The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
KERALA HIGH COURT
DIVISION BENCH
( Before : K.S. Paripoornan, J; K.P. Balanarayana Marar, J )
S. MAHENDRAN — Appellant
Vs.
THE SECRETARY, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM AND OTHERS — Respondent
O.P. No. 9015 of 1990-S
Decided on : 05-04-1991
Constitution of India, 1950 – Article 15, Article 25, Article 26
Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 – Rule 3
Cases Referred
Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, AIR 1958 SC 255 : (1958) 1 SCR 895
Ratilal Panachand Gandhi Vs. The State of Bombay and Others, AIR 1954 SC 388 : (1954) 1 SCR 1055
The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., AIR 1954 SC 282 : (1954) 20 CLT 250 : (1954) 1 SCR 1005
Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, AIR 1963 SC 1638 : (1964) 1 SCR 561
Raja Birakishore Vs. The State of Orissa, AIR 1964 SC 1501 : (1964) 7 SCR 32
Tharamel Krishnan Vs. Guruvayoor Devaswom Managing Committee and Others, AIR 1978 Ker 68
K.V. Narayanan Namboodiri and Others Vs. State of Kerala and Others, AIR 1985 Ker 160
Counsel for Appearing Parties
P. Balagangadhara Menon, Amicus Curiae, for the Appellant; T.K. Chandrasakhardas, C.P. Sudhkaraprasad, Govind Bharathan and V.P. Seemanthini and V. Ramachandra, Govt. Pleader, for the Respondent
JUDGMENT
Balanarayana Marar, J.—This is a “public interest litigation”. It has far-reaching consequences regarding the faith of “Sabarimala” temple, a temple of great antiquity, visited by more than 20 lakhs of persons every year from all parts of India. The question posed is, whether it is open to ail women, irrespective of their age, to trek the hill and worship of the temple, and how far is it permissible as per existing ‘acharas’, beliefs and custom ?
2. A petition was sent by one S. Mahan-daran, K. P. S. Bhavan, Perunnai, Changana-cherry, to one of us (Paripoornan, J.) which was converted into an original petition and treated as public interest litigation. He complained of young woman trekking Sabari hills (Sabarimala) and offering prayers at the Sabarimala Shrina. That is contrary to the customs and usages followed in the temple, according to him. Special treatment is alleged to have been given to wives of V.I.Ps. He pointed out a specific instance of the first rice-feeding ceremony of the grand-daughter of the former Devaswom Commissioner Smt. Chandrika conducted at Sabarimala temple in the presence of her daughter, the mother of the child, and other relatives including women a photograph which appeared in the Janmaboomi daily of 19-8-1990 was also enclosed along with the complaint petition. He sought suitable action to be taken against the persons concerned.
3. The petition came up before us on 24-9-1990. Notice was ordered to be issued to the complainant and Smt. S. Chandrika, former Devaswom Commissioner, Travancore Devaswom Board, to file their explanations in the matter and to be present in Court on 3rd of October, 1990. The Board was also directed to file its explanation on that date. In pursuance to the summons issued by this Court, the petitioner Sri Mahendran appeared and filed a detailed explanation. Smt. Chandrika was also present in Court but did not file any written explanation. No written explanation was filed by the Board also then. On hearing the petitioner Sri Mahendran, Smt. Chandrika and the counsel for the Devaswom Board, we felt that the questions that arise for consideration are fundamental and vital and have got a great impact on the very faith regarding Sabarimala temple. The complaint was therefore converted into an original petition under Article 226 of the Constitution of India as a public interest litigation and the petition was number as O.P. 9015/1990. At our request Sri P. Balaganga-dhara Menon, a Senior Counsel of this Court, agreed to assist the Court as amicus curiae. He was also requested to appear for the petitioner. The Secretary, Travancore Devaswom Board, Smt. S. Chandrika, Former Devaswom Board Commissioner, and the Chief Secretary to Government of Kerala were made respondents to the petition. The counsel for the Board was directed to file a list of available Thanthri Mukyas in the erstwhile Travancore territory with names and addresses along with the present Thanthri of the Sabarimala temple. It was observed that Sri Balagangadhara Menon will also be at libarty to furnish the names and addresses of other Tharthri Mukhyas who will be able to speak on the various aspects that may come up in this original petition. After getting the lists submitted on both sides, we directed the Registrar of this Court to issue summons to nine persons requesting them to appear in this Court on 26-10-1990 to give evidence. They were requested to appear on that day along with the documents or other materials in their possession which throw light on the matter. Witness No. 8 cited by petitioner’s counsel was given up. Sri K. Kerala Varma Raja of Pandalam Kovilakam, specified as No. 7 in the list of witnesses, was examined as a witness on the side of the petitioner. Persons specified as Nos. 1 to 4, 6 and 9 were examined as Court witnesses. The person specified as No. 5 was not present. Summons has been served wrongly on another person. That witness was given up.
4. The respondents appeared through counsel and filed counter-affidavits. The Indian Federation of Women Lawyers, Kerala Branch, sought impledment by filing CM.P. No. 17102/1990. The President of the Kerala Kshetra Samrakshana Samithi, Sri M. P. Gopalakrishnan, filed C.M.P. 17079/1990 to get himself impleaded. Both these petitions were allowed and the petitioners were permitted to participate in the proceedings and to be heard as per Rule 152(2) of the High Court Rules.
5. The Travancore Devaswom Board in their counter-affidavit questioned the right of the petitioner to maintain the petition under Article 226 of the Constitution for the reason that no right affecting public at large is involved in this case. The question involved is purely relating to Hindu Religion and religious practices. No writ can be issued by this Court against the 1st respondent in order to grant the relief asked for as the determination of the dispute is dependant on disputed questions of fact. They also challenged the maintainability of the petition without im-pleading a Hindu lady worshipper at least in a representative capacity. The jurisdiction of this Court cannot be invoked to regulate or control the religious functions and practices relating to a Hindu temple since that is the concern of men of religion. 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 Sastha Temple. The members of the Thazhaman Illam are the hereditary Thanthries of the Sabarimala temple. The present Thanthri is Sri Neelakandaru and he is the final authority to take a decision on any issue with regard to the religious practices and customs as well as the rituals and poojas in Sabarimala temple. It is further stated that the Board, being a statutory authority conferred with the power of administration, has no voice in deciding such controversial, religious and ritualistic questions and the Thanthri alons can decide all questions relating to religious rituals and practices. There were instances where Thanthries also were unable to take a decision pertaining to some religious practices and in such cases the Thanthri used to suggest that it can be resolved by a Devaprasnam.
6. After pointing out the difficulties experienced by pilgrims in olden days to trek the entire distance through thick forests is stated that transport facilities had improved in the recent past resulting in flow of pilgrims in large numbers from all over Keralu and outside. Scientific advancement and its influence in modernisation of human life is bound to bring about changes in the old customs and practices. Hindu religion is adaptable to the changing situation. After mentioning about the contribution of Aadi Sankara, Rama-krishna Paramahamsa and Vivakananda in rejuvenating Hinduism, the counter-affidavit states that rituals, customs and practices in temples are generally meant to discipline the mind of human beings to refine it or to rejuvenate it to tune up to higher standards of thinking.
7. In olden days worshippers visit the temple only after observing penance for 41 days. Since pilgrims to Sabarimala temple ought to undergo ‘Vrathams’ or penance for 41 days, usually ladies between the age of 10 and 50 will not be physically capable of observing vratham for 41 days on physiological grounds. The religious practices and customs followed earlier had changed during the last 40 years particularly from 1950, the year in which the renovation of the temple took place after the “fire disaster”. Even while the old customs prevailed, women used to visit the temple though very rarely. The Maharaja of Travancore accompanied by the Maharani and the Divan had visited the lemple in 1115 M.E. There was thus no prohibition for women to enter the Sabarimala temple in olden days, but women in large number were not visiting the temple. That was not because of any prohibition imposed by Hindu religion but because of other non-religious factors. In recent years, many worshippers had gone to the temple with lady worshippers within the age group 10 to 50 for the first rice-feeding ceremony of their children (Chottoonu). The Board used to issue receipts on such occasions on payment of the prescribed charges. A change in the old custom and practice was brought about by installing a flag staff (Dhwajam) in 1969. Another change was brought about by the introduction of Padipooja. These were done on the advice of the Thanthri. Changes were also effected in other practices. The practice of breaking coconuts on the 18 steps was discontinued and worshippers were allowed to crack the coconuts only on a stone placed below the eighteen sacred steps (Pathinettaam Padi). These changes had been brought about in order to preserve the temple and the prescind in all its gaiety and sanctity.
8. For the last 20 years woman irrespective of their age were allowed to visit the lemple when it opens for monthly poojas. They were not permitted to enter the temple during Mandalam, Makaravilakku. and Vishu seasons. The rule that during these seasons no woman who is aged more than 10 and less than 50 shall enter the temple is scrupulously followed. The counter-affidavit further states that the Board, being a statutory authority, cannot forget the mandate laid down under Articles 15, 25 and 26 of the Constitution of India while administering the temples under their control. The Board cannot conceive of any religious practice under the Hindu religion which deprives a worshipper of his rights to enter the temple and worship therein according to his belief. Notifications are issued by the Board during Mandalam, Makaravilakku and Vishu preventing women of the age group 10 to 50 from entering the temple, taking into account the religious sentiments and practices followed in the temple. The Board contends that none of the fundamental rights of petitioner had been violated and seeks dismissal of the petition.
9. The second respondent, former Deva-swom Commissioner Smt. S. Chandrika in her counter-affidavit admitted that the first rice-feeding ceremony of her grandchild was conducted on the 1st of Chingam 1166 at Sabarimala temple while she was holding the post of Devaswom Commissioner, Women had functioned as Devaswom Commissioners even earlier. All of them were aged more than 50 at the time they functioned as Commissioner. She further stated that wives of important personalities were not given any special treatment as alleged in the petition. The restriction regarding the entry of women in the age group 10 to 50 is there only during Mandalam, Makaravilakku and Vishu. As per the stipulations made by the Devaswom Board there is no restriction during the remaining period. When monthly poojas are conducted, women of all age groups used to visit Sabarimala. On the 1st of Chingam 1166 the first rice-feeding ceremony of other children were also conducted at the temple. No V.I.P. treatment was given to her grandchild on that day. The same facility was afforded to others also. Her daughter got married on 13-7-1984 and was not begetting a child for a considerably long time. She took a vow that the first rice-feeding ceremony would be performed at Sabarimala in case she begets a child. Hence the reason why the first rice-feeding ceremony of the child delivered by her was performed at that temple. The entry of young ladies in the temple during monthly poojas is not against the customs and practices followed in the temple.
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 u/s 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.
11. Since the questions involved in this petition are fundamental in nature and have far-reaching consequences regarding the belief and faith of the Hindus in respect of Sabarimala temple, we heard counsel for the petitioner Sri Balagangadhara Menon and counsel appearing for the respondents at length. We heard also the counsel appearing for the two interveners.
12. The questions which require answers in this original petition are:
(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 ?
13. The Devaswom Board had questioned the maintainability of the original petition and the power of judicial review of this Court in respect of decisions taken by the Board. Counsel for the Board Sri Chandrasakhardas submitted that the Board is prepared to abide by the opinion given by Sri Thazhaman Neelakandaru, Thanthri of the Sabarimala temple in the matter and to implement the same. In the light of this submission it was categorically stated by counsel for the Board that adjudication of the other pleas raised regarding the maintainability of the petition and the reviewability of the matter in issue u/ Article 226 of the Constitution do not call for consideration in this case. This submission of the counsel was recorded in the proceedings. The Board has expressly stated that it shall abide by the opinion given by the Thanthri of Sabarimala temple and that such opinion is final. But the learned counsel appearing for the Woman Lawyers’ Federation has raised a contention that prevention of entry of women of the age group of 10 to SO will affect the fundamental rights of those persons guaranteed under Articles 15 and 25 of the Constitution of India. Prevention of such women from entering the temple amounts to discrimination on the ground of sex, according Smt. Seemandini, learned counsel appearing for the intervener, the Women Lawyers’ Federatioin of India. She had also drawn our attention to various authorities on that aspect. It is only proper to consider those decisions to see whether any of the provisions of the Constitution is violated on account of such prevention of entry.
14. Article 15 of the Constitution says that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 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 establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable or immovable property, and
(d) to administer such property in accordance with law.
Learned counsel for petitioner Sri Bala-gangadhara Menon and Sri Govind Bhara-than, learned counsel appearing for one of the intervenors, rely on Article 26(b) of the Constitution to support their contention that Ay-yappa devotees form a denomination by themselves, and have every right to regulate and manage its own affairs in matters of religion. According to them the restriction imposed on woman of a particular age group from entering the temple is a matter of religion and a matter of religious faith. The contention is that “the religious denomination” has got every right and freedom to prevent a section of the people from entering the temple if it is a matter of religion or religious faith.
15. What is a religious denomination and what is its identity were considered by the Supreme Court in Raja Birakishore Vs. The State of Orissa, . The Supreme Court held that the identity of a religious denomination consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community. In a separate judgment, supporting the majority view, Rajagopala Ayyangar, J. said:–
“A denomination within Article 26 and persons who are members of that denomination are under Article 25 entitled to ensure the continuity of the denomination and such continuity is possible only by maintaining the bond of religious discipline which would secure the adherence of its members to certain essentials like faith, doctrine, tenets and practices.”
16. While interpreting Article 26(b) of the Constitution the Supreme Court in — D. R. R. Varu v. State of Andhra Pradesh — held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion. No outside authority has any jurisdiction to interfere with its decision in such matters. Regarding the right of a religious denomination to administer property, it was observed that the fundamental right under Article 26(d) enables the religious denomination to administer the property in accordance with law and that law therefore must leave the right of administration to the religious denomination itself subject to such regulations and restrictions as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26.
17. The scope of Clause (b) of Article 26 had come up for consideration before the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., . The Supreme Court posed the question : What are matters of religion to which Clause (b) of Article 26 applies and answered thus :–
“A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”
The Supreme Court quoted a passage contained in Adelaide Co. v. The Commonwealth (1943)67 CLR 116. Laiham C.J. of the High Court of Ausralia, while dealing with Section 116 of the Australian Constitution which inter alia forbids the Commonwealth prohibit “free exercise of any religion” said :
“The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion, Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion”.
Relying on this passage the Surpeme Court held that these observations apply fully to protection of religion as guaranteed by the Indian Constitution.
18. A contention was raised before the Supreme Court that all secular activities which may be associated with religion, but do not really constitute an essential part of it are amenable to State regulation. Answering this contention the Surpeme Court observed that what constitutes the essential part of religion is primarily to be ascertained with reference to the doctrines of religious belief. If the tenets of any religious sect of Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests or servants or the use of marketable commodities would not make the secular activities partaking of a commercial or economic character. The Supreme Court held that all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b) of the Constitution. The Supreme Court added that freedom of speech in our Constitution is not confined to religious beliefs only, but it extends to religious practices as well subject to the restrictions which the Constitution tiself has laid down. Ultimately the Supreme Court held that every religious denomination or organisation enjoins complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. It was laid down that any law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (b) of Article 26. A Full Bench of Five Judges of this Court in Tharamel Krishnan Vs. Guruvayoor Devaswom Managing Committee and Others, (the first Guruvayoor case) held that no tampering with the religious rights can be countenanced so long as the Constitution stands as it is today. The Bench observed that any attempt to do so would be not only an act of breach of faith, but would be constitu-tionally impermissible and liable to be struck down by the Courts. The following passage contained in that decision was quoted by the Supreme Court with approval in S. P. Mittal v. Union of India, : (1983) 1 SCC 51: AIR 1983 SC 1:
“…..the real purpose and intendment of Articles 25 and 26 is to guarantee especially to the religious minorities in this country the freedom to profess, practise and propagate their religion, to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire properties and to administer such properties in accordance with law subject only to the limitations and restrictions indicated in those Articles. No doubt, the freedom guaranteed by these two Articles applies not merely to religious minorities but to all persons (Article 25) and all religious denominations or sections thereof (Article 26). But, in interpreting the scope and content of the guarantee contained in the two Articles the Court will always have to keep in mind the real purpose underlying the incorporation of these provisions in the fundamental rights chapter. When a challenge is raised before a Court against the validity of any statute as contravening the fundamental rights guaranteed under Articles 25 and 26 it is from the above perspective that the Court will approach the question and the tests to be applied for adjudging the validity of the statute will be the same irrespective of whether the person or denomination complaining about the infringement of the said fundamental right belongs to a religious minority or not.”
19. Incidentally the Full Bench considered what secularism means and said :
“There is no mysticism in the secular character of the State. Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion.”
On the question as to whether the Court has power to adjudicate on such matters, a Full Bench of this Court in K.V. Narayanan Namboodiri and Others Vs. State of Kerala and Others, held that it is a matter for adjudication by a Civil Court and the decision of the Civil Court will be binding on all members of the denomination, if there is any dispute among the members of the denomination with respect to religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom.
20. What is meant by the expression “matters of religion” in Article 26(b) of the Constitution was considered by the Supreme Court in Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, . Venkatarama Aiyer, J. held that the expression embraces not merely matters of doctrine and belief pertaining to the religion, but also the practice of it, or to put it in terms of Hindu theology, not merely its Gnana, but also its Bhakti and Karama Kandas. In that case the Supreme Court held that the right of a denomination to wholly exclude members of the public from worshipping in a temple though comprised in Article 26(b), must yield to the overriding right declared by Article 25(2)(b) in favour of the public to enter into the temple for worship.
21. Whether any practice is an integral part of the religion or not has to be decided on the basis of evidence. In the decision in Tilkayat Shri Govindlalji Maharaj Vs. The State of Rajasthan and Others, the Supreme Court held 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 the 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.
22. The position that emerges is that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion. No outside authority has any jurisdiction to interfere with the decision of such religious denomination. Article 26(b) gives complete freedom to the religious denomination to manage its own affairs in matters of religion. The only restriction imposed by that article is that the exercise of the right is subject to public order, morality and health. The freedom of conscience and freedom to speak, profess and propagate religion guaranteed under Article 25 of the Constitution is subject not only to public order, morality and health, but also subject to the other provisions of Chapter III. It necessarily implies that the right to freedom of religion guaranteed under Article 25 is subject to the freedom to manage religious affairs guaranteed under Article 26(b) of the Constitution.
23. That leads us to the further question as to whether preventing woman of the age group 10 to 50 from entering the Sabarimala Temple is a matter of religion. A religion can not only lay down a code of ethical rules, but it can also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals are also regarded as integral parts of religion. If the tenets of religion lay down that certain ceremonies are to be performed at certain times in a particular manner, those ceremonies are matters of religion and are to be enforced as a religious belief.
24. Sadasyathilakan Sri T. K. Velu Pillai in his Travancore State Manual, Vol. I at p. 553 says :
“The essential characteristic of Hinduism is faith. Purity of character is ensured by rules which regulate the practice of the worshippers as well as that of the priests”.
At page 594 it is stated thus :
“We thus find that the worship in temples is regulated in strict accordance with the rules laid down in the Agama Sastras. Form is in religion the twin sister of faith and the temples in Travancore present a continuity of tradition which cannot fail to be a stimulus to a well-regulated religious life. The essentials of discipline are the same in private temples as well as those under the management of Government. The head of the Devaswom Department is responsible for the proper conduct of the temple affairs but his authority is confined to the administrative side; the spiritual questions being decided by the Thanthris and other man of religion. The: Thanthris are the arch-priests of Malabar temples. Ceremonies of exceptional impor- tancee, such as consecration of the idol,, are performed by them. The office is generally hereditary. The Thanthris are expected to have a correct knowledge of the details of worship, the performance of ceremonies and all kindred subjects. They have the authority to correct the mistakes of the priests. They are consulted in all matters connected with the Devaswoms so far as the spiritual side is concerned.”
25. Since the spiritual questions are to be decided by the Thanthris, we summoned and examined the Thanthri of Sabarimala temple and other Thanthrimukhyas of Kerala in order to ascertain the practice followed in Sabarimala temple and whether the practice has the approval of the community.
26. Before adverting to the evidence tendered by the Thanthris one contention raised by learned counsel for the Woman Lawyers’ Federation deserves consideration. She argues that the place of worship is open to all sections and classes of Hindus. Attention is drawn to the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, Act 7/1965. Section 3 of the Act provides that every place of public worship which is open to Hindus generally or to any section or class thereof shall be open to all sections and classes of Hindus and no Hindu of whatsoever section or class shall, in any manner, be. prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform. But the section contains a proviso that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in the matters of religion. 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. “Section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever. Section 4(1) enables the trustee or any other person in charge of any place of public worship to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. That section contains a proviso that no regulation made under that sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. Rules were framed under this Act. R. 3 prohibits the persons enumerated therein from entering or offering worship in any place of public worship. They include women at such time during which they are not by custom and usage allowed to enter a place of public worship. Learned counsel contends that prevention of entry of women in Sabari-mala temple amounts to discrimination and offends Section 3 of Act 7/1965 which confers on every Hindu the right to enter a place of public worship and offer prayers there. This plea is not acceptable. Section 3 only prevents the restriction between one section and another section or between one class and another class among Hindus in the matter of entry to a temple. Moreover the right conferred u/s 3 is subject to the restrictions imposed in R. 3. Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Sabarimala temple is prohibited only in respect of women of a particular age group and not woman as a class.
27. The management of the Devaswoms, both incorporated and unincorporated, in the erstwhile area of Travancore vests in the Travancore Devaswom Board under the Travancore-Cochin Hindu Religious Institutions Act, 1950, Act 15/1950. All the Hindu religious endowments and properties and funds except the Sree Padmanabha Swami Temple, Sree Pandaravaka properties and all other properties and funds of the said temple had vested in that Devaswoms in the area of Travancore. S.31 of the Act enjoins aduty on the Board to arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according: to its usage; The temples in Travancore were thrown open to all Hindus without any restriction being imposed on any Hindu either due to birth, caste or community. That historical proclamation was made by the Maharaja of Travancore on 27th Thulam 1112 corresponding 12th of November, 1936. Twelve days thereafter the Maharaja issued another proclamation by which conditions were imposed in the matter of entry in temples. We are concerned with Rule 6(c) which provides that women at such times during which they are not by custom and usage allowed to enter temples shall not enter within the compound walls of a temple or its premises in case there is no compound wall. R. 14 stipulates that no one shall do any act which would tend to derogate the purity and cleanliness of the temple and its premises. After the integration of the Princely States of Travancore and Cochin, an ordinance was promulgated by the Rajapramukh as Ordinance 4/1124 in respect of the administration of the Padmanabhaswami temple and the Devaswoms, both incorporated and unincorporated. The Ordinance provides that the management of the Devaswom shall continue to be carried on as heretobefore. Another ordinance was promulgated by the Rajapramukh on 1st day of August, 1949, which is called “The Hindu Religious Institutions Ordinance, 1124”. Section 31 of that Ordinance also directs the Devaswom Board to arrange for the conduct of the daily worship and ceremonies and festivals in every temple according to its usage. A duty in therefore cast on the Travancore Devaswom Board to arrange for the conduct of the daily worship and ceremonies in accordance with its usage. In other words, the Board has a statutory duty to enforce the usage prevalent in the temple. The Board has no right to alter or modify the same. The Travancore-Cochin Religious Endowments Act and its precursors had consistently enjoined this duty on the Travancore Devaswom Board.
28. The Government of Kerala is aware of this position. The counter affidavit filed by the Chief Secretary on behalf of the 3rd respondent states that it is the Board which shall manage and arrange for the conduct of daily worship and Ceremonies and festivals in every temple according to its usages. It is further averred that the scheme of the Act has made it clear that the Board is entrusted with administration as well as making of rules. It is therefore clear that Government have no power or authority to issue any order or direction in this matter and the management is within the prerogative of the Devaswom Board subject to the provisions of the Travancore-Cochin Hindu Religious Endowments Act. We have made special mention of this fact in view of the stand taken by the learned Government Pleader that the State can take remedial measures including amendment of relevant rules to see that the Board does not deviate from the powers conferred on it. According to the Government Pleader the State can take a plea against the stand of the Devaswom Board. We are afraid that this stand of the Government Pleader is against the authoritative pronouncement of the Supreme Court referred to earlier. The Supreme Court had in unmistakable terms held in Ratilal Panachand Gandhi Vs. The State of Bombay and Others, thai 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. We have serious doubts whether the State can impose restrictions on the powers of the Travancore Devaswom Board in the matter of regulating its affairs.
29. It has to be mentioned that this contention of the Government Pleader is contrary to the averment in the counter affidavit of the 3rd respondent wherein, after referring to Section 31 of the T-C Hindu Religious Endowment Act, it is stated that the Devaswom Board shall manage and arrange for the conduct of daily worship and ceremonies and festivals in every temple according to its usages. There is a further averment that it is the Board which is entrusted with administration as well as making of rules. There is a statutory duty cast on the Board u/s 31 of the Act to arrange worship-in the temples in accordance with the usage. That statutory duty had been cast on the Board even earlier. In other words, the Travancore Devaswom Board can arrange worship in the temples under their control only in accordance with the prevailing usages.
30. What is the usage prevailing in Sabarimala Temple in respect of entry of woman above the age of 10 and below the age of 50? The Board has agreed to abide by the opinion of Sri. Thazhaman Neelakandaru who is the present Thanthri of Sabarimala Temple. The statement of the Board contains the following averment :
“The members of the Thazhamon Illam are the haredhary Thanthri of the Sabarimala temple and the present Thanthri is Thazhamon Madathil Kandaru Neelakandaru and he is the final authority to take a decision in any controversial issues with regard to the religious practice and custom, as well as the rituals and Pujas in Sabarimala temple.”
It isfurther averred that the religious question like the one posed in this writ petition can be decided finally only by the Thanthri concerned and not any other Thanthries who do not have any authority over the Sabarimala Sastha Temple. We have therefore examined the Thanthri of Sabarimala temple. Other Thanthries were also examined before this Court. A member of the Pandalam Kovila-kam and the Secretary of the Ayyappa Seya Sangham were also examined. Some of the Thanthries have no personal knowledge about the usage prevailing in Sabarimala temple. But P.W. 1, a member of Pandalam Kovilakam, had spoken about the usage. The Secretary of the Ayyappa Seva Sangham has also tendered evidence more or less in similar terms. We proceed to consider first the testimony of the Sabarimala Thanthri Sri Neelakandaru of Thazhaman Illam.
31. The present Thanthri Sri Neelakandaru is doing thanthram in Sabarimala temple for the past 50 years. As C.W. 6 he stated that he was intimately connected with that temple even before the reinstallation of the deity in 1950. According to him, woman belonging to the age group of 10 to 50 were prohibited from entering the temple even before 1950. He deposed that the present deily (idol) was installed by his paternal uncle Kandaru Sankararu and the first pooja after the reinstallation was cond acted by him as per the directions of his paternal uncle. The witness stated that his uncle had instructed him and the temple officials who were present on that occasion to follow the old customs and usages. According to him these customs and usages are to be followed for the welfare of the temple. He added that only persons who had taken penance and followed the customs are eligible to enter the temple and it is not proper for young women to enter the temple since that is contrary to customs and usages.
32. The Secretary of the Ayyappa Seva Sangham Sri K.P.S. Nair deposed that he had conducted pilgrimage to Sabarimala every year for the past 60 years. The Sangham has passed a resolution that women above 10 and below 50 years of age should not enter the Sabarimala temple. He stated that he had , been young women in Sabarimala only during the past 10 to 15 years. The Sangham had orally complained to the authorities about this but to no avail. He has spoken about an instance which he had witnessed about five years back when a young woman was seen attempting to ascend the sacred steps. One of the volunteers of the Sangham brought to the notice of the Circle Inspector on duty. The witness stated that the Circle Inspector restrained the volunteer and the woman ascended the steps and entered the temple. He further stated that tourists from other States go to Sabarimala in large numbers, of whom there were young women also. Even newly married couple were seen among those tourists. The witness stated that the sanctity and purity of the surroundings are evaded on account of this.
33. The other witness who has got personal knowledge about the temple and the customs and usages followed there is Sri Ravivarma Raja of Pandalam Kovilakam. He is aged 75. He stated that the temple belonged to Pandalam Royal family but he had not seen any document connecting the temple with the Royal family. The evidence tendered by him can be summarised as follows :
Till the integration of the , States of Travancore and Cochin, the Pandalam palace was consulted on all matters and before any function is conducted at Sabarimala. The ornaments to be adorned on the idol on Makaravilakku day are kept inthe Pandalam palace. The ornaments are carried to the temple in a procession. One of the male members of the family accompanies the procession up to Pamph. On the 3rd of Makaram the Raja will proceed to Sabari-mala for darsan. He is received at the bottom of Pathinattam padi by the Malsanthi of the temple and after washing his feet will be escorted to the temple. According to him Vratham (penance) for 51 days is necessary for the pilgrimage. He had spoken about two instances when the Board attempted to change the age old usage. While Sri Prakkulam Bhasi-was the Devaswom Board President, a suggestion was made to carry the ornaments in a van. The members of the palace raised objections and the Board withdrew the suggestion. The second instance was when Sri Upendranatha Kurup was the President of the Board. A suggestion came before the Board to permit women of the age of 10 to 50 to enter the temple. The Board issued a press statement later saying that the Board had no intention of allowing such women to conduct the pilgrimage. Ext. P2 is a copy of the press release published in the Mathrubhoomi daily dated 12-1-1983. The view of the members of the palace including himself is that women above the age of 10 and below the age of 50 should not be permitted to conduct pilgrimage to Sabarimala. If this usage is violated, he apprehends that the palace members will be afflicted with the curse of God.
34. The testimony of three persons who have direct and personal knowledge about the usage in the temple is therefore available before this Court. Of them one is the Thanthri of the temple who can authoritatively speak about the usage followed in the temple. His knowledge extends to a period of more than 40 years. The Secretary of the Ayyappa Seva Sangham had been a regular pilgrim to Sabarimala shrine for a period of 60 years. A senior member of the Pandalam palace has also testified about the practice followed and the view of the members of the palace to which the temple at one time belonged. The testimony of these witnesses would therefore conclusively establish the usage followed in the temple of not permitting women of the age group 10 to 50 to worship in the temple. It necessarily follows that women of that age group were also not permitted either to enter the precincts of the temple or to trek Sabarimala for the purpose of pilgrimage.
35. A copy of the reply sent by Sri Maheshvararu, Thanthri of the temple, to Sri Kummanam Rajasekharan, State Secretary of Hindu Munnani, was produced by C. W. 5. This letter (Ext. C2) was sent in reply to a letter sent by Sri Rajasekharan informing Sri Maheswararu about dance performance by young woman and marriage ceremonies conducted at the temple and shooting of films there. Sri Maheswararu was the Thanthri of the temple at the time of devaprasnam in 1985. He had expressed his opinion in the reply. He informed Sri Rajasekharan that permitting women between the age group 12 to 50 will be contrary to the customs of the temple. It is also mentioned that it was revealed so in all the Devaprasnama conducted at Sabarimala by well known astrologers. There cannot thus be two opinion about the practice and usage followed in not permitting women aged more than 10 and below 50 worship at Sabarimala temple.
36. The Thanthri of the temple Sri Maheswararu had mentioned about the Devaprasnams conducted at Sabarimala by well known astrologers in Ext. C2. He had mentioned in that reply that in alt the Devaprasnams it was revealed that young women should not be permitted to worship at the temple. The report of the Devaprasnam conducted in 1985 (from 5-4-1985 to 8-4-1985) was exhibited as Ext. Clause That is a Devaswom publication, the authenticity of which is not in dispute. The English translation of the relevant portion contained at page 7 of the original report reads as follows :
“It is.seen that the deity does not like young ladies entering the precincts of the temple”.
C.W. 5, the Secretary of the Ayyappa Seva Sangham, who was present at the time of Devaprasnam had spoken about what was revealed at the Devaprasnam. First respondent in its counter affidavit has mentioned about the practice followed to set right controvarsial religious and ritualistic problems. It is stated that the Thanthri will suggest that it can be resolved, by a Devaprasnam. The practice of resorting to Devaprasnam to ascertain the wishes of the deity had been in vogue from time immorial and the Thanthri of Sabarimala also had suggested conduct of Devaprasnam whenever occasion arose. The report of the Devaprasanam is rather conclusive or decisive. The wishes of the Lord were thus revealed through the well-known method of Devaprasnam and the temple authorities and worshippers cannot go against such wishes. If the wish of Lord Ayyappa as revealed in the Devaprasnam conducted at the temple is to prohibit woman of a particular age group from worshipping in the temple, the same has to be honoured and followed by the worshippers and the temple authorities. The Board has a duty to implement the astrological findings and prediction on Devaprasnam. The Board has therefore no power to act against that report which will be virtually disregarding the wishes of the deity revealed in the prasnam.
37. The Devaswom Board has therefore to arrange for the conduct of the daily worship in Sabarimala temple according to the usage. What is the usage in respect of entry of women had been spoken to by three witnesses. Usage as defind in New Wabster’s Dictionary means habitual or customary use or practice. In Venkataramaiya’s Law Lexicon and Legal Maxims, “usage” is defined as one regularly and ordinarily practised by the inhabitants of the place. According to him it is not necessary to require proof of its existence for any length of time in order to establish “usage”. The word “usage” would include what the people are now or recently in the habit of doing in a particular place. He would further state that this particular habit may be only of a very recent origin or it may be one which has existed for a long time. That there is a continuous practice of women of a particular age group being prohibited from worshiping in Sabarimala temple has been spoken to by the Thanthri of the temple, the President of the Ayyappa Seva Sangham and a member of the Royal family of Pandalam. These three persons have personal knowledge of the practices followed in the temple at least for half a century. The usage of young women not being permitted to trek Sabarimala on pilgrimage and to offer worship at the temple has therefore been established.
38. Is there any basis for this restriction? Is it only a blind belief handed down from generation to generation without any rationale behind that restriction? The counter affidavit filed by the Board makes mention of the reasons why young women were not permitted to worship at the temple. In olden days pilgrims to this holy temple had to carry with them their own provisions in headloads taken by them. Transport facilities improved recently as a result of which a pilgrim can now reach Sabarimala without trekking the original route followed by pilgrim of olden days. Even according to the counter affidavit of the Board, the distance to be trekked has now been redused to 5 kms. Pilgrims are expected to observe penance. Purity in thought, word and deed is insisted during the period of penance (Vratham). A pilgrim starts trekking the Sabarimala only after completing the penance for a period of 41 days. Women of the age group 10 to 50 will not be in a position to observe Vratham continuously for a period of 41 days due to physiological reasons. These appear to be the main reasons why females of a particular age group were not permitted to go on a pilgrimage to Sabarimala. It has to be remembered that there is no distinction of caste, creed or colour in Sabarimala temple and there had not been any even in olden times. Even while a section of Hindus were forbidden to enter other temples in the State, there was no bar for any among them to go on a pilgrimage to Sabarimala or worship the deity there.
39. There is a vital reason for imposing this restriction on young women. It appears to be more fundamental. The Thanthri of the temple as well as some other witnesses have stated that the deity at Sabarimala is in the form of a Naisthik Brahmachari. “Brahma-chari” means a student who has to live in the house of his preceptor and study the Vedas living the life of utmost austerity and discipline. A student who accompanied his Guru wherever he goes and learns Vedas from him is a “Naisthikan”. Four asramas were prescribed for all persons belonging to the twice born castes. The first is of a student or Bramchari, the second is of a householder after getting married, the third is the Vanaprastha or a life of reclues and the last is of an ascetic or Sanyasi. Sri B. K. Mukherjee, the fourth Chief Justice of India, in his Lordship’s Tagore Law Lectures on the Hindu Law of Religious and Charitable Trust says at page 16 of the second addition thus :
“Ordinarily therefore a man after finishing his period of studentship would marry and become a house-holder, and compulsory celibacy was never encouraged or sanctioned by the Vedas. A man however who was not inclined to marry might remain what is called a Naisthik Brahmchari or perpetual student and might pursue his studies living the life of a bachelor all his days”.
A Bramchari should control his senses. He has to observe certain rules of conduct which include refraining from indulging in gambling with dice, idle gossips, scandal, falsehood, embracing, and casting lustful eyes on females, and doing injury to others.
(vernacular matter omitted)
Mann Smriti Chapter II, Sloka 179.
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 aNaisthik 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.
42. In this connection it has to be mentioned that Sabarimala temple is not the only temple in Kerala where there is restraint on the entry of women. Sri Malankal Krishna Pillai, a Malayalam post of repute and a former Regional Deputy Director of Education, after visiting all the important temples in the State, had published a book titled “Maha Khshetrangal kku Munpil” (in front of great temples). While writing about the Siva temple in Teliparambu in Eaunur District, he has mentioned about the custom there in not permitting women to enter the temple and offer prayers during day time. They are permitted to enter and worship only after the Athazhappja (the last pooja of the day) is over. The belief is that Lord Siva will be seated with his cjonsort Goddess Parvathy at that time and Lord Siva is in a happy mood to shower boons on the devotees. That is supposed to be the appropriate or auspicious time for women to pray before the God revered as Rajadhirajan (King of all Kings). This custom or usage is understood to have been in prevalence for the past several centuries.
43. The Devaswom Board and the 2nd respondent Smt. Chandrika, former Devaswom Board Commissioner, have a contention that the restriction of entry is only during the Mandalam, Maharavilakku and Vishu days. The temple will be opened in every month for five days and poojas are conducted on those days. According to the Board persons who go to the temple during these days are not expected to observe the penance for any particular period. Ayyappa devotees used to visit the temple on these days irrespective of their age, according to the Board, and this practice has been in vogue for the past 40 years. No serious complaint was received by the Board from men of religion against permitting women during these days. The Thanthri also has not objected to this practice, according to the Board. Many female worshippers of the age group of 10 to 50 used to go to the temple during these days for the first rice-feeding ceremony of their children. Receipts are issued by the Board on payment of the prescribed charges and the rice-feeding ceremony is being conducted at the temple. The Board has therefore taken a stand that the restriction is prevalent only during Mandalam, Makaravilakku and Vishu days, when there will be rush of pilgrims. Neither the Thanthri nor any of the other witnesses have spoken about the practice of permitting women during other days either for conducting the first rice-feeding ceremony of their children or to offer worship at the temple. The restriction imposed has been in vogue for a continuously long period for proper reasons. That some of the pilgrims who go to the temple during monthly pooja days had not observed penance for the prescribed days in no reason why young women should be permitted to enter the temple during those days. As per the custom followed in the temple, no pilgrim without “Irumudikkettu” can ascend the sacred steps and enter the temple in order to offer worship. But it may be said that a male pilgrim or a women permitted to enter the temple who does not carry an “Irumudikkettu” on his or her head can be permitted to enter the temple through the northern gate for which there is no such restriction or prohibition. The question arises whether that privilege can be extended to young female worshippers also. The belief is that every pilgrim who undertakes a pilgrimage to Sabarimala has observed the penance for the prescribed number of days. Whether he had really observed it or not is a matter which that person alone can way. Such a restriction has been imposed because of the peculiar nature of the pilgrimage and the arduous nature of the trekking of the forest and that too for several days. That the rigour of the journey has now been reduced due to transport facilities is no reason why the age-old practice of observing penance for 41 days should be discontinued. 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 prayars there at any time of the year.
44. Our conclusions are as follows :
(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial.
(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.
(3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.
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.
46. Before parting with the case we wish to express our sincere gratitude to Sri P. Balagangadhara Menon, counsel for petitioner, for the able guidance which we obtained from him. He had spared no pains in placing all the relevant materials including the available literature on the matter in controversy.
47. In our order dt. 3-10-1990 we had made it clear that the entire expenses of the petitioner including counsel’s fee as fixed by this Court shall be borne by the Travancore Devaswom Board since the petitioner has initiated these proceedings to set at rest a controversy in larger public interest. Sri Balagangadhara Menon made a fervent appeal to us to exonerate him from accepting any fee in this case since he has only assisted the court in a public interest litigation. In view of that request we are not making any direction as to costs.
The original petition is disposed of as above.
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(1993) AIR(Kerala) 42
