, Shri Rakesh Dwivedi, learned  Senior Advocate appearing on behalf of the Board, appeared before us and opposed the  review petitions that were filed in this Court, stating that the Board has decided to accept  this Court’s judgment.

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India. So far as the citizens of India are concerned, we would do well to  

remind them of the fundamental duties of citizens laid down in Article  

51A of the Constitution, in particular, clauses (a), (e), and (h) thereof,  

which state:  

“51A. Fundamental duties.—It shall be the duty of every  citizen of India—  

(a) to abide by the Constitution and respect its ideals and  institutions, the National Flag and the National Anthem;  

xxx xxx xxx  

(e) to promote harmony and the spirit of common  brotherhood amongst all the people of India transcending  religious, linguistic and regional or sectional diversities; to  renounce practices derogatory to the dignity of women;  

xxx xxx xxx  

(h) to develop the scientific temper, humanism and the  spirit of inquiry and reform;  

xxx xxx xxx”         (emphasis supplied)  

We may, at this juncture, make it clear that the freedom to criticise the  

judgments of this Court is not being interfered with. Lord Atkin’s famous  

words, in the case of Ambard v. Attorney-General for Trinidad And  

Tobago, [1936] A.C. 322, come to mind:  

“But whether the authority and position of an individual  judge, or the due administration of justice, is concerned,  no wrong is committed by any member of the public who  exercises the ordinary right of criticising, in good faith, in

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private or public, the public act done in the seat of justice.  The path of criticism is a public way: the wrong headed  are permitted to err therein: provided that members of the  public abstain from imputing improper motives to those  taking part in the administration of justice, and are  genuinely exercising a right of criticism, and not acting in  malice or attempting to impair the administration of justice,  they are immune. Justice is not a cloistered virtue: she  must be allowed to suffer the scrutiny and respectful, even  though outspoken, comments of ordinary men.”  

(at page 335)  

 64. Bona fide criticism of a judgment, albeit of the highest court of  

the land, is certainly permissible, but thwarting, or encouraging persons  

to thwart, the directions or orders of the highest court cannot be  

countenanced in our Constitutional scheme of things. After all, in India’s  

tryst with destiny, we have chosen to be wedded to the rule of law as  

laid down by the Constitution of India. Let every person remember that  

the “holy book” is the Constitution of India, and it is with this book in  

hand that the citizens of India march together as a nation, so that they  

may move forward in all spheres of human endeavour to achieve the  

great goals set out by this “Magna Carta” or Great Charter of India.   

65. The Constitution places a non-negotiable obligation on all  

authorities to enforce the judgments of this Court. The duty to do so  

arises because it is necessary to preserve the rule of law. If those whose

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duty it is to comply were to have a discretion on whether or not to abide  

by a decision of the court, the rule of law would be set at naught. Judicial  

remedies are provided to stakeholders before a judgment is pronounced  

and even thereafter. That, indeed, is how the proceedings in review in  

the present case have been initiated. Hence arguments have been  

addressed, exchanged between counsel and considered with the sense  

of objectivity and fairness on which the judicial process rests. These  

remedies within a rule of law framework provide recourse to all those  

who may be and are affected by the course of a judicial decision. When  

the process is complete and a decision is pronounced, it is the decision  

of the Supreme Court and binds everyone. Compliance is not a matter  

of option. If it were to be so, the authority of the court could be diluted at  

the option of those who are bound to comply with its verdicts.  

66. The State of Kerala is directed to give wide publicity to this  

judgment through the medium of television, newspapers, etc. The  

government should take steps to secure the confidence of the  

community in order to ensure the fulfillment of constitutional values. The  

State government may have broad-based consultations with  

representatives of all affected interests so that the modalities devised

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for implementing the judgment of the Court meet the genuine concerns  

of all segments of the community. Organised acts of resistance to thwart  

the implementation of this judgment must be put down firmly. Yet in  

devising modalities for compliance, a solution which provides lasting  

peace, while at the same time reaffirming human dignity as a  

fundamental constitutional value, should be adopted. Consistent with  

the duties inhering in it, we expect the State government to ensure that  

the rule of law is preserved. All petitions are disposed of accordingly.  

        ……………………………..J.         (R.F. Nariman)             ……………………………..J.         (D.Y. Chandrachud)    

New Delhi;  November 14, 2019.