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TMI Blog2018 (9) TMI 1790X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of this country to accept women as partners in their search for divinity and spirituality. In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status. The society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man. The law and the society are bestowed with the Herculean task to act as levellers in this regard and for the same, one has to remember the wise saying of Henry Ward Beecher that deals with the changing perceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition preferred under Article 32 of the Constitution seeks issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short, "the 1965 Rules") framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, "the 1965 Act") as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety of women pilgrims. 6. The three-Judge Bench in Indian Young Lawyers Association and others v. State of Kerala and others(2017) 10 SCC 689), keeping in view the gravity of the issues involved, sought the assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy, learned senior counsel as Amici Curiae. Thereafter, the three- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 9. It is also worthy to note here that the Division Bench of the High Court of Kerala, in S. Mahendran (supra), upheld the practice of banning entry of women belonging to the age group of 10 to 50 years in the Sabarimala temple during any time of the year. The High Court posed the following questions: "(1) Whether woman of the age group 10 to 50 can be permitted to enter the Sabarimala temple at any period of the year or during any of the festivals or poojas conducted in the temple. (2) Whether the denial of entry of that class of woman amounts to discrimination and violative of Articles 15, 25 and 26 of the Constitution of India, and (3) Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman to the temple?" 10. The High Court, after posing the aforesaid questions, observed thus: "40. The deity in Sabarimala temple is in the form of a Yogi or a Bramchari according to the Thanthri of the temple. He stated that there are Sasta temples at Achankovil, Aryankavu and Kulathupuzha, but the deities there are in different forms. Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised by the Trava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Institutions Act, 1950‟, Section 4 of the said Act contemplates a Devaswom Board for bringing all incorporated and unincorporated Devaswoms and other Hindu religious institutions except Sree Padmanabhaswamy Temple. 13. It has been put forth by them that the aforesaid enactment has been subject to various amendments over a period of time, the last amendment being made in the year 2007 vide Amending Act of 2007 [published under Notification No. 2988/Leg.A1/2007 in K.G. ext. No. 694 dated 12.04.2007] which led to the inclusion of women into the management Board. The petitioners have also referred to Section 29A of the said Act which stipulates that all appointments of officers and employees in the Devaswom Administrative Service of the Board shall be made from a select list of candidates furnished by the Kerala Public Service Commission. It has been submitted by the petitioners that after the 1950 Act, no individual Devaswom Board can act differently both in matters of religion and administration as they have lost their distinct character and Sabarimala no more remained a temple of any religious denomination after the tak over of its management. 14. As far as the funding aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , religious denominations have been conferred four rights under clauses (a) to (d) of Article 26. These rights, it is submitted, are not disjunctive and exclusive in nature but are collectively conferred to establish their identity. To buttress this view, the petitioners have placed reliance on the views of the views of H.M. Seervai (Third Edition, Vol. 1, 1983 pg. 931) wherein the learned author has stated that the right to acquire property is implicit in clause (a) as no religious institution could be created without property and similarly, how one could manage its own affairs in matters of religion under clause (b) if there is no religious institution. Thus, for a religious denomination claiming separate and distinct identity, it must own some property requiring constitutional protection. 17. The petitioners have pressed into service the decisions of this Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay[1962] Suppl. 2 SCR 496], Raja Bira Kishore Deb v. State of Orissa(1964) 7 SCR 32), Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and another(1966) 3 SCR 242 : AIR 1966 SC 1119) and S.P. Mittal v. Union of India and others(1983) 1 SCC 51) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the petitioners submit that before any religious practice is examined on the touchstone of constitutional principles, it has to be ascertained positively whether the said practice is, in pith and substance, really the „essence‟ of the said religion. 21. The petitioners have also cited the judgment in Durgah Committee, Ajmer v. Syed Hussain Ali(1962) 1 SCR 383) wherein Gajendragadkar, J. clarified that clauses (c) and (d) do not create any new right in favour of religious denominations but only safeguard their rights. Similarly, in matters of religious affairs, it is observed that the same is also not sacrosanct as there may be many ill-practices like superstitions which may, in due course of time, become mere accretions to the basic theme of that religious denomination. After so citing, the petitioners have submitted that even if any accretion added for any historical reason has become an essence of the said religious denomination, the same shall not be protected under Article 26(b) if it is so abhorring and is against the basic concept of our Constitution. 22. It is also the case of the petitioners that discrimination in matters of entry to temples is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when no disturbance by any member of the public is allowed. Section 21, it is to be noted, does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary the Holy of Holies" as it is said, the sanctity of which is `zealously preserved. It does not say that the entry may be made after due notice to the head of the institution and at such hours which would not interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution." 25. The judgment of this Court in Sri Venkatramana Devaru v. State of Mysore and others(1958) SCR 895 : 1958 AIR 55) has been cited to submit that a religious denomination cannot completely exclude or prohibit any class or section for all times. All that a religious denomination may do is to restrict the entry of a particular class or section in certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le open to challenge as it would not only be violative of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 but also of Article 25(2)(b) of the Constitution read with Articles 14 and 15. Submissions on behalf of Intervenor in I.A No. 10 of 2016 27. It has been submitted on behalf of the intervenor that the exclusionary practice of preventing women between the age of 10 to 50 years based on physiological factors exclusively to be found in female gender violates Article 14 of the Constitution of India, for such a classification does not have a constitutional object. It is also the case of the applicant/intervenor that even if it is said that there is classification between men and women as separate classes, there cannot be any further sub-classification among women on the basis of physiological factors such as menstruation by which women below 10 years and above 50 years are allowed. 28. It has been averred by the applicant/intervenor that as per Article 14, any law being discriminatory in nature has to have the existence of an intelligible differentia and the same must bear a rational nexus with the object sought to be achieved. The object as has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by applicant/intervenor that Article 17 applies to both State and non-State actors and has been made operative through a Central legislation in the form of Protection of Civil Rights Act, 1955. The judgment of the High Court in S. Mahendran (supra), in the view of the applicant/intervenor, is not in consonance with the provisions of the 1955 Act. 33. Drawing support from the decisions of this Court in National Legal Services Authority v. Union of India and others(2014) 5 SCC 438) and Justice K.S. Puttaswamy and another v. Union of India and others(2017) 10 SCC 1), the applicant/intervenor has averred that the exclusionary practice pertaining to women is violative of Article 21 of the Constitution as it impacts the ovulating and menstruating women to have a normal social day to day rendezvous with the society including their family members and, thus, undermines their dignity by violating Article 21 of the Constitution. 34. It has also been submitted that the exclusionary practice violates the rights of Hindu women under Article 25 of the Constitution as they have the right to enter Hindu temples dedicated to the public. As per the applicant/intervenor, there is a catena of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. 38. The applicant/intervenor has also drawn the attention of this Court to the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and the fact that India is a party to this Convention for emphasizing that it is the obligation of the State to eradicate taboos relating to menstruation based on customs or traditions and further the State should refrain from invoking the plea of custom or tradition to avoid their obligation. The judgment of this Court in Vishaka and others v. State of Rajasthan and others(1997) 6 SCC 241) has been cited to submit that international conventions must be followed when there is a void in the domestic law or when there is any inconsistency in the norms for construing the domestic law. Submissions on behalf of Intervenor in I.A No. 34/2017 39. The intervenor, All India Democratic Women‟s Association, has filed I.A No. 34/2017 wherein it has submitted that the meaning of the Constitution cannot be frozen and it must continuously evolve with the changing times. Further, the applicant submits that merely because Article 26 does not specify that it is subject to Part III or Article 25 of the Constitution, it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is urged by Mr. Gupta that there is no restriction in view of the legislation in the field. In essence, the stand of the State is that it does not conceive of any discrimination as regards the entry of women into the temple where male devotees can enter. Submissions on behalf of Respondent No. 2 41. The respondent no. 2 has submitted that Sabarimala is a temple of great antiquity dedicated to Lord Ayyappa who the petitioner avers to be a deity depicting "a hyper masculine God born out of the union of two male Gods Shiva and Mohini, where Mohini is Vishnu in a female form." 42. Thereafter, the respondent no. 2 reiterated the submissions of the respondent no. 4 pertaining to the observance of 41 days „Vruthum‟ and the fact that the Sabarimala Temple is supposed to depict „Naishtika Brahmacharya‟. In addition to this, the respondent no. 2 has also referred to a Ph.D thesis by Radhika Sekar in the Department of Sociology and Anthropology at Carleton University, Ottawa, Ontario in October 1987 titled "The Process of Pilgrimage : The Ayyappa Cultus and Sabarimala Yatra" which has established the very raison d'etre for the existence of the denominational Temple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us that women do not go to temples or participate in religious activities during periods and the same is substantiated by the statement of the basic Thantric text of temple worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II. 45. The respondent no. 4 has emphasized that the observance of 41 days Vruthum is a condition precedent for the pilgrimage which has been an age old custom and anyone who cannot fulfill the said Vruthum cannot enter the temple and, hence, women who have not attained puberty and those who are in menopause alone can undertake the pilgrimage at Sabarimala. The respondent no. 4 has also averred that the said condition of observance of 41days Vruthum is not applicable to women alone and even men who cannot observe the 41 days Vruthum due to births and deaths in the family, which results in breaking of Vruthum, are also not allowed to take the pilgrimage that year. 46. The respondent no. 4 has also drawn the attention of the Court to the fact that religious customs as well as the traditional science of Ayurveda consider menstrual period as an occasion for rest for women and a period of uncleanliness of the body and during this period, women are affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Kerala High Court in S. Mahendran (supra) wherein the then Thantri Shri Neelakandaru had deposed as C.W 6 and he stated that the present idol was installed by his paternal uncle Kantaru Shankaru and he confirmed that women of age group 10 to 50 years were not allowed to enter the temple even before 1950s. The said witness also deposed that his paternal uncle had instructed him and the temple officials to follow the old customs and usages. 52. The respondent no. 4 has also drawn the attention of the Court to the opinion of this Court in Seshammal and others v. State of Tamil Nadu(1972) 2 SCC 11), wherein it was observed that on the consecration of the image in the temple, the Hindu worshippers believe that the divine spirit has descended into the image and from then on, the image of the deity is fit to be worshipped and the rules with regard to daily and periodical worship have been laid down for securing the continuance of the divine spirit and as per the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. 53. The respondent no. 4 has also submitted that the deity at Sabarimala in the form of „Naishtik B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venting deflecting of the idol from the stage of celibacy cannot be achieved from the present classification. 57. Further, the petitioners have submitted that the respondent no. 2 has wrongly stated that the Sabarimala temple is a religious denomination, for any temple under a statutory board like a Devaswom Board and financed out of the Consolidated Fund of Kerala and whose employees are employed by the Kerala Service Commission cannot claim to be an independent „religious denomination‟. 58. Besides, the petitioners have contended that several illpractices in existence and falling within the ambit of religion as cited by the respondent no. 2 may not be acceptable today and the said practices have not come up before this Court and should not be taken cognizance of. Further, it is the view of the petitioners that the said practices cannot be held to be the essence of religion as they had evolved out of convenience and, in due course of time, have become crude accretions. To prove its point, the petitioners have cited the examples of the practices of dowry and restriction of women from entering mosques which, although had come into existence due to certain factors exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there has been no continuity in the applicability of the said custom and that it has also been established in the evidence before the High Court that women irrespective of their age were permitted to enter the Sabarimala for the first rice feeding ceremony of their children and it is only since the last 60 years after the passing of the Notification in 1955 that women between the age of 10 to 50 years were prohibited from entering the temple. The applicant/intervenor has also pointed out that even if the said practice is considered to be a custom, it has to still pass the test of constitutional morality and constitutional legitimacy and the applicant/intervenor has relied upon the decision of this Court in Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC 725) wherein it was observed: "48. Seshammal vs State of T.N., (1972) 2 SCC 11] is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test the violation of the fundamental rights not on the basis of intention but the impact of the impugned action. The applicant/intervenor has stated that the respondents have wrongly placed reliance upon the decision in T.M.A. Pai Foundation and others v. State of Karnataka and others(1995) 5 SCC 220) as in the present case, the issue is not one pertaining to the rights of minorities but concerning the unconstitutional acts of the majority. 66. The applicant/intervenor has also submitted that the ageold practice of considering women as impure while they are menstruating amounts to untouchability and stigmatizes them as lesser human beings and is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution. Submissions of learned Amicus Curiae, Sr. Advocate Mr. Raju Ramchandran, assisted by Mr. K. Parameshwar 67. It is submitted on the behalf of learned Senior Advocate Mr. Raju Ramchandran, that the Sabarimala Sree Dharma Sastha Temple, Kerala is a public temple being used as a place of worship where members of the public are admitted as a matter of right and entry thereto is not restricted to any particular denomination or part thereof. As per the learned Amicus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty cannot be understood in a pedantic sense but must be understood in the context of the Civil Rights Act to include any exclusion based on the notions of purity and pollution. 71. It is also the view of the learned Amicus that the phrase „equally entitled to‟ in Article 25(1) finds resonance in Section 3(a) of the Civil Rights Act, 1955 which criminalizes exclusion of people to those places which are "open to other persons professing the same religion or any section thereof, as such person" and prevention of worship "in the same manner and to the same extent as is permissible to other persons professing the same religion or any section thereof, as such persons". That apart, the learned Amicus has drawn our attention to Section 2(d) of the 1955 Act which defines „place of public worship‟ to mean, inter alia, „by whatever name belonging to any religious denomination or any section thereof, for the performance of any religious service‟ and, therefore, the Amicus submits that a temple is a public temple and irrespective of its denominational character, it cannot prevent the entry of any devotee aspiring to enter and worship. 72. After placing reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contrary, no scriptural evidence has been led by the respondents herein to demonstrate that the exclusion of women is an essential part of their religion. 76. After referring to Section 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 which makes a place of worship open to all sections and classes, Mr. Raju Ramchandran, learned senior counsel, is of the view that the said Section is nothing but a statutory enunciation of rights embodied under Article 25(2)(b) and similarly, the emphasis on the word „like‟ in Section 3 is the statutory reflection of the phrase „equally‟ found in Article 25(1). That apart, it is the case of the learned Amicus curiae that the expression „section‟ or „class‟ in Section 2(c) of the 1965 Act must necessarily include all sexes if Section 3 is to be in consonance with a woman‟s right to worship under Article 25 and in consonance with Article 15. As per the learned Amicus, women between the age of 10 to 50 years are a section or class of Hindus who are within the inclusive provision of Section 3 and the proviso to Section 3 brings in the right conferred in Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence to suggest any binding religious practice and, likewise, the High Court, in its judgment vide para 34, found the exclusionary practice as just a usage and not a religious custom or essential religious practice. 81. The learned Amicus also averred that even if we are to assume that the devotees of Lord Ayyappa constitute a separate denomination, the rights conferred under Article 26 being subject to the constitutional standard of morality, exclusion of women from entry would violate this standard of morality for a denomination‟s right to manage its affairs in matters of religion under Article 26(b) is subject to Article 25(2)(b) as has been succinctly explained by this Court in Devaru (supra) by observing thus: "And lastly, it is argued that whereas Article 25 deals with the rights of individuals, Article 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Article 25(2)(b). This contention ignores the true nature of the right conferred by Article 25(2)(b). That is a right conferred on "all classes and sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as a part of the religion. 85. It has also been averred that Ayyappa temple by itself is a denomination as contemplated under Article 26 having regard to the nature of worship and the practices followed by the temple and similarly, the devotees of Ayyappa temple would also constitute a denomination who have accepted the impugned religious practice based on religious belief which has been in vogue for several centuries unbroken and accepted by all sections of Hindus. 86. It has been submitted that it is too late in the day to contend that religious practice based on religious faith, adhered to and followed by millions of Hindus for so long in consonance with the natural rights of men and women is violative of fundamental rights. It is also the case of the Amicus Mr. K. Ramamoorthy that to project such a religious practice as being contrary to natural law is a shock to the judgment of the community, as calling such a religious practice contrary to fundamental rights amounts to offending the common sense and wisdom of our ancestors in faithfully following the command of the divine. Further, no group or individual can force other Hindus to follow their view in the domain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er religious teachers. It is a fact well established by tradition that the eight UdipiMaths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article." 90. In S.P. Mittal (supra), the challenge was with regard to the validity of the Auroville (Emergency) Provisions Act, 1980 as being violative of Articles 25 and 26 of the Constitution. Sri Aurobindo postulated the philosophy of cosmic salvation and along with the disciples found the Aurobindo Society for preaching and propagating the teachings of Sri Aurobindo and The Mother through its centres in India as well as abroad. After the death of Sri Aurobindo, the Mother proposed an international cultural township, Auroville, in the then Pondicherry. The society received funds as grants from the Central Government, Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (supra) and observed as under: "The words 'religious denomination' in Article 26 of the Constitution must take their colour from the word 'religion' and if this be so, the expression 'religious denomination' must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation, and (3) designation by a distinctive name." 93. In the case of Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and others(2003) 10 SCC 712), the question that arose before the Court was whether the temple at Nellor owned by the Vellala Community of Marthandam constituted a „religious denomination‟ within the meaning of Article 26 of the Constitution. It was argued in this case that the Vellala Community observed special religious practices and beliefs which are integral part of their religion and that the front mandappam of the sanctorium is open to access only to the members of their community and no one else and outsiders can offer worship from the outer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account. Enforceability of Fundamental Rights under Article 25(1) against the Travancore Devaswom Board 97. Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, in our foregoing analysis, has been unveiled as „other authority‟ within the meaning of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Raju Ramachandran, that the right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. 102. Though not in reference to men or women, yet in the context of any Hindu worshipper seeking entry in a temple which is a public place of worship for Hindus, the observations of the Supreme Court in Nar Hari Shastri and others v. Shri Badrinath Temple Committee (AIR 1952 SC 245) are quite instructive wherein the Court opined thus: "It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan' or worship is a right which flows from the nature of the institution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able nor any legal limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity. 105. When we say so, we may also make it clear that the said rule of exclusion cannot be justified on the ground that allowing entry to women of the said age group would, in any way, be harmful or would play a jeopardizing role to public order, morality, health or, for that matter, any other provision/s of Part III of the Constitution, for it is to these precepts that the right guaranteed under Article 25(1) has been made subject to. 106. The term „morality‟ occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. We must remember that when there is a violation of the fundamental rights, the term „morality‟ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State." And again: "115. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality" 110. The right guaranteed under Article 25(1) has been made subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is, order, morality and health are qualified by the word „public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial practices to a particular religion has been well demonstrated by Lord Halsbury in Free Church of Scotland v. Overtoun(1904) AC 515) wherein it was observed: "In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension." 114. This Court, in Shirur Mutt (supra), for the first time, held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus: "In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself." 115. In Mohd. Hanif Quareshi v. State of Bihar (AIR 1958 SC 731), this Court rejected the argument of the petitioner that sacrifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under Section 144 Cr.PC. prohibiting such processions in the interest of public order and morality was not violative of the rights of the Ananda Marga denomination under Articles 25 and 26 of the Constitution more so when the order under Section 144 Cr.PC. did not completely ban the processions or gatherings at public places but only prohibited carrying of daggers, trishuls and skulls which posed danger to public order and morality. 120. In N. Adithayan v. Travancore Devaswom Board and others(2002) 8 SCC 106), the Court very succinctly laid down as to what should be the approach of the court for deciding what constitutes an essential practice of a religion in the following words: "The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion..." (Emphasis is ours) 121. In Commissioner of Police and others v. Acharya Jagadishwarananda Ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the nonessential part or practices." 122. In the light of the above authorities, it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion. 123. By allowing women to enter into the Sabarimal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation of Entry) Act, 1965. Section 2 of the said Act is the definition clause and reads as under: "2. Definitions.- In this Act, unless the context otherwise requires,- (a) "Hindu" includes a person professing the Buddhist, Sikh or Jaina religion; (b) "place of public worship" means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams, appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped or are used for bathing or for worship, but does not include a "sreekoil"; (c) "section or class" includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever. " 128. As per clause (a) of Section 2, the term 'Hindu' includes a person professing Buddhist, Sikh or Jaina religion. The word 'person' occurring in this clause, for the pure and simple reason of logic, must inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be open to all sections and classes of Hindus. The definition of 'section or class' and 'Hindu' has to be imported, for the purposes of Section 3, from the definition clauses 2(a) and 2(c) which, as per our foregoing analysis, includes all the genders, provided they are Hindus. It further needs to be accentuated that the right provided under Section 3 due to its non-obstante nature has to be given effect to regardless of any law, custom or usage to the contrary. 132. The proviso to Section 3 stipulates that in case the place of public worship is a temple founded for the benefit of any religious denomination or section thereof, then the rights warranted under Section 3 becomes subject to the right of that religious denomination or section to manage its own affairs in matters of religion. Having said so, we have, in the earlier part of this judgment, categorically stated that devotees and followers of Lord Ayyappa do not constitute a religious denomination and, therefore, the proviso to Section 3 cannot be resorted to in the case at hand. 133. The importance and the gravity of the right stipulated under Section 3 of this Act, for all sections and classes of Hindus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing an exception to Section 4(1) is a classic example of a situation where the exception is more important than the rule itself. It needs to be borne in mind that the language of the proviso to Section 4 of the 1965 Act, in very clear and simple terms, states that the regulations made under clause (1) of Section 4 shall not discriminate against any Hindu on the ground that he/she belongs to a particular section or class. As stated earlier, a particular section or class for the purposes of this Act includes women of all age groups, for Hindu women of any age group also constitute a class or section of Hindus. 136. The State of Kerala, by virtue of clause (1) of Section 4, has framed the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The relevant rule which is also the most prominent bone of contention in the present case is Rule 3(b). The relevant part of Rule 3 reads thus: "Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulatory Commission(2009) 15 SCC 570), where the question before the Court was regarding the validity of clauses (b) and (f) of Regulation 6- A of the Central Electricity Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and other Related Matters) Regulations, 2004. The Court gave the following opinion: "It is now a well-settled principle of law that the rulemaking power "for carrying out the purpose of the Act" is a general delegation. Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the Regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act." 139. It was clearly held in this case that the rule-making power, which is provided under a statute with the aim of facilitating the implementation of the statute, does not confer power on any authority to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act. The Court, further, went on to hold that: "The image ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and the fundamental right to practise religion guaranteed under Article 25(1). It is clear as crystal that the provisions of the 1965 Act are liberal in nature so as to allow entry to all sections and classes of Hindus including Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) of the 1965 Rules under the garb of Section 4(1) would violate the very purpose of the 1965 Act. Conclusions 144. In view of our aforesaid analysis, we record our conclusions in seriatim: (i) In view of the law laid down by this Court in Shirur Mutt (supra) and S.P. Mittal (supra), the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (ii) Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alter the nature of Hindu religion. Besides, the exclusionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. (ix) The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion. (x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, for the simon pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. (xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. v. Shri Badrinath Temple Committee, 1952 SCR 849, this Court was concerned with the temple at Badrinath, which is an ancient temple, being a public place of worship for Hindus. A representative suit was filed under Order I Rule 8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who, as guides or escorts of pilgrims, sought a declaration that they cannot be obstructed from entering the precincts of the temple along with their "clients" for darshan of the deities inside the temple. This Court held: "It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of 'darshan' or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved. As the Panda as well as his client are both Hindu worshippers, there can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y worship. In our opinion, the plaintiffs are entitled to a declaration in this form." (at pp. 860-862) 4. In chronological sequence, next comes the celebrated Shirur Math case, viz., The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005. This case concerned itself with the settlement of a scheme in connection with a Math known as the Shirur Math, which, legislation in the form of the Madras Hindu Religious and Charitable Endowments Act, 1951, sought to interfere with. In history, the Shirur Math is stated to be one of the eight Maths situated at Udipi in the district of South Kanara and reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in Hinduism. This judgment being a seminal authority for a large number of aspects covered under Articles 25 and 26 needs to be quoted in extenso. The Court first dealt with the individual right contained in Article 25 as follows: "We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As Article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article." (emphasis supplied) (at pp. 1021-1022) With regard to what constitutes "religion", "religious practice", and "essential religious practices", as opposed to "secular practices", this Court held: "It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25. Latham, C.J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]: "It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the religious association known as "Jehovah's Witnesses." This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of "Jehovah's Witnesses" incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations [Vide Adelaide Company v. Commonw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand Gandhi v. State of Bombay and Ors., 1954 SCR 1055. In this case, two connected appeals - one by the manager of a Swetamber Jain public temple and one by the trustees of the Parsi Punchayet, assailed the constitutional validity of the Bombay Public Trusts Act, 1950. Dealing with the freedoms contained in Articles 25 and 26, this Court held: "Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess, practise and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by clause (2) of the Article. Sub-clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and subclause (b) reserves the State's power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution. The moot point for consideration, therefore, is where is the line to be drawn between what are matters of religion and what are not? Our Constitution-makers have made no attempt to define what 'religion' is and it is certainly not possible to frame an exhaustive definition of the word 'religion' which would be applicable to all classes of persons. As has been indicated in the Madras case referred to above, the definition of 'religion' given by Fields, J. in the American case of Davis v. Beason [133 U.S. 333], does not seem to us adequate or precise. "The term 'religion' ", thus observed the learned Judge in the case mentioned above, "has reference to one's views of his relations to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His Will. It is often confounded with cultus or form of worship of a particular sect, but is distinguishable from the latter". It may be noted that 'religion' is not necessarily theistic and in fact there are well known religions in India like Buddhism and Jainis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case of Jamshed ji v. Soonabai [33 Bom. 122], and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid charitable gifts, the observations, we think, are quite appropriate for our present purpose. "If this is the belief of the community" thus observed the learned Judge, "and it is proved undoubtedly to be the belief of the Zoroastrian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the rules relating to worship, and purificatory ceremonies (known as Samprokshana) have to be performed for restoring the sanctity of the shrine. Vide judgment of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar [(1914) 27 MLJ 253]. In Sankaralinga Nadan v. Raja Rajeswara Dorai [(1908) L.R. 35 I.A. 176], it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust. Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practice and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. We have dealt with this question at some length in view of the argument of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as extinguish it, but whether it is possible - so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25(2)(b) as to give effect to Art. 26(b) and recognise the rights of the denomination in respect of matters which are strictly denomina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out hereunder:- "...... It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by Art. 26. Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practice and propagate his religion, and everyone is guaranteed his freedom of conscience. ......... The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc. A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus, though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Art. 26(b). It is unnecessary for the purpose of the present case to enter into the difficult question whether every case of excommunication by the Dai on whatever grounds inflicted is a matter of religion. What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, "of its own affairs in matters of religion." The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under clause (b) of Art. 26 of the Constitution." (at p. 535) Holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the maintenance of the integrity of the Dawoodi Bohra community. It therefore violates the right to practice religion guaranteed by Articles 25(1) and 26 in that it interferes with the right of the religious head - the Dai - to administer, as trustee, the property of the denomination so as to exclude excommunicated persons. The learned Judge, however, drew a distinction between the two parts of Article 25(2)(b), stating that the expression "social welfare and reform" could not affect essential parts of religious practice as follows: "But very different considerations arise when one has to deal with legislation which is claimed to be merely a measure "providing for social welfare and reform." To start with, it has to be admitted that this phrase is, as contrasted with the second portion of Art. 25(2)(b), far from precise and is flexible in its content. In this connection it has to be borne in mind that limitations imposed on religious practices on the ground of public order, morality or health have already been saved by the opening words of Art. 25(1) and the saving would cover beliefs and practices even though considered essential or vital by those professing the religion. I co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. 11. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and Ors., (1964) 1 SCR 561, otherwise referred to as the Nathdwara Temple case, this Court was concerned with the validity of the Nathdwara Temple Act, 1959. Referring to and following some of the judgments that have already been referred, this Court held that the Nathdwara temple was a public temple and that as the Act extinguished the secular office of the Tilkayat by which he was managing the properties of the Temple, no right under Article 26 could be said to have been effected. In an instructive passage, this Court laid down certain tests as to what could be said to be an essential or integral part of religion as opposed to purely secular practice, and laid down what is to be done to separate what may not always be oil from water. The Court held as follows: "In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matter of religion, then, of course, the rights guaranteed by Art. 25(1) and Art. 26(b) cannot be contravened. It is true that the decision of the question as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day-to-day are regarded as religious in character. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, as follows: "11. ......... On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of the deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit. The rituals have a two-fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in a variety of ways. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." This Court has given the correct meaning of the Article, and we find no justification for the view that it grants a fundamental right to convert persons to one's own religion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion." (at pp. 616-617) 14. In S.P. Mittal v. Union of India and Ors., (1983) 1 SCC 51, ("S.P. Mittal"), this Court upheld the constitutional validity of the Auroville (Emergency Provisions) Act, 1980. After referring to Shirur Math (supra) and Durgah Committee (supra), the Court laid down three tests for deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count." After referring to the arguments of both sides, the Court did not answer the question as to whether the Sri Aurobindo Society was a religious denomination, but proceeded on the assumption that it was, and then held that the Act did not violate either Article 25 or Article 26. In a separate opinion by Chinnappa Reddy, J., without adverting to the argument contained in paragraph 106 of Misra, J.'s judgment, the learned Judge concluded that "Aurobindoism" could be classified as a new sect of Hinduism and the followers of Sri Aurobindo could, therefore, be termed as a religious denomination. This was done despite the fact that Sri Aurobindo himself disclaimed that he was founding a new religion and that the Society had represented itself as a "non-political, non-religious organization" and claimed exemption from income tax on the ground that it was engaged in educational, cultural, and scientific research. 15. We then come to Acharya Jagdishwaranand Avadhuta and Ors. v. Commissioner of Police, Calcutta and Anr., (1983) 4 SCC 522. This judgment concerned itself with whether "Ananda Marga" is a separate religious denomination. After referring to the tests laid down in Shirur M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery follower of Ananda Marga. Even conceding that Tandava dance has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a necessary corollary that Tandava dance to be performed in the public is a matter of religious rite. In fact, there is no justification in any of the writings of Sri Ananda Murti that Tandava dance must be performed in public. At least none could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf. We are, therefore, not in a position to accept the contention of Mr. Tarkunde that performance of Tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi." 16. In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors., (1997) 4 SCC 606, ("Sri Adi Visheshwara"), this Court upheld the constitutional validity of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. In so doing, they referred to the tests of a religious denomination laid down in the previous judgments of this Court, and then held: "33. Thus, it could be seen that every Hindu whether a believer of Shaiva form of worship or of panchratna for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered to need due regulation in the process of harmonizing the various rights. The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down. 17. Where a temple has been constructed and consecrated as per Agamas, it is considered necessary to perform the daily rituals, poojas and recitations as required to maintain the sanctity of the idol and it is not that in respect of any and every temple any such uniform rigour of rituals can be sought to be enforced, dehors its origin, the manner of construction or method of consecration. No doubt only a qualified person well versed and prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialized form of worship peculiar to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21 of the Constitution of India." Finally, this Court held: "18. ......... Any custom or usage irrespective of even any proof of their existence in preconstitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country." 18. In Dr. Subramanian Swamy v. State of Tamil Nadu and Ors., (2014) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars (Smarthi Brahmins) to administer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Mysore [AIR 1958 SC 255 : 1958 SCR 895]." The observation that regulations contemplated by Article 25 cannot obliterate essential religious practices is understandable as regulations are not restrictions. However, social reform legislation, as has been seen above, may go to the extent of trumping religious practice, if so found on the facts of a given case. Equally, the task of carrying out reform affecting religious belief is left by Article 25(2) in the hands of the State (See paragraph 66). 20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and Anr., (2016) 2 SCC 725, ("Adi Saiva Sivachariyargal Nala Sangam"), this Court was concerned with a Government Order issued by the Government of Tamil Nadu, which stated that any person who is a Hindu and possesses the requisite qualification and training, can be appointed as an Archaka in Hindu temples. The Court referred to Article 16(5) of the Constitution, stating that the exception carved out of the equality principle would cover an office of the temple, which also requires performance of religious functions. Therefore, an Archaka may, by law, be a person professing a particular religion or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential parts of religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion - would the religion remain the same or would it be altered? Equally, if different groups of a religious community speak with different voices on the essentiality aspect presented before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant nature of the activity test is to be applied. The Court should take a commonsense view and be actuated by considerations of practical necessity. 21.7. The exceptions to this individual right are public order, morality, and health. "Public order" is to be distinguished from "law and order". "Public disorder" must affect the public at large as opposed to certain individuals. A disturbance of public order must cause a general disturbance of public tranquility. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our separate and distinct rights are given by Article 26 to religious denominations or sections thereof, namely: "(a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law." As in Article 25, it is only essential religious matters which are protected by this Article. 21.13. The fundamental right granted under Article 26 is subject to the exception of public order, morality, and health. However, since the right granted under Article 26 is to be harmoniously construed with Article 25(2)(b), the right to manage its own affairs in matters of religion granted by Article 26(b), in particular, will be subject to laws made under Article 25(2)(b) which throw open religious institutions of a public character to all classes and sections of Hindus. 21.14. Thus, it is clear that even though the entry of persons into a Hindu temple of a public character would pertain to management of its own affairs in matters of religion, yet such temple entry would be subject to a law throwing open a Hindu reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Thanthri, changes were effected in order to preserve the temple's sanctity. The Division Bench found that women, irrespective of their age, were allowed to visit the temple when it opens for monthly poojas, but were not permitted to enter the temple during Mandalam, Makaravilakku, and Vishu seasons. After examining the evidence of one Thanthri, the Secretary of the Ayyappa Seva Sangham, and a 75- year old man who had personal knowledge of worshipping at the temple, the Division Bench stated that the usage of not permitting women between the age group of 10 to 50 to worship in the temple had been established. This was further sanctified by Devaprasnams conducted at Sabarimala by astrologers, who reported that the deity does not like young ladies entering the precincts of the temple. It was then held in paragraph 38 that since women of the age group of 10 to 50 years would not be able to observe Vratham for a period of 41 days due to physiological reasons, they were not permitted to go on a pilgrimage of Sabarimala. It was also held that the deity is in the form of a Naisthik Brahmachari, as a result of which, young women should not offer worship in the temple, so that even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ham", either the women leave the house and take up residence elsewhere or the men separate themselves from the family so that normal Asauchas in the house do not affect his "vrutham". The problem with women is that they cannot complete the 41 days vrutham because the Asaucham of periods will surely fall within the 41 days. It is not a mere physiological phenomenon. It is the custom among all Hindus that women during periods do not go to Temples or participate in religious activity. This is as per the statement of the basic Thantric text of Temple worshipping in Kerala Thanthra Samuchayam, Chapter 10, Verse II. A true copy of the relevant page of Thanthra Samuchchaya is attached herewith and marked as Annexure A-1 (Pages 30- 31)." The affidavit then goes on to state that the Shastras forbid religious austerity by menstruating women, which is why women above the age of 10 and below the age of 50 are not allowed entering into the temple. The affidavit then states, in paragraph 15: "15. ......... During this period, many women are affected by physical discomforts like headache, body pain, vomiting sensation etc. In such circumstances, intense and chaste spiritual disciplines for fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our season, and let us enjoy sexual intercourse freely until we give birth." He replied: "So be it!" And they took the guilt upon themselves. That guilt of killing a Brahmin manifests itself every month. Therefore, one should not eat the food of a menstruating woman, for such a woman has put on the aspect of the guilt of killing a Brahmin'."5 To similar effect are Chapters 9 and 13 of Canto 6 of the Bhagavata Purana which read as follows: "6.9.9. In return for Lord Indra's benediction that they would be able to enjoy lusty desires continuously, even during pregnancy for as long as sex is not injurious to the embryo, women accepted one fourth of the sinful reactions. As a result of those reactions, women manifest the signs of menstruation every month."6 "6.13.5. King Indra replied: When I killed Visvarupa, I received extensive sinful reactions, but I was favored by the women, land, trees and water, and therefore I was able to divide the sin among them. But now if I kill Vrtrasura, another brahmana, how shall I free myself from the sinful reactions?" Id. Also, in the Qur'an, Chapter 2, Verse 222 states as follows: "222. They also ask you about (the injunctions concerning) mens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... living souls (nismo); I will vex the water, I will vex the plants, I will vex the fire of Ohrmazd, I will make the whole creation of Ohrmazd vexed.' 7. And she so recounted those evil deeds a second time, that the evil spirit was delighted and started up from that confusion; and he kissed Jeh upon the head, and the pollution which they call menstruation became apparent in Jeh. 8. He shouted to Jeh thus: 'What is thy wish? so that I may give it thee.' And Jeh shouted to the evil spirit thus: 'A man is the wish, so give it to me.'"10 In the selections of Zadspram, Chapter 34, Verse 31, it is stated: "31. And [the demon Whore] of evil religion joined herself [to the Blessed Man]; for the defilement of females she joined herself to him, that she might defile females; and the females, because they were defiled, might defile the males, and (the males) would turn aside from their proper work."11 However, in the more recent religions such as Sikhism and the Bahá'í Faith, a more pragmatic view of menstruation is taken, making it clear that no ritualistic impurity is involved. The Sri Guru Granth Sahib deems menstruation as a natural process - free from impurity12 and es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Society claimed exemption from income tax on the footing that it was a charitable, and not a religious organization, and held itself out to be a non-religious organization. Also, the powerful argument addressed, noticed at paragraph 106 of the majority judgment, that persons who joined the Auroville Society did not give up their religion, also added great substance to the fact that the Auroville Society could not be regarded as a religious denomination for the purpose of Article 26. Chinnappa Reddy, J. alone, in dissent, held the Auroville Society to be a religious denomination, without adverting to the fact that persons who are a part of the Society continued to adhere to their religion. 27. In these circumstances, we are clearly of the view that there is no distinctive name given to the worshippers of this particular temple; there is no common faith in the sense of a belief common to a particular religion or section thereof; or common organization of the worshippers of the Sabarimala temple so as to constitute the said temple into a religious denomination. Also, there are over a thousand other Ayyappa temples in which the deity is worshipped by practicing Hindus of all kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 states as follows: "3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng constitutional principles to the case at hand. 31. A fervent plea was made by some of the counsels for the Respondents that the Court should not decide this case without any evidence being led on both sides. Evidence is very much there, in the form of the writ petition and the affidavits that have been filed in the writ petition, both by the Petitioners as well as by the Board, and by the Thanthri's affidavit referred to supra. It must not be forgotten that a writ petition filed under either Article 32 or Article 226 is itself not merely a pleading, but also evidence in the form of affidavits that are sworn. (See Bharat Singh and Ors. v. State of Haryana and Ors., 1988 Supp (2) SCR 1050 at 1059). 32. The facts, as they emerge from the writ petition and the aforesaid affidavits, are sufficient for us to dispose of this writ petition on the points raised before us. I, therefore, concur in the judgment of the learned Chief Justice of India in allowing the writ petition, and declare that the custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual, as a focal point of a just society. The institutions through which the nation would be governed would be subsumed in a democratic polity where real power both in legal and political terms would be entrusted to the people. The purpose of adopting a democratic Constitution was to allow a peaceful transition from a colonial power to home rule. In understanding the fundamental principles of the Constitution which find reflection in the Preamble, it is crucial to notice that the transfer of political power from a colonial regime was but one of the purposes which the framers sought to achieve. The transfer of political power furnished the imperative for drafting a fundamental text of governance. But the task which the framers assumed was infinitely more sensitive. They took upon themselves above all, the task to transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised. They sought to provide them a voice by creating a culture of rights and a political environment to assert freedom. Above all, placing those who were denuded of their human rights before the advent of the Constitution - whether in the veneer of caste, patriarchy or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie the vision of the Constitution. It is by being rooted in the Constitution's quest for transforming Indian society that we can search for answers to the binaries which have polarised our society. The conflict in this case between religious practices and the claim of dignity for women in matters of faith and worship, is essentially about resolving those polarities. 5 Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. Does the Constitution, in the protection which it grants to religious faith, allow the exclusion of women of a particular age group from a temple dedicated to the public? Will the quest for human dignity be incomplete or remain but a writ in sand if the Constitution accepts the exclusion of women from worship in a public temple? Will the quest for equality and fraternity be denuded of its content where women continue to be treated as children of a lesser god in exercising their liberties in matters of belief, faith and worship? Will the pursuit of individual dignity be capable of being achieved if we deny to women equal rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fess, practice and propagate religion. There are three defining features of clause (1) of Article 25: firstly, the entitlement of all persons without exception, secondly, the recognition of an equal entitlement; and thirdly, the recognition both of the freedom of conscience and the right freely to profess, practice and propagate religion. The right under Article 25(1) is evidently an individual right for, it is in the individual that a conscience inheres. Moreover, it is the individual who professes, practices and propagates religion. Freedom of religion in Article 25(1) is a right which the Constitution recognises as dwelling in each individual or natural person. 7 Yet, the right to the freedom of religion is not absolute. For the Constitution has expressly made it subject to public order, morality and health on one hand and to the other provisions of Part III, on the other. The subjection of the individual right to the freedom of religion to the other provisions of the Part is a nuanced departure from the position occupied by the other rights to freedom recognised in Articles 14, 15, 19 and 21. While guaranteeing equality and the equal protection of laws in Article 14 and its em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (2) of Article 25 is clarificatory of the regulatory power of the state over matters of public order, morality and health which already stand recognised in clause (1). Clause 1 makes the right conferred subject to public order, morality and health. Clause 2 does not circumscribe the ambit of the 'subject to public order, morality or health' stipulation in clause 1. What clause 2 indicates is that the authority of the state to enact laws on the categories is not trammelled by Article 25. 9 Article 26, as its marginal note indicates, deals with the "freedom to manage religious affairs": "26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law." Article 26 confers rights on religious denominations and their sections. The Article covers four distinct facets: (i) establishment and maintenance of institutions for purposes of a religious and charitable nature; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be inappropriate to give it a content which is momentary or impermanent. Then again, the expression 'morality' cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. The Constitution has been adopted for a society of plural cultures and if its provisions are any indication, it is evident that the text does not pursue either a religious theocracy or a dominant ideology. In adopting a democratic Constitution, the framers would have been conscious of the fact that governance by a majority is all about the accumulation of political power. Constitutional democracies do not necessarily result in constitutional liberalism. While our Constitution has adopted a democratic form of governance it has at the same time adopted values based on constitutional liberalism. Central to those values is the position of the individual. The fundamental freedoms which Part III confers are central to the constitutional purpose of overseeing a transformation of a society based on dignity, liberty and equality. Hence, morality for the purposes of Articles 25 and 26 must mean that which is governed by fundamental constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g sense of constitutional morality which has to prevail. While the Constitution recognises religious beliefs and faiths, its purpose is to ensure a wider acceptance of human dignity and liberty as the ultimate founding faith of the fundamental text of our governance. Where a conflict arises, the quest for human dignity, liberty and equality must prevail. These, above everything else, are matters on which the Constitution has willed that its values must reign supreme. 13 The expression "subject to" is in the nature of a condition or proviso. Making a provision subject to another may indicate that the former is controlled by or is subordinate to the other. In making clause 1 of Article 25 subject to the other provisions of Part III without introducing a similar limitation in Article 26, the Constitution should not readily be assumed to have intended the same result. Evidently the individual right under Article 25(1) is not only subject to public order, morality and health, but it is also subordinate to the other freedoms that are guaranteed by Part III. In omitting the additional stipulation in Article 26, the Constitution has consciously not used words that would indicate an intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society. The freedoms which find an elaboration in Part III are exercised within a society which is networked. The freedoms themselves have linkages which cannot be ignored. There is, therefore, a convincing reason not to allow the provisions of Article 26 to tread in isolation. Article 26 is one among a large cluster of freedoms which the Constitution has envisaged as intrinsic to human liberty and dignity. In locating the freedom under Article 26 within a group - the religious denomination - the text in fact allows us to regard the fundamental right recognised in it as one facet of the overall components of liberty in a free society. 14 This approach to constitutional interpretation which I propose and follow is acceptable for another reason, as a matter of constitutional doctrine. Since the decision of eleven judges in Rustom Cavasjee Cooper v Union of India(1970) 1 SCC 248), it is now settled doctrine that the fundamental rights contained in Part III are not, as it has been said, water-tight compartments. Evolving away from the earlier jurisprudence in A K Gopalan v State of Madras(1950 SCR 88) our interpretation of the freedoms is now governed by a sense of realism which noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sure foundation. The freedoms which we possess and those which we exercise are not disjunctive parts, separate from each other. Individuals in society exercise not one but many of the freedoms. An individual exercises a multitude of freedoms as a composite part of the human personality. A single act embodies within it the exercise of many choices reflecting the assertion of manifold freedoms. From this perspective, it is but a short step to hold that all freedoms exist in harmony. Our freedoms are enveloped in the womb created by the Constitution for the survival of liberty. Hence, the absence of a clause of subjection in Article 26 does not lead to the conclusion that the freedom of a religious denomination exists as a discrete element, divorced from the others. This approach is quite independent of the consideration that even Article 26 like Article 25(1) is subject to public order, morality and health. Once we hold, following the line which is now part of conventional doctrine, that all freedoms have linkages and exist in a state of mutual co-existence, the freedom of religious denominations under Article 26 must be read in a manner which preserves equally, other individual fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion then cannot become a cover to exclude and to deny the basic right to find fulfilment in worship to women. Nor can a physiological feature associated with a woman provide a constitutional rationale to deny to her the right to worship which is available to others. Birth marks and physiology are irrelevant to constitutional entitlements which are provided to every individual. To exclude from worship, is to deny one of the most basic postulates of human dignity to women. Neither can the Constitution countenance such an exclusion nor can a free society accept it under the veneer of religious beliefs. 16 Much of our jurisprudence on religion has evolved, as we shall see, around what constitutes an essential religious practice. At a certain level an adjudication of what is a religious practice seems to have emerged from the distinction made in clause 2(a) of Article 25 between a religious practice and economic, financial, political or other secular activities which are associated with religious practices. Where the state has enacted a law by which it claims to have regulated a secular activity associated with a religious practice, but not the religious practice, it becomes necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctices derogatory to the dignity of a woman in matters of faith and worship would permit a conscious breach of the fundamental duties of every citizen. We cannot adopt an interpretation of the Constitution which has such an effect. Our inability to state this as a matter of constitutional doctrine is liable to lead us to positions of pretence or, worse still, hypocrisy. Both are willing allies to push critical issues under the carpet. If we are truly to emerge out of the grim shadows of a society which has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future. 18 Now it is in this background that it would be necessary to explore the principles which emerge from the precedents of this Court which explain the content of Article 25(1) and Article 26. B History: Lord Ayyappa and the Sabarimala Temple Origins 19 The Sabarimala Temple, devoted to Lord Ayyappa is a temple of great antiquity. The temple is situated over one of the eighteen mountains spread over the Western Ghats known as Sannidhanam. Situated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the forest after promising the King that he would return with the milk of a tigress. Manikanta set out on his journey after having refused an escort of men that the King had desired to accompanying him. The King had sent with Manikanta food and coconuts with three eyes, in the remembrance of Lord Shiva. In the forest, Lord Shiva appeared before Manikanta and told him that though he had done his duty towards the devas, he was left with the task to ensure the King's comfort. Lord Shiva told Manikanta that he could go back to the Palace with Lord Indra in the form of a tiger. When Manikanta was seated on the tiger, and all the female devatas in the disguise of tigresses started their journey to the palace, the schemers were frightened into confessing their plot. They were convinced of his divine origins and prayed for their own salvation and for the safety of the Kingdom. Manikanta disappeared. The King refused to eat anything till his return. Manikanta appeared in the form of a vision before the King. Filled with emotions of happiness, grief, fear, wonder and 'Bhakti, the King stood praying for mercy and the blessings of Manikanta. He repented in front of Manikanta for not having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he task less arduous. In 1960, an access road was constructed for vehicles, so that a pilgrim can drive right up to the foot of Sabarimala. From here, the holy summit is just 8 kms away. The Kerala State Transport Corporation runs special buses during the season of pilgrimage. The buses connect Pampa directly with almost all the main cities in Kerala, Tamil Nadu and Karnataka. 24 The pilgrimage has three distinctive features: (i) It is almost exclusively a male-centric pilgrimage that bars women between the ages of ten and fifty from participating in the rituals; (ii) Though the worshippers of Lord Ayyappa fall broadly within the Hindu tradition, yet males of all ages may participate on an equal footing, regardless of caste, creed or religion. Muslims and Christians are also known to undertake this pilgrimage, enjoying the same equality; and (iii) The actual journey to the pilgrimage site is preceded by a preparatory period of forty-one days. During this period, pilgrims are obliged to wear black clothes and the 'mala' with which they are initiated, and they must observe celibacy, abstinence from meat and intoxicants. 25 Traditionally though the Vratham period extended over forty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple." In 1965, the Kerala Hindu Places of Public Worship (Authorization of Entry) Act 1965 (The "1965 Act") was enacted. The preamble to the Act lays down that the Act has been enacted to make better provisions for entry of all classes and sections of Hindu into places of public worship. Section 2 contains definitions: "Section 2. Definitions:- In this Act, unless the context otherwise requires, - (a) "Hindu" includes a person professing the Buddhist, Sikh or Jaina religion; (b) "place of public worship" means a place, by whatever name kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orship and the due observance of the religious rites and ceremonies performed therein: Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. (2) The competent authority referred to in sub-section (1) shall be,- (i) in relation to a place of public worship situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of 1930), extends, the Travancore Devaswom Board; (ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government." The State of Kerala in exercise of the power under Section 4 framed the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965. The "1965 Rules" Rule 3 of the 1965 Rules is extracted below: "Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." D The reference 28 When the present case came up before a three judge Bench of this Court, by an order dated 13 October 2017, the following questions were referred to a larger bench: "1 Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to "discrimination" and thereby violates the very core of Articles 14, 15 and 17 and not protected by 'morality' as used in Articles 25 and 26 of the Constitution? 2. Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion? 3. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Article 17 of the Constitution; iii. The devotees of Lord Ayyappa do not constitute a religious denomination under Article 26 of the Constitution; iv. The practice of excluding women from the Sabarimala temple does not constitute an Essential Religious Practice; v. That the impugned custom of excluding women falls within the ambit of 'laws in force' in Article 13 and is constitutionally invalid; and vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. Mr Raju Ramachandran, learned Senior Counsel who has assisted the Court as Amicus Curiae made the following submissions: i. That the right of a woman to worship is an essential aspect of her right to worship under Article 25; ii. That the exclusion of women from Sabarimala temple amounts to discrimination prohibited under Article 15(1) of the Constitution; iii. That compulsory disclosure of menstrual status by women is a violation of their right to privacy under Article 21 of the Constitution; iv. The term 'morality' in Article 25 and 26 embodies constitutional morality; v. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act; vi. The devotees of Lord Ayyappa do not constitute a religious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject sought to be achieved; ii. That Article 17 is inapplicable to the case at hand as the Article is restricted to prohibiting caste and religion-based untouchability; iii. The Sabarimala temple is a denominational temple and the exclusion of women is in exercise of denomination rights under Article 26 of the Constitution; iv. Articles 25 and 26 of the Constitution protect religious matters including ceremonial issues and the exclusion of women is an exercise of this right; v. That Article 13 of the Constitution does not apply to the present case; and vi. That a separate trial would be required for the determination of facts. Shri K Parasaran, (Appearing on behalf of the Respondent - Nair Service Society) learned Senior Counsel submitted that the exclusion from the Sabarimala temple is constitutionally permissible: i. There exists an independent custom that permits the exclusion of women from the Sabarimala temple; ii. The right to exclude women of a particular age group from the temple flows from the religious rights of the devotees under Article 25 of the Constitution and the character of the deity as a Naishtika Brahmacharya; iii. The custom is protected under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii. The issue at hand cannot be decided without a determination of facts that would take place at trial. Mr Gopal Sankaranarayanan, (Appearing for Intervenor - Usha Nandini) learned Counsel made the following submissions: i. That Article 25 is not applicable to the present case; ii. That the devotees of Lord Ayyappa constitute a religious denomination under Article 26 of the Constitution; and iii. The 1965 Act does not apply to the Sabarimala temple; In any case, the proviso to Rule 3 of the 1965 Rules protects the rights of religious denominations. F Essential Religious Practices 29 The doctrine of essential religious practices was first articulated in 1954, in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt(1954 SCR 1005) ("Shirur Mutt"). A seven judge Bench of this Court considered a challenge to the Madras Hindu Religious and Charitable Endowments Act 1951, which empowered a statutory commissioner to frame and settle a scheme if they had reason to believe that the religious institution was mismanaging funds. The Petitioner, the mathadhipati (superior) of the Shirur Mutt monastery, claimed that the law interfered with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on within the meaning of Article 26(b)." (Emphasis supplied) The Court ruled that the freedom of religion guaranteed by the Constitution applied to freedom of both religious belief and practice. To distinguish between the religious and the secular, the Court looked to the religion itself, and noted that the views of adherents were crucial to the analysis of what constituted 'essential' aspects of religion. 30 This approach was followed in Ratilal Panachand Gandhi v State of Bombay(1954 SCR 1055) ("Ratilal"), where a Constitution Bench of this Court considered the constitutionality of the Bombay Public Trusts Act, 1950. The Act sought to regulate and make provisions for the administration of public and religious trusts in the State of Bombay. The Petitioners challenged the validity of the Act on the grounds that it interfered with their freedom of conscience, their right to freely profess, practise and propagate their religion, and their right to manage their religious affairs under Articles 25 and 26 of the Constitution. Justice B K Mukherjea, speaking for a Constitution Bench of this Court, expounded upon the meaning and scope of Article 25: "10...Subject to the restrictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine whether the exclusion of a person from entering into a temple for worship was a matter of religion under Hindu Ceremonial Law. Justice Venkatarama Aiyar reviewed ancient literature, the practice of Hindus, and the role of temples in that practice, and concluded on behalf of the Court that: "18...Thus, under the ceremonial law pertaining to temples, who are entitled to enter them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion." (Emphasis supplied) This firmly established the Court's role in determining what constituted 'essential' religious practices. However, the matter did not end here. The Gowda Saraswats claimed their right to manage their own religious affairs under Article 26(b), whereas the State claimed that it had a constitutional mandate to throw open Hindu temples 'to all classes and sections of Hindus' under Article 25(2)(b). Noting that the two are "apparently in conflict", the Court considered whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) was subject to, and could be controlled by, a law protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led with the definition of religion itself, which was to comprehend belief and practice. In Devaru, the Court laid down a crucial precedent in carving out its role in examining the essentiality of such practices. While the Court would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative. Prior to Devaru, this Court used the word 'essential' to distinguish between religious and secular practices in order to circumscribe the extent of state intervention in religious matters. The shift in judicial approach took place when 'essentially religious' (as distinct from the secular) became conflated with 'essential to religion.' The Court's enquiry into the essentiality of the practice in question represented a shift in the test, which now enjoined upon the Court the duty to decide which religious practices would be afforded constitutional protection, based on the determination of what constitutes an essential religious practice. 33 In Mohd. Hanif Quareshi v State of Bihar(1959) SCR 629) ("Qureshi"), a Constitution Bench of this Court considered whether laws prohibiting cattle slaughter infringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chishtia Order. Rather than making a reference to scriptures, Justice Gajendragadkar, writing for the Court, considered the history of the Ajmer shrine to determine that the right to administer the property never vested in the Respondents: "22. Thus it would be clear that from the middle of the 16th Century to the middle of the 20th Century the administration and management of the Durgah Endowment has been true to the same pattern. The said administration has been treated as a matter with which the State is concerned and it has been left in charge of the Mutawallis who were appointed from time to time by the State and even removed when they were found to be guilty of misconduct or when it was felt that their work was unsatisfactory." Before parting with the judgment, Justice Gajendragadkar issued an important "note of caution": "33...in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as relig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on religious grounds pure and simple, cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dai's power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform." (Emphasis supplied) The Court, therefore, enquired into the basis of excommunication: if its basis was strictly religious, the practice would warrant constitutional protection. If, however, the practice was based on any other ground, it would be open to the Legislature to prohibit such a practice. 37 In a strong dissent, Chief Justice Sinha concluded that the matter of excommunication was not purely of a religious nature. Clarifying that his analysis was confined to the civil rights of the members of the community, Justice Sinha opined: "11...The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one's way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from superstitious beliefs and are not essential to religion. Saifuddin laid down that a practice grounded on an obnoxious social rule or practice may be within the ambit of social reform that the State may carry out. This view infuses the doctrine with a safeguard against claims by religious denominations that any practice with a religious undertone would fall within the protection afforded by Article 26(b) to them to 'manage its own affairs in matters of religion.' 39 In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan ("Tilkayat") (1964) 1 SCR 561), a Constitution Bench of this Court dealt with a challenge to Nathdwara Temple Act 1959, which provides for the appointment of a board to manage the affairs of the temple and its property. The Petitioner, the spiritual head of the temple, claimed that the temple and its properties were private and that the State legislature was not competent to pass the law. He contended that even if the temple was held to be a public temple, the Act infringed Articles 25, 26(b) and 26(c) because the temple was managed by the Tilkayat as head of the Vallabh denomination. The Court relied on firmans (edicts or administrative orders) issued by em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided by the Court." In fact, the Court would determine whether a statute sought to regulate what is "essentially and absolutely secular." What is religious and what is secular and the boundaries of both were then to be adjudicated by the Court. 40 In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya(1966) 3 SCR 242) ("Sastri Yagnapurushadji"), a Constitution Bench of this Court was seized with the issue of whether the Swaminarayan sect could be exempted from the application of the Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, which allowed Dalits to worship in all temples to which the Act applied. The Petitioners, who were members of the Swaminarayan sect, contended that by virtue of being a non-Hindu creed, temples belonging to the sect did not fall within the ambit of the Act. Justice Gajendragadkar, writing for the Court, rejected this claim: "55.It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (priests). The priests contended that this violated their right under Article 25(1) and Article 26(b) and (d) of the Constitution. Rejecting that the claim and holding that the management of a temple is a secular activity, this Court held that the Sri Vishwanath Temple is not a denominational temple and that the Appellants are not denominational worshippers. In a view similar to that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned against extending constitutional protection to purely secular practices clothed with a religious form: "28...Sometimes, practices, religious or secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, human actions from birth to death and most of the individual actions from day-today are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model and another diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Anand Margis, the Carya-Carya, was revised to prescribe the Anand Tandava as an essential religious practice. Laying emphasis on the 'essential' nature of the practice claimed, the majority, in a 2-1 split verdict, held that the practice must be of such a nature that its absence would result in a fundamental change in the character of that religion: "9.Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 split, held that triple talaq was not an essential practice. Justice Nariman, speaking for himself and Justice Lalit, noted that "a practice does not acquire the sanction of religion simply because it is permitted" and applied the essential religious practices test set out in Javed v State of Haryana(2003) 8 SCC 369) and Avadhuta II to the practice of triple talaq: "54...It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim's eyes, will not change without this practice." Ibid, at page 69 Justice Kurian Joseph, concurring with Justices Nariman and Lalit, held that on an examination of the Quran and Islamic legal scholarship, the practice of triple talaq could not be considered an essential religious practice. He opined that "merely because a practice has continued for long, that by itself cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional values associated with the dignity of the individual. The ephemeral distinction between religion and superstition becomes more coherent in terms of the need to preserve fundamental constitutional values associated with human liberty. 48 In determining the essentiality of a practice, it is crucial to consider whether the practice is prescribed to be of an obligatory nature within that religion. If a practice is optional, it has been held that it cannot be said to be 'essential' to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an 'essential' part of that religion. In Tilkayat, this Court noted that 'whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up.' The process of disentangling them in order to adjudicate upon claims grounded in Article 25 and Article 26(b) becomes ultimately an exercise of judicial balancing. Durgah Committee establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides an "enabling framework that allows a society the possibilities of self-renewal". It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly." Our Constitution places the individual at the heart of the discourse on rights. In a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and the dignity of every individual enjoins upon the Court a duty to resolve the inherent tensions between the constitutional guarantee of religious freedom afforded to religious denominations and constitutional guarantees of dignity and equality afforded to individuals. There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices. In order to achieve a balance between competing rights and interests, the test of essentiality is infused with these necessary limitations. 50 Is the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple an essential part of religion? The texts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice-feeding ceremony of their children. (Ibid) The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years (Ibid, at para 32). A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala Temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas(Ibid, at paras 8, 10), but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons. (Ibid, at para 43) The High Court thus noted multiple instances wherein women were allowed to pray at the Sabarimala temple. These observations demonstrate that the practice of excluding women from the Sabarimala temple was not uniform. This militates against a claim that such a practice is of an obligatory nature. That such practice has not been followed on numerous occasions, also shows that the denial of constitutional protection to an exclusionary practice will not result in a fundamental change in the character of the religion as required by Avadhuta II. 52 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... founded in Article 21, cannot be disassociated from the exercise of religious freedom. Holding that stereotypical understandings of sex hold no legitimate claim under our Constitution, one of us (Chandrachud J) in Navtej Singh v Union of India, (Writ Petition (Criminal) No. 76 of 2016) held: "A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate." 54 The Court must lean against granting constitutional protection to a claim which derogates from the dignity of women as equal holders of rights and protections. In the eth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the protection of law. Our Constitution has willed that dignity, liberty and equality serve as a guiding light for individuals, the state and this Court. Though our Constitution protects religious freedom and consequent rights and practices essential to religion, this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality. In a constitutional order of priorities, these are values on which the edifice of the Constitution stands. They infuse our constitutional order with a vision for the future - of a just, equal and dignified society. Intrinsic to these values is the anti-exclusion principle. Exclusion is destructive of dignity. To exclude a woman from the might of worship is fundamentally at odds with constitutional values. 57 It was briefly argued that women between the ages of ten and fifty are not allowed to undertake the pilgrimage or enter Sabarimala on the ground of the 'impurity' associated with menstruation. The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose who belong to the religious sect and a common spiritual organisation; and (iii) the existence of a distinctive name. The Court held that the "spiritual fraternity" represented by followers of Shri Madhavacharya, constitute a religious denomination: "15.It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, - in many cases it is the name of the founder, - and has a common faith and common spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed, of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well....On the findings of the Court below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally. On a consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins..." The dedication of the temple was for the Gowda Saraswath Brahmins spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion." Ibid, at pages 98-99 The sect was based on a shared philosophy and not on a common set of religious beliefs or faith. Hence, the sect was held not to qualify to be a religious denomination. 63 The above tests have been followed in other decisions. In Avadhuta I, a three judge bench of this Court held that the Ananda Margis of West Bengal constitute a religious denomination under Article 26, as they satisfy all the three conditions: "11. Ananda Marga appears to satisfy all the three conditions viz. it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion..." Ibid, at page 530 In Bramchari Sidheswar Shai v State of West Bengal(1995) 4 SCC 646), a three judge Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree-pronged test, a fourth element emerges from the narrative. That is the position of a common set of religious tenets. Religion is what binds a religious denomination. Caste, community and social status do not bring into being a religious denomination. 64 These precedents indicate the ingredients which must be present for a set of individuals to be regarded as a religious denomination. These are a common faith, a common organisation and a distinctive name brought together under the rubric of religion. A common thread which runs through them is the requirement of a religious identity, which is fundamental to the character of a religious denomination. H. 1 Do the devotees of Lord Ayyappa constitute a religious denomination? 65 Dr Abhishek Manu Singhvi, learned Senior Counsel submitted that devotees who undertake a forty one day penance form a denomination or section called "Ayyappaswamis" and the common organisation is the organisation of 'Ayyappas'. He submits that the 'Ayyappas' believe in a common faith and hold the belief that if they undertake the penance of forty-one days in the manner prescribed, by maintaining themselves pure and unpolluted, they would be one with Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 precinct in all its gaiety and sanctity." Ibid, at page 45 (Emphasis supplied) According to the above extract, in the "olden days" there was no 'religious prohibition' on the entry of women in the Sabarimala temple. But women visited the temple in fewer numbers f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. As indicated earlier, the exclusion of women between the ages of ten and fifty has not been shown to be a uniform practice or tenet. The material before the Kerala High Court in Mahendran in fact indicates that there was no such uniform tenet, down the ages. Therefore, the claim that the exclusion of women is part of a common set of religious beliefs held by those who worship the deity is not established. Above all, what is crucial to a religious denomination is a religious sect or body. A common faith and spiritual organisation must be the chord which unites the adherents together. 68 Justice Rajagopala Ayyangar in his concurring judgement in Saifuddin, emphasised the necessity of an identity of doctrines, creeds and tenets in a 'religious denomination': "52...The identity of a religious denomination consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community." The judgement cited the ruling of Lord Halsbury in Free Church of Scotland v Overtoun (1904) AC 515, at page 616) : "In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to caste-based untouchability and cannot be expanded to include gender-based exclusion. Understanding these rival positions requires the Court to contemplate on the historical background behind the insertion of Article 17 into the Constitution and the intent of the framers. 71 Article 17 occupies a unique position in our constitutional scheme. The Article, which prohibits a social practice, is located in the chapter on fundamental rights. The framers introduced Article 17, which prohibits a discriminatory and inhuman social practice, in addition to Articles 14 and 15, which provide for equality and non-discrimination. While there has been little discussion about Article 17 in textbooks on constitutional law, it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and for the future. Article 17 provides: ""Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law." Article 17 abolished the age old practice of "untouchability", by forbiddi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided that: "any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished." While discussing the clause on "untouchability" on 29 March 1947, the Sub- Committee on Fundamental Rights accepted Munshi's draft with a verbal modification that the words "is punishable by the law of the Union" be substituted by the expression "shall be an offence".75 Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of "untouchability" would have to be defined in the law which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub- Committee when it met on 14 April 1947 to consider its draft report, decided to add the words "in any form" after the word "Untouchability". This was done specifically in order "to make the prohibition of practice [of "untouchability"] comprehensive" Ibid. Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. While noting that ordinarily, the term "untouchability" referred to a practice prevalent in Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sely within inverted commas in order to indicate that the Union legislature when it defines 'untouchability' will be able to deal with it in the sense in which it is normally understood" Constituent Assembly Debates (29 April 1947) . Subsequently, only three amendments were moved. H V Kamath sought to insert the word "unapproachability" after the term "untouchability" and the words "and every" after the word "any". S. Nagappa wanted to substitute the words "imposition of any disability" with the words "observance of any disability". P Kunhiraman wanted to add the words "punishable by law" after the word "offence". Vallabhbhai Patel, who had moved the clause, considered the amendments to be unnecessary and observed: "The first amendment is by Mr. Kamath. He wants the addition of the word 'unapproachability'. If untouchability is provided for in the fundamental rights as an offence, all necessary adjustments will be made in the law that may be passed by the Legislature. I do not think it is right or wise to provide for such necessary corollaries and, therefore, I do not accept this amendment. The other amendment is by Mr. Nagappa who has suggested that for the words "imposition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 205 The amendment proposed would obviously restrict untouchability to its religious and caste-based manifestations. Naziruddin Ahmad supported his contention by observing that draft Article 11 prepared by the Drafting Committee was vague, as it provides no legal meaning of the term "untouchability". Stressing that the term was "rather loose", Ahmad wanted the draft Article to be given "a better shape". Professor KT Shah had a similar concern. He observed: "... I would like to point out that the term 'untouchability' is nowhere defined. This Constitution lacks very much in a definition clause; and consequently we are at a great loss in understanding what is meant by a given clause and how it is going to be given effect to. You follow up the general proposition about abolishing untouchability, by saying that it will be in any form an offence and will be punished at law. Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability, which is actually untouchability. We all know that at certain periods women are regarded as untouchables. Is that supposed to be, will it be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f acts of "untouchability", including that of women being considered untouchables "in certain periods", and argued for a specific definition, Dr Ambedkar furnished no reply. This raises the question as to why Dr Ambedkar did not accept Naziruddin Ahmad's amendment and refused to reply to KT Shah's remarks. One member of the Constituent Assembly, Monomohan Das, remarked during the debate on the draft Article on "untouchability": "...It is an irony of fate that the man who was driven from one school to another, who was forced to take his lessons outside the class room, has been entrusted with this great job of framing the Constitution of free and independent India, and it is he who has finally dealt the death blow to this custom of untouchability, of which he was himself a victim in his younger days." Constituent Assembly Debates (29 November 1948) The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. To focus on the former without comprehending the latter would be to miss the inter-connected nature of the document a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destruction of the caste system, Dr Ambedkar recorded some of the "untouchability" practices by which the Untouchables were subjected to inhuman treatment: "Under the rule of the Peshwas in the Maratha country, the Untouchable was not allowed to use the public streets if a Hindu was coming along, lest he should pollute the Hindu by his shadow. The Untouchable was required to have a black thread either on his wrist or around his neck, as a sign or a mark to prevent the Hindus from getting themselves polluted by his touch by mistake. In Poona, the capital of the Peshwa, the Untouchable was required to carry, strung from his waist, a broom to sweep away from behind himself the dust he trod on, lest a Hindu walking on the same dust should be polluted. In Poona, the Untouchable was required to carry an earthen pot hung around his neck wherever he went-for holding his spit, lest his spit falling on the earth should pollute a Hindu who might unknowingly happen to tread on it."88 His autobiographical notes published after his death with the title "Waiting for a Visa"89, contain reminiscences drawn by Dr Ambedkar on his own experiences with "untouchability". Dr Ambedkar mentions several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sudras and Atisudras... For generations past [the Sudras and Atisudras] have borne these chains of slavery and bondage... This system of slavery, to which the Brahmins reduced the lower classes is in no respect inferior to that which obtained a few years ago in America. In the days of rigid Brahmin dominancy, so lately as that of the time of the Peshwa, my Sudra brethren had even greater hardships and oppression practiced upon them than what even the slaves in America had to suffer. To this system of selfish superstition and bigotry, we are to attribute the stagnation and all the evils under which India has been groaning for many centuries past."93 Savitribai Phule expresses the feeling of resentment among the marginalized in form of a poem: "Arise brothers, lowest of low shudras wake up, arise. Rise and throw off the shackles put by custom upon us. Brothers, arise and learn... We will educate our children and teach ourselves as well. We will acquire knowledge of religion and righteousness. Let the thirst for books and learning dance in our every vein. Let each one struggle and forever erase our low-caste stain." Ibid, at page 88 75 The consistent discourse flowing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pollution" are used to justify this distinction which is self-perpetuality. The upper castes perform rituals that, they believe, assert and maintain their purity over lower castes. Rules of purity and pollution are used to reinforce caste hierarchies.96 The notion of "purity and pollution" influences who people associate with, and how they treat and are treated by other people. Dr Ambedkar's rejection of privileges associated with caste, in "Annihilation of Caste"97, is hence a battle for human dignity. Dr Ambedkar perceived the caste system to be violative of individual dignity.98 In his last address to the Constituent Assembly, he stated that the caste system is contrary to the country's unity and integrity, and described it as bringing "separation in social life".99 Individual dignity cannot be based on the notions of purity and pollution. "Untouchability" against lower castes was based on these notions, and violated their dignity. It is for this reason that Article 17 abolishes "untouchability", which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about "purity and pollution". 77 Notions of "purity and pollution", entrenched in the caste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence, Parliament enacted legislations104 to undo the injustice done to oppressed social groups. Yet the poor implementation105 of law results in a continued denial which the law attempted to remedy. 78 Article 17 is a social revolutionary provision. It has certain features. The first is that the Article abolishes "untouchability". In abolishing it, the Constitution strikes at the root of the institution of untouchability. The abolition of untouchability can only be fulfilled by dealing with notions which it encompasses. Notions of "purity and pollution" have been its sustaining force. In abolishing "untouchability", the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized. The first feature is a moral re-affirmation of human dignity and of a society governed by equal entitlements. The second important feature of Article 17 is that the practice of "untouchability" is forbidden. The practice is an emanation of the institution which sustains it. The abolition of the practice as a manifestation is a consequence of the abolition of the institution of "untouchability". The third significant feature is that the prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 17 have been adverted to in judicial decisions. In Devarajiah v B Padmanna (AIR 1958 Mys 84), a learned single judge of the Mysore High Court observed that the absence of a definition of the expression "untouchability in the Constitution and the use of inverted commas indicated that "the subjectmatter of that Article is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country". The learned single judge held : "18.Comprehensive as the word 'untouchables' in the Act is intended to be, it can only refer to those regarded as untouchables in the course of historical development. A literal construction of the term would include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as their suffering from an epidemic or contagious disease or on account of social observances such as are associated with birth or death or on account of social boycott resulting from caste or other disputes." Ibid, at page 85 In Jai Singh v Union of India (AIR 1993 Raj 177), a Full Bench of the Rajasthan High Court followed the decision of the Mysore High Court in Devarajiah while upholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the other persons professing the same religion or any section thereof, as such person, [shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees]. Explanation: For the purposes of this section and section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus." (Emphasis supplied) Section 4 contains a punishment for enforcing social disability: "Section 4 - Punishment for enforcing social disabilities: Whoever on the ground of "untouchability" enforces against any person any disability with regard to- (v) the use of, or access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public or [any section thereof]; or (x) the observance of any social or religious custom, usage or ceremony or [taking part in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of "purity and pollution", limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of "untouchability", which is based on notions of purity and impurity, "in any form". Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include a "sreekoil"; (c) "section or class" includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever." Section 2(c) provides an inclusive definition of the expression "section or class". As a principle of statutory interpretation, the term "includes" is used to expand the scope of the words or phrases which accompany. When "includes" is employed in a definition clause, the expression must be given a broad interpretation to give effect to the legislative intent. "Includes" indicates that the definition must not be restricted. 84 In Ardeshir H Bhiwandiwala v State of Bombay(1961) 3 SCR 592), a Constitution Bench of this Court considered whether the Petitioner's salt works could be included within the definition of 'factory' in Section 2(m) of the Factories Act, 1948. Section 2(m) defines 'factory' as "any premises including the precincts thereof". This Court rejected the appellant's claim that the salt works could not have precincts, being open lands and not premises: "6.The expression "premises including precincts" does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word "includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 85 The use of the term 'includes' in Section 2(c) indicates that the scope of the words 'section or class' cannot be confined only to 'division', 'sub-division', 'caste', 'sub-caste', 'sect' or 'denomination'. 'Section or class', would be susceptible to a broad interpretation that includes 'women' within its ambit. Section 2(b) uses the expression "Hindus or any section or class thereof". Plainly, individuals who profess and practise the faith are Hindus. Moreover, every section or class of Hindus is comprehended within the expression. That must necessarily include women who profess and practise the Hindu religion. The wide ambit of the expression "section or class" emerges from Section 2(c). Apart from the inclusive definition, the expression includes any division, subdivision, caste, sub-caste, sect or denomination whatsoever. Women constitute a section or class. The expression 'section or class' must receive the meaning which is ascribed to it in common parlance. Hence, looked at from any perspective, women would be comprehended within that expression. The long title of the Act indicates that its object is "to make better provisions for the entry of all classes and sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform: Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion." (Emphasis supplied) Section 3 begins with a non-obstante clause, which overrides any custom or usage or any instrument having effect by virtue of any such law. Every place of public worship, which is open to Hindus or to any section or class of Hindus generally, shall be open to all sections and classes of Hindus. No Hindu of any section o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot Hindus. (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. (c) Persons under pollution arising out of birth or death in their families. (d) Drunken or disorderly persons. (e) Persons suffering from any loathsome or contagious disease. (f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned. (g) Professional beggars when their entry is solely for the purpose of begging." (Emphasis supplied) By Rule 3(b), women are not allowed to offer worship in any place of public worship including a hill, hillock or a road leading to a place of public worship or entry into places of public worship at such time, if they are, by custom or usage not allowed to enter such place of public worship. Section 4 provides thus: "4. Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship - (1) The trustee or any other person in charge of any place of public worship shall have power, subject to the control of the competent autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is open to Hindus generally and in any case to a section or class of Hindus. Hence it has to be open to all sections or classes of Hindus, including Hindu women. Rule 3(b) gives precedence to customs and usages which allow the exclusion of women "at such time during which they are not... allowed to enter a place of public worship". In laying down such a prescription, Rule 3(b) directly offends the right of temple entry established by Section 3. Section 3 overrides any custom or usage to the contrary. But Rule 3 acknowledges, recognises and enforces a custom or usage to exclude women. This is plainly ultra vires. The object of the Act is to enable the entry of all sections and classes of Hindus into temples dedicated to, or for the benefit of or used by any section or class of Hindus. The Act recognizes the rights of all sections and classes of Hindus to enter places of public worship and their right to offer prayers. The law was enacted to remedy centuries of discrimination and is an emanation of Article 25(2)(b) of the Constitution. The broad and liberal object of the Act cannot be shackled by the exclusion of women. Rule 3(b) is ultra vires. K The ghost of Narasu (124 ) 91 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held: "15...The Solicitor General's contention is that this definition of "law" only applies to Article 13(2) and not to Article 13(1). According to him it is only the definition of "laws in force" that applies to Article 13(1). That contention is difficult to accept because custom or usage would have no meaning if it were applied to the expression "law" in Article 13(2). The State cannot make any custom or usage. Therefore, that part of the definition can only apply to the expression "laws" in Article 13(1). Therefore, it is clear that if there is any custom or usage which is in force in India, which is inconsistent with the fundamental rights, that custom or usage is void." Hence, the validity of a custom or usage could be tested for its conformity with Part III. However, the learned Chief Justice rejected the contention that personal law is 'custom or usage': "15...Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having the force of law." The learned Judge read in a statutory requirement for 'laws in force' under Article 13(1): "23...There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview. But the expression "laws in force" is, in my opinion, used in Article 13(1) not in that general sense. This expression refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India." The learned Judges differed on whether 'laws in force' in Article 13(1) read with Article 13(3)(b) includes 'custom or usages'. The reasoning of the High Court in recording this conclusion merits a closer look. 94 In A K Gopalan v State of Madras(1950 SCR 88), a seven judge Bench dealt with the constitutionality of the Preventive Detention Act 1950. The majority upheld the Act on a disjuncti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned." Ibid, at page 279 (Emphasis supplied) In the Special Courts Bill Reference, (1979) 1 SCC 380) a seven judge Bench of this Court, considered a reference under Article 143(1) on the question whether the Special Courts Bill, 1978 or any of its provisions, if enacted, would be constitutionally invalid. Justice Y V Chandrachud (writing for himself, Justice P N Bhagwati, Justice R S Sarkaria, and Justice Murtaza Fazl Ali) held that an attempt must be made to "to harmonize t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed basis for differentiation, it was not necessary to provide any express saving clause in Article 15(3) to the effect that "nothing in this Article shall prevent the State from making any special provisions for children," because nothing in Article 15(1) or Article 15(2) would forbid such special provision...There, the mere fact that some matter has been specifically dealt with by one or more Articles in Part III or anywhere else, would not, by itself, warrant the conclusion that the same has not been or cannot be covered by or included or dealt with again in any other Article or Articles in Part III or elsewhere." 95 The rights guaranteed under Part III of the Constitution have the common thread of individual dignity running through them. There is a degree of overlap in the Articles of the Constitution which recognize fundamental human freedoms and they must be construed in the widest sense possible. To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the framers to incorporate a specific provision in regard to untouchability. The introduction of Article 17 reflects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointer to the intention of the Constitution making body to exclude personal law from the purview of Article 13." The Constituent Assembly also had a legislative precedent of the Government of India Act 1935, from which several provisions of the Constitution are designed. Section 292 of that Act, which corresponds broadly to Article 372(1) of the Constitution reads thus: "292. Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority." (Emphasis supplied) Section 292 of the Act saved 'all the law in force' in British India immediately before the commencement of Part III of that Act. The expression "law in force" in that Section was interpreted by the Federal Court in The United Provinces v Mst. Atiqa Begum (AIR 1941 FC 16). The question before the Court was whether the legislature of the United Provinces was competent to enact the Regularization of Remissions Act 1938. While construing S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g something which, but for the second definition, would not be included by the first definition...Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force." The use of the term 'includes' in the definition of the expression 'law' and 'laws in force' thus imports a wide meaning to both. Practices having the force of law in the territory of India are comprehended within "laws in force." Prior to the adoption of Article 13 in the present form, draft Article 8 included only a definition of 'law'. 141 In October 1948, the Drafting Committee brought in the definition of 'laws in force'. The reason for proposing this amendment emerges from the note142 of the Drafting Committee: " The expression "laws in force" has been used in clause (1) of 8, but it is not clear if a law which has been passed by the Legislature but which is not in operation either at all or in particular areas would be treated as a law in force so as to attract the operation of clause (1) of this article. It is accordingly suggested that a definition of "law in force" on the lines of Explanation I to article 307 should be inserted in cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able case, it may be necessary to have a relook at this judgment in that the definition of "law and "laws in force" are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression "law" cannot be read into the expression "laws in force" in Article 13(3) is itself no longer good law." 99 Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. Our Constitution marks a vision of social transformation. It marks a break from the past - one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. In the context of the transformative vision of the South African Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional vision of ensuring the primacy of individual dignity. The decision in Narasu, is based on flawed premises. Custom or usage cannot be excluded from 'laws in force'. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term 'laws in force' having regard to its inclusive definition and constitutional history. As H M Seervai notes147: "there is no difference between the expression "existing law" and "law in force" and consequently, personal law would be "existing law" and "law in force ...custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them." The decision in Narasu, in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case in the future. 102 In the quest towards ensuring the rights guaranteed to every indivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idol. Speaking for the Court, Lord Shaw held thus: "A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a "juristic entity." It has a juridical status with the power of suing and being sued." Ibid, at page 250 In Yogendra Nath Naskar v Commissioner of the Income-Tax, Calcutta(1969) 1 SCC 555), this Court held thus: "6.But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realize rent and to defend such property...in the ideal sense." Ibid, at page 560 B K Mukherjea in his seminal work 'The Hindu Law of Religious and Charitable Trusts' writes thus: "An idol is certainly a juristic person and as the Judicial Committee observed in Promotha v Prayumna, "it has a juridical status with the power of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or or super force. It is difficult and rather impossible to define or delimit the expressions 'religion' or "matters of religion" used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe." Ibid, at pages 592-593 (Emphasis supplied) 106 A religious denomination or any section thereof has a right under Article 26 to manage religious affairs. This right vests in a collection of individuals which demonstrate (i) the existence of a religious sect or body; (ii) a common faith shared by those who belong to the religious sect and a common spiritual organisation; (iii) the existence of a distinctive name and (iv) a common thread of religion. Article 25 grants the right to the freedom of conscience and free profession, practice and propagation of religion. Conscience, as a cognitive process that elicits emotion and associations based on an individual's beliefs rests only in individuals. The Constitution postulates every individual as its basic unit. The rights gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re essential to religion. As the jurisprudence of this Court unfolded, the court assumed the function of determining whether or not a practice constitutes an essential and integral part of religion. This set the determination up at the threshold. Something which the court holds not to be essential to religion would not be protected by Article 25, or as the case may be, Article 26. Matters of religion under Article 26(b) came to be conflated with what is an essential part of religion. In Qureshi (1959), a Constitution Bench (of which Justice Gajendragadkar was a part) emphasised the non-obligatory nature of the practice and held that the sacrificing of cows at Bakr-Id was not an essential practice for the Muslim community. Durgah Committee (1962), Tilkayat (1964) and Sastri Yagnapurushadji (1966), Justice Gajendragadkar reserved to the court the authority to determine whether a practice was religious and, if it is, whether the practice can be regarded as essential or integral to religion. In Durgah Committee, Justice Gajendragadkar sought to justify the exercise of that adjudicatory function by stating that otherwise, practices which may have originated in "merely superstitious beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the essential/inessential approach. The former has a textual origin in Article 25(2)(a). The latter is a judicial creation. 109 The assumption by the court of the authority to determine whether a practice is or is not essential to religion has led to our jurisprudence bypassing what should in fact be the central issue for debate. That issue is whether the Constitution ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens. The exclusion may relate to prayer and worship, but may extend to matters which bear upon the liberty and dignity of the individual. The Constitution does recognise group rights when it confers rights on religious denominations in Article 26. Yet the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty and equality which animate the soul of the Constitution. In analysing this issue, it is well to remind ourselves that the right to freedom of religion which is comprehended in Articles 25, 26, 27 and 28 is not a stand alone right. These Articles of the Constitution are an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p rights to defy those values by practicing exclusion and through customs which are derogatory to dignity. This apparent contradiction can be resolved by postulating that notwithstanding the recognition of group rights in Article 26, the Constitution has never intended that the assertion of these rights destroy individual dignity and liberty. Group rights have been recognized by the Constitution in order to provide a platform to individuals within those denominations to realize fulfilment and self-determination. Gautam Bhatia156 in a seminal article on the subject succinctly observes: "While it is true that Article 26(b) makes groups the bearers of rights, as pointed out above, the Constitution does not state the basis of doing so. It does not clarify whether groups are granted rights for the instrumental reason that individuals can only achieve self-determination and fulfilment within the 'context of choice'157 provided by communities, or whether the Constitution treats groups, along with individuals, as constitutive units worthy of equal concern and respect.158 The distinction is crucial, because the weight that must be accorded to group integrity, even at the cost of blocking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be said to risk drawing an arbitrary line between protected and nonprotected religions, beliefs or practices." Ibid, at pages 575, 576 Associated with this conceptual difficulty in applying the essential religious practices test is the issue of competence and legitimacy for the court to rule on religious tenets: "While it may be legitimate for religious courts to apply internal religious doctrines, civil courts are constitutionally established to adjudicate upon secular constitutional statutory and common law issues. In a religiously pluralistic society, judges cannot presume to have judicial competence to have theological expertise over all religions." Ibid, at page 589 She suggests a two stage determination which is explained thus: "Accordingly, there would be a two-stage test in adjudicating religious freedom claims that adopts a more deferential approach to definition, bearing in mind...a workable approach to religious freedom protection in plural societies. In the first stage, as mentioned, the courts should accept a group's selfdefinition except in extreme cases where there is clearly a lack of sincerity, fraud or ulterior motive. At the second stage, the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed society marked by intermixing identities such as religion, race, caste, sex and personal characteristics as the sites of discrimination and oppression, the Constitution marks a perception of a new social order. This social order places the dignity of every individual at the heart of its endeavours. As the basic unit of the Constitution, the individual is the focal point through which the ideals of the Constitution are realized. The framers had before them the task of ensuring a balance between individual rights and claims of a communitarian nature. The Constituent Assembly recognised that the recognition of a truly just social order situated the individual as the 'backbone of the state, the pivot, the cardinal center of all social activity, whose happiness and satisfaction should be the goal of every social mechanism.'166 In forming the base and the summit of the social pyramid, the dignity of every individual illuminates the constitutional order and its aspirations for a just social order. Existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour is to produce a society marked by compassion for every i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibited by the guarantee against untouchability and by the freedoms that underlie the Constitution. In civic as in social life, women have been subjected to prejudice, stereotypes and social exclusion. In religious life, exclusionary traditional customs assert a claim to legitimacy which owes its origin to patriarchal structures. These forms of discrimination are not mutually exclusive. The intersection of identities in social and religious life produces a unique form of discrimination that denies women an equal citizenship under the Constitution. Recognizing these forms of intersectional discrimination is the first step towards extending constitutional protection against discrimination attached to intersecting identities. 117 In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution - justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal morality; 3) In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship; 4) The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of "purity and pollution", which stigmatize individuals, have no place in a constitutional order; 5) The notifications dated 21 October 1955 and 27 November 1956 issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and are even otherwise unconstitutional; and 6) Hindu women constitute a 'section or class' of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3 of the 1965 Act. This directly offends the right of temple entry established by Section 3. Rule 3(b) is ultra vires the 1965 Act. Acknowledgment Before concludin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the Petitioners. (i) In the Writ Petition, the Petitioners state that the present case pertains to a centuries old custom of prohibiting entry of women between the ages of 10 years to 50 years into the Sabarimala Temple of Lord Ayyappa. The customary practise, as codified in Rule 3(b) of the 1965 Rules read with the Notifications issued by the Travancore Devaswom Board dated October 21, 1955 and November 27, 1956, does not meet the tests of Articles 14, 15 and 21 of the Constitution. This exclusionary practise violates Article 14 as the classification lacks a Constitutional object. It is manifestly arbitrary as it is based on physiological factors alone, and does not serve any valid object. (ii) The customary practise violates Article 15(1) of the Constitution as it is based on 'sex' alone. The practise also violates Article 15(2)(b) since the Sabarimala Temple is a public place of worship being open and dedicated to the public and is partly funded by the State under Article 290A. (iii) Article 25 guarantees the Fundamental Right to an individual to worship or follow any religion. The 1965 Act has been passed in furtherance of the goals enshrined in Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation. Any law or custom to be protected under Article 26 must have Constitutional legitimacy. (vii) The exclusionary practise is violative of Article 21, as it has the impact of casting a stigma on women as they are considered to be polluted, which has a huge psychological impact on them, and undermines their dignity under Article 21. The exclusionary practise is violative of Article 17 as it is a direct form of "Untouchability". Excluding women from public places such as temples, based on menstruation, is a form of 'untouchability'. This Article is enforceable both against non-State as well as State actors. (viii) Mr. Raju Ramachandran, learned Amicus Curiae, submitted that the Sabarimala Temple is a place of public worship. It is managed and administered by a statutory body i.e. the Travancore Devaswom Board. According to him, a public temple by its very character is established, and maintained for the benefit of its devotees. The right of entry emanates from this public character, and is a legal right which is not dependent upon the temple authorities. The Travancore Devaswom Board is a statutorily created authority under the Travancore - Cochin Hindu Religious Insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amed thereunder cannot be discriminatory against any section or class. 3. SUBMISSIONS OF THE RESPONDENTS The State of Kerala was represented by Mr. Jaideep Gupta, Senior Advocate. The Travancore Dewaswom Board was represented by Dr. A.M. Singhvi, Senior Advocate. The Chief Thanthri was represented by Mr. V. Giri, Senior Advocate. The Nair Service Society was represented by Mr. K. Parasaran, Senior Advocate. The Raja of Pandalam was represented by Mr. K. Radhakrishnan. Mr. J. Sai Deepak appeared on behalf of Respondent No. 18 and Intervenor by the name of People for Dharma. Mr. Ramamurthy, Senior Advocate appeared as Amicus Curiae who supported the case of the Respondents. 4. The State of Kerala filed two Affidavits in the present Writ Petition. The State of Kerala filed an Affidavit dated November 13, 2007 supporting the cause of the Petitioners. The State however prayed for the appointment of an "appropriate commission" to submit suggestions/views on whether entry of women between the ages of 10 to 50 years should be permitted. Some of the averments made in the said Affidavit are pertinent to note, and are being reproduced herein below for reference: "...As such, Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (i) The Sabarimala Temple, dedicated to Lord Ayyappa, is a prominent temple in Kerala which is visited by over twenty million pilgrims and devotees every year. As per a centuries old tradition of this temple, and the 'acharas', beliefs and customs followed by this Temple, women in the age group of 10 to 50 years are not permitted to enter this Temple. This is attributable to the manifestation of the deity at the Sabarimala Temple which is in the form of a 'Naishtik Bramhachari', who practises strict penance, and the severest form of celibacy. According to legend, it is believed that Lord Ayyappa, the presiding deity of Sabarimala had his human sojourn at Pandalam as the son of the King of Pandalam, known by the name of Manikandan, who found him as a radiant faced infant on the banks of the river Pampa, wearing a bead ('mani') around his neck. Manikandan's feats and achievements convinced the King and others of his divine origin. The Lord told the King that he could construct a temple at Sabarimala, north of the holy river Pampa, and install the deity there. The King duly constructed the temple at Sabarimala and dedicated it to Lord Ayyappa. The deity of Lord Ayyappa in Saba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse forests. As a part of this system of spiritual discipline, it is expressly stipulated that women between the ages of 10 to 50 years should not undertake this pilgrimage. (ii) This custom or usage is understood to have been prevalent since the inception of this Temple, which is since the past several centuries. Reliance was placed on a comprehensive thesis by Radhika Sekar on this Temple.8 Relevant extracts from the thesis are reproduced hereinbelow: "The cultus members maintain the strictest celibacy before they undertake their journey through the forests to the Sabarimala shrine. This emphasis on celibacy could be in order to gain protection from other forest spirits, for as mentioned earlier, Yaksas are said to protect "sages and celibates... ...Though there is no formal declaration, it is understood that the Ayyappa (as he is now called) will follow the strictest celibacy, abstain from intoxicants and meat, and participate only in religious activities. He may continue to work at his profession, but he may not indulge in social enterprises. Ayyappas are also required to eat only once a day (at noon) and to avoid garlic, onion and stale food. In the evening, they may e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The characteristics and elements of a valid custom are that it must be of immemorial existence, it must be reasonable, certain and continuous. The customs and usages, religious beliefs and practises as mentioned above are peculiar to the Sabarimala Temple, and have admittedly been followed since centuries. (iv) The exclusion of women in this Temple is not absolute or universal. It is limited to a particular age group in one particular temple, with the view to preserve the character of the deity. Women outside the age group of 10 to 50 years are entitled to worship at the Sabarimala Temple. The usage and practise is primary to preserve the sacred form and character of the deity. It was further submitted that the objection to this custom is not being raised by the worshippers of Lord Ayyappa, but by social activists. (v) It was further submitted that there are about 1000 temples dedicated to the worship of Lord Ayyappa, where the deity is not in the form of a 'Naishtik Brahmachari'. In those temples, the mode and manner of worship differs from Sabarimala Temple, since the deity has manifested himself in a different form. There is no similar restriction on the entry of wom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o administer the temple in accordance with the custom and usage of the Temple. (x) It was submitted that issues of law and fact should be decided by a competent civil court, after examination of documentary and other evidence. (xi) Mr. Parasaran, Senior Advocate further submitted that religion is a matter of faith. Religious beliefs are held to be sacred by those who have faith. Reliance was placed on the judgment of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt (supra) wherein the definition of religion from an American case was extracted i.e. "the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His Will". Learned Senior Counsel also relied upon the case of Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra) wherein it was observed as follows: "The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation." In Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount the 'pathinettu padikal' and enter the Sabarimala Temple. This set of beliefs and faiths of the 'Ayyappaswamis', and the organization of the worshippers of Lord Ayyappa constitute a distinct religious denomination, having distinct practises. (xiv) It was further submitted that the status of this temple as a religious denomination, was settled by the judgment of the Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors. (supra). The High Court decided the case after recording both documentary and oral evidence. The then Thanthri - Sri Neelakandaru, who had installed the deity was examined by the High Court as C.W.6, who stated that women during the age group of 10 to 50 years were prohibited from entering the temple much before the 1950s. This judgment being a declaration of the status of this temple as a religious denomination, is a judgment in rem. The said judgment has not been challenged by any party. Hence, it would be binding on all parties, including the Petitioners herein. The following observation from the judgment of this Court in Dr. Subramanian Swamy v. State of Tamil Nadu & Ors. (supra) was relied upon: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religion. No such caste-based or religion-based untouchability is practised at the Sabarimala Temple. The customs practised by the devotees at the Sabarimala Temple do not flow from any practise associated with untouchability under Article 17. The custom is not based on any alleged impurity or disability. Hence, the contention was liable to be rejected. 6. DISCUSSION AND ANALYSIS We have heard the arguments of the Counsel representing various parties, and perused the pleadings and written submissions filed by them. 6.1. The issues raised in the present Writ Petition have far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practises, customs and usages, which may be considered to be exclusionary in nature. In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily be interfered with by Courts. 6.2. In the past, the Courts, in the context of Hindu temples, have been asked to identify the limits of State action under Articles 25 and 26 on the administration, control and management of the affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raver for religious minorities if such petitions are entertained. Dr. A.M. Singhvi, Senior Advocate appeared on behalf of the Travancore Devaswom Board, and submitted an illustrative list of various religious institutions where restrictions on the entry of both men and women exist on the basis of religious beliefs and practises being followed since time immemorial.18 7.4. In matters of religion and religious practises, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. 7.5. Article 25(1) confers on every individual the right to freely profess, practise and propagate his or her religion.19 The right of an individual to worship a specific manifestation of the deity, in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahants of certain Maths or Asthals guaranteed, inter alia, under Articles 25 and 26. (iv) In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), this Court was called upon to decide the Constitutionality of the Durgah Khwaja Saheb Act, 1955 in view of Articles 25 and 26, inter alia, at the instance of Khadims of the Tomb of Khwaja Moin-ud-din Chisti of Ajmer. The Khadims claimed to be a part of a religious denomination by the name of Chishtia Soofies. (v) In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (supra), this Court was called upon to test the Constitutionality of the Bombay Prevention of Excommunication Act, 1949 on the ground that it violated Fundamental Rights guaranteed under Articles 25 and 26 to the petitioner who was the Dai-ul-Mutlaq or Head Priest of the Dawoodi Bohra Community. (vi) In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3 SCC 615), three children belonging to a sect of Christianity called Jehovah's Witnesses had approached the Kerala High Court by way of Writ Petitions to challenge the action of the Headmistress of their school, who had expelled them for not singing the National Anthem during the morning assembly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, to practise their religion in accordance with the tenets and beliefs, which are considered to be "essential" religious practises of this shrine. 8.4. The Petitioners and Intervenors have contended that the age group of 10 to 50 years is arbitrary, and cannot stand the rigours of Article 14. This submission cannot be accepted, since the prescription of this age-band is the only practical way of ensuring that the limited restriction on the entry of women is adhered to. 8.5. The right to gender equality to offer worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples where he has not manifested himself in the form of a 'Naishtik Brahamachari', and there is no similar restriction in those temples. It is pertinent to mention that the Respondents, in this context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply. 8.6. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. The issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to sub-clause (a). The Amendment was proposed as under: "After the words of Public entertainment the words or places of worship be inserted."25 (Emphasis supplied and internal quotations omitted) Amendment No. 301 was also proposed by Mr. Tajamul Hussain for inclusion of: "places of worship", "Dharamshalas, and Musafirkhanas" at the end of sub-clause (a).26 All these proposals were voted upon, and rejected by the Constituent Assembly. (Constituent Assembly Debates (November 29, 1948) The Assembly considered it fit not to include 'places of worship' or 'temples' within the ambit of Draft Article 9 of the Constitution. The conscious deletion of "temples" and "places of worship" from the Draft Article 9(1) has to be given due consideration. The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of 'places of public resort' under Article 15(2) cannot be accepted. 10. ROLE OF COURTS IN MATTERS CONCERNING RELIGION 10.1. The role of Courts in matters concerning religion and religious practises under our secular Constitutional set up is to afford protection under Article 25(1) to those practises which are regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular Judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind. We do endorse the view suggested by Davar, J.'s observation that the question is not whether a particular religious belief is genuinely and conscientiously held as a part of the profession or practise of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein." (Emphasis supplied; internal quotations and footnotes omitted) 10.2. At this juncture, it would be apposite to deal with certain observations made by Gajendragadkar, J. in Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), and Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra). In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), a reference was made as to how practises emanating from superstition "...may in that sense be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the above obiter runs directly counter to the judgment of Mukherjea, J. in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion. The reference to superstitious practises is singularly unfortunate, for what is 'superstition' to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of any particular religious observance. The obi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the individual has no freedom to determine what is essential to his religion, for if it were otherwise and if the law gave any protection to religion as determined on this basis the State's power to protect and direct would be at an end. Therefore, the courts can discard as non-essentials anything which is not proved to their satisfaction - and they are not religious leaders or in any relevant fashion qualified in such matters-to be essential, with the result that it would have no Constitutional protection. The Constitution does not say freely to profess, practise and propagate the essentials of religion, but this is how it is construed."34 (Emphasis supplied and internal quotations omitted) 10.3. The House of Lords in Regina v. Secretary of State for Education and Employment & Ors. [2005] UKHL 15], held that the court ought not to embark upon an enquiry into the validity or legitimacy of asserted beliefs on the basis of objective standards or rationality. The relevant extract from the decision of the House of Lords is reproduced hereinbelow: "It is necessary first to clarify the court's role in identifying a religious belief calling for protection under article 9. When the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctise is more often than not a difficult and delicate task...However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practise in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection... ...The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was scripturally acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religious Clauses...Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation." (Emphasis supplied; internal quotations, and footnotes omitted) This view was re-iterated by the U.S. Supreme Court in the following decisions: * U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ability of even an insignificant minority to find its identity under the country's Constitution. This has to borne in mind in interpreting Article 25..." 10.6. A reference to the following extracts from the judgment of Khehar, C.J.I. in Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1) is also instructive with respect to the role of Courts in matters concerning religious faiths and beliefs: "389. It is not difficult to comprehend what kind of challenges would be raised by rationalist assailing practises of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded lest we find our conscience traversing into every nook and corner of religious practises, and Personal Law. Can a court, based on a righteous endeavour, declare that a matter of faith be replaced, or be completely done away with?...This wisdom emerging from judgments rendered by this Court is unambiguous namely, that while examining the issues falling in the realm of religious practises or Personal Law, it is not for a court to make a choice of something which it considers as forward-looking or non-fundamentalist. It is not for a court to determine whether religi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein, and not judicial intervention. 10.9. In the present case, the 1965 Act is a legislation framed in pursuance of Article 25(2)(b) which provides for the throwing open of Hindu places of public worship. The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of place of public worship. 10.10. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that Temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a 'Naishtik Brahmachari'. 10.11. In other jurisdictions also, where State made laws were challenged on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the right to freely profess, practise and propagate their respective religion. This freedom is subject to public order, morality and health, and to the other provisions of Part III of the Constitution. Article 26 guarantees the freedom to every religious denomination, or any sect thereof, the right to establish and maintain institutions for religious purposes, manage its own affairs in matters of religion, own and acquire movable and immovable property, and to administer such property in accordance with law. This right is subject to public order, morality and health. The right under Article 26 is not subject to Part III of the Constitution. 11.4. The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity, with diverse religions and faiths, which were protected within the fold of Articles 25 and 26. State interference was not permissible, except as provided by Article 25(2)(b) of the Constitution, where the State may make law providing for social welfare and reform. 11.5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values." The Constitutional necessity of balancing various Fundamental Rights has also been emphasised in the decision of this Court in Subramaniam Swamy v. Union of India, Ministry of Law & Ors. (2016) 7 SCC 221). In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors. (1975) 1 SCC 11), a Constitution Bench, in the context of Article 26, noted that it is a duty of this Court to strike a balance, and ensure that Fundamental Rights of one person co-exist in harmony with the exercise of Fundamental Rights of others. It is the Constitutional duty of the Court to harmonise the rights of all persons, religious denominations or sects thereof, to practise their religion according to their beliefs and practises. 12. RELIGIOUS DENOMINATION 12.1. Article 26 of the Constitution guarantees the freedom to every religious denomination, or sect thereof, the right to establish and maintain institutions for religious or charitable purposes, and to manage their own affairs in matters of religion. The right conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r." (Emphasis supplied) The worshippers of Lord Ayyappa at the Sabarimala Temple together constitute a religious denomination, or sect thereof, as the case maybe, follow a common faith, and have common beliefs and practises. These beliefs and practises are based on the belief that Lord Ayyappa has manifested himself in the form of a 'Naishtik Brahmachari'. The practises include the observance by the Ayyappans of the 41-day 'Vratham', which includes observing abstinence and seclusion from the women-folk, including one's spouse, daughter, or other relatives. This pilgrimage includes bathing in the holy River Pampa, and ascending the 18 sacred steps leading to the sanctum sanctorum. The restriction on women between the ages of 10 to 50 years from entering the Temple has to be understood in this context. 12.4. The expression "religious denomination" as interpreted in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), was "a collection of individuals classed together under the same name : a religious sect or body having a common faith and organisation and designated by a distinctive name". (1954 SCR 1005, at paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h less difficulty. As we mentioned earlier Mukherjea, J., borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as a collection of individuals classed together under the same name, a religious sect or body having a common faith and organisation and designated by a distinctive name. The followers of Ramanuja, the followers of Madhwacharya, the followers of Vallabha, the Chistia Soofies have been found or assumed by the Court to be religious denominations. It will be noticed that these sects possess no distinctive names except that of their founder-teacher and had no special organisation except a vague, loose - un-knit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features...Religious denomination has not to owe allegiance to any parent religion. The entire following of a religion may be no more than the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished in two parts in 1893 and 1901 written by Lieutenants Ward and Conner. iii. This Temple owned vast landed properties from which the Temple was being maintained. These were taken over by the State, subject to the obligation to pay annuities to the Temple from the coffers of the State, as is evident from the Devaswom Proclamation47 dated 12th April 1922 issued by the Maharaja of Travancore, on which reliance was placed by Mr. J. Sai Deepak, Advocate. When the erstwhile State of Travancore merged with the Union of India, the obligation of paying annuities for the landed properties, was transferred to the Government of India. iv. The Temple is managed by the Travancore Devaswom Board. It does not receive funds from the Consolidated Fund of India, which would give it the character of 'State' or 'other authorities' under Article 12 of the Constitution. In any event, Article 290A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26. 12.10. The issue whether the Sabarimala Temple constitutes a 'religious denomination', or a sect thereof, is a mixed question of fact and law. It is trite in law tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mindra Thirtha Swamiar of Sri Shirur Mutt (supra). Before articulating the test, this Court drew on the words "practise of religion" in Article 25(1) to hold that the Constitution protects not only the freedom of religious belief, but also acts done in pursuance of a religion. In doing so, it relied on an extract from the decision of Latham, C.J. of the High Court of Australia in Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth. (67 CLR 116) The original extract relied upon has been reproduced hereinbelow: "5. It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of s. 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . in the case of Jamshed ji v. Soonabai and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad bag, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid and charitable gifts, the observations, we think, are quite appropriate for our present purpose. If this is the belief of the community thus observed the learned judge, and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of the religion and the welfare of his community or mankind. These observations do in our opinion afford an indication of the measure of protection that is given by Article 26(b) of our Constitution." (Emphasis supplied and internal quotations omitted) 13.3. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), the 'essential practises test' was discussed by a Constitution Bench in the following w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icting evidence is produced in respect of rival contentions as to competing religious practises the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practise in [sic] an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practise in question is religious in character, and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion..." (Emphasis supplied) 13.5. In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra), this Court emphasised that for a religious practise to receive protection under Article 25(1) it must be "genuinely", and "conscientiously" held by persons claiming such rights. This Court had noted that such religious beliefs and practises must be consistently and not "idly" held, and should not emanate out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 years, was challenged as being violative of Articles 15, 25, and 26 of the Constitution before a Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors. (supra). The Court held that the issue whether the practises were an integral part of the religion or not had to be decided on the basis of evidence. The High Court relied on the decision of this Court in Tilkayat Shri Govindalji Maharaj v. State of Rajasthan (supra) wherein it was held that the question whether the practise is religious in character, and whether it can be regarded as an integral or essential part of the religion, will depend upon the evidence adduced before a court, with respect to the tenets of the religion. The High Court held that the restriction on the entry of women between the ages of 10 to 50 years was in accordance with the practise prevalent since time immemorial, and was not violative of Articles 15, 25, and 26 of the Constitution. A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals are also regarded as an integral part of religion. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular age group and not women as a class." In view of the conclusions summarised above, the High Court directed the Travancore Devaswom Board not to permit women belonging to the age-group of 10 to 50 years "... to trek the holy hills of Sabarimala in connection with the pilgrimage...". The Judgment of the Kerala High Court was not challenged any further, and has attained finality. The findings contained in the Judgment of the Kerala High Court deciding a Writ Petition under Article 226 were findings in rem, and the principle of res judicata would apply. Dr Subramaniam Swamy v. State of Tamil Nadu & Ors., (2014) 5 SCC 75. In this context, it is pertinent to note that this Court, in Daryao & Ors. v. State of U.P. & Ors. (1962) 1 SCR 574 : AIR 1961 SC 1457), had held as follows: "26. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religion. 13.12. In the present case, the celibate nature of the deity at the Sabarimala Temple has been traced by the Respondents to the Sthal Purana of this Temple chronicled in the 'Bhuthanatha Geetha'. Evidence of these practises are also documented in the Memoir of the Survey of the Travancore and Cochin States (Supra note 9) written by Lieutenants Ward and Conner published in two parts in 1893 and 1901. 13.13. The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an 'essential religious practise' followed by the Respondents. The said restriction has been consistently, followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. The Kerala High Court in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram & Ors. (supra) has recorded as follows: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entry of women during the notified age group in this Temple is based on the unique characteristic of the deity, and not founded on any social exclusion. The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable. The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place. 14.4. Article 11 of the Draft Constitution corresponds to Article 17 of our present Constitution.55 A perusal of the Constituent Assembly debates on Article 11 of the Draft Constitution would reflect that "untouchability" refers to caste-based discrimination faced by Harijans, and not women as contended by the Petitioners. During the debates, Mr. V.I. Muniswamy Pillai had stated: "...Sir, under the device of caste distinction, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners. 14.6. Explaining the background to Article 17, this Court in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra) observed: "23. .... one of the problems which had been exercising the minds of the Hindu social reformers during the period preceding the Constitution was the existence in their midst of communities which were classed as untouchables. A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth could not be considered reasonable and defended on any sound democratic principle, and efforts were being made to secure its abolition by legislation. This culminated in the enactment of Article 17, which is as follows: "Untouchability" is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of 'Untouchability' shall be an offence punishable in accordance with law." 14.7. Not a single precedent has been shown to interpret Article 17 in the manner contended by the Petitioners. It is also relevant to mention that the Counsel for the State of Kerala did not support this submission. 15. RUL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. The proviso to Section 3 of the 1965 Act carves out an exception in the case of public worship in a temple founded for the benefit of any religious denomination or section thereof. The provisions of the main section would be subject to the right of a religious denomination or section to manage its own affairs in the matters of religion. Section 2(c)60 of the 1965 Act, defines "section or class" to include any division, sub-division, caste, sub caste, sect, or denomination whatsoever. Section 4(1)61, empowers the making of regulations for the maintenance of orders and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. The proviso to Section 3 of the 1965 Act provides that no such regulation shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. 15.2. The proviso carves out an exception to the Section 3 itself. The declaration that places of public worship shall be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners and Intervenors involved herein. (ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. (iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. (iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. (v) The limited restriction on the entry of women during the notified agegroup does not fall within the purview of Article 17 of the Constitution. (vi) Rule 3(b) of the 1965 Rules is not ultra v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om doing so because, given our conclusion, based on Article 25(1), this would not directly arise for decision on the facts of this case. 5 DHARMASUTRAS - THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 264 (Translation by Patrick Olivelle, Oxford University Press, 1999). 6 SRIMAD BHAGAVATAM - SIXTH CANTO (Translation by A.C. Bhaktivedanta Swami Prabhupada, The Bhaktivedanta Book Trust, 1976). 8 THE QUR'AN - WITH ANNOTATED INTERPRETATION IN MODERN ENGLISH, 2:222 (Translation by Ali Ünal, Tughra Books USA, 2015). 10 THE BUNDAHISHN - "CREATION" OR KNOWLEDGE FROM THE ZAND (Translation by E. W. West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892, and 1897). 11 THE SELECTIONS OF ZADSPRAM (VIZIDAGIHA I ZADSPRAM) (Joseph H. Peterson Ed., 1995) (Translation by E. W. West, from Sacred Books of the East, vol. 5, 37, and 46, Oxford University Press, 1880, 1892, and 1897). 12 2 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 466-467 (Translation by Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Asa, Shaloka Mehla 1 at p. 472 of the original text of Sri Guru Granth Sahib]. 13 4 SRI G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1947) 82 B Shiva Rao, The Framing of India's Constitution: A Study, Indian Institution of Public Administration (1968), at page 204 83 B Shiva Rao, The Framing of India's Constitution: A Study, Indian Institution of Public Administration (1968), at page 205 84 B Shiva Rao, The Framing of India's Constitution: A Study, Indian Institution of Public Administration (1968), at page 204 88 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014), at pages 39 89 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 12 (2014), at pages 661-691 91 Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 5 (2014), at pages 9-18 93 India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyi ed.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88 95 In his paper on "Castes in India: Their Mechanism, Genesis and Development" (1916) presented at the Columbia University, Dr Ambedkar wrote: "The caste problem is a vast one, both theoretically and practically. Practically, it is an institution that portends tremendous cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (2001) 4 SCC 139 122 Additional District Magistrate v Siri Ram, (2000) 5 SCC 451 123 Maharashtra State Board of Secondary and Higher Education v Paritosh Bhupeshkumar Sheth, (1984) 4 SCC 124 Indira Jaisingh, 'The Ghost of Narasu Appa Mali is stalking the Supreme Court of India', Lawyers Collective, 28 May, 2018 125 Written Submissions of Senior Advocate Shri K. Parasaran, at paras 4, 6, 10, 15, 29, 39, 41; Additional Affidavit of Travancore Devaswom Board at para 1 126 AIR 1952 Bom 84; In the proceedings before the Sessions Judge of South Satara, the accused was acquitted and the Bombay Prevention of Hindu Bigamous Marriages Act 1946 was held invalid. The cases arise from these proceedings 135 A M Bhattacharjee, Matrimonial Laws and the Constitution, Eastern Law House (1996) at page 32 138 Ardeshir H Bhiwandiwala v State of Bombay (1961) 3 SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC 202; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons (1991) 3 SCC 617 139 Justice G P Singh, Principles of Statutory Interpretation, Lexis Nexis (2016) at page 198 141 Shiva Rao, The Framing of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts, group life, state authority and religious freedom under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016) at page 374 165 Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016) at page 382 166 Pandit Govind Ballabh Pant (Member, Constituent Assembly) in a speech to the Constituent Assembly on 24 January, 1947 167 Dr. B R Ambedkar in a speech to the Constituent Assembly on 25 November 1949 8 Radhika Sekar, The Process of Pilgrimage: The Ayyappa Cultus and Sabarimalai Yatra (Faculty of Graduate Studies, Department of Sociology and Anthropology at Carleton University, Ottawa, Ontario; October 1987) 9 Lieutenants Ward and Conner, Memoir of the Survey of the Travancore and Cochin States (First Reprint 1994, Government of Kerala) at p. 137 18 Annexure C-8 in the Non-Case Law Convenience Compilation submitted by Dr. A.M. Singhvi, Senior Advocate enlists places of worship where women are not allowed. This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple in Pehowa, Haryana and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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