ADVANCED ARGUMENTS

ISSUE-1:

Whether the exclusionary practice of menstruating women amounts to discrimination

according to the Constitution of Vindhu?

At the outset, it is humbly submitted that the respondent attempts to portray the Petition as one
which involves the question of “Women v. lord Harimala Temple” is a completely fabricated,
mischievous and grotesque distortion of the religious practice of the Harimala Temple which
has been challenged in the Petition, the basis of the practice in accordance with the history of
the Temple and the legality and constitutionality of the practice.

The mistake that the Petitioner has committed is to give the impression that it represents all
women in its challenge to the religious practice of the Temple. While the Petitioner represents
only a women activist who have no regard for the traditions of the Temple despite claiming the
right to worship at the Temple, a number of women of who respect the traditions of the Temple
and are keen to avoid the violation of its sacrosanct traditions by others under the façade of
gender equality. Simply stated, the rights of the members of the Intervener organization under
Article 25(1)1 would be violated if the reliefs sought in the Petition are granted by this Hon'ble
Court.

It is most humbly submitted before this honorable court that the restriction imposed on the
entry of women of a particular age into the lord Harimala temple is not violative of fundamental
rights under the constitution of Republic of Vindhu and the claim for exclusion of women from
religious worship is supported by the constitution of India as:

The Lord Harimala Temple is not discriminatory by not violating fundamental rights;

1
Art 25 clause 1, Indian Constitution
 THE LORD HARIMALA TEMPLE IS NOT DISCRIMINATING ACCORDING TO THE
CONSTITUTION OF VINDHU

Article 14: Right to Equality2 is not violated.

Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the
principles of rationality embedded therein. Article 25 specifically provides the equal
entitlement of every individual to freely practice their religion. Equal treatment under Article
25 is conditioned by the essential beliefs and practices of any religion. Equality in matters of
religion must be viewed in the context of the worshippers of the same faith.

The twin-test for determining the validity of a classification under Article 14 is:
• the classification must be founded on an intelligible differentia;
• It must have a rational nexus with the object sought to be achieved by the impugned law.

The given situation of Harimala Temple is having the intelligible differentia and also rational
behind the segregation. The restriction imposed is based on age-related band and it is done on
the basis of mensuration age and it is not arbitrary in nature. It has a biological rationale behind
the age band and this is executed in order to maintain the celibacy of the Lord Harimala in
order to preserve its cultural and religious significance.

The difficulty lies in applying the tests under Article 14 to religious practices which are also
protected as Fundamental Rights under our Constitution. The right to equality under Article 14
conflicts with the rights of the worshippers of this shrine which is also a Fundamental Right.

The reliance on Article 14 by the Petitioner is the crux of the matter because what is being
sought by the Petitioner is a mechanical and blinkered approach to gender equality which is
blind to, deaf to and unconcerned with the rights of any other individual or institution. The
Petitioner is not even concerned with the implications of such an approach to Hindu religious
institutions where women rightly have exclusive spaces. This is a textbook case of cutting the
head to fit the hat, which brings an Anglican, Abrahamic and mono-cultural approach to Indic
traditions whose sheer diversity and appetite for nuance is unmatched anywhere in the world.

2
Art 14, Indian Constitution
Article 15: Prohibition of Discrimination is not violated.3

Article 15 of the Constitution prohibits differential treatment of persons on the ground of ‘sex’
alone. In the whole section it is not mentioned that the segregation cannot be done on the basis
of age. In the present scenario the age band is employed to apply the restriction on entry of
women to the temple.

The Petitioner has also, perhaps deliberately or perhaps in ignorance, failed to point out that
even Hindu men who visit the Temple are required to observe a vow, which among other things,
mandates abstinence. This is a direct consequence of the celibate nature of the Deity at the
Harimala Temple- a religious leitmotif that underpins the integrity of every religious practice,
ritual and ceremony carried out at the Temple. Therefore, the Petitioner’s attempts to give the
impression that all conditions apply only to women is factually baseless. The fact is that
different conditions apply to both genders, which are gender- sensitive and are therefore
reasonable and not unequal. Difference is not discrimination and is certainly not tantamount to
inequality.

The rule is not discriminatory for it is neither based on misogyny nor menstrual impurity, rather
Varnappan’s celibacy here is a fundamental character of the temple.

Article 17: Untouchability is not applicable.4

Article 17 has no application legally since it specifically applies only to the practice of
untouchability based on caste or religion, not gender, which is evident from the promulgation
of the Protection of Civil Rights Act, 1955.

That apart, in the facts of the instant Petition, there is no evidence to suggest that the Impugned
religious practice is based on gender-based untouchability or notions of impurity associated
with the physiological process of menstruation. On the contrary, the Impugned religious

3
Art 15, Indian Constitution
4
Art 17, Indian Constitution
practice is based solely on the eternally celibate nature of the Deity at the Temple. Therefore,
the reliance on Article 17 holds no water.
Hence, nowhere fundamental rights of women is violated and thus we can say that the
exclusionary practice of menstruating women not amount to discrimination according to the
Constitution of Vindhu.

ISSUE-2:
WHETHER SUCH EXCLUSION FALLS UNDER THE RELIGIOUS PRACTICES AND COULD IT BE
INCLUDED UNDER THE RIGHT TO MANAGE ITS OWN AFFAIRS OF THE RELIGIOUS

INSTITUTION?

 Article 26 provides guidelines on:

Right to manage own affairs in matters of religion.
1. This clause guarantees to each religious denomination the right to manage its domestic
affairs in matters which are concerned with religion and the State cannot interfere in these
affairs unless the denomination so exercises its right as to interfere with 'public order, morality
or health'. Another limitation upon the right under Art. 26(b) is that it is subject to Arts. 17, 86
25(2) (b).5 Besides these, there are no other limitations imposed by the Constitution. Hence, a
right of religious denomination under Art. 26(b), e.g., to excommunicate a member on religious
grounds, cannot be taken away or restricted on the ground that it would affect the civil rights
of such members, including the right of beneficial use or enjoyment of the denominational
property.6

2. since the freedom guaranteed under Art. 25(1) includes the freedom to practice
any rituals or observations which are regarded as an integral part of the religion, it
follows that under Art. 26(b) 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 authority to ultimate judicial review.

3. This right of management includes

5
Venkatraman v State of Mysore
6
Sarup Singh v State of Punjab
(a) Complete autonomy to decide what rites and observances are essential according to its
religion, though the secular aspects, e.g., the scale of expenses to be incurred in connection
with such observances, may be regulated by the competent Legislature;
(b) The right to spend the trust property or its income for religion and religious purposes and
objects indicated by the founder or established by usage obtaining in a particular institution.
To divert the trust property or funds to other purposes, although the original objects of the
founder can still be carried out, is an unwarrantable encroachment upon the right guaranteed to
a religious institution by this clause, even though such other purposes are 'charitable'
(c) The right to maintain the institution under the management of the spiritual head of the
denomination, which would be destroyed if a statutory authority is appointed for the purpose.

Matters of religion'.
1. "Religion", in this context, is not confined to religious belief but includes the practices which
are regarded by the community as part of its religion7, and may extend even to matters of food
and dress.8
2. Each 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.88,91 But the Court has the right to determine whether religion.9 Thus, particular
rite or observance is regarded as essential by the tenets of a particular community.10
3. On the other hand (i) According to the ceremonial law relating to temples, the persons who
are entitled to enter into them for worship." where they are entitled to stand, the hours when
the public are to be admitted, how the worship is to be conducted, are all matters of religion.
(ii) Though excommunication on non-religious grounds cannot be claimed as a right flowing
from Art. 26(b), it may uphold excommunication on religious grounds where it is regarded as
part of the religious tenets of the community, e.g., such power belonging to the Dai of the
Dawoodi Bohra community."

7
, Ram v. state of Orissa. Commr., H.R.E. v. Lakshmindra, (1954) S.C.R. 1005 (1023-24, 1031).
8
Govindlalji v. State of Rajasthan, A. 1963 S.C. 1638: Jagadishwaranand v. Police Comuna A. 1984 S.C. 51
(57)
9
Moti das v. sahi A 1959 S.C. 942 (950),
10
Durgah Conimittee v. Hussain, A. 1961 S.C. 1402 (1415).
It is well settled that that Arts. 25 and 26 of the Constitution protect not merely religious
doctrines and beliefs but also acts done in pursuance of religion and thus guarantee rituals and
observances, ceremonies and modes of worship which are integral parts of religion. What is
essential part of a religion or what its religious practice has to be judged in the light of its
doctrine and such practices as are regarded by the community as a part of its religion.11

ISSUE-3
WHETHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

INDULGE IN PRACTICES WHICH ARE UNCONSTITUTIONAL?

A. THE TEMPLE HAS A RELIGIOUS DENOMINATIONAL CHARACTER.

Article 26 of the Constitution guarantees the freedom to every religious denomination, or sect
thereof, the right to establish and maintain institutions for religious or charitable purposes, and
to manage their own affairs in matters of religion. The right conferred under Article 26 is
subject to public order, morality and health, and not to any other provisions in Part III of the
Constitution.

Article 26 and Shiroor Mutt case12 provide guidelines for a religious denomination as:
The attributes of a “religious denomination” are five-fold:
1) Having its own property,
2) Distinct Identity,
3) Having its own set of followers,
4) Distinct set of practices and beliefs,
5) Its own hierarchy of administration without external control and interference.

11
Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853
12
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282 (para 15)1954 AIR 282, 1954 SCR 1005
Lord Harimala Trust governs and administers the body devoted towards the development of
the Temple and all its owned property. Therefore, the temple is having its own property. A
large set of followers have faith in Lord Harimala and it is unique in its own ways as its deity
is in the form of Naisthik Bramhachari, a hyper masculine God born out of the union of two
male Gods.

It has its own set of practices and beliefs to maintain the celibacy and austerity observed by the
deity through its own cultural and religious Heritage mentioned in its texts. It has independent
hierarchy of administration and is not under the state control.

Given the distinct identity of the Temple, the traditions it subscribes to and the clear markers
of identity which devotees have to observe as Harimala devotees during the period of
observance of the vow and the visit to the Temple, there can be no denying the fact that
Harimala devotees do in fact constitute a religious denomination for the purposes of Article 26.

As regards the interplay between the public character of the Temple and its denominational
rights under Article 26, it is humbly submitted that the two aspects are not mutually destructive.
While the Temple has a public character, in the sense that it is not a private Temple, its rights
under Article 26 to expect and enforce adherence of its traditions by devotees who visit the
Temple stand undiluted. Had that not been the case, it would mean that all religious institutions
which have a public character or which are public places of worship do not have rights under
Article 26, which would be a patently ludicrous and untenable position to take. Simply stated,
there is nothing in Article 26 which gives the impression that the inherence and enjoyment of
fundamental rights under Article 26 by a religious institution of a religious denomination is
subject to it not being a place of public worship. Clearly, public or private character does not
affect Article 26 so long as the requirement of religious denomination is satisfied.

The temple does not come under state.

A non-statutory body, exercising no statutory powers13 is not State.

Article 12 defines state in the following manner:
“The State” includes

13
Naresh v State of Maharashtra
1. The Government and Parliament of India

2. The Government and Legislature of each of States

3. Local Authorities or

4. Other Authorities

Within the territory of India or under the control of Government of India. Lord Harimala temple
does not come under the definition of state.

B. THE RIGHT OF INDIVIDUALS UNDER ARTICLE 25 AND RIGHT OF RELIGIOUS

DENOMINATION UNDER ARTICLE 26

Article 25 reads as:

Freedom of conscience and free profession, practice and propagation of religion
(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, practice
and propagate religion.

It is further humbly submitted that the respondent position suffers from a grave error in that it
fails to distinguish between diversity in religious traditions and discrimination. The issue,
which requires surgical precision and rigorous examination of evidence, is being approached
with a sledgehammer in the name of gender equality and the right to worship. The concept of
diverse religious spaces is being approached solely through the prism of equality which does
grave injustice to the very concept of equality, apart from causing irreparable harm to the rights
of those who put faith in the Temple and its traditions in exercise of their rights under Article
25(1), and the Temple’s own rights in matters of religion under Article 26.

That the freedom of religion under Articles 25 and 26 of the Constitution is not only confined
to beliefs but extends to religious practices also would hardly require reiteration. Right of belief
and practice is guaranteed by Article 25 subject to public order, morality and health and other
provisions of Part-III of the Constitution. Sub-Article (2) is an exception and makes the right
guaranteed by Sub-article (1) subject to any existing law or to such law as may be enacted to,
inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu
religious institutions of a public character to all classes and sections of Hindus.

Article 26(b)14 on the other hand guarantees to every religious denomination or section full
freedom to manage its own affairs insofar as matters of religion are concerned, subject, once
again, to public order, morality and health and as held by this Court subject to such laws as
may be made under Article 25(2)(b). The rights guaranteed by Articles 25 and 26, therefore,
are circumscribed and are to be enjoyed within constitutionally permissible parameters. Often
occasions will arise when it may become necessary to determine whether a belief or a practice
claimed and asserted is a fundamental part of the religious practice of a group or denomination
making such a claim before embarking upon the required adjudication.

A decision on such claims becomes the duty of the Constitutional Court. It is neither an easy
nor an enviable task that the courts are called to perform. Performance of such tasks is not
enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of
its role as the Constitutional arbiter. Any apprehension that the determination by the court of
an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26
will have to be dispelled on the touchstone of constitutional necessity.

Without such a determination there can be no effective adjudication whether the claimed right
it is in conformity with public order, morality and health and in accord with the un-disputable
and unquestionable notions of social welfare and reforms. A just balance can always be made
by holding that the exercise of judicial power to determine essential religious practices, though
always available being an inherent power to protect the guarantees under Articles 25 and 26,
the exercise thereof must always be restricted and restrained.

Article 26 reads as:

Freedom to manage religious affairs Subject to public order, morality and health, every
religious denomination or any section thereof shall have the right (a) to establish and maintain
institutions for religious and charitable purposes;(b) to manage its own affairs in matters of
religion;(c) to own and acquire movable and immovable property; and(d) to administer such
property in accordance with law there was not a single attempt made to actually delve into the

14
Art 26 clause b, Indian Constitution
accepted history of the Impugned religious practice and its basis in the traditions of the Temple
to prove their claim that notions of impurity associated with menstruation indeed form the basis
of or inform the Impugned religious practice.
There is a vital reason for imposing this restriction on young women. It appears to be more
fundamental. The deity at Harimala is in the form of a Naisthik Bramhachari. "Bramhachari"
means a student who has to live in the house of his preceptor and study the Vedas living the
life of utmost austerity and discipline. A student who accompanied his Guru wherever he goes
and learns Vedas from him is a "Naisthikan".

A Bramhachari should control his senses. He has to observe certain rules of conduct which
include refraining from indulging in gambling with dice, idle gossips, scandal, falsehood,
embracing, and casting lustful eyes on females, and doing injury to others.15 Since the deity is
in the form of a Naisthik Bramhachari, 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.

Recent judgement delivered on May 2, 2018, concerning the religious practices at

Mahakaleshwar Temple in Ujjain, this Hon’ble Court expressly held in Paragraph 15 of the
judgement that the State has the constitutional obligation to preserve the religious practices of
all religions. In view of such an expansive treatment, it is, therefore, evident that neither the
history of the Temple or its traditions or the Impugned religious practice, nor the law that
applies to preservation of the Agama Shastra’s of Hindu Temples supports the Petitioner’s
challenge to the Impugned religious practice.

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.16

15
(vernacular matter omitted) Manu Smriti Chapter II, Shloka 179.
16
Raja Bira Kishore Deb v. State of Orissa, AIR 1964 SC 1501
“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. No outside
authority has any jurisdiction to interfere with the decision of such religious denomination.
Article 26(b) gives complete freedom to the religious denomination to manage its own affairs
in matters of religion.17 The freedom of conscience and freedom to speak, profess and
propagate religion guaranteed under Article 25 of the Constitution is subject not only to public
order, morality and health, but also subject to the other provisions of Chapter III. It necessarily
implies that the right to freedom of religion guaranteed under Article 25 is subject to the
freedom to manage religious affairs18

A Temple even if it a public place of worship does not lose its status as the abode of the Deity,
which is the very significance. Therefore, it is the will of the Deity expressed in the form of
tradition that shall apply to the conduct of Devotees once they enter the Temple and not the
free will of the devotees who have no regard for the traditions of the Temple and the beliefs
underlying such traditions. The rights of the Deity as the master of his abode have been
recognized by this Hon’ble Court in several judgements. Therefore, the limited consequence
of the public character of the Temple is to allow access to all Hindus who abide by the rules of
the Owner of the Abode, namely the Deity.

The Presiding Deity, Lord Harimala, have rights under the Constitution. The Petitioner’s rights
under Article 25(1) trump the rights of the Deity under Article 25(1), 26 and 21.

As submitted earlier, the Deity of the Temple has a legal personage under Indian law, which
has been recognized in several judgements by several High Courts prior to 1947 and by this
Hon’ble Court post 1947. Among the earliest judgements to recognize this position is the
judgement of the Bombay High Court in Pramatha Nath Mullick vs Pradyumna Kumar Mullick
(1925) 27 BOMLR 1064. Extracted here are the relevant portions of the judgement:19

It was argued on behalf of the appellant that the word 'individual' in s. 3 of the Act should not
be construed as including a Hindu deity because it was not a real but a juristic person. We are
unable to accept this argument as correct. We see no reason why the meaning of the word

17
Sri Venkataramana Devaru and Ors. vs. The State of Mysore and Ors. AIR 1958 SC 255 (Para 14
18
Supra 44
19
Pramatha Nath Mullick vs Pradyumna Kumar Mullick (1925) 27 BOMLR 1064
'individual' in section 3 of the Act should be restricted to human being and not to juristic
entities. In The Commissioner of Income Tax, Madhya Pradesh & Bhopal v. Sodra Devi (1)
Mr. Justice Bhagwati pointed out as follows:20
"The word 'individual' has not been defined in the Act and there is authority, for the proposition
that the word 'individual' does not mean only a human being but is wide enough to include a
group of persons forming a unit. It has been held that the word 'individual' includes a
Corporation created by a statute, e.g., a University or a Bar Council, or the trustees of a
baronetcy trust incorporated by a Baronetcy Act". We are accordingly of opinion that a Hindu
deity falls within the meaning of the word 'individual" under section 3 of the Act and can be
treated as a unit of assessment under that section.

We are accordingly of opinion that a Hindu deity falls within the meaning of the word
'individual" under section 3 of the Act and can be treated as a unit of assessment under that
section.21Therefore, it is evident from the above that judgements that Lord Harimala too has
the character of a juristic person under Hindu law as recognized by this Hon’ble Court.
Consequently, the Deity enjoys rights as a person under Article 25(1), 26 and 21. The Deity as
the Owner of His Abode enjoys the right to privacy under Article 21, which includes the right
to preserve His celibate form and the attendant restricts that apply to Him under his vow of
Naisthika Brahmachari. It is the will of the Deity which is being preserved by the Temple
through the traditions it observes, which the object of Article 26 is effectively. Finally, the
Deity has the right to follow His Dharma, like any other person under Article 25(1) and the
State is duty bound to protect His Faith. In light of this, clearly the Petitioner’s rights under
Article 25(1) cannot prevail over the Deity’s rights. In fact, they must be necessarily
subservient to the rights of the Deity.

In the landmark judgement of Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay
1962 AIR 853, this Hon’ble Court itself has held that the reformative levers provided in the
Constitution cannot be to reform a religious or a religious institution out of its identity and the
State must be careful in applying its notions of equality and modernity to religious
institutions.22

20
The Commissioner of Income Tax, Madhya Pradesh & Bhopal v. Sodra Devi (1) Mr. Justice Bhagwati
21
Mukerji J. in Rambrahma v. Kedar (1922) 30 C.L.J. 478 (p 483)
22
Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853
Following are the views of Justice N. Rajagopala Ayyangar whose prophetic note of caution in
relation to the exercise of powers under Article 25(2) are applicable to the instant Petition as
well:
“In my view by the phrase "laws providing for social welfare and reform" it was not intended
to enable the legislature to "reform", a religion out of existence or identity. Article 25 (2)(a)
having provided for legislation dealing with "economic, financial, political or secular activity
which may be associated with religious practices", the succeeding clause proceeds to deal with
other activities of religious groups and these also must be those which are associated with
religion. Just as the activities referred to in Art. 25(2) (a) are obviously not of the essence of
the religion, similarly the saving in Art. 25(2) (b) is not intended to cover the basic essentials
of the creed of a religion which is protected by Art. 25(1).

It is evident from the above-extracted portions of the judgement that if the power of
excommunication from a religious denomination can be held as constitutional for the purposes
of adherence to the tenets of the denomination, surely it cannot be contended that the
Sabarimala Temple does not have the power to lay down gender-specific conditions to permit
entry into the Temple and worship of the Deity based on the celibate nature of the Deity.

C. ESSENTIAL PRACTICE DOCTRINE

Article 26 provides guidelines on:

Right to manage own affairs in matters of religion.
1. This clause guarantees to each religious denomination the right to manage its domestic
affairs in matters which are concerned with religion and the State cannot interfere in these
affairs unless the denomination so exercises its right as to interfere with 'public order, morality
or health'. Another limitation upon the right under Art. 26(b) is that it is subject to Arts. 17, 86
25(2) (b).23 Besides these, there are no other limitations imposed by the Constitution. Hence, a
right of religious denomination under Art. 26(b), e.g., to excommunicate a member on religious
grounds, cannot be taken away or restricted on the ground that it would affect the civil rights

23
Venkatraman v State of Mysore
of such members, including the right of beneficial use or enjoyment of the denominational
property.24

2. Since the freedom guaranteed under Art. 25(1) includes the freedom to practice
any rituals or observations which are regarded as an integral part of the religion, it
follows that under Art. 26(b) 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 authority to ultimate judicial review.

3. This right of management includes

(a) Complete autonomy to decide what rites and observances are essential according to its
religion, though the secular aspects, e.g., the scale of expenses to be incurred in connection
with such observances, may be regulated by the competent Legislature;
(b) The right to spend the trust property or its income for religion and religious purposes and
objects indicated by the founder or established by usage obtaining in a particular institution.
To divert the trust property or funds to other purposes, although the original objects of the
founder can still be carried out, is an unwarrantable encroachment upon the right guaranteed to
a religious institution by this clause, even though such other purposes are 'charitable'
(c) The right to maintain the institution under the management of the spiritual head of the
denomination, which would be destroyed if a statutory authority is appointed for the purpose.

Matters of religion'.
1. "Religion", in this context, is not confined to religious belief but includes the practices which
are regarded by the community as part of its religion25, and may extend even to matters of food
and dress.26
2. Each 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

24
Sarup Singh v State of Punjab
25
, Ram v. state of Orissa. Commr., H.R.E. v. Lakshmindra, (1954) S.C.R. 1005 (1023-24, 1031).
26
Govindlalji v. State of Rajasthan, A. 1963 S.C. 1638: Jagadishwaranand v. Police Comuna A. 1984 S.C. 51
(57)
they hold.88,91 But the Court has the right to determine whether religion.27 Thus, particular
rite or observance is regarded as essential by the tenets of a particular community.28
3. On the other hand (i) According to the ceremonial law relating to temples, the persons who
are entitled to enter into them for worship." where they are entitled to stand, the hours when
the public are to be admitted, how the worship is to be conducted, are all matters of religion.
(ii) Though excommunication on non-religious grounds cannot be claimed as a right flowing
from Art. 26(b), it may uphold excommunication on religious grounds where it is regarded as
part of the religious tenets of the community, e.g., such power belonging to the Dai of the
Dawoodi Bohra community."

It is well settled that that Arts. 25 and 26 of the Constitution protect not merely religious
doctrines and beliefs but also acts done in pursuance of religion and thus guarantee rituals and
observances, ceremonies and modes of worship which are integral parts of religion. What is
essential part of a religion or what its religious practice has to be judged in the light of its
doctrine and such practices as are regarded by the community as a part of its religion?29

ISSUE-4
WEATHER RULE 3 (B) OF THE 1965 RULES DISCRIMINATES WOMEN ON THE BASIS OF SEX?

Rule 3(b) of the Varela Hindu Places of Public Worship Rules 1965 which states that “Women
who are not by custom and usage allowed to enter a place of public worship shall not be entitled
to enter or offer worship in any place of public worship” does not violates constitutional
guarantees of equality, non-discrimination and religious freedom as denial of entry has been
a centuries-old practice strictly adhering to the tantric concept of purity and pollution
which has nothing to do with any sort of sexual discrimination as it seeks to protect
customs and usages.

27
Moti das v. sahi A 1959 S.C. 942 (950),
28
Durgah Conimittee v. Hussain, A. 1961 S.C. 1402 (1415).
29
Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853
The practise of restricting the entry of women is admitted to have been prevalent since the past
several centuries. These practises are protected by the proviso to Section 3 of the 1965 Act
which is given effect to by Rule 3(b) of the 1965 Rules.
The Sabarimala Temple, dedicated to Lord Ayyappa, is a prominent temple in Kerala which is
visited by over twenty million pilgrims and devotees every year. As per a centuries old tradition
of this temple, and the ‘acharas’, beliefs and customs followed by this Temple, women in the
age group of 10 to 50 years are not permitted to enter this Temple. Religion does not merely
lay down a code of ethical rules for its followers to accept, but also includes rituals and
observances, ceremonies and modes of worship which are regarded as integral and essential
parts of the religion. Lord Ayyappa is believed to have explained the manner in which the
pilgrimage to the Sabarimala Temple is to be undertaken, after observing a 41-day ‘Vratham’.
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.
Rule 3(b) of the 1965 Rules has been challenged as being violative of Constitutional Morality.
Constitutional morality in a secular polity would imply harmonization of fundamental rights,
which include the right of every individual, religious denomination, or sect, to practice their
faith and belief in accordance with the tenets of their religion, irrespective of whether the
practice is rational or logical.30

Secular doesn’t mean equally prioritizing religions; it means not having any connection with
religious or spiritual matters. The government can’t dictate the manner a group of believers
should practice their religion. Courts cannot interfere with religious communities that exercise
their freedom of religion as long as it is not pernicious or oppressive. Courts should not venture
to rationalize matters of religion and faith and courts cannot undertake judicial review of the
same.

The Court noted that the personal views of judges are irrelevant in ascertaining whether a
particular religious belief or practice must receive the protection guaranteed under Article
25(1). It also emphasized that for a religious practice to receive protection under Article 25(1)
it must be “genuinely”, and “conscientiously” held by persons claiming such rights. This Court

30
Separation of Church (Religion) and State.
had noted that such religious beliefs and practices must be consistently and not “idly” held, and
should not emanate out of “perversity”. In doing so, it re- affirmed that the Constitutional fabric
of our country permits religious beliefs and practices to exist, regardless of whether or not they
appeal to the rational sensibilities of this Court, or others.31

Barring the legality, the claim that Sabarimala temple is public property is actually
unreasonable. It is the property of the community which have believe on Lord Harimala. A
community is not purely homogeneous – its basic principles and traits are defined by the
generally accepted norms that are a result of frequent never ending reviews, discussion, and
debates within the community. An authority (outside the community) stepping in can’t dictate
what all practices/norms/beliefs are and aren’t in line with the community’s beliefs or
principles.

If it is a devotee who feels such practices are discriminatory, the right step forward starts by
acknowledging the fact that those are the generally acknowledged principles and beliefs of
their community. Now, it is their choice whether to accept and to comply with the expectations
of the community and religion, or to dissent and try to reform the community through voluntary
means, or to ask philosophical questions to oneself on the beliefs of their community and
question the validity of the religion from which it emerged.

Therefore, it is evident from the above that judgements that Lord Harimala too has the character
of a juristic person under Hindu law as recognized by this Hon’ble Court. Consequently, the
Deity enjoys rights as a person under Article 25(1), 26 and 21. The Deity as the Owner of His
Abode enjoys the right to privacy under Article 21, which includes the right to preserve His
celibate form and the attendant restricts that apply to Him under his vow of
Naisthika Brahmachari. It is the will of the Deity which is being preserved by the Temple
through the traditions it observes, which is effectively the object of Article 26. Finally, the
Deity has the right to follow His Dharma, like any other person under Article 25(1) and the
State is duty bound to protect His Faith. In light of this, clearly the Petitioner’s rights under
Article 25(1) cannot prevail over the Deity’s rights. In fact, they must be necessarily
subservient to the rights of the Deity.

31
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra)
Either the government is allowed to force its version of ‘justice’ in religious matters (whether
the community likes it or not) or it should never have the right to do any such thing. It is time
to decide on this and stick to it.

Section 3 applies to all places of public worship, whereas the proviso applies to temples
founded for the 74 benefit of any religious denomination or sect thereof. Hence, the contentions
of the Petitioners that Rule 3(b) is ultra vires Section 3 of the 1965 Act is rejected.