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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 ..... freely profess, practise and propagate their faith, in accordance with the tenets of their religion - 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. 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. The limited restriction on the entry of women during the notified agegroup does not fall within the purview of Article 17 of the Constitution. Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing ever happens twice alike. The most familiar people stand each moment in some new relation to each other, to their work, to surrounding objects. The most tranquil house, with the most serene inhabitants, living upon the utmost regularity of system, is yet exemplifying infinite diversities. Henry Ward Beecher, 1813-1887 - Eyes and Ears. 3. Any relationship with the Creator is a transcendental one crossing all socially created artificial barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests. Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out of faith and the freedom to practise and profess one‟s religion. The subversion and repression of women under the garb of biological or physiological factors cannot be given the seal of legitimacy. Any rule based on discrimination or segregation of women pertaining to biological characteristics is not only unfounded, indefensible and implaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers (AIR 1993 Kerala 42) wherein similar contentions were raised. The Bench took note of the two affidavits dated 13.11.2007 and 05.02.2016 and the contrary stands taken therein by the Government of Kerala. 7. After recording the submissions advanced by the learned counsel for the petitioners, the respondents as well as by the learned Amici Curiae, the three-Judge Bench considered the questions formulated by the counsel for the parties and, thereafter, framed the following questions for the purpose of reference to the Constitution 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. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng women are not permitted to offer prayers in the temple. 41. Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women. And again: We are therefore of the opinion that the usage of woman of the age group 10 to 50 not being permitted to enter the temple and its precincts had been made applicable throughout the year and there is no reason why they should be permitted to offer worship during specified days when they are not in a position to observe penance for 41 days due to physiological reasons. In short, woman after menarche up to menopause are not entitled to enter the temple and offer prayars there at any time of the year. 11. Analysing so, the High Court recorded its conclusions which read thus: (1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial. (2) Such restriction imposed by the Devas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State but after six years of the adoption of the Constitution, the Parliament, in the exercise of its constituent power, inserted Article 290-A vide the 7th Amendment whereby a sum of rupees forty six lakhs and fifty thousand only is allowed to be charged upon the Consolidated Fund of the State of Kerala which is paid to the Travancore Devaswom Board. It has been asseverated by the petitioners that after the insertion of Article 290-A in the Constitution and the consequent State funding, no individual ill-practice could be carried on in any temple associated with the statutory Devaswom Board even in case of Hindu temple as this constitutional amendment has been made on the premise that no ill-practice shall be carried on in any temple which is against the constitutional principles. 15. It is urged that since all Devaswoms are Hindu Temples and they are bound to follow the basic tenets of Hindu religion, individual ill-practice of any temple contrary to the basic tenets of Hindu religion is impermissible, after it being taken over by statutory board and state funding in 1971. It is propounded that for the purpose of constituting a religious denomination; not only the pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arried out at Hindu Temples cannot accord to them the status of separate religious denominations. 18. The contention of the petitioners is that Sabarimala Temple is not a separate religious denomination, for the religious parctices performed in Sabarimala Temple at the time of Puja‟ and other religious ceremonies are akin to any other practice performed in any Hindu Temple. It does not have its separate administration, but is administered by or through a statutory body constituted under the Travancore - Cochin Hindu Religious Institutions Act, 1950‟ and further, as per Section 29(3A) of the said Act, the Devaswom Commissioner is required to submit reports to the government, once in three months, with respect to the working of the Board. 19. They have placed reliance on the decision of this Court in The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[1954] SCR 1005] wherein it was observed thus: The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to women a higher pedestal in comparison to men and such a discrimination is totally anti-Hindu, for restriction on the entry of women is not the essence of Hindu religion. It has also been submitted by the petitioners that even if Sabarimala temple is taken as a religious denomination, their basic tenets are not confined to taking of oath of celibacy for certain period of pilgrimage as all pilgrims are allowed freely in the temple and there is no such practice of not seeing the sight of women during this period. 23. Further, mere sight of women cannot affect one‟s celibacy if one has taken oath of it, otherwise such oath has no meaning and moreover, the devotees do not go to the Sabarimala temple for taking the oath of celibacy but for seeking the blessings of Lord Ayyappa. Maintaining celibacy is only a ritual for some who want to practise it and for which even the temple administration has not given any justification. On the contrary, according to the temple administration, since women during menstrual period cannot trek very difficult mountainous terrain in the dense forest and that too for several weeks, this practice of not permitting them has started. 24. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right declared by Art. 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) over-rides that right so as to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice, liberty, equality and fraternity as enshrined in the Preamble to our Constitution. That apart, the applicant/intervenor has submitted that though the classification based on menstruation may be intelligible, yet the object sought to be achieved being constitutionally invalid, the question of nexus need not be delved into. 29. Referring to the decision of this Court in Deepak Sibal v. Punjab University and another(1989) 2 SCC 145), the applicant/intervenor has submitted that the exclusionary practice per se violates the sacrosanct principle of equality of women and equality before law and the burden of proving that it does not so violate is on the respondent no. 2, the Devaswom Board, which the said respondent has not been able to discharge. 30. It has also been asseverated by the applicant/intervenor that the exclusionary practice is manifestly arbitrary in view of the judgment of this Court in Shayara Bano v. Union of India and others(2017) 9 SCC 1) as it is solely based on physiological factors and, therefore, neither serves any valid object nor satisfies the test of reasonable classification under Article 14 of the Constitution. 31. It has also been put forth by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly, women who assert the right to enter the Sabarimala temple are also Hindus. 35. The applicant/intervenor has referred to Section 4 of the Kerala Places of Public Worship (Authorization of Entry) Act, 1965 and Rule 3(b) made under the said section which disentitles certain categories of people from entering any place of public worship and this includes women who, by custom or usage, are not allowed to enter a place of public worship. It has further been submitted by the applicant/intervenor that Rule 3(b) is ultra vires the 1965 Act and is also unconstitutional for it violates Articles 14, 15, 17, 21 and 25 of the Constitution in so far as it prohibits women from entering a public temple. The said Rule 3(b), as per the applicant/intervenor, is not an essential practice protected under Article 26 of the Constitution for it is not a part of religion as the devotees of Lord Ayyappa are just Hindus and they do not constitute a separate religious denomination under Article 26 of the Constitution as they do not have a common faith or a distinct name. To substantiate this view, the applicant/intervenor has drawn the attention of this Court to the judgment in S.P. Mittal (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant/intervenor has relied upon the observations made in Devaru case where the Court has stated that the rule of construction is well settled that when there are two provisions in an enactment which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. The Court observed that applying this rule of harmonious construction, if the contention of the appellants is to be accepted, then Art. 25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. The Court further observed that if the contention of the respondents is accepted, then full effect can be given to Article 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Article 25(2)(b) will prevail and therefore while, in the former case, Article 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and Article 26(b) and, hence, it must be accordingly held that Article 26(b) must be read subject to Article 25(2)(b). Submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn the attention of the Court to the fact that the Sabarimala temple is open only during specific defined periods, that is, on the Malayalam month viz. 17th November to 26th December, for the first five days of each Malayalam month which starts approximately in the middle of each English calendar month and also during the period of Makar Sankranti, viz. approximately from January 1 to mid- January of each year. Submissions on behalf of Respondent No. 4 43. At the outset, the respondent no. 4 has drawn the attention of the Court to the history of Kerala in general and Sabarimala in particular and has highlighted the existence of stone inscriptions which state that the priest Kantaru Prabhakaru had made an idol consecration at Sabarimala years back and after the rampage of fire at Sabarimala, it was Kantaru Shankaru who consecrated the existing idol in Sabarimala. The respondent no. 4 has submitted that the Thantri is the vedic head priest of Hindu temples in Kerala and the popularity of any temple depends to a great extent on the Thantri and Santhikkaran (Archaka) who must be able to induce a spiritual reverence among worshippers and explain the significance of the Mantras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also contented that it is for the sake of pilgrims who practise celibacy that young women are not allowed in the Sabarimala pilgrimage. 47. The respondent no. 4, thereafter, contends that the prohibition is not a social discrimination but is only a part of the essential spiritual discipline related to this particular pilgrimage and is clearly intended to keep the mind of the pilgrims away from the distraction related to sex as the dominant objective of the pilgrimage is the creation of circumstances in all respects for the successful practice of spiritual self-discipline. 48. The respondent no. 4 has also averred that for climbing the 18 holy steps, one has to carry the irumudikettu (the sacred package of offerings) and for making the pilgrimage really meaningful, austerities for a period of 41 days have to be observed and, hence, for a meaningful pilgrimage, it is always prudent if women of the forbidden age group hold themselves back. 49. The respondent no. 4 further submits that devaprasanam‟ is a ritual performed for answering questions pertaining to religious practices when the Thantris are also unable to take decisions and that devaprasanams‟ conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elibacy and austerity observed by the deity. Submissions on behalf of Intervenor in I.A Nos. 12 and 13 54. Another applicant/intervenor has filed I.A Nos. 12 and 13 and his main submission is that this Court may remove the restriction which bars women between the age group of 10 to 50 years from entering the Sabarimala temple for all days barring the period between 16th November to 14th January (60 days) as during the said period, Lord Ayyappa sits in the Sabarimala temple and Lord Ayyappa visits other temples all across the country during the remaining days. The applicant/intervenor further highlights that during the said period, the pilgrims coming to the temple must strictly follow the rituals which includes taking a 41 days Vruthum and one of the rituals pertains to not touching the ladies including daughters and wives as well. The applicant/intervenor has further submitted that if the restriction under Section 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 is allowed to operate only for the said period of 60 days, it would not amount to any violation of Articles 14, 15 and 17 of the Constitution and it would also be well within the amb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of religious denomination, then it cannot claim the right under Article 26 and it would come within the purview of Article 12 making it subject to Articles 14 and 15 and, hence, the State would be restrained from denying equal protection of law and cannot discriminate on the basis of sex. Even if it is concluded that Sabarimala is a religious denomination, then as per the Devaru case, there has to be a harmonious construction between Articles 25 and 26 of the Constitution and, thus, to completely deny women of the age group of 10 to 50 years from entering the temple would be impermissible as per the Devaru case. Finally, the petitioners have submitted that in legal and constitutional parlance, after coming into effect of the Constitution of India, dignity of women‟ under Article 51A(e) is an essential ingredient of constitutional morality. Rejoinder Submissions on behalf of Intervenor in I.A No. 10 of 2016 60. The applicant/intervenor has submitted that the law relating to entry into temple for darshan is separate and distinct from the law relating to management of religious affairs. The former is governed by Article 25 and the latter is governed by Article 26. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emple must belong asprescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question do not proscribe any group of citizens from being appointed as Archakas on the basis of caste or class the sanctity of Article 17 or any other provision of Part III of the Constitution or even theProtection of Civil Rights Act, 1955 will not be violated. What has been said in Seshammal [Seshammal v. State of T.N., (1972) 2 SCC 11] (supra) is that if any prescription with regard to appointment of Archakas is made by the Agamas, Section 28 of the Tamil Nadu Act mandates the trustee to conduct the temple affairs in accordance with such custom or usage. The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his universal right to entry is not a permissive right dependent upon the temple authorities but a legal right in the true sense of the expression. To advance this view, the learned Amicus has relied upon the decisions of this Court in Deoki Nandan v. Murlidhar and others (AIR 1957 SC 133) and Sri Radhakanta Deb and another v. Commissioner of Hindu Religious Endowments, Orissa(1981) 2 SCC 226). 68. As regards the nature of the right claimed by the petitioners herein, learned Senior Advocate, Mr. Raju Ramchandran, the learned Amicus, has submitted that it is the freedom of conscience and the right to practise and profess their religion which is recognized under Article 25 of the Constitution of India. This right, as per the learned Amicus, encompasses the liberty of belief, faith and worship, pithily declared as a constitutional vision in the Preamble to the Constitution of India. 69. Learned Senior Advocate Mr. Raju Ramchandran, the learned Amicus, submits that the right of a woman to visit and enter a temple as a devotee of the deity and as a believer in Hindu faith is an essential aspect of her right to worship without which her right to worship is significantly denuded. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoluntary disclosure by women of both their menstrual status and age which amounts to forced disclosure that consequently violates the right to dignity and privacy embedded in Article 21 of the Constitution of India. 73. It has also been submitted by the Amicus Curiae that Article 25(2)(b) is not a mere enabling provision but is a substantive right as it creates an exception for laws providing for social reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices. Further, referring to the judgment of this Court in Devaru (supra), the learned Amicus has submitted that Article 25(2)(b) does not merely seek to prevent exclusionary practices on the basis of caste only, for the rights under Part III of the Constitution must be given a broad meaning and any exception must be given a narrow construction. 74. Further, it has been submitted by the learned Amicus that the exclusionary practice in the present case cannot be justified either on the grounds of health, public order or morality for the term morality‟ used in Article 25 or 26 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been asseverated by Mr. Raju Ramchandran, learned senior counsel, that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires Sections 3 and 4 of the 1965 Act, for the reason that it protects custom and usage‟ which may prohibit entry when Section 3 expressly overrides custom and usage. The said rule, in view of the learned Amicus, discriminates against women when Section 4 makes it clear that rules made under it cannot be discriminatory against any section or class. It is submitted that the power entrusted under the 1965 Act to make rules, inter alia, for due observance of religious rights and ceremonies is for the furtherance of a devotee‟s right to worship under Article 25, whereas to the contrary, Rule 3(b), by saving custom and usage‟, militates against the very purpose of the 1965 Act which is to protect the right to worship guaranteed under Article 25. 78. It has also been pointed out that there is another Rule, similar to Rule 3(b), in the form of Rule 6(c) framed under the 1950 Act, which was relied upon by the High Court and this Rule 6(c) has not been assailed by the petitioners in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 25(1) or against a denomination under Article 26(b). The fact is that though Article 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Article 25(1) and Article 26(b). Submissions of learned Amicus Curiae, Senior Advocate Mr. K. Ramamoorthy 82. It has been asseverated by learned Senior Advocate Mr. K. Ramamoorthy, learned Amicus curiae, that in all prominent Hindu temples in India, there had been some religious practices based on religious beliefs, which are essential part of the Hindu religion as considered by people for a long time. It has been submitted that the devotees of Lord Ayyappa could also be brought within the ambit of religious denomination who have been following the impugned religious practice which has been essential part of religion. 83. Mr. K. Ramamoorthy, learned senior counsel, has submitted that the petitioners herein have not disputed that the impugned religious practice in Sabarimala temple is not a religious practice based on religious belief for several centuries, rather the petitioners have only argued that such a practice is violative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 1965, it is asseverated by Mr. K. Ramamoorthy that the question which arises is whether the State Government, with reference to such a religious practice, could make a rule so that the general public would know the denominational character of the temple and the religious practice followed by the temple. Followers of Lord Ayyappa do not constitute a religious denomination 88. Article 26 of the Constitution of India guarantees to every religious denomination 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. However, these rights are subject to public order, morality and health. 89. The important question that emerges is as to what constitutes a religious denomination. The said question has been the subject matter of several decisions of this Court beginning from Shirur Mutt (supra) wherein the Court observed thus: As regards Article 26, the first question is, what is the precise meaning or connotation of the expression religious denomination and whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government started receiving complaints about the mismanagement of the society and, accordingly, enacted the Auroville (Emergency) Provisions Act, 1980. The Supreme Court, by a majority of 4:1, ruled that neither the society nor the township of Auroville constituted a religious denomination, for the teachings and utterances of Sri Aurobindo did not constitute a religion and, therefore, taking over of the Auroville by the Government did not infringe the society‟s right under Articles 25 and 26 of the Constitution. 91. The Court referred, inter alia, to the MoA of the society along with Rule 9 of the Rules and Regulations of Sri Aurobindo Society which dealt with membership and read thus: 9. Any person or institution for organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application for membership is approved by the Executive Committee, will be member of the Society. The membership is open to people everywhere without any distinction of nationality, religion, caste, creed or sex. After so referring, the Court opined thus: The only condition for membership is that the person seeking the membership of the Societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence to prove that the members of the Vellala Community had common religious tenets peculiar to themselves other than those which are common to the entire Hindu community and further, the Court, following the principle laid down in S.P. Mittal (supra), observed: It is settled position in law, having regard to the various decisions of this Court that the words religious denomination take their colour from the word `religion'. The expression religious denomination must satisfy three requirements (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status. 94. As is decipherable form the above decisions of this Court, for any religious mutt, sect, body, sub-sect or any section thereof to be designated as a religious den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other incorporated Devaswoms including the Sabarimala Temple. We have also discussed the secular character of the Indian Constitution as well as the broad meaning assigned to the term religion occurring in various Articles of the Constitution including Article 25(1). 98. Now adverting to the rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression all persons‟, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. 99. It needs to be understood that the kernel of Article 26 is establishment of a religious institution‟ so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practise religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals and observations as held in Rev. Stainislaus v. State of Madhya Pradesh and others(1977) 1 SCC 677). Further, it has been held in Shirur Mutt (supra) that the logic underlying the constitutional gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, is that the plaintiffs' right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form. 103. Another authoritative pronouncement in regard to the freedom to practise a religion freely without with any fictitious and vague constraint is the case of Acharya Jagadishwarananda Avadhuta (supra), wherein the Court observed thus: The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one's conscience or upon the right freely to profess, practice and propagate religion save those imposed under the police power of the State and the other provisions of Part II of the Constitution. This means the right to worship God according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set-up and opined thus: The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality. 108. That apart, this Court, in Government of NCT of Delhi v. Union of India and others(2018) 8 SCALE 72), observed thus: Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imala temple for offering their prayers. As regards public morality, we must make it absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality. 111. Having said so, the notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality. Whether exclusionary practice is an essential practice as per Hindu religion 112. We have, in the earlier part of this judgment, determined that the devotees of Lord Ayyappa, who though claim to be a separate religious denomination, do not, as per the tests laid down by this Court in several decisions, most prominent of them being S.P. Mittal (supra), constitute a separate religious denomination withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 2(a) of Article 25. 116. Similarly, in State of West Bengal and others v. Ashutosh Lahiri and others (AIR 1995 SC 464), this Court, while approving the judgment of the High Court, observed that the State of West Bengal had wrongly invoked Section 12 of the West Bengal Animal Slaughter Control Act, 1950 on the ground that exemption of slaughtering healthy cows was required to be given for the Muslim community. While holding so, the Court opined thus: ...before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is necessary to be granted for sub-serving an essential religious, medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose no such exemption can be granted so as to by-pass the thrust of the main provisions of the Act. 117. In Durgah Committee, Ajmer and others v. Syed Hussain Ali and others (AIR 1961 SC 1402), the Court, although speaking in the context of Article 26, warned that some practices, though religious, may have sprung from merely superstitious beliefs and may, in that se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an essential practice and has further laid down the test for determining whether a certain practice can be characterized as essential to a particular religion in order to guarantee protection under the Constitution. The Court has opined: The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See generally the Constitution bench decisions in The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and Seshammal v. State of Tamilnadu : [1972]3SCR815 , regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by 'an essential part or practices of a religion' is now the matter for elucidation. Essential part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltered or changed in any manner. Therefore, 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 Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive. 124. Nobody can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely 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 non-essential part or practices. 125. This view of ours is further substantiated by the fact that where a practice changes with the efflux of time, such a practice cannot, in view of the law laid down in Commissioner of Police and others (supra), be regarded as a core upon which a religion is formed. There has to be unhindered continuity in a practice for it to attain the status of essential practice. It is further discernible from the judgment of the High Court in S. Mahendran (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste, sub-caste, sect or denomination whatsoever. Nowhere the definition of section or class suggests being limited to male division, sub-division, caste and so forth. 129. Section 3 of the Act stipulates that places of public worship will be open to all sections and classes of Hindus and reads thus: Section 3 : Places of public worship to open to all sections and classes of Hindus.- Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform: Provided that in the case of a place of public worship which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been made penal under Section 5 of the 1965 Act which reads as under: Section 5 : Penalty Whoever, in contravention of Section 3,- (a) prevents or attempts to prevent any person belonging to any section or class of Hindus from entering, worshipping or offering prayers, performing any religious service, in any place of public worship; or (b) obstructs, or causes or attempts to cause obstruction to, or by threat of obstruction or otherwise discourages, any such person from doing or performing any of the acts aforesaid, shall be publishable with imprisonment which may extent to six months, or with fine which may extent to five hundred rupees, or with both: Provided that in a case where a sentence of fine only is awarded, such fine shall not be less than fifty rupees. 134. Proceeding ahead, Section 4 of the 1965 Act confers the power to make regulations for the maintenance of order and decorum and performance of rites and ceremonies with regard to places of public worship in Kerala: Section 4 : Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship (1) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck, or a road, street or pathways which is requisite for obtaining access to the place of public worship: x x x (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. x x x 137. The law is well-settled on the point that when a rule-making power is conferred under any statute on an authority, the said power has to be exercised within the confines of the statute and no transgression of the same is permissible. In this context, we may refer to the decision in Union of India and others v. S. Srinivasan(2012) 7 SCC 683) wherein it has been ruled: At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it. 138. In General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav (AIR 1988 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eutrality and objectivity: the ability of law to put sphere of general decisionmaking outside the discretionary power of those wielding governmental power. Law has to provide a basic level of legal security by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rulemaking, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of the legislative Acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters. 140. At this stage, we may also benefit from the observations made in State of T.N. and another v. P. Krishnamurthy and others(2006) 4 SCC 517) wherein it was stated that where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. This implies that if a rule is directly hit for being violative of the provisions of the enabling statute, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'all persons', demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors specifically attributable to women. (iii) The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion. (iv) The impugned Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entiy of women of the age group of 10 to 50 years, is a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter. (v) The term &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. (xii) The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. 145. In view of the aforesaid analysis and conclusions, the writ petition is allowed. There shall be no order as to costs. JUDGMENT R.F. Nariman, J. (Concurring) 1. The present writ petition raises far-reaching questions on the ambit of the fundamental rights contained in Articles 25 and 26 of the Constitution of India. These questions arise in the backdrop of an extremely famous temple at Sabarimala in which the idol of Lord Ayyappa is installed. According to the Respondents, the said temple, though open to all members of the public regardless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing wrong in the one s accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of darshan or worship of the deities or that the Panda gets remuneration from his client for the services he renders, does not in any way affect the legal rights of either of them. In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise. This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the Holy of Holies where the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word persons here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies. What then are matters of religion? The word religion has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case [Vide Davis v. Benson, 133 US 333 at 342], it has been said that 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. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter. We do not think that the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done in pursuance of religious belief as part of religion. These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation. The contention formulated in such broad terms cannot, we think, be supported. 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 itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any v. Commonwealth, 67 C.L.R. 116, 127]. These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery. (emphasis supplied) (at pp. 1023-1026) As to what matters a religious denomination enjoys complete autonomy over, this Court said: As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion not merely to entertain such religious belief as may be approved of 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. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people. What sub-clause (a) of clause (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religious practices. So far as Article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under this article, any religious denomination or a section of it has the guaranteed right to establish and mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a like Buddhism and Jainism which do not believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well. We may quote in this connection the observations of Latham, C.J. of the High Court of Australia in the case of Adelaide Company v. Commonwealth [67 C.L.R. 116, 124], where the extent of protection given to religious freedom by section 116 of the Australian Constitution came up for consideration. 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 fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 his 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. The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one. But in cases of doubt, as Chief Justice Latham pointed out in the case [Vide Adelaide Company v. The Commonwealth, 67 C.L.R. 116, 129] referred to above, the court should take a common sense view and be actuated by considerations of practical necessity. It is in the light of these principles that we will proceed to examine the different provisions of the Bombay Public Trusts Act, the validity of which has been challenged on behalf of the appellants. (at pp. 1062-1066) 6. We now come to the famous Mulki Temple case. In this judgment, namely, Sri Venkataramana Devaru an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must, accordingly hold that if the rights of the appellants have to be determined solely with reference to Art 26(b), then section 3 of Act V of 1947, should be held to be bad as infringing it. (emphasis supplied) (at pp. 910-911) The important question that then had to be decided was whether denominational institutions were within the reach of Article 25(2)(b). This was answered in the affirmative. It was then stated: The fact is that though Art. 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Art. 25(1) and Art. 26(b). The result then is that there are two provisions of equal authority, neither of them being subject to the other. The question is how the apparent conflict between them is to be resolved. The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected. (at pp. 919-920) 7. In Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., (1962) 1 SCR 383, ( Durgah Committee ), this Court was faced with a challenge to the vires of the Durgah Khwaja Saheb Act, 1955. The famous tomb of Khwaja Moin-ud-din Chishti of Ajmer was managed by a group of persons who belonged to the Chishti Order of Soofies. The argument that as people from all religious faiths came to worship at this shrine, and that, therefore, it could not be said to be a shrine belonging to any particular religious denomination, was negated as follows: Thus on theoretical considerations it may not be easy to hold that the followers and devotees of the saint who visit the Durgah and treat it as a place of pilgrimage can be regarded as constituting a religious denomination or any section thereof. However, for the purpose of the present appeal we propose to deal with the dispute between the parties on the basis that the Chishtia sect whom the respondents purport to represent and on whose behalf - (as well as their own) - they seek to challenge the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs. He has been guaranteed the right to practice and propagate his religion, subject to the limitations aforesaid. His right to practice his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the legislature has declared to be of a penal character. Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State. For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the wellbeing of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as may be determined by common consen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 26 of the Constitution. (at p. 535) Holding that the said law is not referable to Article 25(2)(b), the Court then held: It remains to consider whether the impugned Act comes within the saving provisions embodied in clause 2 of Art. 25. The clause is in these words:- Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institution of a public character to all classes and section of Hindus. Quite clearly, the impugned Act cannot be regarded as a law regulating or restricting any economic, financial, political or other secular activity. Indeed, that was not even suggested on behalf of the respondent State. It was faintly suggested however that the Act should be considered to be a law providing for social welfare and reform. The mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered essential or vital by those professing the religion. I consider that in the context in which the phrase occurs, it is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1) for two reasons: (1) To read the saving as covering even the basic essential practices of religion, would in effect nullify and render meaningless the entire guarantee of religious freedom - a freedom not merely to profess, but to practice religion, for very few pieces of legislation for abrogating religious practices could fail to be subsumed under the caption of a provision for social welfare or reform. (2) If the phrase just quoted was intended to have such a wide operation as cutting at even the essentials guaranteed by Art. 25(1), there would have been no need for the special provision as to throwing open of Hindu religious institutions to all classes and sections of Hindus since the legislation contemplated by this provision would be par excellence one of social reform. In my view by the phrase laws providing for social welfare and reform it was not intended to enable the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is 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 practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions from day-to-day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may not be easy, it must nevertheless be attempted in dealing with the claims for protection under Arts 25(1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under Arts. 25(1) and 26(b), Latham C.J. s observation in Adelaide Company of Jehovah's Witnesses Incorporated v. The Commonwealth [67 CLR 116, 123], that what is religion to one is superstition to another , on which Mr. Pathak relies, is of no relevance. If an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine [1958 SCR 895 (910)]. Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu religious faith and cannot be dismissed as either irrational or superstitious. Ultimately, it was held that since the appointment of an Archaka is a secular act, the Amendment Act must be regarded as valid. 13. We now come to a very important judgment contained in Rev. Stainislaus v. State of Madhya Pradesh and Ors., (1977) 2 SCR 611. This judgment dealt with the constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, both of which statutes were upheld by the Court stating that they fall within the exception of public order as both of them prohibit conversion from one religion to another by use of force, allurement, or other fraudulent means. In an instructive passage, this Court turned down the argument on behalf of the appellants that the word propagate in Article 25(1) would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) and Durgah Committee (supra), the Court laid down three tests for determining whether a temple could be considered to be a religious denomination as follows: 80. 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 organization; and (3) designation by a distinctive name. A reference was made to Rule 9 of the Rules and Regulations of the Sri Aurobindo Society, and to an important argument made, that to be a religious denomination, the person who is a member of the denomination should belong to the religion professed by the denomination and should give up his previous religion. The argument was referred to in paragraph 106 as follows: 106. Reference was made to Rule 9 of the Rules and Regulations of Sri Aurobindo Society, which deals with membership of the Society and provides: 9. Any person or institution or organis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ga is a separate religious denomination. After referring to the tests laid down in Shirur Math (supra), Durgah Committee (supra), and S.P. Mittal (supra), this Court held that Ananda Margis belong to the Hindu religion, more specifically, being Shaivites, and therefore, could be held to be persons who satisfy all three tests namely, that they are a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organization; and a distinctive name. In holding that the Tandava dance cannot be taken to be an essential religious right of the Anand Margis, this Court in paragraph 14 held: 14. The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. We have already indicated that Tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established. It is the specific case of the petitioner that Shri Ananda Murti introduced Tandava as a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a relig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be seen that every Hindu whether a believer of Shaiva form of worship or of panchratna form of worship, has a right of entry into the Hindu Temple and worship the deity. Therefore, the Hindu believers of Shaiva form of worship are not denominational worshippers. They are part of the Hindu religious form of worship. The Act protects the right to perform worship, rituals or ceremonies in accordance with established customs and practices. Every Hindu has right to enter the Temple, touch the Linga of Lord Sri Vishwanath and himself perform the pooja. The State is required under the Act to protect the religious practices of the Hindu form of worship of Lord Vishwanath, be it in any form, in accordance with Hindu Shastras, the customs or usages obtained in the Temple. It is not restricted to any particular denomination or sect. Believers of Shaiva form of worship are not a denominational sect or a section of Hindus but they are Hindus as such. They are entitled to the protection under Articles 25 and 26 of the Constitution. However, they are not entitled to the protection, in particular, of clauses (b) and (d) of Article 26 as a religious denomination in the matter of management, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of construction or method of consecration. No doubt only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying that what is required and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed therefor. For example, in Saivite temples or Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to be performed and recited in the respective temples and appropriate to the worship of the particular deity could be engaged as an Archaka. If traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars (Smarthi Brahmins) to administer the properties of a temple dedicated to Lord Natraja at the Sri Sabanayagar Temple at Chidambaram. This Court noticed, in paragraph 24, that the rights conferred under Article 26 are not subject to other provisions of Part III of the Constitution. It then went on to extract a portion of the Division Bench judgment of the Madras High Court, which held that the Podhu Dikshitars constitute a religious denomination, or in any event, a section thereof, because they are a closed body, and because no other Smartha Brahmin who is not a Dikshitar is entitled to participate in either the administration or in the worship of God. This is their exclusive and sole privilege which has been recognized and established for several centuries. Another interesting observation of this Court was that fundamental rights protected under Article 26 cannot be waived. Thus, the power to supersede the administration of a religious denomination, if only for a certain purpose and for a limited duration, will have to be read as regulatory, otherwise, it will violate the fundamental right contained in Article 26. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of religious functions. Therefore, an Archaka may, by law, be a person professing a particular religion or belonging to a particular denomination. The Court went on to hold that although what constitutes essential religious practice must be decided with reference to what the religious community itself says, yet, the ultimate constitutional arbiter of what constitutes essential religious practice must be the Court, which is a matter of constitutional necessity. The Court went on to state that constitutional legitimacy, as decided by the Courts, must supersede all religious beliefs and practices, and clarified that complete autonomy , as contemplated by Shirur Math (supra), of a denomination to decide what constitutes essential religious practice must be viewed in the context of the limited role of the State in matters relating to religious freedom as envisaged by Articles 25 and 26 of the Constitution, and not of Courts as the arbiter of constitutional rights and principles. 21. A conspectus of these judgments, therefore, leads to the following propositions: 21.1. Article 25 recognises a fundamental right in favour of all persons which has reference to natural persons. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposed to certain individuals. A disturbance of public order must cause a general disturbance of public tranquility. The term morality is difficult to define. For the present, suffice it to say that it refers to that which is considered abhorrent to civilized society, given the mores of the time, by reason of harm caused by way, inter alia, of exploitation or degradation. 2 Health would include noise pollution and the control of disease. 21.8. Another exception to the fundamental right conferred by Article 25(1) is the rights that are conferred on others by the other provisions of Part III. This would show that if one were to propagate one s religion in such a manner as to convert a person of another religious faith, such conversion would clash with the other person s right to freedom of conscience and would, therefore, be interdicted. Where the practice of religion is interfered with by the State, Articles 14, 15(1), 19, and 21 would spring into action. Where the practice of religion is interfered with by non-State actors, Article 15(2) and Article 17 3 would spring into action. 21.9. Article 25(2) is also an exception to Article 25(1), which speaks of the State makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 religious institution of a public character owned and managed by a religious denomination or section thereof to all classes or sections of Hindus. However, religious practices by the religious denomination or section thereof, which do not have the effect of either a complete ban on temple entry of certain persons, or are otherwise not discriminatory, may pass muster under Article 26(b). Examples of such practices are that only certain qualified persons are allowed to enter the sanctum sanctorum of a temple, or time management of a temple in which all persons are shut out for certain periods. 22. At this stage, it is important to advert to a Division Bench judgment of the Kerala High Court reported as S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors., AIR 1993 Ker 42. A petition filed by Shri S. Mahendran was converted into a PIL by the High Court. The petition complained of young women offering prayers at the Sabarimala Temple. The Division Bench set out three questions that arose, as follows: 12. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women. The conclusion of the Division Bench in paragraph 44 was, therefore, as follows: 44. Our conclusions are as follows: (1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial. (2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India. (3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class. 23. In the present writ petition filed before this Court, an affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en are affected by physical discomforts like headache, body pain, vomiting sensation etc. In such circumstances, intense and chaste spiritual disciplines for forty-one days are not possible. It is for the sake of pilgrims who practiced celibacy that youthful women are not allowed in the Sabarimala pilgrimage. The other reason given in the affidavit for the usage of non-entry of women between these ages is as follows: 24. That the deity at Sabarimala is in the form of a Naishtik Brahmachari and that is the reason why young women are not permitted to offer prayers in the temple as the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women. It will thus be seen that women are barred entry to the temple at Sabarimala because of the biological or physiological phenomenon of menstruation, which forbids their participation in religious activity. The second reason given is that young women should not, in any manner, deflect the deity, who is in the form of a Naisthika Brahmachari, from celibacy and austerity. 24. All the older religions speak of the phenomenon of menstruation in women as being impure, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) menstruation. Say: it is a state of hurt (and ritual impurity), so keep away from women during their menstruation and do not approach them until they are cleansed. When they are cleansed, then (you can) go to them inasmuch as God has commanded you (according to the urge He has placed in your nature, and within the terms He has enjoined upon you). Surely God loves those who turn to Him in sincere repentance (of past sins and errors), and He loves those who cleanse themselves. 8 In the Gospel of Mark, Jesus is said to have cured a woman who was ritualistically unclean, having had an issue of blood for 12 years, as follows: 25. And a certain woman, which had an issue of blood twelve years, 26. And had suffered many things of many physicians, and had spent all that she had, and was nothing bettered, but rather grew worse, 27. When she had heard of Jesus, came in the press behind, and touched his garment. 28. For she said, If I may touch but his clothes, I shall be whole. 29. And straightway the fountain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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 impurity 12 and essential to procreation. 13 Similarly, in the Bah Faith, the concept of ritual uncleanness has been abolished by Bah u ll h. 14 25. For the purpose of this case, we have proceeded on the footing that the reasons given for barring the entry of menstruating women to the Sabarimala temple are considered by worshippers and Thanthris alike, to be an essential facet of their belief. 26. The first question that arises is whether the Sabarimala temple can be said to be a religious denomination for the purpose of Article 26 of the Constitution. We have already seen with reference to the case law quoted above, that three things are necessary in order to establish that a particular temple belongs to a religious denomination. The temple must consist of persons who have a common faith, a common organization, and are designated by a distinct name. In answer to the question whether Thanthris and worshippers alike are designated by a distinct name, we were unable to find any answer. When asked whether all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said temple into a religious denomination. Also, there are over a thousand other Ayyappa temples in which the deity is worshipped by practicing Hindus of all kinds. It is clear, therefore, that Article 26 does not get attracted to the facts of this case. 28. This being the case, even if we assume that there is a custom or usage for keeping out women of the ages of 10 to 50 from entering the Sabarimala temple, and that this practice is an essential part of the Thanthris as well as the worshippers faith, this practice or usage is clearly hit by Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, which states as follows: 3. Places of public worship to be open to all section and classes of Hindus:- Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isation 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 in or use of water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to place of public worship: xxx xxx xxx (b)Women at such time during which they are not by custom and usage allowed to enter a place of public worship. xxx xxx xxx The abovementioned Rule is ultra vires of Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and is hit by Article 25(1) and by Article 15(1) of the Constitution of India as this Rule discriminates against women on the basis of their sex only. 30. The learned counsel appearing on behalf of the Respondents stated that the present writ petition, which is in the nature of a PIL, is not maintainable inasmuch as no woman worshipper has come forward with a plea that she has been discriminated against by not allowing her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India. R.F. Nariman, J. September 28, 2018. Dr Dhananjaya Y Chandrachud, A Conversation within the Constitution: religion, dignity and morality 1 The Preamble to the Constitution portrays the foundational principles: justice, liberty, equality and fraternity. While defining the content of these principles, the draftspersons laid out a broad canvass upon which the diversity of our society would be nurtured. Forty two years ago, the Constitution was amended to accommodate a specific reference to its secular fabric in the Preamble. (The Constitution (Forty-second) Amendment, 1976) Arguably, this was only a formal recognition of a concept which found expression in diverse fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 otherwise were to be placed in control of their own destinies by the assurance of the equal protection of law. Fundamental to their vision was the ability of the Constitution to pursue a social transformation. Intrinsic to the social transformation is the role of each individual citizen in securing justice, liberty, equality and fraternity in all its dimensions. 3 The four founding principles are not disjunctive. Together, the values which they incorporate within each principle coalesce in achieving the fulfilment of human happiness. The universe encompassed by the four founding principles is larger the sum total of its parts. The Constitution cannot be understood without perceiving the complex relationship between the values which it elevates. So, liberty in matters of belief, faith and worship, must produce a compassionate and humane society marked by the equality of status among all its citizens. The freedom to believe, to be a person of faith and to be a human being in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in matters of faith and worship, on the basis of a physiological aspect of their existence? These questions are central to understanding the purpose of the Constitution, as they are to defining the role which is ascribed to the Constitution in controlling the closed boundaries of organised religion. 6 The chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies (Article 32). Article 25 provides thus: 25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions 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 emanation, in Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, the Constitution does not condition these basic norms of equality to the other provisions of Part III. Similar is the case with the freedoms guaranteed by Article 19(1) or the right to life under Article 21. The subjection of the individual right to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III. 8 Clause (2) of Article 25 protects laws which existed at the adoption of the Constitution and the power of the state to enact laws in future, dealing with two categories. The first of those ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance 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; (ii) managing the affairs of the denomination in matters of religion; (iii) ownership and acquisition of immovable property; and (iv) administration of the property in accordance with law. Article 26, as in the case of Article 25(1), is prefaced by a subject to public order, morality and health stipulation. Article 26(1) does not embody the additional stipulation found in Article 25(1) viz; and to the other provisions of this Part. The significance of this will be explored shortly. 10 Public order, morality and health are grounds which the Constitution contemplates as the basis of restricting both the individual right to freedom of religion in Article 25(1) and the right of religious denominations under Article 26. The vexed issue is about the content of morality in Articles 25 and 26. What meaning should be ascribed to the content of the expression morality is a matter of constitutional moment. In the case of the individual right as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers 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 constitutional principles. 12 The content of morality is founded on the four precepts which emerge from the Preamble. The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life. Added to these four precepts is the fundamental postulate of secularism which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe. Conscience, it must be remembered, is emphasised by the same provision. The Constitution is meant as much for the agnostic as it is for the worshipper. It values and protects the conscience of the atheist. The founding faith upon which the Constitution is based i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 specifically to make Article 26 subordinate to the other freedoms. This textual interpretation of Article 26, in juxtaposition with Article 25 is good as far as it goes. But does that by itself lend credence to the theory that the right of a religious denomination to manage its affairs is a standalone right uncontrolled or unaffected by the other fundamental freedoms? The answer to this must lie in the negative. It is one thing to say that Article 26 is not subordinate to (not subject to ) other freedoms in Part III. But it is quite another thing to assume that Article 26 has no connect with other freedoms or that the right of religious denominations is unconcerned with them. To say as a matter of interpretation that a provision in law is not subordinate to another is one thing. But the absence of words of subjection does not necessarily attribute to the provision a status independent of a cluster of other entitlements, particularly those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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 notices their opentextured content and indeed, their fluid nature. One freedom shades into and merges with another. Fairness as a guarantee against arbitrary state action influences the content of the procedure for the deprivation of life under Article 21. Though Article 21 speaks only of the deprivation of life or personal liberty by a procedure established by law, decisions from Maneka Gandhi v Union of India(1978) 1 SCC 248), ( Maneka ) have expounded that the law must have a content which is reasonable. The procedure for deprivation must be free of the taint of that which is arbitrary. This reading of the fundamental rights as constellations emanating from a cosmos of freedom and as having paths which intersect and merge enhances the value of freedom itself. Though the principal provision relating to equality before the law is embodied in Article 14, the four articles which follow it are a manifestation of its basic doctrines. Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine 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 freedoms which may be impacted by an unrestrained exercise. Hence, the dignity of women which is an emanation of Article 15 and a reflection of Article 21 cannot be disassociated from the exercise of religious freedom under Article 26. 15 Once Articles 25 and 26 are read in the manner in which they have been interpreted, the distinction between the articles in terms of the presence or absence of a clause of subjection should make little practical significance to the relationship between the freedom of religion with the other freedoms recognized in the fundamental rights. If the Constitution has to have a meaning, is it permissible for religion either as a matter of individual belief or as an organized structure of religious precepts to assert an entitlement to do what is derogatory to women? Dignity of the individual is the unwavering premise of the fundamental rights. Autonomy nourishes dignity by allowing each individual to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to decide the issue, where the validity of the law is challenged. Similarly, Article 26(b) speaks of matters of religion when it recognises the right of a religious denomination to manage them. In the context of Article 26(b), this Court has embarked upon a course to decide in individual cases whether, what was said to be regulated by the state was a matter of religion which falls within the freedom guaranteed to the denomination. These compulsions nonetheless have led the court to don a theological mantle. The enquiry has moved from deciding what is essentially religious to what is an essential religious practice. Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief. Scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the district of Pathananthitta in Kerala, the temple nestles at a height of 1260 metres (4135 feet) above sea level. The faithful believe that Lord Ayyappa s powers derive from his ascetism, in particular from his being celibate. Celibacy is a practice adopted by pilgrims before and during the pilgrimage. Those who believe in Lord Ayyappa and offer prayer are expected to follow a strict Vratham or vow over a period of forty one days which lays down a set of practices. 20 The legend of Lord Ayyappa and the birth of the Sabarimala temple have been explained6 in the erudite submissions in this case. Although there are numerous Ayyappa Temples in India, the Sabarimala Temple depicts Lord Ayyappa as a Naishtika Brahmacharya : his powers derive specifically from abstention from sexual activities. The birth of Lord Ayyappa is described as arising from the union of Lord Shiva and Lord Vishnu (the form of Mohini). The di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 realized his divine power and for treating him merely as his child. The Lord lovingly embraced the King who prayed to bless him by freeing him from ego and the worldy cycle of rebirth. Manikanta granted him Moksha (salvation). He told the King that he was destined to return. The King implored Manikanta to allow him to build a temple and dedicate it to him. The Lord assented. Manikanta then enlightened the King on the path of Moksha. 22 The Lord shot an arrow that fell at the pinnacle of Sabarimala and told the King that he could construct a temple at Sabarimala, north of the Holy river Pampa and install his deity there. Lord Ayyappa also explained how the Sabarimala pilgrimage shall be undertaken, emphasizing the importance of the penance or Vratham and what the devotees can attain by his darshan . But before the departure of the Lord, the King secured a promise from the Lord that on thai pongal on January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceded 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-one days, nowadays shorter periods are permitted. While it is expected that for first time initiaties observe the forty-one day Vratham, others shorten the term to two weeks or even six days. A key essential of the Vratham is a sathvic lifestyle and brahmacharya. This is believed to be a step towards a pure body and mind an effort to be aloof from the materialistic world, by taking a step towards the path of devotion. The Vratham or penance entails: (i) Abstaining from physical relations with a spouse; (ii) Abstention from intoxicating drinks, smoking and tamasic food; (iii) Living in isolation from the rest of the family; (iv) Refraining from interacting with women in daily life including those in the family; (v) Cooking one s own food; (vi) Maintaining hygiene including bathing twice a day before prayers; (vii) Wearing a black mundu and upper garments; (viii) Parta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Section 3 provides for places of public worship to be open to all sections and classes of Hindus: Section 3. Places of public worship to be open to all section and classes of Hindus:- Notwithstanding anything t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship- (a) Persons who are not Hindus. (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. (c) Persons under pollution arising out of birth or death in their families. (d) Drunken or disorderly persons. (e) Persons suffering from any loathsome or contagious disease. (f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned. (g) Professional beggars when their entry is solely for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and 17 and not protected by morality as used in Articles 25 and 26 of the Constitution? 2. Whether the practice of excluding such women constitutes an essential religious practice under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion? 3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)? 4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits 'religious denomination' to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex? 5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 denomination under Article 26 of the Constitution; vii. The practice of excluding women from the Sabarimala temple does not constitute an Essential Religious Practice; viii. The prohibition against untouchability in Article 17 extends to the denial of entry to women between the age group ten and fifty; ix. A deity is not a juristic person for the purpose of rights enshrined in Part III of the Constitution; and x. That there is no requirement of trial as the recordings by the High Court in Mahendran are sufficient. Mr P V Surendranath, (Appearing for the Intervenors All India Democratic Women s Association) learned Senior Counsel submitted thus: i. There is no proven custom of excluding women from the Sabarimala temple; ii. The practice of exclusion violates Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rule 3(b) the 1965 Rules; and iv. That the notion of equality is enshrined in Article 25, and consequently, Article 14 and 15 are inapplicable to the present case. Mr K Ramamoorthy, learned Senior Counsel who assisted the Court as Amicus Curiae made the following submissions: i. That the exclusion of women between the age group ten and fifty does not violate the rights of the Petitioners under Article 25; and ii. The practice of exclusion is protected under Article 25. Mr K Radhakrishnan, (Appearing on behalf of the Intervenor Raja of Pandalam) learned Senior Counsel submitted that the exclusion of women between the ages ten and fifty is permissible: i. The impugned practice constitutes an Essential Religious Practice; and ii. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 his right to manage the religious affairs of the monastery, and therefore violated Article 26(b) of the Constitution. Justice B K Mukherjea, writing for the Court, noted that Article 26(b) allowed a religious denomination to manage its own affairs in matters of religion and framed a question on the ambit of matters of religion : 16.The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and what are not? (Emphasis supplied) The Court cited with approval the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligious 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 which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of 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. Speaking with reference to Article 26, Justice Mukherjea reiterated the broad view taken by the Court in Shirur Mutt that religious denominations had complete autonomy to decide which religious practices were essential for them: Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by Article 25(2)(b), throwing open a Hindu public temple to all classes and sections of Hindus: Article 26, it was contended, should therefore be construed as falling wholly outside Art. 25(2)(b), which should be limited to institutions other than denominational ones The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25(2)(b). It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sential 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 infringed upon the fundamental right to religion of the Petitioners, who were members of the Muslim Qureshi Community. The Petitioners claimed that these laws were violative of Article 25 of the Constitution as Muslims were compelled by their religion to sacrifice cows at Bakr-Id. The Court placed reliance upon Islamic religious texts to determine that the sacrificing of cows at Bakr-Id was not an essential practice for Muslims: 13...No reference is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow...What the Holy book enjoins is that people should pray unto the Lord and make sacrifice...It is therefore, optional for a Muslim to sacri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 religious practices within the meaning of Article 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other. (Emphasis supplied) 35 This statement pushed the essential religious practices doctrine in a new direction. The Court distinguished, for the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha 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 prevent a person from living his own life so long as he did not interfere with similar rights of others. Justice Sinha drew a distinction between matters of religion as protected under Article 26(b) and activities associated with religion, though not intimately connected with it: 18 Now, Art. 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc. We have therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 emperors of the erstwhile Mughal Empire to hold that the temple was public and that the Tilkayat was merely a custodian, manager and trustee of the temple. Justice Gajendragadkar, writing for the Bench, underlined why the claims of a community regarding their religious practices could not be accepted without scrutiny: 57.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...In cases where conflicting evidence is produced in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers 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 of the tenets and philosophy taught by Swaminarayan himself. (Emphasis supplied) Quoting Tilak, Justice Gajendragadkar then expounded the distinctive features of Hinduism: 40.Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. Said Tilak: Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. (Emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly 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 adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Ibid, at page 630 (Emphasis supplied) 43 In N Adithayan v Travancore Devaswom Board(2002) 8 SCC 106) ( Travancore Devaswom Board ), a two judge Bench of this Court was seized with the issue of whether the Travancore Devaswom Board could appoint a non-Malayala Brahmin as priest of the Kongorpilly Neerikode Siva Temple. Justice Doraiswamy Raju, writing for the Court, held that there was no evidence on record to demonstrate that only Brahmins were entitled to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout 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 fundamental character. It is such permanent essential parts which are protected by the Constitution Such alterable parts or practices are definitely 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 non-essential part or practices. Ibid, at pages 782-783 (Emphasis supplied) The essentiality test came to be linked to the fundamental character of the religion. If the abrogation of a practice does not change the fundamental nature of the religion, the practice itself is not essential. Rejecting the claim of the Anand Margis, the majority he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us 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 cannot make it valid if it has been expressly declared to be impermissible. Chief Justice Khehar, who delivered the minority judgment, held that the practice of triple talaq is integral to the religion of Hanafi Muslims. He reasoned that: [T]here can be no dispute on two issues. Firstly, that the practice of talaq-e-biddat has been in vogue since the period of Umar, which is roughly more than 1400 years ago. Secondly, that talaq-e-biddat though bad in theology, was considered as good in law. On the basis of the history and prevalence of triple talaq in practice, Justice Khehar held that even though triple talaq i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 established that in examining a claim that a practice is essential to religion, the Court must carefully scrutinize the claims put before it in order to ensure that practices which have sprung from superstitious beliefs , through grounded in religion, will not be afforded constitutional protection. Saifuddin recognized that where a purportedly essential practice is based on an obnoxious social rule or practice , it would be amenable to a measure of social reform. Of crucial importance are the observations in Devaru, where the Court harmonized the inherent tension between the individual right under Article 25(2)(b) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and tenets on which the Respondents placed reliance do not indicate that the practice of excluding women is an essential part of religion required or sanctioned by these religious documents. At best, these documents indicate the celibate nature of Lord Ayyappa at the Sabarimala temple. The connection between this and the exclusion of women is not established on the material itself. 51 It was briefly contended that the case at hand required a determination of fact and law and should be sent to trial. It was contended that no new material has been placed before this Court to contradict the holding of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilakku 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 The High Court proceeded on the basis of the complete autonomy of the followers in determining the essentiality of the practice (Ibid, at para 22). This followed the dictum in Shirur Mutt, without taking note of evolution of precedent thereafter, which strengthened the role of the Court in the determination and put in place essential safeguards to ensure to every individual, the constitutional protection afforded by the trinity of dignity, liberty and equality. The approach of the High Court is incorrect. The High Court relied completely on the testimonies of the Thanthris without an enquiry i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct 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 ethos of the Constitution, it is inconceivable that age could found a rational basis to condition the right to worship. The ages of ten to fifty have been marked out for exclusion on the ground that women in that age group are likely to be in the procreative age. Does the Constitution permit this as basis to exclude women from worship? Does the fact that a woman has a physiological feature of being in a menstruating age entitle anybody or a group to subject her to exclusion from religious worship? The physiological features of a woman have no significance to her equal entitlements under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnified 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 women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood. The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. No body or group can use it as a barrier in a woman s quest for fulfilment, including in her finding solace in the connect with the creato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 profess to be followers of that teacher... (Emphasis supplied) 61 In Devaru, Justice Venkatarama Aiyyar considered whether the Gowda Saraswath Brahmins, associated with the Sri Venkataramana Temple, can be regarded as a religious denomination. In doing so, the Court undertook a factual enquiry: 14 Now, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 specifically. The temple was not dedicated for followers of all communities. 62 In S P Mittal v Union of India ( Mittal ) 1983 1 SCC 51, Justice Ranganath Misra who delivered the opinion of the Court, held that the followers of Sri Aurobindo do not constitute a religious denomination. The Court formulated the conditions necessary to be fulfilled to qualify as religious denomination : 80. 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 denominatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 of this Court adopted the tests re-stated in Mittal to hold that the followers of Ramakrishna constitute a religious denomination: 57 These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as his disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those conducive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ayyappa. It has been submitted by Mr K Parasaran, learned Senior Counsel that the devotees of Lord Ayyappa hold a sacred religious belief that the deity at Sabarimala is celibate - a Naishtika Brahmachari - who practises strict penance and the strictest form of celibacy, in which he cannot find himself in the presence of young women. It has been submitted that Lord Ayyappa has female devotees. Hence, girls below the age of ten and women above the age of fifty would be included as members of the denomination. However, it is unclear as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 for non-religious reasons. The submission of the Board before the High Court reveals that the prohibition has not been consistently followed even after the notification was issued. 8. For the last 20 years women irrespective of their age were allowed to visit the temple when it opens for monthly poojas. They were not permitted to enter the temple during Mandalam, Makaravilakku and Vishu seasons. The rule that during these seasons no woman who is aged more than 10 and less than 50 shall enter the temple is scrupulously followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. 69 Adherence to a common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 forbidding its practice in any form . By abolishing untouchability , the Constitution attempts to transform and replace the traditional and hierarchical social order. Article 17, among other provisions of the Constitution, envisaged bringing into the mainstream of society, individuals and groups that would otherwise have remained at society s bottom or at its edges 71 . Article 17 is the constitutional promise of equality and justice to those who have remained at the lowest rung of a traditional belief system founde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hindu society, he queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to inter-communal untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that the purpose of the clause was to abolish untouchability in all its forms- whether it was untouchability within a community or between various communities 77 . In the proceedings, K M Panikkar elaborated the point by ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 of any disability the words observance of any disability may be substituted. I cannot understand his point. I can observe one man imposing a disability on another, and I will be guilty I have observed it. I do not think such extreme things should be provided for. The removal of untouchability is the main idea, and if untouchability is made illegal or an offence, it is quite enough. The next amendment was moved by Mr. Kunhiraman. He has suggested the insertion of punishabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 regarded as an offence under this article? I think if I am not mistaken, I am speaking from memory, but I believe I am right that in the Quran in a certain 'Sura', this is mentioned specifically and categorically. Will you make the practice of their religion by the followers of the Prophetan offence? Again there are many ceremonies in connection with funerals and obsequies which make those who have taken part in them untouchables for a while. I do not wish to inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 as a compact for political and social reform. 74 Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 experiences from his childhood. No barber would consent to shave an untouchable. During his days as an Officer in Baroda State, he was denied a place to stay in quarters. In another note, which was handwritten by Dr Ambedkar and was later published with the title Frustration , he wrote: The Untouchables are the weariest, most loathed and the most miserable people that history can witness. They are a spent and sacrificed people To put it in sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 through these writings reflects a longstanding fight against subjugation and of atrocities undergone by the victims of an unequal society. Article 17 is a constitutional recognition of these resentments. The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociated 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 system, still continue to dominate society. Though the Constitution abolished untouchability and other forms of social oppression for the marginalised and for the Dalits, the quest for dignity is yet a daily struggle. The conditions that reproduce untouchability are still in existence. Though the Constitution guarantees to every human being dignity as inalienable to existence, the indignity and social prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution 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 practice of untouchability is forbidden in any form . The in any form prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition. The fourth feature of Article 17 is that the enforcement of disabilities founded upon untouchability shall constitute an offence punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. In State of Karnataka v Appa Balu Ingale(1995 Supp (4) SCC 469), a two judge Bench of this Court traced the origins of untouchability. The court held that untouchability is an indirect form of slavery and only an extension of caste system . The court held: 36. The thrust of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessing 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, or taking out, any religious, social or cultural procession]; or [Explanation.--For the purposes of this section, enforcement of any disability includes any discrimination on the ground of untouchability .]. (Emphasis supplied) Section 7 provides for punishment for other offences arising out of untouchability. Section 7(1)(c) criminalises the encouragement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on , 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 faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude wom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. 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 including is not a term restricting the meaning of the word premises but is a term which enlarges the scope of the word premises . We are therefore of opinion that even this contention is not sound and does not lead to the only conclusion that the word premises must be restricted to mean buildings and be not taken to cover open land as well. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 of Hindus into places of public worship . The long title is a part of the Act and is a permissible aid to construction.121 The Act was enacted to remedy the restriction on the right of entry of all Hindus in temples and their right to worship in them. The legislation is aimed at bringing about social reform. The legislature endeavo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 or class whatsoever, shall be prevented, obstructed or discouraged from entering a place of public worship or from worshipping or offering prayers or performing any religious service in that place of public worship. Hence, all places of public worship which are open to Hindus or to any section or class of Hindus general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. (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 authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein: Provided that no regulation made under this sub-section shall di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Respondents have urged that the exclusion of women from the Sabarimala temple constitutes a custom, independent of the Act and the 1965 Rules. 125 It was contended that this exclusion is part of institutional worship and flows from the character of the deity as a Naisht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt 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 is clear and unambiguous. Thus, Justice Chagla concluded that personal law is not included in the expression laws in force used in Article 13(1). 93 Justice Gajendragadkar (as the learned Judge then was) differed with the Chief Justice s view that cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 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 disjunctive reading of the Articles in Part III of the Constitution. In his celebrated dissent, Justice Fazl Ali, pointed out that the scheme of Part III of the Constitution suggested the existence of a degree of overlap between Articles 19, 21, and 22. The di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 the various provisions of the Constitution and not to treat any part of it as otiose or superfluous. The learned Judge held: 49 Some amount of repetitiveness or overlapping is inevitable in a Constitution like ours which, unlike the America ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 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 the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalized. The penumbra of a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 Section 292 of the Government of India Act 1935 and adverting to the powers of the Provincial Legislature and the Central Legislature, Justice Suleman held: Even though we are not concerned with the wisdom of the Legislature, one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 note 142 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 clause (3) of this article. The reason for a separate definition for laws in force is crucial. The definition of laws in force was inserted to ensure that laws passed by the legislature, but not in operation at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution, it has been observed that such a vision would: require a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 notes 147 : 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 individual, a Constitutional court such as ours is faced with an additional task. Transformative adjudication must provide remedies in individual instances that arise before the Court. In addition, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 suing and being sued. An idol can hold property and obviously it can sue and be sued in respect of it [Thus] the deity as a juristic person has undoubtedly the right to institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 guaranteed under Part III of the Constitution are geared towards the recognition of the individual as its basic unit. The individual is the bearer of rights under Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 beliefs and would, therefore, be extraneous and unessential accretions to religion would be treated as essential parts of religion. In Sastri Yagnapurushadji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 integral element of the entire chapter on fundamental rights. Constitutional articles which recognise fundamental rights have to be understood as a seaml ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Bhatia 156 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 individual access to important public goods, can only be determined by deciding which vision the Constitution subscribes to. Relevant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 should apply a balancing, compelling reason inquiry, or proportionality analysis to determine whether the religious freedom cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 individual. 114 The Constitution protects the equal entitlement of all persons to a freedom of conscienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 focuses on not only distributive questions, but on the structures of oppression and domination which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abarimala 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 concluding, I acknowledge the efforts of the counsel for the parties who appeared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 Article 25(2)(b) as a measure of social reform . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 Institutions Act, 1950, and receives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cannot render an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arimala 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 Sabarimala Temple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dense 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 m ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1950 to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Temple, if he is to mount 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouchability based on caste in the Hindu 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 admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orshipper of a particular shrine. The perils are even graver 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 wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gious Trusts Act, 1950 as being violative of the Fundamental Rights of 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 expel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case deals with the right of the devotees of this denomination or sect, as the 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 reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) The Vice-President took up Amendment No. 296 for vote, which was moved for addition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing observations in Jamshed Ji v. Soonabai: If this is 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such religious practises as are an essential and an integral part of it and no other. It is submitted 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 presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... religious community is allowed freedom to determine what is essential to its belief and practise, but 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows about the role of a Constitutional Court: The determination of what is a religious belief or practise 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, incorporated in recognition of the principle that the real test of a true democracy is the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an actual legislation. What is permitted by Article 25(2) is State made law on the grounds specified therein, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution make freedom of conscience a Fundamental Right guaranteed to all persons who are equally entitled 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 Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en between the ages of ten and fifty five are forbidden from entering the temple. Ambalapuzha 27-11- 56 Assistant Devaswon Commissioner. (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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and religious denomination must be interpreted in a liberal, expansive way : 21 the expression religious denomination may be defined with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of women belonging to the age group of 10 to 50 years is documented in the Memoir of the Survey of the Travancore and Cochin States (Supra note 9) published 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 Proclamation 47 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test to afford protection to religious practises. 13.1. The essential practises test was formulated in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra 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 religi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to restrict or prohibit them in any manner they like under the guise of administering the trust estate We may refer in this connection to the observation of Davar, J. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not the white dress is the essential part of religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne, since the deity has manifested himself in the form of a Naishtik Brahmachari . 13.8. The practise of restricting the entry of women belonging to the agegroup of 10 to 50 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one section and another section or between one class and another class among the Hindus in the matter of entry to a Temple whereas the prohibition is only in respect of women of a particular age group and not women as a class. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The phrase equally entitled to , as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigin and the beliefs and practises of the Sabarimala Temple. 14.3. In the present case, women of the notified age group are allowed entry into all other temples of Lord Ayyappa. The restriction on the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59 14.5. It is clear that Article 17 refers to the practise of Untouchability as committed in the Hindu community against Harijans or people from depressed classes, and not women, as contended by the Petitioners. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asses 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 from offering prayers there 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 what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected. 16. The summary of the aforesaid analysis is as follows: (i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein. (ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to construe Article 17 in wider terms than merely including those who were historically untouchables at the time of framing of the Constitution. We have refrained from 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 nal, 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Framing of India s Constitution: A Study, Indian Institution of Public Administration (1968), at page 202 79 B Shiva Rao, The Framing of India s Constitution: A Study, Indian Institution of Public Administration (1968), at page 203 81 Constituent Assembly Debates (29 April 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 Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage of girls. He believed that the caste-gender nexus was the main culprit behind the oppression of the lower castes and women and that it had to be uprooted. See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra (2014),Vol. 1, at pages 3-22 121 Union of India v Elphinstone Spinning and Weaving Co Ltd, (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 Ardes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, Brigham Young University Review (2017) 160 Jaclyn L Neo, Definitional imbroglios: A critique of the definition of religion and essential practice tests in religious freedom adjudication, International Journal of Constitutional Law, Vol. 16 (2018), at pages 574-595 164 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 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 Anthrop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble at http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-12%29.pdf 56 Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29, 1948) 57 Statement of Dr. Monomohan Das, Constituent Assembly Debates (November 29, 1948) 58 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. I (4th Ed., Reprint 1999), paragraph 9.418 at p. 691 59 M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and Samaraditya Pal; 2010), at p. 1067 60 2. Definitions (c) section or class includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever. 61 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 authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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