CIVIL

Sabarimala Temple

13-10-2017

Supreme Court-min
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 373 OF 2006
Indian Young Lawyers Association & Ors. …Petitioner(s)
Versus
State of Kerala & Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, CJI.
In this public interest litigation preferred under Article 32 of
the Constitution of India the petitioners have prayed for issue of
appropriate writ or direction commanding the Government of
Kerala, Dewaswom Board of Travancore, Chief Thanthri of
Sabarimala Temple and the District Magistrate of Pathanamthitta
and their officers to ensure entry of female devotees between the
age group of 10 to 50 at the Lord Ayappa Temple at Sabarimala
(Kerala) which has been denied to them on the basis of certain
custom and usage; to declare Rule 3(b) of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Rules, 1965 (for
short, “the 1965 Rules”) framed in exercise of powers conferred
by Section 4 of the Kerala Hindu Places of Public Worship
2
(Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as
unconstitutional being violative of Articles 14, 15, 25 and 51A(e)
of the Constitution of India and further to pass directions for
safety of women pilgrims. That apart, a prayer has also been
made for laying guidelines in matters of general inequality related
to religious practices in places of worship.
2. The preamble to 1965 Act lays down that the Act has been
enacted to make better provisions for entry of all classes and
sections of Hindu into places of public worship. Section 2 is the
dictionary clause. It reads as follows:-
“Section 2. Definitions:- In this Act, unless the
context otherwise requires, –
(a) “Hindu” includes a person professing the
Buddhist, Sikh or Jaina religion;
(b) “place of public worship” means a place, by
whatever name known or to whomsoever
belonging, which is dedicated to, or for the benefit
of, or is used generally by, Hindus or any section
or class thereof, for the performance of any
religious service or for offering prayers therein, and
includes all ands and subsidiary shrines, mutts,
devasthanams, namaskara mandapams and
nalambalams appurtenant or attached to any such
place, and also any sacred tanks, wells, springs
and water courses the waters of which are
worshipped, or are used for bathing or for worship,
but does not include a “sreekoil”;
(c) “section or class” includes any division,
sub-division, caste, sub-caste, sect or
denomination whatsoever.”
3. Section 3 that provides for places of public worship to be
open to all sections and classes of Hindus reads thus:-
“Section 3. Places of public worship to be open
to all section and classes of Hindus:-
Notwithstanding anything to the contrary
contained in any other law for the time being in
force or any custom or usage or any instrument
having effect by virtue of any such law or any
decree or order of court, every place of public
worship which is open to Hindus generally or to
any section or class thereof, shall be open to all
sections and classes of Hindus; and no Hindu of
whatsoever section or class shall, in any manner,
be prevented, obstructed or discouraged from
entering such place of public worship, or from
worshipping or offering prayers thereat, or
performing any religious service therein, in the like
manner and to the like extent as any other Hindu
of whatsoever section or class may enter, worship,
pray or perform:
Provided that in the case of a public of public
worship which is a temple founded for the benefit
of any religious denomination or section thereof,
the provisions of this section, shall be subject to
the right of that religious denomination or section
as the case may be, to manage its own affairs in
matters of religion.”
4. Section 4 deals with the power to make regulations. The
said provision being significant is reproduced below:-
“Section 4. Power to make regulations for the
maintenance of order and decorum and the due
performance of rites and ceremonies in places
of public worship:- (1) The trustee or any other
person in charge of any place or public worship
shall have power, subject to the control of the
competent authority and any rules which may be
made by that authority, to make regulations for
the maintenance of order and the decorum in the
place of public worship and the due observance of
the religious rites and ceremonies performed
therein:
Provided that no regulation made under this
sub-section shall discriminate in any manner
whatsoever, against any Hindu on the ground that
he belongs to a particular or class.
(2) The competent authority referred to in
sub-section (1) shall be,-
(i) in relation to a place of public worship situated
in any area to which Part I of the
Travancore-Cochin Hindu Religious Institutions
Act, 1950 (Travancore-Cochin Act XV of 1930),
extends, the Travancore Devaswom Board;
(ii) in relation to a place of public worship situated
in any area to which Part II of the said Act
extends, the Cochin Devaswom Board; and
(iii) in relation to a place of public worship situated
in any other area in the State of Kerala, the
Government.”
5. The State of Kerala in exercise of power under Section 4
framed the 1965 Rules. Rule 3 of the 1965 Rules is extracted
hereunder:-
“Rule 3. The classes of persons mentioned here
under shall not be entitled to offer worship in any
place of public worship or bath in or use the water
of any sacred tank, well, spring or water course
appurtenant to a place of public worship whether
situate within or outside precincts thereof, or any
sacred place including a hill or hill lock, or a road,
street or pathways which is requisite for obtaining
access to the place of public worship-
(a) Persons who are not Hindus.
(b) Women at such time during which they are not
by custom and usage allowed to enter a place of
public worship.
(c) Persons under pollution arising out of birth or
death in their families.
(d) Drunken or disorderly persons.
(e) Persons suffering from any loathsome or
contagious disease.
(f) Persons of unsound mind except when taken for
worship under proper control and with the
permission of the executive authority of the place
of public worship concerned.
(g) Professional beggars when their entry is solely
for the purpose of begging.”
[Emphasis supplied]
6. It is contended in the Writ Petition that the Division Bench
of the High Court of Kerala in S. Mahendran v. The Secretary,
Travancore Devaswom Board, Thiruvananthpuram and Ors1
has upheld the practice of banning the entry of women above the
age of 10 and below the age of 50 to trek the holy hills of
Sabarimala in connection with the pilgrimage to the Sabarimala
1 AIR 1993 Kerala 42
temple and from offering worship at Sabarimala Shrine during
any period of the year. It is worthy to note here that a public
interest litigation was entertained by the High Court on the basis
of a petition sent by one S. Mahendran which was converted into
a Writ Petition and treated as a public interest litigation. It
complained that the young women are not allowed to offer
prayers at the Sabarimala Shrine which was contrary to the
customs and usage followed in the temple. The Chief Secretary
of the State of Kerala filed a counter affidavit before the High
Court. The High Court has summarized the said affidavit which
is to the following effect:-
“10. The Chief Secretary of Kerala filed a
counter-affidavit on behalf of 3rd respondent. In
that affidavit it is stated that the Tavancore
Devaswom Board has to manage and arrange for
the conduct of daily worship and ceremonies and
festivals in every temple according to its usage as
per the provision contained in Section 31 of the
Travancore-Cochin Hindu Religious Institutions
Act. The Board is entrusted with administration as
well as making of rules. Regarding the entry in
temples, necessary provision has been made in the
Travancore-Cochin Temple (Removal of
Disabilities) Act and by Act 7 of 1965. Every Hindu
shall be entitled to enter a temple and offer
worship there by virtus of Section 3 of that Act.
The Travancore Devaswom Board had framed rules
before the enactment of Act 7/1965 under Section
9 of the Temple Entry Act. Rule 6(c) framed
thereunder relates to entry of women. The
restriction is for entry of women at such times
during which they are not by custom and usage
allowed to enter temples. The Board issues
notifications every year informing the public about
the prohibition regarding entry of women of the
age group of 10 to 50 in the Sabarimala temple
and Pathinattampadi during Mandalam,
Makaravilakku festival and Vishu. Third
respondent further contends that the complaint
voiced by the petitioner is not one maintainable
under Article 226 of the Constitution of India and
seeks dismissal of the petition.”
7. The High Court posed the following questions:-
“(1) Whether woman of the age group 10 to 50 can
be permitted to enter the Sabarimala temple at any
period of the year or during any of the festivals or
poojas conducted in the temple.
(2) Whether the denial of entry of that class of
woman amounts to discrimination and violative of
Articles 15, 25 and 26 of the Constitution of India,
and
(3) Whether directions can be issued by this Court
to the Devaswom Board and the Government of
Kerala to restrict the entry of such woman to the
temple?”
8. We need not refer to the reasoning and the analysis made
by the High Court, for what we are going to say at a later stage.
After devoting some space, the High Court held thus:-
“40. The deity in Sabarimala temple is in the form
of a Yogi or a Bramchari according to the Thanthri
of the temple. He stated that there are Sasta
temples at Achankovil, Aryankavu and
Kulathupuzha, but the deities there are in
different forms. Puthumana Narayanan
Namboodiri, a Thanthrimukhya recognised by the
Travancore Devaswom Board, while examined as
C.W. 1 stated that God in Sabarimala is in the
form of a Naisthik Bramchari. That, according to
him, is the reason why young women are not
permitted to offer prayers in the temple.
41. Since the deity is in the form of a Naisthik
Brahmachari, it is therefore believed that young
women should not offer worship in the temple so
that even the slightest deviation from celibacy and
austerity observed by the deity is not caused by
the presence of such women.”
And again:-
“43. … We are therefore of the opinion that the
usage of woman of the age group 10 to 50 not
being permitted to enter the temple and its
precincts had been made applicable throughout
the year and there is no reason why they should
be permitted to offer worship during specified days
when they are not in a position to observe penance
for 41 days due to physiological reasons. In short,
woman after menarche up to menopause are not
entitled to enter the temple and offer prayers there
at any time of the year.”
9. The conclusions summed up by the High Court read as
follows:-
“44. Our conclusions are as follows :
(1) The restriction imposed on women aged above
10 and below 50 from trekking the holy hills of
Sabarimala and offering worship at Sabarimala
9
Shrine is in accordance with the usage prevalent
from time immemorial.
(2) Such restriction imposed by the Devaswom
Board is not violative of Articles 15, 25 and 26 of
the Constitution of India.
(3) Such restriction is also not violative of the
provisions of Hindu Place of Public Worship
(Authorisation of Entry) Act, 1965 since there is no
restriction between one section and another
section or between one class and another class
among the Hindus in the matter of entry to a
temple whereas the
prohibition is only in respect of women of a
particular age group and not women as a class.”
10. It issued the following directions:-
“45. In the light of the aforesaid conclusions we
direct the first respondent, the Travancore
Devaswom Board, not to permit women above the
age of 10 and below the age of 50 to trek the holy
hills of Sabarimala in connection with the
pilgrimage to the Sabarimala temple and from
offering worship at Sabarimala Shrine during any
period of the year. We also direct the 3rd
respondent, Government of Kerala, to render all
necessary assistance inclusive of police and to see
that the direction which we have issued to the
Devaswom Board is implemented and complied
with.”
11. When this matter was listed, we requested Mr. Raju
Ramachandran and Mr. K. Ramamoorthy, learned senior counsel
to assist the Court as amici curiae.
10
12. We have heard Mr. Raju Ramachandran and Mr. K.
Ramamoorthy, learned amici curiae, Mr. R.P. Gupta, learned
counsel for the petitioners, Mr. Jaideep Gupta, learned senior
counsel for the State of Kerala, Mr. K.K. Venugopal, Mr. K.
Radhakrishnan and Ms. Indira Jaising, learned senior counsel
and Mr. V.K. Biju, learned counsel for the respondents
/intervenors. Be it clarified, the matter was heard solely for the
purpose of considering whether the matter should be referred to
a larger Bench or not. After the matter was reserved, learned
counsel for the parties have filed their written notes of
submissions.
13. Before we refer to the legal issues, it is interesting to note
that an affidavit was filed by the first respondent – State of
Kerala through Joint Secretary, Government Secretariat,
Thiruvananthapuram on 13.11.2007 asserting, inter alia, that
the Government is not against any sort of discrimination towards
women. An additional affidavit was filed on 05.02.2016 stating
that an erroneous stand was taken in the earlier affidavit dated
13.11.2007. The subsequent affidavit states that the said
affidavit could not have gone contrary to the High Court
judgment and a stand in variance to the stand taken before the
11
High Court could not have been taken. In the earlier affidavit,
the State had supported the petitioners but in the additional
affidavit, it has been asserted :-
“12. It is submitted that lakhs of women devotees
visit Sabarimala every year. However the
restriction of women between the age of 10 and 50
has been prevailing in Sabrarimala from time
immemorial. This is in keeping with the unique
“pratishta sangalp” or idol concept of the temple.
The same is an essential and integral part of the
right of practice or religion of a devotee and comes
under protective guarantee of the Constitution
under article 25 and 26 which has been held to
contain a guarantee for rituals, observances,
ceremonies and modes of worship which are an
essential or integral part of religion. It is then
immune from challenge under Article 14. This
Hon’ble Court in Ritu Prasad Sharma v. State
of Assam, (2015) 9 SCC 461 held that religious
customs which are protected under Articles 25 and
26 are immune from challenge under other
provisions of Part III of the Constitution.”
14. It is further asserted in the latter affidavit that:
“14. It is submitted that the Petitioners have
challenged the constitutionality of Rule 3(b) of the
Kerala Hindu Places of Public Worship
(Authorisaton of Entry) Rules, 1965 which
provides that women at such time during which
they are not by custom and usage allowed to enter
a place of public worship shall be included in the
class of persons who shall not be entitled to offer
worship in any place of worship. It is submitted
that said Rule only reflects the guarantee under
Articles 25 and 26(b) where rituals, ceremonies
and modes of worship which are exclusively
matters of religion are excluded from the
legislation under Article 25(2)(b).”
12
15. After referring to Rule 3, the asseveration of the State is:
“It is clear that it is only customs and usages of
temples and rules required to maintain order,
decorum and safety of the temple which are
protected by these rules and such exclusions are
not on the basis of caste, birth, pedigree or sex but
based on the beliefs, customs and usages of the
temple. As far as Sabarimala is concerned,
restriction of entry to persons who are not Hindus
is not applicable and devotees of all religions
worship at Sabarimala.”
16. Mr. R.P. Gupta, learned counsel for the petitioners submits
that there is no religious custom or usage in the Hindu religion
specially in Pampa river region to disallow women during
menstrual period. According to him, banning entry of women
would be against the basic tenets of Hindu religion. It is his
assertion in the written note that Sabarimala Temple is not a
separate religious denomination because (i) the religious
practices performed in Sabarimala Temple at the time of ‘Puja’
and other religious ceremonies are not distinct and are akin to
any other practice performed in any Hindu Temple; (ii) that it
does not have its separate administration but is regulated by
statutory Board constituted under Travancore-Cochin Hindu
Religious Institutions Act, 1950; (iii) that it is getting State
funding out of Consolidated Fund under Article 290-A of the
Constitution; (iv) that there is no particular follower of this
13
temple except general Hindu followers visiting any temple; and (v)
that mere attraction of some people for some temple does not
make it a separate and distinct religious denomination. Learned
counsel referring to the decision in The Commissioner, Hindu
Religious Endowments, Madras v. Shri Lakhshmindra
Thirtha Swamiar of Sri Shirur Mutt2
would contend that
what is protected under Article 26(b) is only the ‘essential part’ of
religion. Relying on Durgah Committee, Ajmer v. Syed
Hussain Ali3
, it is urged by him that clauses (c) and (d) of Article
26 do not create any new right in favour of religious
denomination but only safeguards their rights. Learned counsel
contends that in the matters of managing religious affairs, all
practices are not always sacrosanct, for there may be many ill
practices like superstitions which in due course of time may be
merely accretions to the basic theme of that religious
denomination. It is put forth by him that entry to the temple is
not essential to religion and there is difference between
“regulation of entry” and “complete prohibition of entry”. Placing
reliance on Sri Venkatramana Devaru & Ors. v. State of
2 1954 SCR 1005
3 (1962) 1 SCR 383
14
Mysore & Ors.4
, learned counsel submits that the religious
denomination cannot completely exclude the members of any
community and may only restrict their entry in certain rituals.
He further contends that the relevant Rule cannot be interpreted
to mean that it bars entry of women as such an interpretation
would invite violation of principles underlying gender equality.
Mr. Gupta contends that the expression ‘at any stage of time’
occurring in Rule 3(b) has to be read narrowly which can be
found in customs or usage like during late night if by any custom
or usage women are not allowed to enter temple, the said custom
or usage shall continue but it does not permit complete
prohibition of entry of women.
17. Ms. Indira Jaising, learned senior counsel submits that
entry into temple is a matter of religion as has been spelt out in
Sri Venkatramana Devaru (supra) case and the right of entry is
claimed for worship for the purposes of “darshan” and hence, is a
part of the fundamental right under Article 25. She has
commended us to the authority in Sastri Yagnapurushadji
and Ors. v. Muldas Bhudardas Vaishya and Anr5
. Learned
4 (1958) SCR 895
5 1966 3 SCR 242 : AIR 1966 SC 1119
15
senior counsel would urge that Section 4 of the 1965 Act
provides that no regulation has to be made to discriminate in any
manner whatsoever against any Hindu on the ground that he
belongs to a particular section or class and, therefore, Rule 3(b)
cannot withstand scrutiny. Learned senior counsel has pointed
out that Notifications which stipulate a ban of women from the
age of 10 to 50 from entering the temple is contrary to the 1965
Act as well as the Constitution. According to her, the same is
contrary to the letter and spirit of the Constitution as enshrined
under Articles 25 and 26. It is her contention that Sabarimala is
not a denominational temple but a temple for all Hindus and,
therefore, Article 26(b) is not attracted. The said temple permits
all categories of Hindus to enter the temple regardless of the
denomination. It is her stand that Rule 3 is also utra vires the
1965 Act inasmuch Section 4 of the 1965 Act restricts the
authorities from making any rule that discriminates against any
Hindu on the ground that he belongs to a section or class and
the rule coupled with notifications singles out women as a
separate class of Hindu whose entry into the places of public
worship can be restricted based on custom. According to the
16
learned senior counsel, the right to manage the affairs in the
matter of religion does not encompass the right to ban entry
inside a temple. She has placed reliance on Sastri
Yagnapurushadji (supra), Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi v. State of U.P.6 and A.S.
Naryana Deekshitulu v. State of A.P.7
. She would emphasise
on harmonious interpretation of constitutional provisions, that
is, Articles 14, 15, 25 and 26 of the Constitution. Learned senior
counsel placing reliance upon Adi Saiva Sivachariyargal Nala
Sangam and Ors. v. The Government of Tamil Nadu and
Ors.
8
submits that constitutional legitimacy supersedes all
religious beliefs and, therefore, prohibition on entry of women
between the ages of 10 to 50 years plays foul of the constitutional
principle. She would also submit that it is not a custom as is
conceived of by the authorities and even if it is accepted as such,
it is wholly unconstitutional as it creates an invidious
discrimination perpetrating sexual differences.
6 1997 (4) SCC 606
7 1996 (9) SCC 548
8 AIR 2016 SC 209
17
18. Mr. K. Ramamoorthy, learned amicus curiae in his written
note of submission has put forth that the judgment of the High
Court of Kerala is founded on the religious practice and after
detailed enquiry the view having taken by the High Court that
the restriction imposed by the Devaswom Board is not violative of
Articles 15, 25 and 26 of the Constitution, the same should not
set at naught in this petition for public interest litigation. His
further argument is that the devotees of Lord Ayyappa could also
be brought within the ambit of religious denomination who have
been following the religious practice which has been essential
part of religion. His stand is that this Court had no occasion to
consider the important question, that is, what is religious
practice on the basis of religious belief which would apply not
only to Ayyappa temple but would also apply to all the prominent
temples all over India and, therefore, the matter has to be
decided by a Constitution Bench. According to the learned senior
counsel, none of the cases cited at the Bar would govern the
issue raised here, that is, protection under Articles 25 and 26 of
the Constitution is not limited to the matters of doctrine or belief
but also extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals and observations,
ceremonies and modes of worship which are integral parts of
religion. The concept “essential part of religious practice” has to
be decided by the Court with reference to the practices which are
regarded by the large sections of the community for several
centuries. It is propounded by him that a religious practice based
on religious faith adhered to and followed by millions of Hindus
for over a millennium in consonance with natural rights of men
and women is not violative of Fundamental Rights without
appreciating the scope of these rights.
19. Mr. Raju Ramachandran, learned amicus curiae, in his
turn, contends that Sabarimala Sree Dharma Sastha Temple is a
public temple, members of the public are admitted and its use as
a place of public worship and entry thereto is not to any
particular denomination or part thereof. The temple is managed
and administered by a statutory body, i.e., the Travancore
Devaswom Board. As entry to a public temple is a legal right but
not a permissible right and, therefore, the temple authorities
have no authority to curtail the said right. In this context, he
has drawn inspiration from the authorities namely, Deoki
Nandan v. Murlidhar9
, Sri Radhakanta Deb v. Commissioner
9 (1956) SCR 756
of Hindu Religious Endowments, Orissa10 and Nar Hari v.
Badri Nath Temple Committee11. It is his proponement that the
right of a woman to visit and enter the temple as a devotee of the
deity, as a believer in Hindu faith is an essential facet of her right
and restriction of the present nature creates a dent in that right
which is protected under Article 25 of the Constitution. Article
25(1) establishes a non-discriminatory right and it is available to
men and women professing the same faith, for it engulfs the
concept of intra-faith parity. The distinction between entry into
temples and right to conduct the worship of the deity as per
ritualistic process of worship by an “Acharya” has been
recognized to keep the constitutional norm at its pedestal. In this
regard, he has commended few passages from Nar Hari (supra)
and Shastri Yagnapurudasji (supra).
20. Mr. Ramachandran would further contend that Article 25(2)
(b) expressly states that intent of the Founding Fathers clearly
prohibits exclusionary practices. As per Sri Venkatramana
Devaru (supra), Article 25(2)(b) is not a mere enabling provision
that creates substantive right being a constitutional command
10 (1981) 2 SCC 226
11 (1952) SCR 849
20
but lays down if any exception gets space, it has to be extremely
narrow and within such exception the exclusion of women as a
class from the age of 10 to 50 is neither permissible nor
acceptable. The exclusionary practice cannot be justified on the
grounds of health, public order or morality because morality, as
envisaged in Article 25 or Article 26, is not an individualized or
sectionalized perception subject to varying practices and ideals of
every religion. The concept of morality has to be based on the
constitutional text and especially should be in consonance with
Articles 14, 15, 17, 21, 38 and 51A of the Constitution. The word
“morality” has to be interpreted as constitutional morality but
not the speeches from the pulpit by some. It must have
constitutional legitimacy. In this regard, learned senior counsel
has drawn our attention to Adi Saiva Sivachariyargal Nala
Sangam and others v. State of T.N.
, Manoj Narula v. Union
of India13
, National Legal Services Authority v. Union of
India14
, State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat and others15
.
12 (2016) 2 SCC 725
13 (2014) 9 SCC 1
14 (2014) 5 SCC 438
15 (2005) 8 SCC 534
21
21. Mr. Ramachandran further contends that the stand of the
State of Kerala and the Devaswom Board is that the practice is
based on religious custom and the same is essential to religious
practice. It is fundamentally fallacious as such a religious
practice cannot be essential to the religion and it has been only
imposed by subordinate legislation. The custom that has been
conceived of is not a part of the essential religious practice and
the said practice has to be appreciated keeping in view the
religious rights as enshrined under Articles 25 and 26 of the
Constitution. The submission of the State is that there is no
total prohibition is fallacious because a significant section of
adult women is excluded and the singular ground for exclusion is
sex and the biological feature of menstruation. To put it
differently, the discrimination is not singularly on the ground of
sex but also sex and the biological factor which is a
characteristic of the particular sex. In such a situation, contends
Mr. Ramachandran, “impact test” has to be applied to declare the
rule and the notification to be unconstitutional. For the said
purpose, he has commended us to the authority in Bennet
Coleman & Co. and others v. Union of India and others16
.
16 (1972) 2 SCC 788
Learned senior counsel would contend that Rule 3(b) is ultra
vires of Sections 3 and 4 of the 1965 Act because Section 3
makes it clear that Rules made under it cannot be discriminatory
against any section or class. Therefore, when it protects customs
and usage and takes shelter under the same, which may prohibit
entry, then it is not in accord with Section 3 of the 1965 Act
which expressly overrides custom and usage. The 1965 Act
provides that rules have to be made for due observance of
religious rites and ceremonies. The inclusion of words “custom
and usage” transgress the very purpose of the Act and also the
basic intent of the legislation apart from the constitutional
provisions. His further submission is that the State has a duty to
ensure the enjoyment of fundamental rights. By inserting Rule
3(b) which goes against the inclusionary mandate of Section 3 of
the 1965 Act, the State has failed in its duty to protect the
fundamental rights. He has, in this regard, relied upon the
decisions in S. Rangarajan v. P. Jagjivan Ram and others17
,
Ram Jethmalani and others v. Union of India and others18
,
M. Nagaraj and others v. Union of India and others19
.
17 (1989) 2 SCC 574
18 (2011) 8 SCC 1
19 (2006) 8 SCC 212
22. Learned senior counsel has seriously criticized the stand of
the Devaswom Board and the State that the decisions rendered
by the Kerala High Court operates as res judicata, for the High
Court was not dealing with the validity of the Rules or invoking
rights of individuals under Article 25. It is his further stand that
when there is violation of a fundamental right, the Court in a
petition under Article 32 of the Constitution can proceed to
re-examine the earlier decision as has been held in Sanjay
Singh and another v. U.P. Public Service Commission,
Allahabad and another20. In the present case, it is the
judgment by the High Court and the said judgment cannot debar
the jurisdiction of this Court to adjudge the constitutionality of
the statutory provisions or the Rules or the notification because
the principle of res judicata will not remotely apply to such a
case. Additionally, he submits that a statute which may be
upheld as constitutional at one point of time can become
unconstitutional at a later point of time as has been held in
Satyawati Sharma v. Union of India and another21 and in
Atam Prakash v. State of Haryana and others22
.
20 (2007) 3 SCC 720
21 (2008) 5 SCC 287
22 (1986) 2 SCC 249
23. It is submitted by Mr. Jaideep Gupta, learned senior
counsel that Article 25 and 26 of the Constitution guarantee
every person and community, the right and freedom to profess
practice and propagate religion and manage its own affairs in
matters of religion. It is settled that a religion not only lays down
a code of ethical rules but may also prescribe rituals and
observances, ceremonies and modes of worship. These, when
they constitute an integral/essential part of the religion is
protected under Article 25 and Article 26 of the Constitution. It is
further urged by him that the administration of the temple vests
with the Travancore Devaswom Board under the provisions of the
Act and there is a statutory duty cast on the Devaswom Board to
arrange worship in temples in accordance with the usage.
Therefore, in matters of religion, it is the opinion of the priests
that is final. It is also the contention that under ceremonial law
pertaining to temples, who are entitled to enter into them for
worship, where they are entitled to stand and worship and how
worship is to be conducted are all matters of religion protected
both under Article 25 and Article 26(b).
24. Mr. K. Parasaran and Mr. K.K. Venugopal, learned senior
counsel appearing for Devaswom Board submit that the petition
under Article 32 of the Constitution is not maintainable as no
right affecting public at large is involved in the case. The
religious questions posed in this Writ Petition can be determined
finally only by the “Thanthri” concerned and not by other
Thanthries who have no authority over the Sabarimala Temple;
that worshippers visit the temple after observing penance for 41
days and usually ladies between the age of 10 and 50 will not be
physically capable of observing “vratham” for 41 days on
physiological grounds; that the rule that during these seasons no
women aged more than 10 and less than 50 shall enter the
temple is scrupulously followed and the Board, being a statutory
authority, cannot forget the mandate laid down under Articles
15, 25 and 26 of the Constitution while administering the
Temples under their control; that the Board cannot conceive of
any religious practice under the Hindu Religion which deprives a
worshipper of his right to enter the Temple and worship therein
according to his belief; that notifications are issued by the Board
during Mandalam, Makaravilakku and Vishu preventing women
of the age group between 10 to 50 from entering the Temple
taking into account the religious sentiments and practices
followed in the temple. Article 25 confers freedom of conscience
and freedom to profess, practice and propagate religion subject to
public order, morality and health and all other provisions of Part
III. But every religious denomination or any section thereof shall
have the right to manage their religious affairs subject to public
order, morality and health. Every religious denomination is
conferred such freedom under Article 26 of the Constitution and
they shall have the right – (a) to established and maintain
institutions for religious and charitable purposes; (b) to manage
its own affairs in matters of religion, and (c) to administer such
property in accordance with law. It is contended that Ayyappa
devotees form a denomination by themselves and have every right
to regulate and manage its own affairs in matters of religion.
Reliance has been placed on Raja Bira Kishore Deb v. State of
Orissa23. Learned senior counsel have also drawn immense
inspiration from the judgment of the High Court to highlight the
stand that it is the right of a religious denomination to administer
property and it is fundamental under the Constitution. Passages
have been reproduced from Shri Lakhshmindra Thirtha
Swamiar of Sri Shirur Mutt (supra). In essence, the
submission is that the practice which is in vogue in the temple is
23 AIR 1964 SC 150
an essential part of religion which the Constitution protects.
Learned senior counsel have commended us to a decision in S.P.
Mittal v. Union of India and others24. According to them,
whether any practice is an integral part of the religion or not has
to be decided on the basis of evidence. Relying upon the authority
in Tilkayat Shri Gvindlalji Maharaj v. State of Rajasthan
and others25 it is contended that that the question will always
have to be decided by the Court and in doing so the Court may
have to enquire whether the practice in question is religious in
character and, if it is, whether it can be regarded as an integral
or essential part of the religion and finding on the question on
such an issue will always depend upon the evidence adduced
before it as to the conscience of the community and the tenets of
its religion. Reference has been made to Ratilal Panachand
Gandhi v. State of Bombay and Others26 to state that the said
authority has in unmistakable terms held that in regard to affairs
in matters of religion the right of management given to a religious
body is a guaranteed fundamental right which no legislature can
take away. Various paragraphs from the judgment of the Kerala
24 (1983) 1 SCC 51
25 (1964) 1 SCR 561 : AIR 1963 SC 1638
26 AIR 1954 SC 388 : 1954 SCR 155
High Court have been referred to bolster the stand that such
restriction imposed by the Davaswom Board is not violative of
Articles 15, 25 and 26 of the Constitution. Such restriction is
also not violative of the provisions of the 1965 Act since there is
no restriction between one section and another section or
between one class among the Hindus in the matter of entry to the
temple whereas the prohibition is only in respect of women of a
particular age group and not women as a class. They have
referred to the additional affidavit filed by the Devaswom Board
that Ayyappans belong to a different denomination and it is
elaborately set forth how the temple has come into existence.
That apart, it is seriously canvassed that once a decision has
been rendered by the High Court, it would operate as res judicata
and that will bind all persons including the petitioners herein.
The question as to whether a set of persons constitute a religious
denomination is a mixed question of fact and law and should be
decided by a competent civil court after examination of
documentary and other evidence. In this regard, reliance has
been placed on the authority in Dr. Subramanian Swamy v.
State of Tamil Nadu and others27. Various other aspects have
27 (2014) 5 SCC 75
also been highlighted but it is not necessary to note the same at
present.
25. Having noted the submissions of the learned counsel for the
parties and that of the State, we feel certain significant issues
arise for consideration. Be it noted, learned counsel for the
parties have formulated certain issues as we had reserved the
order on a singular aspect, that is, whether the matter should be
referred to the Constitution Bench or not. We need not reproduce
the questions framed by them.


26. According to us, the following questions arise for
consideration:-
1 Whether the exclusionary practice which is based
upon a biological factor exclusive to the female
gender amounts to “discrimination” and thereby
violates the very core of Articles 14, 15 and 17 and
not protected by ‘morality’ as used in Articles 25
and 26 of the Constitution?
2. Whether the practice of excluding such women
constitutes an “essential religious practice” under
Article 25 and whether a religious institution can
assert a claim in that regard under the umbrella of
right to manage its own affairs in the matters of
religion?
3. Whether Ayyappa Temple has a denominational
character and, if so, is it permissible on the part of
a ‘religious denomination’ managed by a statutory
board and financed under Article 290-A of the
Constitution of India out of Consolidated Fund of
Kerala and Tamil Nadu can indulge in such
practices violating constitutional principles/
morality embedded in Articles 14, 15(3), 39(a) and
51-A(e)?
4. Whether Rule 3 of Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules
permits ‘religious denomination’ to ban entry of
women between the age of 10 to 50 years? And if
so, would it not play foul of Articles 14 and 15(3) of
the Constitution by restricting entry of women on
the ground of sex?
5. Whether Rule 3(b) of Kerala Hindu Places of
Public Worship (Authorization of Entry) Rules,
1965 is ultra vires the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965
and , if treated to be intra vires, whether it will be
violative of the provisions of Part III of the
Constitution?
27. Let the papers be placed before the learned Chief Justice for
constitution of the appropriate larger Bench.

……………………….….CJI
(Dipak Misra)
…………………………….J.
(R. Banumathi)
…………………………….J.
(Ashok Bhushan)

New Delhi;
October 13, 2017.