Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

BASICS OF CASE LAW

CASE BRIEF
Indian Young Lawyers’ Association & Ors.
Vs.
The State of Kerala

SUBMITTED TO – SUBMITTED BY –
DR. KUMAR ASKAND PANDEY Tejas Misra
ASSOCIATE PROFESSOR Enrollment No.- 210101155
(BASICS OF LEGISLATION) B.A. LL.B. (Hons.)
Dr. Ram Manohar Lohiya National Law University 1st Semester, Section ‘B’
 ACKNOWLEDGEMENT

This project would have not been possible without the kind support and help of my friends and
family. I would like to express my sincere thanks to all of them. I express my deep gratitude to
my teacher for the subject Dr. Kumar Askand Pandey for giving me her exemplary guidance,
monitoring and constant encouragement throughout the project. I would like to express my
gratitude towards the members of RMLNLU for their kind support and encouragement which
helped me in the completion of this project. My thanks and appreciations also go to my
colleagues in developing the project and people who willingly helped me out with their
abilities.

DECLARATION

I hereby declare that this Research Paper submitted by me to Dr. Ram Manohar Lohiya
National Law University, Lucknow, Uttar Pradesh in partial fulfilment requirement for the
award of the degree of BA. LLB. (Hons.) is a record of bona fide project work carried out by
me under the guidance of Dr. Kumar Askand Pandey. I further declare that the work reported
in this project has not been submitted, and will not be submitted either in part or in full, for the
award of any degree or diploma in this institute or any other university.
 TABLE OF CONTENTS

Contents
JUDGEMENT...................................................................................................................... 3
INTRODUCTION ............................................................................................................... 4
BACKGROUND ................................................................................................................. 4
FACTS OF THE CASE ....................................................................................................... 5
LEGAL ISSUES .................................................................................................................. 6
MAJORITY JUDGMENT ................................................................................................... 6
DISSENTING OPINION................................................................................................... 11
DISCUSSION OF DECISION .......................................................................................... 15
BRIEF SUMMATION....................................................................................................... 17
REFERENCES .................................................................................................................. 19

JUDGEMENT

Title - Indian Young Lawyers’ Association & Ors. Vs. The State of Kerala & Ors.

Citation – ILR 2018 (4) Kerala 285

Judges – Justices Dipak Misra, A.M. Khanwilkar, Rohinton Fali Nariman, Dr. D.Y.
Chandrachud and Indu Malhotra.

Ratio – 4:1

Ratio Decidendi – The Supreme Court held that the practice violated the fundamental rights
to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down
Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b)
allowed for Hindu denominations to exclude women from public places of worship, if the
exclusion was based on ‘custom’. The Apex Court has allowed entry of women of all age
groups to the Sabarimala Temple, and held that “Devotion cannot be subjected to Gender
Discrimination.”
 INTRODUCTION

The case of Young Lawyers’ Association & Ors. Vs. The State of Kerala & Ors. deals with the
question of the entry of women to the Sabrimala Temple in Kerala. In 1993, this practice was
upheld, as a tradition being carried out from time immemorial by the Kerala High Court.

In 2006, the Young Lawyers Association filed a petition in public interest contesting the
constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965
(that restrict the entry of women into the Temple).

On 28 September 2018, the Supreme Court of India, in a 4-1 majority decision declared the
restriction unconstitutional as it violated the Fundamental Right to Freedom as guaranteed
under Article 25, and overturned the ban on the entry of women.

BACKGROUND

The Sabrimala temple, devoted to Lord Ayyappa, a youthful celibate deity, has long prohibited
entry to women of menstruating age (10-50), out of respect for the god. Several women tried
to enter the temple but could not because of threats of physical assault against them. In 1991,
A group of five women lawyers had moved to the Apex Court challenging the decision of the
Kerala High Court. The Court judged that the practice was not discriminatory, and not
unconstitutional, stating “Such restriction (restriction of women entry) imposed by the
Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India. 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.”

The bench truly delved into the constitutional, legislative, religious and societal aspect of
the issue, holding that biological or physiological factors of women or notions of
impurity associated with menstruation, cannot and should not be used as a reason to bar entry
in a place of worship. The majority observed that every devotee, irrespective of gender,
shall have an equal right to worship the Almighty and went further to say that the presence of
women in temple must not be regarded as “impure” especially in a country like India where
women are glorified as goddesses in several forms and religions.

FACTS OF THE CASE

• Sabarimala Temple is dedicated to Lord Ayyappa. It is a huge pilgrimage attraction.

Travancore Dewaswom Board is the statutory body which manages this shrine. The
Devaswom Boards are the temple management authorities, and manage almost 3000
temples in Kerala. The Travancore Board is an autonomous body formed as per the
Travancore-Cochin Hindu Religious Institutions Act of 1950.

• The Sabrimala Temple has a long-standing tradition of prohibiting women of ages 10-
50 from entering the shrine, legislated under Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, framed in exercise of the powers
conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Act, 1965.
• In 1991, the Kerala High Court expressly prohibited the entry of women during
their “menstruating years” between ages 10 to 50 from entering the shrine. The court’s
reasoning was that the Prohibition on the entry of women to the shrine was an
established age-old custom. This custom survived the test of time and therefore became
a well-established norm.
• In 2006, the Indian Young Lawyers Association challenged this unreasonable
prohibitory verdict by filing a Public Interest Litigation. They challenged it on the
ground of the fact that this custom was violative of major Constitutional provisions.
This case was referred to as a 5-judge bench led by Justice Dipak Misra. He was the
Chief Justice of India at the time.

• In 2018, the Apex Court lifted the ban and ruled that women of all age groups can’t be
hindered from entering the Sabarimala shrine in Kerala. Thus, marking the end of an
unreasonable and outdated tradition. Case propounded through a 4:1 ratio.
 LEGAL ISSUES

1. Whether the exclusionary practice against the female gender amounts to

“discrimination”? Whether the same leads to violation of Articles 14, 15, and 17?
2. Reinterpretation of “essential religious practice” under Article 25 and whether the
religious institution can assert a claim on the right to the practice of excluding women?
3. Whether the Ayyappa Temple has a denominational character? Whether or not it is
affected by Article 290-A of the Constitution of India?
4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry)
Rules permits ‘religious denomination’ to ban entry of women on the ground of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of
Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be
violative of the provisions of Part III of the Constitution?

MAJORITY JUDGMENT

The Court observed that religion is a way of life intrinsically linked to the dignity of an
individual and patriarchal practices based on exclusion of one gender in favour of another could
not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion.

1. The Court held that the devotees of Ayyappa did not pass the constitutional test to be
declared a separate religious identity.
1.1. The Respondents asserted that the devotees of Lord Ayyappa constitute a religious
denomination, who follow the ‘Ayyappan Dharma’, where all male devotees are called
‘Ayyappans’ and all female devotees below 10 years and above 50 years of age are
called ‘Malikapurams’.
1.1.1. The right to profess their faith by worshipping at the Sabarimala Temple, can
be guaranteed only if the character of the deity as a celibate is preserved. If women
between the age of 10 to 50 years are permitted entry, it would result in changing
 the very character/nature of the deity, which would directly impinge on the right
of the devotees to practise their religion guaranteed by Article 25(1) of the
Constitution.
1.2. The important question here as to what constitutes a religious denomination. The Court
referred to the Supreme Court case Nallor Marthandam Vellalar & Ors. v.
Commissioner, Hindu Religious and Charitable Endowment & Ors1. It was argued in
this case that the Vellala Community observed special religious practices and beliefs
which are integral part of their religion and that the front part of the sanctorum is open
to access only to the members of their community and no one else. The Court held that
the temple at Nellor owned by the Vellala Community did not constitute a religious
denomination as there was 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.
1.3. Further the Court in that case, following the principle laid down in S.P. Mittal v. Union
of India and Ors2, observed:

“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.”

1.4. The Apex Court here held that though the devotees of Lord Ayyappa were referred to
as “Ayyappans”, there is no identified group called Ayyappans. Every Hindu devotee
can go to the temple. Moreover, there are other temples dedicated to Ayyappa that do
not have such restrictions, therefore it is not a belief of the community as a whole. The
Court held that is no identified sect called “Ayyappans”. They held that the Sabarimala
temple is a public religious endowment and there are no exclusive identified followers
of the cult.

1
AIR 1952 SC 245.
2
AIR 1983 SC 1
 1.5. The Court judged that there might be evolutions or certain innovations on the part of
Hindu philosophy, but that would not make it a distinct religion on that account. It was
observed that regardless of whether one was a Shaivite, a Vaishnavite or a believer of
the Panchratna form or worship, they could all pray at the same temples, be it in any
form in accordance with the Hindu Shastras. None of them could be considered a
denomination or sect but are Hindus only.
1.6. Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a
separate religious denomination. For a religious denomination, there must be a new
methodology provided for a religion. Mere observance of certain practices, even
though from a long time, does not make it a distinct religion on that account.

2. The Court held that the rights under Article 25(1) of the Constitution are enforceable
against the Travancore Devaswom Board.
2.1. Article 25(1) of the Constitution states – “All persons have the freedom of conscience
and free profession, practice and propagation of religion - 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.”
2.2. Having stated that the devotees of Lord Ayyappa do not constitute a religious
denomination within the meaning of Article 26, the Court stated Sabrimala was a
public temple, as Section 15 of the Travancore-Cochin Hindu Religious Institutions
Act of 1950 vests all powers of direction, control and supervision over it in the
Travancore Devaswom Board.
2.3. As the Travancore Devaswom Board is included in the scope of the “State” under
Article 12 of the Constitution, the Fundamental Rights granted under Article 25(1) are
enforceable against it. This means the right to profess religion is applicable to all
persons, including women.
2.4. Thus, the Court held that the right guaranteed under Article 25(1) has nothing to do
with gender or, for that matter, certain physiological factors, specifically attributable
to women. The denial of this right to women significantly denudes them of their right
to worship.
2.5. In the context of any Hindu worshipper seeking entry in a temple which is a public
place of worship for Hindus, the Court cited Nar Hari Shastri and others v. Shri
Badrinath Temple Committee3-

“It seems to us that the approach of the court below to this aspect of the case has not
been quite proper, and, to avoid any possible misconception, we would desire to state
succinctly what the correct legal position is. Once it is admitted, as in fact has been
admitted in the present case, that the temple is a public place of worship of the Hindus,
the right of entrance into the temple for purposes of 'darshan' or worship is a right
which flows from the nature of the institution itself, and for the acquisition of such
rights, no custom or immemorial usage need be asserted or proved…..”

2.6. The Court also cited another authoritative judgement in Acharya Jagdishwaranand
Avadhuta and Ors. v. Commissioner of Police, Calcutta and Anr.4 –
“Man's relation to his God is made no concern for the State. Freedom of conscience
and religious belief cannot, however, be, set up to avoid those duties which every
citizen owes to the nation; e.g. to receive military training, to take an oath expressing
willingness to perform military service and so on.”

2.7. The Court, thus, stated that that the impugned Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965, is a clear violation of the right
of such women to practise their religious belief which, in consequence, makes their
fundamental right under Article 25(1) a dead letter. The women, in the case at hand,
are also Hindus and so, there is neither any viable nor any legal limitation on their right
to enter into the temple.
2.8. It was held that exclusion of women between the ages of 10-50 years by the Sabarimala
Temple was contrary to constitutional morality and that it subverted the ideals of
autonomy, liberty, and dignity. It was further emphasised that physiological
characteristics of women, like menstruation, have no significance or bearing on the
entitlements guaranteed to them under the Constitution.

3
1952 AIR 245
4
(1983) 4 SCC 522
 2.8.1. Justice Chandrachud opined that the term “Untouchable” had not been given a
exact meaning by the makers of the Constitution, this was not to be understood in
a restrictive manner but in an expansive sense. He further held that Article 17 is a
powerful guarantee against exclusion and can also be read to exclude women
against whom social exclusion of the worst kind has been practiced and
legitimized on notions of purity and pollution. Thus, even women could be
included in the definition of “Untouchable”.

3. The practice of excluding women cannot be considered a “essential practice” of the Hindu
faith.
3.1. As the Court had declared unequivocally that the Ayyappans are Hindus, the question
thus was raised whether the practice of excluding menstruating women from certain
temples, could be considered an essential aspect of the Hindu religion.
3.2. As to what constitutes as essential religious practice, the Court opined, is to be judged
by the Courts in view of the religious, historical and cultural background, as cited in
Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Anr5.
– “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.” The
Court also opined that practices that are unessential or extraneous accretions, which
could be products of superstition, cannot be considered an integral or core part of the
religion.
3.3. The Court held that an essential part of a religion means the core beliefs upon which a
religion is founded, those practices that are fundamental to follow a religious belief.
Without which, a religion will be no religion. Thus, the test of essentiality would be
whether the taking away of that practice would result in a fundamental change to the
faith and alter its very character.
3.4. Thus, the Court held that since allowing women inside temples could not alter the
fundamental aspect of the Hindu religion, it could not be considered an essential

5
(2004) 12 SCC 770
 aspect. It could even be said that exclusion of women of any age group could be
regarded as an essential practice of Hindu religion and on the contrary, as it is an
essential part of the Hindu religion to allow Hindu women to enter into a temple as
devotees and followers of Hindu religion and offer their prayers to the deity.
3.5. The Court went on to dissect the concerning provisions in the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965. Section 3 of the Act states that all
classes and sections Hindus may enter and would be allowed to worship, pray and
perform in any Hindu place of public worship, and no section or class of Hindu would
be prohibited or obstructed from entering such a place.
3.6. Under Section 4 of this Act, the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 were framed. Section 3(b) of the Rules prohibits the entry of
women by custom and usage to places of public worship. The Court opined that 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. No authority can bring into existence rights or restrictions that are not
contemplated in the relevant statue. Thus, Section 3(b) of the Rules is ultra vires
Section 3 of the Act under which it was framed.

The Majority Opinion of the Court thus stated that the exclusion of women in Sabrimala could
not pass the test of constitutionality, and the writ petition was allowed.

DISSENTING OPINION

The sole dissenting opinion, ironically, came from the only woman judge on the bench – Justice
Indu Malhotra.

1. The Court must respect a religious denomination’s rights to manage their own affairs.
1.1. Justice Malhotra stated that the petition was filed by those who were not Ayyappans,
and to determine the validity of long-standing religious customs and usages of a sect,
at the instance of such an organization who are “involved in social developmental
activities especially activities related to upliftment of women and helping them become
 aware of their rights”, would require the Court to decide religious questions at the
behest of persons who do not subscribe to this faith.
1.2. It was stated that allowing PILs in religious matters would open the floodgates to a
whole host of interlopers to question every and all religious practices. This would be a
violation of the spirit of Article 25, and the perils would be even greater for religious
minorities. In a pluralistic society comprising of people with diverse faiths, to entertain
PILs challenging religious practises followed by any group could cause serious
damage to the secular fabric of the country.
1.3. The conflict in this case between the Right to Equality under Article 14 and the Right
to Religious Freedom under Article 25, would compel the Court to undertake judicial
review to deliberate on the rationality of particular religious practices, which is outside
the powers of the Courts.

2. Article 15 does not include in its ambit Places of Worship.

2.1. Article 15(2)(b) states – “Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth (2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability, liability, restriction or
condition with regard to (b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the use of
the general public.”
2.2. Mr. Raju Ramachandran, Amicus Curiae, had submitted that the Sabarimala Temple
would be included in the phrase “places of public resort”, as it occurs in Article
15(2)(b). However, Justice Malhotra refers to the Constituent Assembly Debates in
respect to this. Several amendments were proposed to include the terms ‘places of
worship’ or ‘temples’ within Article 15, however all these were rejected by the
Constituent Assembly.6 In this way, places of public worship could not be included
under “places of public resort”, and therefore were not subject to Article 15.

3. The Ayyappans do constitute a religious denomination.

3.1. The Justice holds that the test of what constitutes a religious denomination given in
S.P. Mittal v. Union of India and Ors is not a strait-jacket test, but a working formula
meant to give guidance. In this case, the devotees of Ayyappa do indeed have a

6
Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29, 1948)
 particular set of beliefs - that Lord Ayyappa has manifested himself in the form of a
'Naishtik Brahmachari' (celibate). The practises include the observance by the
Ayyappans of the 41-day “vratham”. Those male Ayyappans who do not follow the
41-day rite, are similarly not allowed to enter the temple. Therefore, the devotees of
Ayyappa do indeed constitute a distinct denomination.
3.2. The argument that all Hindus or members of any other religion are allowed to visit the
temple does not take away its denominational character, as it is common in India for
people of all religions to visit the shrines of different religions.
3.3. The Constitution ensures a place for diverse religions to co-exist in a secular society.
It is necessary that the term 'religious denomination' should receive an interpretation
which is in furtherance of the Constitutional object of a pluralistic society, and should
be as expansive as possible.

4. On the question of ‘essential practice’ of the Ayyappans as a distinct community.

4.1. The judgement cited Bijoe Emmanuel & Ors. v. State of Kerala & Ors.7, where the
Court noted that the personal views of judges are irrelevant in ascertaining whether a
particular religious belief or practise must receive the protection guaranteed under
Article 25(1). If the belief is genuinely and conscientiously held it attracts the
protection of Article 25.
4.2. The Justice cited H.M. Seervai, a well-known jurist, who in his seminal treatise
‘Constitutional Law of India: A Critical Commentary’ criticized the observations of
the Supreme Court in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan &
Ors.8 as follows –
“It is submitted that the real question is whether the religious denomination looks upon
it as an essential part of its religion, and however irrational it may appear to persons
who do not share that religious belief, the view of the denomination must prevail, for,
it is not open to a court to describe as irrational that which is a part of a
denomination’s religion.”9
4.3. In other words, the Courts, which are not religious leaders, have the capacity to hold
genuinely-held beliefs as unessential to the religion, while the religious community

7
1987 AIR 748
8
1963 AIR 1638
9
Seervai, H.M. Constitutional Law of India: A Critical Commentary, Vol. II (4th Ed., Reprint 1999),
paragraph 12.66 at p. 1283.
 themselves cannot. This must be a violation of the Constitution, as the Constitution
protects the freedom to practice religion, not merely the practice of the essentials of
religion.
4.4. The Justice again cited H.M. Seervai on the question of accretions to religion that have
sprung from superstition, that were observed to be extraneous and unessential by
Justice Gajendragadkar in Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali &
Ors10. According to his view, Seervai remarked that the observations of
Gajendragadkar J. were obiter, and went contrary to many other judgments. What is
superstition to one is a fundamental religious belief to another, and it is not in the
powers of secular courts to judge which are products of superstition and which are not,
and must be judged by the religious denomination itself. 11
4.5. The Judgement of CJI Khehar in Shayara Bano v. Union of India and Ors.12 was cited
to summarize this line of thinking –
“While examining the issues falling in the realm of religious practises or Personal
Law, it is not for a court to make a choice of something which it considers as
forward-looking or non-fundamentalist. It is not for a court to determine whether
religious practises were prudent or progressive or regressive. Religion and Personal
Law, must be perceived, as it is accepted by the followers of the faith....”
4.6. Thus, the 'essential practises test' in its application would have to be determined by the
tenets of the religion itself. If any practise in a particular temple can be traced to
antiquity, and is integral to the temple, it must be taken to be an essential religious
practise of that temple. Thus, the centuries-old practice of Sabrimala Temple must be
protected under Article 25.

5. On the question of Untouchability with regards to women, the Justice cited that there has
been no precedent where women have been included in the definition of Untouchables
under the Constitution, but have always meant the Harijans.

10
1961 AIR 1402
11
Seervai, paragraph 12.18 at p. 1267-1268.
12
(2017) 9 SCC 1
 Professor M.P. Jain, professor of constitutional law, was cited and his interpretation of
Article 17 that Article 17 is concerned with those regarded untouchables in the
course of historic developments.”13

6. Rule 3(b) of the 1965 Rules14 is not ultra vires Section 3 of the 1965 Act. 15
6.1. The Proviso to Section 3 of the 1965 Act, which opens every place of public worship
open to the Hindus, states “Notwithstanding anything to the contrary contained in any
other law for the time being in force or any custom or usage..”
6.2. Rule 3(b) is a statutory recognition of a pre-existing custom and usage being followed
by this Temple., and thus Rule 3(b) is within the ambit of the proviso to Section 3 of
the 1965 Act.
6.3. Since the Petitioners fail to take notice of this proviso, the contention that Rule 3(b)
falls outside the ambit of the 1965 Act cannot be entertained.

DISCUSSION OF DECISION

The Preamble to the Constitution portrays the foundational principles: justice, liberty, equality
and fraternity. The Constitution was not merely meant to provide the institutional framework
for the Indian state, but herald a social transformation of the country. The four principles given
in the Preamble were meant to act together, as the foundational setup created by them working
together is greater than the sum of its parts.

If the principle of Liberty, i.e. the Freedom of Religion truly be realized, it is necessary that
Equality in worship also be taken as one of its core ideas. The current case deals with a conflict
between these two rights, and has wide ramifications for the future of the scope of religious
freedoms in the country.

Essentially, the significance of this case lies in defining the boundaries of religion in a dialogue
about our public spaces. Does the Constitution, in the protection which it grants to religious
faith, allow the exclusion of women of a particular age group from a temple dedicated to the
public? Will the quest for human dignity be incomplete if the Constitution accepts the exclusion

13
M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and Samaraditya Pal;
2010), p. 1067.
14
Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
15
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
of women from worship in a public temple? Will the quest for equality and fraternity be
denuded of its content where women continue to be treated as children 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 and
unavoidable aspect of their existence?

Among the fundamental duties of every citizen recognized by the Constitution is "to renounce
practices derogatory to the dignity of women". To allow practices derogatory to the dignity of
a woman in matters of faith and worship would permit a conscious breach of the fundamental
duties of every citizen, and be violative of the ideals that the makers of the Constitution put
forward. To allow these practices under the guise of Religious Freedom would’ve meant social
evils such as Sati would still have been allowed.

The State has been given a Constitutional mandate to throw open places of public worship to
“all sections of Hindus”. Hinduism itself, is incredibly diverse, and almost every aspect of it
varies from region to region, and even temple to temple. All these diverse thought-systems are
categorized as “Hindu”, to allow any temple to claim that it is a separate religious denomination
on the basis of some distinct practices, would mean that the term “Hindu” itself would lose all
meaning.

The main point that revolves around religious practices is the question of essentiality. The
Supreme Court has made itself the central authority in deciding what practices are essential
and which are not, as one cannot simply allow practices to be declared essential to the religion
because they have been held since time immemorial, have scriptural bases, have been declared
so by the founder of the sect, or are considered so by the community itself because the
community itself might have diverse views within it. The Apex Court was constructive in
holding that the celibate nature of Lord Ayyappa, as per sacred scriptures, did not by fact itself
justify the exclusion of women of menstruating age from worshipping in the Temple. This
approach of exclusion is akin to the constitutionally forbidden practice of untouchability as per
Article 17. Irrespective of the source from which a practice claims legitimacy, the Court held
that the Constitution enjoins the judiciary to deny protection to practices that detract from the
constitutional vision of an equal citizenship.

The Court has increased the scope of Article 17. The definition of ‘untouchability’ was
eschewed by the Constitution makers, however the Court has expanded its meaning beyond the
caste-system, to include any exclusionary practice that is based on the notions of ‘purity and
pollution’, including the systemic humiliation, exclusion and subjugation faced by women. The
social exclusion of women based on menstrual status, therefore, is but a form of untouchability,
and such a practice is contrary to all Constitutional values. One can hope that this will create a
larger current in society where obligations of female ‘purity’ would be completely abandoned.

The Respondents argued that the deity of the temple (Lord Ayyappa) is itself a bearer of
Constitutional rights, and thus has the right to preserve his celibacy. In Indian law, an idol is
indeed a juristic person and can sue, be sued, and hold property. However, the question of
whether it has Constitutional rights is a separate matter. This Court remarked that the
Constitution postulates every individual as its basic unit, that 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 III of the Constitution. It would be ludicrous to
imagine that a idol, an entity that has no relationship with the State and neither exists on this
plane, could be granted the gamut of rights under Part III.

There is a substantial question to be dealt it when the Courts have now put themselves at the
forefront of deciding which religious practices are essential or not. This has practically given
the judiciary the authority to use its power to reform religion and cleanse religions of practices
derogatory to individual dignity, though it might conflict with the views of the religious
community. The competence of the Court to do so and the legitimacy of the assumption of that
role may be questionable. Adjudicating on what does or does not form an essential part of
religion blurs the distinction between the religious-secular divide and the essential/inessential
approach. By entering within the realm of religion, the court has opened the floodgates
for such controversies in the future. The final say on the matter still remains pending.

BRIEF SUMMATION

In 2006, six women, members of the Indian Young Lawyers' Association, petitioned the
Supreme Court of India to lift the ban against women between the ages of 10 and 50 entering
the Sabarimala temple. They argued that the practice was a violation of their constitutional
rights and questioned the validity of provisions in the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules Act of 1965 which supported it. On 28 September 2018, the
Supreme Court of India ruled that women of all age groups could enter the temple of
Sabarimala. The court ruled thus:
“We have no hesitation in saying that such an exclusionary practice violates the right of women
to visit and enter a temple to freely practise Hindu religion and to exhibit her devotion towards
Lord Ayyappa. The denial of this right to women significantly denudes them of their right to
worship.”

The verdict was passed with a 4-1 majority with Chief Justice Dipak Misra, and Justices A. M.
Khanwilkar, R. F. Nariman and D. Y. Chandrachud supporting the admission of women to the
temple, while Justice Indu Malhotra dissented. Indu Malhotra stated that every individual
should be allowed to practice their faith irrespective of whether the practice is rational or
logical.
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